Veteranclaims’s Blog

July 29, 2018

Single Judge Application;Stefl, 21 Vet.App. at 124-25; Nieves-Rodriguez, 22 Vet.App. at 301; reasoned medical explanation connecting the two;

Excerpt from decision below:

“Although there is no reasons-and-bases requirement imposed on medical examiners, Acevedo v. Shinseki, 25 Vet.App. 286, 293 (2012), the opinion “must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.” Stefl, 21 Vet.App. at 124-25; see also Nieves-Rodriguez, 22 Vet.App. at 301. Here, the examiner checked boxes on a medical examination form, but provided very few, if any, notes or explanations of his findings. For example, after noting some moderate symptoms, as well as decreased reflexes, the examiner concluded that Mr. Garrett’s condition was mild with no explanation of why he reached that conclusion. Also, in concluding that Mr. Garrett’s peripheral neuritis did not impact his
6
employability, the only note was that Mr. Garrett had not worked in 15 years. There was
absolutely no discussion of his peripheral neuritis. As noted above, “a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.” Nieves-Rodriguez, 22 Vet.App. at 301. The February 2015 examiner provided only a conclusion, without any supporting data or explanation for his opinion.
Without some explanation, the Court finds the February 2015 opinion inadequate, and, thus, the Board erred by relying on it. See D’Aries, 22 Vet.App. at 104.”

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

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 17-0784
MARCUS D. GARRETT, APPELLANT,
V.
PETER O’ROURKE,
ACTING SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before PIETSCH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

PIETSCH, Judge: Marcus D. Garrett appeals through counsel a June 7, 2016, Board of
Veterans’ Appeals (Board) decision that denied entitlement to disability ratings higher than 10%
for peripheral neuritis of the left and right lower extremities and entitlement to VA benefits for
sleep apnea. 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 as the
issue is of “relative simplicity” and “the outcome is not reasonably debatable.” Frankel v.
Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons that follow, the Court will vacate the
June 7, 2016, Board decision and remand the matter for readjudication consistent with this
decision.
I. FACTS
Mr. Garrett served on active duty in the U.S. Army from November 1967 to January
1969, including service in Vietnam. He is service connected for multiple conditions, including
benign prostatic hypertrophy with associated chronic prostatitis and recurrent lower urinary tract
bleeding, and diabetic neurogenic bladder associated with type II diabetes mellitus with senile
nuclear cataract and erectile dysfunction, post-traumatic stress disorder, coronary artery disease,
and peripheral neuritis. He has been in receipt of a total disability rating based upon individual
2
unemployability (TDIU) since 2006 and K-1 special monthly compensation for loss of use of a
creative organ since 2009.
Regarding his peripheral neuritis, Mr. Garrett was awarded VA benefits for that condition
in both lower extremities, effective October 2004. An August 2010 VA medical record indicates
that he reported burning pain in both feet and numbness in the right leg and had decreased
vibratory sensation. At a November 2010 VA general examination, he again reported numbness
and tingling in his feet. He had no pinprick or vibration sensation and his deep tendon reflexes
were at 1+ in both feet. A March 2011 VA peripheral nerve examination noted that he had a
burning sensation on his skin. The examiner found normal muscle strength, fine motor control,
and muscle tone. A March 2011 treatment note indicated that he had present, but diminished
pulses in both the posterior tibial and dorsalis pedis arteries. Treatment records from August and
November 2011 note that he experienced a burning sensation in his feet, but had otherwise
normal sensory examinations. A June 2012 VA medical record noted present, but weak posterior
tibial pulses.
After he was denied entitlement to a higher disability rating, in July 2014 the Board
remanded the matter for VA to perform an examination to determine the nature and extent of his
peripheral neuritis of the bilateral lower extremities. He underwent a new VA examination in
February 2015, at which he reported pain and numbness in both feet. The examiner noted that
Mr. Garrett had moderate intermittent pain, moderate paresthesia or dysthesias, and moderate
numbness of the lower extremities. The examiner also noted that he had full strength in his lower
extremities, but no deep tendon reflexes, decreased light touch on monofilament testing in the
feet and toes, and decreased vibration sensation in both feet. The examiner also found no muscle
atrophy or trophic changes. The examiner diagnosed Mr. Garrett with bilateral mild incomplete
paralysis. The examiner stated that his neuropathy did not impact his ability to work.
Regarding sleep apnea, Mr. Garrett was first diagnosed with that condition in 1999. He
applied for VA benefits for sleep apnea in 2002, but was denied. At a November 2005 hearing
before the Board, Mr. Garrett testified that he snored during service and that he believed his sleep
apnea was caused by his exposure to Agent Orange. He also testified that he had difficulty
staying awake during his 30 years as a truck driver. In October 2008, the Board remanded Mr.
3
Garrett’s claim for additional development, including an examination to determine whether his
sleep apnea was related to his military service.
Mr. Garrett underwent a VA examination in February 2015, at which the examiner noted
Mr. Garrett’s reports of falling asleep while working as a truck driver, as well as his reported
fatigue and snoring during service. The examiner noted that most primary snoring is not sleep
apnea and that sleep apnea requires polysomnography to differentiate it from other conditions
with similar symptoms. The examiner further stated that the most likely cause of Mr. Garrett’s
sleep apnea is his obesity. The examiner stated that he could not relate Mr. Garrett’s sleep apnea
to his military service without resorting to speculation.
On June 7, 2016, the Board issued the decision on appeal. In that decision, the Board
denied entitlement to disability ratings in excess of 10% for lower peripheral neuritis based on its
finding that, even at its worst, Mr. Garrett’s symptoms were still mild. In support of its decision,
the Board relied mainly on the February 2015 examination, which it noted reflected Mr. Garrett’s
symptoms as mild. The Board also found that Mr. Garrett’s sleep apnea was not etiologically
related to his military service. In support, the Board relied on the February 2015 examiner’s
opinion that Mr. Garrett’s sleep apnea was most likely related to his obesity. The Board also
found Mr. Garrett not competent to relate his sleep apnea to his military service.
On appeal, Mr. Garrett argues that the Board erred by finding that VA fulfilled its duty to
assist. He argues that the February 2015 examinations pertaining to his peripheral neuritis and
sleep apnea were inadequate. He also argues that the Board failed to provide adequate reasons or
bases for its finding that his peripheral neuritis was mild. He further argues that the Board’s
reasons or bases for denying entitlement to VA benefits for sleep apnea were inadequate and that
the Board failed to make a credibility determination regarding his statements concerning sleep
apnea and instead conflated credibility and competency in its analysis.
In response, the Secretary argues that the Court should affirm that part of the Board’s
decision that denied entitlement to a higher disability ratings for peripheral neuritis of the left and
right lower extremities. The Secretary argues that the February 2015 examination concerning
peripheral neuritis was adequate and satisfied the 2014 remand order. The Secretary also argues
that the examination supported the Board’s finding that Mr. Garrett’s condition was of mild
4
severity, and that the Board’s reasons or bases are otherwise adequate. The Secretary concedes
that remand is warranted for Mr. Garrett’s claim for VA benefits for sleep apnea because the
Board failed to discuss entitlement to benefits for that condition based on exposure to Agent
Orange.
II. ANALYSIS
A. Peripheral Neuritis
“Once the Secretary undertakes the effort to provide an examination when developing a
service-connection claim, . . . he must provide an adequate one.” Barr v. Nicholson, 21 Vet.App.
303, 311 (2007). A medical examination is considered adequate “where it is based upon
consideration of the veteran’s prior medical history and examinations and also describes the
disability, if any, in sufficient detail so that the Board’s ‘evaluation of the claimed disability will
be a fully informed one.'” Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007) (quoting Ardison v.
Brown, 6 Vet.App. 405, 407 (1994)). Additionally, the opinion must “support its conclusion with
an analysis that the Board can consider and weigh against contrary opinions.” Id. at 124-25; see
Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008) (noting that “a medical examination
report must contain not only clear conclusions with supporting data, but also a reasoned medical
explanation connecting the two”). Further, a remand by this Court or the Board confers on the
claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West,
11 Vet.App. 268, 271 (1998).
“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). 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); Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990). As always, 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 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. To comply with this requirement, the Board must analyze the credibility and
5
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. Caluza v.
Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).
Mr. Garrett argues that the Board erred in relying on the November 2010, March 2011,
and February 2015 VA examinations, which were inadequate. Initially, the Court notes that,
although the Board discussed the November 2010 general examination, it did not rely on that
examination in reaching its conclusion regarding the appropriate disability rating for his
condition. Thus, Mr. Garrett has failed to demonstrate any prejudicial error regarding this matter.
See 38 U.S.C. § 7261(b)(2) (requiring the Court to take account of the rule of prejudicial error).
Similarly, Mr. Garrett’s arguments as to internal inconsistencies in the March 2011 examination
do not demonstrate any prejudicial error. See id. He notes an internal inconsistency regarding the
etiology of his condition. However, the appropriate disability level, not the etiology, of his
peripheral neuritis is at issue. As to the other inconsistencies that he notes, the Board did not rely
on this examination for the points he cites. See id.; Shinseki v. Sanders, 556 U.S. 396, 409
(2009); Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (holding that the appellant bears
the burden of demonstrating error on appeal), aff’d per curiam, 232 F.3d 908 (Fed. Cir. 2000)
(table).
Mr. Garrett also argues that the February 2015 examination was inadequate because the
examiner failed to provide a full description of the effects of his disability on his ordinary activity
and failed to satisfy the requirements of the prior Board remand. The Court agrees that the
February 2015 VA examination lacks sufficient rationale to support the examiner’s conclusion.
Although there is no reasons-and-bases requirement imposed on medical examiners, Acevedo v. Shinseki, 25 Vet.App. 286, 293 (2012), the opinion “must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.” Stefl, 21 Vet.App. at 124-25; see also Nieves-Rodriguez, 22 Vet.App. at 301. Here, the examiner checked boxes on a medical examination form, but provided very few, if any, notes or explanations of his findings. For example, after noting some moderate symptoms, as well as decreased reflexes, the examiner concluded that Mr. Garrett’s condition was mild with no explanation of why he reached that conclusion. Also, in concluding that Mr. Garrett’s peripheral neuritis did not impact his
6
employability, the only note was that Mr. Garrett had not worked in 15 years. There was absolutely no discussion of his peripheral neuritis. As noted above, “a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.” Nieves-Rodriguez, 22 Vet.App. at 301. The February 2015 examiner provided only a conclusion, without any supporting data or explanation for his opinion.
Without some explanation, the Court finds the February 2015 opinion inadequate, and, thus, the Board erred by relying on it. See D’Aries, 22 Vet.App. at 104.
B. Sleep Apnea
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, 7 Vet.App. at 506; see also Heuer v. Brown, 7 Vet.App. 379, 384 (1995).
Again, the Board must support its decision with an adequate statement of reasons or bases. 38
U.S.C. § 7104(d)(1); Gilbert, 1 Vet.App. at 56-57.
Mr. Garrett argues that the Board erred in relying on the February 2015 VA examination,
which was inadequate. He also argues that the Board’s reasons or bases for denying his claim
were inadequate. The Board noted that Mr. Garrett is presumed to have been exposed to Agent
Orange during service and that he believed that his sleep apnea may be caused by that exposure.
The Board expressly stated that it would consider that theory of entitlement. However, as
conceded by the Secretary, the Board failed to discuss that theory in its decision.
In Stefl, the Court stated that “[t]he availability of presumptive service connection for
some conditions based on exposure to Agent Orange does not preclude direct service connection
for other conditions based on Agent Orange exposure.” 21 Vet.App. at 123; see also Polovick v.
Shinseki, 23 Vet.App. 48, 52-53 (2009). Here, neither the February 2015 examiner nor the Board
discussed whether Mr. Garrett’s sleep apnea may be related to his exposure to herbicides in
service. Without any discussion of evidence regarding this theory of entitlement, the Court finds
that the examination was inadequate and that the Board failed to provide adequate reasons or
bases for its decision. See Stefl, 21 Vet.App. at 123; see also Gilbert, 1 Vet.App. at 56-57.
7
C. Remaining Arguments
The Court need not at this time address any other arguments that Mr. Garrett has raised
with respect to the matters vacated on appeal. 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 [or her]”). On remand, he 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 Kay v. Principi, 16 Vet.App. 529, 534 (2002);
Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). The Court has held
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). The Board must proceed expeditiously, in
accordance with 38 U.S.C. § 7112 (requiring the Secretary to provide for “expeditious treatment”
of claims remanded by the Court).
III. CONCLUSION
Upon consideration of the foregoing analysis, the record of proceedings before the Court,
and the parties’ pleadings, the June 7, 2016, Board decision is VACATED and the matters are
REMANDED for readjudication consistent with this decision.
DATED: July 26, 2018
Copies to:
Judy J. Donegan, 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.