Single Judge Application, Kahana v. Shinseki, 24 Vet.App. 428, 439 n.8 (2011), Opinion Based Upon Incomplete Factual Premise

Excerpt from decision below: "Although there is nothing in the record to support the VA examiner's statement about the veteran's amended death certificate, the remainder of the examination may still be of some probative weight. R. at 132-33. The VA examiner reviewed the claims file and medical history and conferenced with a cardiologist before expressing the negative nexus opinion. Id. Additionally, the VA examiner provided an opinion prior to the veteran's death that expressed that the veteran's heart condition was not secondary to PTSD and that his heart condition was not aggravated by PTSD. R. at 441-42. The Board is the appropriate one to determine whether to afford weight to this examination. Although the VA examiner's opinion was defective in one respect, it discussed a number of risk factors not related to service and the private opinions do not reflect such a discussion. See Kahana v. Shinseki, 24 Vet.App. 428, 439 n.8 (2011)(Lance, J., concurring) (noting that if an opinion is based upon an incomplete factual premise, it may be given reduced weight)." =============================== ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 09-4514 LAVONNE K. SMART, 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, Lavonne K. Smart, through counsel, appeals an August 25, 2009, Board of Veterans' Appeals (Board) decision that denied entitlement to service connection for the cause of the veteran's death. Record (R.) at 3-17. 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 August 25, 2009, decision and remand the matter for further proceedings consistent with this decision. I. FACTS The veteran served on active dutyin the U.S. Armyfrom September 1942 to December 1945. R. at 113. At the time of his death in October 2006, he was service connected for, among other disabilities, post-traumatic stress disorder (PTSD), rated as 70% disabling, and had a total disability rating based on individual unemployability (TDIU). R. at 483-96. Prior to his death, he sought service connection for coronary artery disease secondary to his service- connected PTSD. Id. The original death certificate issued in October 2006 reflected that the immediate cause of the veteran's death was hypertensive and atherosclerotic heart disease ( ASHD) with diabetes and Parkinson's disease contributing to his death. R. at 426. An amended death certificate issued in January 2007 showed PTSD as an additional cause of death. R. at 366. In a January 2005 VA medical opinion, a VA examiner, nurse practitioner Jacqueline Lamphier, opined that the veteran's ASHD was not secondary to PTSD or aggravated by it, but in fact his ASHD was aggravated by his hypertension, hyperlipidemia, diabetes, aging, and being overweight and that all of these in turn were aggravated by the veteran's cigarette smoking. R. at 441-42. In an October 2007 report, the same examiner opined that there was no nexus between the veteran's service-connected PTSD and his death. R. at 132-35. A November 2007 statement (R. at 65) from a private treating physician, Dr. Wilson, and a December 2007 letter (R. at 70) from a licensed counselor, Ms. Lower, related the veteran's death to his service- connected PTSD. In the August 2009 decision on appeal, the Board denied entitlement to service connection for the cause of the veteran's death, finding that the probative evidence of record is against a finding that the veteran's service-connected PTSD caused or contributed substantially or materially to his death. II. ANALYSIS The Secretaryconcedes Board error in regard to this appeal. Secretary's Brief (Br.) at 7. The Court agrees that the Board erred; therefore, the only dispute is whether remand or reversal is the appropriate remedy. Remand is generally the appropriate remedy when the Board has incorrectly applied the law or failed to provide an adequate statement of reasons or bases for its determinations or where the record is otherwise inadequate. Gutierrez v. Principi, 19 Vet.App. 1, 10 ( 2004) (citing Falk v. West, 12 Vet.App. 402 (1999)); Tucker v. West, 11 Vet.App. 369, 374 (remanding to permit the Board to make the appropriate required determinations under the correct legal standards). "[R]eversal is the appropriate remedy when the only permissible view of the evidence is contrary to the Board's decision." Gutierrez, 19 Vet.App. at 10 (citing Johnson v. Brown, 9 Vet. App. 7, 10 (1996)); see also Gilbert v. Derwinski, 1 Vet.App.49, 52-53 (1990) (explainingthat the Court mayreverse the Board's determinations of material fact if theydo not have a plausible basis in the record). However, reversal may be appropriate even if there is "existence of some controverting evidence (that is, evidence that is not in the appellant's favor)." Padgett v. Nicholson, 19 Vet.App. 133, 147 (en banc) (unanimously rejecting proposition that "a Board finding cannot be clearly erroneous unless the evidence against that finding is uncontroverted") (opinion issued nunc pro tunc to November 2, 2004, sub nom. Padgett v. Peake, 22 Vet.App. 159 (2008) (en banc)). Because reversal is a greater remedy than remand, the Court will address the appellant's argument for reversal first. See Mahl v. Principi, 15 Vet.App. 37, 38 (2001) (per curiam order) (explaining "if the proper remedy is a remand, there is no need to analyze and discuss all the other claimed errors that would result in a remedyno broader than a remand"). Here, the appellant argues that reversal is the appropriate remedy because the two favorable privateopinionsareentitledto fullprobativevaluebecausetheBoard'srationalefordiscountingeach of them was based on clearly erroneous findings of fact. Appellant's Br. at 8-9. The appellant also argues that the Board's finding that the October 2007 VA examiner's opinion is worth any probative value at all was implausible based on the evidence of record. Id. She argues that the Court should reverse the Board's clearly erroneous findings of fact with regard to each of the medical nexus opinions of record, and reverse the Board's finding that the October 2007 VA examiner's opinion is worth more probative weight than the private providers. Id. She argues that, once the Board's "clearly erroneous" findings of fact are reversed, the record will consist of two fully favorable opinions and one non-probative negative opinion, as well as favorable articles discussing a link between PTSD and heart disease in older men, a death certificate listing PTSD as a cause of death, and treatment records documenting the veteran's treating physician's concern that the PTSD was exacerbating or contributing to the heart disease, and that the evidence will then preponderate in favor of the claim. Id. The Secretaryconcedes that the Court should remand the Board's decision because the Board failed to adequately address the medical and lay evidence of record. Secretary's Br. at 8-15. The Secretarynotes that, while discussing the VA examiner's October 2007 opinion, the Board indicated that the VA examiner had noted that the veteran's death certificate was revised per family request to show an additional cause of death as PTSD because the veteran was service connected for PTSD and was not service connected for hypertensive and ASHD, diabetes, or Parkinson's disease. Secretary's Br. at 10. The Secretary admits that there is nothing in the record to support this statement and that the record did not provide any basis for the issuance of an amended death certificate in January 2007. Id. He concedes that the Board should have considered this inconsistency between the VA examiner's findings and the record and discussed whether there was bias in the examiner's opinion. Secretary's Br. at 10-11. The Secretary also concedes that neither the October 2007 VA examiner nor the Board adequately discussed medical articles (R. at 63-85) submitted by the appellant and the two private examiners that reported that there was an increased risk of hypertension and circulatorydisease among veterans diagnosed with PTSD. He submits that such an error requires remand for the Board to consider the favorable evidence and whether an additional VA opinion was needed. The Secretaryalso concedes that the Board's reasons or bases for discounting the two private examiners' opinions were inadequate. Secretary's Br. at 12. He admits that the Board incorrectly found that the opinions were conclusory when in fact both physicians provided rationales for their opinions and supplied articles summarizing medical research supporting their positions. Id. He also identifies a Colvin violation where the Board assigned less probative value to the private physicians' statements based on the fact that the veteran was diagnosed with ASHD manyyears before there was any indication he had PTSD, essentially exercising independent medical judgement as there is no evidence that this fact has any medical significance. Secretary's Br. at 13; Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991). He argues that remand is needed to allow the Board to correct its flawed rationale for awarding less probative value to the private physicians opinions. Id. The Secretary then identifies an additional basis for remand. Secretary's Br. at 13. In discounting the appellant's assertions that the veteran's service- connected PTSD was a contributory factor in his death and that the veteran developed ASHD as a result of his PTSD, or in the alternative, that the PTSD aggravated the heart disease to aid in causing the veteran's death, the Secretaryconcedes that the Board's dismissal of her layassertions without first determining whether the issue is one for which lay evidence is competent was in error. Secretary's Br. at 13-14; see Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Secretary maintains that remand is the appropriate remedyfor the Board's failure to provide adequate reasons or bases as to the above discussed points. Secretary's Br. at 16-22. In her reply brief, the appellant argues that remand is not necessary because there are no factual disputes that must be resolved by the Board in the first instance and that, contrary to the Secretary's concessions, the Board's statement of reasons or bases is adequate for both her understanding and for judicial review. Appellant's Reply Br. at 1-13. In response to the Secretary's various concessions, the appellant argues that remand is not required for the Board to discuss in the first instance whether the VA examiner's opinion exhibits bias; the Board adequately discussed the medical articles attached to the favorable medical opinions; remand for the Board to reconsider the lay evidence will only create an unnecessary burden on the Board; remand is unnecessary for the Board to discuss whether another VA examination and opinion is warranted; and remand for the Board to discuss whether a September 2004 opinion constitutes negative evidence is both unnecessary and inappropriate. Appellant's Reply Br. at 7-13. The Court agrees with the Secretary and concludes that remand is the appropriate remedy. As stated earlier, reversal is only appropriate where "'the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed." ' Gilbert, 1 Vet.App. at 52 (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). Contrary to the appellant's argument, it is not clear that the Board erred in according any probative weight to the October 2007 VA examiner's opinion because it was based on an inaccurate factual premise. Appellant's Br. at 15-16; Appellant's Reply Br. at 2-3. Although there is nothing in the record to support the VA examiner's statement about the veteran's amended death certificate, the remainder of the examination may still be of some probative weight. R. at 132-33. The VA examiner reviewed the claims file and medical history and conferenced with a cardiologist before expressing the negative nexus opinion. Id. Additionally, the VA examiner provided an opinion prior to the veteran's death that expressed that the veteran's heart condition was not secondary to PTSD and that his heart condition was not aggravated by PTSD. R. at 441-42. The Board is the appropriate one to determinewhetherto afford weight to this examination. Although the VA examiner's opinion was defective in one respect, it discussed a number of risk factors not related to service and the private opinions do not reflect such a discussion. See Kahana v. Shinseki, 24 Vet.App. 428, 439 n.8 (2011)(Lance, J., concurring) (noting that if an opinion is based upon an incomplete factual premise, it may be given reduced weight). Accordingly, there is still substantial doubt as to how to characterize the cause of the veteran's death. Cf. Douglas v. Shinseki, 23 Vet.App. 19, 24 (2009) (concluding that the Secretary's authority to develop a claim necessarily includes the authority to collect and develop evidence that might rebut the presumption of service connection). Where, as here, the Board failed to provide an adequate statement of reasons or bases for its conclusion or where the record is otherwise inadequate, remand, and not reversal, is the appropriate remedy. Tucker, 11 Vet.App. at 374; Hicks v. Brown, 8 Vet.App. 417, 422 (1995). On remand, the appellant is free to submit additional evidence and argument, including the arguments raised in her briefs to this Court, in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order), and the Board must consider any such evidence or argument submitted. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Board shall proceed expeditiously, in accordance with 38 U.S.C. §§ 5109B, 7112 (requiring Secretary to provide for "expeditious treatment" of claims remanded by Board or Court). III. CONCLUSION After consideration of the appellant's and the Secretary's briefs, and a review of the record, the Board's August 25, 2009, decision is VACATED and the matter is REMANDED to the Board for further proceedings consistent with this decision. DATED: November 21, 2011 Copies to: Amy F. Fletcher, Esq. VA General Counsel (027)