Veteranclaims’s Blog

June 11, 2020

Single Judge Application; Although there is no requirement that a medical opinion discuss all the evidence favorable to a claimant, the Board, in relying on an opinion that does not do so, must discuss any additional favorable evidence to comply with its duty to provide an adequate statement of reasons or bases for its decision. See Gabrielson v. Brown, 7 Vet.App. 36, 40 (1994); Dennis v. Nicholson, 21 Vet.App. 18, 22 (2007) (“The Court has 5 long held that merely listing the evidence before stating a conclusion does not constitute an adequate statement of reasons or bases.”);

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-4137
PAUL RUSHING, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MEREDITH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
MEREDITH, Judge: The appellant, Paul Rushing, through counsel appeals a June 12,
2019, Board of Veterans’ Appeals (Board) decision that denied entitlement to benefits for bilateral
hip disabilities. Record (R.) at 4-14. This appeal is timely, and the Court has jurisdiction to review
the Board’s 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). 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 on active duty in the U.S. Army from October 1982 to October 1985.
R. at 2766. His service medical records reveal that, in June 1983, he complained of pain in his
knees with associated pain in his hips, back, neck, shoulders, wrists, and elbows. R. at 3400. He
reported the pain began six months earlier; the diagnosis was a possible strain, and he was treated
with acetaminophen. Id. On the report of medical history that he completed at separation, the
appellant indicated the presence of “[s]wollen or painful joints.” R. at 1090. He further stated that
he was in good health, with the exception of a “bad knee.” Id.
2
Shortly after his discharge, the appellant filed a claim for benefits for arthritis of both hips.
R. at 3467-69. In January 1986, a VA examiner noted that, although the appellant sought benefits
for arthritis, he acknowledged that he had not received such a diagnosis. R. at 1095. The examiner
recorded the appellant’s report that his hip pain began 18 months earlier “without injury, when he
noted that prolonged standing and doing much running would, as an aftermath, cause bilateral deep
hip aching.” Id. The appellant stated that the pain lasted 2 to 3 hours and was relieved by rest. Id.
Physical examination revealed that “both hips flexed fully with no pain on either side, and both
externally rotated fully with no pain complaint.” R. at 1096. Further, “[f]ull internal rotation on
the left was said to hurt anteriorly in that hip but not on the right, and the abduction functions
caused no complaints.” Id. The examiner’s impression was as follows: “By history only, not
clinically apparent, and nonlimiting, description of bilateral hip aching and pain after excessive
activity[. X]-rays ordered.” Id. A handwritten notation on the examination report reflects: “No
positive x-ray findings reported, above areas. Appropriate lab studies [within normal limits].” Id.
A VA regional office (RO) denied the appellant’s claim in October 1986. R. at 3335. The appellant
did not appeal that decision.
In January 2009, the appellant sought to reopen his previously denied claim for benefits
for arthritis of the bilateral hips. R. at 3326-31. After many years of adjudication,1 the appellant
underwent a VA hip and thigh examination in June 2018. R. at 965-75. The examiner noted that
the appellant had suffered a left hip labral tear in 2005 that was repaired in 2006 and was unrelated
to service, as well as a June 1983 in-service bilateral hip strain that had resolved. R. at 965-66.
The examiner reviewed and summarized the appellant’s medical history, noting especially that a
February 1984 service medical record reflects treatment for low back pain with no indication of
hip pain and that the appellant’s separation examination and report of medical history “indicate no
abnormal hip condition.” R. at 966. After reviewing the appellant’s post-service medical history,
the examiner offered the following summary and conclusion:
[The appellant’s] current claimed hip condition is a new and separate condition, not
related to military service. [Service treatment records] show one visit on 06/29/83
where he presented with global pain in his hips, back, neck, shoulders, elbows,
1 The RO declined to reopen the appellant’s claim in August 2009, R. at 3145-49; the appellant filed a Notice
of Disagreement with that decision, R. at 3129, and later appealed to the Board, R. at 2842. In May 2018, the Board
remanded the claim for de novo review, including an examination, after finding that the appellant had successfully
rebutted the presumption of regularity with respect to the mailing of the October 1986 RO decision. R. at 1005-13.
The Board directed the examiner to opine as to whether a hip disorder was related to service, including the June 1983
in-service report of hip pain and the post-service January 1986 report of hip pain after activity. R. at 1013.
3
wrists, and knees. Exam[ination] was unremarkable. [Service treatment records]
are silent regarding any other visits or treatment for a right and left hip issue,
condition, or pain. No hip condition or issue was claimed on his [s]eparation
exam[ination,] suggesting resolution of a temporary condition and no indication of
an ongoing chronic condition. Bilateral hip X-rays on 01/29/86 were unremarkable.
Bilateral hip X-rays dated 6/21/2018 revealed normal examination[,] suggesting
resolution and no indication of an ongoing chronic condition. Private treatment
records indicate evidence of intercurrent on-the-job injury after military service.
The robust/preponderance of evidence DOES NOT suggest a nexus link between
[the appellant’s] bilateral hip condition and military service[;] therefore[,] it is less
likely than not due to, caused by, or incurred during military service.
R. at 975.
In the June 2019 decision on appeal, the Board relied on the January 1986 and June 2018
VA examination reports to deny the appellant’s claim for benefits for arthritis of the bilateral hips.
R. at 4-14. This appeal followed.
II. ANALYSIS
The appellant argues that the Board erred in relying on inadequate VA examinations and
failed to provide adequate reasons or bases for denying his claim. Appellant’s Brief (Br.) at 6-8.
The Secretary disputes these arguments and urges the Court to affirm the Board decision.
Secretary’s Br. at 4-15.
Under certain circumstances, and as part of its duty to assist claimants, VA must provide a
medical examination. See 38 U.S.C. § 5103A(d). “[O]nce the Secretary undertakes the effort to
provide an examination [or opinion,] . . . he must provide an adequate one.” Barr v. Nicholson,
21 Vet.App. 303, 311 (2007). A medical examination or 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, if any, in sufficient detail so that the Board’s
‘evaluation of the claimed disability will be a fully informed one,'” id. (quoting Ardison v. Brown,
6 Vet.App. 405, 407 (1994)) (internal quotation marks omitted), 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). The law does not
impose any reasons-or-bases requirements on medical examiners and the adequacy of medical
reports must be based upon a reading of the report as a whole. Id. at 105-06.
4
“Whether a medical [examination or] opinion is adequate is a finding of fact, which the
Court reviews under the ‘clearly erroneous’ standard.” D’Aries v. Peake, 22 Vet.App. 97, 104
(2008) (per curiam). 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 Gilbert v. Derwinski, 1 Vet.App.
49, 52 (1990). As with any material issue of fact or law, the Board must provide a statement of
the reasons or bases for its determination “adequate to enable a claimant to understand the precise
basis for the Board’s decision, as well as to facilitate review in this Court.” Allday v. Brown,
7 Vet.App. 517, 527 (1995); see 38 U.S.C. § 7104(d)(1); Gilbert, 1 Vet.App. at 56-57.
Here, the Board summarized the January 1986 and June 2018 VA examination reports and
noted the appellant’s 2006 on-the-job injury. R. at 8-10. The Board found the VA examiners’
opinions “clear and unequivocal[; and] based on the relevant information, including the
[appellant’s] [service treatment records], post-service treatment records, and relevant diagnostic
testing.” R. at 10. The Board further found that the examiners offered “logical” explanations that
“follow from the facts and information given.” Id. The Court finds this explanation inadequate.
In that regard, the appellant argues that the June 2018 VA examination is not adequate
because the examiner overlooked pertinent evidence, rendering his rationale insufficient.
Appellant’s Br. at 7-8. Specifically, he contends that the examiner failed to note his indication of
swollen or painful joints on his report of medical history at separation, as well as the fact that he
“continued to experience pain as reflected by his filing of a claim and complaining of bilateral hip
pain at the examination less than three months post[-]discharge.” Id. at 7 (emphasis omitted).
Although there is no requirement that a medical opinion discuss all the evidence favorable
to a claimant, the Board, in relying on an opinion that does not do so, must discuss any additional
favorable evidence to comply with its duty to provide an adequate statement of reasons or bases
for its decision. See Gabrielson v. Brown, 7 Vet.App. 36, 40 (1994)
; see also 38 U.S.C.
§ 7104(d)(1). In its recitation of the facts, the Board acknowledged the appellant’s report of
swollen or painful joints at separation, as well as his 1986 claim for benefits for hip pain and the
1986 examiner’s finding of hip pain following activity. R. at 8-9. In its analysis, however, the
Board did not reconcile that evidence with the June 2018 VA examiner’s conclusion, which the
Board described as indicating that the appellant’s in-service hip pain was acute and resolved prior
to discharge. R. at 10-11; see Dennis v. Nicholson, 21 Vet.App. 18, 22 (2007) (“The Court has
5
long held that merely listing the evidence before stating a conclusion does not constitute an
adequate statement of reasons or bases.”)
; Caluza v. Brown, 7 Vet.App. 498, 506 (1995) (holding
that the Board must analyze the credibility and probative value of the material evidence, account
for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its
rejection of any material evidence favorable to the claimant), aff’d per curiam, 78 F.3d 604 (Fed.
Cir. 1996) (table). Because the Board relied predominantly on the June 2018 examination report
to find that a current hip condition is not etiologically related to service, remand is warranted.
Given this disposition, the Court will not now address the remaining arguments and issues
raised by the appellant. See Quirin v. Shinseki, 22 Vet.App. 390, 395 (2009) (noting that “the
Court will not ordinarily consider additional allegations of error that have been rendered moot by
the Court’s opinion or that would require the Court to issue an advisory opinion”); Best v. Principi,
15 Vet.App. 18, 20 (2001) (per curiam order). On remand, the appellant is free to submit additional
evidence and argument on the remanded matter, including the specific arguments raised here on
appeal, and the Board is required to consider any such relevant evidence and argument. See Kay
v. Principi, 16 Vet.App. 529, 534 (2002) (stating that, on remand, the Board must consider
additional evidence and argument in assessing entitlement to the benefit sought); Kutscherousky
v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). The Court reminds the Board that
“[a] remand is meant to entail a critical examination of the justification for the decision,” Fletcher
v. Derwinski, 1 Vet.App. 394, 397 (1991), and the Board must proceed expeditiously, in
accordance with 38 U.S.C. § 7112.
III. CONCLUSION
After consideration of the parties’ pleadings and a review of the record, the Board’s June 12,
2019, decision is VACATED and the matter is remanded for further proceedings consistent with
this decision.
DATED: June 9, 2020
Copies to:
Ashley C. Gautreau, Esq.
VA General Counsel (027)

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