Veteranclaims’s Blog

November 23, 2022

Single Judge Application; the examiner failed to explain why he discounted the veteran’s lay statements, see id. By failing to “clearly explain[]” why he discounted the veteran’s lay statements, the examiner contravened the Board’s remand instructions. R. at 254, 486-87; see Smith v. Wilkie, 32 Vet.App. 332, 340 (2020) (finding that an examination was inadequate and violated Board remand instructions because the examiner did not treat credible lay statements as true)l

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 21-5313
LAWRENCE E. POINDEXTER, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before FALVEY, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
FALVEY, Judge: Army veteran Lawrence E. Poindexter, through counsel, appeals a May
10, 2021, Board of Veterans’ Appeals decision that denied service connection for a gastrointestinal
disability, including gastroesophageal reflux disease (GERD). The appeal is timely, the Court has
jurisdiction, and single-judge disposition is appropriate. See 38 U.S.C. §§ 7252(a), 7266(a);
Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
We are asked to decide whether a VA medical examiner provided an inadequate rationale
for his opinion and failed to substantially comply with prior Board remand instructions and
whether the Board thus erred in relying on the examiner’s opinion. Because the VA medical
opinion was inadequate and did not substantially comply with prior remand instructions, the Board
erred by relying on it. We will therefore set aside the Board’s decision and remand the matter.
I. FACTS
Mr. Poindexter served on active duty from April 1968 to December 1971. Record (R.) at
4990-91. April 1969 records show that he sought treatment for pain in his left side and for a loss
of appetite. R. at 8062-63, 8077. At his November 1971 separation examination, he denied
suffering frequent indigestion or stomach or intestinal trouble. R. at 8070.
2
September 1973, October 1975, December 1975, June 1976, and January 1978
employment records show that Mr. Poindexter missed periods of work due to “gastroenteritis” or
an “upset stomach.” R. at 7801, 7803, 7808, 7810, 7812, 7821. In August 1979, he was hospitalized
for abdominal pain of an undetermined cause. R. at 7977. In August 1985, he underwent an
endoscopy that revealed a small duodenal ulcer. R. at 7760.
According to employment health history records from the late 1970s through the mid-
1990s, Mr. Poindexter continued to report gastrointestinal problems. R. at 7832 (November 1979),
7833 (December 1980), 7929-30 (December 1984), 7796 (August 1985), 7931-32 (February
1987), 7933-34 (May 1989), 7935-36 (September 1991), 7927-28 (June 1994). April 1994 private
hospital records show diagnoses of a duodenal ulcer, gastritis, and hemorrhoids, as well as a history
of peptic ulcer disease and colon polyps. R. at 7707, 7709.
In March 2010, a VA care provider recorded that the veteran was being treated for GERD.
R. at 3673. In September 2012 and June 2013, VA care providers noted diagnoses of GERD and
peptic ulcer disease. R. at 2646, 3386.
In January 2014, Mr. Poindexter filed a VA benefits claim for gastritis, peptic ulcer disease,
GERD, and a duodenal ulcer. R. at 4998-99. In a January 2015 rating decision, the regional office
(RO) denied service connection for the claimed conditions. R. at 4530, 4533-34.
In February 2015, Mr. Poindexter filed a Notice of Disagreement. R. at 4513-14. In July
2015, the RO issued a Statement of the Case (SOC), continuing to deny service connection. R. at
4465-67. That same month, the veteran appealed to the Board, asserting that he had been exposed
to H. pylori bacteria while serving in the Army as a medical laboratory specialist and that this had
caused his ongoing gastrointestinal issues. R. at 4432.
At a June 2016 Board hearing, Mr. Poindexter testified that he began suffering stomach
problems while on active duty and was later diagnosed with duodenal and peptic ulcers. R. at 4381.
He stated that he did not seek treatment for his stomach problems during service but that he saw a
private gastroenterologist within a year of leaving active duty. Id. He also testified that he had
served as a lab technician while stationed in Vietnam, that he was exposed to H. pylori bacteria
while working with fecal and urine samples, and that he was first diagnosed with an H. pylori
infection in 1985. R. at 4383-86.
In December 2018, the Board denied service connection for a gastrointestinal disorder. R.
at 1205. Mr. Poindexter then appealed to the Court. In November 2019, the parties filed a joint
3
motion for partial remand (JMPR), agreeing that the Board should decide whether a VA medical
examination was warranted for the gastrointestinal claim. R. at 797-801. A month later, the Court
granted the JMPR. R. at 803.
In June 2020, the Board remanded the gastrointestinal disorder claim for VA to provide a
medical nexus opinion. R. at 475, 485-87. The Board instructed that “the examiner must consider
and discuss all in[-] and post-service medical and other objective evidence as well as all lay
assertions,” that the veteran “is competent to report his symptoms and history,” and that “[i]f any
lay assertions in any regard are discounted, the examiner should clearly so state, and explain why.”
R. at 486-87.
In July 2020, a VA examiner opined that the veteran’s gastrointestinal disorder was unlikely
related to his service. R. at 357-58. The examiner explained that service treatment records “note
upset stomach . . . [but] are negative for any diagnosis of chronic gastrointestinal disorder on active
duty” and that “[t]here is no objective evidence to support GERD, H[.] pylori, gastritis[,] or
duodenal ulcer manifesting in service.” R. at 358. In an October 2020 Supplemental SOC (SSOC),
the RO continued to deny service connection. R. at 293.
In December 2020, the Board remanded the claim for VA to provide a new examination.
R. at 251, 252-53. The Board found that the July 2020 VA examination had not substantially
complied with the June 2020 remand instructions because the examiner did not address all relevant
treatment records and had implicitly discounted the veteran’s lay statements without explanation.
R. at 252-53. The Board instructed that, in rendering a new opinion on remand, “the examiner
should consider and discuss the relevant in-service and post-service medical records . . . [and] the
Veteran’s lay assertions of onset of symptoms in service, recurrence of symptoms s ince service,
and seeing a private gastroenterologist a year after separation from service.” R. at 253. Also noting
the veteran’s competence to describe his symptoms and report the history of his claimed condition,
the Board directed that “[i]f the examiner finds that any of the Veteran’s lay assertions should be
discounted, it should be clearly explained why that is so.” R. at 254.
In January 2021, a VA examiner opined that Mr. Poindexter’s gastrointestinal disorder was
unlikely related to his service. R. at 233-34. The examiner stated that “[t]here is no evidence of a
chronic gastrointestinal condition while in service” and that the November 1971 separation
examination revealed no gastrointestinal issues. R. at 234. Although the examiner stated that he
found no August 1979 medical records of gastrointestinal problems, he opined that this did not
4
matter because, “[e]ven if the 1979 events are conceded, there is no evidence of continuity since
service.” Id. He also stated that “[t]here is no medical evidence supporting chronicity in service,
presence at separation or until the veteran-reported 1979 complaints . . . [and i]t is unlikely [that]
a significant gastrointestinal condition arising in service would have had a hiatus of eight years
after service.” Id. He also opined that the veteran’s “only current diagnosis,” GERD, “more likely
than not[] had its onset in or around 1994.” Id. In conclusion, the examiner stated that his opinion
“does not discount the veteran’s history as given, but it is not supported by the medical evidence.”
Id. Later that month, the RO issued another SSOC, continuing to deny the gastrointestinal disorder
claim. R. at 204.
In May 2021, the Board issued the decision on appeal, denying service connection for a
gastrointestinal disability, including GERD. R. at 5. The Board found that Mr. Poindexter had a
current gastrointestinal disorder. R. at 7. Relying largely on the January 2021 VA examiner’s
opinion, however, the Board found no nexus between the veteran’s service and his gastrointestinal
condition. R. at 10-13. This appeal followed.
II. ANALYSIS
Mr. Poindexter asserts that the Board clearly erred by relying on the January 2021 VA
medical opinion because the examiner overlooked relevant medical records, discounted favorable
lay testimony without explanation, and provided an inadequate rationale for his negative nexus
opinion. Appellant’s Brief (Br.) at 12-18. He contends that this also means that the Board failed to
ensure that VA fulfilled its duty to assist and complied with prior remand instructions. Appellant’s
Br. at 17-19.
The Secretary responds that the January 2021 VA medical opinion was adequate, that the
Board did not err by relying on it, and that the Board gave adequate reasons or bases for denying
service connection. Secretary’s Br. at 5-19. He asks the Court to affirm the Board. Secretary’s Br.
at 20.
The Court reviews the Board’s findings of fact under the “clearly erroneous” standard.
Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990). “‘A finding is “clearly erroneous” when[,] although
there is evidence to support it, the reviewing court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed.'” Id. (quoting United States v. U.S. Gypsum
Co., 333 U.S. 364, 395 (1948)).
5
A remand by the Board “confers on the veteran . . . as a matter of law, the right to
compliance with the remand order[],” and the Board errs when it fails to ensure compliance with
the terms of such a remand. Stegall v. West, 11 Vet.App. 268, 271 (1998). Although the Secretary
must comply with remand orders, it is substantial compliance, not absolute compliance, that is
required. See Dyment v. West, 13 Vet.App. 141, 146-47 (1999) (finding no Stegall violation when
the examiner “substantially complied with the Board’s remand order”). Substantial compliance
with the terms of a remand is shown when the Secretary’s actions “resolve the issue that required
the remand order.” D’Aries v. Peake, 22 Vet.App. 97, 105 (2008).
When VA provides a medical examination or opinion, the Secretary must ensure that the
examination or opinion is adequate. Barr v. Nicholson, 21 Vet.App. 303, 310-11 (2007). A medical
examination or opinion is adequate “where it is based upon consideration of the veteran’s prior
medical history and examinations,” Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007); “describes
the disability, if any, in sufficient detail so that the Board’s ‘evaluation of the claimed disability
will be a fully informed one,'” id. (quoting Ardison v. Brown, 6 Vet.App. 405, 407 (1994)); and
“rest[s] on correct facts and reasoned medical judgment so as inform the Board on a medical
question and facilitate the Board’s consideration and weighing of the report against any contrary
reports,” Acevedo v. Shinseki, 25 Vet.App. 286, 293 (2012). Whether a medical opinion is adequate
is a finding of fact that the Court reviews under the “clearly erroneous” standard. D’Aries,
22 Vet.App. at 104.
After VA provided the January 2021 medical opinion, the Board relied on the opinion as
part of its basis to deny service connection. R. at 10-13. In doing so, the Board implicitly found
that the January 2021 VA examiner had substantially complied with the prior remand instructions
and that the medical opinion was adequate. See Mitchell v. Shinseki, 25 Vet.App. 32, 43 (2011)
(finding that the Board’s reliance on a medical opinion is an implicit determination of adequacy).
The Court agrees with Mr. Poindexter that the Board clearly erred in relying on the January
2021 VA medical opinion because it is inadequate and does not substantially comply with prior
remand instructions. The January 2021 VA examiner stated that there was no evidence of a chronic
gastrointestinal condition while Mr. Poindexter was in service, that there was no evidence that the
gastrointestinal problems had “continuity since service” until 1979, and that “[i]t is unlikely [that]
a significant gastrointestinal condition arising in service would have had a hiatus of eight years
after service.” R. at 234. Yet these statements ignore Mr. Poindexter’s lay testimony that he had
6
suffered from stomach problems since service and had sought treatment from a private
gastroenterologist within a year of leaving service. R. at 4381. They similarly ignore the September
1973, October 1975, December 1975, June 1976, and January 1978 employment records that show
that he missed periods of work due to “gastroenteritis” or an “upset stomach.” R. at 7801, 7803,
7808, 7810, 7812, 7821. Thus, contrary to the Board’s remand instructions, the examiner failed to
consider and discuss all objective evidence and lay assertions. R. at 234; see R. at 252-54, 486-87.
The examiner also stated that his conclusion “d[id] not discount the veteran’s history as
given.” R. at 234. But the examiner’s rationale contradicts this statement, since he rejected the
veteran’s lay testimony about his symptoms beginning in service and continuing ever since. Id.
And beyond a conclusory assertion that the veteran’s lay statements are “not supported by the
medical evidence,” id., the examiner failed to explain why he discounted the veteran’s lay
statements, see id. By failing to “clearly explain[]” why he discounted the veteran’s lay statements,
the examiner contravened the Board’s remand instructions. R. at 254, 486-87; see Smith v. Wilkie,
32 Vet.App. 332, 340 (2020) (finding that an examination was inadequate and violated Board
remand instructions because the examiner did not treat credible lay statements as true)
. Although
it is the Board, not the examiner, that ultimately assesses the credibility and probative value of lay
evidence, we note that an examiner’s assessment of lay evidence may help inform the Board’s
decision and that the Board may enlist an examiner’s expertise in understanding lay evidence. See
Miller v. Wilkie, 32 Vet.App. 249, 258-60 (2020).
For those reasons, the January 2021 VA medical opinion did not substantially comply with
the Board’s remand instructions and was inadequate to inform the Board about the question of
nexus. See Acevedo, 25 Vet.App. at 293; D’Aries, 22 Vet.App. at 105. Thus, the Board clearly
erred in relying on the January 2021 VA medical opinion, failing also to ensure that VA fulfilled
its duty to assist and complied with remand instructions. See D’Aries, 22 Vet.App. at 104; Stegall,
11 Vet.App. at 271. We will set aside the Board’s decision and remand the matter for the Board to
procure an adequate and substantially compliant medical opinion. See Stegall, 11 Vet.App. at 271
(holding that, when a medical examination is inadequate for evaluation purposes, remand is the
appropriate remedy and that a veteran has a right to compliance with a Board remand order); see
also Barr, 21 Vet.App. at 311 (“[O]nce the Secretary undertakes the effort to provide an
examination when developing a service-connection claim . . . he must provide an adequate
one . . . .”).
7
Because we have decided to once again remand the case, we will not address the veteran’s
other arguments that would lead to no greater remedy. See Mahl v. Principi, 15 Vet.App. 37, 38
(2001) (per curiam order) (“[I]f the proper remedy is a remand, there is no need to analyze and
discuss all the other claimed errors that would result in a remedy no broader than a remand.”). Mr.
Poindexter is free on remand to submit additional evidence and arguments, including those raised
in his briefs, and he has 90 days from the date of the postremand notice VA provides to do so. See
Kutscherousky v. West, 12 Vet.App. 369, 372–73 (1999) (per curiam order); see also Clark v.
O’Rourke, 30 Vet.App. 92, 97 (2018). The Board must consider any such evidence or argument
submitted. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Court also reminds the Board
that a remand must be performed in an expeditious manner, 38 U.S.C. § 7112, and that “[a] remand
is meant to entail a critical examination of the justification for the decision,” Fletcher v. Derwinski,
1 Vet.App. 394, 397 (1991).
III. CONCLUSION
Based on the above considerations, the May 10, 2021, Board decision is SET ASIDE and
the matter is REMANDED for further proceedings.
DATED: November 22, 2022
Copies to:
Glenn R. Bergmann, Esq.
VA General Counsel (027)

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 21-5313
LAWRENCE E. POINDEXTER, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before FALVEY, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
FALVEY, Judge: Army veteran Lawrence E. Poindexter, through counsel, appeals a May
10, 2021, Board of Veterans’ Appeals decision that denied service connection for a gastrointestinal
disability, including gastroesophageal reflux disease (GERD). The appeal is timely, the Court has
jurisdiction, and single-judge disposition is appropriate. See 38 U.S.C. §§ 7252(a), 7266(a);
Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
We are asked to decide whether a VA medical examiner provided an inadequate rationale
for his opinion and failed to substantially comply with prior Board remand instructions and
whether the Board thus erred in relying on the examiner’s opinion. Because the VA medical
opinion was inadequate and did not substantially comply with prior remand instructions, the Board
erred by relying on it. We will therefore set aside the Board’s decision and remand the matter.
I. FACTS
Mr. Poindexter served on active duty from April 1968 to December 1971. Record (R.) at
4990-91. April 1969 records show that he sought treatment for pain in his left side and for a loss
of appetite. R. at 8062-63, 8077. At his November 1971 separation examination, he denied
suffering frequent indigestion or stomach or intestinal trouble. R. at 8070.
2
September 1973, October 1975, December 1975, June 1976, and January 1978
employment records show that Mr. Poindexter missed periods of work due to “gastroenteritis” or
an “upset stomach.” R. at 7801, 7803, 7808, 7810, 7812, 7821. In August 1979, he was hospitalized
for abdominal pain of an undetermined cause. R. at 7977. In August 1985, he underwent an
endoscopy that revealed a small duodenal ulcer. R. at 7760.
According to employment health history records from the late 1970s through the mid-
1990s, Mr. Poindexter continued to report gastrointestinal problems. R. at 7832 (November 1979),
7833 (December 1980), 7929-30 (December 1984), 7796 (August 1985), 7931-32 (February
1987), 7933-34 (May 1989), 7935-36 (September 1991), 7927-28 (June 1994). April 1994 private
hospital records show diagnoses of a duodenal ulcer, gastritis, and hemorrhoids, as well as a history
of peptic ulcer disease and colon polyps. R. at 7707, 7709.
In March 2010, a VA care provider recorded that the veteran was being treated for GERD.
R. at 3673. In September 2012 and June 2013, VA care providers noted diagnoses of GERD and
peptic ulcer disease. R. at 2646, 3386.
In January 2014, Mr. Poindexter filed a VA benefits claim for gastritis, peptic ulcer disease,
GERD, and a duodenal ulcer. R. at 4998-99. In a January 2015 rating decision, the regional office
(RO) denied service connection for the claimed conditions. R. at 4530, 4533-34.
In February 2015, Mr. Poindexter filed a Notice of Disagreement. R. at 4513-14. In July
2015, the RO issued a Statement of the Case (SOC), continuing to deny service connection. R. at
4465-67. That same month, the veteran appealed to the Board, asserting that he had been exposed
to H. pylori bacteria while serving in the Army as a medical laboratory specialist and that this had
caused his ongoing gastrointestinal issues. R. at 4432.
At a June 2016 Board hearing, Mr. Poindexter testified that he began suffering stomach
problems while on active duty and was later diagnosed with duodenal and peptic ulcers. R. at 4381.
He stated that he did not seek treatment for his stomach problems during service but that he saw a
private gastroenterologist within a year of leaving active duty. Id. He also testified that he had
served as a lab technician while stationed in Vietnam, that he was exposed to H. pylori bacteria
while working with fecal and urine samples, and that he was first diagnosed with an H. pylori
infection in 1985. R. at 4383-86.
In December 2018, the Board denied service connection for a gastrointestinal disorder. R.
at 1205. Mr. Poindexter then appealed to the Court. In November 2019, the parties filed a joint
3
motion for partial remand (JMPR), agreeing that the Board should decide whether a VA medical
examination was warranted for the gastrointestinal claim. R. at 797-801. A month later, the Court
granted the JMPR. R. at 803.
In June 2020, the Board remanded the gastrointestinal disorder claim for VA to provide a
medical nexus opinion. R. at 475, 485-87. The Board instructed that “the examiner must consider
and discuss all in[-] and post-service medical and other objective evidence as well as all lay
assertions,” that the veteran “is competent to report his symptoms and history,” and that “[i]f any
lay assertions in any regard are discounted, the examiner should clearly so state, and explain why.”
R. at 486-87.
In July 2020, a VA examiner opined that the veteran’s gastrointestinal disorder was unlikely
related to his service. R. at 357-58. The examiner explained that service treatment records “note
upset stomach . . . [but] are negative for any diagnosis of chronic gastrointestinal disorder on active
duty” and that “[t]here is no objective evidence to support GERD, H[.] pylori, gastritis[,] or
duodenal ulcer manifesting in service.” R. at 358. In an October 2020 Supplemental SOC (SSOC),
the RO continued to deny service connection. R. at 293.
In December 2020, the Board remanded the claim for VA to provide a new examination.
R. at 251, 252-53. The Board found that the July 2020 VA examination had not substantially
complied with the June 2020 remand instructions because the examiner did not address all relevant
treatment records and had implicitly discounted the veteran’s lay statements without explanation.
R. at 252-53. The Board instructed that, in rendering a new opinion on remand, “the examiner
should consider and discuss the relevant in-service and post-service medical records . . . [and] the
Veteran’s lay assertions of onset of symptoms in service, recurrence of symptoms s ince service,
and seeing a private gastroenterologist a year after separation from service.” R. at 253. Also noting
the veteran’s competence to describe his symptoms and report the history of his claimed condition,
the Board directed that “[i]f the examiner finds that any of the Veteran’s lay assertions should be
discounted, it should be clearly explained why that is so.” R. at 254.
In January 2021, a VA examiner opined that Mr. Poindexter’s gastrointestinal disorder was
unlikely related to his service. R. at 233-34. The examiner stated that “[t]here is no evidence of a
chronic gastrointestinal condition while in service” and that the November 1971 separation
examination revealed no gastrointestinal issues. R. at 234. Although the examiner stated that he
found no August 1979 medical records of gastrointestinal problems, he opined that this did not
4
matter because, “[e]ven if the 1979 events are conceded, there is no evidence of continuity since
service.” Id. He also stated that “[t]here is no medical evidence supporting chronicity in service,
presence at separation or until the veteran-reported 1979 complaints . . . [and i]t is unlikely [that]
a significant gastrointestinal condition arising in service would have had a hiatus of eight years
after service.” Id. He also opined that the veteran’s “only current diagnosis,” GERD, “more likely
than not[] had its onset in or around 1994.” Id. In conclusion, the examiner stated that his opinion
“does not discount the veteran’s history as given, but it is not supported by the medical evidence.”
Id. Later that month, the RO issued another SSOC, continuing to deny the gastrointestinal disorder
claim. R. at 204.
In May 2021, the Board issued the decision on appeal, denying service connection for a
gastrointestinal disability, including GERD. R. at 5. The Board found that Mr. Poindexter had a
current gastrointestinal disorder. R. at 7. Relying largely on the January 2021 VA examiner’s
opinion, however, the Board found no nexus between the veteran’s service and his gastrointestinal
condition. R. at 10-13. This appeal followed.
II. ANALYSIS
Mr. Poindexter asserts that the Board clearly erred by relying on the January 2021 VA
medical opinion because the examiner overlooked relevant medical records, discounted favorable
lay testimony without explanation, and provided an inadequate rationale for his negative nexus
opinion. Appellant’s Brief (Br.) at 12-18. He contends that this also means that the Board failed to
ensure that VA fulfilled its duty to assist and complied with prior remand instructions. Appellant’s
Br. at 17-19.
The Secretary responds that the January 2021 VA medical opinion was adequate, that the
Board did not err by relying on it, and that the Board gave adequate reasons or bases for denying
service connection. Secretary’s Br. at 5-19. He asks the Court to affirm the Board. Secretary’s Br.
at 20.
The Court reviews the Board’s findings of fact under the “clearly erroneous” standard.
Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990). “‘A finding is “clearly erroneous” when[,] although
there is evidence to support it, the reviewing court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed.'” Id. (quoting United States v. U.S. Gypsum
Co., 333 U.S. 364, 395 (1948)).
5
A remand by the Board “confers on the veteran . . . as a matter of law, the right to
compliance with the remand order[],” and the Board errs when it fails to ensure compliance with
the terms of such a remand. Stegall v. West, 11 Vet.App. 268, 271 (1998). Although the Secretary
must comply with remand orders, it is substantial compliance, not absolute compliance, that is
required. See Dyment v. West, 13 Vet.App. 141, 146-47 (1999) (finding no Stegall violation when
the examiner “substantially complied with the Board’s remand order”). Substantial compliance
with the terms of a remand is shown when the Secretary’s actions “resolve the issue that required
the remand order.” D’Aries v. Peake, 22 Vet.App. 97, 105 (2008).
When VA provides a medical examination or opinion, the Secretary must ensure that the
examination or opinion is adequate. Barr v. Nicholson, 21 Vet.App. 303, 310-11 (2007). A medical
examination or opinion is adequate “where it is based upon consideration of the veteran’s prior
medical history and examinations,” Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007); “describes
the disability, if any, in sufficient detail so that the Board’s ‘evaluation of the claimed disability
will be a fully informed one,'” id. (quoting Ardison v. Brown, 6 Vet.App. 405, 407 (1994)); and
“rest[s] on correct facts and reasoned medical judgment so as inform the Board on a medical
question and facilitate the Board’s consideration and weighing of the report against any contrary
reports,” Acevedo v. Shinseki, 25 Vet.App. 286, 293 (2012). Whether a medical opinion is adequate
is a finding of fact that the Court reviews under the “clearly erroneous” standard. D’Aries,
22 Vet.App. at 104.
After VA provided the January 2021 medical opinion, the Board relied on the opinion as
part of its basis to deny service connection. R. at 10-13. In doing so, the Board implicitly found
that the January 2021 VA examiner had substantially complied with the prior remand instructions
and that the medical opinion was adequate. See Mitchell v. Shinseki, 25 Vet.App. 32, 43 (2011)
(finding that the Board’s reliance on a medical opinion is an implicit determination of adequacy).
The Court agrees with Mr. Poindexter that the Board clearly erred in relying on the January
2021 VA medical opinion because it is inadequate and does not substantially comply with prior
remand instructions. The January 2021 VA examiner stated that there was no evidence of a chronic
gastrointestinal condition while Mr. Poindexter was in service, that there was no evidence that the
gastrointestinal problems had “continuity since service” until 1979, and that “[i]t is unlikely [that]
a significant gastrointestinal condition arising in service would have had a hiatus of eight years
after service.” R. at 234. Yet these statements ignore Mr. Poindexter’s lay testimony that he had
6
suffered from stomach problems since service and had sought treatment from a private
gastroenterologist within a year of leaving service. R. at 4381. They similarly ignore the September
1973, October 1975, December 1975, June 1976, and January 1978 employment records that show
that he missed periods of work due to “gastroenteritis” or an “upset stomach.” R. at 7801, 7803,
7808, 7810, 7812, 7821. Thus, contrary to the Board’s remand instructions, the examiner failed to
consider and discuss all objective evidence and lay assertions. R. at 234; see R. at 252-54, 486-87.
The examiner also stated that his conclusion “d[id] not discount the veteran’s history as
given.” R. at 234. But the examiner’s rationale contradicts this statement, since he rejected the
veteran’s lay testimony about his symptoms beginning in service and continuing ever since. Id.
And beyond a conclusory assertion that the veteran’s lay statements are “not supported by the
medical evidence,” id., the examiner failed to explain why he discounted the veteran’s lay
statements, see id. By failing to “clearly explain[]” why he discounted the veteran’s lay statements,
the examiner contravened the Board’s remand instructions. R. at 254, 486-87; see Smith v. Wilkie,
32 Vet.App. 332, 340 (2020) (finding that an examination was inadequate and violated Board
remand instructions because the examiner did not treat credible lay statements as true). Although
it is the Board, not the examiner, that ultimately assesses the credibility and probative value of lay
evidence, we note that an examiner’s assessment of lay evidence may help inform the Board’s
decision and that the Board may enlist an examiner’s expertise in understanding lay evidence. See
Miller v. Wilkie, 32 Vet.App. 249, 258-60 (2020).
For those reasons, the January 2021 VA medical opinion did not substantially comply with
the Board’s remand instructions and was inadequate to inform the Board about the question of
nexus. See Acevedo, 25 Vet.App. at 293; D’Aries, 22 Vet.App. at 105. Thus, the Board clearly
erred in relying on the January 2021 VA medical opinion, failing also to ensure that VA fulfilled
its duty to assist and complied with remand instructions. See D’Aries, 22 Vet.App. at 104; Stegall,
11 Vet.App. at 271. We will set aside the Board’s decision and remand the matter for the Board to
procure an adequate and substantially compliant medical opinion. See Stegall, 11 Vet.App. at 271
(holding that, when a medical examination is inadequate for evaluation purposes, remand is the
appropriate remedy and that a veteran has a right to compliance with a Board remand order); see
also Barr, 21 Vet.App. at 311 (“[O]nce the Secretary undertakes the effort to provide an
examination when developing a service-connection claim . . . he must provide an adequate
one . . . .”).
7
Because we have decided to once again remand the case, we will not address the veteran’s
other arguments that would lead to no greater remedy. See Mahl v. Principi, 15 Vet.App. 37, 38
(2001) (per curiam order) (“[I]f the proper remedy is a remand, there is no need to analyze and
discuss all the other claimed errors that would result in a remedy no broader than a remand.”). Mr.
Poindexter is free on remand to submit additional evidence and arguments, including those raised
in his briefs, and he has 90 days from the date of the postremand notice VA provides to do so. See
Kutscherousky v. West, 12 Vet.App. 369, 372–73 (1999) (per curiam order); see also Clark v.
O’Rourke, 30 Vet.App. 92, 97 (2018). The Board must consider any such evidence or argument
submitted. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Court also reminds the Board
that a remand must be performed in an expeditious manner, 38 U.S.C. § 7112, and that “[a] remand
is meant to entail a critical examination of the justification for the decision,” Fletcher v. Derwinski,
1 Vet.App. 394, 397 (1991).
III. CONCLUSION
Based on the above considerations, the May 10, 2021, Board decision is SET ASIDE and
the matter is REMANDED for further proceedings.
DATED: November 22, 2022
Copies to:
Glenn R. Bergmann, Esq.
VA General Counsel (027)

Powered by WordPress.com.