Wednesday, June 8, 2011

VA Sexual Assaults, 284 Assaults Since January 2007

Full article at: GAO: Hundreds sexually assaulted in Veterans Affairs facilities

By Gannett News Service
Wednesday, June 8, 2011

WASHINGTON -- Hundreds of people were sexually assaulted in Veterans Affairs facilities since early 2007, and many cases weren't reported to the proper officials, according to a government report released on Tuesday.

The Government Accountability Office reported there were 284 alleged assaults in VA medical centers and residential facilities from January 2007 to July 2010. They included 67 rapes, 185 cases of inappropriate touching, eight incidents of forceful medical exams, 13 cases of oral sex and 11 other assaults.

See also: Audit: Sexual assault incidents within VA system underreported By Jen Rizzo, CNN Producer
"The report also found that the VA has not taken the proper precautions to prevent sexual assaults in its medical facilities. Among the findings: Investigators report "poor monitoring of surveillance cameras, alarm system malfunctions, and the failure of alarms to alert both VA police and clinical staff when triggered." "

Single Judge Application, Savage v. Shinseki, No. 09-4406 (January 4, 2011)

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.
========================================
----------------------------------------------------


Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-3706
RONALD F. STOCKER, 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, Ronald F. Stocker, appeals through counsel
a July 10,
2009, Board of Veterans' Appeals (Board) decision that denied him
serviceconnection fora bilateral
hip disorder, a bilateral knee disorder, and a low back disorder. Record (
R.) a 3-14. 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. See
Frankel v. Derwinski,
1 Vet.App. 23, 25-26 (1990). For the following reasons, the Court will
affirm the Board's decision.
I. BACKGROUND
A. Facts
The appellant served on active dutyin the U.S. Armyfrom October1960until
October1963.
R. at 434. The record indicates that the appellant's in-service occupation
was repairing and
maintaining telephone lines. R. at 18, 180-81, 262, 434. The appellant's
service medical records
(SMRs) reveal that he fractured his ankle when he fell while in service. R.
at 363. However, the
SMRs do not reveal injuries to the hips, knees, or spine. See R. at 351-
417.
In June 2003, the appellant applied for compensation based on his
disabilities. R. at 328-37.
In an August 2005 treatment note, a VA physician stated that "in my
opinion[,] falling off a


telephone pole [that was] 35 feet high[] could well have damaged the
knees and the hips and the
spine. [B]ecause we usually favor one limb, the [right] knee and [left]
hip took the brunt of the
impact fall from that height." R. at 297. In a September 1, 2005,
statement, the appellant reported
that his disabilities were "a result of a fall from 35 feet from a
telephone pole while [he was] on
active duty." R. at 295. In December 2005, the appellant's private
orthopedist, Dr. William J. Near,
diagnosedtheappellantwith post-traumatic arthritis of the hips, post-
traumaticarthritisoftheknees,
and degenerative arthritis of the lumbar spine. R. at 276-77. Dr. Near
opined that the appellant's
disabilities were due to his service-related injuries. R. at 276.
In July 2007, the appellant was provided a hearing before the Board. R. at
177-90. The
appellant stated that during service, he worked on telephone poles,
climbing the poles for "at least
an hour, hour and a half every night." R. at 180. The telephone poles, the
appellant stated, were
normally 35 feet in height, but could be as high as 50 feet. Id. During
the course of the hearing, the
appellant's representative stated that there had been some confusion in
the case. Id. He stated that
the VA regional office (RO) apparently believed that the appellant's
disabilities were "due to a
traumatic injury while in service . . . [that] he fell from a pole. This
is not the case. [His injuries are]
from a chronic, continuous job." Id. The representative indicated the
appellant's claim was based
on wear and tear "[s]imilar to [that brought on by] parachute jumping." R.
at 181. The appellant
stated that, after working on telephone poles for more than an hour, he
would often descend rapidly,
at times fallinglong distances. R. at 181-82. In September 2007, the Board
remanded the appellant's
case to the RO to obtain additional evidence, and then to schedule the
appellant for a VA medical
examination. R. at 166-68.
The appellant was provided a VA examination in March 2009. R. at 45-53.
The examiner
opined that the appellant's disabilities were "less likely as not" caused
by or a result of his service.
R. at 52. The examiner noted that the appellant had worked as a lineman in
service, "which could
have caused repeated trauma." R. at 53. However, the examiner found that
without documentation
of an injury in the appellant's SMRs or until 1992, he could not opine
that the disabilities are service
connected. Id.
In its July 10, 2009, decision here on appeal, the Board denied the
appellant entitlement to
service connection for a bilateral hip disorder, a bilateral knee disorder,
and a low back disorder.
2


The Board acknowledged that the appellant has degenerative joint disease
in his hips, knees, and
lumbar spine, and noted his initial assertion that his conditions resulted
from an in-service fall. R.
at 7. The Board stated that the appellant later "acknowledged that there
was no particular incident
or injury in service related to a fall from a telephone p[ole]; rather, it
was the chronic strain of the
job and having to quickly slide down poles, stopping and starting, that
created the general wear and
tear" that resulted in his current disabilities. R. at 7-8.
The Board noted that the SMRs and service separation examination show no
evidence of
treatment for a knee, hip, or lumbar spine injury during service, and
found that no diagnosis of the
appellant's disease was made until 1992. R. at 10-11. The Board thus
concluded that the
preponderance of the evidence is against the appellant's claim. R. at 10.
The Board stated that it gave more evidentiary weight to the March 2009 VA
examination
report, contemporaneous service treatment records, and postservice private
treatment records than
to the August 2005 VA medical opinion and Dr. Near's December 2005 medical
opinion. R. at 11-
13. The Board found that the August 2005 opinion lacks probative value
because it was based on
an inaccurate factual premise. Id. The Board gave Dr. Near's December 2005
opinion less probative
value than other evidence of record because the opinion lacks supporting
rationale, lacks clarity
regarding what clinical evidence Dr. Near relied upon in formulating his
opinion, is "not based on
objective diagnostic testing," and was formulated long after the
appellant's service. R. at 12-13.
B. Arguments on Appeal
The appellantarguesthatthe Board did not adequatelysupport its
determinations concerning
the probative value of the August 2005 VA medical opinion and Dr. Near's
December 2005 opinion.
Specifically,theappellant asserts
thattheBoardincorrectlydeterminedthattheAugust 2005opinion
was based on an inaccurate factual premise. Appellant's Brief (Br.) at 6.
The appellant also argues
that the Board should have returned this opinion for clarification. Id. at
6-7. Regarding Dr. Near's
December 2005 opinion, the appellant argues that "the Board erred in
failing to seek clarification of
the clinical basis" of the opinion. Id. at 7. The appellant also disputes
the Board's determination that
the opinion is less probative because it is not based upon objective
diagnostic testing. Id. at 7-8.
The Secretary argues that the record supports the Board's finding that the
August 2005
medical opinion is based on an inaccurate factual premise and thus is not
probative. Secretary's Br.
3


at 10-13. Regarding the appellant's argument that the opinion should have
been returned for
clarification, the Secretary contends that the Board remanded the
appellant's claims in September
2007 "specifically to obtain a new medical opinion that was based on an
accurate factual premise."
Id. at 13. Thus, the Secretary concludes, "contrary to [a]ppellant's
assertion, the Board responded
to the August 2005 opinion by indeed remanding the claim for clarification
." Id. at 14.
Responding to the appellant's arguments concerning the December 2005
opinion, the
Secretary asserts that VA "does not have a duty to clarify private
treatment records. . . . The cure for
those inadequate [private] records is thus a VA examination." Id. at 15.
The Secretary therefore
concludes that the September 2007 remand and subsequent August 2009 VA
examination served to
"cure the inadequacies of the [a]ppellant's record." Id. at 17. Finally,
responding to the appellant's
assertion that the Board incorrectly found that the lack of diagnostic
testing reduced the probative
value of the December 2005 opinion, the Secretary argues that the Board
correctly found that "it is
not bound to accept an opinion based on unsupported clinical evidence." Id.
at 18. The Secretary
contends that diagnostic testing would impact a determination of whether
the appellant's current
disabilities are connected to his service, and the lack of such testing
reduces the probative value of
the December 2005 opinion. 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
(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,
4


56-57(1990). Tocomplywith this requirement,theBoardmust analyze
thecredibilityandprobative
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, 7
Vet.App. at 506; Gilbert, 1 Vet.App. at 57.
A. The August 2005 VA Physician's Opinion
This Court has held that "[a]n opinion based on an inaccurate factual
premise has no
probative value." Reonal v. Brown, 5 Vet.App. 458, 461 (1993); see also
Swann v. Brown, 5
Vet.App. 229, 233 (1993) (stating that the Board may reject a medical
opinion that is based on an
appellant's statement that is contradicted by other facts in the record);
Kowalski v. Nicholson, 19
Vet.App. 171, 179 (2005). Factual determinations bythe Board will not be
overturned unless found
to be clearly erroneous. Butts v. Brown, 5 Vet.App. 532, 534 (1993) (en
banc). A factual
determination is not clearly erroneous unless, in light of a review of the
entire evidence, the Court
is left "'with the definite and firm conviction that a mistake has been
made.'" Hersey v. Derwinski,
2 Vet.App. 91, 94 (1992) (quoting United States v. U.S. Gypsum Co., 333 U.
S. 364, 395 (1948)).
Regarding the August 2005 opinion, the Board stated:
[T]he Board assigns no probative value to it as it is based upon an
inaccurate fact,
i.e., that the [appellant] injured his right knee and left hip from a 35
foot fall from a
telephone pole. This is the initial claim made by the [appellant]. At the
July 2007
hearing, however, he conceded that he never actually fell from a telephone
pole and
stated that there is no one incident that he pinpoints as having caused
the claimed
conditions.
R. at 11-12.
The appellant argues that the VA physician "used a 35 foot fall as an
example in his opinion,
and the Board has not offered anyconclusion that the appellant was not
forced to jump from elevated
positions on telephone poles while on active duty." Appellant's Br. at 6.
The VA physician stated
that "in my opinion, falling off a telephone pole [at] 35 feet high, could
well have damaged the knees
and hips and spine." R. at 297. The 35-foot fall does not appear to be an "
example" used by the
physician. In his report, the physician speaks of the 35-foot fall as a
distinct incident of acute
trauma. In further stating that "because we usually favor one limb, the [
right] knee and [left] hip
took the brunt of the impact fall from that height," the physician also
appears to be discussing the
5


mechanics of the alleged 35-foot fall and relating it to the appellant's
symptomatology. Therefore,
rather than an example, the fall appears to be the basis for his opinion,
and the Board's finding to that
effect is not clearly erroneous.
The Court further finds that the Board provided an adequate statement of
reasons or bases
for its determination that the alleged 35-foot fall is an inaccurate
factual premise. As the Board
noted, in September 2005 the appellant initially claimed that he was
injured by a 35-foot fall from
a telephone pole. R. at 12, 295. The Board then noted that in his July
2007 hearing, the appellant
changed his position, expressly abandoning his previous assertion that his
disabilities were due to
a single fall and adopting the position that his disabilities were due to
the continuous strain on his
joints caused by his occupation. R. at 180-82. The Board did not dispute
that the appellant jumped
from elevated positions, but merely found that the physician's impression
that a single fall from 35
feet was the basis of the appellant's disabilities is inaccurate based on
the appellant's change in
position. Thus, the Board adequately explained its finding.
The appellant also argues that, because the Board apparently found the
physician's opinion
to be "ill-informed," the August 2005 VA examination should have been
returned for clarification.
Appellant's Br. at 6-7. The Board has a duty to remand a case "[i]f
further evidence, clarification of
the evidence, correction of a procedural defect, or any other action is
essential for a proper appellate
decision." 38 C.F.R. § 19.9(a) (2010). The Court, however, disagrees with
the premise of the
appellant's argument. The Board made no finding concerning the lack of
clarity in the physician's
opinion or any finding that the physician was "ill-informed." Instead, it
found simply that the
physician's statement was based on an inaccurate factual premise, and thus
it rejected the statement
as evidence. The Board is allowed to make that determination. See Reonal,
Swann, and Kowalski,
all supra.
Moreover, in September 2007, the Board remanded the appellant's case to
allow VA to
adequatelyfulfill its duty to assist by, among other actions, providing
the appellant with another VA
medical examination. R. at 167. That examination was conducted in March
2009 (R. at 45-53), and
was before the Board when it issued the decision currently on appeal. The
appellant makes no
challenge to the adequacy of that examination or the Board's consideration
of it in its decision.
Therefore, as the Secretary notes, to the extent that there was a lack of
clarity regarding the August
6


2005 VA examination, the Board fulfilled its duty to seek clarification
by ordering a new medical
examination.
B. Dr. Near's December 2005 Opinion
Regarding Dr. Near's December 2005 private medical opinion, the Board
stated:
[T]he Board finds that this opinion is not afforded as much probative
weight as that
of the March 2009 VA examiner's for several reasons. Unlike the VA
examiner, this
private physician fails to provide a rationale for his opinion. It is the
factually
accurate, fully articulated, sound reasoning for the conclusion that
contributes
probative value to a medical opinion. . . . It is unclear what clinical
evidence the
examiner relied upon in determining that the [appellant's] degenerative
joint disease
was "posttraumatic" as the treatment note does not indicate that the
physician was
relying on any diagnostic testing to confirm the presence of arthritis,
much less that
it was posttraumatic. The Board is not bound to accept an opinion based on
unsupported clinical evidence. . . . Furthermore, as this private
physician's opinion
is not based upon objective diagnostic testing, it [] lacks probative
value in light of
the June 1992 private treatment note. . . .
R. at 12.
The appellant first argues that the Board "erred in failing to seek
clarification of the clinical
basis" of Dr. Near's opinion. Appellant's Br. at 7. The Secretary argues
that VA "does not have a
duty to clarify private treatment records." Secretary's Br. at 15. After
briefs were submitted in this
case, this Court issued a decision in Previous DocumentSavageNext Hit 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 clearlyand adequatelyexplain
whysuch
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.
7


The Court finds that the holding in Previous HitSavageNext Hit applies to the present case.
The Board found a
lack of clarity because Dr. Near did not explain what clinical evidence he
relied upon in formulating
his opinion. R. at 12. The need for clarification of clinical evidence
fits squarely within the Court's
limiting instruction under Previous HitSavageNext Document, __ Vet.App. at __, slip op. at 16,
because such clinical evidence
is relevant, factual, and objective. The Court, therefore, finds that the
Board's failure to seek
clarification of Dr. Near's opinion or to include in its decision an
explanation for why it need not do
so renders its statement of reasons or bases inadequate. See 38 U.S.C. §
7104(d)(1); Allday, Caluza,
and Gilbert, all supra.
The Board's error, however, is not prejudicial. 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 Board afforded Dr.
Near's opinion reduced
probative value for a number of reasons, including that he failed to
provide a rationale for his
opinion. R. at 12. Even if the Board requests that Dr. Near furnish the
clinical evidence that he
relied upon, that evidence will not cure the lack of any supporting
rationale in Dr. Near's opinion,
and the Board will be justified in continuing to afford it reduced
probative value. Any error in not
seeking clarification does not affect the ultimate outcome of the Board's
reasoning, and is therefore
not prejudicial.
The appellant next disputes the Board's finding that Dr. Near's opinion is
less probative
because it "is not based upon objective diagnostic testing." Appellant's
Br. at 8; R. at 12. The
appellant questions both the basis for the Board's requiring objective
diagnostic testing and its
conclusion that Dr. Near did not provide such information. In the
paragraph prior to this definitive
finding, the Board stated that it was unclear what clinical evidence Dr.
Near relied upon "as the
treatment note does not indicate that the physician was relying on any
diagnostic testing to confirm
the presence of arthritis." Id. The Court agrees that these two statements
are incongruous, rendering
the Board's statement of reasons or bases inadequate on this point.
However, the error is again not
prejudicial. See Sanders, supra. Because Dr. Near provided no rationale
for his conclusions,
whether he was required to use or did, in fact, rely on objective
diagnostic testing does not impact
the Board's ultimate analysis.
8


III. CONCLUSION
After consideration of the appellant's and the Secretary's pleadings, and
a review of the
record, the Board's July 10, 2009, decision is AFFIRMED.
DATED: May 25, 2011
Copies to:
Peter J. Meadows, Esq.
VA General Counsel (027)
9

Orr. v. Shinseki, No. 08-2190

----------------------------------------------------


Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 08-2190
PATRICIA J. ORR,
V.
APPELLANT,
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS,
ORDER APPELLEE.
It is ORDERED that this Court's order entered on April 22, 2011, is hereby
amended as follows:
At the top of the page add "Designated for electronic publication only".
After the eighth line of text add "Note: Pursuant to U.S. Vet. App. R. 30(
a), this action may not be cited as precedent.".

DATED: June 2, 2011
FOR THE COURT:
/s/ Gregory O. Block
GREGORY O. BLOCK
Clerk of the Court
Copies to:
Paul L. Zido, Esq.
VA General Counsel (027)
======================================

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 08-2190
PATRICIA J. Previous DocumentORRNext Hit, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before HAGEL, MOORMAN, and SCHOELEN, Judges.

ORDER
Patricia J. Orr appeals through counsel a September 25, 2007, Board of
Veterans' Appeals
(Board)decision that denied entitlement to waiver of recovery of an overpayment
of dependency and indemnity compensation. On February 15, 2011, this matter was referred to a panel of the Court.
On April 21, 2011, the parties filed a joint motion to terminate Ms. Orr's
appeal. The motion to terminate, which includes a stipulated agreement between the parties, will be granted.
Upon consideration of the foregoing, it is
ORDERED that the parties' April 21, 2011, joint motion to terminate this
appeal is
GRANTED. It is further
ORDERED that oral argument in this matter scheduled for Tuesday, April 26,
2011, at 10:00
am is canceled.
DATED: April 22, 2011
Copies to:
Paul L. Zido, Esq.
VA General Counsel (027)
PER CURIAM.

Single Judge Application, Cook v. Brown, 4 Vet.App., "Unreasonable Time Lapse"

Excerpt from decision below:
"The appellant argues that under Cook v. Brown, a period of five years is not an unreasonable lapse in time between the manifestation of a disease and a later diagnosis. 4 Vet.App. 231, 238 (1993). The appellant's argument is unavailing. First, the Court in Cook analyzed the phrase "unreasonable time lapse" found in 38 C.F.R. § 3.307(c) regarding the post-service diagnosis of a chronic disease as defined by 38 C.F.R. § 3.309. A low back disability is not a chronic disease for purposes of § 3.307. 38 C.F.R. § 3.309. Therefore § 3.307(c) does not apply to the appellant's claim. Second, even if Cook applied, it is distinguished from the present case. In Cook, the Court stated:
An important factor in considering the "unreasonableness" of the time
lapse is the strength of the evidence establishing an identity between the disease
manifestations and the chronic disease as subsequently diagnosed; a strong evidentiary link tends to ensure that the diagnosed disease is not attributable to "intercurrent causes."
4 Vet.App. at 238 (citing 38 C.F.R. § 3.303(b)). The Court went on to conclude that since Mr. Cook received continuous treatment from the date of his first manifestations of his disease to the eventual diagnosis five years later, there was a strong evidentiary link to connect the manifestations to the diagnosis. Id.
=============================

Skip navigation
U.S. Court of Appeals for Veterans Claims
View | Download | Details Previous document | Next document
. 09-2197
MolinaVJ_09-2197.pdf
Search Terms: GARDIN CreationDate: 05/26/2011 14:57:42
Creator: PrintServer150
ModDate: 06/03/2011 09:45:18
Producer: Corel PDF Engine Version 15.0.0.431
Title:
X_XMPTK: Adobe XMP Core 4.2.1-c043 52.372728, 2009/01/18-15:08:04
X_XMPMETA_XMP_CREATEDATE: 05/26/2011 14:57:42
X_XMPMETA_XMP_MODIFYDATE: 06/03/2011 09:45:18
X_XMPMETA_XMP_CREATORTOOL: PrintServer150
X_XMPMETA_XMP_METADATADATE: 06/03/2011 09:45:18
X_XMPMETA_DC_FORMAT: application/pdf
X_XMPMETA_PDF_PRODUCER: Corel PDF Engine Version 15.0.0.431
X_XMPMETA_PDFAID_PART: 1
X_XMPMETA_XMPMM_DOCUMENTID: uuid:bf3a2bff-3751-472c-9807-dd653fe6c181
X_XMPMETA_XMPMM_INSTANCEID: uuid:312c87e1-f996-4a6a-a70b-c9d476a869f1

----------------------------------------------------


Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 09-2197
VICTOR J. MOLINA, 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, Victor J. Molina, appeals through counsel a
June 4,
2009, Board of Veterans' Appeals (Board) decision that denied his claim
for service connection for
a low back disability. Both parties have filed briefs. The Court has
jurisdiction pursuant to
38 U.S.C. §§ 7252(a) and 7266(a) to review the Board's decision. 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 affirm the Board's decision.

I. BACKGROUND
Mr. Molina served in the U.S. Air Force from September 1966 to August 1968.
Record (R.)
at 338. He reports injuring his low back in 1967 while unloading a large
aircraft part. R. at 272.
He also states that he received treatment from the hospital at Langley Air
Force Base, but the record
does not include service medical records (SMRs) showing this treatment. R.
at 14. The SMRs
indicate that, in October and November 1967, Mr. Molina received treatment
for complaints of low
back pain and testicle pain, which was diagnosed as epididymitis. R. at
417-22. In July 1968, Mr.
Molina completed a medical history report and checked the "Yes" box for "
recurrent back pain."


R. at 427. On the same form, the examining physician noted "Back pain
refers to episode of
epididymitis and prostatitis Oct-Nov 67, treated with antibiotics with
good results. Denies all other
significant medical and surgical history." R. at 428.
Over five years after discharge, in 1974, Mr. Molina received treatment
for back pain at a VA
medical facility. R. at 41-45. He complained of "severe back pain" and
received x-rays of his
lumbosacral spine, which revealed Schmorl's nodes and minimal degenerative
change but were
otherwise normal.1
R. at 45, 42.
ADecember2000physicaltherapytreatment notestates"[Historyof] chronicLBP[
lowback
pain] since age 19 – he was in military." R. at 291. A June 2001 medical
report states that Mr.
Molina presented with "a history of back problems for thirty years. The
patient said it started
insidiously when he was in the military service, and has basically been on
and off since then. He
never really reported it because it was quite mild at that time." R. at
287. The physician diagnosed
him with "[c]hronic low back pain secondary to probable degenerative joint
disease, as well as
degenerative disc disease. According to this patient's clinical history,
it is also a possibility that this
patient has a degree of spinal cord stenosis." R. at 289. The physician
also stated: "This patient
presents with multiple symptoms that suggest multiple etiologies for his
back pain. . . . I do not
believe it will be helpful to re-refer him back to physical therapy until
we get a better idea of what
is going on with his back through the MRI [(magnetic resonance imaging)]."
R. at 289-90. The MRI
later showed "a herniated nucleus pulposus at L5-S1 with effacement of the
S1 nerve root on the
right side," although the physician did not provide an etiology for this
condition. R. at 282-83.
Mr. Molina sought service connection for a low back disability in 2002. R.
at 328-37. A VA
regional office (RO) denied the claim due to a lack of evidence of a back
injury in service. R. at 276.
He appealed to the Board. R. at 226.
In the June 2009 decision here on appeal, the Board found that Mr.
Molina's low back
disability did not manifest until many years after service and is not
related to any disease or injury
incurred during service.
A Schmorl node is "an irregular or hemispherical bone defect in the upper
or lower margin of the body of the
vertebra." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1300 (31st ed. 2007).
1
2


On appeal, Mr. Molina argues that the Board made no express determination
regarding the
credibility of his lay statements that he injured his back in service.
Next, he argues that the Board's
reliance on Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000), was misplaced.
Then, he argues that
a private medical record shows a relationship between his current low back
disability and his
reported in-service injury. Lastly, he argues that reversal, not remand,
is the appropriate remedy.
II. ANALYSIS
Establishing service connection generally requires medical or, in certain
circumstances, lay
evidence of (1) a current disability; (2) an in-service incurrence or
aggravation of a disease or injury;
and (3) a nexus between the claimed in-service disease or injury and the
present disability. See
Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12
Vet.App. 247, 253
(1999); Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78
F.3d 604 (Fed. Cir. 1996)
(table); see also Heuer v. Brown, 7 Vet.App. 379, 384 (1995). A finding of
service connection, or
no service connection, is a finding of fact reviewed under the "clearly
erroneous" standard in
38 U.S.C. § 7261(a)(4). See Swann v. Brown, 5 Vet.App. 229, 232 (1993). "
A factual finding 'is
"clearly erroneous" when although there is evidence to support it, the
reviewing court on the entire
evidence is left with the definite and firm conviction that a mistake has
been committed.'" Hersey
v. Derwinski, 2 Vet.App. 91, 94 (1992) (quoting United States v. United
States Gypsum Co.,
333 U.S. 364, 395 (1948)). The Court maynot substitute its judgment for
the factual determinations
of the Board on issues of material fact merely because the Court would
have decided those issues
differently in the first instance. See id.
Before deciding a claim, the Board is required to consider all relevant
evidence of record and
to consider and discuss in its decision all "potentially applicable"
provisions of law and regulation.
Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991); see 38 U.S.C. § 7104(
a); Weaver v. Principi,
14 Vet.App. 301, 302 (2001) (per curiam order). In addition, the Board is
required to provide 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. 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
3


credibilityand probative value of the evidence, account for the evidence
that it finds to be persuasive
or unpersuasive, and provide the reasons for its rejection of any material
evidence favorable to the
claimant. Caluza, 7 Vet.App. at 506; Gilbert, 1 Vet.App. at 57.
The appellant first argues that the Board failed to make an express
determination regarding
the credibility of his lay statements that he injured his back in service.
Appellant's Brief (Br.) at 7-8
(citing Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006)). The Board
is specifically charged
with weighing lay evidence against the other evidence of record in making
its determination
regarding service connection. See Buchanan, 451 F.3d at 1334-37. Regarding
this weighing of
evidence, the U.S. Court of Appeals for the Federal Circuit (Federal
Circuit) has instructed: "Nor do
we hold that the Board cannot weigh the absence of contemporaneous medical
evidence against the
layevidence of record. . . . [H]owever, the Board cannot determine that
layevidence lacks credibility
merely because it is unaccompanied bycontemporaneous medical evidence." Id.
at 1337 (emphasis
added); see Barr v. Nicholson, 21 Vet.App. 303, 310 (2007) ("[T]he Board
may not reject as not
credible any uncorroborated statements merely because the contemporaneous
medical evidence is
silent as to complaints or treatment for the relevant condition or
symptoms."); see also Gardin v. Shinseki, 613 F.3d 1374, 1379-80 (Fed. Cir. 2010) (approving the Board's analysis under Buchanan where it found that the veteran's lay statements were not credible because they were contradicted by the contemporaneous medical evidence).
In this case, the Board did not rely merely on an absence of contemporaneous medical evidence or require such evidence as a prerequisite to determining the credibility of the lay evidence. See Gardin, supra. In fact, the Board noted the contemporaneous medical evidence, including the October and November 1967 SMRs and the July 1968 separation examination, and discussed how it weighed against the appellant's lay evidence. R. at 7. A review of the
record reveals that these
documents are not "silent as to complaints or treatment" for back pain,
but instead show that the
appellant experienced back pain and that back pain was caused by
epididymitis and prostatitis, not
a lifting incident. See Barr, 21 Vet.App. at 310; R. at 417-22, 428. The
Board stated that these
contemporaneous medical records were "more probative" regarding the
element of an in-service
injury. R. at 7; see Davidson, supra. While the Board did not
expresslystate whether the appellant's
laystatements were "credible," it is clear that the Board considered the
statements and weighed them
4


against the contemporaneous medical evidence and found the latter to be
more probative. The
Board's analysis was not in error. See Owens v. Brown, 7 Vet.App. 429, 433 (
1995) (holding that
the Board is responsible for assessing the credibility and weight of
evidence and that the Court may
overturn the Board's decision only if it is clearly erroneous); see also
McClain v. Nicholson,
21 Vet.App. 319, 321 (2007) (stating that although clarity is preferred,
it "cannot be demanded in
every instance or finality would forever be delayed pending perfection in
draftsmanship").
Next, the appellant argues that the Board's reliance on Maxson was
misplaced. In Maxson,
the Federal Circuit stated that "evidence of a prolonged period without
medical complaint can be
considered, along with other factors concerning the veteran's health and
medical treatment during
and after militaryservice." 230 F.3d at 1333. Here, the Board concluded
that entitlement to service
connection for a low back disorder was not warranted in part because of
the five-year gap between
the appellant's separation and the 1974 treatment for back pain. R. at 7.
The appellant argues that
under Cook v. Brown, a period of five years is not an unreasonable lapse
in time between the
manifestation of a disease and a later diagnosis. 4 Vet.App. 231, 238 (
1993). The appellant's
argument is unavailing. First, the Court in Cook analyzed the phrase "
unreasonable time lapse"
found in 38 C.F.R. § 3.307(c) regarding the post-service diagnosis of a
chronic disease as defined
by 38 C.F.R. § 3.309. A low back disability is not a chronic disease for
purposes of § 3.307.
38 C.F.R. § 3.309. Therefore § 3.307(c) does not apply to the
appellant's claim. Second, even if
Cook applied, it is distinguished from the present case. In Cook, the
Court stated:
An important factor in considering the "unreasonableness" of the time
lapse is the
strength of the evidence establishing an identity between the disease
manifestations
and the chronic disease as subsequently diagnosed; a strong evidentiary
link tends to
ensure that the diagnosed disease is not attributable to "intercurrent
causes."
4 Vet.App. at 238 (citing 38 C.F.R. § 3.303(b)). The Court went on to
conclude that since Mr. Cook
received continuous treatment from the date of his first manifestations of
his disease to the eventual
diagnosis five years later, there was a strong evidentiary link to connect
the manifestations to the
diagnosis. Id. Here, in contrast, the appellant has not shown that he
received continuous treatment
for the low back pain he reported during service during the five-year gap,
nor does the 1974
treatment record reflect continuous symptoms since service. R. at 41-45;
see also R. at 425
(1968 separation examination showing normal spine and musculoskeletal
system). Finally, the
5


Board considered the five-year gap in treatment in conjunction with the
other evidence of record in
determining whether an in-service injury occurred and whether his current
back disability is related
to service. There is no indication in the record that the Board placed
anyundue weight on this single
piece of evidence or improperly based its decision on this fact. Therefore,
the Court concludes that
the Board's reliance on Maxson was not in error.
The appellant further argues that a private medical record shows a
relationship between his
current low back disorder and his reported in-service injury. He states
that a "2000 medical report
from Kaiser Permanente is competent medical evidence that a current back
disorder began during
service." Appellant's Br. at 9 (citing R. at 287-91).2
However, neither the December 2000 nor June
2001 medical records referenced by the appellant support such a conclusion.
As noted above, the
December 2000 record includes the appellant's reported history of chronic
low back pain "since age
19 – he was in the military." R. at 291. Likewise, the June 2001 record
includes the appellant's
reported "history of back problems for thirty years . . . [that] started
insidiously when he was in the
military service." R. at 287. The Secretary correctly notes that there is
nothing in either medical report that indicates that the examiner attributed the appellant's current low back disability to any event in service. The Court notes that "a bare transcription of a lay history is not transformed into
'competent medical evidence' merely because the transcriber happens to be
a medical professional." LeShore v. Brown, 8 Vet.App. 406, 409 (1995).3
Indeed, the June 2001 record did not relate the
appellant's low back pain with in-service trauma, but with "probable
degenerative joint disease, as
well as degenerative disc disease . . . [and] a possibility [of] . . . a
degree of spinal cord stenosis."
R. at 289. In addition, the physician stated that he still needed to "get
a better idea of what is going
on with his back," indicating a degree of uncertainty with the diagnoses
and etiology of the
appellant's low back pain. R. at 289. Therefore, contrary to the
appellant's assertions, the Court
The pages cited are actually medical records from two separate treatments.
Pages 287-90 reflect a June 2001
low back consultation. Page 291 reflects a December 2000 physical therapy
record. While the appellant refers to the
"2000 medical report" multiple times, the Court will also consider the
June 2001 medical report as part of the appellant's
argument.
In a hearing before a Board member, the appellant was asked whether any
doctor ever told him that his back
disorder is related to service. He responded, "No, just other than what I
told them because they asked me, how did you
injure your back and then I tell them and that's about it." R. at 24-25.
3
2
6


concludes that the medical reports from December 2000 and June 2001 do
not demonstrate a nexus
between the claimed in-service injury and the current low back disability.
Finally, the appellant argues for reversal of the Board's decision because "
the only
permissible viewoftheevidenceinthis caseis a summaryaward of
serviceconnection." Appellant's
Br. at 10-11. Reversal is the appropriate remedy only in cases in which
the only permissible view
of the evidence is contrary to the Board's decision. See Gutierrez v.
Principi, 19 Vet.App. 1, 10
(2004); Johnson v. Brown, 9 Vet.App. 7, 10 (1996). In this case, the
appellant has not established
any error in the Board's decision and there are, thus, no grounds for the
Court to reverse the
Board's decision.
III. CONCLUSION
After consideration of the appellant's and the Secretary's briefs, and a
review of the record,
the Board's June 4, 2009, decision denying entitlement to service
connection is AFFIRMED.
DATED: May 26, 2011
Copies to:
Robert W. Legg, Esq.
General Counsel (027)
7