Veteranclaims’s Blog

October 30, 2021

Single Judge Application; reason and bases; Dela Cruz v. Principi, 15 Vet.App. 143, 149 (2001); failure discuss all the evidence favorable to a claimant; Gabrielson v. Brown, 7 Vet.App. 36, 40 (1994); the Board cannot “evade [its] statutory responsibility [to state the reasons or bases for its conclusions] merely by adopting [a medical opinion] as its own” where the medical opinion “fails to discuss all the evidence which appears to support [the] appellant’s position.” Gabrielson v. Brown, 7 Vet.App. 36, 40 (1994). Gabrielson does not require that a medical opinion discuss all the evidence favorable to a claimant, only that the Board, in relying on an opinion that does not do so, discuss any additional favorable evidence to comply with its duty to provide an adequate statement of reasons or bases for its decision. See id.; 38 U.S.C. § 7104(d)(1); see also Dela Cruz v. Principi, 15 Vet.App. 143, 149 (2001) (holding that, although the Board must consider all of the evidence of record, “a discussion of all evidence is not required when . . . the Board has supported its decision with thorough reasons or bases regarding the relevant evidence”);

Designated for electronic publication only
No. 20-1585
Before MEREDITH, Judge.
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
MEREDITH, Judge: The appellant, Carlos Torres, Jr., through counsel appeals a
December 3, 2019, Board of Veterans’ Appeals (Board) decision that denied entitlement to benefits
for a low back disorder. Record (R.) at 4-17. The Board remanded the matters of entitlement to
benefits for bilateral hearing loss and for peripheral neuropathy of the upper and lower extremities
as secondary to service-connected diabetes mellitus, type 2. The remanded matters are not before
the Court. See Breeden v. Principi, 17 Vet.App. 475, 478 (2004) (per curiam order) (a Board
remand “does not represent a final decision over which this Court has jurisdiction”); Hampton v.
Gober, 10 Vet.App. 481, 483 (1997) (claims remanded by the Board may not be reviewed by the
Court). 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 denying entitlement to benefits for a low back disorder and remand the matter for
further proceedings consistent with this decision.
The appellant served on active duty in the U.S. Army from April 1967 to April 1969,
including combat in the Republic of Vietnam. R. at 2942. Upon entry into and separation from
service, an examiner indicated that the appellant’s spine and musculoskeletal system were
clinically normal. R. at 2102, 2107. The examiner noted “no medical complaint at this time” in the
appellant’s March 1969 separation examination report. R. at 2098; see R. at 2137 (documenting
the appellant’s acknowledgment that he underwent his separation examination more than 3 days
prior to his departure from his place of separation but indicating that there had been no changes in
his medical condition).
Years later, in March 1990, a private examiner documented osteoarthritis of the appellant’s
lumbar spine. R. at 2610. Private medical notes show that the appellant’s low back “cont[inued] to
bother him” in November 1993, and he experienced frequent pain in October 1994. R. at 2598-99.
He reported in May 1995 to his private physician that he “was sitting on [an] armor[ed] carrier in
[Vietnam] and was blown up by a land mine.” R. at 2597. April 1999 and January 2001 adult health
history forms reveal that he denied a history of back problems, R. at 2611-12, but another January
2001 private medical note reveals that he reported back pain for the prior 3 to 4 days and off and
on over the prior month, R. at 2588. A private physician assessed a “[l]umbar sprain/strain” in
September 2003, R. at 3048, and an imaging report from September 2008 revealed “[m]ild
degenerative disease of lower lumbar segments,” R. at 3099.
The appellant applied for benefits for a back disability in December 2009, and a VA
regional office (RO) denied the claim. R. at 2954-57, 2972-77, 3033-47. The appellant disagreed
with the denial and submitted a statement asserting that, in March 1968, a mine destroyed his
armored personnel carrier, he was sitting on top when the carrier hit the mine, and he “went up in
the air and landed [o]n his butt.” R. at 2935; see R. at 2940-41. VA afforded him an examination
in December 2011; the examiner diagnosed low back pain but remarked that the “[s]eparation
examination does not support reporting of or treatment of a service-[]connected back injury or
condition.” R. at 2155; see R. at 2149-55. The RO continued the denial of benefits, and the
appellant appealed to the Board, stating that the incident with the land mine “caused him to be
almost immobile for 3 days” and that “[t]he exit exam[ination] for this veteran was to state that
you were okay[] so they would discharge you versus holding you back for in[-]depth medical
studies.” R. at 2841; see R. at 2891-910, 2841-42. He testified before a decision review officer in
October 2012 that his degenerative back arthritis “happened after [he] got out of the service,” but
that it was related to the in-service land mine incident. R. at 2727-28; see R. at 2722-35.
He reported to a private physician in April 2013 that he began experiencing “tingling in the
front of his [left] thigh” over a year ago and that he “was walking 5 miles every day this winter.”
R. at 2568; see R. at 2568-69. In February 2014, he asserted in his VA Form-9 that he had “had
problems since the explosion,” R. at 2670, and, in April 2014, he testified before a veterans law
judge that he sought treatment for his back within 1 year of separation from service, R. at 2636;
see R. at 2632-47. The Board subsequently remanded the claim for a supplemental medical
opinion, which VA provided in March 2015. R. at 2077-78, 2376-86. The physician opined that
the appellant’s “c[]omplaints of low back pain were not incurred in or caused by military service.”
R. at 2078; see R. at 2077-78. After the Board again remanded the claim for an addendum medical
opinion, R. at 1404-09, the same physician provided another negative nexus opinion in March
2017, R. at 1237-39.
The following year, the appellant’s representative provided a statement to the Board, in
which he contended that the appellant did not report any back problems at his separation
examination because he did not wish to remain in the Army on a medical hold, especially given
the location where he was stationed. R. at 809. Additionally, he asserted that the appellant’s back
problems may be due to the weight of his combat load—he “would have carried at least 30% of
his bodyweight at all times, with 40 to 70% more likely as one took all the ammunition and water
possible.” R. at 810; see R. at 809-10.
In April 2018, another VA physician provided an addendum opinion. R. at 732-34; see
R. at 801-06 (Feb. 2018 Board remand for addendum medical opinion). The physician opined that
“the condition claimed was less likely than not (less than 50% probability) incurred in or caused
by the claimed in-service injury, event or illness.” R. at 734. For rationale, she provided the
[The appellant] indicates that he had an acute injury in Vietnam to the back when
the carrier he was on was blown up. He noted in 2011 that he landed on his tail
bone and the pain he had was in that area. It is plausible that an acute injury like
this occurred and is presumed to have occurred. [The appellant] had a separation
phys[ic]al on 3/10/1969. At that time[,] he noted his health as good and marks “no”
to back trouble of any kind. The physic[i]an notes “no medical complaints at this
time” and physical exam[ination] of the spine is noted to be normal. This implies
the acute condition resolved. There is no medical evidence that [the appellant] was
seen for a spine condition one year after service. Again[,] this implies the acute
condition resolved.
After service, [the appellant] was able to work a physically demanding job. He was
able to do activities such as hunting and fishing. This implies no functional loss of
the back. There is no medical evidence of a back condition until March 1990, 21
years after service, when it is noted he has osteoarthritis of the lumbar spine though
there are no confirmatory x-rays. It is noted in 1994 that [lumbosacral] x-rays were
normal. In 1996, 27 years after service, [a computerized tomography] scan is noted
to have degenerative arthritis of the SI joints. This would not be unusual in a person
[the appellant’s] age and is part of the aging process. In 2008, 39 years after service,
he is noted to have spondylosis in the lumbar spine and minor wedge compression
of T12. Sacrum and coccyx (tailbone) were normal. By 2011, 42 years after service,
[he] is noted to have degenerative disc disease of the lumbar spine. Again, sacrum
and coccyx were normal.
Although [the appellant] is presumed to have an injury to his back while in
Vietnam, no permanent residual or chronic disability subject to service connection
is shown by the service medical records or demonstrated by evidence following
service. [The appellant] has degenerative changes of the lumbar spine.
Degenerative changes would not be unusu[a]l in a person [the appellant’s] age and
are part of the aging process. [He] has a history of smoking which also leads to
degenerative change in the back. [The appellant’s body mass indexes] (most recent
on 1/30/18 of 31.34) place[] him in the overweight or obese category. This also will
put stress on the back leading to degenerative changes. Therefore, [the appellant’s]
current back condition is less likely than not related to the presumed injury during
combat service in Vietnam.
The Board issued the decision on appeal in December 2019, denying benefits for a back
disorder under presumptive and direct theories of entitlement. R. at 4-17. This appeal followed.
The appellant asserts that the April 2018 VA opinion is inadequate and that the Board
provided insufficient reasons or bases for relying on that opinion. Appellant’s Brief (Br.) at 10-24.
Specifically, the appellant avers that the April 2018 opinion was not supported by sound rationale,
relied on the absence of evidence, and did not consider relevant lay statements regarding
continuous symptoms after the in-service injury. Id. at 10-14. Alternatively, he contends that the
Board failed to explain why the 2018 opinion was “better than” the prior opinions that were found
to be inadequate, and that the Board failed to address whether the physician considered the lay
evidence or relied on an absence of evidence. Id. at 14-16. Finally, the appellant argues that the
Board improperly relied on examinations and opinions previously determined to be inadequate,
provided an inconsistent analysis of the evidence, overlooked favorable evidence, and failed to
address additional arguments raised by the record. Id. at 16-24. The Secretary maintains that the
appellant has not demonstrated that he was prejudiced by any failure of the 2018 physician to
consider his 2012 and 2014 testimony; the Secretary otherwise disputes the appellant’s contentions
and urges the Court to affirm the Board’s decision. Secretary’s Br. at 11-27.
In his reply brief, the appellant counters that, had the April 2018 VA examiner considered
the functional impact of the in-service event, “she may have determined that his current
degenerative conditions are related to the in-service injury,” Reply Br. at 4; he demonstrated in his
initial brief that the examiner’s failure to consider his October 2012 and May 2014 testimony was
prejudicial because the evidence was not duplicative of any other evidence, id. at 4-5; and the
examiner and Board both disregarded his lay statements, which the Board found to be credible, id.
at 5-8. He maintains that the lay testimony, which the Board found to be credible, undermines the
examiner’s conclusion that his in-service injury was acute and resolved. Id. at 6, 10.
A. Relevant Law
Establishing that a disability is service connected for purposes of entitlement to VA
disability compensation generally requires medical or, in certain circumstances, lay evidence of
(1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and
(3) a nexus between the claimed in-service injury or disease and the current disability. See
38 U.S.C. § 1110; Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also
Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (2021). For chronic
diseases included in the provisions of 38 U.S.C. § 1101(3) and 38 C.F.R. § 3.309(a), there are two
alternative methods of establishing service connection—chronicity and continuity of
symptomatology. See Walker v. Shinseki, 708 F.3d 1331, 1335-36, 1340 (Fed. Cir. 2013).
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)), 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.
Whether a medical opinion is adequate and whether the record establishes entitlement to
service connection are findings of fact, which the Court reviews under the “clearly erroneous”
standard of review. See D’Aries v. Peake, 22 Vet.App. 97, 104 (2008) (per curiam); Russo v.
Brown, 9 Vet.App. 46, 50 (1996). 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.
B. Board Decision
Here, the Board accepted as “sufficient evidence of an in-service incurrence” the appellant’s
statement, as a combat veteran, that he injured his back after his armored personnel carrier hit a
mine. R. at 8 (citing 38 U.S.C. § 1154(b) and 38 C.F.R. § 3.304(d)). The Board also acknowledged
that he “has a diagnosis of degenerative disease of the lumbar spine.” R. at 8. However, the Board
concluded that, although the appellant’s condition is a chronic disease, “it was not shown as chronic
in service or within the presumptive period, did not manifest to a compensable degree within a
presumptive period, and was not noted in service with attributable continuity of symptomatology.”
Id. (citing 38 C.F.R. § 3.309(a)). The Board then highlighted that “his post-service treatment
records do not include any complaints of back pain until March 1990, nearly 20 years after [he]
separated from service.” R. at 8-9. The Board also reviewed private treatment records from 1990
through 2008. R. at 9. Turning to the VA examination and subsequent opinions, the Board noted
that the December 2011 VA examination and March 2015 and March 2017 opinions “were all
previously deemed as inadequate for evaluation purposes,” but that “it is significant to note that all
the VA examiner[]s offered negative opinions as to whether the [appellant’s] current low back
disorder is related to his military service.” Id.
As for the April 2018 VA opinion, the Board summarized the physician’s rationale and
found it “to be adequate and highly probative as it is based on an accurate medical history and
provides an explanation that contains clear conclusions with supporting data.” R. at 10 (citing
Nieves-Rodriguez v. Peake, 22 Vet.App. 295 (2008)); see R. at 9-10. The Board then “considered
the statements offered by the [appellant] and his spouse at the October 2012 RO hearing,” found
them generally to be competent and credible, but determined that they did not have sufficient
training to opine as to whether the pain and limping he experienced after service was related to his
in-service injury because that issue was medically complex. R. at 10. Rather, the Board afforded
more probative weight to the April 2018 VA opinion. Id. The Board also found that not all of the
appellant’s statements regarding when his current back condition began were consistent and that
“the statements made to his physicians are more credible and probative than [his] other
statement[s] as [the statements to his physicians] were made for the purposes of treatment and
prior to the submission of a claim for service connection.” Id. Further, the Board found that “[t]he
probative evidence of record indicates that the presumed in-service acute back injury resolved
without any permanent residuals.” R. at 11. Finally, the Board determined that “the [appellant]
ha[d] offered no competent medical evidence to challenge the probative opinion offered by the
April 2018 VA examiner”; the preponderance of the evidence was against finding a medical nexus
between his back disorder and an in-service event, injury, or disease; and service connection on a
direct basis must also be denied. R. at 11.
C. Discussion
The Court notes that the Board cannot “evade [its] statutory responsibility [to state the reasons or bases for its conclusions] merely by adopting [a medical opinion] as its own” where the medical opinion “fails to discuss all the evidence which appears to support [the] appellant’s position.” Gabrielson v. Brown, 7 Vet.App. 36, 40 (1994). Gabrielson does not require that a medical opinion discuss all the evidence favorable to a claimant, only that the Board, in relying on an opinion that does not do so, discuss any additional favorable evidence to comply with its duty to provide an adequate statement of reasons or bases for its decision. See id.; 38 U.S.C.
§ 7104(d)(1); see also Dela Cruz v. Principi, 15 Vet.App. 143, 149 (2001) (holding that, although the Board must consider all of the evidence of record, “a discussion of all evidence is not required when . . . the Board has supported its decision with thorough reasons or bases regarding the relevant evidence”).
Here, the Court agrees with the appellant that the Board provided insufficient reasons
or bases for relying on the 2018 opinion. Appellant’s Br. at 15 (“nothing in the Board’s analysis of
the medical opinion addresses the examiner’s . . . failure to address the credible lay statements of
record”); see Allday, 7 Vet.App. at 527.
In that regard, the Board found that the 2018 opinion was “adequate and highly probative”
because it was “based on an accurate medical history” and “a careful and thorough review of all
the evidence contained in the [appellant’s] claims file.” R. at 10. In so concluding, the Board did
not discuss whether the physician addressed or should have addressed the appellant’s and his wife’s
2012 testimony, which the Board characterized as reflecting that the appellant had “back problems
after getting out of service[,] that he kept getting pain in his back,” and that he “used to limp after
returning home from Vietnam.” R. at 10; see R. at 732-33 (listing the evidence reviewed dating
between 1990 and 2011). Nor did the Board explain whether that testimony could undermine the
physician’s opinion that the appellant’s back injury “resolved prior to discharging from service.”
R. at 9; see 38 U.S.C. § 7104(d)(1); Allday, 7 Vet.App. at 527.
Moreover, the Court is not persuaded by the Secretary’s contention that the appellant could
not have been harmed by the examiner’s failure to explicitly discuss that testimony because the
Board found that the appellant’s statements prior to filing a claim for benefits were more probative
and credible than those he made after filing a claim. Secretary’s Br. at 15; see id. at 14-16. In that
regard, although the Board noted that certain statements the appellant made to his treating
physicians over the years were “more credible” than “other statement[s]” he made relating his
current back condition to an in-service injury, the Board did not find incredible his or his wife’s
hearing testimony. R. at 10. Rather, the Board explicitly found the October 2012 hearing testimony
to be “competent and credible,” but less probative than the April 2018 VA opinion. Id. The Court
thus cannot conclude that the appellant was not harmed by any failure by the physician to consider
that testimony. See Miller v. Wilkie, 32 Vet.App. 249, 262 (2020) (holding that, “where the
examiner failed to address the veteran’s lay evidence and the Board fails to find the veteran not
credible or not competent to offer that lay evidence, the proper remedy is for VA to obtain a new
examination”). Accordingly, remand is warranted. See Tucker v. West, 11 Vet.App. 369, 374
(1998) (“[W]here the Board . . . failed to provide an adequate statement of reasons or bases for its
determinations, . . . a remand is the appropriate remedy.”).
D. Remand
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.
After consideration of the parties’ pleadings and a review of the record, the Board’s
December 3, 2019, decision denying entitlement to benefits for a low back disorder is VACATED
and the matter is REMANDED for further proceedings consistent with this decision.
DATED: September 28, 2021
Copies to:
Glenn R. Bergmann, Esq.
VA General Counsel (027)

Leave a Comment »

No comments yet.

RSS feed for comments on this post. TrackBack URI

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Powered by