Single Judge Application, Savage v. Shinseki, No. 09-4406, Vague and Speculative Medical Opinion

Excerpt from decision below:

"After briefs were submitted in this case, this Court issued a decision in
Savage v. Shinseki, __ Vet.App. __, No. 09-4406 (Jan. 4, 2011), which held:
[W]hen VA concludes that a private medical examination report is unclear
or insufficient in some way, and it reasonably appears that a request for
clarification . . . could provide relevant information that is otherwise
not in the record and cannot be obtained in some other way, the Board must either seek clarification from the private examiner or the claimant or clearly and adequately explain why such clarification is unreasonable. __ Vet.App. at __, slip op. at 15. The Court made it clear, however, that the Board's duty to clarify private medical opinions is limited and will not arise in most instances. Id. at 16. The Court held that VA's duty only arises in "those instances in which the missing information is relevant, factual, and objective – that is, not a matter of opinion – and where the missing evidence bears greatly on the probative value of the private examination report." Id."

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"Given that this case was largely decided based on the Board's weighing of Dr. Torres-Hodges's opinion against the opinion of the July 2008 VA examiner, a clarification of her opinion is of key importance. The need for such a clarification fits squarely within the Court's limiting instruction under Savage, __ Vet.App. at __, slip op. at 16. A clarifying statement would be relevant, factual, and objective because it would explain what Dr. Torres-Hodges meant by "proximal joints" and whether her opinion was based on a known diagnosis of the appellant's knee condition, and it bears greatly on the probative value of the examination because the Board found the examination vague and speculative based on those points. The Court, therefore, finds that the Board's failure to seek clarification of Dr. Torres-Hodges's opinion or to include in its decision an explanation for why it need not do so renders its statement of reasons or bases for its decision inadequate. See 38 U.S.C. § 7104(d)(1); Allday; Caluza; and Gilbert, all supra.

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-0939
BARBARAET E. REMBERT, 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 pro se appellant, Barbaraet E. Rembert, appeals a
March 4, 2009, Board of Veterans' Appeals (Board) decision that denied her entitlement to service connection for bilateral patellofemoral syndrome with tendonitis, claimed as secondary to her service-connected bilateral foot disabilities. Record of Proceedings (R.) at 3-8. 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 May 1980 until July 1992. R. at 807. In October 1992, the appellant was awarded service connection for a hallux valgus deformity of both feet and granted a 10% disability rating. R. at 791. In August 2002, a VA examiner noted that the appellant was likely suffering from patellofemoral syndrome. R. at 280.

In a March 2003 statement, the appellant's private podiatrist, Dr. Grace
E. Torres-Hodges, described surgical repair performed on the appellant's feet. R. at 225. Concerning the appellant's complaints of pain in her knees, hips, and back, Dr. Torres-Hodges noted that "[a]lthough it is difficult to definitively link the etiology of these additional symptoms, it is likely that failure of the original [in-service] surgery resulted in a change in gait that translated to changes and pain in more proximal joints." Id. In May 2007, a VA regional office (RO) granted the appellant entitlement to service connection for pes planus with metatarsalgia and sesamoiditis and a 10% disability rating. R. at 87-90.
The appellant was provided with a VA examination in July 2008. R. at 20-21. The examiner diagnosed the appellant with "pain in both knees, etiology undetermined." Id. The examiner concluded:
It is my opinion that it is less likely than not that the patient's patellofemoral syndrome and patellar tend[o]nitis are approximately due to or the result of a service-connected bilateral feet disorders. It is further my opinion that it is less likely as not that the veteran's knee disorders have been aggravated by her feet disorders or that they caused her knee disorders to increase in severity. This opinion is based on the fact that the medical literature and my own 49-year experience in orthopedics do not support the knee disorders such as described above to be caused by or aggravated by a bilateral pes planus condition. They are totally independent and not co-related. R. at 21.
The Board, in its March 4, 2009, decision here on appeal, found that the
appellant is not entitled to service connection for bilateral patellofemoral syndrome with tendonitis. The Board dismissed Dr. Torres-Hodges's opinion, finding that her concluding statement "is unclear as to whether [she] was referring to the [appellant's] knees as the 'more proximal joints' and further whether she was aware of the [appellant's] specific diagnoses referable to the knees." R. at 7. Thus,
the Board found that her statement was "vague and speculative in nature." Id. The Board stated that, because of this conclusion, it ordered the July 2008 VA medical
examination. Id.
The Board noted that the July 2008 VA examiner "reviewed the [appellant's]
claims file, including her history referable to her feet and her knees." R. at 7. The Board, in discussing the probative value of the medical opinion, stated:
This opinion is found to be credible. It was offered by a competent
medical
2


professional, who reviewed the claims file, as evidenced by his accurate
rendering of the relevant facts in the exam report. He supported his conclusion with
sound reasoning. As such, this is highly probative of the issue at hand.
Id. The Board found that Dr. Torres-Hodges's opinion "lacks the specificity required to substantiate a claim for service connection benefits." R. at 8. "The VA opinion, on the other hand, demonstrated knowledge of the nature of the [appellant's] bilateral foot and knee disabilities specifically, and reached a negative conclusion based on the evidence." Id. The Board thus found the VA examiner's opinion more probative than Dr.Torres-Hodges's, and concluded that "the evidence does not support a causal relationship between the [appellant's] current knee disorders and her service-connected bilateral foot disorders." Id.

B. Arguments on Appeal
The appellant argues that her July 2008 VA examination was only a perfunctory five-minute evaluation and that the subsequent examination report was inadequate and
incorrect. Appellant's Brief (Br.) at 1-2. The appellant states that the problems with her knees began "before I even had surgery on [my] feet while on active duty." Id. at 2. The appellant contends that her foot surgeries have caused "a change in gait and limp" which has led to deterioration of her knees. Id. The appellant requests that the Court reverse the Board's decision, or in the alternative, that it remand the Board's decision so that VA may provide her an adequate medical
examination. Id. at 3.
The Secretary asserts that the July 2008 examination report was "based upon a review of [a]ppellant's claims file," among other materials. Secretary's Br. at 6. Thus, he argues, the examiner's opinion was "not a bare conclusion . . . but was supported by review of her file and the examiner provided a rationale for his opinion." Id. at 7. Therefore, the Secretary concludes, the Court should find the VA examination was adequate. Id.

II. ANALYSIS
Establishing service connection generally requires medical or, in certain
circumstances, lay evidence of (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the claimed in-service injury or disease and the current disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet.App. 247, 252
3


(1999); Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78
F.3d 604 (Fed. Cir. 1996)(table). A finding of service connection is a finding of fact that the Court reviews under the "clearly erroneous" standard of review. See Dyment v. West, 13 Vet.App. 141, 144 (1999).
When deciding a matter, the Board must include in its decision a written
statement of the reasons or bases for its findings and conclusions, adequate to enable an appellant to understand the precise basis for the Board's decision as well as to facilitate review in this Court. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Caluza supra; Gilbert, 1 Vet.App. at 57.

A. Dr. Torres-Hodges's Opinion
After briefs were submitted in this case, this Court issued a decision in
Savage v. Shinseki, __ Vet.App. __, No. 09-4406 (Jan. 4, 2011), which held:
[W]hen VA concludes that a private medical examination report is unclear
or insufficient in some way, and it reasonably appears that a request for
clarification . . . could provide relevant information that is otherwise
not in the record and cannot be obtained in some other way, the Board must either seek clarification from the private examiner or the claimant or clearly and adequately explain why such clarification is unreasonable. __ Vet.App. at __, slip op. at 15. The Court made it clear, however, that the Board's duty to clarify private medical opinions is limited and will not arise in most instances. Id. at 16. The Court held that VA's duty only arises in "those instances in which the missing information is relevant, factual, and objective – that is, not a matter of opinion – and where the missing evidence bears greatly on the probative value of the private examination report." Id.
The Court finds that the holding in Savage applies to the present case.
The Board dismissed Dr. Torres-Hodges's opinion because it found it "vague and speculative in nature." R. at 7. The Board found it vague and speculative because it was "unclear" whether she was referring to the appellant's knees whens he stated that the appellant's "proximal joints" might be impacted by her foot disorders and whether Dr. Torres-Hodges was aware of "specific diagnoses" made concerning the
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appellant's knees. Id. Given that this case was largely decided based on
the Board's weighing of Dr. Torres-Hodges's opinion against the opinion of the July 2008 VA examiner, a clarification of her opinion is of key importance. The need for such a clarification fits squarely within the Court's limiting instruction under Savage, __ Vet.App. at __, slip op. at 16. A clarifying statement would be relevant, factual, and objective because it would explain what Dr. Torres-Hodges meant by "proximal joints" and whether her opinion was based on a known diagnosis of the appellant's knee condition, and it bears greatly on the probative value of the examination because the Board found the examination vague and speculative based on those points. The Court, therefore, finds that the Board's failure to seek clarification of Dr. Torres-Hodges's opinion or to include in its decision an explanation for why it need not do so renders its statement of reasons or bases for its decision inadequate. See 38 U.S.C. § 7104(d)(1); Allday; Caluza; and Gilbert, all supra.
This Court has held that "reversal is the appropriate remedy when the only
permissible view of the evidence is contraryto the Board's decision." Gutierrez v. Principi, 19 Vet.App. 1, 10 (2004). Remand is appropriate "where the Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate." Tucker v. West, 11 Vet.App. 369, 374 (1998). Because the Board failed to obtain
clarification of an unclear private medical examination and thus failed to
provide an adequate statement of reasons or bases for its decision, the Court will remand the Board's decision. Id. On remand, the Board should explore whether requesting information clarifying Dr. Torres-Hodges's statement is appropriate and provide an adequate statement of reasons or bases concerning its efforts
to obtain a clarification or its decision not to do so.

B. Other Issues
At least three laystatements from the appellant are included in the record.
R. at 113, 177-78, 242. In one, the appellant links her knee pain to the disorders in her feet. R. at 177-78. In another, she states that the problems with her feet cause her pain and difficulty standing and walking. R. at 242. The Board did not discuss the appellant's lay statements. The Court reminds the Board that "[l]ay testimony is competent . . . to establish the presence of observable symptomatology and 'may provide sufficient support for a claim of service connection.'" Barr v. Nicholson, 21 Vet.App. 303, 307 (2007) (quoting Layno v. Brown, 6 Vet.App.
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465, 469 (1994)); see also Charles v. Principi, 16 Vet.App. 370, 374 (
2002) (stating that a layperson is competentto offertestimonyregardingsymptoms capable of observation).
There is no categorical requirement of "'competent medical evidence . . . [when] the determinative issue involves either medical etiologyor a medical diagnosis.'" Davidson, 581 F.3d at 1316 (quoting Jandreau, 492 F.3d at 1377). On remand, the Board should reconsider its decision to exclude discussion of the appellant's lay statements from its statement of reasons or bases.
Given this disposition, the Court will not, at this time, address the appellant's
other arguments and issues concerning her claim, including whether the July 2008 VA
medical examination report was adequate. See Best v. Principi, 15 Vet.App. 18, 20 (2001). "A narrow decision preserves for the appellant an opportunity to argue those claimed errors before the Board at the readjudication, and, of course, before this Court in an appeal, should the Board rule against him." Id. In pursuing
her case on remand, the appellant is free to submit additional evidence and argument on the remanded matters, including whether the July 2008 VA medical examination was adequate, 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).

III. CONCLUSION
After consideration of the appellant's and Secretary's pleadings, and a
review of the record,
the Board's March 4, 2009, decision is VACATED and the matter is REMANDED
to the Board for
further proceedings consistent with this decision.
DATED: March 21, 2011
Copies to:
Barbaraet E. Rembert
VA General Counsel (027)
6

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