Veteranclaims’s Blog

November 13, 2021

Single Judge Application; Miller v. Wilkie, 32 Vet.App. 249 (2020); Miller, 32 Vet.App.; The opinions merely must rest on sufficient facts or data and “‘inform the Board of a medical expert’s judgment on a medical question and the essential rationale for that opinion.'” Miller, 32 Vet.App. at 254 (quoting Monzingo v. Shinseki, 26 Vet.App. 97, 105 (2012) (per curiam)). When an examiner disregards, or fails to address, lay assertions about continued symptoms, the opinion is inadequate because it ignores the veteran’s prior medical history. Barr, 21 Vet.App. at 311; see also Miller, 32 Vet.App. at 254 (“The examiner must address the veteran’s lay statements to provide the Board with an adequate medical opinion.”); Without a clear statement from the examiner that the lay testimony regarding continued symptoms was addressed, the matter requires remand to obtain a new examination. Miller, 32 Vet.App. at 254;

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20-5012
RUSSELL R. ABORN, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before JAQUITH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
JAQUITH, Judge: U.S. Marine Corps veteran Russell R. Aborn appeals through counsel a July 2, 2020, Board of Veterans’ Appeals (Board) decision that denied service connection for a right hip disability. Record (R.) at 5-8. Because the Board relied on an inadequate October 2019 VA medical examination,1 the Court remands.
I. BACKGROUND
The appellant served on active duty in the U.S. Marine Corps from March 1969 to April 1969. R. at 5, 785. An April 1969 service treatment record indicated that the appellant complained of dizziness and tingling in his hands following a “shot.” R. at 804. The next day, a physical examination was conducted and it was noted that Mr. Aborn had pes planus (flat feet). R. at 810. He was put on the sick list 3 days later. R. at 816. The day after he was sick-listed, a medical board found that Mr. Aborn had flat feet which had been noted during his initial screening, he was given a trial of duty but experienced increasing foot discomfort, he did not meet the standards for
1 Although the Board refers to the examination as a November 2019 examination, the record indicates that it occurred on October 24, 2019. R. at 166-78. It appears, however, that the examiner did not sign the examination until November 5, 2019. R. at 162, 177.
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enlistment, and he should be discharged.2 R. at 818. Seventeen days after his hospital visit for the aftereffects of his shot, Mr. Aborn was honorably discharged for the convenience of the Government. R. at 785.
In October 2011, Mr. Aborn filed an application for compensation, alleging that he suffered pain and trouble walking. R. at 833. The following month, he clarified that he was experiencing pain in his right hip and trouble walking due to a needle breaking in his hip when he received an immunization in basic training. R. at 829. An October 2011 private radiology report noted a history of chronic right hip pain and found mild osteoarthritis of the right hip. R. at 789. Mr. Aborn submitted a statement in January 2012, reiterating that he experienced “a lot of pain” after receiving a shot in his right hip during active duty. R. at 782. VA denied service connection for a right hip disorder in an August 2012 decision. R. at 743-50. Mr. Aborn disagreed with this denial, arguing that he was injured by the vaccination in service when the tip of the needle broke off in his right hip. R. at 739. He contended that he was not able to walk for several weeks and eventually was discharged as a result. Id. He also submitted a letter to Congresswoman Grisham, again describing how he was injured when the person administering shots “broke off the needle in [the veteran’s] right hip or chipped the bone on that hip” and that he has had problems with his hip since service. R. at 718.
In January 2015, a VA doctor who said he had been treating the veteran for some time advised that there is nothing in the veteran’s records for flat feet, and the veteran had not been treated for flat feet at the VA medical center. R. at 372. In September 2018, the same doctor wrote a “letter in support of the [veteran] having pain in the hip since his [a]ctive [d]uty days.” R. at 216. That doctor also referred the veteran for a January 2019 MRI that revealed “a focus of increased 12 signal along the posterior aspect of the hip possibly in the posterior hip labrum measuring 8 mm,” raising the possibility of a right hip labral tear, which could account for the veteran’s symptoms. R. at 213.
Mr. Aborn testified in a September 2018 Board hearing that he felt immediate pain upon receiving a shot in his right hip during basic training. R. at 225-26. He said that the shot “felt like
2 According to the report of the veteran’s January 1969 medical examination for purposes of enlistment, the clinical evaluation of his feet and other lower extremities showed that they were normal. R. at 814-15. The “initial screening” that noted flat feet was the physical examination the day after the shot. The medical board report stating that “the indicated disposition of the board is that he be discharged” was issued 5 days after the screening (and 6 days after the shot). R. at 818.
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a shock going through [his] whole body” and it hurt so badly that he jumped and then “couldn’t hardly walk.” R. at 226. He testified that he had trouble sleeping that night, woke up in pain, and still couldn’t walk, so a sergeant who saw in the morning that he “was in real bad shape” sent him to the hospital. R. at 226-27. Mr. Aborn said that after his hospital visit he was put in “Company Casual, where . . . you rest and wait,” and he sat there for a few days. R. at 228. He further testified that he sought treatment for intermittent pain and right hip problems soon after he was discharged. R. at 229.
The Board remanded the claim in a March 2019 decision to obtain a medical opinion as to whether the veteran’s current right hip condition might be related to his active service. R. at 206-07.
VA examined the appellant in October 2019. R. at 160-62, 166-78. The examiner conducted an interview with Mr. Aborn, reviewed his medical history, including his statements that he received a vaccination in 1969 that resulted in pain immediately after receiving the vaccine, and opined that it was less likely than not that Mr. Aborn’s right hip condition was incurred in service or caused by the in-service immunization. Id. The examiner reasoned that while the appellant reported a needle breaking off in his hip, there was “no radiological imaging since that time indicating retention of needle in the right hip.” R. at 160. The examiner also reasoned that while there was documentation of the immunization, there was no documented evidence of pain in the hip or injury to the injection site. Id. Finally, the examiner reasoned that there was a “lack of medical literature connecting receipt of immunizations with osteoarthritis and/or a labral tear a half-century after the fact.” Id.
In July 2020, the Board issued the decision on appeal, denying service connection for a right hip disability. R. at 5-8. In that decision the Board assigned great probative weight to the October 2019 examiner’s opinion, reasoning that it was “based on the Veteran’s reported history, the records in the claims file, the examination findings, and an adequate rationale.” Nieves-Rodriguez v. Peake, 22 Vet.App. 295 (2008).
II. ANALYSIS
The appellant argues that the Board relied on an inadequate October 2019 VA medical opinion that failed to address his lay statements of continued symptomatology, and that this failure amounts to a violation of Miller v. Wilkie, 32 Vet.App. 249 (2020). Appellant’s Brief (Br.) at 5-11.
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Specifically, he alleges that the examiner failed to consider the “pertinent material facts” highlighted by the Board in its March 2019 remand. Reply Br. at 1-5. The Secretary counters that the Board relied on an adequate examination and opinion that, when read as a whole, properly considered the appellant’s medical history related to his reports of continued symptoms since the in-service vaccination. Secretary’s Br. at 18-19.
The elements of service connection that a veteran must establish to secure disability benefits are: “‘(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.'” Simmons v. Wilkie, 964 F.3d 1381, 1383 (Fed. Cir. 2020) (quoting Shedden v. Principi, 381 F.3d 1163, 1166–67 (Fed. Cir. 2004)). Only the nexus element is at issue in this case.
When VA obtains a medical opinion, the Secretary must ensure that it is adequate. Barr v. Nicholson, 21 Vet.App. 303, 311 (2007); see also 38 C.F.R. § 4.2 (2021). Examiners are not required to provide reasons or bases for their conclusions. Acevedo v. Shinseki, 25 Vet.App. 286, 293 (2012). The opinions merely must rest on sufficient facts or data and “‘inform the Board of a medical expert’s judgment on a medical question and the essential rationale for that opinion.'” Miller, 32 Vet.App. at 254 (quoting Monzingo v. Shinseki, 26 Vet.App. 97, 105 (2012) (per curiam)). When an examiner disregards, or fails to address, lay assertions about continued symptoms, the opinion is inadequate because it ignores the veteran’s prior medical history. Barr, 21 Vet.App. at 311; see also Miller, 32 Vet.App. at 254 (“The examiner must address the veteran’s lay statements to provide the Board with an adequate medical opinion.”). The Board’s determination as to whether an examination is adequate is a factual finding that the Court reviews for clear error. 38 U.S.C. § 7261(a)(4).
Here, the examiner failed to consider pertinent medical evidence, namely, the veteran’s complaints of continuous symptoms since service. For instance, the appellant testified at the September 2018 hearing that his pain was bad for a couple years, and he started seeking treatment “pretty soon” after discharge. R. at 229. Moreover, the record highlights statements from the veteran that he has had continued symptoms since discharge. See R. at 718. But the examiner’s rationale did not address the evidence of continuity of symptomatology, only accepting that the veteran had stiffness at the time of his immunization and current right hip pain, functional loss, and arthritis. See R. at 166-68, 170, 177. Without a clear statement from the examiner that the lay
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testimony regarding continued symptoms was addressed, the matter requires remand to obtain a new examination. Miller, 32 Vet.App. at 254
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In addition, the VA examiner did not fully explain the reasoning for his negative nexus opinion. Namely, although the examiner stated that “no radiological imaging since [the immunization] indicat[es] retention of needle in the hip,” it is unclear whether the examiner was referencing radiological testing performed in 1969 or if this testing was performed more recently. See R. at 160. This information is important because if the testing referenced is more recent, the examiner should have explained why it would be expected that the needle would still be present in the veteran’s hip some 50 years after the alleged in-service incident. Without this discussion, the examination failed to fully inform the Board as to the issue before it.
And the Board did not adequately express reasons or bases for relying on this flawed examination report or accepting it over the opinion of the veteran’s treating VA doctor. The Board explicitly found the veteran “competent to testify as to such symptoms as pain,” R. at 8, and thus implicitly found the veteran credible. See Miller, 32 Vet.App. at 261. But the Board found particularly noteworthy the examiner’s observation that the veteran’s initial, contemporaneous complaint was of stiffness rather than pain—though the actual treatment record reflects that the veteran suffered tingling in his hands, dizziness, and stiffness following the shot, R. at 804, and neither the examiner nor the Board explained any significance ascribed to the difference. The Board also found particularly noteworthy the examiner’s reference to the lack of medical literature connecting immunizations with osteoarthritis or labral tears, R. at 7, without any discussion by the examiner of common side effects and adverse reactions, reactive and/or longer term, or the potential impact of administering immunizations improperly. Cf. 42 C.F.R. § 100.3 (2021) (setting forth a “vaccine injury table” listing vaccines and the injuries and disabilities resulting from their administration, as well as the time period in which the first symptom must have occurred, for purposes of receiving compensation under the National Vaccine Injury Compensation Program, including, in some circumstances, arthritis and injuries related to vaccine administration). And both the examiner and the Board point to the veteran’s discharge because he had flat feet without so much as a whisper about the inconsistency of that determination with the clinical evaluation that his feet were normal 2 ½ months earlier or the expedience of the discovery of flat feet the day after the veteran’s complaint about the shot’s adverse effects on his health.
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The Court therefore concludes that remand is warranted for the Board to obtain a new VA medical opinion. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that remand is the appropriate remedy “where the Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its determination, or where the record is otherwise inadequate”). The veteran may present any remaining arguments to the Board below. See Mahl v. Principi, 15 Vet.App. 37, 38 (2001) (per curiam order) (“[I]f the proper remedy is a remand, there is no need to analyze and discuss all the other claimed errors that would result in a remedy no broader than a remand.”).
III. CONCLUSION
Accordingly, the July 2, 2020, Board decision that denied service connection for a right hip disability is VACATED, and the matter is REMANDED to the Board for further proceedings consistent with this decision.
DATED: October 29, 2021
Copies to:
Michael S. Just, Esq.
VA General Counsel (027)

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