Veteranclaims’s Blog

March 18, 2022

Single Judge Application; Neither the Board nor the VA opinions state the standard of care that applies to appellant’s section 1151 claim.56 More to the point, the VA examiners, Board, and Secretary fail to address a crucial question: Why is it that Dr. Boyd performed testing that revealed possible bladder cancer, but VA doctors didn’t? Appellant showed similar symptoms to Dr. Boyd and VA doctors. Dr. Boyd performed an ultrasound that revealed possible bladder cancer; VA doctors treated appellant for an infection. Explaining these different treatments will help establish the appropriate standard of care See McNair v. Shinseki, 25 Vet.App. 98, 106 (2011) (noting that common-law standards for negligence apply to claims under section 1151);

Filed under: Uncategorized — veteranclaims @ 1:22 pm

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-2776
GARRET H. GERVAIS, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before ALLEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
ALLEN, Judge: Appellant Garret Gervais served the Nation honorably in the United States
Air Force. He appeals a March 7, 2019, Board decision that denied compensation under 38 U.S.C.
§ 1151 for bladder-cancer residuals. The Board also denied service connection for his left-shoulder
disorder and gastrointestinal disorder. We have jurisdiction over this timely appeal.1
The Board gave inadequate statements of reasons or bases for its decision concerning all
appellant’s claims. And, compounding this error, the Board relied on inadequate medical opinions.
So we will set aside the Board’s decision and remand these matters for further proceedings.
I. ANALYSIS
Appellant raises many arguments.2 To provide a clear framework for these proceedings on
remand,3 we will address most of them. But first we will provide a brief background on relevant
facts and legal principles.
1 See 38 U.S.C. §§ 7252(a), 7266(a).
2 Appellant’s Brief (Br.) at 14-30.
3 See Quirin v. Shinseki, 22 Vet.App. 390, 395-96 (2009); see also Ebanks v. Shulkin, 877 F.3d 1037, 1039 (Fed. Cir.
2017).
2
A. Relevant Facts

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-2776
GARRET H. GERVAIS, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before ALLEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
ALLEN, Judge: Appellant Garret Gervais served the Nation honorably in the United States
Air Force. He appeals a March 7, 2019, Board decision that denied compensation under 38 U.S.C.
§ 1151 for bladder-cancer residuals. The Board also denied service connection for his left-shoulder
disorder and gastrointestinal disorder. We have jurisdiction over this timely appeal.1
The Board gave inadequate statements of reasons or bases for its decision concerning all
appellant’s claims. And, compounding this error, the Board relied on inadequate medical opinions.
So we will set aside the Board’s decision and remand these matters for further proceedings.
I. ANALYSIS
Appellant raises many arguments.2 To provide a clear framework for these proceedings on
remand,3 we will address most of them. But first we will provide a brief background on relevant
facts and legal principles.
1 See 38 U.S.C. §§ 7252(a), 7266(a).
2 Appellant’s Brief (Br.) at 14-30.
3 See Quirin v. Shinseki, 22 Vet.App. 390, 395-96 (2009); see also Ebanks v. Shulkin, 877 F.3d 1037, 1039 (Fed. Cir.
2017).
2
A. Relevant Facts

  1. Left-Shoulder and Gastrointestinal-Disorder Claims
    Appellant served in the Air Force from 1962 to 1966.4 He was injured in a car accident
    while in service.5 Forty years after his discharge, appellant applied for service connection for a
    left-shoulder disability, which he claims resulted from that in-service car accident.6 He also applied
    for service connection for a gastrointestinal disorder.7 These two claims are on appeal here.
  2. Section 1151 Claim
    In December 2006, appellant experienced urination problems so he went to VA to receive
    treatment.8 The VA doctor told appellant that she would check the results of his urinary samples.9
    She also prescribed moxifloxacin and referred him to a genitourinary specialist.10 And she advised
    appellant to return in six weeks if his symptoms didn’t improve.11
    In February 2007, appellant received treatment from Dr. Clay Boyd, a private physician.12
    Dr. Boyd requested a bladder ultrasound, which revealed a possible bladder tumor.13 So appellant
    returned to his VA physician, who, after discussing the ultrasound with Dr. Boyd, requested a
    cystoscopy.14 Days later, appellant underwent a cystoscopy, which confirmed a bladder tumor.15
    Appellant applied for benefits under section 1151 for bladder-cancer residuals he claimed resulted
    from VA’s failure to properly treat him when he complained about his urination problems in
    December 2006.16 This claim is also on appeal here.
    B. Legal Principles
    4 R. at 2471.
    5 R. at 2223.
    6 See R. at 4562.
    7 Id.
    8 R. at 4441.
    9 R. at 4442.
    10 Id.
    11 R. at 4443.
    12 See R. at 3610.
    13 Id.
    14 R. at 4431.
    15 See R. at 3611-12.
    16 See R. at 4155.
    3
    Establishing service connection generally requires evidence of (1) a current disability, (2)
    in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the claimed
    in-service disease or injury and the present disability.17 The Court reviews for clear error the
    Board’s findings on service connection.18 The Court will overturn the Board’s findings only if the
    record has no plausible basis for the Board’s decision and the Court is left with a definite and firm
    conviction that the Board committed a mistake.19
    A veteran may receive compensation for a disability VA medical treatment actually and
    proximately caused.20 VA medical treatment proximately causes a disability when it results from
    carelessness, negligence, lack of proper skill, error in judgment, “or similar instance of fault.”21
    VA medical treatment also proximately causes a disability when it results from “an event not
    reasonably foreseeable.”22
    The Secretary must obtain an adequate medical opinion when necessary to decide a claim.23
    A medical opinion is adequate when the examiner reviews the veteran’s medical records and
    describes a disability in enough detail to help fully inform the Board’s decision.24 Further, the
    examiner must support her conclusion with an analysis the Board can “consider and weigh against
    contrary opinions.”25 Whether a medical opinion is adequate is a factual question this Court
    reviews for clear error.26 The Board’s reliance on an inadequate medical opinion constitutes clear
    error and requires remand.27
    For all material issues of fact and law, the Board must support its decision with an adequate
    statement of reasons or bases that allows the claimant to understand the precise reasons for the
    17 38 C.F.R. § 3.303(a); see Hickson v. West, 12 Vet.App. 247, 252 (1999).
    18 Dyment v. West, 13 Vet.App. 141, 144 (1999) (citation omitted).
    19 See Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990).
    20 38 U.S.C. § 1151(a); 38 C.F.R. § 3.361(c)–(d).
    21 38 U.S.C. § 1151(a)(1)(A).
    22 38 U.S.C. § 1151(a); 38 C.F.R. § 3.361(d)(2).
    23 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet.App. 303, 311 (2007) (citations omitted).
    24 Bailey v. O’Rourke, 30 Vet.App. 54, 59 (2018) (citation omitted); Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 304
    (2008); Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007).
    25 Nohr v. McDonald, 27 Vet.App. 124, 132 (2014); Nieves-Rodriguez, 22 Vet.App. at 395.
    26 Bailey, 30 Vet.App. at 59 (citation omitted).
    27 Id. at 60.
    4
    Board’s decision and facilitates review in this Court.28 If the Board fails to provide an adequate
    statement of reasons or bases for its decision, remand is appropriate.29
    C. Issues on Appeal
  3. Whether Board gave adequate reasons or bases when considering medical opinions.
    Appellant argues the Board provided an inadequate statement of reasons or bases for giving
    more weight to VA medical opinions than to private opinions.30 He points out that the Board
    previously found those VA opinions inadequate.31 And he argues that Dr. Brian Brogle, a private
    physician, provided an opinion in October 2015 with a comprehensive rationale on why VA’s
    negligence caused his cancer residuals.32 So, according to appellant, the Board gave an inadequate
    explanation for giving less weight to Dr. Brogle’s opinion.33
    The Secretary argues the Board gave an adequate statement of reasons or bases on how it
    considered different medical opinions.34 He points out that the Board may find inadequate medical
    opinions probative.35 And he argues the Board properly found conclusory Dr. Brogle’s opinion.36
    The Board gave an inadequate statement of reasons or bases for assigning more weight to
    the December 2008, November 2012, and March 2014 VA opinions. The Board gave those
    opinions “considerable weight.”37 But the Board earlier found those same opinions inadequate. In
    a June 2011 decision, the Board found the record, including the December 2008 VA opinion,
    insufficient to decide appellant’s section 1151 claim. 38 In its September 2013 decision, the Board
    found the November 2012 VA examination unclear and requested an addendum.39 And, in its July
    28 38 U.S.C. § 7104(d)(1); Gilbert, 1 Vet.App. at 57.
    29 Tucker v. West, 11 Vet.App. 369, 374 (1998).
    30 Appellant’s Br. at 14-19.
    31 Id. at 15-16.
    32 Id. at 14-15.
    33 Id. at 15.
    34 Secretary’s Br. at 13-19.
    35 Id. at 16-17.
    36 Id. at 17-18.
    37 R. at 10.
    38 R. at 3493.
    39 R. at 2330-31.
    5
    2016 decision, the Board found the March 2014 VA examination inadequate.40 Despite these
    earlier findings, the Board never explained in its latest decision how it now finds those same
    opinions probative. This lack of reasons or bases frustrates judicial review and requires remand.41
    The Board’s reasons or bases for how it weighs the VA opinions affects how it must
    reconsider Dr. Brogles’s October 2015 opinion and the October 2016 VA opinion.42 One reason
    the Board gave for not assigning more weight to Dr. Brogle’s opinion was his supposed failure to
    consider the March 2014 VA opinion.43 But that’s not an adequate reason or basis because the
    Board never explained why the March 2014 VA opinion is now adequate. So the Board must
    reconsider Dr. Brogles’s October 2015 opinion and the October 2016 VA opinion in light of its
    analysis of the other VA opinions.44
  4. Whether Board properly interpreted March 2014 examination.
    Appellant argues the Board misinterpreted what the March 2014 VA examiner said about
    the need for a “fish” test.45 He argues that the VA examiner said that an ultrasound is not a
    definitive test for bladder cancer.46 So, according to appellant, the Board erred when it found that
    the VA examiner said that a “fish” test is not a definitive test for bladder cancer.47
    The Board recognized appellant’s argument that VA should have performed a “fish” test.48
    The Board found, however, that the March 2014 VA examiner said that test is not “definitive” for
    bladder cancer.49
    40 R. at 1437-38.
    41 Cf. Smith v. Wilkie, No. 18-1189, _ Vet.App. _, 2020 WL 1982279 (Apr. 27, 2020) (holding that the Board
    must provide notice or an opportunity for the claimant to respond before changing an earlier favorable credibility
    determination).
    42 Cf. Parseeya-Picchione v. McDonald, 28 Vet.App. 171, 177 (2016) (“[A] determination on the diabetes claim may
    have a ‘significant impact’ on the remaining claims on appeal; consequently, the Court will remand both claims as
    inextricably intertwined.”).
    43 R. at 11.
    44 See Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991) (“A remand is meant to entail a critical examination of the
    justification for the decision.”).
    45 Appellant’s Br. at 16-17.
    46 Id.
    47 Id. at 16.
    48 R. at 11.
    49 Id.
    6
    How the Board arrived at its conclusion about the “fish” test is unclear. Aside from
    recognizing appellant’s argument, the Board never discussed what is a “fish” test. And the March
    2014 VA examiner never refers to a “fish” test. The VA examiner said an ultrasound is not a
    definitive test for bladder cancer.50 Whether a “fish” test is an ultrasound is a factual matter for the
    Board to determine.51 Either way, the Board provided an inadequate statement of reasons or bases
    for rejecting appellant’s argument about whether VA should have performed a “fish” test.
  5. Whether medical opinions address standard of care.
    Appellant argues the Board failed to state the standard of care that applies to his section
    1151 claim.52 He argues that the Board relied on VA opinions that also failed to explain the
    standard of care.53
    The Secretary argues that the VA opinions explained that appellant’s symptoms suggested
    an infection.54 So, according to the Secretary, the VA opinions explained that the proper standard
    of care was to treat appellant for an infection.55
    We agree with appellant. Neither the Board nor the VA opinions state the standard of care
    that applies to appellant’s section 1151 claim.56 More to the point, the VA examiners, Board, and
    Secretary fail to address a crucial question: Why is it that Dr. Boyd performed testing that revealed
    possible bladder cancer, but VA doctors didn’t? Appellant showed similar symptoms to Dr. Boyd
    and VA doctors. Dr. Boyd performed an ultrasound that revealed possible bladder cancer; VA
    doctors treated appellant for an infection. Explaining these different treatments will help establish
    the appropriate standard of care
    .57 For now, however, the VA opinions are inadequate to decide
    50 See R. at 2219 (“Pt sought care from another urologist who did u/s which is not a definitive test for bladder ca
    [sic]”).
    51 See Godfrey v. Derwinski, 2 Vet.App. 352, 355 (1992) (“It is not the role of this Court to serve as the initial finder
    of fact.”).
    52 Appellant’s Br. at 19-21.
    53 See id.
    54 Secretary’s Br. at 20.
    55 Id.
    56 See R. at 9-13 (Board decision), 892 (October 2016 VA opinion), 1185-88 (December 2008 VA opinion), 2216-19
    (March 2014 VA opinion), 2512-20 (November 2012 VA opinion).
    57 See McNair v. Shinseki, 25 Vet.App. 98, 106 (2011) (noting that common-law standards for negligence apply to
    claims under section 1151)
    .
    7
    appellant’s section 1151 claims. And the Board gave inadequate reasons or bases for relying on
    those opinions. Remand on these issues is necessary.
  6. Whether Board properly found appellant not credible.
    The Board found appellant not credible with respect to his lay statements about his
    gastrointestinal and left-shoulder claims.58 Appellant argues the Board based its credibility finding
    on an improper basis.59 The Secretary argues that the Board properly based its credibility finding
    on various factors.60
    The Board acknowledged appellant’s statements that he suffered gastrointestinal problems
    and left-shoulder pain since service.61 But the Board found his statements not credible because of
    a “large gap in treatment” from 1966 (when appellant left service) to 2005.62 The Board found
    most persuasive that appellant applied for education benefits thirty years before he applied for
    service connection for gastrointestinal disorder and left-shoulder disability.63 The Board found that
    weighed heavily against appellant’s credibility.64
    The Board based its credibility finding on an improper basis. Nothing requires a claimant
    to apply for benefits sooner than later.65 Moreover, it’s not clear to us why, as the Board seemed
    to believe, a veteran applying for educational benefits shows the comprehensive understanding of
    the VA benefits system. So the Board gave inadequate reasons or bases for finding appellant not
    credible, and remand is necessary on this issue.
  7. Whether VA medical opinions are adequate to decide gastrointestinal-disorder claim.
    58 R. at 14.
    59 Appellant’s Br. at 21-22.
    60 Secretary’s Br. at 26-29.
    61 R. at 14.
    62 Id.
    63 Id.
    64 Id.
    65 See Frost v. Shulkin, 29 Vet.App. 131, 138 (2017) (“[A] veteran has no obligation to file a compensation claim as
    soon as he or she becomes award of disability.”).
    8
    Appellant argues that no VA opinion addresses whether his service-connected PTSD or
    pain medications caused or aggravated his gastrointestinal disorder.66 So appellant concludes that
    the VA opinions are inadequate.67
    The Secretary concedes that the March 2017 VA opinion failed to address whether pain
    medications caused or aggravated appellant’s gastrointestinal disorder. 68 And the Secretary
    concedes that the October 2016 VA examiner failed to address whether PTSD or pain medications
    caused or aggravated appellant’s gastrointestinal disorder.69 But the Secretary argues that appellant
    fails to show prejudicial error.70
    The Secretary’s argument about a lack of prejudice fails, especially considering the other
    errors in this case. So we accept the Secretary’s concessions concerning the October 2016 and
    March 2017 VA opinions.
    The Secretary argues that the March 2014 VA opinion addresses whether PTSD or pain
    medications caused or aggravated appellant’s gastrointestinal disorder.71
    Dr. Philip Lundy, who performed the March 2014 examination, acknowledged appellant’s
    argument that his stress and pain medications caused his digestive problems.72 While recognizing
    that is possible, Dr. Lundy also acknowledged that “[appellant] no longer has any of those
    diagnoses.”73 Dr. Lundy continued:
    [Appellant] currently has GERD which is defined as a chronic digestive disease
    that occurs when stomach acid or occasionally bile flows back into your esophagus.
    The backwash of acid irritates the lining of your esophagus causing the signs and
    symptoms of GERD. Therefore, it is less likely than not that [appellant’s] current
    GERD was caused by his [service-connected] PTSD, aggravated by his [serviceconnected]
    PTSD, caused by his service-connected thoracolumbar disability or its
    medication, or aggravated by his [service-connected] thoracolumbar disability or
    its medications.[74]
    66 Appellant’s Br. at 22-27.
    67 Id. at 26-27.
    68 Secretary’s Br. at 23.
    69 Id. at 23-24.
    70 Id. at 24.
    71 Id. at 21-23.
    72 R. at 2218.
    73 Id.
    74 Id.
    9
    Appellant argues that when Dr. Lundy said appellant “no longer has any of those
    diagnoses,” he could not have been referring to appellant’s service-connected PTSD or back
    condition because he had current diagnoses for both.75
    We agree with appellant. How Dr. Lundy could find in March 2014 that appellant had no
    PTSD or back-pain diagnoses is unclear considering that those disabilities were service connected
    in March 2014.76 So the March 2014 VA opinion is also inadequate to find whether appellant’s
    PTSD or pain medications caused or aggravated his gastrointestinal disorder.
    To summarize, the March 2017 VA opinion failed to address whether pain medications
    caused or aggravated appellant’s gastrointestinal disorder. The October 2016 VA opinion failed to
    address whether PTSD or pain medications caused or aggravated appellant’s gastrointestinal
    disorder. And the March 2014 VA opinion is unclear on how Dr. Lundy found that appellant’s
    PTSD and pain medication did not cause or aggravate his gastrointestinal disorder. So those VA
    opinions are inadequate to decide whether appellant’s PTSD or pain medication caused or
    aggravated his gastrointestinal disorder.
  8. Whether Board properly relied on September 2012 examination.
    Appellant argues the Board erred when it relied on a September 2012 VA opinion to deny
    his left-shoulder claim.77 He argues that the Board improperly interpreted the VA opinion.78 And
    he argues that the VA examiner and Board improperly relied on a lack of treatment or symptoms.79
    The Secretary argues the VA examiner provided an adequate explanation.80 According to
    the Secretary, the examiner explained that x-rays showed that appellant’s left-shoulder condition
    resulted from aging.81 And the Secretary argues that the examiner’s opinion did not rely on a lack
    of treatment.82
    75 Appellant’s Br. at 14.
    76 See R. at 2335-36 (September 2013 Board remand referring to appellant’s service-connected PTSD and
    thoracolumbar-spine disability).
    77 Appellant’s Br. at 27-29.
    78 Id. at 27-28.
    79 Id. at 28-29.
    80 Secretary’s Br. at 25-26.
    81 Id.
    82 Id. at 26.
    10
    Dr. Henry Bienert, the VA examiner, concluded that appellant’s in-service event less likely
    than not caused his left-shoulder disorder.83 Dr. Bienert gave his rationale:
    A minor event in [military service] that required little [treatment] in military and
    NONE first ten years post [discharge] and recent x-rays show age-typical changes
    actually BETTER on [left] than [right] side.[84]
    The Board erred when it relied on this opinion. To begin, Dr. Bienert’s opinion relies
    heavily on a lack of treatment. Although it may consider lack of treatment,85 the Board must
    explain why it would expect the claimant to seek treatment.86 The Board failed to establish the
    proper foundation here.87
    What’s more, Dr. Bienert never articulated why appellant’s left-shoulder symptoms are
    “age-typical.” Instead, he arrived at that conclusion without explanation. So the Board erred when
    it relied on the September 2012 VA opinion to deny appellant’s left-shoulder claim.
    D. Summary of Errors
  9. Section 1151 Claim
    The Board gave an inadequate statement of reasons or bases for assigning more weight to
    the December 2008, November 2012, and March 2014 VA opinions. On remand, the Board must
    also reconsider Dr. Brogles’s October 2015 opinion and the October 2016 VA opinion.
    Similarly, the Board gave an inadequate statement of reasons or bases for rejecting
    appellant’s argument that VA should have performed a “fish” test.
    The VA medical opinions are inadequate to decide appellant’s section 1151 claim because
    none discuss the appropriate standard of care. And the Board gave an inadequate statement of
    reasons or bases for relying on those opinions.
  10. Gastrointestinal-Disorder Claim
    The Board based its credibility finding on an improper basis. Further, the March 2014,
    October 2016, and March 2017 VA opinions are inadequate to decide whether appellant’s PTSD
    or pain medication caused or aggravated his gastrointestinal disorder.
    83 R. at 2558.
    84 Id.
    85 See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).
    86 See Fountain v. McDonald, 27 Vet.App. 258, 272-73 (2015); Buczynski v. Shinseki, 24 Vet.App. 221, 224 (2011).
    87 See R. at 15-16.
    11
  11. Left-Shoulder Claim
    The Board erred when it relied on the September 2012 VA opinion to deny appellant’s leftshoulder
    claim. The Board failed to explain why it would expect appellant seek treatment earlier
    for his left shoulder. And Dr. Bienart never explained why appellant’s left-shoulder symptoms are
    “age-typical.” Finally, the Board based its credibility finding on an improper basis.
  12. Rights on Remand
    We need not address appellant’s remaining arguments because we are remanding these
    matters to the Board.88 On remand, appellant may submit additional evidence and argument within
    ninety days of receiving VA’s post-remand notice.89 The Board must consider additional evidence
    and arguments appellant submits, and the Board must proceed expeditiously.90
    II. CONCLUSION
    After considering the parties’ briefs, the governing law, and the record, the Court SETS
    ASIDE the March 7, 2019, Board decision and REMANDS this matter for further proceedings
    consistent with this decision.
    DATED: June 16, 2020
    Copies to:
    Zachary M. Stolz, Esq.
    VA General Counsel (027)
    88 See Kutscherousky v. West, 12 Vet.App. 369, 372 (1999).
    89 Id.; see also Clark v. O’Rourke, 30 Vet.App. 92 (2018).
    90 Kay v. Principi, 16 Vet.App. 529, 533-34 (2002); see 38 U.S.C. §§ 5109B, 7112.
  1. Left-Shoulder and Gastrointestinal-Disorder Claims
    Appellant served in the Air Force from 1962 to 1966.4 He was injured in a car accident
    while in service.5 Forty years after his discharge, appellant applied for service connection for a
    left-shoulder disability, which he claims resulted from that in-service car accident.6 He also applied
    for service connection for a gastrointestinal disorder.7 These two claims are on appeal here.
  2. Section 1151 Claim
    In December 2006, appellant experienced urination problems so he went to VA to receive
    treatment.8 The VA doctor told appellant that she would check the results of his urinary samples.9
    She also prescribed moxifloxacin and referred him to a genitourinary specialist.10 And she advised
    appellant to return in six weeks if his symptoms didn’t improve.11
    In February 2007, appellant received treatment from Dr. Clay Boyd, a private physician.12
    Dr. Boyd requested a bladder ultrasound, which revealed a possible bladder tumor.13 So appellant
    returned to his VA physician, who, after discussing the ultrasound with Dr. Boyd, requested a
    cystoscopy.14 Days later, appellant underwent a cystoscopy, which confirmed a bladder tumor.15
    Appellant applied for benefits under section 1151 for bladder-cancer residuals he claimed resulted
    from VA’s failure to properly treat him when he complained about his urination problems in
    December 2006.16 This claim is also on appeal here.
    B. Legal Principles
    4 R. at 2471.
    5 R. at 2223.
    6 See R. at 4562.
    7 Id.
    8 R. at 4441.
    9 R. at 4442.
    10 Id.
    11 R. at 4443.
    12 See R. at 3610.
    13 Id.
    14 R. at 4431.
    15 See R. at 3611-12.
    16 See R. at 4155.
    3
    Establishing service connection generally requires evidence of (1) a current disability, (2)
    in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the claimed
    in-service disease or injury and the present disability.17 The Court reviews for clear error the
    Board’s findings on service connection.18 The Court will overturn the Board’s findings only if the
    record has no plausible basis for the Board’s decision and the Court is left with a definite and firm
    conviction that the Board committed a mistake.19
    A veteran may receive compensation for a disability VA medical treatment actually and
    proximately caused.20 VA medical treatment proximately causes a disability when it results from
    carelessness, negligence, lack of proper skill, error in judgment, “or similar instance of fault.”21
    VA medical treatment also proximately causes a disability when it results from “an event not
    reasonably foreseeable.”22
    The Secretary must obtain an adequate medical opinion when necessary to decide a claim.23
    A medical opinion is adequate when the examiner reviews the veteran’s medical records and
    describes a disability in enough detail to help fully inform the Board’s decision.24 Further, the
    examiner must support her conclusion with an analysis the Board can “consider and weigh against
    contrary opinions.”25 Whether a medical opinion is adequate is a factual question this Court
    reviews for clear error.26 The Board’s reliance on an inadequate medical opinion constitutes clear
    error and requires remand.27
    For all material issues of fact and law, the Board must support its decision with an adequate
    statement of reasons or bases that allows the claimant to understand the precise reasons for the
    17 38 C.F.R. § 3.303(a); see Hickson v. West, 12 Vet.App. 247, 252 (1999).
    18 Dyment v. West, 13 Vet.App. 141, 144 (1999) (citation omitted).
    19 See Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990).
    20 38 U.S.C. § 1151(a); 38 C.F.R. § 3.361(c)–(d).
    21 38 U.S.C. § 1151(a)(1)(A).
    22 38 U.S.C. § 1151(a); 38 C.F.R. § 3.361(d)(2).
    23 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet.App. 303, 311 (2007) (citations omitted).
    24 Bailey v. O’Rourke, 30 Vet.App. 54, 59 (2018) (citation omitted); Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 304
    (2008); Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007).
    25 Nohr v. McDonald, 27 Vet.App. 124, 132 (2014); Nieves-Rodriguez, 22 Vet.App. at 395.
    26 Bailey, 30 Vet.App. at 59 (citation omitted).
    27 Id. at 60.
    4
    Board’s decision and facilitates review in this Court.28 If the Board fails to provide an adequate
    statement of reasons or bases for its decision, remand is appropriate.29
    C. Issues on Appeal
  3. Whether Board gave adequate reasons or bases when considering medical opinions.
    Appellant argues the Board provided an inadequate statement of reasons or bases for giving
    more weight to VA medical opinions than to private opinions.30 He points out that the Board
    previously found those VA opinions inadequate.31 And he argues that Dr. Brian Brogle, a private
    physician, provided an opinion in October 2015 with a comprehensive rationale on why VA’s
    negligence caused his cancer residuals.32 So, according to appellant, the Board gave an inadequate
    explanation for giving less weight to Dr. Brogle’s opinion.33
    The Secretary argues the Board gave an adequate statement of reasons or bases on how it
    considered different medical opinions.34 He points out that the Board may find inadequate medical
    opinions probative.35 And he argues the Board properly found conclusory Dr. Brogle’s opinion.36
    The Board gave an inadequate statement of reasons or bases for assigning more weight to
    the December 2008, November 2012, and March 2014 VA opinions. The Board gave those
    opinions “considerable weight.”37 But the Board earlier found those same opinions inadequate. In
    a June 2011 decision, the Board found the record, including the December 2008 VA opinion,
    insufficient to decide appellant’s section 1151 claim. 38 In its September 2013 decision, the Board
    found the November 2012 VA examination unclear and requested an addendum.39 And, in its July
    28 38 U.S.C. § 7104(d)(1); Gilbert, 1 Vet.App. at 57.
    29 Tucker v. West, 11 Vet.App. 369, 374 (1998).
    30 Appellant’s Br. at 14-19.
    31 Id. at 15-16.
    32 Id. at 14-15.
    33 Id. at 15.
    34 Secretary’s Br. at 13-19.
    35 Id. at 16-17.
    36 Id. at 17-18.
    37 R. at 10.
    38 R. at 3493.
    39 R. at 2330-31.
    5
    2016 decision, the Board found the March 2014 VA examination inadequate.40 Despite these
    earlier findings, the Board never explained in its latest decision how it now finds those same
    opinions probative. This lack of reasons or bases frustrates judicial review and requires remand.41
    The Board’s reasons or bases for how it weighs the VA opinions affects how it must
    reconsider Dr. Brogles’s October 2015 opinion and the October 2016 VA opinion.42 One reason
    the Board gave for not assigning more weight to Dr. Brogle’s opinion was his supposed failure to
    consider the March 2014 VA opinion.43 But that’s not an adequate reason or basis because the
    Board never explained why the March 2014 VA opinion is now adequate. So the Board must
    reconsider Dr. Brogles’s October 2015 opinion and the October 2016 VA opinion in light of its
    analysis of the other VA opinions.44
  4. Whether Board properly interpreted March 2014 examination.
    Appellant argues the Board misinterpreted what the March 2014 VA examiner said about
    the need for a “fish” test.45 He argues that the VA examiner said that an ultrasound is not a
    definitive test for bladder cancer.46 So, according to appellant, the Board erred when it found that
    the VA examiner said that a “fish” test is not a definitive test for bladder cancer.47
    The Board recognized appellant’s argument that VA should have performed a “fish” test.48
    The Board found, however, that the March 2014 VA examiner said that test is not “definitive” for
    bladder cancer.49
    40 R. at 1437-38.
    41 Cf. Smith v. Wilkie, No. 18-1189, _ Vet.App. _, 2020 WL 1982279 (Apr. 27, 2020) (holding that the Board
    must provide notice or an opportunity for the claimant to respond before changing an earlier favorable credibility
    determination).
    42 Cf. Parseeya-Picchione v. McDonald, 28 Vet.App. 171, 177 (2016) (“[A] determination on the diabetes claim may
    have a ‘significant impact’ on the remaining claims on appeal; consequently, the Court will remand both claims as
    inextricably intertwined.”).
    43 R. at 11.
    44 See Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991) (“A remand is meant to entail a critical examination of the
    justification for the decision.”).
    45 Appellant’s Br. at 16-17.
    46 Id.
    47 Id. at 16.
    48 R. at 11.
    49 Id.
    6
    How the Board arrived at its conclusion about the “fish” test is unclear. Aside from
    recognizing appellant’s argument, the Board never discussed what is a “fish” test. And the March
    2014 VA examiner never refers to a “fish” test. The VA examiner said an ultrasound is not a
    definitive test for bladder cancer.50 Whether a “fish” test is an ultrasound is a factual matter for the
    Board to determine.51 Either way, the Board provided an inadequate statement of reasons or bases
    for rejecting appellant’s argument about whether VA should have performed a “fish” test.
  5. Whether medical opinions address standard of care.
    Appellant argues the Board failed to state the standard of care that applies to his section
    1151 claim.52 He argues that the Board relied on VA opinions that also failed to explain the
    standard of care.53
    The Secretary argues that the VA opinions explained that appellant’s symptoms suggested
    an infection.54 So, according to the Secretary, the VA opinions explained that the proper standard
    of care was to treat appellant for an infection.55
    We agree with appellant. Neither the Board nor the VA opinions state the standard of care
    that applies to appellant’s section 1151 claim.56 More to the point, the VA examiners, Board, and
    Secretary fail to address a crucial question: Why is it that Dr. Boyd performed testing that revealed
    possible bladder cancer, but VA doctors didn’t? Appellant showed similar symptoms to Dr. Boyd
    and VA doctors. Dr. Boyd performed an ultrasound that revealed possible bladder cancer; VA
    doctors treated appellant for an infection. Explaining these different treatments will help establish
    the appropriate standard of care.57 For now, however, the VA opinions are inadequate to decide
    50 See R. at 2219 (“Pt sought care from another urologist who did u/s which is not a definitive test for bladder ca
    [sic]”).
    51 See Godfrey v. Derwinski, 2 Vet.App. 352, 355 (1992) (“It is not the role of this Court to serve as the initial finder
    of fact.”).
    52 Appellant’s Br. at 19-21.
    53 See id.
    54 Secretary’s Br. at 20.
    55 Id.
    56 See R. at 9-13 (Board decision), 892 (October 2016 VA opinion), 1185-88 (December 2008 VA opinion), 2216-19
    (March 2014 VA opinion), 2512-20 (November 2012 VA opinion).
    57 See McNair v. Shinseki, 25 Vet.App. 98, 106 (2011) (noting that common-law standards for negligence apply to
    claims under section 1151).
    7
    appellant’s section 1151 claims. And the Board gave inadequate reasons or bases for relying on
    those opinions. Remand on these issues is necessary.
  6. Whether Board properly found appellant not credible.
    The Board found appellant not credible with respect to his lay statements about his
    gastrointestinal and left-shoulder claims.58 Appellant argues the Board based its credibility finding
    on an improper basis.59 The Secretary argues that the Board properly based its credibility finding
    on various factors.60
    The Board acknowledged appellant’s statements that he suffered gastrointestinal problems
    and left-shoulder pain since service.61 But the Board found his statements not credible because of
    a “large gap in treatment” from 1966 (when appellant left service) to 2005.62 The Board found
    most persuasive that appellant applied for education benefits thirty years before he applied for
    service connection for gastrointestinal disorder and left-shoulder disability.63 The Board found that
    weighed heavily against appellant’s credibility.64
    The Board based its credibility finding on an improper basis. Nothing requires a claimant
    to apply for benefits sooner than later.65 Moreover, it’s not clear to us why, as the Board seemed
    to believe, a veteran applying for educational benefits shows the comprehensive understanding of
    the VA benefits system. So the Board gave inadequate reasons or bases for finding appellant not
    credible, and remand is necessary on this issue.
  7. Whether VA medical opinions are adequate to decide gastrointestinal-disorder claim.
    58 R. at 14.
    59 Appellant’s Br. at 21-22.
    60 Secretary’s Br. at 26-29.
    61 R. at 14.
    62 Id.
    63 Id.
    64 Id.
    65 See Frost v. Shulkin, 29 Vet.App. 131, 138 (2017) (“[A] veteran has no obligation to file a compensation claim as
    soon as he or she becomes award of disability.”).
    8
    Appellant argues that no VA opinion addresses whether his service-connected PTSD or
    pain medications caused or aggravated his gastrointestinal disorder.66 So appellant concludes that
    the VA opinions are inadequate.67
    The Secretary concedes that the March 2017 VA opinion failed to address whether pain
    medications caused or aggravated appellant’s gastrointestinal disorder. 68 And the Secretary
    concedes that the October 2016 VA examiner failed to address whether PTSD or pain medications
    caused or aggravated appellant’s gastrointestinal disorder.69 But the Secretary argues that appellant
    fails to show prejudicial error.70
    The Secretary’s argument about a lack of prejudice fails, especially considering the other
    errors in this case. So we accept the Secretary’s concessions concerning the October 2016 and
    March 2017 VA opinions.
    The Secretary argues that the March 2014 VA opinion addresses whether PTSD or pain
    medications caused or aggravated appellant’s gastrointestinal disorder.71
    Dr. Philip Lundy, who performed the March 2014 examination, acknowledged appellant’s
    argument that his stress and pain medications caused his digestive problems.72 While recognizing
    that is possible, Dr. Lundy also acknowledged that “[appellant] no longer has any of those
    diagnoses.”73 Dr. Lundy continued:
    [Appellant] currently has GERD which is defined as a chronic digestive disease
    that occurs when stomach acid or occasionally bile flows back into your esophagus.
    The backwash of acid irritates the lining of your esophagus causing the signs and
    symptoms of GERD. Therefore, it is less likely than not that [appellant’s] current
    GERD was caused by his [service-connected] PTSD, aggravated by his [serviceconnected]
    PTSD, caused by his service-connected thoracolumbar disability or its
    medication, or aggravated by his [service-connected] thoracolumbar disability or
    its medications.[74]
    66 Appellant’s Br. at 22-27.
    67 Id. at 26-27.
    68 Secretary’s Br. at 23.
    69 Id. at 23-24.
    70 Id. at 24.
    71 Id. at 21-23.
    72 R. at 2218.
    73 Id.
    74 Id.
    9
    Appellant argues that when Dr. Lundy said appellant “no longer has any of those
    diagnoses,” he could not have been referring to appellant’s service-connected PTSD or back
    condition because he had current diagnoses for both.75
    We agree with appellant. How Dr. Lundy could find in March 2014 that appellant had no
    PTSD or back-pain diagnoses is unclear considering that those disabilities were service connected
    in March 2014.76 So the March 2014 VA opinion is also inadequate to find whether appellant’s
    PTSD or pain medications caused or aggravated his gastrointestinal disorder.
    To summarize, the March 2017 VA opinion failed to address whether pain medications
    caused or aggravated appellant’s gastrointestinal disorder. The October 2016 VA opinion failed to
    address whether PTSD or pain medications caused or aggravated appellant’s gastrointestinal
    disorder. And the March 2014 VA opinion is unclear on how Dr. Lundy found that appellant’s
    PTSD and pain medication did not cause or aggravate his gastrointestinal disorder. So those VA
    opinions are inadequate to decide whether appellant’s PTSD or pain medication caused or
    aggravated his gastrointestinal disorder.
  8. Whether Board properly relied on September 2012 examination.
    Appellant argues the Board erred when it relied on a September 2012 VA opinion to deny
    his left-shoulder claim.77 He argues that the Board improperly interpreted the VA opinion.78 And
    he argues that the VA examiner and Board improperly relied on a lack of treatment or symptoms.79
    The Secretary argues the VA examiner provided an adequate explanation.80 According to
    the Secretary, the examiner explained that x-rays showed that appellant’s left-shoulder condition
    resulted from aging.81 And the Secretary argues that the examiner’s opinion did not rely on a lack
    of treatment.82
    75 Appellant’s Br. at 14.
    76 See R. at 2335-36 (September 2013 Board remand referring to appellant’s service-connected PTSD and
    thoracolumbar-spine disability).
    77 Appellant’s Br. at 27-29.
    78 Id. at 27-28.
    79 Id. at 28-29.
    80 Secretary’s Br. at 25-26.
    81 Id.
    82 Id. at 26.
    10
    Dr. Henry Bienert, the VA examiner, concluded that appellant’s in-service event less likely
    than not caused his left-shoulder disorder.83 Dr. Bienert gave his rationale:
    A minor event in [military service] that required little [treatment] in military and
    NONE first ten years post [discharge] and recent x-rays show age-typical changes
    actually BETTER on [left] than [right] side.[84]
    The Board erred when it relied on this opinion. To begin, Dr. Bienert’s opinion relies
    heavily on a lack of treatment. Although it may consider lack of treatment,85 the Board must
    explain why it would expect the claimant to seek treatment.86 The Board failed to establish the
    proper foundation here.87
    What’s more, Dr. Bienert never articulated why appellant’s left-shoulder symptoms are
    “age-typical.” Instead, he arrived at that conclusion without explanation. So the Board erred when
    it relied on the September 2012 VA opinion to deny appellant’s left-shoulder claim.
    D. Summary of Errors
  9. Section 1151 Claim
    The Board gave an inadequate statement of reasons or bases for assigning more weight to
    the December 2008, November 2012, and March 2014 VA opinions. On remand, the Board must
    also reconsider Dr. Brogles’s October 2015 opinion and the October 2016 VA opinion.
    Similarly, the Board gave an inadequate statement of reasons or bases for rejecting
    appellant’s argument that VA should have performed a “fish” test.
    The VA medical opinions are inadequate to decide appellant’s section 1151 claim because
    none discuss the appropriate standard of care. And the Board gave an inadequate statement of
    reasons or bases for relying on those opinions.
  10. Gastrointestinal-Disorder Claim
    The Board based its credibility finding on an improper basis. Further, the March 2014,
    October 2016, and March 2017 VA opinions are inadequate to decide whether appellant’s PTSD
    or pain medication caused or aggravated his gastrointestinal disorder.
    83 R. at 2558.
    84 Id.
    85 See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).
    86 See Fountain v. McDonald, 27 Vet.App. 258, 272-73 (2015); Buczynski v. Shinseki, 24 Vet.App. 221, 224 (2011).
    87 See R. at 15-16.
    11
  11. Left-Shoulder Claim
    The Board erred when it relied on the September 2012 VA opinion to deny appellant’s leftshoulder
    claim. The Board failed to explain why it would expect appellant seek treatment earlier
    for his left shoulder. And Dr. Bienart never explained why appellant’s left-shoulder symptoms are
    “age-typical.” Finally, the Board based its credibility finding on an improper basis.
  12. Rights on Remand
    We need not address appellant’s remaining arguments because we are remanding these
    matters to the Board.88 On remand, appellant may submit additional evidence and argument within
    ninety days of receiving VA’s post-remand notice.89 The Board must consider additional evidence
    and arguments appellant submits, and the Board must proceed expeditiously.90
    II. CONCLUSION
    After considering the parties’ briefs, the governing law, and the record, the Court SETS
    ASIDE the March 7, 2019, Board decision and REMANDS this matter for further proceedings
    consistent with this decision.
    DATED: June 16, 2020
    Copies to:
    Zachary M. Stolz, Esq.
    VA General Counsel (027)
    88 See Kutscherousky v. West, 12 Vet.App. 369, 372 (1999).
    89 Id.; see also Clark v. O’Rourke, 30 Vet.App. 92 (2018).
    90 Kay v. Principi, 16 Vet.App. 529, 533-34 (2002); see 38 U.S.C. §§ 5109B, 7112.

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