Single Judge Application, Savage v. Shinseki, No. 09-4406 (January 4, 2011)

Excerpt from decision below:
"After briefs were submitted in this case, this Court issued a decision in Savage v. Shinseki, __ Vet.App. __, No. 09-4406 (Jan. 4, 2011), which held:
[W]hen VA concludes that a private medical examination report is unclear or insufficient in some way, and it reasonably appears that a request for clarification . . . could provide relevant information that is otherwise not in the record and cannot be obtained in some other way, the Board must either seek clarification from the private examiner or the claimant or clearly and adequately explain why such clarification is unreasonable. __ Vet.App. at __, slip op. at 15. The Court made it clear, however, that the Board's duty to clarify private medical opinions is limited and will not arise in most instances. Id. at 16. The Court held that VA's duty only arises in "those instances in which the missing information is relevant, factual, and objective – that is, not a matter of opinion – and where the missing evidence bears greatly on the probative value of the private examination report." Id.
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-3706
RONALD F. STOCKER, APPELLANT,
V.
ERIC K. SHINSEKI,
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, Ronald F. Stocker, appeals through counsel
a July 10,
2009, Board of Veterans' Appeals (Board) decision that denied him
serviceconnection fora bilateral
hip disorder, a bilateral knee disorder, and a low back disorder. Record (
R.) a 3-14. This appeal is
timely, and the Court has jurisdiction to review the Board's decision
pursuant to 38 U.S.C.
§§ 7252(a) and 7266(a). Single-judge disposition is appropriate. See
Frankel v. Derwinski,
1 Vet.App. 23, 25-26 (1990). For the following reasons, the Court will
affirm the Board's decision.
I. BACKGROUND
A. Facts
The appellant served on active dutyin the U.S. Armyfrom October1960until
October1963.
R. at 434. The record indicates that the appellant's in-service occupation
was repairing and
maintaining telephone lines. R. at 18, 180-81, 262, 434. The appellant's
service medical records
(SMRs) reveal that he fractured his ankle when he fell while in service. R.
at 363. However, the
SMRs do not reveal injuries to the hips, knees, or spine. See R. at 351-
417.
In June 2003, the appellant applied for compensation based on his
disabilities. R. at 328-37.
In an August 2005 treatment note, a VA physician stated that "in my
opinion[,] falling off a


telephone pole [that was] 35 feet high[] could well have damaged the
knees and the hips and the
spine. [B]ecause we usually favor one limb, the [right] knee and [left]
hip took the brunt of the
impact fall from that height." R. at 297. In a September 1, 2005,
statement, the appellant reported
that his disabilities were "a result of a fall from 35 feet from a
telephone pole while [he was] on
active duty." R. at 295. In December 2005, the appellant's private
orthopedist, Dr. William J. Near,
diagnosedtheappellantwith post-traumatic arthritis of the hips, post-
traumaticarthritisoftheknees,
and degenerative arthritis of the lumbar spine. R. at 276-77. Dr. Near
opined that the appellant's
disabilities were due to his service-related injuries. R. at 276.
In July 2007, the appellant was provided a hearing before the Board. R. at
177-90. The
appellant stated that during service, he worked on telephone poles,
climbing the poles for "at least
an hour, hour and a half every night." R. at 180. The telephone poles, the
appellant stated, were
normally 35 feet in height, but could be as high as 50 feet. Id. During
the course of the hearing, the
appellant's representative stated that there had been some confusion in
the case. Id. He stated that
the VA regional office (RO) apparently believed that the appellant's
disabilities were "due to a
traumatic injury while in service . . . [that] he fell from a pole. This
is not the case. [His injuries are]
from a chronic, continuous job." Id. The representative indicated the
appellant's claim was based
on wear and tear "[s]imilar to [that brought on by] parachute jumping." R.
at 181. The appellant
stated that, after working on telephone poles for more than an hour, he
would often descend rapidly,
at times fallinglong distances. R. at 181-82. In September 2007, the Board
remanded the appellant's
case to the RO to obtain additional evidence, and then to schedule the
appellant for a VA medical
examination. R. at 166-68.
The appellant was provided a VA examination in March 2009. R. at 45-53.
The examiner
opined that the appellant's disabilities were "less likely as not" caused
by or a result of his service.
R. at 52. The examiner noted that the appellant had worked as a lineman in
service, "which could
have caused repeated trauma." R. at 53. However, the examiner found that
without documentation
of an injury in the appellant's SMRs or until 1992, he could not opine
that the disabilities are service
connected. Id.
In its July 10, 2009, decision here on appeal, the Board denied the
appellant entitlement to
service connection for a bilateral hip disorder, a bilateral knee disorder,
and a low back disorder.
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The Board acknowledged that the appellant has degenerative joint disease
in his hips, knees, and
lumbar spine, and noted his initial assertion that his conditions resulted
from an in-service fall. R.
at 7. The Board stated that the appellant later "acknowledged that there
was no particular incident
or injury in service related to a fall from a telephone p[ole]; rather, it
was the chronic strain of the
job and having to quickly slide down poles, stopping and starting, that
created the general wear and
tear" that resulted in his current disabilities. R. at 7-8.
The Board noted that the SMRs and service separation examination show no
evidence of
treatment for a knee, hip, or lumbar spine injury during service, and
found that no diagnosis of the
appellant's disease was made until 1992. R. at 10-11. The Board thus
concluded that the
preponderance of the evidence is against the appellant's claim. R. at 10.
The Board stated that it gave more evidentiary weight to the March 2009 VA
examination
report, contemporaneous service treatment records, and postservice private
treatment records than
to the August 2005 VA medical opinion and Dr. Near's December 2005 medical
opinion. R. at 11-
13. The Board found that the August 2005 opinion lacks probative value
because it was based on
an inaccurate factual premise. Id. The Board gave Dr. Near's December 2005
opinion less probative
value than other evidence of record because the opinion lacks supporting
rationale, lacks clarity
regarding what clinical evidence Dr. Near relied upon in formulating his
opinion, is "not based on
objective diagnostic testing," and was formulated long after the
appellant's service. R. at 12-13.
B. Arguments on Appeal
The appellantarguesthatthe Board did not adequatelysupport its
determinations concerning
the probative value of the August 2005 VA medical opinion and Dr. Near's
December 2005 opinion.
Specifically,theappellant asserts
thattheBoardincorrectlydeterminedthattheAugust 2005opinion
was based on an inaccurate factual premise. Appellant's Brief (Br.) at 6.
The appellant also argues
that the Board should have returned this opinion for clarification. Id. at
6-7. Regarding Dr. Near's
December 2005 opinion, the appellant argues that "the Board erred in
failing to seek clarification of
the clinical basis" of the opinion. Id. at 7. The appellant also disputes
the Board's determination that
the opinion is less probative because it is not based upon objective
diagnostic testing. Id. at 7-8.
The Secretary argues that the record supports the Board's finding that the
August 2005
medical opinion is based on an inaccurate factual premise and thus is not
probative. Secretary's Br.
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at 10-13. Regarding the appellant's argument that the opinion should have
been returned for
clarification, the Secretary contends that the Board remanded the
appellant's claims in September
2007 "specifically to obtain a new medical opinion that was based on an
accurate factual premise."
Id. at 13. Thus, the Secretary concludes, "contrary to [a]ppellant's
assertion, the Board responded
to the August 2005 opinion by indeed remanding the claim for clarification
." Id. at 14.
Responding to the appellant's arguments concerning the December 2005
opinion, the
Secretary asserts that VA "does not have a duty to clarify private
treatment records. . . . The cure for
those inadequate [private] records is thus a VA examination." Id. at 15.
The Secretary therefore
concludes that the September 2007 remand and subsequent August 2009 VA
examination served to
"cure the inadequacies of the [a]ppellant's record." Id. at 17. Finally,
responding to the appellant's
assertion that the Board incorrectly found that the lack of diagnostic
testing reduced the probative
value of the December 2005 opinion, the Secretary argues that the Board
correctly found that "it is
not bound to accept an opinion based on unsupported clinical evidence." Id.
at 18. The Secretary
contends that diagnostic testing would impact a determination of whether
the appellant's current
disabilities are connected to his service, and the lack of such testing
reduces the probative value of
the December 2005 opinion. Id.
II. ANALYSIS
Establishing service connection generally requires medical or, in certain
circumstances, lay
evidence of (1) a current disability; (2) incurrence or aggravation of a
disease or injury in service;
and (3) a nexus between the claimed in-service injury or disease and the
current disability. See
Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v.
West, 12 Vet.App. 247, 252
(1999); Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78
F.3d 604 (Fed. Cir. 1996)
(table). A finding of service connection is a finding of fact that the
Court reviews under the "clearly
erroneous" standard of review. See Dyment v. West, 13 Vet.App. 141, 144 (
1999).
When deciding a matter, the Board must include in its decision a written
statement of the
reasons or bases for its findings and conclusions, adequate to enable an
appellant to understand the
precise basis for the Board's decision as well as to facilitate review in
this Court. See 38 U.S.C.
§ 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v.
Derwinski, 1 Vet.App. 49,
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56-57(1990). Tocomplywith this requirement,theBoardmust analyze
thecredibilityandprobative
value of the evidence, account for the evidence that it finds persuasive
or unpersuasive, and provide
the reasons for its rejection of any material evidence favorable to the
claimant. See Caluza, 7
Vet.App. at 506; Gilbert, 1 Vet.App. at 57.
A. The August 2005 VA Physician's Opinion
This Court has held that "[a]n opinion based on an inaccurate factual
premise has no
probative value." Reonal v. Brown, 5 Vet.App. 458, 461 (1993); see also
Swann v. Brown, 5
Vet.App. 229, 233 (1993) (stating that the Board may reject a medical
opinion that is based on an
appellant's statement that is contradicted by other facts in the record);
Kowalski v. Nicholson, 19
Vet.App. 171, 179 (2005). Factual determinations bythe Board will not be
overturned unless found
to be clearly erroneous. Butts v. Brown, 5 Vet.App. 532, 534 (1993) (en
banc). A factual
determination is not clearly erroneous unless, in light of a review of the
entire evidence, the Court
is left "'with the definite and firm conviction that a mistake has been
made.'" Hersey v. Derwinski,
2 Vet.App. 91, 94 (1992) (quoting United States v. U.S. Gypsum Co., 333 U.
S. 364, 395 (1948)).
Regarding the August 2005 opinion, the Board stated:
[T]he Board assigns no probative value to it as it is based upon an
inaccurate fact,
i.e., that the [appellant] injured his right knee and left hip from a 35
foot fall from a
telephone pole. This is the initial claim made by the [appellant]. At the
July 2007
hearing, however, he conceded that he never actually fell from a telephone
pole and
stated that there is no one incident that he pinpoints as having caused
the claimed
conditions.
R. at 11-12.
The appellant argues that the VA physician "used a 35 foot fall as an
example in his opinion,
and the Board has not offered anyconclusion that the appellant was not
forced to jump from elevated
positions on telephone poles while on active duty." Appellant's Br. at 6.
The VA physician stated
that "in my opinion, falling off a telephone pole [at] 35 feet high, could
well have damaged the knees
and hips and spine." R. at 297. The 35-foot fall does not appear to be an "
example" used by the
physician. In his report, the physician speaks of the 35-foot fall as a
distinct incident of acute
trauma. In further stating that "because we usually favor one limb, the [
right] knee and [left] hip
took the brunt of the impact fall from that height," the physician also
appears to be discussing the
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mechanics of the alleged 35-foot fall and relating it to the appellant's
symptomatology. Therefore,
rather than an example, the fall appears to be the basis for his opinion,
and the Board's finding to that
effect is not clearly erroneous.
The Court further finds that the Board provided an adequate statement of
reasons or bases
for its determination that the alleged 35-foot fall is an inaccurate
factual premise. As the Board
noted, in September 2005 the appellant initially claimed that he was
injured by a 35-foot fall from
a telephone pole. R. at 12, 295. The Board then noted that in his July
2007 hearing, the appellant
changed his position, expressly abandoning his previous assertion that his
disabilities were due to
a single fall and adopting the position that his disabilities were due to
the continuous strain on his
joints caused by his occupation. R. at 180-82. The Board did not dispute
that the appellant jumped
from elevated positions, but merely found that the physician's impression
that a single fall from 35
feet was the basis of the appellant's disabilities is inaccurate based on
the appellant's change in
position. Thus, the Board adequately explained its finding.
The appellant also argues that, because the Board apparently found the
physician's opinion
to be "ill-informed," the August 2005 VA examination should have been
returned for clarification.
Appellant's Br. at 6-7. The Board has a duty to remand a case "[i]f
further evidence, clarification of
the evidence, correction of a procedural defect, or any other action is
essential for a proper appellate
decision." 38 C.F.R. § 19.9(a) (2010). The Court, however, disagrees with
the premise of the
appellant's argument. The Board made no finding concerning the lack of
clarity in the physician's
opinion or any finding that the physician was "ill-informed." Instead, it
found simply that the
physician's statement was based on an inaccurate factual premise, and thus
it rejected the statement
as evidence. The Board is allowed to make that determination. See Reonal,
Swann, and Kowalski,
all supra.
Moreover, in September 2007, the Board remanded the appellant's case to
allow VA to
adequatelyfulfill its duty to assist by, among other actions, providing
the appellant with another VA
medical examination. R. at 167. That examination was conducted in March
2009 (R. at 45-53), and
was before the Board when it issued the decision currently on appeal. The
appellant makes no
challenge to the adequacy of that examination or the Board's consideration
of it in its decision.
Therefore, as the Secretary notes, to the extent that there was a lack of
clarity regarding the August
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2005 VA examination, the Board fulfilled its duty to seek clarification
by ordering a new medical
examination.
B. Dr. Near's December 2005 Opinion
Regarding Dr. Near's December 2005 private medical opinion, the Board
stated:
[T]he Board finds that this opinion is not afforded as much probative
weight as that
of the March 2009 VA examiner's for several reasons. Unlike the VA
examiner, this
private physician fails to provide a rationale for his opinion. It is the
factually
accurate, fully articulated, sound reasoning for the conclusion that
contributes
probative value to a medical opinion. . . . It is unclear what clinical
evidence the
examiner relied upon in determining that the [appellant's] degenerative
joint disease
was "posttraumatic" as the treatment note does not indicate that the
physician was
relying on any diagnostic testing to confirm the presence of arthritis,
much less that
it was posttraumatic. The Board is not bound to accept an opinion based on
unsupported clinical evidence. . . . Furthermore, as this private
physician's opinion
is not based upon objective diagnostic testing, it [] lacks probative
value in light of
the June 1992 private treatment note. . . .
R. at 12.
The appellant first argues that the Board "erred in failing to seek
clarification of the clinical
basis" of Dr. Near's opinion. Appellant's Br. at 7. The Secretary argues
that VA "does not have a
duty to clarify private treatment records." Secretary's Br. at 15. After
briefs were submitted in this
case, this Court issued a decision in Previous DocumentSavageNext Hit v. Shinseki, __ Vet.App. __,
No. 09-4406 (Jan. 4, 2011),
which held:
[W]hen VA concludes that a private medical examination report is unclear
or
insufficient in some way, and it reasonably appears that a request for
clarification . . . could provide relevant information that is otherwise
not in the record
and cannot be obtained in some other way, the Board must either seek
clarification
from the private examiner or the claimant or clearlyand adequatelyexplain
whysuch
clarification is unreasonable.
__ Vet.App. at __, slip op. at 15. The Court made it clear, however, that
the Board's duty to clarify
private medical opinions is limited and will not arise in most instances.
Id. at 16. The Court held
that VA's duty only arises in "those instances in which the missing
information is relevant, factual,
and objective – that is, not a matter of opinion – and where the
missing evidence bears greatly on the
probative value of the private examination report." Id.
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The Court finds that the holding in Previous HitSavageNext Hit applies to the present case.
The Board found a
lack of clarity because Dr. Near did not explain what clinical evidence he
relied upon in formulating
his opinion. R. at 12. The need for clarification of clinical evidence
fits squarely within the Court's
limiting instruction under Previous HitSavageNext Document, __ Vet.App. at __, slip op. at 16,
because such clinical evidence
is relevant, factual, and objective. The Court, therefore, finds that the
Board's failure to seek
clarification of Dr. Near's opinion or to include in its decision an
explanation for why it need not do
so renders its statement of reasons or bases inadequate. See 38 U.S.C. §
7104(d)(1); Allday, Caluza,
and Gilbert, all supra.
The Board's error, however, is not prejudicial. 38 U.S.C. § 7261(b)(2);
see also Shinseki v.
Sanders, 129 S. Ct. 1696, 1704 (2009) (noting that the statute requiring
this Court to "take due
account of prejudicial error [] requires the Veterans Court to apply the
same kind of 'harmless error'
rule that courts ordinarily apply in civil cases"). The Board afforded Dr.
Near's opinion reduced
probative value for a number of reasons, including that he failed to
provide a rationale for his
opinion. R. at 12. Even if the Board requests that Dr. Near furnish the
clinical evidence that he
relied upon, that evidence will not cure the lack of any supporting
rationale in Dr. Near's opinion,
and the Board will be justified in continuing to afford it reduced
probative value. Any error in not
seeking clarification does not affect the ultimate outcome of the Board's
reasoning, and is therefore
not prejudicial.
The appellant next disputes the Board's finding that Dr. Near's opinion is
less probative
because it "is not based upon objective diagnostic testing." Appellant's
Br. at 8; R. at 12. The
appellant questions both the basis for the Board's requiring objective
diagnostic testing and its
conclusion that Dr. Near did not provide such information. In the
paragraph prior to this definitive
finding, the Board stated that it was unclear what clinical evidence Dr.
Near relied upon "as the
treatment note does not indicate that the physician was relying on any
diagnostic testing to confirm
the presence of arthritis." Id. The Court agrees that these two statements
are incongruous, rendering
the Board's statement of reasons or bases inadequate on this point.
However, the error is again not
prejudicial. See Sanders, supra. Because Dr. Near provided no rationale
for his conclusions,
whether he was required to use or did, in fact, rely on objective
diagnostic testing does not impact
the Board's ultimate analysis.
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III. CONCLUSION
After consideration of the appellant's and the Secretary's pleadings, and
a review of the
record, the Board's July 10, 2009, decision is AFFIRMED.
DATED: May 25, 2011
Copies to:
Peter J. Meadows, Esq.
VA General Counsel (027)
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