Thursday, March 17, 2011

VAOIG Uncovers Lapses of Patient Care at Marion-VA, Report 10-03080-124

Full article at: Marion, Ill. VA clinic cited for poor care,
Report uncovers 3 substandard cases


By Len Wells

The Department of Veterans Affairs Office of Healthcare Inspections has uncovered lapses in the quality of care in three patients.

"In one case, inspectors substantiated a delay in the diagnosis of lung cancer in one patient, poor coordination of diabetes care in another and poor management of pain during and after a visit to the facility's emergency room for a third patient."
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Report Summary, Report Number 10-03080-124, 3/16/2011
Healthcare Inspection Alleged Poor Quality of Patient Care Marion VA Medical Center Marion, Illinois

The VA Office of Inspector General Office of Healthcare Inspections conducted a review to determine the validity of allegations that six patients received poor care at the Marion VA Medical Center (the facility). The complainants reported the allegations to Senator Richard Durbin. We did not substantiate lapses in quality of care for three patients. However, for the remaining three patients we substantiated a delay in diagnosis of lung cancer; poor coordination of diabetes care and insufficient procedures established for operation of the facility telephone call center; and poor management of pain during and after a visit to the facility emergency room (ER). We recommended that the facility Director: 1) obtain a peer review assessment of the care provided by radiologists interpreting chest x-rays for the patient with lung cancer; 2) monitor hospital discharges to ensure that patients have ongoing coordination of care; 3) establish telephone call center procedures in accordance with VHA policy; and 4) monitor ER pain management to ensure compliance with VHA policy. The VISN and facility Directors agreed with our findings and recommendations. The implementation plans are acceptable, and we will follow up on the planned actions until they are completed.

Single Judge Application, Bryant v. Shinseki, Bryant, CFR 3.103(c), More Fully Explained

Excerpt from decision below:
"II. ANALYSIS
This case centers on competing interpretations of 38 C.F.R. § 3.103(c)(2) (
2010). According to the regulation, [t]he purpose of a hearing is to permit the claimant to introduce into the record, in person, any available evidence which he or she considers material and any arguments or contentions with respect to the facts and applicable law which he or she may consider pertinent. . . . It is the responsibility of the VA employee or employees conducting the hearings to explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant's position.
After briefs were submitted in this case, the Court issued its opinion in Bryant v. Shinseki, 23 Vet.App. 488 (2010), addressing 38 C.F.R. § 3.103(c)(2). The Court in Bryant noted that 38 C.F.R. § 3.103(c)(2) imposes two distinct duties on a hearing officer: (1) To "explain fully the issues"; and (2) to "suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant's position." 23 Vet.App. at 492. The Court held that these duties do not require a "preadjudication" or any other weighing of evidence prior to a hearing. Id. at 493.
The Court in Bryant also rejected the Secretary's argument that some sort
of "trigger" is required before the hearing officer's duty under 38 C.F.R. §3.103(c)(2) attaches,
instead holding that "the hearing officer has a duty to fully explain the issues still outstanding that are relevant and material to substantiating the claim." Id. at 494-96. Specifically, "the hearing officer must suggest that a claimant submit evidence on an issue material to substantiating the claim when the record is missing any evidence on that issue or when the testimony at the hearing raises an issue for which there is no evidence in the record." Id. (emphasis added). The Court also made it clear that whether VA sent a notice letter as required under the VCAA has "no bearing on the duty to suggest the submission of evidence that may have been overlooked." Id."
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----------------------------------------------------


Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-1609
CHARLES TRIPLETT, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before SCHOELEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
SCHOELEN, Judge: The appellant, Charles Triplett, appeals through counsel
a January 15,
2009,BoardofVeterans'Appeals(Board)decisionthatdeniedhim entitlementto
serviceconnection
for post-traumatic stress disorder (PTSD), hypertension, migraines, a
heart disorder, asthma,
defective vision, and a bilateral lung disorder, and remanded his claims
for an entitlement to service
connection for a right knee disorder as secondary to the service-connected
lateral meniscal injury of
the left knee, entitlement to service connection for a back disorder as
secondary to the service-
connected lateral meniscal injury of the left knee, and entitlement to a
total disability rating for
compensation based on individual unemployability. Record of Proceedings (R
.) at 3-23. The Court
will not address the portion of the Board's decision relating to the
appellant's remanded claims
because they are not yet subject to a final Board decision and, therefore,
the Court lacks jurisdiction
to proceed. Howard v. Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000). This
appeal is timely, and the
Court has jurisdiction to review the Board's decision pursuant to 38 U.S.C.
§§ 7252(a) and 7266(a).
Single-judge disposition is appropriate. Frankel v. Derwinski, 1 Vet.App.
23, 25-26 (1990). For the
following reasons, the Court will vacate the Board's decision and remand
the matter for further
proceedings consistent with this opinion.


I. BACKGROUND
A. Facts
The appellant served on active duty in the U.S. Army from March 1983 until
April 1983 and
from October 1985 until January 1986. R. at 1320, 1342. In December 2003,
VA sent the appellant
a letter informing him of evidence that would help him substantiate his
claim. R. at 937-41.
On May1, 2006, the Board held a hearing at which the appellant testified.
R. at 658-86. The
Board member conducting the hearing asked the appellant a number of
questions, but offered no
guidance on steps the appellant could take to further advance his claims.
R. at 680-82. In September
2006, VA sent the appellant a letterindicatingwhatevidencewasrequiredto
substantiatehis claims.
R. at 638-47.
The Board, in its January15, 2009, decision here on appeal, denied the
appellant entitlement
to service connection for PTSD, hypertension, migraines, a heart disorder,
asthma, defective vision,
and a bilateral lung disorder. The Board denied the appellant's PTSD claim
because "[w]ithout a
diagnosis of PTSD, there is no basis to grant service connection." R. at
10. The Board denied the
appellant's hypertension claim because there is no evidence of
hypertension in the appellant's service
treatment records, the first indication of the disorder was not until nine
years after the appellant left
active service and thus no evidence of continuity of symptomatologyexists,
and "there is no opinion
which provides a nexus between service . . . and current hypertension." R.
at 12-13.
The Board denied the appellant's migraines claim because there is no
evidence of a current
disability. R. at 13-14. The Board denied the appellant's heart disorder
claim because "[t]here is no
evidence that the [appellant] currently has a heart disorder." R. at 14.
The Board denied the
appellant's asthma claim because service treatment records show no signs
of the disorder, the first
sign the appellant suffered from asthma was not until nine years after he
left active duty, there is no
evidence of continuityof symptomatology, and "there is no opinion which
provides a nexus between
service . . . and current asthma." R. at 16. The Board denied the
appellant's defective vision claim
because "[t]here is no suggestion in the record that a chronic, acquired
eye disability was present in
service or is otherwise related to the [appellant's] military service."
Also, the Board found that
appellant exhibited no signs of cataracts for many years after service and "
there is no suggestion in
the competent evidence that cataracts are otherwise related to military
service." R. at 17. Finally,
2


the Board denied the appellant's claim for a bilateral lung disorder
because service treatment records
show no signs of a disorder, the first indication of a disorder is not
until 11 years after service, there
is no evidence of continuity of symptomatology, and "there is no opinion
which provides a nexus
between service . . . and any current lung disorder." R. at 18.
B. Arguments on Appeal
The appellant argues that the Board failed its duty to assist him in
developing his case and,
in its decision, failed to offer an adequate statement of reasons or bases
for its failure. Appellant's
Brief (Br.) at 5-8. Specifically, he contends that it is the duty of an
officer conducting a VA hearing
to suggest that an appellant submit evidence that he "may have overlooked
and which would be of
advantage" in asserting his claim, and that the Board member, in the May 1,
2006, Board hearing,
failed to do so. Id. at 5.
The Secretary argues that there is no general duty upon a hearing officer
to "notify the
claimant of what is required yet to substantiate his claim for benefits."
Secretary's Br. at 9. The
Secretary asserts that "[t]he purpose of the hearing is not stated so as
to require VA to notify a
cla[i]mant of what is required to substantiate his claim. Notice of what
is required to substantiate
a claim is required under the regulatory scheme at other places in the
process of developing the
claim." Id. The purpose of the hearing, the Secretary asserts, is to "
provide a claimant with an
opportunity to give evidence to VA," and that any requirement of the
hearing officer to make
suggestions to the appellant is "clearly a secondary purpose of the
hearing conditioned upon the
existence of some need for the explanation, clarification or suggestion."
Id. at 10. Thus, the
Secretary argues, there must be some "trigger" for the hearing officer's
duty to make suggestions to
arise. Id. According to the Secretary, the trigger would arise during the
hearing and "indicate to the
hearing officer that there is favorable evidence in existence that a
claimant has failed thus far to
submit, or that VA has thus far failed to obtain on his behalf, before the
hearing officer has the duty
to explain." Id.
The Secretary notes that the appellant does not assert that he did not
receive adequate notice
as required under the Veterans Claims Assistance Act of 2000, Pub. L. No.
106-475, 114 Stat. 2096
(VCAA). Id. at 12. The Secretaryargues that, under the VCAA, he is
required to notifythe claimant
how to substantiate his claim, and the VCAA letter sent in this case did
so "unequivocally." Id. at
3


12-13. Because of this, the Secretary states, any failure by the hearing
officer to fulfill his duty to
inform the appellant of additional ways to substantiate his claim was not
prejudicial. Id. at 13.
II. ANALYSIS
This casecenters on competing interpretations of 38 C.F.R. § 3.103(c)(2) (
2010). According
to the regulation,
[t]he purpose of a hearing is to permit the claimant to introduce into the
record, in person, any available evidence which he or she considers
material and any
arguments or contentions with respect to the facts and applicable law
which he or she
may consider pertinent. . . . It is the responsibility of the VA employee
or employees
conducting the hearings to explain fully the issues and suggest the
submission of
evidence which the claimant mayhave overlooked and which would be of
advantage
to the claimant's position.
After briefs were submitted in this case, the Court issued its opinion in
Bryant v. Shinseki,
23 Vet.App. 488 (2010), addressing 38 C.F.R. § 3.103(c)(2). The Court in
Bryant noted that 38
C.F.R. § 3.103(c)(2) imposes two distinct duties on a hearing officer: (1)
To "explain fully the
issues"; and (2) to "suggest the submission of evidence which the claimant
mayhave overlooked and
which would be of advantage to the claimant's position." 23 Vet.App. at
492. The Court held that
these duties do not require a "preadjudication" or any other weighing of
evidence prior to a hearing.
Id. at 493.
The Court in Bryant also rejected the Secretary's argument that some sort
of "trigger" is
required before the hearing officer's dutyunder 38 C.F.R. §3.103(c)(2)
attaches, instead holding that
"the hearing officer has a duty to fully explain the issues still
outstanding that are relevant and
material to substantiating the claim." Id. at 494-96. Specifically, "the
hearing officer must suggest
that a claimant submit evidence on an issue material to substantiating the
claim when the record is
missing any evidence on that issue or when the testimony at the hearing
raises an issue for which
there is no evidence in the record." Id. (emphasis added). The Court also
made it clear that whether
VA sent a notice letter as required under the VCAA has "no bearing on the
duty to suggest the
submission of evidence that may have been overlooked." Id.
4


A. Duty To Fully Explain the Issues
At the outset of the appellant's hearing, the Board member conducting the
hearing stated:
The issues before us today are entitlement to service connection for [PTSD],
hypertension, migraines,heart disease,rightkneedisability,asthma,
defectivevision,
or disability exhibited by defective vision, lung disorder, back
disability secondary
to service connect, left knee disability and also entitlement to a total
disability rating
due to individual unemployability.
R. at 659. The hearing officer in Bryant began the hearing in that case
with a similar summation.
23 Vet.App. at 497. The Court in Bryant found that "[a]lthough this
statement explained the issues
in terms of the scope of the claim for benefits, it did not 'explain
fully' the outstanding issues material
to substantiating the claim." Id. The Court went on to find that the
hearing officer therefore failed
in his duty to fully explain the issues. Id.
In this case, the Court finds that the Board member also failed to
adequately explain the
issues on appeal. The Board member conducting the hearing never explained
to the appellant that
providing a medical nexus would be key for his claims of hypertension,
asthma, vision impairment,
and bilateral lung disorders, nor did he explain that providing proof of a
current disability would be
key for his claims of PTSD, migraines, and a heart disorder. Therefore,
the Court finds that the
Board member did not properly execute his duty to "explain fully the
issues in this case" during the
appellant's hearing. 38 C.F.R. § 3.103(c)(2).
B. Duty To Suggest the Submission of Evidence Possibly Overlooked
The Court in Bryant found that a hearing officer should review the record
in preparation for
a hearing and "should focus on the issues that remain outstanding, and
whether evidence has been
gathered on those issues." 23 Vet.App. at 496. Also, the hearing officer
should be "engaged in the
hearing process" because the officer is required to "suggest the
submission of evidence when
testimony during the hearing indicates that it exists." Id. at 496-97.
Finally, the Court found that
"[i]f a claim has been denied for lack of evidence of a current disability,
and no medical examination
has been provided by the Secretary or medical evidence submitted by the
appellant, then this lack
of evidence gives rise to the duty of the Board hearing officer to suggest
submission of this
evidence." Id. at 496.
5


1. PTSD and Migraines
The Board found that there exists "no medical evidence" that the appellant
has been
diagnosed with PTSD or currently suffers from migraines. R. at 10, 13-14.
The Board reviewed the
medical evidence in the record. Id. However, the appellant made a definite
statement that he had
been diagnosed and treated at VA facilities for PTSD (R. at 661) and
migraines (R. at 666-67).
Given that the existence of a current disability is of key importance in
this case, this discrepancy
between the appellant's statements and the evidence of record should have
indicated to the Board
member that there is a possibility that further evidence exists and caused
the Board member to
suggest to the appellant that he provide evidence of such diagnoses. His
failure to do so was a
breach of his duty to suggest submission of evidence possibly overlooked.
§ 3.103(c)(2); Bryant, 23 Vet.App. at 496-97.
2. Heart Condition
The Board rejected the appellant's claims for a heart disorder because of
a lack of a current
disability. R. at 14. The Board, in reaching this determination, discussed
a March 2004 VA
treatment record noting that the appellant had an arrythmia, and a May
2004 VA psychiatric record
indicating that the appellant stated he "had heart attacks in the last two
weeks related to anxiety."
Id. The Board discussed a Social Security Administration evaluation and a
private physician's
evaluation that both showed that the appellant's heart was essentially
normal. R. at 14-15. The
Board also discussed VA medical records that "have consistently noted of
the [appellant's] heart,
regular rhythm and rate without murmurs, clicks, or rubs." R. at 15. All
of this evidence, with the
exception of a portion of the VA medical records, dates to before the May
2006 hearing.
The appellant did indicate at his hearing that there is evidence to
support his claim from
Provident Hospital dating to 1992 and 1993. R. at 667. The July 2005 SOC
indicates that the
earliest records VA had obtained from Provident Hospital date to September
1994. R. at 729. The
Board does not discuss records from an earlier date, and the Board member
does not recommend
they be submitted. The hearing testimony suggests that record evidence
exists but is not in the
record. Therefore, the Board member should have suggested to the appellant
that such evidence be
submitted. See 38 C.F.R. § 3.103(c)(2); Bryant, 23 Vet.App. at 496-97.
See 38 C.F.R.
6


3. Hypertension, Asthma, Eye, and Lung Conditions
Regarding the appellant's claims for hypertension, asthma, an eye disorder,
and a bilateral
lung disorder, the Board found in each case that there is no opinion that
provides a nexus between
service and the diagnosed condition. R. at 13, 14, 17, 18. The hearing
officer "cannot ignore a lack
of evidence in the record on a material issue and not suggest its
submission, unless the record (or the
claimant at hearing) clearly shows that such evidence is not available. To
do so would ignore the
regulatory mandate to advise the claimant to submit evidence that might
have been overlooked."
Bryant, 23 Vet.App. at 493-94.
The Court finds that the lack of evidence of record indicating a nexus
between these
conditions and the appellant's service indicates "the possibility that
evidence had been overlooked,
and the Board hearing officer should have suggested that the appellant
secure and submit this
evidence if he could; the hearing officer's failure to do so was error."
Id. at 498.
C. Prejudicial Error
The Secretaryargues that any finding by the Court that the Board member
failed to fulfill his
duties under 38 C.F.R. § 3.103(c)(2) is not prejudicial error because the
appellant received adequate
notice of the evidence required to substantiate his claims in VCAA notice
mailings he received.
Secretary's Br. at 12-13. This Court is required to "take due account of
the rule of prejudicial error."
38 U.S.C. § 7261(b)(2); see also Shinseki v. Sanders, 129 S. Ct. 1696,
1704 (2009) (noting that the
statute requiring this Court to "take due account of prejudicial error []
requires the Veterans Court
to apply the same kind of 'harmless error' rule that courts ordinarily
apply in civil cases"). "The key
to determining whether an error is prejudicial is the effect of the error
on the essential fairness of the
adjudication." Mayfield v. Nicholson, 19 Vet.App. 103, 116 (2005), rev'd
on other grounds, 444
F.3d 1328 (Fed. Cir. 2006).
The Court finds that the fact the appellant received VCAA notice
mailings does not render the error in this case harmless. The appellant in
Bryant received "multiple
letters" from VA explaining the evidence required to substantiate his
claims. 23 Vet.App. at 490.
However, the Court in Bryant expressly found that the issuance of VCAA
notice "has no bearing on
the duty to suggest the submission of evidence that may have been
overlooked." Id. at 497. The
Court found that "to hold the failure of a hearing officer to suggest the
submission of evidence that
might have been overlooked is rendered nonprejudicial simply because the
claimant had been
7


provided preadjudicatory notice of what was needed to substantiate the
claim would eviscerate the
dutyimposed" on the hearing officer. Id. at 498. The Court, following the
reasoning in Bryant, finds
that the existence of VCAA notice mailings in this case does not mitigate
the Board member's error.
However, the error in this case may be harmless for other reasons.
1. Claims Denied Because of Lack of Evidence of Current Disability
Though the Court has found error in the Board member's handling of the
appellant's PTSD,
migraine, and heart condition claims, the Court must "read the entire
record" when determining
whether the error is prejudicial. Sanders, 129 S. Ct. at 1705. Regarding
the appellant's PTSD claim,
the Secretary obtained a VA psychiatric report as well as records from the
Jesse Brown VA Medical
Center where the appellant claimed he was diagnosed with PTSD. R. at 10,
729. The appellant
offered no additional evidence. Similarly, as to the appellant's heart
condition, the Board considered
numerous medical documents, including documents that supported the
appellant's claim of a current
disability. R. at 14-15. The Secretary also obtained records from
Provident Hospital. R. at 729.
The records that the Board member failed to suggest the appellant submit
are almost two decades
old, and their importance is questionable given that the keyissue is
whetheracurrentdisabilityexists
and that the Board analyzed several medical records from a later date.
Regarding the appellant's
PTSD and heart claims, the Court finds the Secretaryfully developed the
claims, and thus the Board
member's failure to explain the material issues or suggest the submission
of evidence possibly
overlooked did not impact the fairness of the adjudication and thus was
harmless. See 38 U.S.C.
§ 7261(b)(2); Sanders, 129 S. Ct. at 1705; Mayfield, 19 Vet.App. at 116.
The appellant offers no
evidence to the contrary. Sanders, 129 S. Ct. at 1706 (holding that the
appellant generally bears the
burden of demonstrating prejudicial error on appeal).
Regarding the appellant's migraine claim, however, the Court finds that
the Board member's
error was prejudicial. The Board, in determining that a current disability
does not exist, analyzed
a single private medical record that is more than a decade old. R. at 13.
The Board relied on no VA
medical records to make its decision, and there is no evidence that the
appellant's assertions that VA
medical record exists were investigated. Given the lack of evidence of
record, the Board member's
failure to explain the issues and suggest the submission of additional
evidence that may have been
overlooked did impact the fairness of the adjudication, and was thus
prejudicial. See 38 U.S.C.
8


§ 7261(b)(2); Sanders, 129 S. Ct. at 1705; Mayfield, 19 Vet.App. at 116.
2. Claims Denied for Lack of a Medical Nexus
Theappellant's claimsforhypertension, asthma, an eye disorder, and
abilateral lungdisorder
were all denied because of a lack of a medical nexus between his
disability and an Previous HitinjuryNext Document in service.
R. at 13, 14, 17, 18. The appellant argues, persuasively, that had he been
made aware of the need
to submit additional evidence, "he may very well have done so."
Appellant's Br. at 8. The Court
finds that the Board member's failure to explain that nexus was the
keyissue in the casecoupled with
his failure to suggest submission of a nexus opinion affected the
fundamental fairness of the
adjudication, and was thus prejudicial. See 38 U.S.C. § 7261(b)(2);
Sanders, 129 S. Ct. at 1705;
Mayfield, 19 Vet.App. at 116.
Remand is the appropriate remedy "where the Board has incorrectly applied
the law, failed
to provide an adequate statement of reasons or bases for its determination,
or where the record is
otherwise inadequate." Tucker v. West, 11 Vet.App. 369, 374 (1998). On
remand, the Board should
provide the appellant a hearing at which the hearing officer properly
discharges his duties under 38
C.F.R. § 3.103(c)(2).
Finally, the Court notes that on remand, the appellant is free to submit
additional evidence
and argument on the remanded matters, and the Board is required to
consider any such relevant
evidence and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002) (
stating that, on remand,
the Board must consider additional evidence and argument in assessing
entitlement to benefit
sought); Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam
order). The Court has
held that "[a] remand is meant to entail a critical examination of the
justification for the decision."
Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991). The Board must proceed
expeditiously, in
accordance with 38 U.S.C. § 7112 (requiring Secretary to provide for "
expeditious treatment" of
claims remanded by the Court).
9


III. CONCLUSION
After consideration of the appellant's and Secretary's pleadings, and a
review of the record,
the Board's January 15, 2009, decision is VACATED and the matter is
REMANDED to the Board
for further proceedings consistent with this decision.
DATED: March 11. 2011
Copies to:
Peter J. Meadows, Esq.
VA General Counsel (027)
10

Single Judge Application CFR 4.2; Inadequate Medical Opinion

Excerpt from decision below:
"It is a medical examiner's responsibility to provide a well-supported opinion so
that the Board may carry out its duty to weigh the evidence of record. See Nieves-
Rodriguez v. Peake, 22 Vet.App. 295, 304 (2008) (concluding that medical opinion is not entitled to any weight "if it contains only data and conclusions"); Stefl, 21 Vet.App. at 124 (stating that VA medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). A medical report may be inadequate if it fails to discuss something that is necessary. See 38 C.F.R. § 4.2 (2010).
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-1971
BOBBY W. OZBOLT, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MOORMAN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
MOORMAN, Judge: The appellant, Bobby W. Ozbolt, appeals through counsel a
May 15,
2009, Board of Veterans' Appeals (Board) decision that denied entitlement
to service connection for
a skin disorder of the hands and feet. Record (R.) at 3-10. Both parties
filed briefs, and the appellant
filed a reply brief. This appeal is timely, and the Court has jurisdiction
pursuant to 38 U.S.C.
§§ 7252(a) and 7266(a). A single judge may conduct this review because
the outcome in this case
is controlled by the Court's precedents and "is not reasonably debatable."
Frankel v. Derwinski,
1 Vet.App. 23, 25-26 (1990). For the following reasons, the Court will
vacate the Board's May2009
decision and remand the matter.
I. FACTS
A. Military, Medical, and Procedural History
Mr. Ozbolt served on active duty in the U.S. Army from March 1950 to March
1953. R. at
4, 1261, 1278. His service medical records reveal that Mr. Ozbolt was
treated for "[d]ermatitis,


venenata due to Rhus"1
during active service in 1952. R. at 1214, 1254; see R. at 1194, 1206. A
medical examination performed upon Mr. Ozbolt's discharge from the Army
reveals a normal
clinical evaluation. R. at 1263-64.2
In May1953 followingdischarge fromthe Army, Mr. Ozbolt worked for Chandler
Products.
R. at 129, 884. In a statement, Mr. Ozbolt reported that he first worked
in the company's shipping
room and then was transferred to the machine shop where he worked first as
an "I.D. grinder" for six
years and then as a trainee on carbide dyes. R. at 129. He stated that he
had no medical problems
for 20 years and then suddenly "came down with a rash on 90 percent of [
his] body" with blistering
between the fingers, toes, and feet. Id. He stated that he has been
examined by many doctors over
the years and at various hospitals and that he has been diagnosed as
having contact dermatitis. Id.
Statements
throughout
the
record
reveal
that
Mr.
Ozbolt
believes
that
the
dichlorodiphenyltrichloroethane (DDT) he used to treat athlete's foot and
to repel lice and ticks for
three years while in service caused his skin condition.3
See R. at 37, 128-30, 514, 861, 1184.
In August 2004, Mr. Ozbolt filed a claim for compensation with VA for "
injuryNext Hit to soles of
feet & palm of hands from the use of DDT powder" while in service. R. at
1171-83. The claim
indicates that Mr. Ozbolt received disability benefits from the Office of
Workers' Compensation for
irritant contact dermatitis. R. at 1171. In September 2004, a VA regional
office (RO) sent a notice
to Mr. Ozbolt, advising him of the evidence needed to substantiate his
claim. R. at 1151-56.
Mr. Ozbolt has submitted numerous private medical opinions and records of
treatment
indicating that he has been diagnosed as having contact dermatitis. R. at
775, 812, 884-85, 890, 891,
892-93, 895-96, 964, 1157, 1159, 1161, 1163-64, 1165-66, 1167. One such
record notes that Mr.
Ozbolt's condition "arose from a contact irritant dermatitis received at
work in 1973." R. at 890.
Dermatitis venenata is "1. allergic contact d[ermatitis] 2. former name
for contact dermatitis due to exposure
to sensitizing agents in plants." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY
503 (31st ed. 2007)[hereinafter
"DORLAND'S"]. Rhus dermatitis is "allergic contact dermatitis due to
exposure to plants of the genus Rhus that contain
the sensitizing agent urushiol; the most common plants are poison ivy,
poison oak, and poison sumac." DORLAND'S at
502.
2
1
The report of medical examination is partially illegible.
Dichlorodiphenyltrichloroethane is "a chlorinated hydrocarbon pesticide
moderately toxic to humans and other
animals; it was formerly widely used but is now banned in the United
States except for a few specialized purposes
because of the ecological damage it causes." DORLAND'S at 480.
3
2


Others note that Dr. Castrovinci, a private physician, diagnosed irritant
contact dermatitis and found
a positive patch test to cutting oil. R. at 884-85, 892, 895, 1157, 1163,
1166, 1167. Mr. Ozbolt also
submitted a statement by his wife, stating she knew of his skin condition
in 1953 and that it has been
ongoing ever since. R. at 865.
In January 2005, the RO denied Mr. Ozbolt's claim for entitlement to
service-connected
compensation for chemical exposure to the hands and feet. R. at 754-62. In
February 2005, Mr.
Ozbolt filed a Notice of Disagreement with the RO decision. R. at 508-10.
In July 2005, the RO
sent Mr. Ozbolt a Statement of the Case. R. at 484-97. In August 2005, Mr.
Ozbolt appealed the
RO decision to the Board and requested a Board hearing. R. at 278-80. In
May 2007, Mr. Ozbolt
testified before the Board via video conference. R. at 183-96.4
During his hearing, he associated his
current skin problems with exposure to DDT during service. R. at 186.
In September 2007, the Board remanded Mr. Ozbolt's claim for entitlement
to service
connection for a skin condition of the hands and feet for a medical
examination "addressing whether
the veteran's current skin disorder(s) relate to service." R. at 61. On
remand, the Board instructed
that Mr. Ozbolt be scheduled for a VA examination "with an appropriate
specialist in order to
determine the nature, severity and etiology of any current skin disorder
of the hands and feet." R.
at 62. The Board further instructed the examiner to "advance an opinion as
to the likelihood (likely,
as likely as not, not likely) that a skin disorder of the hands and feet
is related to service. The
examiner should provide a complete rationale for any conclusions reached."
Id. (emphasis in
original).
In November 2007, Mr. Ozbolt underwent a VA medical examination for his
skin condition
by Physician Assistant Patrick Hopperton. R. at 37-40. The examiner
reviewed the claims file and
noted Mr. Ozbolt's history of skin complaints. R. at 37. He then examined
Mr. Ozbolt's skin and
concluded that "it would be pure speculation to determine [whether] the
veteran's current skin
condition is related to the veteran's one time diagnosis of a Rhus
dermatitis secondary to poison ivy
exposure during active military enlistment." R. at 37-38.
While not dispositive of the issues before the Court, we are compelled to
comment on the poor quality of the
Board's video conference hearing transcription. R. at 183-96. The most
cursory reading by any responsible VA
employee could have corrected these obvious transcription errors. Instead,
these errors rendered the transcription
unintelligible and nonsensical.
4
3


In December 2007, VA issued a Supplemental Statement of the Case denying
entitlement to
service connection for chemical exposure to the hands and feet. R. at 25-
36. In May 2009, the
Board issued the decision here on appeal. R. at 3-10. The Board found that
Mr. Ozbolt's skin
condition is not related to his military service and accordingly denied
entitlement to service
connection. R. at 4.
B. Parties' Arguments
The appellant argues that the Board failed to ensure VA compliance with
the Board's
September 2007 remand instructions. Appellant's (App.) Brief (Br.) at 7-9.
First, the appellant
argues,theremandinstructionsrequiredexamination bya"specialist"andnot
aphysician's assistant.
App. Br. at 8-9. Second, the examiner did not, as instructed, render a
medical nexus opinion. App.
Br. at 9. The appellant next argues that the medical examination was
inadequate because it rendered
an insufficiently supported conclusion and failed to consider the
appellant's lay testimony of
continuity of symptomatology. App. Br. at 9-12. For these reasons, the
appellant argues, the Board
failed to ensure compliance with VA's duty to assist. App. Br. at 13-15.
In the alternative, the
appellant argues, the Board provided an inadequate statement of reasons
and bases for its decision.
App. Br. at 15-16.
The Secretary first argues that the Board substantially complied with the
remand order.
Secretary's (Sec'y) Br. at 7-12. To support this position, the Secretary
asserts that a physician's
assistant is competent to render a medical opinion and the appellant
submitted no evidence before
the Board that showed otherwise. Sec'y Br. at 9-10. Second, the Secretary
contests the appellant's
assertion that the medical examination was inadequate, arguing that a
medical examination is not
deficient simplybecause the examiner stated that he could not render an
opinion. Sec'yBr. at 9. The
Secretary further argues that the examiner did not fail to consider the
appellant's lay statements of
continuity of symptomatology. Sec'y Br. at 11-12. Finally, the Secretary
argues that the Board
provided an adequate statement of reasons and bases for its decision.
Sec'y Br. at 14-15.
II. ANALYSIS
Establishing service connection generally requires medical evidence or, in
certain
circumstances, lay evidence of the following: (1) a current disability; (2)
in-service incurrence or
aggravation of a disease or Previous HitinjuryNext Hit; and (3) a nexus between the claimed in-
service disease or Previous HitinjuryNext Document
4


andthepresent disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (
Fed. Cir. 2009);Jandreau
v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Hickson v. West, 12
Vet.App. 247, 253
(1999). Service connection may be established by showing continuity of
symptomatology, which
requires a claimant to demonstrate (1) that a condition was "noted" during
service; (2) evidence of
postservice continuity of the same symptomatology; and (3) medical or, in
certain circumstances,
lay evidence of a nexus between the present disability and the postservice
symptomatology. See
Barr v. Nicholson, 21 Vet.App. 303, 307 (2007); see also Davidson, supra;
Jandreau, 492 F.3d at
1377 (whether lay evidence is competent and sufficient in a particular
case is a factual issue to be
addressed by the Board); 38 C.F.R. § 3.303(b) (2010). The Board must
analyze the credibility and
probative value of the evidence, account for the persuasiveness of the
evidence, and provide reasons
for rejecting any material evidence favorable to the claimant. Caluza v.
Brown, 7 Vet.App. 498, 506
(1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).
Pursuant to 38 U.S.C. § 5103A, the Secretary's duty to assist includes,
in appropriate cases,
the dutyto conduct a thorough and contemporaneous medical examination. See
Green v. Derwinski,
1 Vet.App. 121, 124 (1991). The Secretary must make a reasonable effort to
obtain a medical
opinion when it is necessaryto substantiateaclaimforbenefits. 38U.S.C.
§5103A(a)(1); DeLaRosa
v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). A medical opinion "is
adequate where it is based
upon consideration of the veteran's prior medical history and examinations
and also describes the
disability, if any, 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, 407-08 (1994)); Green, supra.
It is a medical examiner's responsibility to provide a well-supported opinion so
that the Board may carry out its duty to weigh the evidence of record. See Nieves-
Rodriguez v. Peake, 22 Vet.App. 295, 304 (2008) (concluding that medical opinion is not entitled to any weight "if it contains only data and conclusions"); Stefl, 21 Vet.App. at 124 (stating that VA medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). A
medical report may be inadequate if it fails to discuss something that is
necessary. See 38 C.F.R. § 4.2 (2010).
Whether a medical examination report is adequate is generally a finding of fact that the Court reviews under the "clearly erroneous" standard of review. See 38 U.S.C. § 7261(a)(4); Nolan v. Gober, 14 Vet.App. 183, 184 (2000). When applying the "clearly erroneous" standard, if
5


the Court finds, after reviewing the record in its entirety, that the
Board's finding of fact is supported
by a plausible basis, "'the [Court] may not reverse it even though
convinced that had it been sitting
as trier of fact, it would have weighed the evidence differently.'" Id. (
quoting Anderson v. City of
Bessemer City, 470 U.S. 564, 573-74 (1985)).
Additionally, in Stegall v. West, 11 Vet.App. 268, 271 (1998), this Court
held that a remand
by the Board "confers on the veteran . . . as a matter of law, the right
to compliance with the remand
orders"; and the Board itself errs when it fails to ensure compliance with
the terms of such a remand.
Although the Secretary is required to comply with remand orders, it is
substantial compliance, not
absolute compliance, that is required. See Dyment v. West, 13 Vet.App. 141,
146-47 (1999) (holding
that there was no Stegall violation when the examiner made the ultimate
determination required by
the Board's remand, because such determination "more than
substantiallycomplied with the Board's
remand order"); Evans v. West, 12 Vet.App. 22, 31 (1998) (holding that
remand was not warranted
becausetheSecretarysubstantiallycompliedwith theBoard's remandorder);cf.
Marianov.Principi,
17 Vet.App. 305, 311 (2003) (remanding where the Secretary failed to
comply or even substantially
complywith the Board remand order). Moreover,inmakingits determinations,
the Court is required
to take due account of the rule of prejudicial error. 38 U.S.C. § 7261(b);
Conway v. Principi,
353 F.3d 1369, 1374-75 (Fed. Cir. 2004).
In its September 2007 remand, the Board specified that "[t]he veteran
should be scheduled
for a VA examination with an appropriate specialist in order to determine
the nature, severity[,] and
etiology of any current skin disorder of the hands and feet." R. at 62 (
emphasis added). Physician
Assistant Hopperton performed the examination. R. at 37-39. The appellant
argues that the choice
of VA examiner did not substantially comply with the remand instructions (
App. Br. at 7-8) while
the Secretary argues that the examiner was competent to render his opinion
and that the appellant
should have challenged the medical expert's competence at the Board. Sec'y
Br. at 7-10 (citing
Rizzo v. Shinseki, 580 F.3d 1288, 1291 (Fed. Cir. 2009); Cox v. Nicholson,
20 Vet.App. 563, 568-
569 (2007)).
The Court agrees with the appellant that the question here is not whether
the VA examiner
was competent to render medical opinions as a general matter, whether a
physician's assistant was
competent when the Board's remand instruction specifically called for "an
appropriate specialist."
App. Br. at 8; R. at 62. Because the Board on remand specifically
designated a specialist to conduct
6


the examination, VA did not comply with this requirement. A specialist is "
a physician whose
practice is limited to a particular branch of medicine or surgery,
especially one who, by virtue of
advanced training, is certified by a specialty board as being qualified to
so limit his practice."
DORLAND'S at 1767. Here, the medical examiner indicated that he is a
physician's assistant and not
a physician who specializes in skin disorders. R. at 38. Furthermore, the
record does not show that
the examiner has professional training substantially similar to that of a
specialist. Id. Still further,
the examination report did bear a physician's name and electronic
signature. Id. However, that
electronic signature followed the statement: "Receipt Acknowledged By,"
which does not signify
that this physician applied her signature because she concurred with the
medical judgment. Id.
Accordingly,Court holds thattheBoarddid not ensureVA's substantial
compliancewiththisportion
of the Board's remand instructions.
The September 2007 remand also instructed the examiner to "advance an
opinion as to the
likelihood (likely, as likely as not, not likely) that a skin disorder of
the hands and feet is related to
service." R. at 62. The medical examiner concluded that "it would be pure
speculation to determine
the veteran's current skin condition is related to the veteran's one time
diagnosis of Rhus dermatitis
secondary to poison ivy exposure during active militaryenlistment." R. at
38. The appellant argues
both that this conclusion fails to comply with the Board's remand
instruction because it provides no
medical nexus opinion and that this lack of a medical nexus opinion
renders the examination
inadequate. App. Br. at 9, 11; App. Reply Br. at 6-8.
As the Secretary argues, an examiner's statement that he cannot render an
opinion does not
mean that the opinion is inadequate. Sec'y Br. at 9 (citing Roberts v.
West, 13 Vet.App. 185, 189
(1999)). However, the use of the term "speculation" cannot be "a mantra
that short circuits the
careful consideration to which each claimant's case is entitled." Jones v.
Shinseki, 23 Vet.App. 382,
389 (2010). In Jones, the Court held that "it must be clear on the record
that the inability to opine
on questions of diagnosis and etiology is not the first impression of an
uninformed examiner, but
rather an assessment arrived at after all due diligence in seeking
relevant medical information that
mayhave bearing on the requested opinion." Id. The Court further explained
that "before the Board
can rely on an examiner's conclusion that an etiology opinion would be
speculative, the examiner
must explain the basis for such an opinion or the basis must otherwise be
apparent in the Board's
review of the evidence." Id. at 390. Accordingly, "it must be clear, from
either the examiner's
7


statements or the Board decision, that the examiner has indeed considered
'all procurable and
assembled data.'" Id. (quoting 38 C.F.R. § 3.102 (2009)). "When the
record leaves this issue in
doubt, it is the Board's duty to remand for further development." Id.
Here, the examiner provided no rationale to support his conclusion that it
would be
speculative to relate the appellant's in-service skin condition to his
current condition. R. at 37-38.
After describing the appellant's complaints, reviewing the claims file,
and conducting a physical
examination, the examiner announced this bare conclusion without giving
any reasons for his
opinion. Id. The opinion contains only data and conclusions and thus
cannot be afforded any
weight. See Nieves-Rodriguez, 22 Vet.App. at 304. Furthermore, it is not
clear whether the
examiner acknowledged the standard for providing a medical nexus
opinion–likely, as likely as not,
not likely–enunciated bythe Board in the September 2007 remand. R. at 62.
Indeed, as the appellant
points out, the examiner's statement regarding speculation could possibly
be based on his lack of the
specialized medical knowledge needed to evaluate a possibly complex
dermatological issue. App.
Reply Br. at 4-5.
Rather than remanding for further development, the Board, in its May 2009
decision, relied
on a lack of "medical evidence of a nexus between the current skin
disorder and the in-service
disorder" to deny the appellant's claim.
R. at 8.
The Board acknowledged that "the VA
compensation examiner stated that it would be 'pure speculation' to relate
the Veteran's current
disorder to his isolated diagnosis of dermatitis during service in 1952."
Id. The Board also stated
that none of the private medical records contain a nexus opinion. Id.
Contrary to the Secretary's
argument that the Board treated this opinion as non-evidence (Sec'yBr. at
9), the Board relied on the
fact that the record does not contain a medical nexus opinion to deny the
appellant's claim. R. at 8.
Accordingly, the Court holds that the Board committed clear error in
adjudicating this claim based
on the inadequate 2007 VA examination report.
Theappellantalsoarguesthatthemedicalexamination opinion
containsfurtherdeficiencies,
namely that the VA examiner failed to consider the appellant's statements
that show continuity of
symptomatology. App. Br. at 11-12. The Court disagrees. The Court has held
that a medical
examination was inadequate where the medical examiner "
impermissiblyignored the appellant's lay
assertions." Dalton v. Nicholson, 21 Vet.App. 23, 39 (2006). Unlike in
Dalton, the medical
examiner here acknowledged the appellant's self-reported complaints. R. at
37. The examiner
8


addressed continuity of symptomatology by reporting that "[t]he veteran
states that this skin
condition that he first started to experience in 1952 has never fully
resolved. It has been intermittent
in nature." Id. Furthermore, because the appellant's wife's statements
showing continuity of
symptomatology mirror the statements considered by the examiner, the
examiner was not required
to address them specifically. R. at 865; see Gabrielson v. Brown, 7 Vet.
App. 36, 40 (1994) (stating
that a medical examiner is not required to discuss all the evidence
favorable to the appellant in his
medical opinion).
The medical examiner did, however, fail to consider whether DDT exposure
during service
could have caused the appellant's current condition. The examiner
acknowledged the appellant's
claim that he was treated with DDT powder during service. R. at 37. He
then stated simply that "the
veteran's C-file does not show any treatment [with DDT] for tinea pedis"
without any further
analysis. Id. The examiner concluded that it would be speculative to
determine that the appellant's
current condition was related to his in-service poison-ivy exposure,
without considering, or even
mentioning, whether DDT exposure may have caused the appellant's current
condition. Id. The
medical examiner may not simply ignore statements that the appellant was
exposed to DDT while
in service and rely on a lack of medical evidence when considering whether
a medical nexus existed
between the present disability and service. See Dalton, 21 Vet.App. at 39;
see also Mariano,
17 Vet.App. at 312 (holding that VA medical examiner's conclusions were of
“questionable
probative value” where the examiner failed to consider certain
information).
The Court finds no merit in the Secretary's argument that the duty to
assist has not been
triggered in this case and that any error was nonprejudicial to the
appellant. Sec'y Br. at 13-14. In
September 2007, the Board made the determination that a further medical
opinion was necessary,
triggering VA's dutyto provide an adequate one. R. at 61-63; see Barr, 21
Vet.App. at 311. Because
VA failed to develop this claim byproviding an inadequate examination, and
because the Board then
relied on this examination, the appellant has been prejudiced. See
Shinseki v. Sanders, 129 S.Ct.
1696, 1708 (2009) (holding that this Court must take due account of the
rule of prejudicial error).
For the reasons stated above, the November 2007 VA medical examination was
inadequate
and did not comply, or substantially comply, with the Board's remand
instructions. The Board
clearlyerred whenit relied,in part, on this inadequate opinion to
concludethattheappellant's current
skin condition was not connected to service. Because the Court holds that
the Board clearly erred
9


in its decision, the Court will not examine the adequacy of the Board's
statement of reasons and
bases. Accordingly, the Court will remand the claim for a new VA
examination by a skin specialist,
as required by the prior remand, and for readjudication consistent with
this decision. On remand,
the appellant 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).
III. CONCLUSION
Based on the foregoing analysis and a review of the record on appeal, the
May 15, 2009, Board
decision is VACATED, and the claim for entitlement to service connection
for a skin disorder of the
hands and feet is REMANDED for further proceedings consistent with this
decision.
DATED: March 11, 2011
Copies to:
Nancy L. Foti, Esq.
VA General Counsel (027)
10

VA Fast Letter 11-09, Procedure Rating Presumptive Disease Gulf War, Iraq, Afghanistan, CFR 3.317(c)

Full article at: VA Issues New FAST Letter on Iraq, Afghanistan, Gulf War Claims

All VBA Regional Offices and Centers Fast Letter 11-09

SUBJ: Procedures for Rating Infectious Diseases Presumed to Be Related to Gulf War, Iraq, and Afghanistan Service under 38 CFR § 3.317(c).
Gulf War Presumptive Infectious Diseases

38 CFR § 3.317(c) was revised effective September 29, 2010. The revised regulation provides for establishing service connection on a presumptive basis for the following infectious diseases: Brucellosis, Campylobacter jejuni, Coxiella burnetii (Q fever), Malaria, Mycobacterium tuberculosis, Nontyphoid Salmonella, Shigella, Visceral leishmaniasis, and West Nile virus.
===============================================

Concussion and Purple Hearts Awards, New Guidlines

Full article at: Army Clarifies Purple Heart Rules For Soldiers
By T. Christian Miller, Daniel Zwerdling on Thursday, March 17, 2011

The new guidelines for Purple Heart awards does not change the rules concerning eligibility for the Purple Heart, they seek to clarity the procedure by which soldiers suffering from concussions can receive the medal.

"The new guidelines, which will be distributed throughout the Army, provide a checklist that makes clear that concussions requiring any sort of treatment by a medical professional—including bed rest or over-the-counter headache medication—is sufficient to meet award criteria.

The guidelines also clarify that soldiers diagnosed and treated by any medical professional, including nurses and physician's assistants, are eligible, as long as their standards of care match those a military doctor would apply."

"To receive the Purple Heart, the Army's current regulations require that a soldier be injured by enemy action and receive documented treatment from a medical officer. The Army's official list of wounds [AR 600-8-22] that "clearly justify" the award includes, "Concussion injuries caused as a result of enemy generated explosions.""

Military Awards, 210 page pdf file Army Regulation 600-8-22