Excerpt from decision below:
"The Board's failure to make an assessment of the lay evidence for purposes of
continuity of symptomatology renders inadequate the Board's statement of reasons or bases. See Caluza v.Brown, 7 Vet.App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table) (requiring the Board to analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence
favorable to the claimant). The Court's review of the matter is frustrated,
and remand is required. See Tucker v. West, 11 Vet.App. 369, 374 (1998)."
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 08-2985
LANI G. MILLER, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before DAVIS, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
DAVIS, Judge: U.S. ArmyveteranLaniG.Miller appeals through
counselfromaSeptember
5, 2008, Board of Veterans' Appeals (Board) decision that denied him
service connection for a low
back disability. For the reasons stated below, the Court will set aside
the September 2008 Board
decision and remand a matter for further proceedings consistent with this
decision.
Mr. Miller served from April 1961 to April 1966. He asserts that, during
service, he fell into
a self-propelled howitzer, landing on his low back. He further contends
that he continued to
experience pain following service, but did not seek treatment until 1995.
At that time, he was shown
to have spondylosis and disc space narrowing at the L4-5 level, and mild
disc space narrowing at the
L5-S1 level.
This case centers around only one element of service connection. The Board
decision here
on appeal does not dispute Mr. Miller's current low back disability or
that the incident occurred in
service. Theissuein contention,therefore,is whetherthe evidence
establishes a connection between
Mr. Miller's disability and the Previous DocumentinjuryNext Hit he suffered during service. See
Shedden v. Principi, 381 F.3d
1163, 1166-67 (Fed. Cir. 2004) (requiring a service-connection claim to be
supported by evidence
demonstrating "(1) the existence of a present disability; (2) in-service
incurrence or aggravation of
a disease or Previous HitinjuryNext Hit; and (3) a causal relationship between the present
disability and the disease or
Previous HitinjuryNext Hit incurred or aggravated during service"); see also 38 C.F.R. § 3.
303(b) (2010) (allowing for
service connection on a showing of continuity of symptomatology). The
Board determined that it
did not, and this appeal ensued.
I. ANALYSIS
A. Medical Evidence
On appeal, Mr. Miller first asserts that the Board improperly discredited
favorable medical
opinions and improperly obtained and relied on a negative VA medical
opinion in 2008.
1. Favorable Medical Evidence
Here, the Board acknowledged that a May 1997 VA opinion, a September 1997
private
physician's statement, and a July 1999 VA opinion all tended to support a
link between Mr. Miller's
disability and service. However, in weighing the medical evidence, the
Board concluded that
[t]he problem with the VA examiner's opinions is that the May 1997
examiner used
the word "probably" and the July1999 examiner used the word "might" in
describing
whether there was a relationship between the veteran's current back
disability and
service. The use of such equivocal language regarding a link between
service and a
present disability makes an examiner's statement speculative in nature.
R. at 14. With regard to the 1997 private physician's statement, the Board
did not specifically
discount it. The Board did, however, favor the 2008 VA opinion over all of
the opinions because
it included supporting rationale and a detailed opinion, was based on a
review of service records and
postservice evidence (including the nearly 30 years between service and
the initial treatment for a
back disability), and did not use equivocal language.
With regard to Mr. Miller's assertion that the Board erred as a matter of
law when it
concluded that the use of the words "probably" and "might," respectively,
rendered the May 1997
and July 1999 VA reports speculative, the Court partially agrees. The word "
probably" implies a
degree of certainty at least as much as the "as likely as not" standard.
With regard to the term
"might," however, the Court concludes that the term is more akin to the
terms "could" or "may,"
which the Court has found too speculative to establish medical nexus. See
Bloom v. West, 12
Vet.App. 185, 187 (1999) (finding that "could" in medical opinion without
additional support for
2
conclusion is speculative); Tirpak v. Derwinski, 2 Vet.App. 609, 611 (
1992) (holding that medical
opinion stating "veteran's death may or may not have been averted" is
speculative); see also Obert
v. Brown, 5 Vet.App. 30, 33 (1993).
Regardless, even if the Board erred in deeming the examinations
speculative on the basis of
their inclusion of those single words, the Court deems the error harmless.
See 38 U.S.C.
§ 7261(b)(2) (requiring the Court to "take due account of the rule of
prejudicial error"); Conway v.
Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004). In view of the context of
both the May 1997 and
July 1999 VA opinions, the Court cannot discern error in the Board's
overall characterization of the
reports as speculative on the issue of etiology. Bloom, 12 Vet.App. at 187 (
analyzing the context of
an opinion to determine whether it is speculative because "[w]hat is
speculative in one context may
be less so in another"). In the May 1997 opinion, Dr. James Webber stated,
with regard to Mr.
Miller's assertion that his back problems were related to an in-service
incident:
I feel there is really no adequate way to substantiate this other than to
say that he has
had progressive low back problems since the alleged fall in 1963. He has
evidence
on examination today to suggest continuing low back problems . . . . I
feel that this
claim is a difficult one to evaluate from my standpoint and . . . I feel
that this case is
warranted in saying that the low back pain is probablydirectly related to
his previous
Previous HitinjuryNext Hit where he fell onto the howitzer.
R. at 649-50.
The July 1999 VA examiner was similarly equivocal on the issue of etiology.
Therein, the
examiner stated that although Mr. Miller had service records with him, "
they really don't deal with
the etiology of [his current back Previous HitinjuryNext Hit] at all. . . . Although I am not
an expert on back injuries, I
think it not unreasonable to conclude that some or all of his current back
problems might be related
to the [in-service] Previous HitinjuryNext Hit that he describes." R. at 447.
As stated previously, the Board did not expressly discount the September
1997 opinion, but
did not rely on it. To the extent that it found the evidence of no
probative value, the Court again
finds the error harmless. See 38 U.S.C. § 7261(b)(2); Conway, supra. The
examiner stated: "[Mr.
Miller] had a fall into a howitzer in 1963, and most of his subsequent
lower back difficulties were
a result of that. There is no other previous history of falls. He has been
seen by Dr. Web[b]er from
the VA system who agreed that this was a service connected Previous HitinjuryNext Hit and all
related back to the 1963
3
incident." R. at 609. The examiner provided no rationale for his
conclusion other than his assertion
that there was no historyof falls (but he does not explain how "low back
difficulty" could only result
from a fall) and that another examiner found the Previous HitinjuryNext Hit service connected.
Without more, the
conclusory opinion is not entitled to probative value for the purpose of
establishing etiology. See
Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 304 (2008).
Because these favorable opinions were insufficient for the purpose of
establishing etiology,
it was not error for the Board to discount them and for VA to seek the
2008 VA medical opinion on
which the Board ultimately relied.
2. Negative Medical Evidence
Mr. Miller also contests the adequacy of the 2008 VA opinion that deemed
it "unlikely that
any current diagnosed chronic low back disorder is causally related to an [
in-service] event." R. at
129. In pertinent part, Mr. Miller contends that the physician failed to
discuss continuity of
symtomatology, stated generalities, included speculation, and relied on
the absence of corroborating
medical evidence. Appellant's Brief (Br.) at 17. The Court views these
arguments as unpersuasive.
A medical opinion is adequate where it is based upon the veteran's medical
history and
examinations and describes the disability in sufficient detail. See
D'Aries v. Peake, 22 Vet.App. 97,
104 (2008). Here, the examiner was provided a copy of the claims file, and
there is no indication
that he was not aware of what was in it, including the lay statements.
Although the physician did
not specifically address the lay statements, he was under no obligation to
do so. See Roberson v.
Shinseki,22Vet.App. 358, 366 (2009) ("A medical examiner neednotdiscuss
allevidencefavorable
to an appellant's claim when rendering an opinion.").
As to Mr. Miller's contention that the report included some generalities
and speculation, the
Court disagrees that this renders the examination inadequate, particularly
when the basis for the
physician's opinion is clear. See Nieves-Rodriguez v. Peake, 22 Vet.App.
295, 301 (2008) (requiring
a medical report to contain clear conclusions and supporting data, as well
as "a reasoned medical
explanation" connecting the data and conclusions). Although the opinion
made some general
statements such as, "[t]he stenosis which necessitated [a lumbar
laminectomy] is most often related
to age and degeneration rather than a distant history of trauma," and "[l]
ow back pain is a very
common phenomenon and is most often unrelated to anydistant history of
soft-tissue trauma," these
4
general statements supported the physician's ultimate conclusion which
was not based on
generalities. R. at 129. Specifically, the physician noted that there was
no evidence of any
permanent damage such as fracture or dislocation and that Mr. Miller's
condition was "unlikely to
be caused by a distant history of trauma without major permanent injuries
such as fracture,
dislocation, or instability." Id. Because the physician provided a
specific and sufficient explanation
of the basis for his medical conclusion, the Court is unconvinced that his
general statements
detracted from the value of the opinion.
Mr. Miller also takes issue with the examiner's reliance on the lack of
corroborating medical
records. He cites no law for the proposition that a physician is
prohibited from relying on the lack
of evidence of an Previous HitinjuryNext Hit in rendering an assessment, and the Court is
unaware of any. The Court
deems this argument meritless. See Locklear v. Nicholson, 20 Vet.App. 410,
416 (2006) (holding
that the Court will not entertain underdeveloped arguments); Hilkert v.
West, 12 Vet.App. 145, 151
(1999) (en banc) (requiring the appellant to demonstrate error on appeal).
In sum, the Court is unconvinced that the Board clearly erred in its
reliance on the 2008 VA
medical opinion. See Nolen v. Gober, 14 Vet.App. 183, 184 (2000) (
reviewing the adequacy of a
medical examination under the "clearly erroneous" standard).
B. Continuity of Symptomatology
Mr.MilleralsoassertsthattheBoardfailedto address his
continuityofsymptomatologyafter
service. Continuity of symptomatology may establish service connection if
a claimant can
demonstrate (1) that a condition was "noted" during service; (2) there is
postservice evidence of the
same symptomatology; and (3) there is medical or, in certain circumstances,
lay evidence of a nexus
between thepresent disabilityandthepostservicesymptomatology. Barr v.
Nicholson,21 Vet.App.
303, 307 (2007) (citing Savage v. Gober, 10 Vet.App. 488, 495-96 (1997)).
Here, the Board acknowledged Mr. Miller's assertions that his current back
disability began
in service and determined that medical evidence was required to establish
a link between the in-
service incident and Mr. Miller's current disorder. However, the Board did
not address Mr. Miller's
lay statements and those of his parents as they pertained to continuity of
symptomatology. In that
regard, the Board is obligated to "determin[e] whether lay evidence is
credible in and of itself."
Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006).
5
To the extent that the Board relied on the lack of contemporaneous
medical evidence to
implicitly discredit Mr. Miller's contentions, "symptoms, not treatment,
are the essence of any
evidence of continuity of symptomatology." Savage, 10 Vet.App. at 496; see
R. at 15 (Board's
statement that it could not "help but notice the lapse of approximately
three decades after the Previous HitinjuryNext Document
the veteran has described in service [and the first post-treatment record
documenting a low back
problem]"). In addition, although the Board mayweigh the lack of medical
evidence, the U.S. Court
of Appeals for the Federal Circuit has instructed that
[the Board] cannot determine that lay evidence lacks credibility merely
because it is
unaccompanied by contemporaneous medical evidence. If the Board concludes
that
the layevidence presented bya veteran is credible and ultimately competent,
the lack
of contemporaneous medical evidence should not be an absolute bar to the
veteran's
abilityto prove his claim of entitlement to disabilitybenefits based on
that competent
lay evidence.
Buchanan, 451 F.3d at 1337.
Consequently, a finding regarding the competency and credibility of the
lay evidence is
critical in this case so that the Board may weigh it against other
evidence of record. Notably, the
three medical opinions that the Board discounted for purposes of
establishing etiologyclearlyfound
credible Mr. Miller's assertions of continuing back pain, and the
examination on which the Board
ultimatelyrelied rejected a finding of nexus but did not address
layevidence of continuing pain. The
Board's failure to make an assessment of the lay evidence for purposes of
continuity of
symptomatologyrenders inadequate the Board's statement ofreasons orbases.
SeeCaluza v.Brown,
7 Vet.App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table) (
requiring the Board to
analyze the credibility and probative value of the evidence, account for
the evidence that it finds to
be persuasive or unpersuasive, and provide the reasons for its rejection
of any material evidence
favorable to the claimant). The Court's review of the matter is frustrated,
and remand is required.
See Tucker v. West, 11 Vet.App. 369, 374 (1998).
C. Pending Motions
Finally, Mr. Miller argues that the Board erroneously issued its decision
while a PrivacyAct
request and motion for extension of time in order to obtain the results of
the Privacy Act request
were pending. The Secretary responds that VA granted an extension of time
and provided the
6
documents requested in the privacyact request. After receiving those
documents, Mr. Miller sought
an additional 90 days, mistakenly asserting that he had not received all
documents from the Privacy
Act request. See Appellant's Reply Br. at 12. The Secretary argues that
any error in the Board
adjudicating the claim after all documents were provided was not
prejudicial to Mr. Miller. The
Court agrees that Mr. Miller has not persuasively shown how he was
prejudiced in this regard. In
any view of the matter, Mr. Miller will have the opportunity to present
additional evidence and
arguments to the Board in pursuing his claim on remand, and the Board must
address such argument
and evidence. See Kay v. Principi, 16 Vet.App. 529, 534 (2002).
II. CONCLUSION
On consideration of the foregoing, the Court SETS ASIDE the Board's
September 5, 2008,
decision and REMANDS the service-connection claim for a low back
disability for further
proceedings consistent with this decision. The Board shall proceed
expeditiously, in accordance
with 38 U.S.C. §§ 5109B, 7112 (requiring Secretaryto provide for "
expeditious treatment" of claims
remanded by Board or Court).
DATED: June 30, 2011
Copies to:
Barbara J. Cook, Esq.
VA General Counsel (027)
7
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