Single Judge Application, New and Material Triggering Medical Exam Duty, Shade v. Shinseki, 24 Vet.App. 110 (2010), Kahana v. Shinseki, 24 Vet. App. (2011)

Excerpt from decision below: "The Board's conclusion that a medical examination is not necessary is reviewed under the "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law" standard of review. 38 U.S.C. § 7261(a)(3)(A); McLendon, 20 Vet.App. at 81. The Board held that the letters from Drs. Shanahan and Fay (misstated by the Board and the parties as a single letter from Dr. Shanahan), while sufficiently "new and material" to trigger the 2 reopening of a claim, did not provide "evidence of in-service disease or injury . . . [or] competent evidence that any claimed disability may be related to the Veteran's military service." R. at 6-7. Therefore, the Board held that the Secretary was not required to provide a medical examination and proceeded to evaluate and deny the claim based on the existing record. This Board determination was in error. The Court's recent decision in Shade v. Shineski, 24 Vet.App. 110 (2010), clarified the "proper relationship between the new-and-material-evidence standard to reopen a claim and the standard for triggering the Secretary's duty to provide a medical examination under 38 U.S.C. § 5013A(d). In cases where medical evidence is necessary to prevail, the two standards are the same." Id. at 123 (Lance, J., concurring). The Board found the newly submitted evidence to be "material, as it provides additional probative information and relates to an unestablished fact necessary to substantiate the claim," and reopened the claim. R at 11; 38 C.F.R § 3.156 (2011). This determination was correct because the letters from Drs. Shanahan and Fay stated that the infection, actinomycosis, was acquired during service. R. at 523-25. Therefore, the Board's judgment that the medical opinions met the "new-and-material-evidence standard" triggered the duty to assist and the Secretary is obligated to provide a medical opinion. In essence, the Board erred in determining, without independent medical evidence, that the medical opinions provided by Drs. Shanahan and Fay "are of no probative value." R at 13. The Board asserted that, because the private medical opinions did not include " review of the service records or a factual predicate in the record," they were "too speculative in nature to be probative." R. at 13. However, "the claims file is not a magical or talismanic set of documents" and "a private medical opinion may not be discounted solely because the opining physician did not review the claims file." Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 303, 304 (2008)." ========================== "It is also clear from Dr. Shanahan's letter that in the past 30 years he and the appellant have discussed the appellant's military career and related medical history. Id. Furthermore, even if Drs. Shanahan and Fay are basing their analysis on an incomplete factual premise, the Board remains prohibited from assuming that more information would necessarily change the doctors' opinion. 3 Kahana v. Shinseki, 24 Vet. App. 428, 439 n.8 (2011) (Lance, J., concurring) (distinguishing an incorrect factual premise, which has no probative value, from an incomplete factual premise). Even if the doctors' opinions are based on an incomplete medical premise, they may still indicate service connection, which would trigger the Secretary's duty to assist by providing a medical exam. Id." ========================== "The Board "'must consider only independent medical evidence to support [its] findings rather than provide [ its] own medical judgment in the guise of a Board opinion'" so that " 'all medical evidence contrary to the veteran's claim will be made known to him and be a part of the record before this Court.'" Kahana, 24 Vet.App. at 434 (quoting Colvin, 1 Vet.App. at 172, 175)." =========================== ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 10-1909 WOODROW YOHAN, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before LANCE, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. LANCE, Judge: The appellant, Woodrow Yohan, through counsel, appeals a February 12, 2010, Board of Veterans' Appeals (Board) decision that denied his claims for service connection for actinomycosis,1 status post right thoracotomy, and secondary service connection for chronic obstructive pulmonary disease (COPD). Record (R.) at 2-16. Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). This appeal is timely and the Court has jurisdiction over the case pursuant to 38 U.S.C. §§ 7252(a) and 7266. For the reasons that follow, the Court will vacate the February 12, 2010, decision and remand the matter for further proceedings consistent with this decision. I. FACTS The appellant served on active duty in the U.S. Navy from October 1955 to August 1976. R. at 4. Service medical records (SMRs) include complaints of chest pain in 1973 and 1975 and a 1974 abnormal chest x-ray indicating scarring in the left lung. R. at 144- 46, 148. In December Actinomycosis is "an infectious disease" most commonly impacting "the submandibular region, thorax, and abdomen." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 22 (32nd Ed. 2012). 1 1978, two years after his retirement from the Navy, the appellant was diagnosed with actinomycosis in his right lung. R. at 373, 504-05, 523-25. The appellant filed his initial claim for service connection for actinomycosis in October 1997; it was denied in November 1998 on the grounds that "there was no evidence of any signs or symptoms of actinomycosis or any respiratory disorder in service or until more than two years after service." R. at 8. R. at 691-98. No appeal was filed. R. at 4. In December 2006 the appellant requested that his claim be reopened, R. at 606, adding to the record two private medical opinion letters fromDrs. William J. Shanahan and James E. Fay, both of whomwere involved in diagnosing the appellant with actinomycosis. R. at 523-25. Dr. Shanahan has continued to treat the appellant for over 30 years. R. at 523. Both doctors described the kind of work the appellant performed while in service and opined that as a result the appellant's medical condition is service connected. The VA regional office (RO) considered this evidence sufficiently "new and material" to reopen the claim, but denied the claim on the merits. R. at 312-19. The appellant appealed this denial, and the Board issued the February 2010 decision that is now on appeal to this Court. II. ANALYSIS The issue on appeal is whether VA failed in its duty to assist by not ordering a medical opinion. VA must provide a medical opinion when the record contains (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, ( 2) evidence establishing that an event, injury, or disease occurred in service, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence for the Secretary to make a decision on the claim. 38 U.S.C. § 5103A(d)(2); McLendon v. Nicholson, 20 Vet.App. 79, 81-86 (2006); 38 C.F.R. § 3.159(c)(4) (2011). The Board's conclusion that a medical examination is not necessary is reviewed under the "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law" standard of review. 38 U.S.C. § 7261(a)(3)(A); McLendon, 20 Vet.App. at 81. The Board held that the letters from Drs. Shanahan and Fay (misstated by the Board and the parties as a single letter from Dr. Shanahan), while sufficiently "new and material" to trigger the 2 reopening of a claim, did not provide "evidence of in-service disease or injury . . . [or] competent evidence that any claimed disability may be related to the Veteran's military service." R. at 6-7. Therefore, the Board held that the Secretary was not required to provide a medical examination and proceeded to evaluate and deny the claim based on the existing record. This Board determination was in error. The Court's recent decision in Shade v. Shineski, 24 Vet.App. 110 (2010), clarified the "proper relationship between the new-and-material-evidence standard to reopen a claim and the standard for triggering the Secretary's duty to provide a medical examination under 38 U.S.C. § 5013A(d). In cases where medical evidence is necessary to prevail, the two standards are the same." Id. at 123 (Lance, J., concurring). The Board found the newly submitted evidence to be "material, as it provides additional probative information and relates to an unestablished fact necessary to substantiate the claim," and reopened the claim. R at 11; 38 C.F.R § 3.156 (2011). This determination was correct because the letters from Drs. Shanahan and Fay stated that the infection, actinomycosis, was acquired during service. R. at 523-25. Therefore, the Board's judgmentthatthemedicalopinionsmetthe"new-and-material-evidencestandard" triggeredtheduty to assist and the Secretary is obligated to provide a medical opinion. In essence, the Board erred in determining, without independent medical evidence, that the medical opinions provided by Drs. Shanahan and Fay "are of no probative value." R at 13. The Board asserted that, because the private medical opinions did not include " review of the service records or a factual predicate in the record," they were "too speculative in nature to be probative." R. at 13. However, "the claims file is not a magical or talismanic set of documents" and "a private medical opinion may not be discounted solely because the opining physician did not review the claims file." Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 303, 304 (2008). Indeed, "[t]here are other means by which a private physician can become aware of critical medical facts, not the least of which is by treating the claimant for an extended period of time." Id. at 303. Dr. Shanahan stated that he has treated the appellant since 1978 and examined him as recently as January 2007. R. at 523. It is also clear from Dr. Shanahan's letter that in the past 30 years he and the appellant have discussed the appellant's military career and related medical history. Id. Furthermore, even if Drs. Shanahan and Fay are basing their analysis on an incomplete factual premise, the Board remains prohibited from assuming that more information would necessarily change the doctors' opinion. 3 Kahana v. Shinseki, 24 Vet. App. 428, 439 n.8 (2011) (Lance, J., concurring) (distinguishing an incorrect factual premise, which has no probative value, from an incomplete factual premise). Even if the doctors' opinions are based on an incomplete medical premise, they may still indicate service connection, which would trigger the Secretary's duty to assist by providing a medical exam. Id. Dr. Shanahan stated that he "believe[s] that Mr. Yohan acquired this infection prior to his retirement from the United States Navy." R. at 523. Dr. Fay states: "It is clear that his respiratory process which is a severe one clearly dates back to his active duty period . (I myself took care of him back in 1977.)" R. 525. Both doctors treated the appellant shortly after his retirement; Dr. Shanahan continues to treat the appellant. R. at 523-525. Both doctors assert that the appellant's condition is service connected, and their statements were accepted by the Board as new and material evidence sufficient to reopen the appellant's claim. R. at 11. See 38 C.F.R. § 3. 156 (2011). In Colvin v. Derwinski, 1 Vet.App. 171 (1991), rev'd on other grounds, 155 F.3d 1356 (Fed. Cir. 1998), the Court held that the Board, "in finding that the new evidence did not provide a new factual basis for a claim was, in effect, refuting the expert medical conclusions in the record with its own unsubstantiated medical conclusions." Id. at 175. The Board "'must consider only independent medical evidence to support [its] findings rather than provide [ its] own medical judgment in the guise of a Board opinion'" so that " 'all medical evidence contrary to the veteran's claim will be made known to him and be a part of the record before this Court.'" Kahana, 24 Vet.App. at 434 (quoting Colvin, 1 Vet.App. at 172, 175). Therefore, this claim is remanded for the Secretary to provide a medical opinion or to adequately explain why one is not necessary and make a determination on the appellant's claim that is based on independent medical evidence. III. CONCLUSION After consideration of the appellant's and the Secretary's briefs, and a review of the record, the Board's February 12, 2010, decision is VACATED and the matter is REMANDED to the Board for further proceedings consistent with this decision. DATED: September13, 2011 4 Copies to: Robert W. Legg, Esq. VA General Counsel (027) 5