Veteranclaims’s Blog

August 21, 2021

Single Judge Application; In Rizzo v. Shinseki, the U.S. Court of Appeals for the Federal Circuit previously held that VA need not affirmatively establish an examiner’s competency. 580 F.3d 1288, 1291 (Fed. Cir. 2009), overruled by Francway v. Wilkie, 940 F.3d 1304, 1308 (Fed. Cir. 2019) (finding that the presumption of competency requires nothing more than is required for veterans in other contexts—i.e., simply that the veteran raise the issue—and that, once the veteran raises such a challenge, the presumption has no further effect and VA must satisfy its burden of persuasion as to the examiner’s qualifications). But, to the extent that Francway did not overrule the holding in Rizzo, the issue here is not the examiner’s competency; In addition, in Sickels v. Shinseki, the Federal Circuit found unpersuasive the veteran’s argument—that he should not be required to assert that the examiner was insufficiently informed—because, like in Rizzo, he had not raised that concern before the Board. 643 F.3d 1362, 1366 (Fed. Cir. 2011) (finding that an examiner’s competency and whether the examiner was sufficiently informed were similar in that a veteran must challenge both and, because Mr. Sickels had not done so, the Board was not required to address the issue of whether the examiner understood the adjudicator’s instructions);

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-1993
JACK T. BREWSTER, 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: Marine Corps veteran Jack T. Brewster appeals through counsel a
December 3, 2018, Board of Veterans’ Appeals decision denying service connection for an
acquired psychiatric disorder, including post-traumatic stress disorder (PTSD) and major
depressive disorder, and for a skin rash, including porokeratosis (skin condition), including as
secondary to the acquired psychiatric disorder. The appeal is timely; the Court has jurisdiction to
review the Board decision; and single-judge 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 the Board erred in applying the presumption of regularity
when assessing the adequacy of a June 2018 VA examination. Because the Board provided
inadequate reasons or bases for applying the presumption and for ultimately denying the acquired
psychiatric disorder claim, and because the skin rash claim is sufficiently intertwined with the
acquired psychiatric disorder claim, the Court will set aside the Board decision and remand those
matters.
I. FACTS
Mr. Brewster served on active duty from December 1993 to October 1997. Record (R.) at 531. He is service connected for right knee arthritis, limited extension and instability of the right
2
knee associated with arthritis, and bilateral tinnitus. See R. at 419-420. In November 2010, the
veteran filed claims for service connection for an acquired psychiatric condition and a skin rash.
R. at 4549-50. After several VA proceedings, in April 2015 the Board remanded those claims,
instructing the regional office (RO) to schedule an examination to determine whether Mr. Brewster
had a current mental health condition and, if so, whether it was related to service or his serviceconnected
right knee disability. R. at 3545-46. The Board also acknowledged the veteran’s
statement that his skin disorder was due to medication prescribed for the psychiatric disorder, noted
some evidence regarding the skin disorder, and determined that the skin disorder claim was
inextricably intertwined with the psychiatric disorder claim. R. at 3543-44 (citing Harris v
Derwinski, 1 Vet App 180, 183 (1991), for the proposition that, when a claim is inextricably
intertwined with another claim, the claims must be adjudicated together).
In June 2018, while conducting the PTSD portion of a VA examination, an examiner noted
a major depressive disorder diagnosis, but opined that this condition was not caused by or incurred
in service. R. at 110. Rather, the examiner stated that the condition “may be” “(at least a 50%
likelihood)” secondary to the veteran’s seizure disorder. Id. When the examiner asked Mr. Brewster
about his relationships with others, the veteran reported that he enjoyed playing golf with friends.
R. at 112. The examiner’s report stated that major depressive disorder was not related to service
and more likely related to his seizure disorder. R. at 119. The examiner also concluded that the
psychiatric condition was less likely related to the service-connected right knee condition because
the veteran did not report any emotional distress in relation to his knee and he “did not report a
sufficient loss of physical functioning via the knee (plays golf) to result in causing a secondary
mental health problem.” R. at 121.
The RO requested an addendum opinion to address whether the veteran’s major depressive
disorder was aggravated by the service-connected right knee disability. R. at 78–79. Later in June
2018, the same examiner concluded that the condition was not likely aggravated by the serviceconnected
right knee disability because the veteran “did not report any connection between his
depressed thoughts and feeling and his knee.” R. at 70.
In October 2018, Mr. Brewster argued before the Board that a clarifying opinion was
necessary because, “although the examiner indicated that the veteran did not describe emotional
distress secondary to the knee, it is not clear whether the [veteran] was asked about his knee
functioning.” R. at 21. The veteran asserted that the examiner focused on the fact that he played
3
golf to conclude that he did not have a significant knee condition; but, that a January 2018 medical
record noted that Mr. Brewster reported “catching/popping” over the past three months that
worsened with stair climbing and pain due to his knee condition. Id.
In December 2018, the Board denied service connection for an acquired psychiatric
disorder and a skin rash. R. at 4. As relevant to the appeal here, the decision stated:
The Board acknowledges the Veteran’s contention that a clarifying opinion is
needed, in relevant part, because it is not clear that the Veteran was asked about his
knee functioning. The Court has ruled that there is a “presumption of regularity”
under which it is presumed that VA examiners and other government employees
have properly discharged their official duties. Clear evidence to the contrary is
required to rebut the presumption of regularity. Ashley v. Derwinski, 2 Vet. App.
307, 308 (1992) (citing United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-
15 (1926)). The Board has reviewed the VA examination report and has found no
clear evidence that the VA examiner did not conduct the examination in an
appropriate manner. The fact that the examiner noted that the Veteran plays golf is
evidence that she inquired as to his physical activities and functioning.
Additionally, the VA examiner noted that she reviewed the Veteran’s claims file.
As such, it is presumed she reviewed any relevant VA examinations and other
medical records concerning the functioning of his right knee in rendering her
opinion, if needed. In sum, the Board finds that a clarifying opinion is not needed.
R. at 9 (citation omitted).
II. ANALYSIS
Mr. Brewster argues that the Board erred by relying on the presumption of regularity to
assess the adequacy of the June 2018 VA examination. Appellant’s Brief (Br.) at 9-13. The
Secretary disputes the veteran’s arguments, asserting that “the nature of the challenge—that the
examiner did not adequately inform herself before offering an opinion—is the kind of routine
requirement to which the presumption properly applies.” Secretary’s Br. at 12-15.
There is a presumption of regularity that public officers perform their duties “‘correctly,
fairly, in good faith, and in accordance with law and governing regulations.'” Alaska Airlines, Inc.
v. Johnson, 8 F.3d 791, 795 (Fed. Cir. 1993) (quoting Parsons v. United States, 670 F.2d 164, 166
(1982)). In applying the presumption of regularity, courts presume that, in the absence of clear
evidence to the contrary, public officials have properly discharged their official duties. See Ashley,
2 Vet.App. at 310.
However, the cases on which the Secretary relies to support his contention that the
presumption of regularity applies to the way in which an examiner conducted an examination are
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not sufficiently analogous to Mr. Brewster’s situation. In Rizzo v. Shinseki, the U.S. Court of Appeals for the Federal Circuit previously held that VA need not affirmatively establish an examiner’s competency. 580 F.3d 1288, 1291 (Fed. Cir. 2009), overruled by Francway v. Wilkie, 940 F.3d 1304, 1308 (Fed. Cir. 2019) (finding that the presumption of competency requires nothing more than is required for veterans in other contexts—i.e., simply that the veteran raise the issue—and that, once the veteran raises such a challenge, the presumption has no further effect and VA must satisfy its burden of persuasion as to the examiner’s qualifications). But, to the extent
that Francway did not overrule the holding in Rizzo, the issue here is not the examiner’s competency.
In addition, in Sickels v. Shinseki, the Federal Circuit found unpersuasive the veteran’s argument—that he should not be required to assert that the examiner was insufficiently informed—because, like in Rizzo, he had not raised that concern before the Board. 643 F.3d 1362, 1366 (Fed. Cir. 2011) (finding that an examiner’s competency and whether the examiner was sufficiently informed were similar in that a veteran must challenge both and, because Mr. Sickels had not done so, the Board was not required to address the issue of whether the examiner understood the adjudicator’s instructions).
Here, in October 2018, Mr. Brewster argued before the Board that a
clarifying opinion was necessary because it was not clear whether the June 2018 examiner asked
him about his knee functioning. R. at 21 (referencing a January 2018 medical record noting
“catching/popping” that worsened with stair climbing and pain due to his knee condition as support
that he had impaired knee functioning).
Without an adequate statement from the Board explaining why it applied the presumption
of regularity to find the June 2018 VA examination adequate, judicial review is thus frustrated.
See Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990) (the Board must support its determination
with an adequate statement of reasons or bases that enables the claimant to understand the precise
basis for that determination and facilitates review in this Court); see also 38 U.S.C. § 7104(d)(1).
The Secretary argues that, in addition to the Board finding no clear evidence that the
examination was conducted in an inappropriate manner—i.e., applying the presumption of
regularity standard—it also found evidence that the examiner had inquired as to the functioning of
Mr. Brewster’s knee because she noted that he played golf. Secretary’s Br. at 14. But, even if that
latter analysis took place outside of the presumption of regularity scope, without more of an
explanation from either the Board or the Secretary, the Court is unable to discern how a question
5
regarding the veteran’s relationships with others in the context of a PTSD examination, which
revealed that he enjoyed playing golf with friends, R. at 112, adequately addressed whether Mr.
Brewster experienced impaired knee functioning. See Gilbert, 1 Vet.App. at 56-57.
Finally, although the examiner noted that she reviewed the veteran’s claims file and the
Board in turn found that it was thus “presumed she reviewed any relevant VA examinations and
other medical records concerning the functioning of his right knee in rendering her opinion, if
needed,” R. at 9, neither the examiner nor the Board addressed any other evidence regarding his
knee, including the January 2018 medical record Mr. Brewster referenced in his argument before
the Board. See R. at 21; Monzingo v. Shinseki, 26 Vet.App. 97, 105 (2012) (although a medical
examination need not “explicitly lay out the examiner’s journey from the facts to a conclusion” to
be adequate, the Court must be able to discern the examiner’s reasoning to sanction the Board’s
reliance on it); Caluza v. Brown, 7 Vet.App. 498, 506 (1995) (the Board must provide reasons for
rejecting material evidence favorable to the claimant), aff’d per curiam, 78 F.3d 604 (Fed. Cir.
1996) (table).
Accordingly, remand is warranted for the Board to properly assess the adequacy of the
June 2018 VA examination. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (remand is the
appropriate remedy where the Board incorrectly applied the law or failed to provide an adequate
statement of reasons or bases for its determinations or where the record is otherwise inadequate).
Given this disposition, the Court need not address Mr. Brewster’s additional arguments regarding
an acquired psychiatric disorder, which could not result in a remedy greater than remand. See
Best v. Principi, 15 Vet.App. 18, 19 (2001).
In addition, because the skin rash claim is sufficiently intertwined with the acquired
psychiatric disorder claim—given that the veteran contends that the medication prescribed for his
psychiatric disorder causes the skin condition—the Court will also remand that claim. See Smith
v. Gober, 236 F.3d 1370, 1372 (Fed. Cir. 2001) (when “two claims are sufficiently intertwined . . .
they should be considered together”); R. at 3543-44 (in April 2015, the Board determined that the
two claims were inextricably intertwined); see also Secretary’s Br. at 16 (the only argument that
the Secretary offers regarding Mr. Brewster’s assertion that these two claims are intertwined and
should be remanded together is that, because the Secretary maintains that the veteran is properly
not service connected for an acquired psychiatric disorder and the skin rash is claimed as secondary
to that disorder, the Board also correctly denied service connection for a skin rash).
6
Mr. Brewster is free on remand to submit additional evidence and argument, including
those raised in his briefs, and he has 90 days from the date of the postremand notice VA provides
to do so. 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 any such evidence or
argument submitted. See Kay v. Principi, 16 Vet.App. 529, 534 (2002); see also 38 U.S.C. § 7112
(a remand must be performed in an expeditious manner); 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 December 3, 2018, Board decision denying service
connection for an acquired psychiatric disorder and a skin rash, including as secondary to the
acquired psychiatric disorder, is SET ASIDE and the matters are REMANDED.
DATED: June 5, 2020
Copies to:
Ralph J. Bratch, Esq.
VA General Counsel (027)

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