Veteranclaims’s Blog

June 24, 2019

Single Judge Application; medical judgment based on a questionable foundation; Fountain v. McDonald, 27 Vet.App. 258, 272 (2015) (quoting Horn v. Shinseki, 25 Vet.App. 231, 239 n.7 (2012)); absence of evidence cannot be treated as substantive negative evidence without establishing that such absence tends “to prove or disprove a relevant fact”; judgment beyond a lay adjudicator;

Excerpt from decision below:

“In reviewing the 2017 opinion, a problem becomes immediately apparent: VA adjudicators invited the examiner to base her medical judgment on a questionable foundation. The examiner was asked to opine on whether Mr. O’Gwynn’s arthritis disabilities were at least as likely as not “incurred in or caused by jumps as a parachutist that occurred in service” based on whether “military service medical records support” that theory. R. at 700 (capitalization altered). The examiner accepted this request by basing her opinion primarily on the fact that service medical records did not explicitly reference any relevant problems. This Court has repeatedly advised that
the absence of evidence cannot be treated as substantive negative evidence without establishing that such absence tends “‘to prove or disprove a relevant fact.'” Fountain v. McDonald, 27 Vet.App. 258, 272 (2015) (quoting Horn v. Shinseki, 25 Vet.App. 231, 239 n.7 (2012)). Thus, when there is reason to think that a specific event or problem would be noted in service medical records, and no notation exists, the Board may draw an adverse inference from that omission. Without a specific reason, however, an omission is just an absence of evidence one way or the other. And such
absence, without more, is an impermissible reason to reject the credibility of lay evidence. See Spellers v. Wilkie, 30 Vet.App. 211, 221 (2018).
Of course, a medical professional may be able to offer a reason establishing that the absence of a notation is evidence that an event did not occur. Cf. Kahana v. Shinseki, 24 Vet.App. 428, 434-35 (2011) (concluding that a “determination that a particular injury, which is alleged to have
occurred in service, is of the type that should have been documented in the service records” is a medical conclusion). But the examiner in this case did not assert any medical significance for the silence in Mr. O’Gwynn’s service records regarding injuries to his neck, low back, and wrists. By simply noting the absence of corroborative records, the examiner did not employ any judgment beyond that which a lay adjudicator like the Board is competent to use. That being the case, the examiner’s reliance on a dubious basis for her opinion makes her judgment improper for the same
reasons it would the Board’s.
5
Besides noting the general absence of corroboration in the veteran’s service medical
records, the 2017 examiner “deferred” to the Board an assessment of Mr. Harrington’s buddy
statement and simply noted three records that—the Board seems to have inferred, R. at 10, 13—
suggested the current arthritic problems arose from post-service injuries. Otherwise, the examiner
concluded, it was “very hard to say how much of injury was his primary injury related to service,
and how much of it being superimposed, or primarily caused, due to his professional vocation in
life after being discharged from the Army.” R. at 701. None of these additional comments cures
the problems noted above.
This last comment is also somewhat confusing, as it’s not clear how the examiner could
find it too difficult to differentiate between potential in-service and post-service injury residuals
and yet opine that the veteran’s current arthritis was less likely than not related to his time in the
Army. Mr. O’Gwynn observes that the examiner made “[n]o effort . . . to apportion” the disabling effects caused by the separate periods. Appellant’s Br. at 8. Even in cases where an examiner states that providing a nexus opinion would require speculation, “it must be clear on the record that the
inability to opine on questions of diagnosis and etiology is not the first impression of an uninformed examiner, but rather an assessment arrived at after all due diligence in seeking relevant medical information that may have bearing on the requested opinion.” Jones v. Shinseki, 23 Vet.App. 382, 389 (2010). Here, there is no explanation for the examiner’s negative nexus
opinion despite the indefiniteness she identified in the record.

=======================

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 18-1379
WILLIAM O’GWYNN, APPELLANT,
V.
ROBERT L. WILKIE,
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: William O’Gwynn was a member of the U.S. Army Parachute Team,
nicknamed the Golden Knights. During his three years in service, he estimates that he made at
least 2,300 competitive and exhibition parachute jumps. He appeals a Board decision that denied
service connection for neck, low back, and bilateral wrist disorders purportedly stemming from
his in-service activities, arguing principally that the Board was wrong to find a May 2017 VA
medical opinion adequate to decide the claims. Because the Board clearly erred in relying on this
opinion, the Court vacates its November 2017 decision as to those claims and remands for further
proceedings consistent with this decision.
I. BACKGROUND
Mr. O’Gwynn served between 1977 and 1980. The only service treatment record before the
Court is a 1979 orthopedic consult regarding left leg problems.
In 1989, he complained to medical personnel at his job of a stiff neck for the last two years
or so. The following year, he sought treatment for neck pain following a motor vehicle accident.
See R. at 1276. While working as a pilot and air freight handler in 1992, he injured his left wrist.
He reported being “troubled by some mild discomfort in both wrists” but recalled “no specific
2
injury to either.” R. at 1393. X-rays showed “a number” of wrist fractures and the presence of “the
arthritic process.” Id. Degenerative changes in the left wrist were diagnosed.
The veteran sought disability compensation for wrist, low back, neck, and several other
problems, but the VA regional office (RO) denied all the claims in 1996, save for postoperative
residuals of a torn left knee lateral meniscus. He did not appeal. In 2010, he sought to reopen
bilateral wrist, neck, and low back claims. Since his last claim, the veteran was diagnosed with
degenerative arthritis in both wrists and the cervical and lumbar portions of his spine. VA records
also document treatment for polysubstance abuse that resulted in unemployment and
homelessness.
The RO denied the request to reopen and Mr. O’Gwynn appealed. He asserted that the
repetitive stresses to his joints from more than 2,300 parachute jumps led to arthritis. “This constant
pounding on my body would lead any normal person to understand arthritis is and would be the
expected outcome of this type activity, which was and carried out by the military. Injury became
so common that now it is performed with a cushioned target and no longer on gravel,” which was
the case during his service. R. at 845. Per the veteran: “The mindset of the military at this time was
you do not go to sick call every time your knees or back hurt[ ]. Little did I know as a young man
the constant stress on my joints would one day cause me the pain and suffering I now suffer due
to arthritis.” Id.
He also submitted a buddy statement from a fellow Golden Knight, Edward Harrington,
which recounted the rigors and physical pressures of competitive parachuting. Per the statement,
the “opening shock” of deploying the parachute “was tremendous” and caused many competitors
“to land with sore backs or sometimes sprains.” R. at 830. Points of contact when landing were
usually the heels, buttocks, and hands. Mr. Harrington recalled one instance when Mr. O’Gwynn
landed in such a way that Mr. Harrington thought he might have broken his wrists. Although
complaining of wrist pain, Mr. O’Gwynn declined to withdraw to obtain x-rays and continued with
the competition. He continued to report sore wrists during future jumps and kept them wrapped.
Additionally, the veteran submitted a letter from a private physician, which opined that the
“musculoskeletal issues that he describes”—”cumulative trauma” from the “repetitive impacts” of
precision parachute jumps—appeared “to have been initiated during his time in service.” R. at 834.
The veteran underwent a VA examination in April 2017. The examiner was requested to
opine whether Mr. O’Gwynn’s “military service medical records support” his assertion that the
3
conditions at issue were at least as likely as not “incurred in or caused by jumps as a parachutist
that occurred in service.” R. at 700 (capitalization altered). After physically evaluating the veteran
and reviewing his medical records, the examiner concluded that the disabilities at issue were less
likely than not related to service. She first noted that service medical records “are silent for
complaints, findings or diagnos[e]s of any of these 3 conditions.” R. at 701. “The only evidence
that could possibly be used in support of his bilateral wrist condition,” she continued, “would be
. . . the statement provided by Sgt. Edward Harrington of an incident that occurred during a
parachuting event. . . . That’s deferred to the VA decision makers.” Id. The examiner further stated
that, because Mr. O’Gwynn “continued his career as a skydiving instructor on numerous
occasions”—elsewhere, the examiner quoted an earlier VA record that stated the veteran “worked
occasionally as a skydiving instructor in the summers”—and had “multiple odd jobs” following
service, it was “very hard to say how much . . . his primary injury related to service” and how much
was “due to his professional vocation in life after being discharged from the Army.” Id. She also
concluded that his neck claim was “very weak” because private chiropractic records from around
1990 showed “treatment for cervical spine pain in 1990 stemming from a car accident.” R. at 702.
The appeal reached the Board, which reopened the claims but denied them on the merits.
For various reasons, the Board discounted the probative value of the veteran’s lay evidence, Mr.
Harrington’s buddy statement, and the favorable private medical opinion. Instead, it relied on the
2017 VA opinion, which it found “specific,” “reasoned,” and “consistent with the medical evidence
of record.” R. at 13. This appeal followed.
II. ANALYSIS
Mr. O’Gwynn contends that the Board clearly erred in finding the 2017 VA opinion
adequate. Generally, a VA medical opinion is adequate when it considers the pertinent medical
history and provides enough information and supporting rationale to allow the Board to make a
fully informed decision on the issue before it. See Bailey v. O’Rourke, 30 Vet.App. 54, 59 (2018).
Once VA decides to obtain a medical opinion, it must ensure that the opinion is adequate. Id. The
Board’s determination that an opinion is adequate is a factual finding that the Court reviews for
clear error. Id.
The veteran contends that the 2017 VA opinion is inadequate because the examiner failed
to properly consider the veteran’s history when opining against service connection. Specifically,
4
he argues that the 1978 service medical record, although not mentioning an injury directly relevant
to one of the claims on appeal, “speak[s] to the traumatic nature of his military duties.” Appellant’s
Br. at 6. Moreover, he contends that silence in his service medical records cannot be read as
evidence that the repetitive stresses and injuries he and Mr. Harrington alleged did not occur. And
he also asserts that the examiner did not bring her medical judgment to bear on the question of
whether “cumulative trauma” from more than 2,300 repetitive jumps could have led to his injuries.
In reviewing the 2017 opinion, a problem becomes immediately apparent: VA adjudicators invited the examiner to base her medical judgment on a questionable foundation. The examiner was asked to opine on whether Mr. O’Gwynn’s arthritis disabilities were at least as likely as not “incurred in or caused by jumps as a parachutist that occurred in service” based on whether “military service medical records support” that theory. R. at 700 (capitalization altered). The examiner accepted this request by basing her opinion primarily on the fact that service medical records did not explicitly reference any relevant problems. This Court has repeatedly advised that
the absence of evidence cannot be treated as substantive negative evidence without establishing that such absence tends “‘to prove or disprove a relevant fact.'” Fountain v. McDonald, 27 Vet.App. 258, 272 (2015) (quoting Horn v. Shinseki, 25 Vet.App. 231, 239 n.7 (2012)). Thus, when there is
reason to think that a specific event or problem would be noted in service medical records, and no notation exists, the Board may draw an adverse inference from that omission. Without a specific reason, however, an omission is just an absence of evidence one way or the other. And such
absence, without more, is an impermissible reason to reject the credibility of lay evidence. See Spellers v. Wilkie, 30 Vet.App. 211, 221 (2018).
Of course, a medical professional may be able to offer a reason establishing that the absence of a notation is evidence that an event did not occur. Cf. Kahana v. Shinseki, 24 Vet.App. 428, 434-35 (2011) (concluding that a “determination that a particular injury, which is alleged to have
occurred in service, is of the type that should have been documented in the service records” is a medical conclusion). But the examiner in this case did not assert any medical significance for the silence in Mr. O’Gwynn’s service records regarding injuries to his neck, low back, and wrists. By
simply noting the absence of corroborative records, the examiner did not employ any judgment beyond that which a lay adjudicator like the Board is competent to use. That being the case, the examiner’s reliance on a dubious basis for her opinion makes her judgment improper for the same
reasons it would the Board’s.
5
Besides noting the general absence of corroboration in the veteran’s service medical
records, the 2017 examiner “deferred” to the Board an assessment of Mr. Harrington’s buddy
statement and simply noted three records that—the Board seems to have inferred, R. at 10, 13—
suggested the current arthritic problems arose from post-service injuries. Otherwise, the examiner
concluded, it was “very hard to say how much of injury was his primary injury related to service,
and how much of it being superimposed, or primarily caused, due to his professional vocation in
life after being discharged from the Army.” R. at 701. None of these additional comments cures
the problems noted above.
This last comment is also somewhat confusing, as it’s not clear how the examiner could
find it too difficult to differentiate between potential in-service and post-service injury residuals
and yet opine that the veteran’s current arthritis was less likely than not related to his time in the
Army. Mr. O’Gwynn observes that the examiner made “[n]o effort . . . to apportion” the disabling effects caused by the separate periods. Appellant’s Br. at 8. Even in cases where an examiner states that providing a nexus opinion would require speculation, “it must be clear on the record that the
inability to opine on questions of diagnosis and etiology is not the first impression of an uninformed examiner, but rather an assessment arrived at after all due diligence in seeking relevant medical information that may have bearing on the requested opinion.” Jones v. Shinseki, 23 Vet.App. 382, 389 (2010). Here, there is no explanation for the examiner’s negative nexus
opinion despite the indefiniteness she identified in the record.

Finally, the Court agrees with the veteran that the 2017 VA opinion is also inadequate because it fails to address the gravamen of his claim and, thus, could not have “fully informed” the Board regarding the relevant medical issues. Atencio v. O’Rourke, 30 Vet.App. 74, 89 (2018). Mr.
O’Gwynn repeatedly argued that he believed his neck, low back, and bilateral wrist arthritis
stemmed from cumulative trauma based on repetitive parachute landings, R. at 706, 845, 994, and
this theory of service connection was reiterated by the private medical opinion he submitted and
Mr. Harrington’s buddy statement, R. at 830-31, 834.1 But the 2017 VA examiner never addresses
1 The Board concluded that Mr. O’Gwynn’s “statements linking his disabilities to his service are not credible.”
R. at 11. The only potential basis the Court can discern for this conclusion was the Board’s earlier observation that the
veteran “did not assert that his neck, low back, and right and left wrist symptomatology was related to his service until
he filed his claims for service connection” and its citation to Pond v. West, 12 Vet.App. 341, 345 (1999), for the
proposition that, “although Board must take into consideration the veteran’s statements, it may consider whether selfinterest
may be a factor in making such statements.” R. at 10-11. To the extent the Secretary contends that this
credibility finding excuses the fact that the examiner didn’t address the veteran’s assertions regarding the repetitive
stresses of parachute jumping, this portion of the Board’s decision is not sturdy enough to base a harmless error analysis
6
that theory. This is probably because VA adjudicators did not ask for an opinion on this question.
But the question of adequacy here does not turn on whether the VA examiner complied with the
adjudicators’ request but on whether the resulting opinion sufficiently addresses the medical issues
before the Board. See generally El-Amin v. Shinseki, 26 Vet.App. 136, 139-142 (2013). Because
the VA examiner did not opine on whether the cumulative effects of Mr. O’Gwynn’s more than
2,300 parachute jumps as a Golden Knight were as likely as not the cause of his multi-joint
arthritis, she did not provide the Board the required information to allow it to adjudicate the
veteran’s claim properly.
For all these reasons, the Board clearly erred in finding the 2017 VA medical opinion
adequate. Given the Board’s reliance on this opinion as the main basis for denying the claims, the
Court vacates the decision on appeal and remands for the Board to remedy this defect. See Atencio,
30 Vet.App. at 89 (“When the Secretary elects to provide a medical examination in a serviceconnection
claim, the examination must be adequate.”). To the extent Mr. O’Gwynn offers
additional allegations of error, the Court need not resolve them at this point. He is free to press
them on remand.
III. CONCLUSION
The portions of the November 14, 2017, Board decision denying service connection for
neck, low back, and bilateral wrist disorders are VACATED and those matters are REMANDED
for further proceedings consistent with this decision.
DATED: June 21, 2019
Copies to:
Michael R. Viterna, Esq.
VA General Counsel (027)
on. (The Board did not suggest any clearer basis for impugning the veteran’s credibility.)

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