Veteranclaims’s Blog

January 11, 2019

Single Judge Application; speculative medical opinion; exposure to fuel and brain tumors; Jones v. Shinseki, 23 Vet.App. 382, 390 (2010); Stefl, 21 Vet.App. at 124-25;

Filed under: Uncategorized — Tags: — veteranclaims @ 1:40 am

Excerpt from decision below:

” Here, Mr. Marte-Mendez challenges Dr. Graf’s explanation for discounting the articles
cited by Dr. Shoag. Appellant’s Brief (Br.) at 7-9. In her July 2017 opinion, Dr. Graff explained
that, although thought provoking, “[t]here is a huge issue with the medical literature not containing negative studies, but it is very likely that these associations were examined by others and that there was no correlation between exposure to fuel and brain tumors.” R. at 144 (emphasis in original).
The veteran argues that Dr. Graff’s speculation—that it is very likely that others had studied exposure to fuel and found no association to brain tumors—flouts our requirement from Jones.
Appellant’s Br. at 8. He faults Dr. Graff for failing to point to any negative studies and instead speculating that they exist. Id.

4
In response, the Secretary relies on a list of sources following Dr. Graff’s opinion.
Secretary’s Br. at 10. On this list appears a citation to Judith A. Schwartzbaum et al., Epidemiology of Brain Tumors, Neurologic Clinics, Nov. 1, 2007; Vol. 25, Iss. 4, Pgs 867-90. R 143. The Secretary characterizes this as a negative study and maintains that the veteran’s argument about the July 2017 opinion is unavailing because the examiner provided this study rather than merely speculating. Secretary’s Br. at 10.
But, the problem with the Secretary’s argument is that we do not know if Dr. Graff considered this study to be the kind of negative studies she thought were likely to exist. If this is a negative study that found “no correlation between exposure to fuel and brain tumors” then why did Dr. Graff speculate that such studies were “very likely” to exist? Why not simply cite the study?
Without an explanation, the Court can only guess.
With only her speculation that such studies “very likely” have been done, it is difficult to
see how Dr. Graff’s explanation adequately informed the Board or how the Board could evaluate the opinion without a citation against the positive studies cited by Drs. Shoag and Cassano.
See Stefl v, 21 Vet.App. at 124-25. It is simply unclear if Dr. Graff obtained or considered such negative studies, or only speculated that they must exist. “When the record leaves this issue in doubt, it is
the Board’s duty to remand for further development.” Jones, 23 Vet.App. at 390. And thus, the Court will remand for the Board to obtain an addendum or new opinion.1″

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

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 18-0213
CARLOS A. MARTE-MENDEZ, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before FALVEY, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
FALVEY, Judge: Army veteran Carlos A. Marte-Mendez appeals through counsel a
December 26, 2017, Board of Veterans’ Appeals decision denying service connection for a brain
tumor. The appeal is timely; the Court has jurisdiction to review the Board decision; and singlejudge disposition is appropriate. See 38 U.S.C. §§ 7252(a), 7266(a); Frankel v. Derwinski,
1 Vet.App. 23, 25-26 (1990).
We are asked to decide whether VA provided an adequate medical opinion and whether the Board provided adequate reasons or bases for relying on the opinion to deny service
connection. The Court will remand the December 2017 Board decision because the VA examiner’s speculation that there likely were negative studies finding no association between exposure to fuel and brain tumors makes her opinion inadequate.
I. RELEVANT BACKGROUND
By way of background, Mr. Marte-Mendez served on active duty from January to August
1995 and from February 2000 to February 2004, including service in Iraq. After being diagnosed
with a brain tumor, he filed a claim for service connection in October 2008. As part of his claim,
2
Mr. Marte-Mendez seeks service connection for his brain tumor, which he contends results from
environmental hazards he was exposed to in Iraq. R. at 2346-48.
Following a denial of his claim at the regional office, he appealed to the Board and submitted a June 2014 positive nexus opinion by Dr. Mark Shoag. R. at 872-874. Dr. Shoag opined that exposure to burn pits, smoke from oil fires, and other toxins and chemicals was at least as
likely as not the cause of the veteran’s brain tumor. Id. In support of his opinion, Dr. Shoag cited several research articles. Id.
The Board denied Mr. Marte-Mendez’s claim without obtaining a VA medical opinion in
a May 2016 decision. R. at 823-46. Mr. Marte-Mendez appealed to this Court, leading to an
October 2016 joint motion for partial remand where the parties agreed that the Board must
determine whether a medical examination was necessary. R. at 818.
Subsequently, the Board determined that one was necessary and obtained the VA medical
opinion in July 2017. R. 143-45. In this opinion, Dr. Julie N. Graff opined that chemical exposure
was less likely than not the reason for the veteran’s brain tumor. In her July 2017 opinion, Dr. Graff explained that the only known factor associated with the development of brain tumors is ionizing radiation and that the studies cited by Dr. Shoag, although thought provoking, were insufficient to support a conclusion that chemical exposure caused brain tumors and that “it is very likely that these associations were examined by others and that there was no correlation between exposure to fuel and brain tumors.” R. at 144 (emphasis in original).
After the July 2017 VA opinion, Mr. Marte-Mendez obtained an opinion from Dr. Victoria
A. Cassano, who concluded that burn pits and oil fume exposure caused Mr. Marte-Mendez’s
cancer. R. at 54-70. She explained that it was impossible to pinpoint the exact chemical exposure responsible, but noted that the veteran had exposure to multiple chemicals and pollutants that have been associated with development of brain tumors. Id. In support of her opinion, she cited DOD reports, VA training materials, and other scientific studies. Id.
In December 2017, the Board again denied service connection for a brain tumor. R. 2-13.
The Board assigned greatest probative weight to the July 2017 opinion and found that exposure in
service did not cause Mr. Marte-Mendez’s brain tumor. R. at 2.
3
II. ANALYSIS
Considering Mr. Marte-Mendez’s appeal requires the Court to review the adequacy of the
VA medical opinion. “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 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.
With this standard of review in mind, we consider what constitutes an adequate medical
opinion. We have held that medical opinions are adequate “when they sufficiently inform 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). The opinion must “support its
conclusion with an analysis that the Board can consider and weigh against contrary opinions.” Stefl v. Nicholson, 21 Vet.App. 120, 124-25 (2007). This is because “most of the probative value of a
medical opinion comes from its reasoning” and so, an examination or opinion “is [not] entitled to
any weight . . . if it contains only data and conclusions.” Nieves-Rodriguez v. Peake,
22 Vet.App. 295, 304 (2008).
As we explained in Jones v. Shinseki, ” it must be clear, from either the examiner’s
statements or the Board decision, that the examiner has indeed considered all procurable and assembled data, by obtaining all tests and records that might reasonably illuminate the medical analysis” and that “[w]hen the record leaves this issue in doubt, it is the Board’s duty to remand for further development. ” 23 Vet.App. 382, 390 (2010).
Here, Mr. Marte-Mendez challenges Dr. Graf’s explanation for discounting the articles cited by Dr. Shoag. Appellant’s Brief (Br.) at 7-9. In her July 2017 opinion, Dr. Graff explained that, although thought provoking, “[t]here is a huge issue with the medical literature not containing negative studies, but it is very likely that these associations were examined by others and that there was no correlation between exposure to fuel and brain tumors.” R. at 144 (emphasis in original).
The veteran argues that Dr. Graff’s speculation—that it is very likely that others had studied exposure to fuel and found no association to brain tumors—flouts our requirement from Jones.
Appellant’s Br. at 8. He faults Dr. Graff for failing to point to any negative studies and instead speculating that they exist. Id.
4
In response, the Secretary relies on a list of sources following Dr. Graff’s opinion.
Secretary’s Br. at 10. On this list appears a citation to Judith A. Schwartzbaum et al., Epidemiology of Brain Tumors, Neurologic Clinics, Nov. 1, 2007; Vol. 25, Iss. 4, Pgs 867-90. R 143. The Secretary characterizes this as a negative study and maintains that the veteran’s argument about the July 2017 opinion is unavailing because the examiner provided this study rather than merely speculating. Secretary’s Br. at 10.
But, the problem with the Secretary’s argument is that we do not know if Dr. Graff considered this study to be the kind of negative studies she thought were likely to exist. If this is a negative study that found “no correlation between exposure to fuel and brain tumors” then why did Dr. Graff speculate that such studies were “very likely” to exist? Why not simply cite the study?
Without an explanation, the Court can only guess.
With only her speculation that such studies “very likely” have been done, it is difficult to
see how Dr. Graff’s explanation adequately informed the Board or how the Board could evaluate the opinion without a citation against the positive studies cited by Drs. Shoag and Cassano. See Stefl v, 21 Vet.App. at 124-25. It is simply unclear if Dr. Graff obtained or considered such negative studies, or only speculated that they must exist. “When the record leaves this issue in doubt, it is the Board’s duty to remand for further development.” Jones, 23 Vet.App. at 390. And thus, the Court will remand for the Board to obtain an addendum or new opinion.1

Because the claim is being remanded, the Court need not address Mr. Marte-Mendez’s
additional arguments that would lead to no broader remedy than a remand. 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.”). In pursuing his claim on remand, he will be free to submit additional argument and
evidence, including arguments raised in his briefs, and has 90 days to do so from the date of the
postremand notice VA provides. See Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per
curiam order); see also Clark v. O’Rourke, 30 Vet.App. 92, 97 (2018). The Board must consider
1 The Court notes that, at best, the Secretary’s explanation based on Dr. Graff’s citations amounts to post hoc
rationalization, which the Court cannot accept and would result in a reasons or bases remand even if the Court found
the examination adequate. See Martin v. Occupational Safety & Health Review Comm’n, 499 U.S. 144, 156 (1991)
(“[A]gency ‘litigating positions’ are not entitled to deference when they are merely appellate counsel’s ‘post hoc
rationalizations’ for agency action, advanced for the first time in the reviewing court.”); Evans v. Shinseki, 25 Vet.App.
7, 16 (2011) (“[I]t is the Board that is required to provide a complete statement of reasons or bases, and the Secretary
cannot make up for its failure to do so.”).
5
any such evidence or argument submitted. See Kay v. Principi, 16 Vet.App. 529, 534 (2002); see
also Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991) (“A remand is meant to entail a critical
examination of the justification for the decision.”).
III. CONCLUSION
On consideration of the foregoing, the Board’s December 26, 2017, decision is SET ASIDE
and the matter is REMANDED for further proceedings.
DATED: January 8, 2019
Copies to:
Shannon L. Brewer, Esq.
VA General Counsel (027)

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