Veteranclaims’s Blog

June 23, 2020

Single Judge Application; 38 U.S.C. § 1153; Wagner, 370 F.3d at 1096; not objective evidence but clear and unmistakable evidence, either that the condition did not increase in disability during service or that any increase was due to the natural progress of the disease or injury. See 38 U.S.C. § 1153; see Wagner, 370 F.3d at 1096;

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 18-4105
THOMAS S. KAYSER, 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: Thomas S. Kayser appeals through counsel a December 12, 2017, Board
of Veterans’ Appeals (Board) decision that denied entitlement to VA benefits for acromegaly with
osteoarthritis of the body, as well as bilateral hip and shoulder disabilities as secondary to
acromegaly. 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 as the issue
is 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
December 12, 2017, decision and remand that matter for readjudication consistent with this
decision.
I. FACTS
Mr. Kayser served on active duty in the U.S. Army from September 1965 to July 1967,
including service in Vietnam. Record (R.) at 1698. His August 1965 entrance examination reflects
that his clinical evaluation was normal. R. at 1889-90. His separation examination again reflects a
normal clinical evaluation. R. at 1883.
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Mr. Kayser was diagnosed with acromegaly in 1987.1 R. at 1863. In May 2009, his treating
physician stated that he began developing facial features associated with acromegaly in 1963,
which progressed until 1970. Id. The physician noted that Mr. Kayser was 5’9″ tall and weighed
130 pounds in 1961 at age 18, and was 6’2.5″ tall and weighed 170 pounds at age 22 when he
entered the Army in 1965. Id. The physician stated that he was “confident that the clinical features
of acromegaly started to become apparent in 1963.” Id.
In April 2008, Mr. Kayser submitted a claim for several conditions, some of which were
granted in October 2008. R. at 3239-48; 2783-90. As part of his appeal of the claims that were
denied, Mr. Kayser submitted a statement that “[t]he unidentified disease of acromegaly both
exacerbated and accelerated the development of osteoarthritis in [his] body and directly
contributed to the d[e]bilitating physical damage to [his] joints, back and nerves radiating from
[his] back during [his] training and combat service in the Army.” R. at 2539.
A VA Regional Office (RO) treated this statement as a new claim related to his acromegaly
and denied benefits for acromegaly with osteoarthritis of the body, including his joints, back, and
nerves. R. at 2070-80. Mr. Kayser disagreed with that decision, asserting that he experienced
excessive growth due to acromegaly before service and that his condition was worsened by his
service. R. at 2065.
In August 2014, the Board remanded Mr. Kayser’s claims to provide him with a hearing.
R. at 1869-73. At an October 2015 hearing, Mr. Kayser reported that he had acromegaly when he
entered service, which caused cartilage in his joints to form differently. R. at 1655, 1672. He stated
that the high impact exercises he performed during service irreversibly destroyed this cartilage. R.
at 1672. He stated that he had hip and shoulder pain during service, but did not seek treatment
because he “assumed everyone hurt.” R. at 1673-74. Mr. Kayser’s son, a physical therapist, testified
that his father’s condition was worsened beyond its normal progression by service. R. at 1666.
1″Acromegaly” is “a chronic disease of adults caused by hypersecretion of growth hormone, characterized by
enlargement of many parts of the skeleton, especially distal portions such as the nose, ears, jaws, fingers, and toes.
Joint pain resulting from osteoarthritis occurs, and the joint spaces are increased because of cartilage proliferation.
Complications resulting from increased growth hormone secretion include insulin resistance and glucose intolerance,
airway obstruction, hypertension, cardiomyopathy, and abnormalities of calcium and bone metabolism.” DORLAND’S
ILLUSTRATED MEDICAL DICTIONARY 20 (32d ed. 2012).
3
The Board again remanded Mr. Kayser’s claim in May 2016 for VA to obtain a medical
opinion to determine whether his acromegaly preexisted service and whether it was aggravated
beyond its natural progression by service. R. at 1649. In January 2017, a VA examiner opined that
“[t]he objective evidence fails to support [that] the acromegaly [was] aggravated by active service.”
R. at 786. In July 2017, the Board again remanded Mr. Kayser’s claim for a new medical
examination, asking the examiner to opine as to the presumptions of soundness and aggravation.
R. at 175.
In August 2017, a VA examiner opined that the evidence of record clearly and
unmistakably showed that Mr. Kayser suffered from acromegaly before entering service. R. at 63.
The examiner based this opinion on reports of Mr. Kayser’s growth, letters from his treating
clinicians, and a review of the medical literature. Id. The examiner also opined that “the evidence
of record clearly and unmistakably (i.e., it is undebatable) shows that the preexisting acromegaly
was not aggravated by service or that any increase in disability was due to the natural progression
of the disorder.” R. at 65. In support, the examiner explained that Mr. Kayser denied any gains in
height or weight during service and that his in-service dental records did not show any dental or
jaw changes, including any changes to the spacing between his teeth, which the examiner stated
“would most likely have been identified.” Id. The examiner also concluded that Mr. Kayser’s
acromegaly was caused by a slow growing pituitary tumor, which was not changed by his service.
Id.
The RO continued to deny Mr. Kayser’s claim and sent him a letter stating that, before
returning his appeal to the Board, it was “giving him a period of time to respond with additional
comments or evidence,” and that he had 30 days from the date of the letter to respond. R. at 44.
Mr. Kayser, through his representative, waived the 30-day period, stating that he did not have any
additional evidence and wanted his case forwarded to the Board for consideration, including
consideration of any future evidence. R. at 43.
Mr. Kayser submitted additional evidence in September 2017. R. at 37–42. On September
27, 2017, the Board sent Mr. Kayser a letter informing him that his appeal had been returned to
the Board and “resumed its place on the docket.” R. at 35. The Board also stated that Mr. Kayser
had “90 days from the date of this letter or until the Board issues a decision in [his] appeal
(whichever comes first)” to submit additional argument or evidence. Id. On October 13, 2017, Mr.
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Kayser’s representative submitted a post-remand brief to the Board and asserted that the
preponderance of the evidence was in his favor. R. at 27.
On December 12, 2017, the Board issued the decision on appeal, denying entitlement to
VA benefits for acromegaly with osteoarthritis of the body, as well as bilateral hip and shoulder
disabilities as secondary to acromegaly. R. at 2-19. The Board found that Mr. Kayser’s acromegaly
clearly and unmistakably existed before service and that the condition clearly and unmistakably
was not aggravated by service. R. 12-13. The Board relied heavily on the August 2017 VA
examiner’s opinion to support its decision. R. at 19.
On appeal, Mr. Kayser argues that the Board violated his right to due process and this
Court’s caselaw when it decided his claim before the expiration of the 90-day period to submit
evidence. Specifically, he contends that 38 C.F.R. § 20.1304(a) (2019), which was cited by the
Board in its 90-day letter, is invalid. He also argues that the Board erred by relying on the January
and August 2017 VA examinations, which he contends are inadequate.
The Secretary responds that, under this Court’s recent decision in Williams v. Wilkie,
32 Vet.App. 46, 56 (2019), 38 C.F.R. § 19.38 (2019) applies to cases being returned to the Board
after a prior remand, and the Board’s citation to 38 C.F.R. § 20.1304 in the September 2017 letter
in this case was harmless. The Secretary also contends that the January and August 2017 VA
medical opinions were adequate, and, thus, the Board did not err by relying on them.
In his reply brief, Mr. Kayser acknowledges the Court’s recent holding in Williams and its
applicability to this appeal. He notes that Williams has been appealed to the Federal Circuit. Rather
than stay this case pending the outcome of Williams, he asks the Court to remand this matter based
on the Board’s reliance on inadequate medical opinions.
II. ANALYSIS
Where an injury or disease has been shown to have existed before service, it will be
considered to have been aggravated in service unless the Secretary establishes, by clear and
unmistakable evidence, either that it did not increase in disability during service or that any
increase was due to the “natural progress” of the disease or injury. 38 U.S.C. § 1153; see Wagner
v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 C.F.R. § 3.306 (2019); see also Jordan v.
Nicholson, 401 F.3d 1296, 1298 (Fed. Cir. 2005); Joyce v. Nicholson, 19 Vet.App. 36, 41 (2005).
5
Clear and unmistakable evidence means evidence that “cannot be misinterpreted and
misunderstood, i.e., it is ‘undebatable.'” Quirin v. Shinseki, 22 Vet.App. 390, 396 (2009) (quoting
Vanerson v. West, 12 Vet.App. 254, 258 (1998) (relying on the plain meaning of the phrase)).
“[T]he burden of proof remains with the Secretary, . . . it never shifts back to the claimant.” Horn
v. Shinseki, 25 Vet.App. 231, 235 (2012). With respect to aggravation, the Secretary can meet this
burden by showing clear and unmistakable evidence that the disability did not increase in severity
during service or that any increase was due to the natural progression of the disease. Id. The
Secretary may not rest on the notion that the record contains insufficient evidence of aggravation.
“VA must rely on affirmative evidence to prove that there was no aggravation.” Id. at 239-40.
“Once the Secretary undertakes the effort to provide an examination when developing a
service-connection claim, . . . he must provide an adequate one.” Barr v. Nicholson, 21 Vet.App.
303, 311 (2007). A medical examination is considered 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.'” Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007) (quoting Ardison v.
Brown, 6 Vet.App. 405, 407 (1994)). Additionally, the opinion must “support its conclusion with
an analysis that the Board can consider and weigh against contrary opinions.” Id. at 124-25; see
Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008) (noting that “a medical examination
report must contain not only clear conclusions with supporting data, but also a reasoned medical
explanation connecting the two”).
“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). 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); Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990). As always, the Board is
required to provide an adequate statement of reasons or bases for its decision. 38 U.S.C.
§ 7104(d)(1); 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 the evidence, account for the evidence it finds persuasive or unpersuasive, and
6
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).
The parties do not dispute that Mr. Kayser’s acromegaly preexisted his military service.
Instead, Mr. Kayser argues that the January and August 2017 VA medical opinions were
inadequate to support the Board’s conclusion that his condition did not worsen beyond its natural
progression during service. He argues that the January 2017 examiner failed to fully address
whether his acromegaly and related joint problems were aggravated by his service. He also states
that the August 2017 examiner failed to address whether his acromegaly was aggravated by his
service, focusing instead on whether he grew abnormally during service.
The Court agrees that the VA opinions relied on by the Board were inadequate. The January 2017 examiner did not use the correct standard for aggravation in assessing Mr. Kayser’s condition.
The examiner opined that “[t]he objective evidence fails to support the acromegaly [was]
aggravated by active duty service.” R. at 786. However, the standard in this case is whether there is clear and unmistakable evidence, either that the condition did not increase in disability during service or that any increase was due to the natural progress of the disease or injury. See 38 U.S.C. § 1153; see Wagner, 370 F.3d at 1096.
The January 2017 examiner also seemed to make a
credibility determination regarding Mr. Kayser’s statements that he did not play sports or engage
in strenuous exercise prior to service by noting that he went fishing and skeet shooting. See Owens
v. Brown, 7 Vet.App. 429, 433 (1995) (It is the responsibility of the Board, not the examiner, “to
assess the credibility and weight to be given to evidence.”). In this regard, the examiner focused
on non-service activities that may have contributed to Mr. Kayser’s joint problems, but did not
explain why his service could not have also aggravated his condition beyond its natural
progression.
The August 2017 examiner also did not provide an adequate medical opinion. Although
the examiner applied the correct standard, the examiner focused on whether Mr. Kayser physically
grew during service without opining as to any of the other aspects of his condition, including joint
pain during service and the effects of strenuous exercise on his condition. Without an opinion that
fully addresses these issues, the Court finds that the Board’s conclusion is not supported by the
evidence or adequate reasons or bases. Accordingly, remand is required for the Board to obtain a
new medical opinion. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (finding that remand is
7
appropriate where the Board incorrectly applied the law or failed to provide adequate reasons or
bases for its determinations, or the record is otherwise inadequate); Hicks v. Brown, 8 Vet.App.
417, 422 (1995) (an inadequate medical evaluation frustrates judicial review).
The Court will not at this time address any additional arguments raised by Mr. Kayser. See
Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam order) (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”).
On remand, he is free to submit additional evidence and argument, 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). Additionally, the Court has held 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). The Board must proceed expeditiously, in accordance with 38 U.S.C. § 7112
(requiring the Secretary to provide for “expeditious treatment” of claims remanded by the Court).
III. CONCLUSION
Upon consideration of the foregoing analysis, the record of proceedings before the Court,
and the parties’ pleadings, the December 12, 2017, Board decision is VACATED and that matter
is REMANDED for readjudication consistent with this decision.
DATED: June 22, 2020
Copies to:
Meghan Gentile, Esq.
VA General Counsel (027)

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