Veteranclaims’s Blog

February 20, 2022

Single Judge Application; Francway v. Wilkie, 940 F.3d 1304, 1308 (Fed. Cir. 2019) (“Once the request is made for information as to the competency of the examiner, the veteran has the right, absent unusual circumstances, to the curriculum vitae [(CV)] and other information about qualifications of a medical examiner.” (citing 38 U.S.C. § 5103A; Harris v. Shinseki, 704 F.3d 946, 948 (Fed. Cir. 2013)));

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20-6592
DERREL L. THOMAS, SR., APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before DAVIS, Senior Judge.1
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
DAVIS, Senior Judge: Self-represented U.S. Marine Corps veteran Derrel L. Thomas, Sr. appeals a September 9, 2020, Board decision that denied entitlement to an initial rating higher than 30% for Meniere’s disease2 for the period before March 20, 2018.3 Because the Board relied on an inadequate December 2019 medical opinion, and because further development of Mr. Thomas’s claim is therefore necessary, the Court will set aside the Board’s decision and remand the matter.
I. ANALYSIS
Meniere’s disease is rated either pursuant to Diagnostic Code (DC) 6205 (for Meniere’s syndrome (endolymphatic hydrops)) or by separately rating the Meniere’s symptoms of vertigo (as peripheral vestibular disorder under DC 6204), hearing impairment (under DC 6100), and tinnitus (DC 6260), using whichever method that results in a higher overall evaluation.4 A 100% rating for
1 Judge Davis is a Senior Judge acting in recall status. In re Recall of Retired Judge, U.S. VET. APP. MISC. ORDER 03-21 (Jan. 4, 2021).
2 Meniere’s disease is an inner ear disorder, usually manifested by symptoms of “hearing loss, tinnitus, and vertigo.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 532 (33d ed. 2020).
3 Record (R.) at 3-16.
4 38 C.F.R. § 4.87, DC 6205 note (2021).
2
Meniere’s syndrome under DC 6205 requires “[h]earing impairment with attacks of vertigo and cerebellar gait[
5] occurring more than once weekly, with or without tinnitus.”6 A 60% rating requires “[h]earing impairment with attacks of vertigo and cerebellar gait occurring from one to four times a month, with or without tinnitus.”7
Before the Court, Mr. Thomas argues that the December 2019 VA opinion is inadequate because the examiner did not offer a rationale for his opinion and that the Board failed to address his argument that the examiner was not qualified to provide an opinion on cerebellar gait.8 The Secretary concedes that remand is warranted because the Board did not address Mr. Thomas’s argument to the Board that the December 2019 examiner was not qualified to provide an opinion on cerebellar gait, but the Secretary does not respond to Mr. Thomas’s argument that the opinion itself is inadequate.9 Further, the parties disagree on the appropriate remedy for the Board’s error. Mr. Thomas argues for reversal and an assignment of a 100% rating prior to March 20, 2018, and the Secretary maintains that the proper remedy is to remand the matter for further development.10
For the appeal period (from June 28, 2001, to March 20, 2018), Mr. Thomas had a 30% disability rating for Meniere’s disease with vertigo under DC 6204.11 In a March 20, 2018, VA examination, the examiner found that Mr. Thomas “tilts to the left on walking and requires the use of a cane to maintain his balance,” he “does not have a cerebellar gait,” and he “has episodes of vertigo more than once weekly, lasting more than 24 hours.”12 Based on this examination, the RO
5 “[C]erebellar gait” is “a staggering ataxic gait, sometimes with a tendency to fall to one side, indicative of cerebellar lesions.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 747 (30th ed. 2003). An “ataxic gait” is “an unsteady, uncoordinated walk, with a wide base and the feet thrown out, due to some form of ataxia.” Id.
6 38 C.F.R. § 4.87, DC 6205.
7 38 C.F.R. § 4.87, DC 6205.
8 Appellant’s Informal Brief (Br.) at 6-8. The Court’s references to Mr. Thomas’s informal brief refer to the handwritten pagination of the document and not the overall pagination of the Portable Document Format (PDF) document.
9 Secretary’s Br. at 6.
10 Appellant’s Informal Br. at 9; Secretary’s Br. at 6-7.
11 See R. at 4.
12 R. at 1577-80. The March 2018 VA examiner’s full rationale is as follows:
The claimant states that symptoms of vertigo began while in military service. He has episodes of vertigo numerous times during the week, lasting up to 24 hours. He tilts to the left on walking and requires the use of a cane to maintain his balance.
. . . .
One episode of dizziness is documented on 1/12/83. He began experiencing more vertigo in 1991 and was diagnosed with Menieres disease in 1995 following left vestibular
3
granted a 100% rating for Meniere’s disease under DC 6205, effective from March 20, 2018, but continued the 30% rating under DC 6204 for the period before that date.
13 In a November 2018 decision, the Board denied a disability rating higher than 30% for Meniere’s disease prior to March 20, 2018.14
Mr. Thomas appealed to this Court, which resulted in a joint motion for partial remand (JMPR) that the Court granted.15 The parties to the JMPR stipulated, among other things, that “the Board must obtain a retrospective VA opinion that addresses the question of whether [Mr. Thomas’s] symptoms of unsteady gait, with a tendency to fall to the left, equated to cerebellar gait prior to March 20, 2018.”16 The resulting retrospective opinion from December 2019 notes that the Board instructed the RO to “[o]btain a retrospective medical opinion from a VA physician familiar and experienced with Meniere’s disease.”17 The examiner found that “there is no evidence in [the] record of a cerebell[a]r gait. . . . [or] cerebell[a]r disease[,] either clinically or o[n] [magnetic resonance imaging (MRI)].”18 When asked to consider Mr. Thomas’s “report of unsteady gait with a tendency to fall to the left,” the examiner responded that this “is fully consistent with Meniere’s [d]isease.”19
In the decision on appeal, the Board noted that Mr. Thomas “contends that his Meniere’s disease and vertigo [are] more severe than indicated by his rating prior to March 20, 2018,” and that “[d]uring his September 2017 Board hearing, he claimed to have a cerebellar gait and that the medical evidence reflected such.”20 The Board then recited the applicable DCs and explained that, under DC 6205, “the question before the Board is whether, prior to March 20, 2018, [Mr. Thomas] had a cerebellar gait occurring one to four times monthly (for a 60[%] disability rating) or more
nerve section for intractable tinnitus. He does not have a cerebellar gait. He has episodes of vertigo more than once weekly, lasting more than 24 hours.
R. at 1578.
13 R. at 1343-48.
14 R. at 5.
15 R. at 648-54.
16 R. at 652.
17 R. at 307.
18 R. at 308.
19 R. at 309.
20 R. at 5.
4
than once weekly (for a 100[%] disability rating).”
21 The Board next recited the relevant medical evidence of record for the appeal period and explained that the December 2019 VA retrospective medical opinion was the only evidence of record regarding whether Mr. Thomas had a cerebellar gait before March 2018.22 The Board noted the December 2019 VA examiner’s conclusion that Mr. Thomas “did not have cerebellar gait or symptoms equated with a cerebellar gait, prior to March 20, 2018,” and that “there is no evidence in [the] record of a cerebellar gait. . . . [or] cerebellar disease[,] either clinically or [on] MRI.”23 The Board then relied on the 2019 examination to deny Mr. Thomas’s claim, explaining that “[t]he December 2019 VA medical opinion . . . provided the most comprehensive evidence consideration and the only full review of the appeal period in question, as well as[] an explanation as to how his medical opinion was reached[,]” and was therefore “the most probative and competent medical evidence of record” concerning the question of cerebellar gait prior to March 2018.24
An adequate medical examination must be “based upon consideration of the veteran’s prior medical history and examinations and also describe[ ] the disability, if any, in sufficient detail so that the Board’s ‘evaluation of the claimed disability will be a fully informed one.'”25 Further, an adequate medical opinion contains not only data and conclusions, “but also a reasoned medical explanation connecting the two.”26 Though there is no general reasons-or-bases requirement imposed on an examiner, a medical report must rest on correct facts and reasoned medical judgment to facilitate the Board’s consideration of the report.27 Additionally, a remand by the Board “confers on the veteran . . . , as a matter of law, the right to compliance with the remand orders,” and the Board errs when it fails to ensure substantial compliance with the terms of such a remand.28
21 R. at 6-7.
22 R. at 7-10.
23 R. at 8-10 (quoting R. at 308).
24 R. at 8.
25 Stefl v. Nicholson, 21 Vet.App. 123, 123 (2007) (quoting Ardison v. Brown, 6 Vet.App. 405, 407 (1994)).
26 Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008).
27 Acevedo v. Shinseki, 25 Vet.App. 286, 293 (2012).
28 Stegall v. West, 11 Vet.App. 268, 271 (1998); see Dyment v. West, 13 Vet.App. 141, 146-47 (1999) (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board’s remand because such determination “more than substantially complied with the Board’s remand order”).
5
Whether a medical opinion is adequate is generally a finding of fact that the Court reviews
under the “clearly erroneous” standard of review.29 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.”30 As with any finding on a material issue of fact and law presented on the record, the Board must also support its service connection and duty-to-assist determinations with adequate reasons or bases that enable the claimant to understand the precise basis for that determination and facilitate review in this Court.31 To comply with this requirement, the Board must analyze the credibility and probative value of evidence, account for evidence that it finds persuasive or unpersuasive, and provide reasons for rejecting material evidence favorable to the claimant.32
Here, the Court determines that the Board relied on an inadequate December 2019 examination to deny a rating greater than 30% for Meniere’s disease before March 20, 2018. A review of the record shows that the December 2019 examiner did not provide even a minimal rationale for the negative retrospective opinion that Mr. Thomas did not have a cerebellar gait before March 2018. In the JMPR, the parties agreed that there is evidence from June 2001 to March 2018 that Mr. Thomas “is consistently noted to have an unsteady gait, with a tendency to fall.”33 Pursuant to the terms of the JMPR, the Board specifically instructed the examiner to consider this medical evidence and explain whether or not it “equated to cerebellar gait.”34 The December 2019 examiner’s only response to this request was to comment that Mr. Thomas’s “report of unsteady gait with tendency to fall to the left . . . is fully consistent with Meniere’s [d]isease.”35 He does not explain how the evidence of unsteady gait and a tendency to fall connects with his retrospective opinion of no cerebellar gait or his finding that, before March 2018, “there is no evidence in the record of a cerebell[a]r gait. . . . [or] cerebellar disease[,] either clinically or
29 See D’Aries v. Peake, 22 Vet.App. 97, 104 (2008) (per curiam).
30 United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); see also Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990).
31 38 U.S.C. § 7104(d)(1); Gilbert, 1 Vet.App. at 57.
32 Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).
33 R. at 651-52; see R. at 306-12.
34 R. at 307, 341.
35 R. at 309.
6
o[n] MRI.”
36 The examiner’s failure—to acknowledge this medical evidence and offer a rationale as to why the medical and lay evidence of an unsteady gait and tendency to fall is consistent with Meniere’s disease but does not equate to a cerebellar gait—renders the opinion inadequate.37 For these same reasons, the December 2019 opinion also violated Mr. Thomas’s right to substantial compliance with the prior Board’s remand order.38
Thus, the Board erred when it relied on the inadequate opinion, and the Court will remand Mr. Thomas’s claim for the Board to provide him with a new opinion or a clarification from the original examiner.39 Although Mr. Thomas argues that reversal is the appropriate remedy, where, as here, further development is needed, remand is required.40 On remand, the Court reminds the Board to ensure that VA provides Mr. Thomas with the examiner’s credentials if Mr. Thomas again challenges them.41
Finally, the Court notes Mr. Thomas’s argument that he is entitled to an effective date of June 28, 2001, for his award of service connection for “Meniere’s disease, vertigo, hearing loss and tinnitus” because he asserts that he submitted an informal claim on that date.42 But, as the Secretary correctly asserts,43 the Court does not have jurisdiction to hear this argument because the earlier effective date issue was not before the Board in the decision here on appeal.44
36 R. at 308; see R. at 9 (describing a consult at a falls clinic in June 2008 at which Mr. Thomas reported falling two times in the past 3 months, and the provider observed a slow gait; June 2008 consult addendum noting decreased gait speed and Mr. Thomas’s complaints of general instability and loss of balance, with falls to the left and deviating left when walking; August 2008 VA medical record that Mr. Thomas walked with a cane with a somewhat hesitant gait; July 2008, VA physical therapy note of gait training with gaze stabilization; December 2011 VA medical record documenting that Mr. Thomas walked with cane; and an April 2014 VA examination report of veteran “walking with a cane at all times due to difficulty walking in a straight line” (though with a normal gait with cane use on the day of the examination)).
37 See Nieves-Rodriguez, 22 Vet.App. at 301.
38 See Coburn v. Nicholson, 19 Vet.App. 427, 430 (2006) (“[T]he right to ‘compliance with the remand orders’ provided in Stegall is a process right guaranteed to VA claimants.”).
39 See Nolen v. Gober, 14 Vet.App. 183, 184 (2000).
40 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 determinations, or where the record is otherwise inadequate).
41 See Francway v. Wilkie, 940 F.3d 1304, 1308 (Fed. Cir. 2019) (“Once the request is made for information as to the competency of the examiner, the veteran has the right, absent unusual circumstances, to the curriculum vitae [(CV)] and other information about qualifications of a medical examiner.” (citing 38 U.S.C. § 5103A; Harris v. Shinseki, 704 F.3d 946, 948 (Fed. Cir. 2013))).
42 Appellant’s Informal. Br. at 2.
43 Secretary’s Br. at 6.
44 See Ledford v. West, 136 F.3d 776, 779 (Fed. Cir. 1998) (“[T]he [U.S. Court of Appeals for Veterans
7
Given this disposition, the Court will not address the other arguments and issues raised by Mr. Thomas.45 He is free on remand to submit additional evidence and argument, including the arguments raised in his briefs to this Court, in accordance with Kutscherousky v. West,46 and the Board must consider any such evidence or argument submitted.47 The Court reminds the Board that “[a] remand is meant to entail a critical examination of the justification for [the Board’s] decision” and must be performed in an expeditious manner in accordance with 38 U.S.C. § 7112.48
II. CONCLUSION
Upon consideration of the foregoing, the Court SETS ASIDE the September 9, 2020, Board decision and REMANDS the matter for further adjudication consistent with this decision.
DATED: December 30, 2021
Copies to:
Derrel L. Thomas, Sr.
VA General Counsel (027)
Claims’] jurisdiction is premised on and defined by the Board’s decision concerning the matter being appealed.”).
45 See Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam order) (“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 [or her].”).
46 Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order).
47 See Kay v. Principi, 16 Vet.App. 529, 534 (2002).
48 Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991).

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