Veteranclaims’s Blog

February 26, 2018

Single Judge Application; absence of evidence; Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006);

Excerpt from decision below:

“In the March 2016 VA examination, the examiner concluded that the in-service PFPS resolved based on the absence of evidence of the condition or residuals in the separation physical examination or immediate postservice treatment records. R. at 1263. The examiner did not appear to consider the January 1992 report of medical
history, completed for the purposes of separation, which stated that the appellant experienced swollen or painful joints. R. at 2230. In the February 23, 2015, NOD the appellant stated that he continued to suffer with chronic knee pain and his total knee replacement was the “result of my knee getting worse over the years.” R. at 2129. He asserted that the symptoms he had in service were the same symptoms he had after leaving service. Id. Again, a February 15, 2012, statement in support of claim shows the appellant contended that he was forced to self-medicate for knee
pain after separation. R. at 2920. He stated that he was “forced to bear this condition since being in the military up until the present.” Id. He said that his knees swelled “often” and that he experienced “daily” knee pain. Id.
By stating that the separation physical and the immediate postservice treatment records were silent for the right knee PFPS and residuals, the VA examiner improperly discounted the
5
appellant’s lay statements and relied on an absence of contemporaneous medical evidence in the record. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (stating that a medical examination, which relied on the absence of contemporaneous medical evidence, “failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran’s] disability”).”

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

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 16-3370
EDWARD D. HOUSE, APPELLANT,
V.
DAVID J. SHULKIN, M.D.,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before SCHOELEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
SCHOELEN, Judge: The appellant, Edward D. House, appeals an August 24, 2016, Board
of Veterans’ Appeals (Board) decision, in which the Board denied service connection for a right
knee disorder and left knee disorder.1 Record of Proceedings (R.) at 1-32. 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.
1 The appellant does not challenge the Board’s decision as to the dismissal of the issues for entitlement to
nonservice-connected pension and service connection for skin disorder and denial of service connection for a
gastrointestinal disorder, including as due to an undiagnosed illness, and, therefore, the Court considers any appeal of
those matters abandoned. See Pederson v. McDonald, 27 Vet.App. 276, 285 (2015) (en banc) (holding that, where an
appellant abandons an issue or claim, the Court will not address it). The Court may not disturb the Board’s favorable
finding that new and material evidence was received to reopen the appellant’s right knee disorder claim. Medrano v.
Nicholson, 21 Vet.App. 165, 170 (2007) (“The Court is not permitted to reverse findings of fact favorable to a claimant
made by the Board pursuant to its statutory authority.”). The Board remanded the issues for service connection for a
low back disorder, acquired psychiatric disorder, to include post-traumatic stress disorder, and neurological disorder,
claimed as sciatica of the left leg, to include as due to a back disorder. R. at 24-29. These matters are not before the
Court. See Hampton v. Gober, 10 Vet.App. 481, 483 (1997) (claims remanded by the Board may not be reviewed by
the Court).
2
I. BACKGROUND
The appellant served on active duty from March 1989 to March 1992. R. at 2631. A
February 27, 1990, screening note of acute medical care shows that the appellant complained of
injuring the right knee while running. R. at 2243. On examination of the knee, there was pain to
palpation and mild crepitus, and the examining physician listed an assessment of “PFPS”
(patellofemoral pain syndrome). Id. A separation report of medical history dated in January 1992
includes the appellant’s initials and a mark on the box entitled “yes” as to whether he “ever had or
have you now” swollen or painful joints. R. at 2230. The examining physician signed the report
of medical history in March 1992 and indicated that there were no “major” medical problems
known. R. at 2231. A March 1992 separation report of medical examination reflects that the lower
extremities were clinically evaluated as normal. R. at 2224.
A February 15, 2012, statement in support of claim shows that at his exit physical
examination, the appellant reported he had joint pain in both knees. R. at 2920. He asserted in the
statement that he was “forced to self-medicate with over the counter drugs like Ibuprofen,
Aspercreme, and joint rub and lots of icing to control the swelling.” Id. In a February 23, 2015,
Notice of Disagreement (NOD), the appellant stated that he was treated in service for his knee and
since leaving the service he continued to suffer with chronic knee pain. R. at 2129.
In March 2016, the appellant underwent a VA medical examination for his right knee
disorder. R. at 1905-21. Concerning the appellant’s medical history, the VA examiner noted a
February 1990 service medical record that indicated that the appellant had injured his right knee
while running; the diagnosis in February 1990 was PFPS. R. at 1905-06. The March 2016 VA
examiner further noted that the appellant “denied complaints of ‘trick or locked knee’ at his
separation exam on January 21, 1992, but reported ‘swollen or painful joints.'” R. at 1906. The
VA examiner noted that the appellant reported that his right knee pain started because of long runs
during field training in the military. Id. The VA examiner opined that the “[r]ight [k]nee
patellofemoral and femoral condyle [o]steoarthritis s/p [r]ight total [k]nee [a]rthroplasty” was “less
likely than not” incurred in or caused by the appellant’s military service, because the service
medical records and separation physical examination report were silent for the right knee
condition; immediate postservice medical records were silent for the right knee condition; the 2008
bilateral knees x-ray was normal; and the 2010 bilateral knees x-ray showed mild degenerative
changes. Id. The VA examiner opined that the condition was “most likely caused by and
3
aggravated by BMI” ([body mass index]), and cited medical literature, which noted multiple risk
factors linked to osteoarthritis, including natural age, obesity, occupation, sports activities, and
previous injury. Id. Subsequently, the VA examiner stated that the in-service PFPS resolved
without residuals because the separation physical was silent for the claimed condition and residuals
and immediate postservice medical records were silent for the condition. R. at 1920-21.
On August 24, 2016, the Board issued a decision denying the appellant’s disability
compensation claims for right knee disorder and left knee disorder. R. at 1-32. This appeal
followed.
II. ANALYSIS
Establishing service connection generally requires medical or, in certain circumstances, lay
evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or
injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.
See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet.App. 247, 253
(1999); Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir.
1996) (table).
A VA 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 . . . 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). “Whether a medical opinion is adequate is a
finding of fact, which this Court reviews under the ‘clearly erroneous’ standard.” D’Aries v. Peake,
22 Vet.App. 97, 104 (2008); see also Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990). 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 also Gilbert, 1 Vet.App. at 52. As with any material issue of
fact or law, the Board must provide a statement of the reasons or bases for its determination,
adequate to enable an appellant to understand the precise basis for the Board’s decision as well as
4
to facilitate review in this Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet.App. 517,
527 (1995); Gilbert, 1 Vet.App. at 56-57.
The appellant argues that the March 2016 VA examination is inadequate because the VA examiner predicated the opinion on the absence of contemporaneous evidence, citing the separation physical examination, and immediate postservice records, but failed to discuss the appellant’s lay statements that he continued to suffer from the same chronic right knee symptoms since service, which required him to self-medicate. Appellant’s Brief (Br.) at 14-20. The Secretary responds that the March 2016 VA examiner discussed the absence of supporting medical treatment records, but such was only one factor in the examiner’s analysis, and the examiner discussed other factors, to include the appellant’s multiple risk factors for osteoarthritis. Secretary’s Br. at 8.
After reviewing the record, the Court agrees with the appellant that the March 2016 VA examination is inadequate and the Board clearly erred in relying upon it. Although there is no reasons-or-bases requirement placed on a medical examiner, “an adequate medical report must rest on correct facts and reasoned medical judgment so as [to] inform the Board on a medical question” Acevedo v. Shinseki, 25 Vet.App. 286, 293 (2012); see Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 304 (2008) (“It is the factually accurate, fully articulated, sound reasoning for the conclusion . . . that contributes probative value to a medical opinion.”). In the March 2016 VA examination, the examiner concluded that the in-service PFPS resolved based on the absence of evidence of the condition or residuals in the separation physical examination or immediate postservice treatment records. R. at 1263. The examiner did not appear to consider the January 1992 report of medical history, completed for the purposes of separation, which stated that the appellant experienced swollen or painful joints. R. at 2230. In the February 23, 2015, NOD the appellant stated that he continued to suffer with chronic knee pain and his total knee replacement was the “result of my knee getting worse over the years.” R. at 2129. He asserted that the symptoms he had in service were the same symptoms he had after leaving service. Id. Again, a February 15, 2012, statement in support of claim shows the appellant contended that he was forced to self-medicate for knee pain after separation. R. at 2920. He stated that he was “forced to bear this condition since being in the military up until the present.” Id. He said that his knees swelled “often” and that he experienced “daily” knee pain. Id.
By stating that the separation physical and the immediate postservice treatment records were silent for the right knee PFPS and residuals, the VA examiner improperly discounted the
5
appellant’s lay statements and relied on an absence of contemporaneous medical evidence in the record. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (stating that a medical examination, which relied on the absence of contemporaneous medical evidence, “failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran’s] disability”). As indicated in Savage, symptoms, not treatment, are the essence of any evidence of
continuity of symptomatology. Savage v. Gober, 10 Vet.App. 488, 496 (1997). Without discussing the appellant’s chronic symptoms, the VA examiner concluded that the appellant’s PFPS resolved in service, which appears inconsistent with the lay evidence of record. See McKinney v. McDonald, 28 Vet.App. 15, 30 (2016) (finding that “the VA examiner’s failure to consider [the veteran’s] testimony when formulating her opinion renders that opinion inadequate”). Because the
VA examiner relied on an absence of contemporaneous medical evidence in the record to support the conclusion that the in-service PFPS resolved without residuals, the Court holds that the Board clearly erred in relying on that examiner’s opinion to deny the appellant’s claim. Accordingly, the Court will vacate the Board’s decision and remand the matter for the Board to readjudicate the claim after it has obtained an adequate medical opinion that addresses the lay and medical evidence
of record. See Green v. Derwinski, 1 Vet.App. 121, 124 (1991) (holding that remand is appropriate where the Board relied on an inadequate medical examination report).
Additionally, the appellant contends that the Board clearly erred by failing to provide an
adequate statement of reasons or bases explaining its finding that the symptoms of the right and
left knee disorders were not chronic since service. Appellant’s Br. at 14. Specifically, the appellant
asserts that the Board never provided a statement of reasons or bases “finding that his
nonetiological lay statements unrelated to causation or etiology lack competency or credibility.”
Id. The Secretary responds that the Board extensively discussed the statements that the appellant
made when seeking medical treatment and “[t]aken as a whole, the Board’s statements of reasons
and bases clearly finds that [a]ppellant’s assertions as to the onset and continuity of his symptoms
is less probative than other evidence indicating that he did not experience symptoms during or
since service.” Secretary’s Br. at 16.
The Court agrees that the Board provided an inadequate statement of reasons or bases in
discussing the chronicity of the appellant’s right and left knee symptoms. For chronic diseases
listed in 38 C.F.R. § 3.309(a)—including arthritis—service connection may be established by
showing continuity of symptoms, which requires a claimant to demonstrate (1) that a condition
6
was “noted” during service; (2) evidence of postservice continuity of symptoms; and (3) medical
or, in certain circumstances, lay evidence of a link between the present disability and the continuity
of symptoms. 38 C.F.R. §§ 3.303(b), 3.309(a) (2017).
Review of the August 24, 2016, Board decision reflects that the Board determined that the
“weight of the evidence” demonstrated that symptoms of the knees had not been chronic in service
and symptoms of arthritis of the “knees” had not been continuous since separation from service.
R. at 14-16. The Board did not discuss or mention the favorable material evidence consisting of
the appellant’s lay testimony and statements concerning chronic right and left knee symptoms since
service, to include the June 10, 2016 hearing testimony of the appellant that his knees worsened
since service; the February 23, 2015, NOD, wherein the appellant stated that he continued to suffer
with chronic knee pain and had the same symptoms since service; the February 15, 2012, statement
in support of claim wherein the appellant contended that his in-service duties required heavy lifting
and “3 to 6 mile runs in full gear,” that he did not have insurance for a period of time after service,
and that he was “forced to self medicate”; and the appellant’s September 10, 2014, statement that
the only injury to the right knee was in service and he had chronic right knee pain after leaving the
service. R. at 1061, 2129, 2343, 2920. Instead, to conclude that the weight of the evidence was
against a finding that the appellant’s symptoms of the right and left knee disorders were chronic
since service, the Board limited its discussion of the evidence to the separation report of medical
history, separation report of medical examination, the service treatment records, the postservice
treatment records, and VA medical examination reports. R. at 14-16. The Board did not make a
finding as to the credibility of the appellant’s lay statements and, again, did not mention or discuss
this favorable material evidence.
The Board must analyze the credibility and probative value of evidence, account for
evidence that it finds persuasive or unpersuasive, and provide reasons for its rejection of material
evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam,
78 F.3d 604 (Fed. Cir. 1996) (table). The Board’s failure to adequately explain or discuss its
rejection of the favorable evidence consisting of the appellant’s lay statements frustrates judicial
review. Id. While the Secretary argues that the Board’s discussion included discussion of evidence
that called into question the credibility of the appellant’s statements concerning chronicity of
symptoms since service, the Court finds that such an argument fails as the Board failed to account
for the favorable material evidence. See Southall-Norman v. McDonald, 28 Vet.App. 346, 356
7
(2016) (“Although the Board is allowed to find a veteran not credible based on inconsistencies
between medical evidence and lay evidence, . . . it must account for the potentially favorable
material evidence of record when doing so.”). On remand, the Board must reassess the weight and
credibility of the appellant’s statements and adequately explain any negative credibility
determination.
Given this disposition, the Court will not, at this time, address the other arguments and
issues raised by the appellant. 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”). To the extent that the appellant has made additional arguments
concerning the left knee disorder as secondary to a right knee disorder, the matter is inextricably
intertwined with the remanded right knee claim because a finding of service connection for the
right knee disorder may affect the claim for service connection for left knee disorder. Harris v.
Derwinski, 1 Vet.App. 180, 183 (1991) (holding that, where a decision on one issue may have a
“significant impact” upon another, the two claims are inextricably intertwined), overruled on other
grounds by Tyrues v. Shinseki, 23 Vet.App. 166 (2009) (en banc), aff’d, 631 F.3d 1380, 1383 (Fed.
Cir. 2011), vacated and remanded for reconsideration, 132 S. Ct. 75 (2011), modified, 26 Vet.App.
31 (2012).
On remand, the appellant is free to submit additional evidence and argument on the
remanded matters, and the Board is required to consider any such relevant evidence and argument.
See 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.
8
III. CONCLUSION
After consideration of the appellant’s and the Secretary’s pleadings, and a review of the record, the
portion of the Board’s August 24, 2016, decision, denying service connection for a right knee
disorder and left knee disorder is VACATED and the matter is REMANDED to the Board for
further proceedings consistent with this decision.
DATED: February 22, 2018
Copies to:
Eric A. Gang, Esq.
VA General Counsel (027)

Leave a Comment »

No comments yet.

RSS feed for comments on this post. TrackBack URI

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Powered by WordPress.com.