Veteranclaims’s Blog

July 29, 2018

Single Judge Application; probative weight assigned; incomplete medical history does not equal no probative weight;Monzingo v. Shinseki, 26 Vet.App. 97, 107 (2012) (per curiam);

Excerpt from decision below:

“The Court notes, however, that VA may not completely ignore an inadequate medical
opinion, whether it is in favor of or against a veteran’s claim.13 Specifically,
even if a medical opinion is inadequate to decide a claim, it does not necessarily
follow that the opinion is entitled to absolutely no probative weight. If the opinion
is based on an inaccurate factual premise, then it is correct to discount it entirely.
However, if the opinion is merely lacking in detail, then it may be given some
weight based upon the amount of information and analysis it contains.14
Here, the Board states that it assigned no probative value to the July 2013 medical opinion because it was based on an incomplete medical history. The Board, however, failed to consider the possibility that an examination that is inadequate to decide a claim may still be entitled to some probative weight, in accordance with Monzingo. Thus, the Court concludes that remand not reversal is required.15

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 18-0932
GEORGE T. COOPER, APPELLANT,
V.
PETER O’ROURKE,
ACTING SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before DAVIS, Chief Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
DAVIS, Chief Judge: U.S. Navy veteran George T. Cooper appeals a December 1, 2017,
Board of Veterans’ Appeals decision that, in relevant part,1 denied his claim for entitlement to service connection for bilateral knee disabilities, claimed as arthritis and severe osteoarthritis.2
The Court is asked to decide whether the Board adequately explained the probative weight it assigned a July 2013 private medical opinion. For the following reasons, the Court will set aside the Board’s December 1, 2017, decision and remand the matter for further adjudication.
I. ANALYSIS
Mr. Cooper argues that the Board clearly erred in affording no probative weight to Dr.
Bendowski’s July 2013 private medical opinion and that reversal is required.3 In support of his assertion, Mr. Cooper argues that “the Board erroneously assumed that Dr. Bendowski did not
1 The Board also remanded Mr. Cooper’s claims of entitlement to service connection for chronic obstructive
pulmonary disease and a total disability rating based on individual unemployability. Record (R.) at 8-12. The Court
lacks authority to address these nonfinal matters. See 38 U.S.C. § 7252(a) (Court has “exclusive jurisdiction” to review
final Board decisions); Breeden v. Principi, 17 Vet.App. 475, 478 (2004) (a Board remand “does not represent a final
decision over which this Court has jurisdiction”).
2 R. at 8.
3 Appellant’s Brief (Br.) at 6.
2
‘take into account’ [his] normal retirement examination and a lack of evidence of post-service medical treatment.”4 Alternatively, Mr. Cooper argues that the “Board failed to ensure compliance with its duty to obtain clarification from Dr. Bendowski.”5 The Secretary argues that remand, not reversal, is warranted for the Board to “provide an adequate statement of reasons or bases reassessing the probative value of Dr. Bendowski’s private medical opinion”6 and “to provide an adequate statement of reasons or bases as to whether a VA nexus opinion is required to decide the claim.”7
The Board must provide a statement of the reasons or bases adequate to enable an appellant to understand the precise basis for the Board’s decision as well as to facilitate review in this Court.8
To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.9
In the decision here on appeal, the Board discounted Dr. Bendowski’s July 2013 medical
opinion because it was not based on Mr. Cooper’s complete medical history. The Board explained that Dr. Bendowski “indicated that he was treating the [v]eteran for severe osteoarthritis in both knees,” that Mr. Cooper spent most his 27 years of service on naval ships, and that “shoe wear during that time was not the best and probably not the most supportive.”10 The Board then stated that Dr. Bendowski opined that “walking on steel decks and up and down steel stairways and ladders on naval ships for a good number of years ‘positively contributed’ to the onset of osteoarthritis in the [v]eteran’s knees.”11 The Board “afforded no probative weight” to the medical opinion because it “does not take into account the many years after separation from service prior to treatment or the normal evaluation of the [v]eteran’s knees at his retirement examination.”12
4 Id.
5 Id. at 10.
6 Secretary’s Amended Br. at 7.
7 Id. at 5.
8 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App.
49, 56-57 (1990).
9 Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).
10 R. at 5.
11 R. at 5-6.
12 R. at 7.
3
The Court notes, however, that VA may not completely ignore an inadequate medical
opinion, whether it is in favor of or against a veteran’s claim.13 Specifically,
even if a medical opinion is inadequate to decide a claim, it does not necessarily
follow that the opinion is entitled to absolutely no probative weight. If the opinion
is based on an inaccurate factual premise, then it is correct to discount it entirely.
However, if the opinion is merely lacking in detail, then it may be given some
weight based upon the amount of information and analysis it contains.14
Here, the Board states that it assigned no probative value to the July 2013 medical opinion because it was based on an incomplete medical history. The Board, however, failed to consider the possibility that an examination that is inadequate to decide a claim may still be entitled to some probative weight, in accordance with Monzingo. Thus, the Court concludes that remand not reversal is required.15
On remand, the Board must reassess the probative value of the July 2013 private medical
opinion, and provide adequate reasons or bases for its assessment.16 Also on remand, the Board
must consider whether a VA medical opinion, one that is based on the complete medical history
of the veteran, is required.17 In light of this remand, the Court need not address Mr. Cooper’s
additional arguments.18 Mr. Cooper may submit additional argument and evidence on remand,
and the Board must consider any such evidence or argument submitted.19
13 See Monzingo v. Shinseki, 26 Vet.App. 97, 107 (2012) (per curiam).
14 Id. (citations omitted); see also Reonal v. Brown, 5 Vet.App. 458, 461 (1993) (medical opinions based upon inaccurate factual premises are entitled no probative weight).
15 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).
16 See Caluza, 7 Vet.App. at 506; see also Washington v. Nicholson, 19 Vet.App. 362 (2006) (holding that it
is the Board’s responsibility to determine the appropriate weight to be given to evidence).
17 McLendon v. Nicholson, 20 Vet.App. 79, 81 (2006); Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301
(2008).
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 See Kay v. Principi, 16 Vet.App. 529, 534 (2002).
4
II. CONCLUSION
On consideration of the foregoing, the Court SETS ASIDE the Board’s December 1, 2017,
decision and REMANDS the matter for further adjudication consistent with this decision.
DATED: July 26, 2018
Copies to:
Amie Leonard, Esq.
VA General Counsel (027)

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