Veteranclaims’s Blog

February 25, 2020

Single Judge Application; VA failure to consider veteran’s description of symptoms during and after service; Buchanan v. Nicholson, 451 F.3d 1131, 1336 (Fed. Cir. 2006); Barr, 21 Vet.App. at 311; McKinney v. McDonald, 28 Vet.App. 15, 30 (2016); Dalton v. Nicholson, 21 Vet.App. 23, 40 (2007); examiner’s opinion was inconsistent with the Board’s explicit credibility finding;

Filed under: Uncategorized — Tags: — veteranclaims @ 7:35 pm

Excerpt from decision below:

“Although an examiner is not required to consider every piece of favorable evidence, the examiner must rely on an accurate factual history. Monzingo, 26 Vet.App. at 106 (“There is no requirement that a medical examiner comment on every favorable piece of evidence in a claims file.”); Reonal v. Brown, 5 Vet.App. 458, 460-61 (1993) (“An opinion based upon an inaccurate factual premise has no probative value.”). Additionally, VA examiners should consider a veteran’s description of symptoms during and after service, Barr, 21 Vet.App. at 311, and a medical opinion that fails to consider a veteran’s lay statements and relies on the absence of contemporaneous medical evidence to conclude that there is no link between a veteran’s in-service injury and current disability is inadequate, McKinney v. McDonald, 28 Vet.App. 15, 30 (2016) (holding that a “VA examiner’s failure to consider [the appellant’s] testimony when formulating her opinion render[ed] that opinion inadequate”); Dalton v. Nicholson, 21 Vet.App. 23, 40 (2007) (a medical examiner “cannot rely on the absence of medical records corroborating that injury to conclude that there is no relationship between the appellant’s current disability and his [or her] military service”).
It is apparent from the examiner’s rationale that she did not consider Mr. Richards’s lay statements in her opinion, which was solely focused on “objective evidence,” or lack thereof, to come to her conclusion. See R. at 715. There was no discussion of Mr. Richards’s lay statements
regarding continuity of his pain and other symptoms of the right knee. R. at 754. Although the examiner’s opinion did not rely solely on lack of contemporaneous medical evidence, it is clear
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that she “failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran’s] disability such that his claim of service connection could be proven.” Buchanan v. Nicholson, 451 F.3d 1131, 1336 (Fed. Cir. 2006); Barr, 21 Vet.App. at 311 (finding a medical opinion inadequate where the examiner “did not indicate whether he considered [the veteran’s] assertions of continued symptomology”).
Further, by failing to consider Mr. Richards’s lay statements regarding his right knee symptoms, the examiner’s opinion was inconsistent with the Board’s explicit credibility finding.

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 19-1031
RODERICK RICHARDS, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before BARTLEY, Chief Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
BARTLEY, Chief Judge: Veteran Roderick Richards appeals through counsel a December 3, 2018, Board of Veterans’ Appeals (Board) decision denying service connection for a right knee disability. Record (R.) at 4-7. For the reasons that follow, the Court will set aside the December 3, 2018, Board decision and remand the matter for further development and readjudication consistent with this decision.
I. FACTS
Mr. Richards served honorably in the U.S. Navy from September 1988 to September 2008. R. at 1251. In April 2005, he reported that he had been experiencing right knee pain for 2 weeks which “only happen[ed] while running” and was diagnosed with right knee mild patellar tendonitis. R. at 1761.
Mr. Richards has reported ongoing knee pain and symptoms since service, see R. at 705, and between 2012 and 2018 he was diagnosed with several right knee conditions, including osteoarthritis, calcium pyrophosphate dehydrate crystal deposition disease (CPPD), a lateral meniscal tear, and a lateral meniscal cyst, see R. at 752; 775; 814-15; 779-81; 781-83; 191-92. In May 2014, Mr. Richards filed a claim for service connection for right knee osteoarthritis, R. at
2
1258-61, which was denied by a VA regional office in August 2014, R. at 965-66. In September
2014, Mr. Richards filed a Notice of Disagreement. R. at 932.
Upon VA medical examination in January 2016, Mr. Richards reported that he had been
having pain in his right knee “ever since active duty,” which started when he injured his right knee
during physical training. R. at 705. The VA examiner noted “objective evidence” of a meniscus
tear, degenerative joint disease (DJD), and right knee CPPD, but determined that these conditions
were less likely as not incurred in service or caused by a right knee injury during service. R. at

  1. Regarding Mr. Richards’s in-service injury, the examiner noted that there is “objective
    evidence for patella tendonitis of the right knee in 2005″ but that “there is no objective evidence
    for chronic patellar tendonitis after active duty service or on this exam[;] thus[,] the condition is
    resolved without objective evidence for residual.” Id. The examiner also explained that there is “no
    objective evidence in current medical literature to support a nexus” between patella tendonitis and
    Mr. Richards’s current right knee conditions. Id.
    In the December 2018 decision on appeal, the Board denied service connection for a right
    knee condition, relying on the January 2016 VA medical opinion. R. at 6. The Board acknowledged a present disability and Mr. Richards’s 2005 in-service injury, but found that there was no link between them. R. at 6. Regarding Mr. Richards’s lay statements, the Board concluded that, although he is “certainly competent to observe pain and potentially other symptoms of the right knee,” he does not have the “training or credentials needed to competently diagnose a right knee disorder or opine as to its etiology.” R. at 7. This appeal followed.
    II. JURISDICTION AND STANDARD OF REVIEW
    Mr. Richards’s appeal is timely and the Court has jurisdiction to review the December 2018
    Board decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is
    appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
    The Board’s determinations regarding service connection and the adequacy of a medical
    examination or opinion are findings of fact subject to the “clearly erroneous” standard of review.
    38 U.S.C. § 7261(a)(4); see D’Aries v. Peake, 22 Vet.App. 97, 104 (2008); see also Ardison v.
    Brown, 6 Vet.App. 405, 407 (1994) (holding that the Board errs when it relies on an inadequate
    medical examination). “A factual finding ‘is “clearly erroneous” when although there is evidence
    3
    to support it, the reviewing court on the entire evidence is left with the definite and firm conviction
    that a mistake has been committed.'” Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992) (quoting
    United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
    The Board must support its material determinations of fact and law with adequate reasons
    or bases. 38 U.S.C. § 7104(d)(1); Pederson v. McDonald, 27 Vet.App. 276, 286 (2015) (en banc);
    Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990).
    To comply with this requirement, the Board must analyze the credibility and probative value of
    evidence, account for evidence it finds persuasive or unpersuasive, and provide reasons for its
    rejection of 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).
    When VA seeks to obtain a medical opinion, the Secretary must ensure that the opinion
    provided is adequate. Barr v. Nicholson, 21 Vet.App. 303, 311 (2007). A VA 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 disability will be a fully informed
    one’,” id. (quoting Ardison, 6 Vet.App. at 407), 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).
    III. ANALYSIS
    Mr. Richards argues that the Board erred in denying service connection for a right knee
    condition because it relied on an inadequate medical examination in coming to its decision.
    Appellant’s Brief (Br.) at 7. Specifically, he argues that the January 2016 examiner’s opinion lacked
    a reasoned medical rationale and the examiner failed to consider his lay statements. Id. He also
    argues that the Board failed to provide adequate reasons or bases for rejecting his lay statements
    regarding continued symptoms since service. Id. at 10. The Secretary urges the Court to affirm the
    Board decision, arguing that the January 2016 examiner’s opinion was adequate to adjudicate the
    claim for service connection and that the Board otherwise provided adequate reasons or bases for
    its adverse decision. Secretary’s Br. at 5-15.
    4
    Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet.App. 289, 293 (2013). In its decision, the Board acknowledged that Mr. Richards has a current disability and recognized the occurrence of an in-service injury, R.
    at 5-6, but concluded that there is no link between them, R. at 6. The Board relied on the January 2016 examiner’s opinion, which concluded that Mr. Richards’s current right knee conditions are less likely as not to have been incurred in service or caused by his right knee pain during service.
    Id. The Court agrees with Mr. Richards that the Board clearly erred when it relied on the 2016 VA examiner’s opinion.
    An adequate medical opinion must be based on an accurate factual premise and on
    consideration of the veteran’s prior medical history and examinations. Ardison, 6 Vet.App. at 407.
    Although an examiner is not required to consider every piece of favorable evidence, the examiner must rely on an accurate factual history. Monzingo, 26 Vet.App. at 106 (“There is no requirement that a medical examiner comment on every favorable piece of evidence in a claims file.”); Reonal v. Brown, 5 Vet.App. 458, 460-61 (1993) (“An opinion based upon an inaccurate factual premise has no probative value.”). Additionally, VA examiners should consider a veteran’s description of symptoms during and after service, Barr, 21 Vet.App. at 311, and a medical opinion that fails to consider a veteran’s lay statements and relies on the absence of contemporaneous medical evidence to conclude that there is no link between a veteran’s in-service injury and current disability is inadequate, McKinney v. McDonald, 28 Vet.App. 15, 30 (2016) (holding that a “VA examiner’s failure to consider [the appellant’s] testimony when formulating her opinion render[ed] that opinion inadequate”); Dalton v. Nicholson, 21 Vet.App. 23, 40 (2007) (a medical examiner “cannot rely on the absence of medical records corroborating that injury to conclude that there is no relationship between the appellant’s current disability and his [or her] military service”).
    It is apparent from the examiner’s rationale that she did not consider Mr. Richards’s lay statements in her opinion, which was solely focused on “objective evidence,” or lack thereof, to come to her conclusion. See R. at 715. There was no discussion of Mr. Richards’s lay statements regarding continuity of his pain and other symptoms of the right knee. R. at 754. Although the examiner’s opinion did not rely solely on lack of contemporaneous medical evidence, it is clear
    5
    that she “failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran’s] disability such that his claim of service connection could be proven.” Buchanan v. Nicholson, 451 F.3d 1131, 1336 (Fed. Cir. 2006); Barr, 21 Vet.App. at 311 (finding a medical opinion inadequate where the examiner “did not indicate whether he considered [the veteran’s] assertions of continued symptomology”).
    Further, by failing to consider Mr. Richards’s lay statements regarding his right knee symptoms, the examiner’s opinion was inconsistent with the Board’s explicit credibility finding.

    Although the Board concluded that Mr. Richards was not competent to diagnose or opine as to the
    etiology of his right knee disability, it conceded that he is “certainly competent and credible to
    observe pain and potentially other symptoms of the right knee.” R. at 7. Therefore, the examiner
    impermissibly failed to account for Mr. Richards’s competent and credible lay statements as to
    continuity of symptoms. See Dalton, 21 Vet.App. at 40 (finding that a medical opinion was
    inadequate where the examiner failed to render an opinion consistent with the Board’s explicit
    credibility finding); see also Buchanan, 451 F.3d at 1337 (“If the Board concludes that the lay
    evidence presented by a veteran is credible and ultimately competent, the lack of contemporaneous
    medical evidence should not be an absolute bar to the veteran’s ability to prove his [or her] claim
    of entitlement to disability benefits based on that competent lay evidence.”).
    The Court therefore finds that the Board clearly erred when it determined that the January
    2016 VA medical opinion was adequate. See 38 U.S.C. § 7261(a)(4); D’Aries, 22 Vet.App. at 103;
    Gilbert, 1 Vet.App. at 52. Accordingly, the Court will remand the matter for a new medical
    examination. Hicks v. Brown, 8 Vet.App. 417, 421 (2005) (holding that the Board’s reliance on an
    inadequate medical examination is cause for remand).
    Given this disposition, the Court need not address Mr. Richards’s additional reasons or
    bases arguments, which could not result in a remedy greater than remand. On remand, he is free
    to submit those arguments, as well as additional arguments and evidence, to the Board 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,
    6
    1 Vet.App. 394, 397 (1991), and that it must be performed in an expeditious manner in accordance
    with 38 U.S.C. § 7112.
    IV. CONCLUSION
    Upon consideration of the foregoing, the December 3, 2018, Board decision is SET ASIDE
    and the matter is REMANDED for further development and readjudication consistent with this
    decision.
    DATED: February 24, 2020
    Copies to:
    Paul W. Browning, Esq.
    VA General Counsel (027)

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