Veteranclaims’s Blog

April 26, 2022

Single Judge Application; evidentiary inconsistency; Board’s basis for favoring the VA exam was clearly erroneous; the Board rejected the 2018 opinion because it was “outweighed by the remainder of the evidence of record.” Id. But the only inconsistent evidence that the Board mentions is the 2020 exam’s negative diagnosis for right leg radiculopathy. It is more accurate to say that the Board favored a single negative diagnosis over a single positive one, and did so merely because the positive diagnosis was “inconsistent” with the subsequent negative one. Id. Logically speaking, this reasoning is clearly erroneous—one could just as easily argue that the negative diagnosis is inadequate because it is controverted by the positive one. An evidentiary inconsistency usually suggests that some evidence is inaccurate, but it cannot, by itself, prove which evidence is inaccurate.; the Board cannot conclude that a condition was either incorrectly diagnosed or resolved itself over time simply because a positive diagnosis for a condition is followed by a negative one. Romanowsky v. Shinseki, 26 Vet.App. 289, 295 (2013);

Filed under: Uncategorized — veteranclaims @ 11:23 am

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 21-0602
DENNIS MICHAEL HANDEL, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before TOTH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
TOTH, Judge: Army veteran Dennis Michael Handel appeals a Board decision that denied
service connection for right lower extremity (leg) radiculopathy.* He argues that the Board clearly
erred in favoring a VA exam over a private medical opinion that he submitted in support of his
claim. Because the Board’s basis for favoring the VA exam was clearly erroneous, the Court
remands.
I. BACKGROUND
Mr. Handel served from 1966 to 1968. Fifty years later, in September 2018, he submitted
a medical opinion from his private physician, Dr. Cristobal Beiro, who reviewed the veteran’s
claims file and conducted an in-person examination. Dr. Beiro reported that Mr. Handel had
bilateral radiculopathy with moderate symptoms.The Board also granted service connection for left leg radiculopathy as secondary to service-connected
lumbar spondylosis. Because that award is favorable, it is not subject to review by this Court. See Roberson v. Principi,
17 Vet.App. 135, 139 (2003). The Board also remanded a claim for a total disability rating based on individual
unemployability. Because the Board did not reach a final decision on that claim, this Court has no jurisdiction over
that issue. See Breeden v. Principi, 17 Vet.App. 475, 478 (2004) (per curium order) (stating that a Board remand is
not a final decision over which this Court has jurisdiction).
2
In May 2019, Mr. Handel filed a claim for bilateral radiculopathy of the lower extremities
and underwent a VA exam in June 2019. A straight leg raise test was performed and returned a
positive result for both legs. According to the exam form, “[a] positive test suggests radiculopathy,
often due to disc herniation.” R. at 1620. However, the examiner found no radicular pain or other
signs or symptoms of radiculopathy.
In February 2020, Mr. Handel received another VA examination. The straight leg raise test
was negative for right leg radiculopathy and the examiner found no pain or symptoms of right leg
radiculopathy; the examiner thus found that the veteran did not have right leg radiculopathy.
In December 2020, the Board denied service connection for right lower extremity
radiculopathy because the 2020 VA exam did not show a present diagnosis or disability. The Board
found that the 2020 exam was highly probative because the examination was thorough; by contrast,
the 2018 exam—which diagnosed right leg radiculopathy—was of minimal probative value
because its findings were inconsistent with subsequent records. This appeal followed.
II. ANALYSIS
To establish service connection on a direct basis, a veteran must demonstrate (1) a current
disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus
between the in-service injury or disease and the current disability. Wait v. Wilkie, 33 Vet.App. 8,
14 (2020).
In cases like this, where there are competing medical opinions, the Board may favor one
competent medical opinion over another so long as it provides an adequate statement of reasons
and bases for its decision that informs the claimant of the exact reasons for its decision and
facilitates review by this Court. Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 300 (2008). In
practical terms, this means that the Board must analyze the credibility and probative value of
evidence, account for evidence it finds persuasive or unpersuasive, and explain why it has rejected
any material evidence favorable to the claimant. Arline v. McDonough, 34 Vet.App. 238, 247
(2021). The Court reviews the Board’s weighing of evidence under the “clearly erroneous”
standard, meaning that the Court will not disturb the Board’s findings unless it “is left with the
definite and firm conviction that a mistake has been committed.” Id. at 248.
The Court concludes that the Board clearly erred in its treatment of the 2018 opinion. The
Board reasoned that:
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[T]he most probative evidence weighs against a finding that the criteria have been
met for current right lower extremity radiculopathy. In this regard, the Board finds
it highly probative that the [2020] VA examiner indicated normal findings of the
right lower extremity and that the examination was thorough . . . The referenced
instance of right lower extremity radiculopathy [in the 2018 exam] is inconsistent
with subsequent records and does not indicate a chronic right lower extremity
radiculopathy disability. As such, the Board finds the June 2018 documentation by
Dr. C.B. of right lower extremity radiculopathy to be of minimal probative value
and outweighed by the remainder of the evidence of record as to whether the
Veteran currently evidences right lower extremity radiculopathy.
R. at 10. In effect, the Board rejected the 2018 opinion because it was “outweighed by the
remainder of the evidence of record.” Id. But the only inconsistent evidence that the Board
mentions is the 2020 exam’s negative diagnosis for right leg radiculopathy. It is more accurate to
say that the Board favored a single negative diagnosis over a single positive one, and did so merely
because the positive diagnosis was “inconsistent” with the subsequent negative one. Id. Logically
speaking, this reasoning is clearly erroneous—one could just as easily argue that the negative
diagnosis is inadequate because it is controverted by the positive one. An evidentiary inconsistency
usually suggests that some evidence is inaccurate, but it cannot, by itself, prove which evidence is
inaccurate.

It also does not matter that the negative diagnosis came later in time. For purposes of
determining whether a present disability exists, the Board cannot conclude that a condition was
either incorrectly diagnosed or resolved itself over time simply because a positive diagnosis for a
condition is followed by a negative one. Romanowsky v. Shinseki, 26 Vet.App. 289, 295 (2013)
.
If the Board believed that the veteran’s condition had resolved itself, it needed to cite competent
medical evidence for that conclusion rather than rely solely on the timing of the diagnoses.
Resisting this reasoning, the Secretary argues that the 2018 exam is also outweighed by the
2019 exam, which opined that the veteran did not have radicular pain or other signs or symptoms
of radiculopathy. However, the Board did not mention or rely on the 2019 exam. Such an argument
is an impermissible post hoc rationale that cannot make up for shortcomings in the Board’s
assessment of the evidence. Evans v. Shinseki, 25 Vet.App. 7, 16 (2011) (explaining that “it is the
Board that is required to provide a complete statement of reasons or bases” for its decision and
“the Secretary cannot make up for its failure to do so” by providing his own reasons or bases on
appeal).
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Moreover, it is possible to read the 2019 exam as contradicting the Board’s findings. Like
the 2018 exam, the 2019 exam’s straight leg raise test showed positive test results for both legs—
where “[a] positive test suggests radiculopathy, often due to disc herniation.” R. at 1620. This test
result casts further doubt on the Board’s conclusion that the 2018 exam’s positive diagnosis is
“inconsistent with subsequent records” and is “outweighed by the remainder of the evidence of
record.” R. at 10. It is true that, unlike the 2018 examiner, the 2019 examiner indicated that the
veteran did not have radicular pain or other signs or symptoms of radiculopathy. But even so, the
2019 exam constitutes potentially favorable evidence that the Board should have discussed.
The Secretary further contends that the Board sufficiently explained why it favored the
2020 exam over the 2018 exam because it described the 2020 exam as “thorough.” R. at 10. But
this argument is unpersuasive. The Board never found that the 2018 exam was not thorough or
was less thorough than the 2020 exam—and if it did, then it should have said so. See Arline, 34
Vet.App. at 247 (explaining that the Board must account for evidence it finds persuasive or
unpersuasive and explain why it has rejected any material evidence favorable to the claimant). In
any case, it is worth noting that the 2018 exam does not appear, on its face, to be less thorough
than the 2020 exam. Like the 2020 examiner, the 2018 examiner reviewed the veteran’s claims file
and conducted an in-person examination of the veteran. And pertinent here, the examiner
administered the straight leg raise test and assessed radicular pain in both legs.
In short, the Board did not provide an adequate rationale for favoring the 2020 exam over
the 2018 exam. R. at 10. Remand is warranted for the Board to adequately resolve the competing
diagnoses in the 2018 and 2020 exams. If , in reviewing the current record, the Board cannot find
a reasonable basis for favoring one diagnosis over another, it should seek further development of
the record or, alternatively, apply the benefit of the doubt doctrine in favor of the veteran. See 38
U.S.C. § 5107(b); see also Romanowsky, 26 Vet.App. at 295 (“[T]he Board erred by failing to
obtain a medical opinion that would have enabled it to resolve the discrepancies between the two
potentially competing medical examination reports prepared so close in time.”)
For the foregoing reasons, the Court VACATES the December 11, 2020, Board decision
and REMANDS the matter for further adjudication consistent with this opinion.
DATED: April 25, 2022
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Copies to:
Karl A. Kazmierczak, Esq.
VA General Counsel (027)

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