Veteranclaims’s Blog

November 12, 2018

Single Judge Application; examiner engages in unwarranted factfinding; overreaching; Sizemore, 18 Vet.App. at 275; Colayong, 12 Vet.App. at 534-35; Bielby, 7 Vet.App. at 268-69;

Excerpt from decision below:

“When an examiner makes factual findings and legal determinations, a new medical examination may be necessary to “remove whatever taint there may be from [the examiner’s] overreaching.” Sizemore v. Principi, 18 Vet.App. 264, 275 (faulting VA examiner for “expressing an opinion on whether the appellant’s claimed in-service stressors have been substantiated, [which] is a matter for determination by the Board and not a medical matter”); cf. Colayong v. West, 12 Vet.App. 524, 534-35 (1999) (remanding the claim for a new independent medical examination because the
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previous examination was obtained by “tainted process”); Bielby v. Brown, 7 Vet.App. 260, 268-69 (1994) (same); see also Moore, 21 Vet.App. at 218 (contrasting the roles of medical examiners and VA adjudicators). The Board errs where it relies on a medical opinion in which the examiner engages in unwarranted factfinding. See Sizemore, 18 Vet.App. at 275; Colayong, 12 Vet.App. at 534-35; Bielby, 7 Vet.App. at 268-69.
Whether the appellant’s lay statements, as well as lay statements of his friends and family, are considered credible evidence is not a medical issue, but rather, a finding of fact that should be made by the RO or Board. See Moore, 21 Vet.App. at 218. The November 2016 VA examiner made a prohibited factual determination and relied on it, in part, when forming his negative medical conclusion.

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 17-2409
MONNIE GRAHAM, JR., APPELLANT,
V.
ROBERT L. WILKIE,
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, Monnie Graham, Jr., through counsel, appeals an
April 28, 2017, Board of Veterans’ Appeals (Board) decision in which the Board denied service connection for a low back disability and an acquired psychiatric disorder, to include as secondary to a low back disability. Record of Proceedings (R.) at 1-13. For the following reasons, the Court will vacate the Board’s decision and remand the matter for further proceedings consistent with this decision.
I. Background
The appellant served in the U.S. Army from February 1970 to December 1971. R. at 2877.
Review of the service treatment records reflect that the appellant was initially treated at the military
dispensary for complaints of low back symptoms on May 5, 1971, during which time he reported
that he had developed a backache while he was lifting weights. R. at 2312. During a June 9, 1971,
treatment visit at the military dispensary, the appellant reported symptoms of low back pain that
started after heavy lifting the day before. The in-service clinician diagnosed him with having a
lumbar strain. R. at 2316. At the November 1971 separation examination, the clinical evaluation
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of the appellant’s spine was shown to be normal, and he was reported to be in good health. R. at
2329-30.
In June 2010, the appellant submitted a claim for service connection for his low back
condition. R. at 1969. In September 2010, the appellant also submitted a claim for service
connection for “major depression secondary pending claim for lumbar spine disc disease.” R. at
1963. The appellant was afforded a VA examination in connection to his low back disorder in
February 2011. R. at 1675-77. After interviewing and evaluating the appellant, the VA examiner
concluded that it is less likely than not that the appellant’s lumbar spine disorder is related to his
military service. R. at 1677. In reaching this determination, the VA examiner explained that the
appellant had “one complaint of low back pain and one treatment while on active-duty in the
military service[,] which was diagnosed as having a lumbar strain.” Id.
In April 2011, the regional office (RO) denied the appellant’s claims seeking service
connection for a lumbar spine disorder and for major depression as secondary to a lumbar spine
disorder. R. at 1653-57. The appellant filed a Notice of Disagreement (NOD) with the April 2011
rating decision in May 2011. R. at 1646-47. In support of his appeal, he submitted a May 2011
letter from his doctor, in which the doctor opined that “there is a high probability that [the
appellant’s] current back pain is related to the injury he incurred in the Army during the period of
February 1971 through May 1971.” R. at 1592. The doctor also determined that the injuries the
appellant sustained in service “are the cause of his current degenerative changes.” Id.
After perfecting his appeal, the appellant submitted several “buddy statements” from his
friends and family members that state that he did not have any back problems before his entrance
into service. R. at 1396-1405. These statements also attest to the fact that the appellant reported
experiencing ongoing back pain in the years since his active military service. Id. During a June
2013 Board hearing, the appellant described his in-service injury, the symptoms he experienced
following this injury, and the treatment he received in service for these symptoms. R. at 620-21.
The appellant also asserted that he had experienced continuing problems in his lower back ever
since his military service. R. at 623.
In an October 2014 decision, the Board determined that the February 2011 VA examination
report was based, in part, on an inaccurate factual premise. R. at 598. The Board noted that while
the February 2011 VA examiner stated that the appellant had made one complaint of low back
pain and undergone one treatment session for his low back symptoms in service, the service
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treatment records reflected that he had been seen for low back pain on four separate occasions.
Thus, the Board found the VA examination inadequate and remanded the appellant’s claim for a
new VA examination. R. at 598-99. In the remand instructions, the Board directed the RO to
schedule the appellant for a new VA examination to determine the nature and etiology of his low
back disorder. R. at 600. The Board specifically instructed the VA examiner to opine on “whether
it is at least as likely as not (a 50 percent probability or greater) that the [appellant’s] low back
disability is related to his active military service, to include in-service treatment on May 5, 1971;
May 20, 1971; May 27, 1971; and June 9, 1971?” Id. The Board also instructed the VA examiner
to “specifically discuss the June 2010 and May 2011 private opinions, as well as the lay statements
of continuity.” Id. The Board also determined that the appellant’s claim for service connection for
an acquired psychiatric disorder is inextricably intertwined with his claim for service connection
for a low back disability, and remanded this psychiatric claim as well. R. at 599. If the appellant
was granted service connection for his claimed low back disability, the RO was instructed to
schedule the appellant for a VA psychiatric examination to determine the nature and etiology of
his acquired psychiatric disorder. R. at 600-01.
On remand, the appellant underwent a VA examination in November 2016. R. at 317-20.
The VA examiner concluded that the appellant’s low back disorder was less likely than not incurred
in or caused by the claimed in-service injury, event, or illness. R. at 318. In reaching this
determination, the VA examiner acknowledged the lay statements issued by the appellant’s family
members and friends that supported his contentions of continual low back pain since service.
However, according to the VA examiner, “none of these letters offer specific or objective evidence
of chronic low back pain existing during or soon after service, from an uninterested party.” R. at
319. The VA examiner also acknowledged the service treatment records reflecting the appellant’s
complaints of, and treatment for, low back symptoms in May and June 1971, and further noted
that the appellant denied experiencing chronic back pain or other back issues at his separation
examination. R. at 318-19. According to the VA examiner, “[t]his implies that, while
intermittently present for up to 6 months, there is no indication of continuation of low back pain
after this time.” The VA examiner noted that while the 2002, 2005, 2007, 2010, and 2011, medical
records indicate chronic low back pain, “there [was] further no evidence of chronic low back pain
occurring in between 1971 and 2002, a gap of over 30 years.” R. at 319. The VA examiner
determined that although “[e]vidence of the existence of and treatment for chronic or problematic
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low back pain in the early to mid-1970s or even 1980s would . . . allow a logical connection
between [the appellant’s] low back pain experienced in 1971, and his low back pain progressing to
degenerative disease in 2002” this type of evidence was currently not available. Id.
In the April 28, 2017, decision here on appeal, the Board denied the appellant’s claim of
service connection for a low back disability, concluding that the appellant’s lumbar spine disorder
was (1) not present until more than 1 year following his separation from service; and (2) not
etiologically related to his active service. R. at 2. In reaching its determination, the Board
acknowledged the appellant’s assertions that he had experienced ongoing back pain continually
since service, but found that these assertions were not consistent with the appellant’s November
1971 separation medical examination, which showed a normal spine. R. at 9. The Board also
found that any relationship between the appellant’s current lumbar spine disability and the
symptoms he experienced throughout the years “must be established by medical evidence because
a disease process affecting the lumbar spine may be due to many different causes, thereby
rendering the question of causation a matter of medical complexity requiring medical expertise to
resolve.” Id. The Board ultimately did not find that the lay statements of pain since service
constituted competent and credible evidence of a nexus between the appellant’s military service
and the current diagnosed lumbar spine disorder. Id. The Board also denied the appellant’s claim
for service connection for an acquired psychiatric disorder, concluding that the appellant’s
psychiatric disorders were not etiologically related to his active service or any service-connected
disability. R. at 2. This appeal followed.
II. Analysis
A. Service Connection for Low Back Disability
The Secretary’s duty to assist includes, in appropriate cases, the duty to conduct a thorough
and contemporaneous medical examination. 38 U.S.C. § 5103A; see Green v. Derwinski,
1 Vet.App. 121, 124 (1991). Further, “once 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.” Barr v. Nicholson, 21 Vet.App. 303, 311 (2007). This
Court has held that a medical 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
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disability will be a fully informed one,'” id. (quoting Ardison v. Brown, 6 Vet.App. 405, 407
(1994)), 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.
In rendering its decision, the Board is required to provide a written statement of reasons or
bases for its “findings and conclusions[ ] on all material issues of fact and law presented on the
record.” 38 U.S.C. § 7104(d)(1). The statement must be adequate to enable a claimant to
understand the precise basis for the Board’s decision and to facilitate review in this Court. Gilbert,
1 Vet.App. at 57. To comply with this requirement, the Board must analyze the credibility and
probative value of the evidence, account for the evidence it finds to be 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).
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.”).
Essentially, the appellant argues that while the November 2016 VA examiner
acknowledged the lay statements of record, he (the examiner) did not discuss them, and he
ultimately chose to discount the lay evidence because they were not “from an uninterested party.”
Appellant’s Brief (Br.) at 4. The appellant asserts that the November 2016 VA examiner made a
factual finding as to the credibility of the lay witnesses – a determination that is to be made by VA
adjudicators or the Board, not a medical professional. Id. at 3-6. The appellant also argues that
the Board violated Stegall v. West, 11 Vet.App. 268 (1996) in finding that the November 2016 VA
examination substantially complied with the October 2014 remand directives. Id. at 6-7.
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According to the appellant, the November 2016 VA examination and opinion relied upon by the
Board in its April 2017 denial of his claim was inadequate because the VA examiner did not
discuss the lay statements of continuity pursuant to the October 2014 remand instructions. Id. In
response to the appellant’s arguments, the Secretary counters that the November 2016 VA
examiner “did not draw any impermissible non-medical conclusions about the evidence in forming
that opinion” and “[s]o long as the opinion rests on correct facts and explains the examiner’s
reasoned medical judgment sufficiently so that the Board can weigh it against other reports in the
record, it is adequate for rating purposes.” Secretary’s Br. at 6-11. The Secretary also maintains
that the November 2016 VA examination complied with the October 2014 Board remand
instructions because “it discussed the private medical opinions and the lay statements from
Appellant’s friends and family.” Id. at 11-12.
The Court agrees with the appellant that the November 2016 VA medical opinion on which the Board relied is inadequate and that the Board erred in relying on it. In disregarding the significance of the lay statements submitted in support of the appellant’s claim, the November 2016 VA examiner has essentially made a factual finding that the lay statements were not considered credible evidence because they were issued by persons who had a certain stake or level of interest in the claim. Medical examiners and VA adjudicators have distinct and separate roles in the veterans benefits system, based on the differing types of expertise each possesses: the medical examiner provides an opinion on medical matters and the adjudicator makes findings of fact and law to determine a veteran’s entitlement to disability benefits. See Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008); Moore v. Nicholson, 21 Vet.App. 211, 218 (2007), rev’d on other grounds sub nom. Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). The VA adjudicator or Board is obligated to determine the credibility of lay statements by weighing them against the
evidence of record to determine their consistency and other relevant factors. See Caluza v. Brown, 7 Vet.App. 498, 511 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). When an examiner makes factual findings and legal determinations, a new medical examination may be necessary to “remove whatever taint there may be from [the examiner’s] overreaching.” Sizemore v. Principi, 18 Vet.App. 264, 275 (faulting VA examiner for “expressing an opinion on whether the appellant’s claimed in-service stressors have been substantiated, [which] is a matter for determination by the Board and not a medical matter”); cf. Colayong v. West, 12 Vet.App. 524, 534-35 (1999) (remanding the claim for a new independent medical examination because the
7
previous examination was obtained by “tainted process”); Bielby v. Brown, 7 Vet.App. 260, 268-69 (1994) (same); see also Moore, 21 Vet.App. at 218 (contrasting the roles of medical examiners and VA adjudicators). The Board errs where it relies on a medical opinion in which the examiner engages in unwarranted factfinding. See Sizemore, 18 Vet.App. at 275; Colayong, 12 Vet.App. at 534-35; Bielby, 7 Vet.App. at 268-69.
Whether the appellant’s lay statements, as well as lay statements of his friends and family, are considered credible evidence is not a medical issue, but rather, a finding of fact that should be made by the RO or Board. See Moore, 21 Vet.App. at 218. The November 2016 VA examiner made a prohibited factual determination and relied on it, in part, when forming his negative medical conclusion. The Board erred by finding the November 2016 VA opinion adequate and by relying on this opinion when denying the appellant’s claim for service connection for his low back disability.
In addition, the Court agrees with the appellant that the Board violated the principles set
forth in Stegall v. West, 11 Vet.App. 268 (1996). “[A] remand by this Court or the Board confers
on the . . . claimant, as a matter of law, the right to compliance with the remand orders.” Stegall v.
West, 11 Vet.App. 268, 271 (1998). When “the remand orders of the Board or this Court are not
complied with, the Board itself errs in failing to [e]nsure compliance.” Id. It is substantial
compliance, not absolute compliance, that is required. See Dyment v. West, 13 Vet.App. 141,
146-47 (1999). Such a failure to ensure substantial compliance can constitute the basis for a
remand by this Court. Id. In the October 2014 remand directives, the Board instructed the RO to
schedule the appellant for another VA examination, and specifically ordered that the VA examiner
provide a medical opinion regarding the etiology of the appellant’s low back disorder that takes
into consideration the lay statements of continuing symptoms of low back pain since service.
Although the November 2016 VA examiner acknowledged the lay statements of record, he did not
discuss these statements or take them into consideration when rendering his conclusion.
Accordingly, the Court finds that a remand is necessary for the Board to obtain an adequate
medical opinion that addresses the nature and etiology of his low back disability, and takes the
into consideration the appellant’s lay statements of ongoing low back symptoms, as well as other
lay statements submitted in support of his appeal. Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007).
Given this disposition, the Court need 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)
8
(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”). The appellant is free on remand to submit additional evidence and
argument, including the arguments raised in his briefs to this Court, in accordance with
Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order), and the Board must
consider any such evidence or argument submitted. See Kay v. Principi, 16 Vet.App. 529, 534
(2002). The Court reminds the Board that “[a] remand is meant to entail a critical examination of
the justification for [the Board’s] decision,” Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991),
and must be performed in an expeditious manner in accordance with 38 U.S.C. § 7112.
B. Service Connection for Acquired Psychiatric Disability
Regarding the appellant’s claim for service connection for an acquired psychiatric disorder
as secondary the low back disorder, the Court finds that the psychiatric matter is inextricably
intertwined with the remanded low back disability claim, because a finding of entitlement to
service connection for the low back disability may affect the Board’s determination of his claim
for service connection for an acquired psychiatric disability.1 See Tyrues v. Shinseki, 23 Vet.App.
166, 178 (2009) (finding that the Court has discretion to determine whether claims denied by the
Board are so inextricably intertwined with a matter still pending before VA that claims should be
remanded to await development or disposition of a claim not yet finally decided) aff’d, 631 F.3d
1380 (Fed. Cir. 2011), vacated, 565 U.S. 802 (2011), reinstated as modified, 26 Vet.App. 31
(2012) (per curiam order), aff’d, 732 F.3d 1351 (Fed. Cir. 2013); Gurley v. Nicholson, 20 Vet.App.
573, 575 (2007) (recognizing the validity of remands based on judicial economy when issues are
inextricably intertwined); Harris v. Derwinski, 1 Vet.App. 180, 183 (1991) (holding that, where a
decision on one issue would have a “significant impact” on another, and that impact in turn “could
render any review by this Court of the decision [on the other claim] meaningless and a waste of
judicial resources,” the two claims are inextricably intertwined). Thus, the Court will also remand
this issue.
1 The Court notes that in the April 2017 decision, the Board denied the appellant’s claim for service
connection for an acquired psychiatric disorder, and found that it was not related to his military service on a direct
basis. The appellant has not argued otherwise with respect to this theory of causation. Therefore, the Court will not
address the theory of service connection for an acquired psychiatric disability on a direct basis any further.
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III. Conclusion
After consideration of the appellant’s and the Secretary’s pleadings, and a review of the
record, the Board’s April 28, 2017, decision is VACATED and the matter is REMANDED to the
Board for further proceedings consistent with this decision.
DATED: November 9, 2018
Copies to:
Kenneth H. Dojaquez, Esq.
VA General Counsel (027)

 

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