Veteranclaims’s Blog

December 27, 2018

Single Judge Application; chlorinated solvents exposure; increased risk of developing multiple myeloma; 44% of cases of multiple myeloma in people exposed to chlorinated solvents are attributable to those solvents; expert should not have of used a simple greater-than, less-than comparison between two percentages with different referents; no known post-service exposure to potentially carcinogenic environmental hazards or relevant family history, it is not at least as likely as not that his disorder was linked to service;

Excerpt from decision below:

“The substantive part of the expert’s opinion is two paragraphs in length, and each paragraph makes a different point. In the first paragraph, the expert interpreted the NIH study and applied it to the appellant’s case. In the second paragraph, he cited to other research and questioned the conclusions reached by the authors of the NIH study. The Board did nothing more than cite to the expert’s opinion and state that the appellant is not entitled to the benefits that she seeks. It did not inform the appellant and the Court which portion of the expert’s statement that it relied upon to decide this case.
To the extent that it relied upon the expert’s observations concerning the veracity of the
NIH opinion, it did not critically review those observations for adequacy. The Board should have determined whether the examiner directly opined that the link between chlorinated solvents and multiple myeloma is either more tenuous that the NIH study reported or altogether nonexistent. It then should have discussed whether the expert adequately supported that opinion. If the expert did set forth a properly supported opinion contradicting the NIH study, then the Board should have recognized that the record contained competing medical evidence and made a properly supported determination about which piece of evidence deserves greater probative value.
The opinion that the expert gave in the first paragraph of his analysis is inadequate and the Board’s finding to the contrary is clearly erroneous. The examiner concluded that the NIH study demonstrated that people exposed to chlorinated solvents are at an increased risk of developing multiple myeloma; did not identify any other factors that may have contributed to the development of Mr. Hays’s disorder or make any effort to explain its normal etiology; did not mention that the record demonstrates that the etiology of multiple myeloma is “poorly understood”; but then concluded that it is not likely that Mr. Hays’s disorder was causally linked to his exposure to chlorinated solvents. R. at 86. The expert’s explanation for this conclusion is two sentences long.
It reads:
[I]n any exposed individual, the disease attributable risk would be 33-44%, that is,
less than 50%. Stated in other terms, based on these risk estimates it is less likely
than not that the disease is attributable to chlorinated solvent exposures.
4
R. at 31.
The disease attributable risk to which the expert referred is “the amount or proportion of incidence of disease or death (or risk of disease or death) in individuals exposed to a specific risk factor that can be attributed to exposure to that factor.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1649 (32d ed. 2012). It is “the difference in the risk for unexposed versus exposed individuals.” Id. According to the Centers for Disease Control and Prevention, the “occurrence of disease in the unexposed group represents the baseline or expected risk for that disease” and the attributable risk “is the amount of disease in the exposed group attributable to exposure.”
https://www.cdc.gov/ophss/csels/dsepd/ss1978/lesson3/section6.html (last visited December 6, 2018). That means that up to 44% of cases of multiple myeloma in people exposed to chlorinated solvents are attributable to those solvents.
The expert misapprehended the nature of this statistic and the manner in which it applies in the context of the question that the Board asked him to consider.1 He equated it to an absolute risk that multiple myeloma likely is caused by chlorinated solvents in the generic veteran’s case and concluded that, because that risk falls short of 50%, it is less likely than not that Mr. Hays’s disorder is traceable to chlorinated solvents. By not engaging with the facts of this case, the expert decided the question presented by applying general averages rather than medical judgment. The Board could have done as much.
The expert should not have decided the question presented to him by means of a simple greater-than, less-than comparison between two percentages with different referents. He instead should have explained why, if there is a 44% chance that Mr. Hays’s in-service exposure to chlorinated solvents caused him to develop a rare disorder, the causative factors of which are poorly understood, and he had no known post-service exposure to potentially carcinogenic environmental hazards or relevant family history, it is not at least as likely as not that his disorder was linked to service.
1 The Court assumes for present purposes that the expert’s calculation of the disease attributable risk from the data collected in the NIH study is correct. The Board should note on remand that the appellant challenged that calculation in briefing and suggested that a proper calculation shows that she is certainly entitled to the benefits that she seeks.”

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

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 17-3593
EVELYN CURTIS-HAYS, APPELLANT,
V.
ROBERT L. WILKIE,
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: The appellant, Evelyn Curtis-Hays, appeals through counsel a July 14,
2017, Board of Veterans’ Appeals (Board) decision in which the Board denied her entitlement to service connection for the death of her husband, veteran Mark H. Hays. Record (R.) at 2-18. This appeal is timely and the Court has jurisdiction over the matter on appeal pursuant to 38 U.S.C. §§ 7252(a) and 7266. Single-judge disposition is appropriate when the issues are 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 Board’s decision and remand the matter on appeal for further proceedings consistent with this decision.

I. BACKGROUND
Mr. Hays served on active duty in the U.S. Navy from September 1943 until February
1946. R. at 635. The Board concluded that he was exposed to chlorinated solvents during his
service. R. at 12. Mr. Hays died on June 28, 1999. R. at 586. His immediate cause of death was
multiple myeloma. Id. A “h[istory] of prostrate can[cer]” also contributed to his death. Id.
In May 2011, the appellant filed a claim for dependency and indemnity compensation. R.
at 591-99. In February 2012, the VA regional office (RO) denied her claim. R. at 319-22. In
2
April 2016, she submitted a 2011 study produced by the National Institutes of Health (NIH study)
that “suggests that exposures to certain chlorinated solvents may be associated with increased
incident of [multiple myeloma].” R. at 78-100. In October 2016, the Board requested a medical
expert opinion addressing the NIH study and stating whether Mr. Hays’s multiple myeloma was
related to his service. R. at 39-40. In December 2016, a medical expert concluded that Mr. Hays’s
multiple myeloma likely was not related to his in-service exposure to chlorinated solvents. R. at
31.
On July 14, 2017, the Board issued the decision presently under review. R. at 2-18.

II. ANALYSIS
The only question that the parties have asked the Court to address is whether the chlorinated solvents that Mr. Hays encountered during his active service are linked to the multiple myeloma that he later developed. The explanation that the Board gave for its conclusion that they are not is deficient for a number of reasons.
The Board noted in its request for a medical expert opinion that Mr. Hays “has no family medical history of [multiple myeloma] and that the general medical knowledge surrounding this disease is that it is extremely rare and often the result of environmental exposure.” R. at 39.
Neither the December 2016 expert nor the Board in its decision on appeal discussed these observations. The Board did not find that Mr. Hays was exposed to some other environmental contaminant after his active service that led to his multiple myeloma or identify some other etiological factor more likely to cause his disease than his exposure to chlorinated solvents.
That led the Board to commit two related reasons or bases errors. First, it was not fully responsive to the appellant’s arguments. Second, it concluded that Mr. Hays was exposed to a contaminant that may increase the risk of multiple myeloma during his active service but denied the appellant’s claim without discussing any other risk factors or potential etiology. Consequently, it denied her claim even though the only potential causative factor that it identified may be favorable to her claim. The Board should address these shortcomings in detail on remand and
faithfully apply the benefit of the doubt doctrine.
Next, the Board did not sufficiently explain its conclusion that the December 2016 medical expert opinion is adequate. See Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008) (holding that a medical opinion must “contain not only clear conclusions with supporting data, but also a
3
reasoned medical explanation connecting the two”); Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007) (holding that a medical opinion is 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.'”) (quoting Ardison v. Brown, 6 Vet.App. 405, 407 (1994)).
The substantive part of the expert’s opinion is two paragraphs in length, and each paragraph makes a different point. In the first paragraph, the expert interpreted the NIH study and applied it to the appellant’s case. In the second paragraph, he cited to other research and questioned the conclusions reached by the authors of the NIH study. The Board did nothing more than cite to the expert’s opinion and state that the appellant is not entitled to the benefits that she seeks. It did not inform the appellant and the Court which portion of the expert’s statement that it relied upon to decide this case.
To the extent that it relied upon the expert’s observations concerning the veracity of the NIH opinion, it did not critically review those observations for adequacy. The Board should have determined whether the examiner directly opined that the link between chlorinated solvents and multiple myeloma is either more tenuous that the NIH study reported or altogether nonexistent. It then should have discussed whether the expert adequately supported that opinion. If the expert did set forth a properly supported opinion contradicting the NIH study, then the Board should have recognized that the record contained competing medical evidence and made a properly supported determination about which piece of evidence deserves greater probative value.
The opinion that the expert gave in the first paragraph of his analysis is inadequate and the Board’s finding to the contrary is clearly erroneous. The examiner concluded that the NIH study demonstrated that people exposed to chlorinated solvents are at an increased risk of developing multiple myeloma; did not identify any other factors that may have contributed to the development of Mr. Hays’s disorder or make any effort to explain its normal etiology; did not mention that the record demonstrates that the etiology of multiple myeloma is “poorly understood”; but then concluded that it is not likely that Mr. Hays’s disorder was causally linked to his exposure to chlorinated solvents. R. at 86. The expert’s explanation for this conclusion is two sentences long. It reads:
[I]n any exposed individual, the disease attributable risk would be 33-44%, that is,
less than 50%. Stated in other terms, based on these risk estimates it is less likely
than not that the disease is attributable to chlorinated solvent exposures.
4
R. at 31.
The disease attributable risk to which the expert referred is “the amount or proportion of incidence of disease or death (or risk of disease or death) in individuals exposed to a specific risk factor that can be attributed to exposure to that factor.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1649 (32d ed. 2012). It is “the difference in the risk for unexposed versus exposed individuals.” Id. According to the Centers for Disease Control and Prevention, the “occurrence of disease in the unexposed group represents the baseline or expected risk for that disease” and the attributable risk “is the amount of disease in the exposed group attributable to exposure.”
https://www.cdc.gov/ophss/csels/dsepd/ss1978/lesson3/section6.html (last visited December 6, 2018). That means that up to 44% of cases of multiple myeloma in people exposed to chlorinated solvents are attributable to those solvents.
The expert misapprehended the nature of this statistic and the manner in which it applies in the context of the question that the Board asked him to consider.1 He equated it to an absolute risk that multiple myeloma likely is caused by chlorinated solvents in the generic veteran’s case and concluded that, because that risk falls short of 50%, it is less likely than not that Mr. Hays’s disorder is traceable to chlorinated solvents. By not engaging with the facts of this case, the expert decided the question presented by applying general averages rather than medical judgment. The Board could have done as much.
The expert should not have decided the question presented to him by means of a simple greater-than, less-than comparison between two percentages with different referents. He instead should have explained why, if there is a 44% chance that Mr. Hays’s in-service exposure to chlorinated solvents caused him to develop a rare disorder, the causative factors of which are poorly understood, and he had no known post-service exposure to potentially carcinogenic environmental hazards or relevant family history, it is not at least as likely as not that his disorder was linked to service.
1 The Court assumes for present purposes that the expert’s calculation of the disease attributable risk from the data collected in the NIH study is correct. The Board should note on remand that the appellant challenged that calculation in briefing and suggested that a proper calculation shows that she is certainly entitled to the benefits that she seeks.
5
III. CONCLUSION
After consideration of the appellant’s and the Secretary’s briefs and a review of the record,
the Board’s July 14, 2017, decision is VACATED and the matter on appeal is REMANDED for
further proceedings consistent with this decision.
DATED: December 26, 2018
Copies to:
Penelope E. Gronbeck, Esq.
VA General Counsel (027)

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