Single Judge Application, Probative Value of Medical Opinion Comes From its Reasoning, Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 304(2008)

Excerpt from decision below: "Because this Court has previously explained that "most of the probative value of a medical opinion comes from its reasoning," the Court concludes that there was a plausible basis for the Board's determination that the private physician's opinions were entitled to minimal probative value. Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 304 (2008)." ========================================= ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 10-2246 EZZIE THOMAS, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before HAGEL, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. HAGEL, Judge: Ezzie Thomas appeals through counsel a June 7, 2010, Board of Veterans' Appeals (Board) decision that denied entitlement to VA benefits for right and left knee disorders. Mr. Thomas's Notice of Appeal was timely, and the Court has jurisdiction to review the Board decision pursuant to 38 U.S.C. § 7252(a). Neither partyrequested oral argument or identified issues they believe require a precedential decision of the Court. Because the Board relied on an adequate VA medical examination, adequately explained its determination regarding the weighing of countervailing medical opinions, and considered all material issues of law, the Court will affirm the June 2010 Board decision. I. FACTS Mr. Thomas served on active duty in the U.S. Air Force from September 1949 to January 1953. No abnormalities of the extremities or joints were noted during his entrance examination. Most of the remainder of Mr. Thomas's service treatment records are presumed to have been destroyed in the July 1973 fire at the National Personnel Records Center in St. Louis, Missouri. A June 2001 VA treatment note indicates that Mr. Thomas sought treatment for right knee pain and was referred for a knee brace. Similar complaints were noted in VA treatment notes from March and April 2002. For instance, an April 2002 note indicates that Mr. Thomas taught "tennis to inner city kids [t]wo days weekly" and that "[h]is knee bother[ed] him after heavy work out[s]." Record (R.) at 816. Another April 2002 note reflects that Mr. Thomas reported a history "of remote sports injuries, but . . . no surgeries," and that he had been experiencing symptoms associated with the right knee for over 20 years. X-rays taken at that time "revealed severe narrowing of the medial joint line with multiple marginal osteophytes"1 and "severe degenerative changes of the patellofemoral joint," leading to a diagnosis of degenerative joint disease and chondromalacia.2 R. at 821. In March 2004, Mr. Thomas filed a claim for VA benefits for a "bilateral knee condition due to playing football while on active duty in the U.S. Air Force."3 R. at 858. In December 2004, one of Mr. Thomas's fellow servicemembers submitted a statement indicating that while the men "were stationed at Bergstrom Air Force Base [they] tried out for the football team," but that Mr. Thomas was unable to continue practicing after he "injured his knees early in the season," which caused him to walk with "a pronounce[d] limp as he moved about the base." R. at 841. In a June 2005 rating decision, a VA regional office denied Mr. Thomas entitlement to VA benefits for left and right knee conditions. Mr. Thomas filed a Notice of Disagreement with this decision in March 2006. His Notice of Disagreement was accompanied by a letter from his wife, in which she stated that Mr. Thomas played football while at Bergstrom Air Force Base and, "[o]n several occasions[,] he would come home with knee or ankle injuries" that she treated with massages and heat applications. R. at 794. Mr. Thomas also submitted a letter from a private physician. The physician stated that he reviewed the statements submitted by Mr. Thomas's wife and fellow servicemember and that Mr. Thomas "sustained multiple traumatic injuries during his tenur[e]." R. at 795. The private physician then opined that he could, "with reasonable certainty[,] state that [Mr. Anosteophyteisa"bonyexcrescence or osseous outgrowth." DORLAND'SILLUSTRATEDMEDICALDICTIONARY 1348 (32d ed. 2011) [hereinafter DORLAND'S]. 2 1 Chondromalacia is "softening of the articular cartilage, most frequently in the patella." DORLAND'S at 352. Mr. Thomas characterized this as a claim to reopen a previously denied claim for such benefits, but the record contains no indication that he previously applied for and was denied benefits for a bilateral knee condition and VA therefore adjudicated his claim as though it were an initial claim for benefits. 3 2 Thomas's] time on the football field in the military contributed to his present degenerative joint disease of his knees." R. at 795. VA medical records dated between August 2005 and February 2007 continue to reflect complaints of bilateral knee pain resulting in diagnoses of degenerative joint disease. After further development, Mr. Thomas appealed to the Board, which remanded his claims in June 2009 so that a VA medical examination could be obtained. This medical examination was conducted in September 2009. The examiner's report indicates that there were "[n]o records of any knee pain or issues while in service" and Mr. Thomas "[d]enie[d] any history of knee pain while in service"; that he had "[n]o history of traumatic injury to [his] knees during service"; and that his condition had not previously required surgery. R. at 75. After a physical examination, the examiner diagnosed Mr. Thomas with bilateral moderate knee degenerative joint disease. He concluded, however, that this condition was less likelythan not related to Mr. Thomas's militaryservice because "[t]here [was] no history or record of a traumatic injury in the service to explain [his] current [degenerative joint disease]" and "it is unlikely that [four] years of service, or 1.5 years of football (without significant knee injury)[,] would have degenerated his knee to its current condition." R. at 77. Instead, the examiner opined that Mr. Thomas's "current knee condition is more likely a result of age-related degenerative changes." R. at 77. In November 2009, this opinion was returned to the VA examiner for clarification. Specifically, the decision review officer instructed the examiner to provide a new opinion that "include[d] a discussion of the creditable lay evidence submitted by [Mr. Thomas's] wife, . . . Army buddy[,] . . . and the statement from his private physician." R. at 67. In response, the VA examiner issued an addendum to his earlier report in January 2010. The VA examiner's opinion was identical to that previously provided, except that it also discussed the relevant lay and medical evidence, as directed. With regard to the lay statements, the VA examiner "acknowledge[ d] that [Mr. Thomas] played football and sustained injuries in this sport," but concluded that it was still "more likely that [his] advanced age[] and normal articular cartilage degenerative changes are responsible for his current [degenerative joint disease] than his football playing." R. at 54. With regard to the private physician's letter, the VA examiner stated that he disagreed with the private physician's opinion because, absent evidence that those injuries required hospitalization or surgery, Mr. Thomas's 3 "advanced age, activities, and other factors were more significant in the development of [degenerative joint disease] than his brief tenure of football while in service." R. at 54. InMarch2010,Mr.Thomas's privatephysiciansubmittedasecondletterdetailingstatements made by Mr. Thomas's wife regarding her husband's history of knee problems. Specifically, the letter noted that Mr. Thomas's wife indicated that her husband "took lots of over the count[er] medications" and "refused corrective surgical interventions because he saw . . . bad outcomes with [his] buddies," and that "[h]is knee problems stopped him from running around when all of his buddies were 'wide open.'" R. at 19. The examiner then opined that Mr. Thomas had "advanced arthritis in both knees and his military career had a negative impact on his knee health." R. at 21. The Board issued the decision now on appeal in June 2010, concluding that the preponderance of the evidence did not indicate that Mr. Thomas's current bilateral degenerative joint disease was related to his service and therefore denying his claims. In reaching this conclusion, the Board afforded "great probative value [to the VA examiner's opinion because] it was based on a review of the file, an examination of [Mr. Thomas], and . . . a rationale was provided." R. at 7. The Board concluded that this opinion outweighed those provide by the private physician because "the private physician did not provide a rationale for his nexus opinion." R. at 8. The Board also found that "the absence of medical complaint of a bilateral knee condition for many years after service [was] highly probative evidence against [Mr. Thomas's] claim." R. at 8. Finally, the Board found all of the lay evidence of record credible and that it therefore constituted evidence of an in-service injury. However, the Board found that none of this "evidence show[ed] that [ Mr. Thomas] had arthritis to any degree within one year of separation of service" and that, although Mr. Thomas had related his in-service football injury to his current bilateral knee condition, "his opinion [was] outweighed by the more probative medical opinion of record." R. at 8. On appeal, Mr. Thomas contends that the September 2009 VA medical examination was inadequate, even in light of the January 2010 addendum. He also argues that the Board failed to provide adequate reasons or bases for its determination that the VA examiner's opinion was more 4 probative than the private physician'sopinions. Finally,hecontendsthat the Board failed to consider whether his degenerative joint disease should be service connected as a chronic condition.4 The Secretary argues that the VA medical examination was adequate, that the Board adequatelyexplained its determinationthattheexaminer's resultingopinion wasmoreprobativethan that offered by the private physician, and that the record simply does not provide any evidence that Mr. Thomas's current degenerative joint disease of the knees manifested itself as a chronic condition during his service or within the relevant presumptive period. II. ANALYSIS A. Adequacy of the VA Medical Examination The Secretary "shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit under a law administered by the Secretary." 38 U.S.C. § 5103A(a)(1). The Secretary's duty to assist a claimant includes, among other things, "providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessaryto make a decision on the claim." 38 U. S.C. § 5103A(d)(1); see 38 C.F.R. § 3.159(c) (2011). The medical examination provided must be "thorough and contemporaneous" and consider prior medical examinations and treatment. Green v. Derwinski, 1 Vet.App. 121, 124 (1991). A medical examination is adequate "where it is based upon consideration oftheveteran's priormedicalhistoryandexaminationsandalsodescribesthedisability . . . in sufficient detail so that the Board's 'evaluation of the claimed disability will be a fully informed one.'" Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet.App. 405, 407 (1994)). If an examination report does not contain sufficient detail, "it is incumbent upon the rating board to return the report as inadequate for evaluation purposes." 38 C.F.R. § 4.2 (2011); see Bowling v. Principi, 15 Vet.App. 1, 12 (2001) ( emphasizing the Board's dutyto return inadequate examination report). The Board maycommit error requiring remand when 4 Mr. Thomas does not allege that VA failed to satisfy any of its enhanced duties that arose due to his missing service medical records. See Washington v. Nicholson, 19 Vet.App. 362, 370 ( 2005) (explaining that where a veteran's are presumed to have been lost or destroyed while inthe possession ofthe government, VA's dutyto assist is heightened); O'Hare v. Derwinski, 1 Vet.App. 365, 367 (1991) ("[W]here the service medical records are presumed destroyed . . . the [Board]'s obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule is heightened."). 5 it relies on an inadequate medical examination. See Ardison, 6 Vet.App. at 407 (holding that an inadequate medical examination frustrates judicial review). Whether a medical opinion is adequate is a finding of fact, which the Court reviews under the "clearlyerroneous" standard. See 38 U.S.C. § 7261(a)(4); D'Aries v. Peake, 22 Vet.App. 97, 103 (2008); Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990). "A factual 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.'" Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992) (quoting United States v. U.S. Gypsum Co., 333 U. S. 364, 395 (1948)). Here, Mr. Thomas argues that the VA medical examiner's report was inadequate because it failed "to properly consider the injuries described in the lay statements in spite of . . . VA's determination that those lay statements were credible." Appellant's Brief ( Br.) at 4. The Court disagrees. The VA examiner's initial opinion failed to discuss the lay statements of Mr. Thomas's wife and the fellow servicemember. Accordingly, the decision review officer returned the examination report as inadequate, directed the examiner to consider those lay statements, which were described as credible, and further instructed him to offer a new opinion that directly addressed the lay statements. See R. at 67; see also 38 C.F.R. § 4.2. In the January 2010 addendum to the initial report, the VA examiner acknowledged these lay statements and accepted that they were evidence that Mr. Thomas played football for approximately 1.5 years during his service and that he suffered knee injuries as a result, but noted that the lay statements did not indicate that these injuries required hospitalization or surgery. The examiner then opined that, without evidence of an injury so severe that it required hospitalization or surgery, it remained more likely that Mr. Thomas's current degenerativejoint diseasewascausedbythenormalagingprocess thanhis in- servicefootball-related experiences. In light of this portion of the examiner's January 2010 addendum, the Court concludes that there is no foundation for Mr. Thomas's argument that the VA examiner failed to properly consider the laystatements and the Board therefore did not clearlyerr in concluding that the examiner's report was adequate. See D'Aries, 22 Vet.App. at 103. 6 B. Reasons or Bases Mr. Thomas next argues that the Board failed to adequately explain its decision to afford greater probative value to the VA medical examiner's opinion than those offered by his private physician. It is for the Board to weigh the evidence in the first instance, Washington, 19 Vet.App. at 369, and the Court may not substitute its judgment for the determinations of the Board on an issue of material fact. Hersey, 2 Vet.App. at 94. Accordingly, the Board's assessment of the credibility and weight to be given to evidence is a finding of fact that the Court reviews under the "clearly erroneous" standard of review. 38 U.S.C. § 7261(a)(4); Wood v. Derwinski, 1 Vet.App. 190, 193 (1991); Gilbert, 1 Vet.App. at 52. To this end, it is well established that the Board is permitted to favor one medical opinion over another provided that it gives an adequate statement of its reasons and bases for doing so. See Simon v. Derwinski, 2 Vet.App. 621, 622 (1992). To comply with this requirement, the Board's explanation must beadequateto enableaclaimant to understand the precise basis for the Board's decision, as well as to facilitate review in this Court. Gilbert, 1 Vet.App. at 57. Here, the rationale the Board provided for favoring the VA examiner's opinion over those provided bythe private physician was that, whereas the VA examiner based his opinion "on a review of the file[ and] an examination of [Mr. Thomas], and . . . [provided] a rationale" for his opinion, R. at 7, "the private physician did not provide a rationale for his nexus opinion." R. at 8. After reviewing the private physician's opinions, the Court agrees that they are unsupported by medical reasoning. In fact, Mr. Thomas appears to concede this point, as he argues that the VA examiner's opinion also was unsupported by a rationale, meaning that the countervailing opinions were equally probative and he should have been afforded the benefit of the doubt. Appellant's Br. at 6 (citing 38 U.S.C. § 5107(b)). Because this Court has previouslyexplained that " most of the probative value of a medical opinion comes from its reasoning," the Court concludes that there was a plausible basis fortheBoard's determination thattheprivatephysician's opinions wereentitledtominimal probative value. Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 304 (2008). Furthermore,theCourtdisagreeswith Mr.Thomas's argumentthattheVAmedicalexaminer likewise failed to provide a rationale for his opinion. As discussed above, the VA medical examiner explained in his January2010 addendum that, without evidence of an injuryso severe that it required 7 hospitalization or surgery, Mr. Thomas's current bilateral knee degenerative joint disease was more likely attributable to the natural aging process than his football-related injuries. As a medical rationale was, therefore, provided by the VA examiner, the Court concludes that there was a plausible basis for the Board's determination that the VA examiner's opinion was entitled to greater probative value than those offered bythe private physician, and that the Board adequately explained its determination on this point. See Simon, 2 Vet.App. at 622; Wood, 1 Vet. App. at 193. C. Consideration of Chronicity Finally, Mr. Thomas argues that the Board failed to consider whether, pursuant to 38 C.F.R. § 3.303(b), the lay statements of record constituted evidence of in- service symptoms of a chronic condition from which he also now suffers. In relevant part, § 3.303(b) provides: With chronic disease shown as such in service (or within the [one-year] presumptive period under [38 C.F.R.] § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearlyattributable to intercurrent causes. This rule does not mean that any manifestation of joint pain . . . in service will permit service connection of arthritis . . . first shown as a clearcut clinical entity, at some later date. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." This Court has explained that this provision is for application "when the evidence demonstrates: (1) that the veteran had a chronic disease in service, or during an applicable presumption period . . . and (2) that the veteran presently has the same condition." Savage v. Gober, 10 Vet.App. 488, 495 (1997). Here, Mr. Thomas contends that "the [Board] did not discuss or consider whether the symptoms the veteran suffered in service, pain and swelling, were manifestations of the chronic condition from which he now suffers." Appellant's Br. at 7. He does not, however, specifically identify the evidence of record that he contends demonstrates the onset of " clearcut clinical" degenerative joint disease of the knees while he was in service, meaning evidence demonstrating "a combination of manifestations sufficient to identify" in-service degenerative joint disease and "to establish chronicity at the time." 38 C.F.R. § 3.303(b). It is Mr. Thomas's burden to demonstrate Board error and, without so much as identifying the specific evidence in the record of proceedings 8 that he contends triggered the provisions of § 3.303(b), he cannot carry this burden. See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (holding that the appellant has the burden of demonstrating error), aff'd, 232 F.3d 908 (Fed. Cir. 2000) (table). In fact, it does not appear that Mr. Thomas even alleges that he did suffer from chronic degenerative joint disease of the knees while in service or during the presumptive period following his separation from service; instead, he only alleges that he experienced knee pain and swelling during service. However, without more, this is not sufficient to indicate the onset of a chronic condition during service or the presumptive period. As § 3.303(b) expresslyprovides, the rule it sets forth "does not mean that any manifestation of joint pain . . . in service will permit service connection of arthritis . . . first shown as a clearcut clinical entity, at some later date." Here, even the private physician who offered opinions on Mr. Thomas's behalf did not state that Mr. Thomas's in-service knee pain and swelling were caused bychronic degenerative joint disease that manifested at that time. Instead, he merely opined that his in-service football injuries were likely the cause of his current degenerative joint disease of the knees. The Board is only required to discuss the provisions of law that the record indicates are material to a veteran's claim. See 38 U.S.C. § 7104(d)(1) (requiring the Board to provide a written statement of the reasons or bases for its "findings and conclusions[] on all material issues of . . . law presented on the record"). Without some indication in the record that Mr. Thomas had chronic degenerative joint disease of the knees during service or within one year thereafter, the Board was under no obligation to discuss the chronicity provisions of § 3.303(b). Id.; see also Savage, 10 Vet.App. at 495. III. CONCLUSION Upon consideration of the foregoing, the June 7, 2010, Board decision is AFFIRMED. DATED: September 13, 2011 Copies to: Shannon L. Brewer, Esq. VA General Counsel (027) 9