Veteranclaims’s Blog

September 6, 2018

Single Judge Application; adequate medical examination; VA blatantly wastes judicial resources; entirely unclear what the examiner means by “aggravated beyond normal,;

Excerpt from decision below:

“The Court is called on to evaluate the adequacy of the medical evidence to support the Board’s decision denying service connection for the left-knee condition. Because an August 2015 VA disability benefits questionnaire (DBQ), together with a September 2016 addendum, were inadequate to evaluate the left-knee condition, the Court will set aside the Board decision and remand that claim for a medical examination that furnishes a reasoned medical explanation for its principal conclusions.”

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“This passage is the only discussion in the entire DBQ; the rest of the document contains only test results.
The inadequacies in this purported rationale should be patently obvious to the most casual observer. To begin, a VA medical examination report is entitled to no weight if it contains only data and conclusions.16 Further, the Board found that “the in-service incurrence element of service connection is met.”17 It follows from this finding that there was an injury to the left knee in service.
Thus, it is not clear that the examiner was proceeding from a factually accurate premise. If not, the
10 Acevedo v. Shinseki, 25 Vet.App. 286, 293 (2012).
11 See Reonal v. Brown, 5 Vet.App. 458, 461 (1993).
12 26 Vet.App. 97 (2012).
13 Secretary’s Br. at 12 (emphasis added) (quoting Monzingo at 106).
14 Monzingo, 26 Vet.App. at 105.
15 R. at 341.
16 Nieves-Rodriguez, 22 Vet.App. at 304.
17 R. at 7.
4
opinion has no value from the outset.18 In any view of the matter, the Board was unable to discharge its duty to ensure that the examiner applied valid medical analysis to the facts of the case, as found by the Board.19
Furthermore, the opinion provides no medical evidence by which the Board could reject Mr. Tennis’s theory of service connection. In his formal appeal, he stated that the left knee condition was secondary to his service-connected right knee condition, caused by an altered gait.20
The uncontroverted evidence that he has used a cane since his discharge from service, “particularly for his left knee,” lends some credence to this contention.21 Assuming the VA examiner considered and rejected this theory, he supplied no medical reasoning for doing so.
Recognizing that the August 2015 opinion was inadequate to evaluate possible aggravation of the left knee condition, 22 VA requested an addendum from the examiner. The examiner responded, in September 2016, with the following remark: “[T]here is no evidence that the left knee condition was aggravated beyond normal by the right knee condition, it is less likely as not related to the right knee[.]”23
This statement left the Board with no medical basis to explain its rejection of possible aggravation. It is unclear what sort of evidence would pertain to whether the right knee aggravated the left knee condition, and the examiner pointed to no medical evidence excluding the possibility of such aggravation. Further, it is entirely unclear what the examiner means by “aggravated beyond normal,” whether the examiner concluded that there was no aggravation at all, or, alternatively, whether there was some aggravation that was considered “normal.” If the examiner was acknowledging some aggravation he did not explain how this “normal aggravation” would not be linked to the service-connected right knee injury.
This case should never have come to the Court. It is indefensible that the Board should accept, and the Secretary attempt to defend, the adequacy of these reports. Given the clear weight of precedent on the content of VA medical examination reports, it was a blatant waste of
18 See supra note 10.
19 Nieves-Rodriguez, 22 Vet.App. at 304.
20 R. at 460.
21 See R. at 926, 928.
22 See El-Amin v. Shinseki, 26 Vet.App. 136 (2013).
23 R. at 45.
5
administrative and judicial resources not to return these examination reports for a more thorough analysis. Therefore, the Board clearly erred in accepting the August 2015 DBQ and September 2016 addendum as adequate for purposes of deciding Mr. Tennis’s claim for a left-knee disability.24
The Board must obtain medical evidence addressing these deficiencies on remand. In
pursuing his claim on remand, Mr. Tennis is free to submit additional evidence and argument, and the Board is required to consider any such relevant evidence and argument.25
II. CONCLUSION
On consideration of the foregoing, the Court SETS ASIDE the Board’s June 15, 2017,
decision and REMANDS the matter for the Board to obtain adequate medical evidence.

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

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 17-3587
TIMOTHY S. TENNIS, APPELLANT,
V.
ROBERT L. WILKIE,
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. Marine Corps veteran Timothy S. Tennis has problems with his
knees. He served from January 1985 to January 1989, primarily as a truck driver. After undergoing intense physical training, to include 25-mile full-pack hikes and extended runs through wooded and swampy areas, Mr. Tennis sought medical attention in November and December 1988 for painful knees and left leg.1 His January 1989 separation examination report noted crepitus and locking of the right knee reported in the November 1988 service medical record, although the separation examination evaluated his knees as normal.2
In June 2008 Mr. Tennis filed a claim for service connection for disabilities in both knees,
which was initially denied in a December 2008 rating decision. Mr. Tennis initiated and perfected an appeal from that decision; the claim has been in appellate status ever since.
After a Board hearing and a July 2014 remand, a September 2016 rating decision awarded Mr. Tennis service connection for patellofemoral pain syndrome of the right knee. 3
“Patellofemoral pain syndrome,” also known as chondromalacia patellae is “pain and crepitus over
1 Record (R.) at 898 (service medical record), 386 (Feb. 2013 Board remand).
2 R. at 969.
3 R. at 55.
2
the anterior aspect of the knee, particularly in flexion, with softening of the cartilage on the
articular surface of the patella and, in later stages, effusion.”4 “Crepitus,” as it pertains to a joint, is “the grating sensation caused by the rubbing together of the dry synovial surfaces of joints, called also articular c[repitus].”5
Mr. Tennis now appeals a June 15, 2017, Board decision that denied service connection
for a left knee disability, to include as secondary to the service-connected right knee disability.
The Court is called on to evaluate the adequacy of the medical evidence to support the Board’s decision denying service connection for the left-knee condition. Because an August 2015 VA disability benefits questionnaire (DBQ), together with a September 2016 addendum, were inadequate to evaluate the left-knee condition, the Court will set aside the Board decision and remand that claim for a medical examination that furnishes a reasoned medical explanation for its principal conclusions.
I. ANALYSIS
A. To support its principal conclusions, a medical examination report must provide
a rationale based on the medical facts of the case.
Mr. Tennis argues that the VA medical reports on which the Board relied ignored evidence favorable to his claim and contained inadequate rationales, providing only “bare-bones conclusions.”6 The Court reviews the Board’s finding that a medical examination is adequate under the “clearly erroneous” standard.7 A factual 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.”8
An adequate medical opinion contains not only data and conclusions, “but also a reasoned
medical explanation connecting the two.” 9 Though there is no reasons-or-bases requirement
imposed on an examiner, a medical report must rest on correct facts and reasoned medical
4 DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 352 (32d ed. 2012).
5 Id. at 429 (emphasis in original).
6 Appellant’s Brief (Br.) at 4.
7 D’Aries v. Peake, 22 Vet.App. 97, 104 (2008).
8 Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364,
395 (1948)).
9 Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008).
3
judgment to facilitate the Board’s consideration of the report.10 A medical report that proceeds from inaccurate factual premises is entitled to no weight in the service connection analysis.11 Citing Monzingo v. Shinseki,12 the Secretary observes that the VA examiner is not required to discuss every piece of favorable evidence, or “‘explicitly lay out the examiner’s journey from the facts to a conclusion,'”13 and argues that the examination reports were adequate. Though this passage reflects the fact that the Board may draw reasonable inferences while considering an
examiner’s rationale, the examiner must nevertheless provide “the essential rationale for [the] opinion”14 somewhere within the four corners of the examination report.

B. The August 2015 DBQ and September 2016 addendum fail to provide a reasoned
medical explanation for the examiner’s conclusions.
In an August 2015 DBQ, the VA examiner stated that
chondomalacia noted in [19]88 right knee only, he has had persistent symptoms
since then, left knee not injury in service [sic] now has pfs [patellofemoral
syndrome] in left knee as well, it is at least as likely that the right knee complaints
are the same as in service, the left knee is separate and not related to complaints in
service of the right knee[.]15
This passage is the only discussion in the entire DBQ; the rest of the document contains only test results.
The inadequacies in this purported rationale should be patently obvious to the most casual observer. To begin, a VA medical examination report is entitled to no weight if it contains only data and conclusions.16 Further, the Board found that “the in-service incurrence element of service connection is met.”17 It follows from this finding that there was an injury to the left knee in service.
Thus, it is not clear that the examiner was proceeding from a factually accurate premise. If not, the
10 Acevedo v. Shinseki, 25 Vet.App. 286, 293 (2012).
11 See Reonal v. Brown, 5 Vet.App. 458, 461 (1993).
12 26 Vet.App. 97 (2012).
13 Secretary’s Br. at 12 (emphasis added) (quoting Monzingo at 106).
14 Monzingo, 26 Vet.App. at 105.
15 R. at 341.
16 Nieves-Rodriguez, 22 Vet.App. at 304.
17 R. at 7.
4
opinion has no value from the outset.18 In any view of the matter, the Board was unable to discharge its duty to ensure that the examiner applied valid medical analysis to the facts of the case, as found by the Board.19
Furthermore, the opinion provides no medical evidence by which the Board could reject Mr. Tennis’s theory of service connection. In his formal appeal, he stated that the left knee condition was secondary to his service-connected right knee condition, caused by an altered gait.20
The uncontroverted evidence that he has used a cane since his discharge from service, “particularly for his left knee,” lends some credence to this contention.21 Assuming the VA examiner considered and rejected this theory, he supplied no medical reasoning for doing so.
Recognizing that the August 2015 opinion was inadequate to evaluate possible aggravation of the left knee condition, 22 VA requested an addendum from the examiner. The examiner responded, in September 2016, with the following remark: “[T]here is no evidence that the left knee condition was aggravated beyond normal by the right knee condition, it is less likely as not related to the right knee[.]”23
This statement left the Board with no medical basis to explain its rejection of possible aggravation. It is unclear what sort of evidence would pertain to whether the right knee aggravated the left knee condition, and the examiner pointed to no medical evidence excluding the possibility of such aggravation. Further, it is entirely unclear what the examiner means by “aggravated beyond normal,” whether the examiner concluded that there was no aggravation at all, or, alternatively, whether there was some aggravation that was considered “normal.” If the examiner was acknowledging some aggravation he did not explain how this “normal aggravation” would not be linked to the service-connected right knee injury.
This case should never have come to the Court. It is indefensible that the Board should accept, and the Secretary attempt to defend, the adequacy of these reports. Given the clear weight of precedent on the content of VA medical examination reports, it was a blatant waste of
18 See supra note 10.
19 Nieves-Rodriguez, 22 Vet.App. at 304.
20 R. at 460.
21 See R. at 926, 928.
22 See El-Amin v. Shinseki, 26 Vet.App. 136 (2013).
23 R. at 45.
5
administrative and judicial resources not to return these examination reports for a more thorough analysis. Therefore, the Board clearly erred in accepting the August 2015 DBQ and September 2016 addendum as adequate for purposes of deciding Mr. Tennis’s claim for a left-knee disability.24
The Board must obtain medical evidence addressing these deficiencies on remand. In pursuing his claim on remand, Mr. Tennis is free to submit additional evidence and argument, and the Board is required to consider any such relevant evidence and argument.25
II. CONCLUSION
On consideration of the foregoing, the Court SETS ASIDE the Board’s June 15, 2017,
decision and REMANDS the matter for the Board to obtain adequate medical evidence.
DATED: September 5, 2018
Copies to:
Christopher R. Debski, Esq.
VA General Counsel (027)
24 McKinney v. McDonald, 28 Vet.App. 15, 31 (2016).
25 See Kay v. Principi, 16 Vet.App. 529, 534 (2002).

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