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January 4, 2022

Single Judge Application; Healey v. McDonough, 33 Vet.App.; aggravation; secondary service connection; “When VA instructs an examiner to provide an opinion as to secondary service connection, that examiner must separately address the causation and aggravation prongs of secondary service connection. ‘[A]ggravation of a condition by a service-connected disability is independent of direct causation.'” Healey v. McDonough, 33 Vet.App. 312, 322 (2021) (first citing El-Amin v. Shinseki, 26 Vet.App. 136, 140-41 (2013); and then quoting Atencio v. O’Rourke, 30 Vet.App. 74, 91 (2018)).;

Filed under: Uncategorized — Tags: — veteranclaims @ 1:15 pm

Designated for electronic publication only
No. 19-8023
Before JAQUITH, Judge.
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
JAQUITH, Judge: Air Force veteran Ronald F. Edwards appeals a July 25, 2019, Board of Veterans’ Appeals (Board) decision that denied entitlement to service connection for a lumbar spine disability with degenerative disc disease, claimed as secondary to Meniere’s disease. Because the Board clearly erred by relying on an inadequate examination that did not address the aggravation prong of secondary service connection, the Court remands.
A. Secretary’s Motion to Strike
As an initial matter, the Court will address the parties’ motions, which have been held in abeyance pending the merits determination. The Secretary filed an opposed motion to strike the attachments from the appellant’s reply brief that were not part of the record before the Board, arguing that the Court is precluded from considering them because they were not constructively before the Board. Secretary’s Motion to Strike at 3-4.
The Court’s review of Board decisions is based “on the record of proceedings before the Secretary and the Board.” 38 U.S.C. § 7252(b). Where a dispute arises as to the content of the record and the documents proffered by the appellant are within the Secretary’s control and could
reasonably be expected to be a part of the record “before the Secretary and the Board,” such documents should be included in the record. Bell v. Derwinski, 2 Vet.App. 611, 612-13 (1992) (quoting 38 U.S.C. § 7252(b)). “Evidence that ‘could reasonably be expected to be part of the record’ is evidence that ‘pre-dates the [Board] opinion’ and is relevant.” Euzebio v. McDonough, 989 F.3d 1305, 1318-19 (Fed. Cir. 2021) (quoting Bell, 2 Vet.App. at 612-13). “Evidence is constructively received by the VA adjudicator post-decision if it (1) was generated by the VA or was submitted to the VA and (2) can reasonably be expected to be connected to the veteran’s claim.” Lang v. Wilkie, 971 F.3d 1348, 1354 (Fed. Cir. 2020).
Here, the attachments include a December 2020 affidavit from Mr. Edwards and a December 2020 medical website excerpt. Reply Brief (Br.), Appendix at 20-34. These attachments were not constructively before the Board because they were not within the Secretary’s control and could not reasonably be expected to be part of the record before the Board because they were created after the Board issued its decision. And judicial notice of the information in the attachments is not appropriate because it is not limited to facts that are “‘generally known'” or “‘from sources whose accuracy cannot reasonably be questioned.'” See Euzebio, 989 F.3d at 1323 (quoting Kyhn v. Shinseki, 716 F.3d 572, 576 (Fed. Cir. 2013)). The appellant’s affidavit advances information that is evidentiary in nature and may not be considered in the first instance by this Court of Appeals. See Kyhn, 716 F.3d at 576. Medical monographs and summaries also are better suited for submission to VA adjudicators prior to decision than for judicial notice. See Smith v. Derwinski, 1 Vet.App. 235, 238 (1991). Accordingly, the Court will grant the Secretary’s motion to strike the appended documents from the reply brief.
B. Appellant’s Motions for Oral Argument, Consideration by a Panel, and a Change in Venue
The appellant filed an opposed motion for oral argument, contending that it would be appropriate due to the lengthy nature of references to the record. Appellant’s Motion for Oral Argument at 1. In his motion, he also requested consideration by a panel of Judges, reasoning that a precedential decision may be appropriate. Id. at 1-2. He also filed a motion to change venue in which he requested that the Court hold oral argument at a location near his residence. Appellant’s Motion to Change Venue at 1-2.
Generally, oral argument will be held when it will “materially assist” the Court in resolving the issue before it. Beaty v. Brown, 6 Vet.App. 532, 539 (1994). “Oral argument normally is not granted on . . . matters being decided by a single Judge.” U.S. VET. APP. R. 34(b). By statute, “the
Court may hear cases by judges sitting alone or in panels.” 38 U.S.C. § 7254. In determining when to hear cases by Judges sitting alone, we apply the standard set out in Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). Under Frankel, we hear cases “of relative simplicity” by single Judges when the case:

  1. does not establish a new rule of law;
  2. does not alter, modify, criticize, or clarify an existing rule of law;
  3. does not apply an established rule of law to a novel fact situation;
  4. does not constitute the only recent, binding precedent on a particular point of law within the power of the Court to decide;
  5. does not involve a legal issue of continuing public interest; and
  6. the outcome is not reasonably debatable[.]
    Id. at 25-26. This case meets the Frankel standard for a single-judge decision. Id. And oral argument would not materially assist the Court in resolving the issues presented, so the motion for oral argument is denied. Because the Court will not hold oral argument, we will dismiss as moot the motion to change venue.
    C. Appellant’s Opposition to the Record of Proceedings
    The appellant filed a motion in opposition to the prepared content in the record of proceedings, asserting that the Secretary failed to include certain pages that were generally referenced in the parties’ briefs, including parts of the veteran’s in-service treatment records, a portion of a private medical opinion, pages that offer information about Meniere’s disease, certain audiology and mental health VA examinations, and certain private treatment records. Appellant’s Motion in Opposition at 1-2. Because we have determined that remand is appropriate due to the inadequate October 2010 VA examination, and the appellant asserts no error in the record of proceedings regarding that examination, we will also dismiss this motion as moot.
    Mr. Edwards served in the U.S. Air Force from August 1968 to February 1969. Record (R.) at 1625, 1627. An April 2019 rating decision granted him service connection for a Meniere’s disease disability, to include tinnitus and hearing loss (claimed with vertigo and inner ear injury), as well as service connection for a depressive disorder. R. at 48. On the same day the regional office issued the April 2019 rating decision, it issued a Supplementary Statement of the Case (SSOC) denying service connection for the veteran’s claimed lumbar spine disability with
    degenerative disc disease (also claimed as a back injury). R. at 97-98. Then the issue of service connection for a lumbar spine disability with degenerative disc disease was returned to the Board for further appellate review. R. at 8.
    In denying the veteran’s lumbar spine disability claim secondary to Meniere’s disease, the Board found an October 2010 VA examination to be the most probative evidence of record. R. at 13. That examiner opined that the veteran’s back condition is less likely than not caused by or a result of Meniere’s disease or military service because there was no evidence of treatment for recurrent back pain in service, and a January 1969 report of medical history included a negative response regarding recurrent back pain. R. at 1148. The Board found this rationale logical, well-reasoned, and based on consideration of the veteran’s claims file, reported history, service treatment records, and postservice history. R. at 14. The Board concluded that the October 2010 opinion was “competent, credible, persuasive, and probative for deciding this appeal.” Id.
    Once the Secretary undertakes the duty to provide the veteran with an examination, the Board must ensure that the examination provided is adequate. See Barr v. Nicholson, 21 Vet.App. 303, 311 (2007). A medical opinion is adequate if 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)). It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion. Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 304 (2008). “When VA instructs an examiner to provide an opinion as to secondary service connection, that examiner must separately address the causation and aggravation prongs of secondary service connection. ‘[A]ggravation of a condition by a service-connected disability is independent of direct causation.'” Healey v. McDonough, 33 Vet.App. 312, 322 (2021) (first citing El-Amin v. Shinseki, 26 Vet.App. 136, 140-41 (2013); and then quoting Atencio v. O’Rourke, 30 Vet.App. 74, 91 (2018)). Whether a medical opinion is adequate is a finding of fact that the Court reviews under the “clearly erroneous” standard. D’Aries v. Peake, 22 Vet.App. 97, 104 (2008) (per curiam).
    The Court determines that the Board clearly erred when it found the October 2010 VA examination adequate. The examiner did not provide an opinion as to whether the appellant’s service-connected Meniere’s disease aggravated his back condition, which renders the examination
    inadequate to inform the Board’s secondary service connection determination. See Healey, 33 Vet.App. at 322. Further, the examiner provided a single rationale for her negative opinion regarding both direct service connection and secondary service connection, which relied on the lack of evidence of in-service treatment for recurrent back pain and the veteran’s denial of recurrent back pain at separation. R. at 1148. Although the veteran asserted that his Meniere’s disease caused a back injury in service, Appellant’s Br. at 14-24, an examiner considering secondary service connection must consider all the relevant evidence of record, not only the in-service symptoms. Stefl, 21 Vet.App. at 123. This is especially relevant here, where the record indicates that the veteran had severe Meniere’s disease symptoms, including falls, after service. See R. at 336. It is unclear from the opinion’s rationale whether the examiner separately considered the impact of the veteran’s postservice Meniere’s disease symptoms on his back disability, further diminishing the value of her opinion. See Nieves-Rodriguez, 22 Vet.App. at 304.
    Although the veteran argues for reversal, remand is appropriate because the Board clearly erred by relying on the October 2010 VA examination. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (remand is appropriate “where the Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its determinations, 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.”).
    Accordingly, the Secretary’s January 8, 2021, motion to strike is granted. The appellant’s January 6, 2021, motion for oral argument and consideration by a panel is denied. The appellant’s January 6, 2021, motion to change venue and March 4, 2021, motion in opposition to the prepared content of the record of proceedings are dismissed as moot. The July 25, 2019, Board decision is VACATED, and the matter is REMANDED for further proceedings consistent with this decision.
    DATED: November 30, 2021
    Copies to:
    Kimberly J. King, Esq.
    VA General Counsel (027)

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