Veteranclaims’s Blog

January 20, 2018

Single Judge Application; Wise, 26 Vet.App. at 532; section 5107(b); higher standard of benefit of doubt; “no definitive relationship” and “no conclusive evidence”; “permanent or sustained basis” language and 38 C.F.R. § 3.310(b);

Excerpt from decision below:

“Here, the Board applied a higher standard of proof than that required by section 5107(b). See Wise, 26 Vet.App. at 532 (“the Board, when evaluating evidence, cannot demand a level of acceptance in the scientific community [(51%)] greater than the level of proof required by the benefit of the doubt rule [(50%)]”). The Board adopted the October 2008 VA examiner’s opinions that hypertension was not secondary to Agent Orange exposure because “no definitive relationship” had been established and that hypertension was less likely than not related to serviceconnected PTSD because there was “no conclusive evidence” that it caused sustained high blood pressure or aggravated it on a permanent or sustained basis. R. at 1488-89. The “no definitive relationship” and “no conclusive evidence” specifications indicate that the examiner utilized a higher standard of proof in his opinion than that required to grant service connection. That the examiner’s statements may use an incorrect adjudication standard, see Wise, 26 Vet.App. at 532, does not necessarily require remand, as there is no reasons or bases requirement imposed on medical examiners, see Acevedo v. Shinseki, 25 Vet.App. 286, 293 (2012).
However, the Board is required to provide the precise basis for its adverse
service-connection determination. Washington v. Nicholson, 19 Vet. App. 362, 366-67 (2005).
Rather than discussing the problematic language in the opinion, though, the Board simply reiterated the examiner’s negative linkage opinions and stated that, therefore, there was no basis
5
for service connection for hypertension based on herbicide exposure and that the preponderance of evidence was against finding that Mr. Marshall’s hypertension was caused or aggravated by PTSD. R. at 7-9. In other words, the Board adopted the examiner’s incorrect standard and employed it to deny service connection. See id.
Remand will provide the Board the opportunity to consider the evidence of record utilizing the correct standard of proof for VA benefits cases and to determine if further development is necessary, including whether a new VA examination is needed, or if the evidence is in approximate balance, such that the benefit of the doubt be given to Mr. Marshall. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that remand is the appropriate remedy 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); see also Gilbert, 1 Vet.App. at 54. Further, as noted by the veteran and the Secretary, see Appellant’s Br. at 8-12; Secretary’s Br. at 5-6, the Board must explain any discrepancies between the October 2008 examiner’s “permanent or
sustained basis” language and the language of 38 C.F.R. § 3.310(b)—which provides that, for aggravation on a secondary basis, “any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected”—and utilize that regulation’s standard when assessing whether service-connected PTSD aggravated the veteran’s hypertension.”

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 16-3381
DONALD R. MARSHALL, APPELLANT,
V.
DAVID J. SHULKIN, M.D.,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before BARTLEY, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

BARTLEY, Judge: Veteran Donald R. Marshall appeals through counsel a July 7, 2016,
Board of Veterans’ Appeals (Board) decision denying service connection for hypertension, to include as secondary to herbicide exposure, diabetes mellitus, or post-traumatic stress disorder(PTSD). Record (R.) at 2-9.1 Single-judge disposition is appropriate in this case. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). This appeal is timely and the Court has jurisdiction to review the Board decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). For the reasons that follow, the Court will set aside the appealed portion of the July 2016 Board decision and remand
the matter for further development, if necessary, and readjudication consistent with this decision.

I. FACTS
Mr. Marshall served on active duty in the U.S. Army from September 1968 to September
1971. R. at 78. An April 2001 medical record showed mildly elevated blood pressure and an April
2006 VA examination noted hypertension. See R. at 8, 1283. In August 2007, the veteran filed a
1 The Board dismissed a claim for service connection for prostate cancer, but the veteran does not raise any
contentions of error with regard to this matter and the Court will not address it. See R. at 4; Pederson v. McDonald,
27 Vet.App. 276, 281-85 (2015) (en banc) (declining to review the merits of an issue not argued on appeal and
dismissing the appeal of that issue); Cacciola v. Gibson, 27 Vet.App. 45, 48 (2014) (same).
2
claim for service connection for, inter alia, high blood pressure and PTSD. R. at 1704. In April
2008, a VA regional office (RO) granted service connection for PTSD but denied service
connection for high blood pressure. R. at 366. Later that month, the veteran filed a Notice of
Disagreement as to that decision, stating that his high blood pressure was secondary to Agent
Orange exposure. R. at 1609.
In August 2008, Mr. Marshall submitted an excerpt from a 2006 report titled Health Risks
from Dioxin and Related Compounds: Evaluation of the Environmental Protection Agency (EPA)
Reassessment, which cited to a 2005 Department of Defense (DOD) study titled Ranch Hand. See
R. at 1506-07, 1531. The Ranch Hand study indicated that an increased percentage of individuals
in the high dioxin category had abnormally high diastolic blood pressure. See R. at 1506. In
September 2008, the veteran stated that his high blood pressure was related to service-connected
PTSD or diabetes mellitus.2 R. at 1613.
During an October 2008 VA examination, Mr. Marshall reported that he was diagnosed
with both diabetes mellitus and hypertension around the same time in 2005. R. at 1487. The
examiner noted that the record showed probable hypertension in 2001, that the veteran was
diagnosed with hypertension by at least 2006, and that there was no indication of nephropathy.3
Id. The examiner opined that hypertension was not secondary to diabetes mellitus because the
veteran developed hypertension in the absence of any diabetic nephropathy. R. at 1488. The
examiner further opined that the veteran’s hypertension was not secondary to Agent Orange
exposure because no definitive relationship had been established, despite preliminary findings as
quoted from the Ranch Hand study. Id. Finally, the examiner concluded that hypertension was
less likely than not related to service-connected PTSD because, although stress may acutely elevate
blood pressure, there was no conclusive evidence that it caused sustained high blood pressure or
aggravated it on a permanent or sustained basis. R. at 1489.
In April 2009, the RO issued a Statement of the Case (SOC) continuing to deny service
connection for high blood pressure. R. at 1281. That same month, Mr. Marshall perfected his
appeal. R. at 1245. In an August 2015 supplemental opinion, a VA examiner opined that it was
less likely than not that the veteran’s hypertension was aggravated by diabetes mellitus because
2 Although unclear from the record, it appears Mr. Marshall is service connected for diabetes mellitus. See
R. at 7, 1281.
3 Kidney disease. See DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1241 (32d ed. 2012) [hereinafter
DORLAND’S].
3
such a relationship was only possible if there was kidney dysfunction and tests showed that Mr.
Marshall’s kidneys were normal. See R. at 9.
In the July 2016 decision on appeal, the Board denied service connection for hypertension,
to include as secondary to herbicide exposure, diabetes mellitus, and PTSD. R. at 9. This appeal
followed.

II. ANALYSIS
Mr. Marshall argues that the Board erred by relying on the October 2008 VA examination,
which he asserts is inadequate because the examiner applied incorrect standards for assessing a
link between hypertension and herbicide exposure and whether service-connected PTSD
aggravated hypertension. Appellant’s Brief (Br.) at 4-12. The Secretary contends that the October
2008 examination was adequate, but concedes that the Board provided inadequate reasons or bases
for denying service connection for hypertension because it failed to provide any analysis, consider
medical articles submitted by the veteran, and reconcile the language of 38 C.F.R. § 3.310(b)—
the regulation pertaining to aggravation—with the October 2008 examiner’s permanent worsening
standard. Secretary’s Br. at 4-6. Mr. Marshall responds that remand is necessary for the Board to
apply the correct standard, not to explain why its application of the incorrect standards was
appropriate, and because the October 2008 examination was inadequate. Appellant’s Reply Br. at
1-4.
The general standard of proof in veterans benefits cases–the “benefit of the doubt”–
provides that, “[w]hen there is an approximate balance of positive and negative evidence regarding
any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt
to the claimant.” 38 U.S.C. § 5107(b); see 38 C.F.R. § 3.102 (2017). Evidence on an issue is in
“approximate balance” when the evidence for and against a finding on that issue is “almost exactly
or nearly equal” or “too close to call.” Ortiz v. Principi, 274 F.3d 1361, 1364-65 (Fed. Cir. 2001).
This “unique standard of proof” is lower than any other in contemporary American jurisprudence
and reflects “the high esteem in which our nation holds those who have served in the Armed
Services.” Gilbert v. Derwinski, 1 Vet.App. 49, 54 (1990); see Henderson v. Shinseki, 563 U.S.
428, 440 (2011) (noting that “[t]he contrast between ordinary civil litigation . . . and the system
that Congress created for the adjudication of veterans’ benefits claims could hardly be more
dramatic”). By requiring an “approximate balance of positive and negative evidence” to prove any
4
issue material to a claim for veterans benefits, 38 U.S.C. § 5107(b), the nation has “taken upon
itself the risk of error” in awarding such benefits. Gilbert, 1 Vet.App. at 54. Thus, “[b]y tradition
and by statute, the benefit of the doubt belongs to the veteran.” Id.
In keeping with the benefit of the doubt standard of proof, Congress has not mandated that
a medical principle have reached the level of scientific consensus to support a grant of VA benefits.
Instead, through the enactment of section 5107(b)’s low standard of proof for all issues material to a claim for veterans benefits, Congress has authorized VA to resolve a scientific or medical question in the claimant’s favor so long as evidence for and against that question is in “approximate balance.” Imposing a higher standard of proof would be counter to the benefit of the doubt rule. See Wise v. Shinseki, 26 Vet.App. 517, 532 (2014); Jones v. Shinseki, 23 Vet.App. 382, 388 n.1
(2010) (differentiating between legal and medical standards of proof); Rucker v. Brown, 10 Vet.App. 67, 73 (1997) (noting that the extent to which a theory is accepted in the scientific community is a factor the Board may use in evaluating scientific evidence, but reminding the Board that, “in a merits adjudication, the evidence need only reach equipoise”).
Here, the Board applied a higher standard of proof than that required by section 5107(b). See Wise, 26 Vet.App. at 532 (“the Board, when evaluating evidence, cannot demand a level of acceptance in the scientific community [(51%)] greater than the level of proof required by the benefit of the doubt rule [(50%)]”). The Board adopted the October 2008 VA examiner’s opinions that hypertension was not secondary to Agent Orange exposure because “no definitive relationship” had been established and that hypertension was less likely than not related to serviceconnected
PTSD because there was “no conclusive evidence” that it caused sustained high blood pressure or aggravated it on a permanent or sustained basis. R. at 1488-89. The “no definitive relationship” and “no conclusive evidence” specifications indicate that the examiner utilized a higher standard of proof in his opinion than that required to grant service connection. That the examiner’s statements may use an incorrect adjudication standard, see Wise, 26 Vet.App. at 532, does not necessarily require remand, as there is no reasons or bases requirement imposed on medical examiners, see Acevedo v. Shinseki, 25 Vet.App. 286, 293 (2012).
However, the Board is required to provide the precise basis for its adverse
service-connection determination. Washington v. Nicholson, 19 Vet. App. 362, 366-67 (2005).
Rather than discussing the problematic language in the opinion, though, the Board simply reiterated the examiner’s negative linkage opinions and stated that, therefore, there was no basis
5
for service connection for hypertension based on herbicide exposure and that the preponderance of evidence was against finding that Mr. Marshall’s hypertension was caused or aggravated by PTSD. R. at 7-9. In other words, the Board adopted the examiner’s incorrect standard and employed it to deny service connection. See id.
Remand will provide the Board the opportunity to consider the evidence of record utilizing the correct standard of proof for VA benefits cases and to determine if further development is necessary, including whether a new VA examination is needed, or if the evidence is in approximate balance, such that the benefit of the doubt be given to Mr. Marshall. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that remand is the appropriate remedy 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); see also Gilbert, 1 Vet.App. at 54. Further, as noted by the veteran and the Secretary, see Appellant’s Br. at 8-12; Secretary’s Br. at 5-6, the Board must explain any discrepancies between the October 2008 examiner’s “permanent or
sustained basis” language and the language of 38 C.F.R. § 3.310(b)—which provides that, for aggravation on a secondary basis, “any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected”—and utilize that regulation’s standard when assessing whether service-connected PTSD aggravated the veteran’s hypertension.
The veteran is free on remand to submit additional evidence and argument, including the arguments raised in his briefs to this Court, in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372–73 (1999) (per curiam order), and the Board must consider any such evidence or argument submitted, see Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Court reminds the Board that “[a] remand is meant to entail a critical examination of the justification for the [Board’s]
decision,” Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991), and must be performed in an
expeditious manner in accordance with 38 U.S.C. § 7112. On remand, per Quirin v. Shinseki,
22 Vet.App. 390, 395 (2009), the Board should also consider medical articles submitted by Mr.
Marshall to support his claim and provide an explanation for granting or denying service
connection for hypertension, to include as secondary to service-connected PTSD, herbicide
exposure, or diabetes mellitus. See Secretary’s Br. at 5.
6
III. CONCLUSION
Upon consideration of the foregoing, the appealed portion of the July 7, 2016, Board
decision is SET ASIDE and the matter is REMANDED for further development, if necessary, and
readjudication consistent with this decision.
DATED: January 19, 2018
Copies to:
Zachary M. Stolz, Esq.
VA General Counsel (027)

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