Veteranclaims’s Blog

February 4, 2018

Single Judge Application; negative findings; separation examination report merely contains an “X”; how a report that does not address the presence or absence of symptoms contradicts the appellant’s statements;

Excerpt from decision below:

“Although the Board found the appellant’s lay statements that he has experienced knee symptoms since service incredible because “the service separation examination provided negative findings as to the knee,” R. at 13, as the appellant argues, the Board did not explain how it concluded that the findings of the May 1974 separation examination report constituted negative findings. See Appellant’s Br. at 15-20. In that regard, the Court notes that the May 1974 separation examination report merely contains an “X” under “Normal”—as opposed to “Abnormal”—for the lower extremities in the “Clinical Evaluation” portion of the report. R. at 168. The Board did not explain how a report that does not address the presence or absence of symptoms contradicts the
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appellant’s statements about ongoing symptomatology. Moreover, the Board did not explain why the fact that the appellant’s knee was evaluated as “normal” just prior to his discharge from service precludes the possibility that he has nevertheless experienced problems and swelling in the knee since discharge.”

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 17-0010
VERNON D. INGRAM, APPELLANT,
V.
DAVID J. SHULKIN, M.D.,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MEREDITH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
MEREDITH, Judge: The appellant, Vernon D. Ingram, through counsel appeals a
September 7, 2016, Board of Veterans’ Appeals (Board) decision that denied entitlement to benefits for a lumbar spine disorder and a left knee disorder. Record (R.) at 1-20. The Board remanded the appellant’s claim for benefits for a right shoulder disorder. The remanded matter is not before the Court. See Breeden v. Principi, 17 Vet.App. 475, 478 (2004) (per curiam order) (a Board remand “does not represent a final decision over which this Court has jurisdiction”); Hampton v. Gober, 10 Vet.App. 481, 483 (1997) (claims remanded by the Board may not be
reviewed by the Court). This appeal is timely, and the Court has jurisdiction to review the Board’s decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, the Court will vacate the Board’s decision and remand the matters for further proceedings consistent with this decision.

I. BACKGROUND
The appellant served on active duty in the U.S. Army from May 1971 to May 1974. R. at 199. Service medical records reveal complaints of a “trick” left knee in June 1972. R. at 160. A
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consultation sheet referring the appellant for an orthopedic examination indicates that the appellant
reported experiencing pain in his left knee since twisting it. R. at 162. The examiner noted that
the appellant reported that he had “pulled [his] knee out of joint” when he was 18, which the
examiner parenthetically noted was “possibly” a strain of the medial collateral ligament, and that
the appellant “[p]ulls [left] knee out frequently,” likely as a result of that strain. Id. Physical
examination revealed a stable left knee with “pain on stressing.” Id. In September 1972, the
appellant suffered a fractured left fibula when a horse kicked him. R. at 165. He was treated with
a cast and his activities were restricted for 2 months. R. at 167, 171. In December 1973, the
appellant reported that he had been experiencing low back pain for the past year. R. at 166. The
appellant’s May 1974 separation examination report reveals no leg or spine abnormalities. R. at
168-69. The report contains a handwritten statement from the appellant that he was “in good
health” and had been since his last physical. R. at 169.
May 2009 private x-rays of the appellant’s left knee revealed degenerative changes along
with an old, healed fracture of the left fibula, “faint” chondrocalcinosis, and mild marginal
spurring. R. at 130.
In October 2009, the appellant filed a claim for benefits for a fractured left fibula, internal
derangement of the left knee, and a low back injury. R. at 201-11.
February 2010 private x-rays of the appellant’s back revealed “[p]rominent degenerative
disc changes” at the L4-L5 and L5-S1 vertebrae. R. at 131.
In March 2010, the appellant submitted a letter from his private orthopedist, who indicated
that he had been treating the appellant for the past 5 years. R. at 125. The orthopedist wrote that
the appellant had “worsening mechanical back pain,” which the appellant stated stemmed from a
back injury he sustained in service while he was climbing into a tank. Id. The orthopedist indicated
that the appellant told him that he did not seek in-service treatment for his injury because it would
have been seen as a sign of weakness. Id. Finally, the orthopedist wrote that the appellant’s back
condition was a degenerative condition that had “considerably worsened over the past 35 years”
and that he recommended “permanent disability.” Id.
In July 2010, the appellant underwent a VA joints examination. R. at 114-19. The
examiner diagnosed a resolved lumbar strain with no residuals, degenerative disc disease of the
lumbar spine at the L3-S1 vertebra, an acute left knee strain with no residuals, and degenerative
joint disease of the left knee. R. at 119. The examiner determined that the lumbar strain and left
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knee strain were at least as likely as not related to service, but found that the degenerative disc
disease of the lumbar spine and the degenerative joint disease of the left knee were “[n]ot caused
by or related to” the lumbar strain or left knee strain, respectively, or service. Id. The examiner
noted that the appellant had worked as a construction worker and iron worker for 25 years after
service. Id. The examiner also explained that “age, familial aggregation (genetics), and intrinsic
disc loading (body weight compared to the size of the disc)” are the “predominant predictors” in
developing degenerative disc disease. Id.
Also in July 2010, the appellant underwent a VA bones examination. R. at 120-23. The
examiner diagnosed a healed fracture of the left proximal fibula with no residuals. R. at 122. The
examiner noted that the appellant was “completely asymptomatic” and denied pain, swelling, heat,
redness, drainage, instability, abnormal motion, and functional impairment. R. at 121.
In September 2010, a VA regional office (RO) granted the appellant’s claim for benefits
for a fractured left fibula and assigned a noncompensable disability rating. R. at 306. The RO
denied the appellant’s claims for benefits for a low back disability and a left knee disability. R. at
307-08, 309. The appellant filed a Notice of Disagreement with that decision, R. at 92-93, and
ultimately appealed to the Board, R. at 69. In his Substantive Appeal to the Board, the appellant
reported that he injured his back in service during a training incident in a tank but that he did not
seek treatment at the time because “the culture at this time in the military you did not go for
treatment as it would be held against [you].” Id. He stated that he has experienced back pain. Id.
The appellant also reported that he injured his knee in service and that he has continuously
experienced problems and swelling. Id.
The record contains an October 2014 statement from a fellow soldier who reported that he
witnessed the in-service incidents that led to the appellant’s knee injury and back injury. R. at 68.
The soldier reported that, after his knee injury, the appellant “had a limp until he broke his leg” in
September 1972, and that the appellant “had a weak left knee, which could be observed whenever
he climb[ed] up and down from the [t]ank.” Id. The soldier further reported that, in November
1972, the appellant injured his back when a tank hatch, which “weigh[]s over a hundred pounds
and is spring[-]loaded,” broke and slammed into him. Id. The solider also stated that, in December
1973, the appellant “scraped the skin from his lower back causing him severe pain” when he
slipped while entering a tank through the hatch. Id. The soldier noted that the appellant complained
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of back pain from that point on but never sought medical treatment because he received a
promotion. Id.
In September 2016, the Board issued the decision on appeal. The Board conceded that the
appellant injured his back in service, but concluded that his current back disability is not related to
that injury. R. at 7-10. In reaching this conclusion, the Board determined that the July 2010 VA
medical examination was more probative than the private medical evidence the appellant
submitted. R. at 8-9. Next, the Board determined that the only competent and probative evidence
of record regarding the relationship, if any, of the appellant’s left knee disability to service is the
July 2010 VA examination report. R. at 14. The Board found that examination report highly
probative and therefore denied the appellant’s claim. Id. This appeal followed.
II. ANALYSIS
A. Left Knee Disability
Before the Court, the appellant seeks benefits for his left knee disability under a theory of
continuity of symptoms, pursuant to 38 C.F.R. § 3.303(b), which provides:
With chronic disease shown as such in service (or within the presumptive period
under § 3.307) so as to permit a finding of service connection, subsequent
manifestations of the same chronic disease at any later date, however remote, are
service connected, unless clearly attributable to intercurrent causes. . . . For the
showing of chronic disease in service[,] there is required a combination of
manifestations sufficient to identify the disease entity, and sufficient observation to
establish chronicity at the time, as distinguished from merely isolated findings or a
diagnosis including the word “Chronic.” When the disease identity is established
(leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of
evidentiary showing of continuity. Continuity of symptomatology is required only
where the condition noted during service (or in the presumptive period) is not, in
fact, shown to be chronic or where the diagnosis of chronicity may be legitimately
questioned. When the fact of chronicity in service is not adequately supported, then
a showing of continuity after discharge is required to support the claim.
38 C.F.R. § 3.303(b) (2017). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit)
has explained that § 3.303(b)
refers to chronic diseases that are either “shown in service,” meaning clearly
diagnosed beyond legitimate question, or not so shown in service. When a
“condition noted in service” is not sufficient to warrant the conclusion that the
chronic disease is “shown to be chronic” in service, continuity of symptomatology
may suffice to establish that the veteran incurred a chronic disease in service.
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Walker v. Shinseki, 708 F.3d 1331, 1339 (Fed. Cir. 2013). In Walker, the Federal Circuit stated
that the purpose of § 3.303(b) is “to afford an alternative route to service connection for specific
chronic diseases” that are enumerated in 38 C.F.R. § 3.309(a). Id. at 1340. Degenerative joint
disease, from which the Board found the appellant suffers, is included in § 3.309(a), because it is
a form of arthritis. See R. at 13.
Establishing that a disability is service connected for purposes of entitlement to VA
disability compensation generally requires medical or, in certain circumstances, lay evidence of
(1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a
nexus between the claimed in-service injury or disease and the current disability. See 38 U.S.C.
§ 1110; Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Davidson v.
Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); 38 C.F.R. § 3.303. For chronic diseases included
in the provisions of 38 U.S.C. § 1101(3) and 38 C.F.R. § 3.309(a), service connection may also be
established by showing continuity of symptoms, which requires a claimant to demonstrate (1) a
condition “noted” during service; (2) evidence of postservice continuity of the same symptoms;
and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability
and the postservice symptoms. 38 C.F.R. § 3.303(b); see Walker, 708 F.3d at 1340; 38 C.F.R.
§ 3.309(a) (2017); see also Davidson, 581 F.3d at 1313; Jandreau v. Nicholson, 492 F.3d 1372,
1377 (Fed. Cir. 2007) (“Whether lay evidence is competent and sufficient in a particular case is a
fact[ual] issue to be addressed by the Board.”). Continuing symptoms, not treatment, must be the
focus of the evidentiary analysis. Wilson v. Derwinski, 2 Vet.App. 16, 19 (1991). As always, the
Board must provide a statement of the reasons or bases for its determination “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 v. Brown, 7 Vet.App. 517, 527 (1995); see 38 U.S.C. § 7104(d)(1); Gilbert v.
Derwinski, 1 Vet.App. 49, 52 (1990).
The appellant argues that the Board provided inadequate reasons or bases for denying
entitlement to benefits for a left knee disability based on continuity of symptoms. Appellant’s
Brief (Br.) at 12-21. More specifically, the appellant contends that the Board failed to adequately
explain its findings that (1) his lay statements lacked credibility, (2) he failed to establish continuity
of symptoms, and (3) he is not competent to provide the missing nexus between his in-service
injuries and his current disability. Id. at 14. The Secretary generally disputes these arguments.
Secretary’s Br. at 8-19.
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With respect to the appellant’s left knee disability, the Board acknowledged that he was
treated in service for a “trick” left knee, but noted that his May 1974 separation examination report
noted no abnormalities of the lower extremity. R. at 11. The Board also acknowledged the October
2014 statement from a soldier who served with the appellant and reported witnessing the
appellant’s injuries and who stated that the appellant had a “weak left knee” thereafter. Id. Further,
the Board noted the May 2009 private x-rays of the appellant’s left knee that revealed degenerative
changes and chondrocalcinosis. Id. The Board noted that the only other evidence of record related
to the appellant’s left knee disability was the July 2010 VA examination report in which the
examiner determined that the appellant had suffered an acute left knee strain in service that had
resolved and noted that the May 1974 separation examination “was silent for this condition.” R.
at 12. The Board summarized the July 2010 VA examiner’s opinion that the appellant’s left knee
strain was related to service but his left knee degenerative joint disease was not. Id. The Board
then considered the possibility of entitlement to benefits for a left knee disability based on
continuity of symptoms in light of the appellant’s lay statements of knee problems since service,
but found that those statements “lack credibility” because “the service separation examination
provided negative findings as to the knee.” R. at 13.
The Court agrees with the appellant that the Board’s reasons or bases are inadequate. As
noted above, establishing entitlement to benefits based on continuity of symptoms requires (1) a
condition “noted” during service; (2) evidence of postservice continuity of the same symptoms;
and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability
and the postservice symptoms. See 38 C.F.R. § 3.303(b). As the Board found, the appellant was treated for a “trick” knee in service. R. at 11. The appellant also has reported that he has experienced left knee problems and swelling since service. See R. at 69.
Although the Board found the appellant’s lay statements that he has experienced knee symptoms since service incredible because “the service separation examination provided negative findings as to the knee,” R. at 13, as the appellant argues, the Board did not explain how it concluded that the findings of the May 1974 separation examination report constituted negative findings. See Appellant’s Br. at 15-20. In that regard, the Court notes that the May 1974 separation examination report merely contains an “X” under “Normal”—as opposed to “Abnormal”—for the lower extremities in the “Clinical Evaluation” portion of the report. R. at 168. The Board did not explain how a report that does not address the presence or absence of symptoms contradicts the
7
appellant’s statements about ongoing symptomatology. Moreover, the Board did not explain why the fact that the appellant’s knee was evaluated as “normal” just prior to his discharge from service precludes the possibility that he has nevertheless experienced problems and swelling in the knee since discharge.
In light of its conclusion about the appellant’s lay statements, the Board did not discuss whether the evidence reveals a nexus between the appellant’s alleged symptoms since service and his current left knee disability. See Walker, 708 F.3d at 1340; 38 C.F.R. § 3.303(b). On remand, if the Board finds the appellant’s statements regarding his symptoms credible, the Board should address whether the appellant is competent to provide this nexus.1
In sum, the Court concludes that the Board’s reasons or bases for denying entitlement to benefits for a left knee disability are inadequate and remand is warranted. See 38 U.S.C. § 7104(d)(1); Allday, 7 Vet.App. at 527. Given this disposition, the Court will not now address the remaining arguments and issues raised by the appellant, including the possible absence of a Report of Medical History to accompany the May 1974 separation examination and the purported
inadequacies of the July 2010 VA examination outlined below. Quirin v. Shinseki, 22 Vet.App.
390, 395 (2009) (noting that “the Court will not ordinarily consider additional allegations of error
that have been rendered moot by the Court’s opinion or that would require the Court to issue an
advisory opinion”); see Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam order).
B. Low Back Disability
With respect to his claim for benefits for a low back disability, the appellant argues that
the Board provided inadequate reasons or bases for finding his lay statements incredible.
Appellant’s Br. at 21-23. The Secretary argues that the Board properly dismissed the appellant’s
lay statements. Secretary’s Br. at 10-14.
As an initial matter, the Court notes that it is unclear from his briefs whether the appellant
is seeking benefits for his low back disability under a theory of continuity of symptoms. The
Board determined that the appellant did not suffer from arthritis, but rather degenerative disc
disease of the lumbar spine. R. at 8. Degenerative disc disease does not appear in the enumerated
list of chronic conditions in § 3.309(a), but the Board appeared to address a theory of continuity
1 The Court notes that, earlier in its decision, the Board stated that the appellant was not competent to “relate
that [his knee pain] is due to a specific etiology,” but that finding was made in the context of determining whether the
appellant had established entitlement to benefits for a chronic condition under § 3.303(b), as opposed to entitlement
based on continuity of symptoms. R. at 13.
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of symptoms, in addition to addressing direct service connection. R. at 9. Given that remand is
necessary based on inadequate reasons or bases, as discussed below, the Court need not determine
under which theory or theories the Board considered the appellant’s entitlement to benefits.
The Board noted both that the appellant sought treatment for recurrent back pain in service
and that the May 1974 separation examination contained “no finding of a lumbar spine
abnormality.” R. at 5. The Board acknowledged the February 2010 private x-rays, as well as the
March 2010 letter from the appellant’s private orthopedist. R. at 6. The Board again acknowledged
the October 2014 statement from a soldier who served with the appellant and who reported
witnessing the appellant’s in-service back injuries and resulting back pain. Id. Finally, the Board
summarized the July 2010 VA examiner’s opinion that the appellant’s lumbar strain was related to
service but resolved, while his degenerative disc disease of the lumbar spine was not related either
to the lumbar strain or to service. R. at 7.
The Board weighed the competing medical evidence and found that the July 2010 VA
examination report was more probative and persuasive with regard to whether the appellant’s back
disability is related to service. R. at 7-9. The Board then stated:
[T]he [appellant’s] statements appear to indicate a continuity of symptomatology
since service. The Board finds that such statements lack credibility as, given the
negative findings on the service separation examination, the contemporaneous
service treatment records do not corroborate [his] report.
Moreover, the VA examiner opined that the in-service lumbar strain had resolved
based upon the positive finding of no lumbar spine disorder on separation
examination in May 1974, which[,] notably[,] was only six months after treatment
for complaints of low back pain.
After considering all the evidence of record, the Board finds that the preponderance
of the evidence is against finding that service connection for a chronic low back
disorder is warranted because the evidence established that, although the
[appellant] had a lumbar strain in service, it resolved without residuals and the
[appellant’s] current chronic low back disorder, diagnosed as degenerative disc
disease of the lumbar spine, is not related to the lumbar strain or otherwise related
to his military service and, further, arthritis was not manifested within a year of
service. The Board has considered the doctrine of reasonable doubt, but finds that
the record does not provide an approximate balance of negative and positive
evidence on the merits. Service connection is, therefore, denied.
R. at 9-10 (citations omitted).
9
The Board’s determination that the appellant’s lay statements regarding his low back
condition were not credible is conclusory and unsupported by any explanation of how it concluded
that the findings of the May 1974 separation examination report constituted negative findings. The
May 1974 separation examination report merely contains an “X” under “Normal”—as opposed to
“Abnormal”—for the spine in the “Clinical Evaluation” portion of the report. R. at 168. The Board
did not explain how a report that does not address the presence or absence of symptoms contradicts
the appellant’s statements about ongoing symptomatology. The Court concludes that the Board
failed to provide adequate reasons or bases for its determination that the appellant’s lay statements
were not credible. As the appellant argues, this error may be prejudicial “because the VA
examination upon which the Board relied to deny the claim is based on the premise that the inservice
back pain ‘resolved,’ which is contrary to [his] testimony.” Appellant’s Br. at 23. The Court
will not speculate as to what impact, if any, it would have on the Board’s assessment of the medical
evidence, if the Board on remand were to find the appellant credible. Remand is therefore
warranted. See 38 U.S.C. § 7104(d)(1); Allday, 7 Vet.App. at 527; see also Arneson v. Shinseki,
24 Vet.App. 379, 389 (2011) (finding prejudice when an error “could have altered” the Board’s
determination).
On remand, the appellant is free to submit additional evidence and argument on the
remanded matters, including the specific arguments raised here on appeal, and the Board is
required to consider any such relevant evidence and argument. See Kay v. Principi, 16 Vet.App.
529, 534 (2002) (stating that, on remand, the Board must consider additional evidence and
argument in assessing entitlement to the benefit sought); 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), and the Board must proceed expeditiously, in accordance with 38 U.S.C. § 7112.
C. July 2010 VA Examination
The appellant argues that the Board erred in relying on the July 2010 VA examination,
which he asserts is inadequate because the examiner (1) failed to address the possibility that the
appellant’s left knee condition was caused by the fibula fracture he suffered in service;
(2) concluded that the knee and back injuries that the appellant suffered in service had resolved by
the time of his discharge based solely on the separation examination report; (3) failed to explain
how the appellant’s postservice employment as a construction worker and iron worker is relevant;
10
(4) did not identify the medical literature on which he relied or explain why that literature was
relevant to the appellant’s conditions; (5) failed to account for conflicting notations within his
report; and (6) failed to provide adequate rationale for his conclusions. See Appellant’s Br. at
23-28. The Secretary maintains that the Board’s determination that the July 2010 VA examination
was adequate is not clearly erroneous. See Secretary’s Br. at 14-19.
“[O]nce the Secretary undertakes the effort to provide an examination [or opinion] when
developing a service-connection claim, . . . he must provide an adequate one.” Barr v. Nicholson,
21 Vet.App. 303, 311 (2007). A medical examination or opinion is adequate “where it is based
upon consideration of the veteran’s prior medical history and examinations,” Stefl v. Nicholson,
21 Vet.App. 120, 123 (2007), “describes the disability, if any, in sufficient detail so that the Board’s
‘evaluation of the claimed disability will be a fully informed one,'” id. (quoting Ardison v. Brown,
6 Vet.App. 405, 407 (1994)) (internal quotation marks omitted), and “sufficiently inform[s] the
Board of a medical expert’s judgment on a medical question and the essential rationale for that
opinion,” Monzingo v. Shinseki, 26 Vet.App. 97, 105 (2012) (per curiam). The law does not
impose any reasons-or-bases requirements on medical examiners and the adequacy of medical
reports must be based upon a reading of the report as a whole. Id. at 105-06.
“Whether a medical [examination or] opinion is adequate is a finding of fact, which the
Court reviews under the ‘clearly erroneous’ standard.” D’Aries v. Peake, 22 Vet.App. 97, 104
(2008) (per curiam). A finding of fact is clearly erroneous when the Court, after reviewing the
entire evidence, “is left with the definite and firm conviction that a mistake has been committed.”
United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); see Gilbert, 1 Vet.App. at 52. As
noted above, the Board must provide a statement of the reasons or bases for its determination
“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; see 38 U.S.C. § 7104(d)(1); Gilbert,
1 Vet.App. at 56-57.
Here, the Board did not expressly discuss its reasons for finding the July 2010 VA
examination adequate. See R. at 1-20. Rather, the Board, in relying on that examination, implicitly
found that it was adequate. From the Board’s discussion of the relative probative value of that
examination, however, the Court is able to discern the Board’s reasons. See Janssen v. Principi,
15 Vet.App. 370, 379 (2001) (per curiam) (holding that a Board decision must be read “as a
whole”). In that regard, the Board stated:
11
As for the VA examiner’s medical opinion, the Board finds this medical opinion to
be highly probative as to whether the [appellant’s] current low back disorder is
related to his military service as it is clearly based upon a review of the entire record
and sound medical principles. The Board acknowledges that the examiner’s
approach is a bit unusual and must be read as [a] whole in order to determine his
complete opinion and rationale. Read as a whole, it is clear that the examiner’s
opinion is that, although the [appellant] had a lumbar strain in service, it resolved
without residual[s] and that his current degenerative disc disease of the lumbar
spine had its onset after service and is neither related to the in-service lumbar strain
nor otherwise related [to] his military service. His opinion is based on the
[appellant’s] reported history of injury in service, the lack of any significant inservice
treatment, the finding of no spine abnormality at the time of the May 1974
separation examination, the fact that the [appellant] worked 35 years as a
construction and iron worker, and medical literature that shows that the
predominant predictors of degenerative disc disease of the spine are age, familial
aggregation (genetics)[,] and intrinsic disc loading (body weight compared with
size of the disc). Consequently, the VA examiner’s medical opinion is supported
by a rationale that is factually accurate, fully articulated when read as a whole, and
based on sound medical principles. Such an opinion is afforded high probative
value.
R. at 9 (citations omitted).
Because, however, the examiner relied on the appellant’s separation examination to
determine that his low back disability had resolved by the time of his discharge, and because the
Court has determined that the Board inadequately explained its conclusion that the separation
examination is substantive evidence that the appellant’s symptoms were not present at discharge,
the Court concludes that, on remand, the Board must reassess the adequacy of the July 2010 VA
examination after reassessing the probative value of the separation examination. If the Board
concludes that the separation examination may not properly be considered evidence that the
appellant’s symptoms were not present at discharge, the Board must either seek clarification from
the July 2010 VA examiner or request a new medical examination to address the possible
relationship between the appellant’s low back disability and his service based on a proper
understanding of the information contained in the separation examination. The Court will not now
address the appellant’s remaining arguments regarding the July 2010 VA examination. See Quirin,
22 Vet.App. at 395; Best, 15 Vet.App. at 20.
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III. CONCLUSION
After consideration of the parties’ pleadings and a review of the record, the Board’s
September 7, 2016, decision is VACATED and the matters are REMANDED for further
proceedings consistent with this decision.
DATED: January 31, 2018
Copies to:
Matthew P. Downer, Esq.
VA General Counsel (027)

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