Veteranclaims’s Blog

July 22, 2018

Single Judge Application; inadequate VA medical opinion; Rizzo v. Shinseki, 580 F.3d 1288, 1291 (Fed. Cir. 2009); challenge to VA examiner’s credentials; absence of contemporaneous medical evidence;

Excerpt from decision below:

“We are asked to decide whether the 2012 examination is inadequate and whether the Board should have discussed the VA examiner’s credentials, which the veteran affirmatively challenged below. Because the 2012 VA medical opinion is indeed inadequate, and because the Board did not address Mr. Johnson’s challenge to the VA examiner’s credentials, the Court will set aside the Board’s November 16, 2016, decision and remand the matter for further adjudication.1″

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Here, the rationale provided by the 2012 examiner does not include enough detail because the 2012 examiner provided the same insufficient rationale to explain why he found each disability was not related to service: service medical records did not document “evaluation or treatment” and the condition was “more likely than not . . . due to chronic degenerative changes associated with aging.”3 This rationale does not provide information relevant to the question to be decided by the Board, which is whether Mr. Johnson’s disabilities are caused by the in-service jeep accident, the strain from the heavy lifting required by his military job, or some other incident in service. It relies only on the absence of contemporaneous medical evidence and does not consider whether service connection is warranted based on Mr. Johnson’s statements, which included his accounts of carrying heavy engines, transmissions, and diesel cans, and being involved in a jeep accident during service.4
A medical examination is needed to address these matters because the Board’s decision
must be based on the entire record, not just the medical evidence, and the Board lacks the competency to provide a medical assessment of the record evidence, as is needed in this case.5
Furthermore, the examiner’s notation that the condition resulted from aging does not rehabilitate her opening brief”).

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 17-0617
BILL JOHNSON, APPELLANT,
V.
PETER O’ROURKE,
ACTING SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before FALVEY, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
FALVEY, Judge: Army veteran Bill Johnson contends that his cervical spine, lumbar
spine, and bilateral shoulder disabilities are related to his service. He was involved in a jeep accident while stationed in Korea, and his military job required him to handle heavy engines, transmissions, and diesel cans. After service, he sought VA compensation for his disabilities, but a 2012 VA medical examination summarily concluded that the disabilities are not related to service. Mr. Johnson appeals a November 16, 2016, Board of Veterans’ Appeals decision that relied on the 2012 examination to deny his claim for benefits and that did not address his challenge to the examiner’s credentials.
We are asked to decide whether the 2012 examination is inadequate and whether the Board should have discussed the VA examiner’s credentials, which the veteran affirmatively challenged below. Because the 2012 VA medical opinion is indeed inadequate, and because the Board did not address Mr. Johnson’s challenge to the VA examiner’s credentials, the Court will set aside the Board’s November 16, 2016, decision and remand the matter for further adjudication.1
1 As a preliminary matter, we note that the Board also addressed acid reflux, posttraumatic stress disorder,
depression, a rash, basal cell skin cancer, an acquired psychiatric disorder, and a total disability rating based on
individual unemployability. Mr. Johnson does not contest these parts of the Board’s decision, and the Court will not
address them on appeal. See Pederson v. McDonald, 27 Vet.App. 276, 283 (2015) (en banc) (stating that “this Court,
like other courts, will generally decline to exercise its authority to address an issue not raised by an appellant in his or
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I. ANALYSIS
A. The 2012 Examination Is Inadequate
As the parties agree, the 2012 examination is not detailed enough to inform the Board’s
decision. A medical opinion is adequate where, among other things, it describes the disability in
sufficient detail to inform the Board’s decision. 2 Here, the rationale provided by the 2012 examiner does not include enough detail because the 2012 examiner provided the same insufficient rationale to explain why he found each disability was not related to service: service medical records did not document “evaluation or treatment” and the condition was “more likely than not . . . due to chronic degenerative changes associated with aging.”3 This rationale does not provide information relevant to the question to be decided by the Board, which is whether Mr. Johnson’s disabilities are caused by the in-service jeep accident, the strain from the heavy lifting required by his military job, or some other incident in service. It relies only on the absence of contemporaneous medical evidence and does not consider whether service connection is warranted based on Mr. Johnson’s statements, which included his accounts of carrying heavy engines, transmissions, and diesel cans, and being involved in a jeep accident during service.4
A medical examination is needed to address these matters because the Board’s decision must be based on the entire record, not just the medical evidence, and the Board lacks the competency to provide a medical assessment of the record evidence, as is needed in this case.5
Furthermore, the examiner’s notation that the condition resulted from aging does not rehabilitate her opening brief”).
2 D’Aries v. Peake, 22 Vet.App. 97, 104 (2008); see also Barr v. Nicholson, 21 Vet.App. 303, 311 (2007)(“[O]nce the Secretary undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, he must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided.”); see also Nieves-Rodriguez v. Peake, 22 Vet .App. 295, 301 (2008) (explaining that a medical report cannot merely draw conclusions from data; rather, it should include “a reasoned medical explanation connecting the two”).
3 Record (R.) at 1407-68.
4 See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (stating that “the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence” and errs in denying service connection based solely on a medical examination that “relies not on the objective medical evidence, but rather the absence of such” in reaching the conclusion that a disability is not related to service).
5 See 38 U.S.C. §§ 5107(b) (“The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary.”), 7104(a) (“Decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record.”); see also Colvin v. Derwinski,1 Vet.App. 171, 172 (1990) (Board “must consider only independent medical evidence to support [its] findings rather than provide [its] own medical judgment in the guise of a Board opinion.”).
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the opinion because the Board is required to find in favor of the veteran when there is an approximate balance of positive and negative evidence on any material point of fact or law.6 If the examiner were to opine that Mr. Johnson’s condition was caused by both aging and service, the Board would be required to find in Mr. Johnson’s favor on the issue of nexus.7 The examiner’s failure to provide enough detail to inform the Board’s decision renders the examination inadequate. 8 The Board’s determination that the examination is adequate therefore will be reversed and the matter remanded for VA to obtain a new examination.

B. The Board Should Have Addressed the VA Examiner’s Credentials
The Court also agrees with the parties that the Board should have addressed whether the
2012 VA examiner possessed the requisite qualifications and ensured that VA responded to Mr. Johnson’s request for the examiner’s credentials. Although the Board is entitled to presume that a VA examiner is qualified in the absence of any challenge to the examiner’s credentials, the Board must address the examiner’s qualifications when a claimant raises the issue.9 Here, Mr. Johnson both requested the credentials of the physician assistant who conducted the 2012 examination and generally challenged the examiner’s qualifications.10 The Board therefore was required to address
whether the 2012 examiner was qualified to provide a medical opinion. The Board also should have ensured that the Secretary responded to Mr. Johnson’s request for the examiner’s credentials
6 38 U.S.C. § 5107(b) (“When 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.”).
7 Id.; see also Mittleider v. West, 11 Vet.App. 181, 182 (1998) (per curiam order) (holding that, when a
claimant has both service-connected and nonservice-connected disabilities, the Board must attempt to discern the effects of each disability and, where such distinction is not possible, attribute such effects to the service-connected disability).
8 See D’Aries, 22 Vet.App. at 104 (whether a medical examination is adequate is a finding of fact); see also Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) (‘”A 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.”‘ (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948))).
9 Rizzo v. Shinseki, 580 F.3d 1288, 1291 (Fed. Cir. 2009) (“Absent some challenge to the expertise of a VA expert, this court perceives no statutory or other requirement that VA must present affirmative evidence of a physician’s qualifications in every case as a precondition for the Board’s reliance upon that physician’s opinion.”); see also Robinson v. Peake, 21 Vet.App. 545, 552 (2008) (Board must discuss all issues raised by the claimant or the evidence of record), aff’d sub nom. Robinson v. Shinseki, 557 F.3d 1335 (Fed. Cir. 2009).
10 R. at 729-30.
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or explained why the duty to assist did not require the Secretary to do so.11 The Board’s failure to address these matters renders its statement of reasons or bases inadequate and warrants remand.12
In a related argument, Mr. Johnson attacks the general rule that the Board may presume
that a VA examiner possesses the requisite credentials. According to Mr. Johnson, this rule is unconstitutional and contrary to law. The Court declines to address the legality of this rule because it is not raised by the facts of this case.
The rule that the Board need not discuss a VA examiner’s qualifications applies only when the examiner’s qualifications have not been challenged.13 But, in this case, Mr. Johnson has challenged the 2012 VA examiner’s credentials. The Board, therefore, was not entitled to presume the VA examiner’s competence and instead was required to affirmatively address whether the examiner possessed the requisite qualifications to offer an opinion. In asking the Court to find the presumption of a VA examiner’s competence to be unconstitutional or illegal, Mr. Johnson asks the Court to decide a matter that is not raised by the facts of the case. But the Court may not issue
such an advisory opinion. Rather, we “are to decide only actual controversies by judgment which can be carried into effect, and not give opinions upon . . . abstract propositions, or declare principles or rules of law [that] cannot affect the matter in the case before [us].”14 Accordingly, the Court will not further address Mr. Johnson’s argument.
Mr. Johnson also asks the Court to provide him with information as to how to initiate
aggregate litigation. Mr. Johnson presents no evidence or argument, however, to support his contention that the Court must provide such assistance.15 Unlike VA, which has an obligation to assist a veteran in the development of his or her claim, this Court is a court of law responsible for reviewing Board decisions.16 As such, this Court does not issue advisory opinions or advise parties
11 See 38 U.S.C. § 5103A(a) (“The Secretary shall make reasonable efforts to assist a claimant in obtaining
evidence necessary to substantiate a claimant’s claim for a benefit under a law administered by the Secretary.”); see
also Robinson v. Peake, 21 Vet.App. at 552.
12 See Rizzo, 580 F.3d at 1291; see also Robinson v. Peake, 21 Vet.App. at 552; see also 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”).
13 Rizzo, 580 F.3d at 1291.
14 Norvell v. Peake, 22 Vet.App. 194, 200 (2008) (internal quotations and citations omitted).
15 See Locklear v. Nicholson, 20 Vet.App. 410, 416 (2006) (the Court will not entertain underdeveloped arguments).
16 See 38 U.S.C. §§ 7251 (“Status”), 7252 (“Jurisdiction; finality of [Board] decisions”); 7261 (“Scope of review”); see also Smith v. Brown, 10 Vet. App. 330, 332 (1997) (noting that the Court has the statutory authority to
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regarding the conduct of the case.17 Accordingly, we decline the invitation to provide Mr. Johnson with information as to how to initiate aggregate action.

C. Additional Arguments May Be Addressed by the Board on Remand
Because the claim is being remanded, the Court need not address Mr. Johnson’s additional arguments that would result in no broader remedy than a remand.18 In pursuing his claim on remand, Mr. Johnson will be free to submit additional argument and evidence as to the remanded matter, and he has 90 days to do so from the date of the postremand notice VA provides.19 The Board must consider any such evidence or argument submitted.20 The Court notes that, regarding Mr. Johnson’s argument that the Board erred in grouping his nine diagnosed disabilities into the three categories of cervical spine, lumbar spine, and bilateral shoulder conditions, Mr. Johnson does not identify any symptoms that have been neglected by the Board’s categorization of his
disabilities or otherwise sufficiently explain how he has been harmed by the Board’s action.21 In light of the need to remand the matter, however, Mr. Johnson may further develop this argument before the Board on remand.
II. CONCLUSION
On consideration of the foregoing, the Board’s November 16, 2016, decision is SET
ASIDE and the matter is REMANDED for further adjudication consistent with this opinion.
DATED: July 20, 2018
review only Board decisions).
17 See Norvell, 22 Vet.App. at 200.
18 See Mahl v. Principi, 15 Vet.App. 37, 38 (2001) (per curiam order) (“[I]f the proper remedy is a remand,
there is no need to analyze and discuss all the other claimed errors that would result in a remedy no broader than a
remand.”).
19 Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order); see also Clark v. O’Rourke,
___ Vet.App. ___, No. 16-2826, 2018 WL 3357628 (July 10, 2018).
20 See Kay v. Principi, 16 Vet.App. 529, 534 (2002); see also Fletcher v. Derwinski, 1 Vet.App. 394, 397
(1991) (“A remand is meant to entail a critical examination of the justification for the decision.”).
21 See Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (appellant bears the burden of demonstrating prejudicial
error on appeal).
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Copies to:
Christopher F. Attig, Esq.
VA General Counsel (027)

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