Single Judge Application, VA May Not Develop Negative Evidence, Mariano v. Principi, 17 Vet.App. 305,312 (2003)

Excerpt from decision below: "Consequently, the Court will vacate the Board's decision and remand the matter for readjudication. Specifically, the Board must first consider whether, given the conflicting evidence of record, an expert or independent medical opinion would be helpful. If the Board determines that additional development is necessary, it must adequately explain its reasons or bases for the decision to pursue such development. See Mariano v. Principi, 17 Vet.App. 305, 9 312 (2003) (holding that, because VA may not develop negative evidence, it "must provide an adequate statement of reasons or bases for its decision to pursue further development where such development reasonably could be construed as obtaining additional evidence for that purpose"). Second, the Board should consider whether the competent evidence of record is in equipoise and, if so, the Board must resolve all doubt in favor of Mr. Dickerson. See 38 U.S.C. § 5107(b); Hayes v. Brown, 5 Vet.App. 60, 69 (1993) (holding that the determination that the evidence is in equipoise is a finding of fact by the Board)." ================================================ ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 10-2004 EUGENE H. DICKERSON, 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: Eugene H. Dickerson appeals through counsel a February 18, 2010, Board of Veterans' Appeals (Board) decision that denied entitlement to VA disability benefits for arthritis, to include rheumatoid arthritis and osteoarthritis, of multiple joints. Mr. Dickerson's Notice of Appeal wastimely, and the Court has jurisdiction to review the Board decision pursuant to 38 U.S.C. § 7252(a). Neither party requested oral argument or identified issues that they believe require a precedential decision of the Court. Because the Board provided inadequate reasons or bases for its determination that Mr. Dickerson is not entitled to benefits for rheumatoid arthritis, the Court will vacate that portion of the February 2010 Board decision and remand the matter for further development, if necessary, and readjudication consistent with this decision. The remainder of the Board decision will be affirmed. I. FACTS Mr. Dickerson served on active duty in the U.S. Navy from September 1943 to April 1946. His service medical records reveal a diagnosis of and treatment for rheumatoid arthritis. In August 1969, a VA regional office denied Mr. Dickerson's claim for benefits for rheumatoid arthritis, finding no link between his current condition and his in-service diagnosis. Mr. Dickerson continuouslyappealed that decision, and in March 1979 the Boardagaindenied his claim. Because there was no appellate review of Board decisions at that time, the decision became final. In February 1985, Mr. Dickerson sought to reopen his claim. In October 1985, he advised VA in a letter that he had received treatment for rheumatoid arthritis since his discharge from service, but that the physician who treated him in the 1940s and 1950s was deceased and his records were unavailable. He stated that he had also received treatment from "Dr. J. H. Smith of Christiansburg[, Virginia,] andalsoDr. BlaylockattheLewisGaleHospitalofRoanoke,[Virginia]." Record (R.) at 495. Mr. Dickerson reported that both doctors told him he had chronic arthritis. In September 1986, the regional office determined that no change was warranted in its previous decisionsandthatMr.Dickerson remainednon-service-connectedfor rheumatoid arthritis. Overthenext 20years, Mr.Dickerson repeatedlyattempted to reopen his claim, but his claim remained denied. Of note during this time period, Mr. Dickerson testified at a hearing before the regional office in September 1996. He testified that he had received treatment from Drs. Nixon, McClelland, Bowen, and Jones, and that all of them diagnosed him with rheumatoid arthritis. R. at 433. He reported that Drs. Nixon, Jones, and Bowen were deceased.1 He also stated that he currently received treatment at the Salem, Virginia, VA medical center. In October 2006, Mr. Dickerson again sought to reopen his claim. He stated that his current treatment was with a rheumatologist at an unidentified VA medical center. The record contains VA treatment records dated between November 2004 and November 2007 from the Salem VA medical center. Those records contain numerous mentions of treatment for or complaints of rheumatoid arthritis. R. at 366, 367, 369, 374, 376, 382; see also R. at 372 (" Rheumatology Attending Note"), 377 ("He also has an app[ointmen]t today with Rheum[atology]"), 378 (" Rheumatology follow-up note"), 386 ("Rheumatologyfollow-up note"); but see R. at 380 (impression of osteoarthritis in knee in note signed by Mr. Dickerson's reported rheumatologist), 387 (same, except in fingers). The record contains a September 1976 letter from Dr. McClelland stating that his records relating to his treatment of Mr. Dickerson in the 1960s had been destroyed in a fire, but that he recalled treating Mr. Dickerson "for injuries of a hip which could have been either traumatic or arthritic." R. at 546. 1 2 In May 2007, VA advised Mr. Dickerson of the need to submit new and material evidence to reopen his claim. VA also requested that he advise if he had received private treatment so that VA could obtain those records. Mr. Dickerson responded by supplying recent private medical records as well as lay statements regarding his in-service condition. In January 2008, the regional office reopened Mr. Dickerson's claim based on VA treatment records showing a current diagnosis of rheumatoid arthritis, but inexplicably denied his claim "because the evidence continues to show this condition was not incurred in or aggravated bymilitary service."2 R. at 266. Mr. Dickerson filed a Notice of Disagreement with that decision and ultimately appealed to the Board. In September 2008, Mr. Dickerson underwent a VA medical examination in which the examiner was directed to "provide an opinion as to whether it is at least as likely as not that the veteran's rheumatoid arthritis had its onset in service, or if it is related to the episode of rheumatoid arthritis diagnosed in service." R. at 192. The examiner, a nurse practitioner, reviewed and summarized Mr. Dickerson's service medical records, as well as his private and VA post-service medical records. The examiner opined: [Mr. Dickerson] indeed has a record of being treated for polyarthralgia and a diagnosis of rheumatoid arthritis given while in the military. He also has a probable diagnosis of rheumatoid arthritis via a VA disabilitygeneral medical exam in the late 1960's. This exam, in the late 1960's, actually has x-ray evidence of a possible connective tissue disease, such as rheumatoid arthritis. Unfortunately[,] there are no The Court notes that this is the same reasoning given in VA's May 2007 notice letter regarding the submission of new and material evidence. R. at 356. However, the initial August 1969 regional office decision denied Mr. Dickerson's claim for lack of a link between his current condition and his in-service diagnosis. R. at 605 ("His present condition . . . is in no way related to the acute transitory complaints in service."); see also R. 574 (June 1978 Statement of the Case declining to reopen because new evidence submitted was "not sufficient to establish continuity of symptoms for arthritis from the claimant's separation until the present time"); 553 ( March 1979 Board decision stating, "The complaints during service were not early manifestations of the rheumatoid arthritis first established as a disease entity many years after service"). Apparently, however, beginning with the July 1995 rating decision declining to reopen the claim, VA adopted the belief that Mr. Dickerson's claim had been previously denied due to a lack of evidence showing "treatment for rheumatoid arthritis while on active duty or within one year following separation from active duty." R. at 761. Mr. Dickerson does not challenge the characterization of the missing element of his claim over the course of the past four-plus decades, and, in any event, the Board decision on appeal reopened his claim, finding that new and material evidence had been submitted. The Court highlights these discrepancies only to encourage the Secretary to practice precision and consistency in his treatment of a claim and in recounting the history of the claim's adjudication in his brief to the Court. 2 3 records . . . confirming the actual diagnosis[,] and there are no records of continued treatment specifically for rheumatoid arthritis post-military discharge. While in the [service,] [Mr.Dickerson]hadpolyarthralgia,inflammation, swelling, andpainin the usual joints [in which] rheumatoid arthritis initially presents[, but t] here doesn't appear to be continuation of treatment for rheumatoid arthritis thereafter. He has received treatment for osteoarthritis in his later years by our rheumatologist here at the VA [medical center]. That same provider in 2001 didn't see[] any evidence of active rheumatoid arthritis and proceeded to treat for osteoarthritis. He did speak to a suggestive history of rheumatoid arthritis. On today's exam there are no signs or symptoms suggestive of acute or chronic rheumatoid arthritis. [Mr. Dickerson] has ample evidence, clinically, of osteoarthritis[,] especially to both hands and knees. [He] most likely had rheumatoid arthritis in his youth and this condition went into remission as he aged. Presently there are no signs of joint inflammation or panus formation (joint findings suggestive of deformityfrom chronic rheumatoid arthritis). Therefore, it is this examiner's opinion, based on circumstantial evidence, that while in the military[,] [Mr. Dickerson] had acute arthritis, most likely rheumatoid type, that hasn't produced significant joint damage or functional loss as evidenced by today's and past joint exams. R. at 186.3 In May 2009, the Board reopened Mr. Dickerson's claim and remanded it for additional development. Specifically, the Board determined that "[a] remand is necessary to clarify any inconsistencies in the medical record with a new examination that would include a medical opinion, based on the record, as to the likelihood that anyarthritis, to include osteoarthritis and/or rheumatoid arthritis of multiple joints, is related to service." R. at 119. The Board stated that the examiner should conduct all tests necessary to analyze the nature and etiology of any such disorder(s), including any X-rays, and tests necessary to determine whether any suspected condition found meets clinical criteria for classification as rheumatoid arthritis as a chronic disorder; and if so, whether this is presently active or in remission. R. at 120. The Board also directed the regional office to obtain any outstanding private or VA medical records relating to treatment for any kind of arthritis. VA obtained additional VA treatment records that contain mentions of treatment for or complaints of rheumatoid arthritis. R. at 60 (including rheumatoid arthritis on a "problem list" of Arthralgia is joint pain. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 150 ( 32d ed. 2012). Polyarthralgia is "arthralgia in many different joints." Id. at 1487. 3 4 Mr. Dickerson's conditions); 64, 71, 82, 94 (noting that Mr. Dickerson was being treated by a VA rheumatologist and was having difficulties managing rheumatoid arthritis with medication); 59, 66, 72, 83, 89 (noting stable, ongoing rheumatoid arthritis); 96 (listing rheumatoid arthritis as an "active problem"); but see R. at 51 (noting "extensive osteoarthritis" in the hands, knees, and ankles), 97 ("Rheumatology follow-up note" signed by Mr. Dickerson's reported rheumatologist diagnosing osteoarthritis). In July 2009, VA requested that Mr. Dickerson complete and return an authorization and consent form identifying health care providers from whom relevant medical records still needed to be obtained. R. at 62. Later that month, Mr. Dickerson's representative responded: "Mr. Dickerson's medical history is already of record[;] any additional treatment information would come from the Salem VA medical center." R. at 61. In December 2009, Mr. Dickerson underwent the requested VA examination, provided by the same nurse practitioner who conducted the September 2008 examination. The examiner stated that he reviewed Mr. Dickerson's claims file and recounted his medical history. The examiner also stated that Mr. Dickerson was being treated by a VA rheumatologist for osteoarthritis. R. at 37. Aftera physical examination, the examiner found "no clinical evidence of connective tissue disease" in Mr. Dickerson's hands, knees, elbows, ankles, or feet. R. at 39. X-rays were taken of the left hip, and the report revealed "[d]egenerative changes . . . in the lower lumbar spine. Generalized osteopenia noted. No fracture, dislocation, or other bony abnormality. The hip joint space is well preserved. Mineralization is good." R. at 40. The impression was "normal hip." Id. The examiner also reviewed a 2008 left hip x-ray for comparison, and the findings were essentially identical. Under "Summary of all problems, diagnoses[,] and functional effects," the examiner noted: "DIAGNOSIS: no radiographic evidence of left hip arthritic condition[.] PROBLEM ASSOCIATED WITH THE DIAGNOSIS: osteoarthritis or rheumatoid arthritis." R. at 41. The examiner concluded that neither osteoarthritis nor rheumatoid arthritis caused by or due to Mr. Dickerson's military service. With respect to rheumatoid arthritis, the examiner stated: [T]hereis no connection with militaryservice because there is no arthritis of anykind to the left hip. It is my opinion as well that the osteoarthritis diagnosed in his hands and other joints listed throughout his [claims] file and here at the VA [ medical center] Salem is not the result of the acute rheumatoid arthritis diagnosed in military 5 service in 1944. Rheumatoid arthritis is a chronic condition of exacerbations and remissions. There are occasions where there is an acute arthritis without remissions. I cannot find documented evidence of a rheumatologic exacerbation in the [ claims] file. Consequentlymyprevious opinion stands . . . based on circumstantial evidence, that while in the militarythis veteran had acute arthritis, most likelyrheumatoid type, that hasn't produced significant joint damage or functional loss as evidenced by today's and past joint exams. R. at 43. In February 2010, the Board issued the decision on appeal. The Board first determined that VA satisfied its duty to assist and that no relevant outstanding evidence had been identified. The Board then recounted Mr. Dickerson's medical history and the medical evidence of record, from the in-service diagnosis of rheumatoid arthritis to the December 2009 VA examination. The Board noted that the questions to be answered were whether Mr. Dickerson currently has rheumatoid arthritis and, if so, whether that condition is related to the in-service diagnosis of rheumatoid arthritis. The Board relied on the September 2008 and December 2009 VA examination reports to conclude that Mr. Dickerson does not have a current diagnosis of rheumatoid arthritis and that, although Mr. Dickerson's VA treatment records show that he "complained of pain and swelling in his joints with a history of inflammatory arthritis and evidence of possible rheumatoid arthritis," those treatment records did not contain a "clear diagnosis of rheumatoid arthritis since service." R. at 12. The Board also considered Mr. Dickerson's statements in support of his claim, but found that "[w]hile he may well believe that he has a current disability of rheumatoid arthritis, as a layperson . . . [he] is simply not qualified to render a medical diagnosis in this regard." R. at 13. Accordingly, the Board denied his claim.4 II. ANALYSIS On appeal, Mr. Dickerson argues that the Board failed to ensure compliance with its May 2009 remand order because the December 2009 VA examiner "did not order any tests to determine 4 The Board also determined that Mr. Dickerson's current diagnosed disability of osteoarthritis was not related to service. Mr. Dickerson, however, raises no arguments related to that decision and the Court deems any appeal of that portion of the Board's decision abandoned. See Grivois v. Brown, 6 Vet.App. 136, 138 (1994) (holding that issues or claims not argued on appeal are considered abandoned). 6 whether [he] has rheumatoid arthritis." Appellant's Brief (Br.) at 10. Mr. Dickerson also asserts that the Board provided inadequate reasons or bases for its decision to deny his claim because the Board failed to account for inconsistencies in the medical evidence regarding whether he has a current diagnosis of rheumatoid arthritis. The Court will consider each argument in turn. A. Compliance with May 2009 Remand Order "[A] remand by this Court or the Board confers on the . . . claimant, as a matter of law, the right to compliance with the remand orders." Stegall v. West, 11 Vet.App. 268, 271 (1998). When "the remand orders of the Board or this Court are not complied with, the Board itself errs in failing to [e]nsure compliance." Id. Such an error can constitute the basis for a remand by this Court. Id. Further, once VA has determined that a medical examination is necessary, as was found in this case, VA is required to ensure that the examination is adequate. See 38 C.F.R. § 4.2 (2011). If an examination is found to be inadequate, "it is incumbent upon the rating board to return the report as inadequate for evaluation purposes." Id.; see also Stegall, 11 Vet.App. at 270-71 (remanding where a VA examination was "inadequate for evaluation purposes"); Hicks v. Brown, 8 Vet.App. 417, 422 (1995) (concluding that an inadequate medical evaluation frustrates judicial review). Here, the Board ordered that Mr. Dickerson be provided a new VA medical examination to determine whether he has a current diagnosis of rheumatoid arthritis and, if so, whether that condition is related to service. As noted above, the Board instructed the examiner to "conduct all tests necessary to analyze the nature and etiology of any such disorder(s), including any X-rays, and tests necessary to determine whether any suspected condition found meets clinical criteria for classification as rheumatoid arthritis as a chronic disorder." R. at 120. Contrary to Mr. Dickerson's claim that the December 2009 VA examiner "did not order any tests," Appellant's Br. at 10, the examination report clearlyshows that the examiner ordered an x-ray of Mr. Dickerson's left hip and lower back to determine if there was any radiological evidence of rheumatoid arthritis. It is clear that Mr. Dickerson believes that the examiner was required to order additional tests, based on information contained in VA's Adjudication and Procedure Manual, but the Board clearly left it to the examiner's discretion to determine what tests were "necessary" to provide the requested opinion. Here, the examiner exercised his discretion to "only" order an x-ray to inform his opinion, and Mr. Dickerson has not demonstrated that doing so was improper. 7 Accordingly, the Court concludes that the Board ensured at least substantial compliance with its December 2009 remand order. See Dyment v. West, 13 Vet.App. 141, 146–47 ( 1999) (holding that there is no error when an examiner "more than substantially complie[s] with the Board's remand order"), aff'd sub nom. Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). Moreover, the examiner's purported "fail[ure] to consider the disability factors" of rheumatoid arthritis outlined in the Adjudication Procedures Manual–including "dryness of the eyes and mouth (Sjogren's syndrome), pulmonary complications, anemia, enlargement of the spleen, muscular atrophy, gastrointestinal symptoms, circulatory changes, imbalance in water metabolism, or dehydration, vascular changes, cardiac involvement, dry joints, [and] low renal function," Appellant's Br. at 13–is, at best, harmless error, given that Mr. Dickerson does not assert either that he suffers from any of these symptoms or that the examiner overlooked evidence of these symptoms in his review of the medical record. See Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004); see also 38 U.S.C. § 7261(b)(2) (requiring the Court to "take due account of the rule of prejudicial error"). To the extent that Mr. Dickerson attempts to argue that, because the VA examiner who performed the December 2009 examination was a nurse practitioner and not a physician, he was not competent or knowledgeable enough to provide an adequate examination, the Court notes that it is well-settled that the Board is entitled to presume the competence of a VA examiner in the absence of evidence demonstrating otherwise. See Cox v. Nicholson, 20 Vet.App. 563, 569 (2007). Mr. Dickerson offers nothing more than bald speculation that the examiner was unqualified to perform the December 2009 examination and, accordingly, has not carried his burden of demonstrating error on this point. See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (holding that the appellant has the burden of demonstrating error), aff'd per curiam, 232 F.3d 908 (Fed. Cir. 2000) (table). B. Reasons or Bases Mr. Dickerson contends that the Board "failed to adequately explain the inconsistencies in the medical record as to whether [he] has a current diagnosis of rheumatoid arthritis." Appellant's Br. at 16. The Court agrees. The Board stated: 8 Although several . . . treatment records indicate that the Veteran complained of pain and swelling in his joints with a history of inflammatory arthritis and evidence of possible rheumatoid arthritis, and there is evidence he was being treated by the VA Rheumatology Clinic, none of the treatment records contains a clear diagnosis of rheumatoid arthritis since service. R. at 12. This statement is simply unsupported by the medical evidence of record. As outlined in Part I above, the record is replete with evidence of a current diagnosis of rheumatoid arthritis. Although the evidence contained in Mr. Dickerson's VA medical records conflicts with the opinion of the VA medical examiner who conducted the September 2008 and December 2009 VA examinations,suchconflictdoesnot renderthosemedicalrecordsnot probativeorincompetent. The Board's attempt to discount the VA medical records as merely demonstrating a "history" of inflammatoryarthritis and "possible"rheumatoid arthritis is insufficient in lightofthenumerousVA treatment records that expressly state that Mr. Dickerson is being treated for "ongoing" and "stable" rheumatoid arthritis. This is especially important in light of the Board's acknowledgment that rheumatoid arthritis is a potentially chronic condition of active and dormant states. R. at 120. The Court concludes, therefore, that the Board has provided inadequate reasons or bases for its determination that Mr. Dickerson does not have a current diagnosis of rheumatoid arthritis. See 38 U.S.C. § 7104(d)(1); Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). TheCourt maynot reversetheBoard's decision,however. DespitethenumerousVAmedical records that indicate a current diagnosis of rheumatoid arthritis, there is also a fair amount of evidence that indicates that Mr. Dickerson does not, in fact, suffer from rheumatoid arthritis, not the least of which are the two VA examinations and the notations from Mr. Dickerson's rheumatologist that he is being treated for osteoarthritis. See Gutierrez v. Principi, 19 Vet.App. 1, 10 (2004) (holding that "reversal is the appropriate remedy when the only permissible view of the evidence is contrary to the Board's decision"). Consequently, the Court will vacate the Board's decision and remand the matter for readjudication. Specifically, the Board must first consider whether, given the conflicting evidence of record, an expert or independent medical opinion would be helpful. If the Board determines that additional development is necessary, it must adequately explain its reasons or bases for the decision to pursue such development. See Mariano v. Principi, 17 Vet.App. 305, 9 312 (2003) (holding that, because VA may not develop negative evidence, it "must provide an adequate statement of reasons or bases for its decision to pursue further development where such development reasonably could be construed as obtaining additional evidence for that purpose"). Second, the Board should consider whether the competent evidence of record is in equipoise and, if so, the Board must resolve all doubt in favor of Mr. Dickerson. See 38 U.S.C. § 5107(b); Hayes v. Brown, 5 Vet.App. 60, 69 (1993) (holding that the determination that the evidence is in equipoise is a finding of fact by the Board). On remand, Mr. Dickerson is free to submit additional evidence and argument in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). See Kay v. Principi, 16 Vet.App. 529, 534 (2002). Further, "[a] remand is meant to entail a critical examination of the justification for the decision" by the Board. Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991). In addition, the Board shall proceed expeditiously, in accordance with 38 U.S.C. § 7112 (expedited treatment of remanded claims). III. CONCLUSION Upon consideration of the foregoing, that portion of the February 18, 2010, Board decision that denied entitlement to VA benefits for rheumatoid arthritis is VACATED and the matter is remanded for further development, if necessary, and readjudication consistent with this decision. The remainder of the Board decision is AFFIRMED. DATED: October 24, 2011 Copies to: Jeany Mark, Esq. VA General Counsel (027) 10