Veteranclaims’s Blog

April 18, 2019

Single Judge Application; fragmentary; ungrammatical; ambiguous and unpunctuated statement; fails to provide a ‘fully articulated, sound’ basis for the medical conclusion;

Filed under: Uncategorized — veteranclaims @ 8:09 am

Excerpt from decision below:

“The Board relied on the May 2016 VA examiner’s opinion that the appellant’s hypertension was not aggravated beyond its natural progression by his service-connected back condition and the examiner’s rationale of “[l]ack of objective medical evidence in the records without speculation
due to a variety of other causes and risk factors of hypertension.” R. at 9. The appellant argues that “[t]his fragmentary, ungrammatical, ambiguous and unpunctuated statement fails to provide a ‘fully articulated, sound’ basis for the medical conclusion.” Appellant’s Br. at 14. The appellant asserts that “it is unclear whether the concluding phrase (‘due to a variety of other causes and risk factors of hypertension’) is modified by the immediately preceding phrase ‘without speculation,’ or whether that phrase modifies the beginning part of the statement (‘Lack of objective medical evidence’)” and “the medical examiner’s statement fails to identify the ‘other causes and risk factors of hypertension’ and how those causes and factors specifically weigh against a finding of aggravated hypertension.” Id.”

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 17-3147
LONNIE D. SWONKE, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before SCHOELEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

SCHOELEN, Judge: The appellant, Lonnie D. Swonke, appeals a June 1, 2017, Board of Veterans’ Appeals (Board) decision that denied his claims for service connection for hypertension and for a total disability rating based on individual unemployability (TDIU). Record of Proceedings (R.) at 1-18. Because VA failed to provide an adequate statement of reasons or bases for its decision, the Court will vacate the Board’s decision and remand the matters for readjudication.
I. BACKGROUND
The appellant served on active duty in the U.S. Navy from June 1965 to June 1969. R. at

  1. In January 1999, he was awarded service-connected disability compensation for
    osteoarthritis with degenerative disc disease (back disability). R. at 1174-80.
    In March 2012, the appellant filed a claim for an increased disability rating for his back
    condition and for service connection for high blood pressure secondary to back pain. R. at 776-77.
    He was provided a VA compensation and pension (C&P) examination for his back in May 2012.
    R. at 737-49. The examiner diagnosed lumbosacral spine degenerative joint disease, degenerative
    2
    disc disease, and bilateral sciatica. R. at 737-38. The examiner opined that the appellant was no
    longer able to work as a mechanic “due to lifting, bending and climbing requirements.” R. at 748.
    The appellant was provided a VA C&P examination for hypertension in June 2012.1 R. at
    724-33. The examiner noted that the appellant was diagnosed with hypertension in 1996 and that
    his blood pressure measurements had been “relatively stable over the years,” but that he had
    “experienced a slight baseline increase of late.” R. at 730. The appellant reported that “with
    aggravation of his chronic back pain, his systolic pressures will rise into the 140-150mm Hg range
    from a baseline of 130-140mm Hg.” R. at 730-31. The examiner opined that the appellant’s
    hypertension was less likely than not proximately due to his service-connected back condition.
    R. at 727. The examiner explained that “while pain or discomfort such as that associated with
    osteoarthritis may be associated with transient elevations in blood pressure, the blood pressure will
    normalize with pain resolution in non-hypertensive patients” and that because the appellant “has
    persistently elevated blood pressure (as noted in his c[-]file) and is currently taking antihypertensives,
    his hypertension is persistent and not associated with his osteoarthritis.” Id.
    The regional office (RO) issued a rating decision in August 2012 denying service
    connection for hypertension, continuing the appellant’s 20% disability rating for his back
    disability, and denying TDIU. R. at 713-22. The appellant filed a timely Notice of Disagreement
    (NOD). R. at 708-09.
    The appellant underwent another VA examination for his back condition in February 2014.
    R. at 625-34. The examiner noted that the appellant was “forced to retire early because of
    limitation in his ability to walk and stand for required job.” R. at 633. In August 2015, VA
    obtained another medical opinion regarding the appellant’s hypertension. R. at 610-11. The VA
    examiner reviewed the appellant’s medical records and opined that his hypertension was less likely
    than not proximately due to or the result of his service-connected back condition, because
    “[o]steoarthritis is not related to hypertension” and the appellant’s “mother and brother have
    hypertension.” Id.
    1 Although the appellant and the Secretary refer to the June 2012 report as an “examination,” the Board, in
    the decision on appeal, refers to the report as an “opinion.” It is not clear from the examiner’s report whether the
    appellant was examined at that time or if the examiner provided an opinion based on a review of the medical records.
    3
    The appellant testified at a hearing before the Board in November 2015. R. at 489-526.
    He reported that Dr. Lindquist, his first VA physician in Austin, Texas, indicated that his high
    blood pressure “could possibly [be] because of the . . . pain in [his] back.” R. at 506-07.
    The Board issued a decision in March 2016 that, among other things, remanded the issue
    of TDIU for development, including obtaining an examination from a vocational or similar
    specialist regarding the appellant’s unemployability. R. at 442-61. The Board also remanded the
    appellant’s hypertension claim. R. at 459-60. The Board found both the June 2012 and August
    2015 VA C&P examinations “deficient in that they do not address whether the [appellant’s]
    service-connected back disability aggravated his hypertension.” R. at 458. The Board therefore
    remanded the claim for an opinion whether the appellant’s hypertension was aggravated by his
    service-connected back condition. R. at 459-60.
    The requested examinations were provided in May 2016. R. at 50-89. The appellant
    reported that he can stand for 20 minutes before having to stop; sit for 10 to 15 minutes, but will
    then get stiff and have to stand; he could lift 40 pounds without issue; feed cows, place hay, and
    use a tractor; garden; and mow his yard with a riding lawn mower. R. at 74. He reported pain at
    the examination, but noted that he was working with cows just prior to the appointment and “did
    a lot of bending, pulling and climbing in and out of the tractor” that morning. R. at 64. The
    examiner checked a box indicating that it is at least as likely as not that the appellant could perform
    light work. R. at 88. “Light work” was defined as requiring exertion of up to 20 pounds of force
    occasionally and up to 10 pounds frequently, or as requiring walking or standing to a significant
    degree, requiring sitting most of the time but entailing pushing and pulling arm or leg controls, or
    requiring a production-rate pace. Id. The examiner opined that it was difficult to “make an
    individual . . . unemployability statement” after seeing the appellant only once, but that with the
    information provided at the examination light work “may be indicated.” R. at 89.
    Regarding the appellant’s hypertension, the examiner reported that his blood pressure had
    slowly worsened since 2002 and that the appellant believed his elevated blood pressure correlated
    with back pain. R. at 77. The appellant reported that he checks his blood pressure when he is
    having back pain “and the number goes up to 165,” but stated that he had not spoken with the
    doctor regarding a correlation between his back pain and elevated blood pressure. Id. The
    appellant also reported that when his blood pressure is elevated “he becomes forgetful and would
    have to sit down and relax.” R. at 78. The examiner stated that she could not determine a baseline
    4
    level of severity prior to the claimed aggravation because: “There is no medical evidence of a
    condition prior to back injury in or before service in the medical records. The [appellant’s] records
    show a large gap from injury to hypertension readings in the medical records. Therefore medical
    evidence is not sufficient to support a determination without mere speculation regardless of
    elevated blood pressure readings.” R. at 82-83. The examiner further stated that regardless of
    baseline, the appellant’s hypertension is not at least as likely as not aggravated by its natural
    progression by his service-connected back disability because of “[l]ack of objective medical
    evidence in the records without speculation due to a variety of other causes and risk factors from
    hypertension.” R. at 83.
    The RO issued a Supplemental Statement of the case in November 2016. R. at 21-44. The
    RO confirmed and continued the previous denial of service connection for hypertension and TDIU.
    Id. In the June 1, 2017, decision here on appeal, the Board found that the May 2012, August 2015,
    and May 2016 VA examinations and the June 2012 VA medical opinion “altogether provided
    sufficient information” to render a decision on the appellant’s hypertension claim and that “taken
    together, [the examinations and opinion] are adequate for evaluation of the [appellant’s] claims.”
    R. at 5. The Board found that “the preponderance of the evidence shows that the [appellant’s]
    current hypertension is unrelated to service and was not caused or aggravated by the [appellant’s]
    service-connected back disability.” R. at 10. The Board also found that “the weight of the evidence
    is against a finding that the [appellant] is unable to obtain or retain substantially gainful
    employment because of his service-connected disabilities.” R. at 16. The Board therefore denied
    the appellant’s claim for TDIU. Id. This appeal followed.
    II. ANALYSIS
    A. Hypertension
    The Secretary’s duty to assist includes, in appropriate cases, “providing a medical
    examination or obtaining a medical opinion when such an examination or opinion is necessary to
    make a decision on the claim.” 38 U.S.C. § 5103A(d). Although VA need not provide a medical
    examination in all cases, “once the Secretary undertakes the effort to provide an examination when
    developing a service-connection claim, he must provide an adequate one.” Barr v. Nicholson,
    21 Vet.App. 303, 311 (2007). A medical examination is considered adequate “where it is based
    upon consideration of the veteran’s prior medical history and examinations and also describes the
    5
    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)); Green v. Derwinski, 1 Vet.App. 121, 124 (1991).
    Additionally, the opinion “must support its conclusion with an analysis that the Board can consider
    and weigh against contrary opinions.” Id. at 124-25; see also Nieves-Rodriguez v. Peake,
    22 Vet.App. 295, 301 (2008) (noting that “a medical examination report must contain not only
    clear conclusions with supporting data, but also a reasoned medical explanation connecting the
    two”).
    “Whether a medical opinion is adequate is a finding of fact, which this Court reviews under
    the ‘clearly erroneous’ standard.” D’Aries v. Peake, 22 Vet.App. 97, 104 (2008); see also Gilbert
    v. Derwinski, 1 Vet.App. 49, 52 (1990). 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.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); see also Gilbert,
    1 Vet.App. at 52. In every decision, the Board must provide a statement of the reasons or bases
    for its determination, adequate to enable an appellant to understand the precise basis for the Board’s
    decision as well as to facilitate review in this Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown,
    7 Vet.App. 517, 527 (1995); Gilbert, 1 Vet.App. at 56-57. To comply with this requirement, the
    Board must analyze the credibility and probative value of the evidence, account for the evidence
    it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material
    evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam,
    78 F.3d 604 (Fed. Cir. 1996) (table).
    The appellant argues that the June 2012 and May 2016 VA examinations are inadequate
    and that the Board therefore erred in relying on those opinions to deny his hypertension claim.
    Appellant’s Brief (Br.) 11-15. The Secretary concedes, as the Board found in March 2016, that the
    June 2012 VA examination was inadequate because it did not address whether the appellant’s
    service-connected back condition aggravated his hypertension. Secretary’s Br. at 7-8.
    Nevertheless, the Secretary maintains that the Board did not err in relying on portions of that
    opinion and that the May 2016 VA opinion, read as a whole, is adequate. Id. at 9.
    The Secretary is correct that the Board may rely on the June 2012 examination for the
    medical opinion it did provide; however, the appellant has argued throughout his appeal that the
    pain from his service-connected back disability exacerbates his high blood pressure. See R. at
    6
    77-78, 730-31. In March 2012, the Board found the June 2012 and August 2015 VA C&P
    examinations inadequate to answer the question whether the appellant’s hypertension is aggravated
    by his service-connected back disability. R. at 458. The May 2016 VA examination was ordered
    to remedy this deficiency. R. at 459-60.
    The Board relied on the May 2016 VA examiner’s opinion that the appellant’s hypertension
    was not aggravated beyond its natural progression by his service-connected back condition and the
    examiner’s rationale of “[l]ack of objective medical evidence in the records without speculation
    due to a variety of other causes and risk factors of hypertension.” R. at 9. The appellant argues
    that “[t]his fragmentary, ungrammatical, ambiguous and unpunctuated statement fails to provide a
    ‘fully articulated, sound’ basis for the medical conclusion.” Appellant’s Br. at 14. The appellant
    asserts that “it is unclear whether the concluding phrase (‘due to a variety of other causes and risk
    factors of hypertension’) is modified by the immediately preceding phrase ‘without speculation,’ or
    whether that phrase modifies the beginning part of the statement (‘Lack of objective medical
    evidence’)” and “the medical examiner’s statement fails to identify the ‘other causes and risk factors
    of hypertension’ and how those causes and factors specifically weigh against a finding of
    aggravated hypertension.” Id.
    The Secretary argues that the appellant “cherry-picked one confusing statement in the
    entirety of the opinion, instead of focusing on the opinion as a whole to determine whether it is
    adequate.” Secretary’s Br. at 9. The flaw in the Secretary’s argument is that the Board relied on
    the same “cherry-picked” language the Secretary admits is “confusing.” See R. at 9. The Secretary
    points to another portion of the examiner’s opinion that, he argues, provides a clearer rationale.
    Secretary’s Br. at 8-9. However, even assuming the Secretary’s assessment were correct, the Board
    did not rely on that statement, and therefore, the argument is a post hoc rationalization that the
    Court may not accept. See Martin v. Occupational Safety & Health Review Comm’n, 499 U.S.
    144, 156 (1991); see also Evans v. Shinseki, 25 Vet.App. 7, 16 (2011) (“[I]t is the Board that is
    required to provide a complete statement of reasons or bases, and the Secretary cannot make up
    for its failure to do so.”). Given the unclear language relied upon by the Board, the Court holds
    that the Board failed to provide an adequate statement of its reasons and bases for finding the May
    2016 examination adequate. Allday, 7 Vet.App. at 527. Accordingly, remand is required. Id.
    7
    B. TDIU
    A TDIU rating may be assigned to a veteran who meets certain disability percentage
    standards and is “unable to secure or follow a substantially gainful occupation as a result of serviceconnected
    disabilities.” 38 C.F.R. § 4.16(a) (2018). For claimants who fail to meet the percentage
    standards set forth in § 4.16(a), the matter of a TDIU rating should be referred to the Director of
    Compensation and Pension for extraschedular consideration when it is found that the claimant is
    unemployable by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). An award of TDIU
    requires that the claimant show an inability to undertake substantially gainful employment as a
    result of a service-connected disability or disabilities. Id.
    Unlike the regular disability rating schedule, which is based on the average work-related
    impairment caused by a disability, “entitlement to TDIU is based on an individual’s particular
    circumstances.” Rice v. Shinseki, 22 Vet.App. 447, 452 (2009). Therefore, when the Board
    conducts a TDIU analysis, it must take into account the individual veteran’s education, training,
    and work history. Hatlestad v. Derwinski, 1 Vet.App. 164, 168 (1991) (level of education is a
    factor in deciding employability); see Friscia v. Brown, 7 Vet.App. 294, 295-97 (considering
    veteran’s experience as a pilot, his training in business administration and computer programming,
    and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6
    Vet.App. 532, 534 (1994) (considering veteran’s eighth-grade education and sole occupation as a
    farmer); Moore v. Derwinski, 1 Vet.App. 356, 357 (1991) (considering veteran’s master’s degree
    in education and his part-time work as a tutor).
    “[A] remand by this Court or the Board confers on the . . . claimant, as a matter of law, the
    right to compliance with the remand orders.” Stegall v. West, 11 Vet.App. 268, 271 (1998). When
    “the remand orders of the Board or this Court are not complied with, the Board itself errs in failing
    to [e]nsure compliance.” Id.
    The Secretary concedes, and the Court agrees, that the Board erred by failing to provide an
    adequate statement of reasons and bases detailing whether there was substantial compliance with
    its previous remand directive. In March 2012, the Board remanded the appellant’s TDIU claim
    and directed VA to “afford the [appellant] an appropriate VA examination to be conducted, if
    possible, by a vocational or similar specialist for an examination and opinion regarding the
    appellant’s employability.” R. at 460. In the June 2017 decision on appeal, the Board noted that
    the appellant’s TDIU claim was remanded in March 2016 for further development and stated that
    8
    the agency of original jurisdiction “substantially complied with the Board’s remand order.” R. at 3.
    Although the appellant was provided several medical examinations following the Board’s remand,
    the examination reports do not indicate whether the examiner was a vocational or similar specialist,
    and the Board did not discuss whether such omission, nonetheless, “substantially complied” with
    the Board’s remand. Id.; see also R. at 50-89. The Court holds, therefore, that the Board failed to
    provide an adequate statement of its reasons and bases for finding substantial compliance with the
    Board’s prior remand. See Stegall, 11 Vet.App. at 271. Accordingly, remand is required. Id.
    The Court will not, at this time, consider the appellant’s remaining arguments. See Best v.
    Principi, 15 Vet.App. 18, 20 (2001) (per curiam order) (noting that the factual and legal context
    may change following a remand to the Board and explaining that “[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.”).
    In pursuing the matter on remand, the appellant is free to submit additional evidence and argument
    on the remanded matters, and the Board is required to consider any such relevant evidence and
    argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002) (stating that, on remand, the Board
    must consider additional evidence and argument in assessing entitlement to benefit sought);
    Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). “A remand is meant
    to entail a critical examination of the justification for the decision. The Court expects that the
    [Board] will reexamine the evidence of record, seek any other evidence the Board feels is
    necessary, and issue a timely, well-supported decision in this case.” Fletcher v. Derwinski,
    1 Vet.App. 394, 397 (1991). The Board must proceed expeditiously, in accordance with 38 U.S.C.
    §§ 5109B and 7112.
    III. CONCLUSION
    Based on the foregoing analysis, the appellant’s and the Secretary’s briefs, and a review of
    the record on appeal, the Board’s June 1, 2017, decision is VACATED and the matters are
    REMANDED for readjudication.
    DATED: April 16, 2019
    9
    Copies to:
    Martin E. Beeler, Esq.
    VA General Counsel (027)
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