Tuesday, July 26, 2011

Single Judge Application, Court Discerns Clear Error in Board Factual Finding, 38 U.S.C. § 7261(a)(4)

Excerpt from decision below:
"The Court discerns clear error in this factual determination by the Board.
See 38 U.S.C. § 7261(a)(4) (the Court reviews findings of fact under the "
clearly erroneous" standard)."
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-0973
JOSEPH WHACK, APPELLANT,
v.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before DAVIS, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.

DAVIS, Judge: U.S. Army veteran Joseph Whack appeals through counsel from a
December
10, 2009, Board of Veterans' Appeals (Board) decision that (1) denied
entitlement to service
connection for degenerative joint disease of the cervical spine, to
include on a secondary basis; and
(2) granted an increased disability rating of 20% but no higher for Mr.
Whack's service-connected
right ankle disability.1
For the reasons set forth below, the Court will affirm in part and set
aside in
part the Board's December 2009 decision, and remand a matter for
readjudication as set forth in this
decision.
I. ANALYSIS
A. Compliance With 2006 Board Remand
Mr. Whack first argues that the Board erred in failing to ensure
compliance with a December
2006 remand order. He asserts that the examiner considered onlywhether his
cervical spine arthritis
was related to his motor vehicle accident in service and did not consider
whether it was related to
his service-connected burn injuries.
1
The Board also remanded a service-connection claim for hepatitis C. That
claim is currently not before the
Court. See Breeden v. Principi, 17 Vet.App. 475, 478 (2004).


This Court has held that "a remand by. . . the Board confers on the
veteran or other claimant,
as a matter of law, the right to compliance with the remand orders."
Stegall v. West, 11 Vet.App.
269, 271 (1998). Where "the remand orders of the Board . . . are not
complied with, the Board itself
errs in failing to insure compliance." Id. However, it is substantial
compliance, not absolute
compliance that is required. See Dyment v. West, 13 Vet.App. 141, 146-47 (
1999).
The remand orderstated that Mr. Whack should be afforded a VA examination "
todetermine
the nature and etiology of his claimed cervical spine arthritis." Record (
R.) at 179. The order
continued:
Based upon the examination results and the review of the claims folders,
the
examiner should state an opinion as to whether the veteran's cervical
arthritis is at
least as likely as not . . . related to his military service, or to any
service-connected
disability. The rationale for the opinion should be expressed.
Id.
Mr. Whack underwent the ordered VA examination in August 2009. The
examiner, nurse
practitioner Lizabeth Ann Cornwell, restated that the purpose of the
examination was to "state an
opinion as to whether the veteran's cervical arthritis is at least as
likely as not . . . related to his
military service, or to any service-connected disability." R. at 54. Ms.
Cornwell then stated that she
had reviewed private medical records, VA records, and the claims file. She
specifically referred to
one record related to Mr. Whack's service-connected burns in which "
residual tightness secondary
to burns was noted." Id. Ms. Cornwell then stated her opinion that "
cervical arthritis is less likely
as not . . . related to his military service or any service-connected
disability" and followed this with
a statement explaining the rationale for her opinion. Id.
Contrary to Mr. Whack's assertion, the examiner not only substantially
complied, but
specifically complied with the Board's December 2006 remand order. Further,
despite Mr. Whack's
allegation to the contrary, the examiner did consider evidence of the
effects of Mr. Whack's service-
connected burn injuries; this is evidenced by the examiner's reference to
a specific item from the
claims file, which she also stated she reviewed. Consequently, the Court
concludes the Board did
not fail to ensure compliance with the December 2006 remand order.
2


B. Reasons or Bases: Lay Statements
Mr. Whack next argues that the Board provided an inadequate statement of
its reasons or
bases for rejecting his lay statements regarding continuity of neck and
back pain since service. He
asserts that the Board erroneously required that his statements be
corroborated with medical
treatment evidence.
A claimant may obtain service connection by continuity of symptomatology,
which may be
established if a claimant can demonstrate (1) that a condition was "noted"
during service; (2) there
is postservice evidence of the same symptomatology; and (3) there is
medical or, in certain
circumstances, lay evidence of a nexus between the present disability and
the postservice
symptomatology. Barr v. Nicholson, 21 Vet.App. 303, 307 (2007); see also
Savage v. Gober, 10
Vet.App. 488, 495-96 (1997).
In its role as factfinder, the Board must first "determin[e] whether lay
evidence is credible
in and of itself, i.e., because of possible bias, conflicting statements,
etc." Buchanan v. Nicholson,
451 F.3d 1331, 1336-37 (Fed. Cir. 2006). "[T]he Board cannot determine
that lay evidence lacks
credibility because it is unaccompanied by contemporaneous medical
evidence." Id. at 1337.
As with all decisions, the Board is required to include a written
statement of the reasons or
bases for its findings and conclusions on all material issues of fact and
law; that statement must be
adequate to enable an appellant to understand the precise basis for the
Board's decision, and to
facilitate informed 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 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. See Caluza v. Brown, 7
Vet.App. 498, 506
(1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Gabrielson
v. Brown, 7 Vet.App. 36,
39-40 (1994); Gilbert, supra.
Here, the Board stated that "there is no record of complaints or treatment
of a neck or cervical
spine disability until many years after the Veteran's discharge." R. at 11.
The Board noted that,
while Mr. Whack may "believe that he has arthritis of the cervical spine
that is etiologically related
to his service or service-connected disability, his lay opinion concerning
this matter requiring
3


medical expertise is of no probative value." Id. That Board also
explained that the VA examiner
found "no evidence of chronicity of complaints or treatment related to the
injuryuntil about 15 years
following the Previous DocumentinjuryNext Document." Id.
Consequently, contrary to Mr. Whack's assertion, the Board determined
there was no
continuity of symptomatology not because the lay statements were not
corroborated by medical
records, but because they were not supported by statements concerning
complaints or symptoms for
many years after service. The Court discerns clear error in this factual
determination by the Board.
See 38 U.S.C. § 7261(a)(4) (the Court reviews findings of fact under the "
clearly erroneous"
standard).
C. Extraschedular Rating
Finally, Mr. Whack argues that the Board failed to address the lay
evidence indicating that
entitlement to an extraschedular rating under 38 C.F.R. § 3.321(b) may be
appropriate. He asserts
that the Board failed to consider evidence, including testimony from his
August 2006 hearing, that
his service-connected right ankle disability markedly interferes with his
employment.
The Board stated that "the manifestations of the disability are not in
excess of those
contemplated by the schedular criteria" and that "there is no indication
that the average industrial
impairment from the disabilitywould be in excess ofthosecontemplated bythe
20[%] ratinggranted
herein." R. at 15.
A20%disabilityratingis warrantedwhenlimitationofanklemotion is"marked,"
asopposed
to "moderate," which warrants a 10% disability rating. 38 C.F.R. § 4.71,
Diagnostic Code 5271
(2011). This rating criteria does not on its face explain how it
contemplates symptomatology such
as Mr. Whack's inability to stand while holding than 10 pounds (R. at 190),
drive himself to work
(R. at 189), perform any job other than door greeter at his employer (R.
at 523), and perform a job
that requires him to be on his feet (R. at 556)–and the Board did not
explain how the criteria
contemplates this symptomatology. Consequently, the Board's statement of
reasons or bases for its
determination that referral for extraschedular consideration is not
warranted is inadequate.
Therefore, remand is required for the Board to provide a more adequate
statement of its reasons or
bases concerning referral for extraschedular consideration.
4


II. CONCLUSION
On consideration of the foregoing, the Court SETS ASIDE IN PART the
Board's December 10, 2009, decision with regard to the service-connected right ankle
disability and REMANDS for readjudication the matter of referral for extraschedular consideration.
The Court AFFIRMS the Board's decision with regard to the claim for degenerative joint disease of the cervical spine, to include on a secondary basis.
In pursuing his claim on remand, Mr. Whack will be free to submit additional evidence and argument in support of his claim, and the Board is required to consider
any such evidence and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). A final decision by the Board following the remand herein ordered will constitute a new decision that, if adverse, maybe appealed to this Court upon the filing of a new Notice of Appeal with the Court not
later than 120 days after
the date on which notice of the Board's new final decision is mailed to Mr.
Cameron. See Marsh v.
West, 11 Vet.App. 468, 472 (1998).
DATED: July 22, 2011
Copies to:
Virginia A. Girard-Brady, Esq.
VA General Counsel (027)
5

Single Judge Application, Continual/Ongoing Pain, McLendon, 20 Vet.App. at 84

Excerpt from decision below:
"McLendon, 20 Vet.App. at 84 (stating that a veteran is competent to testify that he has experienced an injury and that he has endured ongoing pain, and such
"testimony can be rejected only if found to be mistaken or otherwise deemed not credible")."
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 09-4736
KENNETH L. JONES, JR., 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, Kenneth L. Jones, Jr., through counsel, appeals a September 1, 2009, Board of Veterans' Appeals (Board) decision in which the Board deniedentitlement to serviceconnection for the residuals of a right clavicle fracture. Record of Proceedings(R.) at 3-13. The Board remanded consideration of the appellant's claim of entitlement to serviceconnection for the residuals of a suboccipital craniectomy; therefore, that issue is not before theCourt. See Hampton v. Gober, 10 Vet.App. 481, 483 (1997). Both parties filed briefs. This appealis timely, and the Court has jurisdiction to review the Board's decisions 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 September1, 2009, decision.I. BACKGROUNDThe appellant served on active duty in the U.S. Armyfrom August 14, 1981, through August13, 1985. R. at 1106, 1115. At his separation examination, the appellant reported a prior history ofa right clavicle fracture. R. at 1124. The separation examination does not, however, indicate whenthe injury occurred. Id. Upon clinical evaluation, the medical examiner noted that the appellant's"upper extremities ([s]trength, range of motion)" were normal. R. at 1125. The appellant alsoreported that he was in "good health" and "not taking medications." R. at 1126.A July 1997 VA medical examination, which was provided in connection with an unrelatedclaim for entitlement to service connection for a hand disability, included an evaluation of theappellant's musculoskeletal system. R. at 1086. The examination report indicates that the appellanthad "full range of motion throughout, no crepitus[,] swelling[,] or tenderness of his joints." Id.The appellant filed a claim of entitlement to service connection for a "fractured rightcollarbone" in April 2000. R. at 1057. In a July 2000 rating decision, the regional office (RO)denied the claim because the appellant's service medical records (SMRs) were "negative fortreatment of a fractured clavicle." R. at 1044-48. The appellant filed a timely Notice ofDisagreement (R. at 1040); the RO issued a Statement of the Case (R. at 1034-39); and the appellantperfected his appeal to the Board (R. at 1008-09).In February 2002, the appellant informed the RO that he was injured in 1982 while he wasstationed at Fort Ord and requested that the RO obtain his medical records from Fort Ord. R. at 997-99. In April 2002, the RO requested the appellant's SMRs from the National Personnel RecordsCenter (NPRC), which responded that all of his SMRs had been sent to the RO in July 1997. R. at994. The RO sent additional requests in October 2003 (R. at 974) and December 2003 (R. at 971)and received negative responses to both requests (R. at 971-73). In January 2004, the RO made afinding of unavailability of additional SMRs. R. at 967-70. That same month, the RO issued a Supplemental Statement of the Case, which noted that "responses from the service department,[NPRC] were negative for any additional [SMRs]." R. at 964-66. The appellant testified at a Board hearing in May 2004 that he broke his right clavicle twicewhile he was in the military. R. at 944. He reported that the first incident occurred in December 1981 or January 1982, while he was playing football. Id. He stated that he was treated with a slingat the Silas B. Hays Army Community Hospital in Fort Ord. Id. The appellant reported that he broke his right clavicle a second time under the pressure of a rucksack while he was on a road march.Id. The appellant stated that his clavicle hurts when he raises his hand above his head. Id.The appellant's claim was remanded by the Board in September 2004 (R. at 932-40) and 2 April 2007 (R. at 488-93) for further procedural and evidentiary development, including anadditional search for the appellant's SMRs and records from the Silas B. Hays Army CommunityHospital. The Appeals Management Center received negative responses from the NPRC and the Madigan Army Medical Center(formally Silas B. Hays Army Community Hospital). R. at105, 109-16.In its September 1, 2009, decision, the Board denied the appellant's claim of entitlement toservice connection for residuals of a right clavicle fracture because the record was devoid of any"credible, competent evidence tending to show that the [v]eteran's current complaints 'may be associated' with a clavicle fracture in service." R. at 9. This appeal followed.The appellant seeks a remand for the Secretary to provide him a VA medical examinationand to "use greater efforts" to locate his SMRs relating to his right clavicle injury . Appellant's Brief(Br.) at 4-7. The appellant also argues that the Board erred (1) in finding that VA satisfied its duty to notify him of the information and evidence necessary to substantiate his claim, and (2) by failing to provide an adequate statement of reasons or bases for denying his claim. Id. at 8-9. The Secretary refutes each of these contentions and argues for affirmance. Secretary's Br. at 5-19.

II. ANALYSIS
A. Medical Nexus Examination

The Secretary has a duty to "make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit." 38 U.S.C. § 5103A(a)(1). As part of his duty, the Secretary must provide a medical examination or obtain a medical opinion "when such an examination or opinion is necessary to make a decision on the claim." 38 U.S.C.§ 5103A(d). A medical examination or opinion is considered necessary if the evidence of record(A) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and(B) indicates that the disability or symptoms may be associated with the claimant's active military, naval, or air service; but(C) does not contain sufficient medical evidence for the Secretary to make a decision on the claim.38 U.S.C. § 5103A(d)(2) (emphasis added). The subsections of 38 U.S.C. § 5103A(d)(2) articulate three different evidentiary standards. See Waters v. Shinseki, 601 F.3d 1274, 1277 (Fed. Cir. 2010)3(discussing the statute's evidentiary standards). This Court has held that the requirement that the evidence indicate that a condition "may be associated" with service establishes a "low threshold."See McLendon v. Nicholson, 20 Vet.App. 79, 83 (2006). When deciding whether an examinationis necessary, the Secretary shall consider the evidence of record, "taking into consideration all information and lay or medical evidence (including statements of the claimant)." 38 U.S.C.§ 5103A(d)(2). "The Board's ultimate conclusion that a medical examination is not necessary pursuant to section 5103A(d)(2) is reviewed under the 'arbitrary, capricious, an abuse of discretion,or otherwise not in accordance with law' standard of review." McLendon, 20 Vet.App. at 81.The Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for its 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). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence,account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of 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).The Board determined that a medical examination was not necessary because the record was "devoid of any credible, competent evidence to show that any of his current complaints may in anyway be associated with an in-service right clavicle fracture." R. at 7 (emphasis added). The appellant argues that the Board applied an incorrect evidentiary standard because its use of the word "show" instead of the word "indicates" "suggests that in order to receive a medical examination, [he]needed to somehow prove that his complaint may be in any way associated with an in-service injury." Appellant's Br. at 5 (emphasis added). This argument lacks merit. The Secretary persuasively argues that "there is no meaningful distinction between the words 'show' and 'indicate’, when used in the context of determining whether an examination is necessary." Secretary's Br. At 7-8. Indeed, in discussing VA's duty to provide a medical examination, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has similarly used the word "show" when stating that the requirement that the evidence "indicate[] that the disability or symptoms may be associated with. . . service" requires "the veteran . . . to show some casual connection between his disability and his military service." Wells v. Principi, 326 F.3d 1381, 1884 (Fed. Cir. 2003) (emphasis added). The4Court therefore concludes that the appellant has not identified any error based solely on the Board's use of "show."The appellant also argues that the Board "ignore[d] longstanding [case]law that a claimant's sworn testimony is evidence, which the Board must consider." Appellant's Br. at 5. In this regard he asserts that his lay testimony that he "broke his clavicle while on active duty"; "his clavicle hurts when he raises [his hand] above his head"; and "he has had chronic shoulder problems because he broke his shoulder" satisfies the requirement that the record indicate that his symptoms "may be associated" with service. Id. at 6. This argument is not persuasive because it wholly ignores the Board's credibility determination in this matter. That is, the Board found that "the normal findings contained in the report of his separation examination and post-service medical records belie any implicit allegations of continuity of symptomatology." R. at 9; see also R. at 8-9 (noting that July 1997, March 1988, and February 2001 records showed "full range of motion in all joints," "normal strength throughout the right upper extremity," and "normal muscular bulk, tone, and strength" in upper extremities). Hence, the Board did not ignore the appellant's lay evidence – it found him not credible. 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 McLendon, 20 Vet.App. at 83 (noting that credible evidence of continuity of symptompatology is a type of evidence that may "indicate" that a current disability "may be associated" with service); cf. Waters, 601 F.3d at 1278 (rejecting the veteran's contention that his "conclusory generalized statement that his service illness caused his presentmedical problems was enough to entitle him to a medical examination"). Because the appellant doesnot raise any argument challenging the Board's credibility finding, he has not satisfied his burden ofestablishing error. See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (holding that theappellant bears the burden of demonstrating error on appeal).Finally, the appellant argues that the Board "could not legally conclude that the evidence ofrecord does not 'indicate there may be a connection to military service', because [it] did not make afinding that 'no possibility existed that a medical examination or opinion would aid in substantiating the claim.'" Appellant's Br. at 6-7 (relying on Duenas v. Principi, 18 Vet. App. 512 (2004)). The Secretary's duty to provide a medical examination is triggered when the requirements of 38 U.S.C.5§ 5013A(d)(2) are met. Once the Board determined that the evidence failed to indicate that the appellant's disability may be associated with service, the Board was not obligated to provide further explanation. The appellant has not demonstrated that the Board's ultimate determination that a medical examination was not necessary to decide the claim is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. McLendon, 20 Vet.App. at 81.

B. The Appellant's Missing SMRs
The appellant argues that the Board erred by failing to remand the matter to the RO "to use greater efforts" to locate his SMRs relating to his clavicle injury. Appellant's Br. at 7. The appellant generally refers to established caselaw holding that VA is under a "heightened duty" to assist whena veteran's records are known to be lost or destroyed, Washington v. Nicholson, 19 Vet.App. 362,370 (2005), and that VA's duty to assist includes "advising the veteran that he could submit 'buddystatements' or other alternative sources of evidence to corroborate his claim of in-service injury."Appellant's Br. at 7 (citing Washington, 19 Vet.App. at 370-71).Obtaining relevant records on behalf of the veteran is part of the Secretary's statutory dutyto assist. 38 U.S.C. § 5103A(a)(1), (b)(1). The Secretary must pursue efforts to obtain such records until "it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile." 38 U.S.C. § 5103A(b)(3). After noting the RO's multiple attempts to obtain the appellant's SMRs, the Board concluded that any further efforts to obtain the records would be futile. R. at 7. Here, the Court finds that the appellant's blanket request that the matter be remanded for the RO to use "greater efforts" to obtain the missing records, without offering any cogent reasonwhy the Board erred in failing to order an additional search, is too terse to warrant consideration. It is well settled that an appellant must provide support for arguments raised on appeal. See Coker v. Nicholson, 19 Vet.App. 439, 442 (2006) ("The Court requires that an appellant plead with some particularity the allegation of error so that the Court is able to review and assess the validity of the appellant's arguments."), rev'd on other grounds sub nom. Coker v. Peake, 310 F. App'x 371 (Fed. Cir. 2008) (per curiam order); see also Locklear v. Nicholson, 20 Vet.App. 410, 416 (2006) (holding that the Court will not entertain underdeveloped arguments); Hilkert, supra. Moreover, even assuming the Board erred by failing to order an additional search for themissing records, the Board assumed for purposes of its decision that the appellant sustained a right 6 clavicle fracture in service. R. at 9. The Board denied the claim because there was no credible,competent evidence relating the appellant's current symptoms of a disability to the in-servicefracture. Id. Given the complete absence of any evidence establishing a nexus between the appellant's condition and the purported in-service injury , the Court finds that the appellant has not demonstrated how he is prejudiced by the missing records. See 38 U.S.C. § 7261(b)(2) (stating that the Court shall take due account of the rule of prejudicial error); see also Shinseki v. Sanders,129 S. Ct. 1696, 1704 (2009) (noting that the statute requiring this Court to "take due account ofprejudicial error [] requires the Veterans Court to apply the same kind of 'harmless error' rule thatcourts ordinarily apply in civil cases"). To the extent that the appellant argues VA should have advised him of alternative sourcesof evidence to submit, a review of the November 2004 and May 2007 letters shows that VAinformed him that "[s]tatements from persons who knew you when you were in service and knowof any disability you had while on active duty" (R. at 925) and "letters written during service, orphotographs taken during service, that relate to [the] in-service . . . right shoulder injury , may aid insubstantiating your claim" (R. at 465).

The appellant has not explained why this notice is insufficient and therefore further consideration of this argument is not warranted. See Coker, Locklear, and Hilkert, all supra. Finally, the Court acknowledges the appellant's suggestion that the Board failed to fulfill its heightened obligation to explain its findings and conclusions and to carefully consider the benefitof the doubt in cases where military records are missing. Appellant's Br. at 7. However, because the appellant does not offer any support for this argument, other than to state that "[t]he Board did not do this," the Court will not entertain it. See Coker, Locklear, and Hilkert, all supra.C. VA's Duty To Notify The appellant also argues that the Secretary failed to satisfy his duty to inform him of theinformation and evidence necessary to substantiate his claim. Appellant's Br. at 8. In particular, heasserts that the notice letters, relied on by the Board as satisfying the duty to notify, did not "inform[him] that unless he submitted medical evidence, his claim would be denied" and that "unless hesubmitted a medical opinion to show that his current complaint is associated with a right claviclefracture during service, his claim would be denied." Id. The appellant's argument is unavailing7because it misunderstands the breadth of the Secretary's obligations pursuant to his duty to notify.Under section 5103(a), VA is required to inform a claimant of (1) the information andevidence not of record that is necessary to substantiate the claim, (2) which portion of thatinformation and evidence, if any, that the claimant is expected to provide, and (3) which portion ofthat information and evidence, if any, that VA will seek to obtain. 38 U.S.C. § 5103(a). Contraryto the appellant's suggestion, VA is not required to preadjudicate the claim and detail exactly whatevidence is missing and necessary to substantiate the claim. See Locklear, 20 Vet.App. at 415; see also Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009) ("generic notice in response to the 'particular type of claim' . . . is all that is required" and need not be "veteran-specific"); Wilson v. Mansfield, 506 F.3d 1055, 1062 (Fed. Cir. 2007) ("[N]otice may be generic in the sense that itneed not identify evidence specific to the individual claimant's case. . . . [and i]t need not describe. . . VA's evaluation of the particular veteran's claim.").Here, the Board found that VA provided adequate notice in August 2003, November 2004,and May 2007 letters. R. at 6. These letters informed the appellant that in order to establish entitlement to service connection, the evidence must show (1) an injury or disease that began in or was made worse by his military service, (2) that he has a current disability, and (3) that there is "arelationship between [his] current disability and an injury , disease, or event in military service.Medical records or medical opinions usually show this relationship." R. at 929, 989; see also R. at469 (May 2007 letter stating that "[m]edical records or medical opinions are required to establishthis relationship"). The letters also informed him that VA would assist him "by providing a medicalexamination or getting a medical opinion if we decide it's necessary to make a decision on yourappeal." R. at 469, 929, 989 (emphasis added). Because generic notice is all that is required, the Court holds that the Board's determination that VA satisfied its duty to notify is not clearly erroneous. See Garrison v. Nicholson, 494 F.3d 1366, 1370 (Fed. Cir. 2007) (holding that the Boarddetermination that VA satisfied the duty to notify is a factual determination reviewed under the "clearly erroneous" standard of review).8

D. Merits Determination
The appellant's final argument is twofold. First, he argues that the Board denied his claim because the record was devoid of medical evidence establishing a link between his current symptoms and his in-service injury and that the absence of this evidence was the result of VA's failure to provide him the benefit of a VA medical examination. Appellant's Br. at 8. However, because the appellant has not demonstrated error in the Board's determination that no medical examination was necessary, this argument must fail. The appellant's second argument is that the Board failed to provide an adequate statement of reasons or bases for rejecting his lay evidence. Id. at 8-9. Here, he states that the "only reason advanced by the [Board] for rejecting [his] testimony was that the record does not establish that he had the medical training necessary to offer competent opinions on matters of medical etiology." Id.at9. However, rather than present any argument to challenge the Board's competency determination, the appellant states that "determinations as to service connection must be based on a review of the entire record, with due consideration to the policy of the Department of Veterans Affairs to administer the law under broad and liberal interpretation consistent with the facts in each individual case." Id. at 9. This statement does not support a finding of remandable error. Moreover, the Board did not reject the appellant's lay evidence solely because he does not have medical training. See R. at 9. Rather, as noted above, the Board found the appellant's testimony that he has had chronic shoulder problems because of his in-service clavicle injury not credible – a finding that the appellant has not challenged here on appeal. See McLendon, 20 Vet.App. at 84 (stating that a veteran is competent to testify that he has experienced an injury and that he has endured ongoing pain, and such "testimony can be rejected only if found to be mistaken or otherwise deemed not credible"). To the extent that the Board also found the appellant not competent regarding matters of medical etiology,the Secretary urges the Court to affirm the Board's decision because "the appellant presents no argument, and identifies no error, with the Board's competency determination." Secretary's Br. At 18; see Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) ("[W]hether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board."); see also Waters, 601 F.3d at 1278 (noting that VA "must consider lay evidence, but may give it whatever weight it concludes the evidence is entitled to receive"). On this point, the Court must agree that the 9 appellant has failed to plead with any specificity why the Board's determination was erroneous and this Court "'is not required to manufacture the appellant's argument.'" Coker, 19 Vet.App. at 442 (quoting Hernandez v.Starbuck,69 F.3d 1089, 1093 (10th Cir. 1995)). Ultimately, the Board denied the appellant's claim of entitlement to service connection because the record was devoid of any credible, competent evidence tending to show that the appellant's current complaints may be associated with service. The appellant's arguments on appeal have not demonstrated that finding to be clearly erroneous. See Dyment v. West, 13 Vet.App. 141, 144 (1999) (a finding of service connection, or lack thereof, is a finding of fact reviewed under the "clearly erroneous" standard ofreview); Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) (a finding of fact is clearly erroneous when the Court, after reviewing the entire evidence, "'is left with the definite and firm conviction that a mistake has been committed.'" (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395(1948))).

III. CONCLUSION
After consideration of the appellant's and the Secretary's pleadings, and a review of therecord, the Board's September 1, 2009, decision is AFFIRMED.
DATED: July 22, 2011
Copies to:Walter C. Spiegel, Esq.VA General Counsel (027)
10

Veterans Court Starts Addressing Reconsideration/Appeal Issues in Initial Decisions

Excerpt from decision below:
"Neither party requested oral argument or identified issues they believe require a precedential decision of the Court."
=========================

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


Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-1157
JOYCE A. STUTENKEMPER, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before HAGEL, Judge.

MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.

HAGEL, Judge: Joyce A. Stutenkemper appeals through counsel a March 12,
2010, Board of Veterans' Appeals (Board) decision denying entitlement to service
connection for the cause of her husband's death.1 Record (R.) at 3-21. The Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a) to review the March 2010 Board decision. Neither party requested oral argument or identified issues they believe require a precedential decision of the Court. Because the November 2009 VA medical opinion upon which the Board relied was adequate, and because the Board's reliance on other inadequate VA medical opinions did not constitute prejudicial error, the Court will affirm the March 12, 2010, Board decision.

I. FACTS
Mrs.Stutenkemperis thewidowofveteranJohnH.Stutenkemper,
whoservedonactiveduty
in the U.S. Army from May 1966 to April 1968, including service in Viet
Nam. In June 1998, a VA
1
The Board also denied entitlement to dependency and indemnity compensation
pursuant to 38 U.S.C. § 1318.
However, because Mrs. Stutenkemper limits her arguments to the issue of
entitlement to service connection for the cause
of her husband's death, the Court deems abandoned any appeal as to the
section 1318 claim that was the subject of the
decision on appeal. See Grivois v. Brown, 6 Vet.App. 136, 138 (1994) (
holding that issues or claims not argued on
appeal are considered abandoned).


physician, Dr. James Bell, diagnosed Mr. Stutenkemper with chronic
obstructive pulmonarydisease
and opined that "[t]obacco is 100% responsible for [his] end-stage [
chronic obstructive pulmonary
disease]."2
R. at 715. In March 1999, a VA regional office awarded Mr. Stutenkemper VA
benefits
for chronic obstructive pulmonary disease secondary to nicotine dependence
acquired in service.
Mr. Stutenkemper died in August 2003, and his death certificate listed his
cause of death as
medullary failure due to respiratory arrest due to acute bronchial asthma
due to multiple allergies.3
One month later, Mrs. Stutenkemper filed a claim for VA benefits for the
cause of her husband's
death and, in October 2003, the regional office denied her claim. Mrs.
Stutenkemper subsequently
submitted two letters from private physicians, Dr. Monte R. Kahler and Dr.
Kenneth A. Miller,
stating that "[s]moking andexposureto AgentOrange[inservice]
causedirreparable damage to [Mr.
Stutenkemper's] respiratorysystem"andthat"exposure [to Agent Orange in
service] is likelyto have
contributed to his lung disease and death." R. at 215, 265.
In May 2007, the Board sought an expert medical opinion regarding the
etiology of Mr.
Stutenkemper's chronic obstructive pulmonary disease. In September 2007, a
VA physician, Dr.
Nauman A. Chaudary, opined that it was "not possible to determine with any
degree of medical
certainty that [Mr. Stutenkemper's chronic obstructive pulmonary disease]
was causally related to
his presumed exposure to Agent Orange" and that it was "possible that [his
chronic obstructive
pulmonary disease] for which service connection was granted . . . causally
related to his decades[-
]long smoking of cigarettes." R. at 151. Based on this expert opinion, the
Board issued a November
2007 decision denying Mrs. Stutenkemper's claim.
Mrs. Stutenkemper subsequently appealed that decision to the Court and the
parties entered
into a joint motion for remand that stated that the June 1998 VA medical
opinion byDr. Bell and the
September 2007 VA medical opinion byDr. Chaudarywere inadequate because
theydid not address
whether Mr. Stutenkemper's chronic obstructive pulmonary disease was
related to his exposure to
herbicides in service. The Court granted that motion in August 2009.
2
Chronic obstructive pulmonary disease is "any disorder characterized by
persistent or recurring obstruction
of the bronchial air flow." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 538 (
31st ed. 2007) [hereinafter
DORLAND'S]..
Medullary means "pertaining to a medulla," which is the "anatomic
nomenclature for the most interior portion
of an organ or structure." DORLAND'S at 1137.
3
2


Pursuant to the agreement of the parties expressed in the joint motion
for remand, the Board
requested another expert medical opinion as to the etiology of Mr.
Stutenkemper's chronic
obstructive pulmonary disease. In November 2009, a VA physician, Dr.
Andrew Robbins, opined:
I believe that it is HIGHLY LIKELY (more than 50% likely) that [Mr.
Stutenkemper's chronic obstructive pulmonary disease] was caused by
cigarette
smoking and HIGHLY LIKELY that the Agent Orange did NOT contribute in any
medically significant way to the development of [chronic obstructive
pulmonary
disease] and the subsequent death from [chronic obstructive pulmonary
disease].
R. at 27. In support of these conclusions, Dr. Robbins cited a study that
concluded that chronic
obstructivepulmonarydiseasewasprevalentin 4%ofnon-smokersand39%
ofcontinuous smokers.
He also added that the National Academy of Sciences reviewed at least 46
studies regarding chronic
obstructive pulmonary disease and exposure to herbicides and concluded
that "'there is inadequate
or insufficient evidence of an association between exposure to the
compounds of interest and
mortalityfrom all nonmalignant respiratorydiseases or the prevalence of
wheeze or asthma, chronic
obstructive pulmonary disease, and farmer's lung.'" Id. (quoting COMMITTEE
TO
REVIEW
THE
HEALTH EFFECTS IN VIETNAM VETERANS OF EXPOSURE TO HERBICIDES, VETERANS AND
AGENT
ORANGE 566 (2009), available at http://www.nap.edu/catalog/12662.html [
hereinafter VETERANS
AND
AGENT ORANGE]).
With respect to the other medical opinions in Mr. Stutenkemper's claims
file, Dr. Robbins
concluded that the June 1998 opinion by Dr. Bell was "substantially true"
because it was "very
unlikelythat[Mr.Stutenkemper] wouldhavehadend-stage[
chronicobstructivepulmonarydisease]
at that time if he had not been a chronic smoker, and that cigarette
smoking alone can readily result
in end-stage [chronic obstructive pulmonary disease] without the addition
of any other external
factor." R. at 28. Finally, Dr. Robbins stated that private medical
opinions submitted by Mrs.
Stutenkemper that were favorable to her claim were "speculative" and "
contrary to the current
consensus" in the scientific community. Id.
In March 2010, the Board issued the decision currently on appeal, which
denied Mrs.
Stutenkemper entitlement to service connection for the cause of her
husband's death. Specifically,
the Board determined that the private medical opinions that related Mr.
Stutenkemper's chronic
obstructive pulmonarydisease to his exposure to herbicides in servicewere
of "no probative weight"
3


because the opinions were "unclear" and "speculative." R. at 14-15. The
Board then reviewed the
VA medical opinions of record, including the June 1998 opinion by Dr. Bell,
the September 2007
opinion byDr. Chaudary, and the November 2009 opinion byDr. Robbins, and
afforded them "great
probative weight" because they were "based upon a review of all evidence
of record in the claims
file at the time of the opinion" and "identifie[d] specific facts and
findings in the record that were
of import to the opinion[s], as well as medical research and literature
that supports the conclusions
reached." R. at 15.
II. ANALYSIS
On appeal, Mrs. Stutenkemper argues that the Board erred by relying on
inadequate VA
medical opinions. Specifically, she contends that the November 2009
opinion by Dr. Robbins was
inadequate because it contained "conclusions that [were] not supported
bythe clinical evidence" and
that it failed to address "whether herbicide exposure and continuous
smoking combined to make it
as likely as not that [her husband] would develop [chronic obstructive
pulmonary disease]."4
Appellant's Brief (Br.) at 7. Mrs. Stutenkemper also asserts that the June
1998 opinion by Dr. Bell
was inadequate because it contains "only data . . . and a conclusion . . .
without any reasoned
explanation connecting the conclusion with the facts." Id. at 10. Finally,
she argues that the
September 2007 opinion byDr. Chaudary was also inadequate because the
parties agreed that it was
When a veteran dies "from a service-connected disability," that veteran's
surviving spouse, children, and
parents are eligible for dependency and indemnity compensation. 38 U.S.C. §
1310(a); 38 C.F.R. § 3.5(a) (2011). A
veteran's death is considered service connected under section 1310 where a
service-connected disability "was either the
principal or a contributory cause of death." 38 C.F.R. § 3.312(a) (2011).
To constitute a contributory cause of death,
the disability must have "contributed substantially or materially" to
death, "combined to cause death," or "aided or lent
assistance to the production of death." 38 C.F.R. § 3.312(c). "For claims
received by VA after June 9, 1998, a disability
or death will not be considered service-connected on the basis that it
resulted from injuryNext Document or disease attributable to the
veteran's use of tobacco products during service." 38 C.F.R. § 3.300(a) (
2011); see also 38 U.S.C. § 1103(a). Because
VA received Mrs. Stutenkemper's claim for VA benefits for the cause of her
husband's death in September 2003, well
after the effective date of § 3.300, she must demonstrate that her
husband's chronic obstructive pulmonary disease, which
she asserts was a principal or contributory cause of his death, was
attributable to something other than his tobacco
use–e.g., his presumed exposure to herbicides in service. See Stoll v.
Nicholson, 401 F.3d 1375, 1380 (Fed. Cir. 2005)
(holding that 38 U.S.C. § 1103(a) "applies to [dependency and indemnity
compensation] claims of surviving spouses
of veterans, even if the veterans have previously established service
connection for their disabilities"); Kane v. Principi,
17 Vet.App. 97, 102 (2003) (acknowledging that a claim for dependency and
indemnity compensation is "a new claim,
regardless of the outcome of previous [regional office] decisions
regarding service connection").
4
4


inadequate in the July 2009 joint motion for remand and the Board was
therefore precluded from
subsequently relying on it.
A VA medical examination must be "thorough and contemporaneous" and
consider prior
medical examinations and treatment. Green v. Derwinski, 1 Vet.App. 121,
124 (1991). A medical
examination is adequate "where it is based upon consideration of the
veteran's prior medical history
and examinations and also describes the disability . . . 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 (1994).
Further, 38 C.F.R. § 4.2
requires that if an examination report does not contain sufficient detail, "
it is incumbent upon the
rating board to return the report as inadequate for evaluation purposes."
38 C.F.R. § 4.2 (2011); see
Bowling v. Principi, 15 Vet.App. 1, 12 (2001) (emphasizing Board's duty to
return inadequate
examination report). The Board maycommit error requiring remand when it
relies on an inadequate
medical examination. See Ardison, 6 Vet.App. at 407 (holding that an
inadequate medical
examination frustrates judicial review).
A. Dr. Robbins's November 2009 Opinion
Mrs.StutenkemperarguesthatDr.Robbins'sopinionwasinadequateforthreereasons.
First,
she contends that Dr. Robbins's conclusion that exposure to Agent Orange "
did NOT contribute in
any medically significant way" to her husband's chronic obstructive
pulmonary disease, which was
expressly based on his review of the National Academy of Sciences study, "
does not flow from the
premise" that "'there is inadequate or insufficient evidence of an
association between exposure to
[herbicides] and mortality from all nonmalignant respiratory diseases or
the prevalence of . . .
chronic obstructive pulmonary disease.'" Appellant's Br. at 7 (quoting R.
at 27). In other words,
Mrs. Stutenkemper admits that the National Academy of Sciences study "did
not establish an
association" between exposure to herbicides and chronic obstructive
pulmonary disease, but also
asserts that it "did not preclude the association and, indeed, did not
suggest that such an association
was unlikely." Id.
Mrs. Stutenkemper is correct that the National Academy of Sciences study
did not establish
or rule out a connection between exposure to herbicides and the
development of chronic obstructive
pulmonary disease. Rather, the study concluded that "[t]he available
epidemiologic studies are of
5


insufficient quality, consistency, or statistical power to permit a
conclusion regarding the presence
or absenceofanassociation."5
VETERANSAND AGENT ORANGE at 652 (emphasis added). However,
Mrs. Stutenkemper misunderstands Dr. Robbins's reliance on the study.
The Court acknowledges that Dr. Robbins'sstatementthatthestudysupportshis
opinion that
Mr. Stutenkemper's chronic obstructive pulmonary disease was not related
to exposure to Agent
Orange is misleading. However, when viewed in the context of the preceding
paragraph, it is clear
that Dr. Robbins opined that chronic cigarette smoking, which is a major
risk factor for developing
chronic obstructive pulmonarydisease, is likelythe causeof Mr.
Stutenkemper's chronic obstructive
pulmonary disease, particularly in light of the fact that no study has
ever found an association
between exposureto AgentOrangeandchronicobstructivepulmonarydisease.
Therefore,the Court
concludes that Dr. Robbins's medical opinion was not rendered inadequate
merely because he
implied that the National Academy of Sciences study concluded that there
was no evidence of an
association between exposure to Agent Orange and chronic obstructive
pulmonary disease. See
Jones v. Shinseki, 23 Vet.App. 382, 391 (2010) ("While VA has a duty to
assist the veteran by
providing a medical examination in certain situations, that duty does not
extend to requiring a VA
physician to render an opinion beyond what may reasonably be concluded
from the procurable
medical evidence.").
In addition, the Court notes that Mrs. Stutenkemper offers no evidence of
a connection
between exposure to herbicides and chronic obstructive pulmonary disease.
Rather, she merely
attacks Dr. Robbins's medical opinion for failing to discuss such evidence,
which the National
Academy of Sciences study concluded did not exist. The Court reminds Mrs.
Stutenkemper that "a
claimant has the responsibility to present and support a claim for
benefits," and her failure to submit
evidenceofaconnection betweenMr.Stutenkemper'sserviceandhis
chronicobstructivepulmonary
The Court notes that the record of proceedings does not contain the
National Academy of Sciences study and
that, despite her reliance on it, Mrs. Stutenkemper did not append it to
her brief. However, Dr. Robbins cited and quoted
the study in his medical opinion and provided a web address where it could
be accessed. Generally, the Court is
precluded by statute from considering any material that was not contained
in the record of proceedings before the
Secretary and the Board. 38 U.S.C. § 7252(b); Rogozinski v. Derwinski, 1
Vet.App. 19, 20 (1990). However, the Court
may take judicial notice of the National Academy of Sciences study to the
extent that it is being used to acknowledge
undebatable historic facts–i.e., quoting, but not interpreting, the
conclusions drawn from the study. See Smith v.
Derwinski, 1 Vet.App. 235, 238 (1991) ("Courts may take judicial notice of
facts not subject to reasonable dispute."
(citing FED. R. EVID. 201(b))); see also Brannon v. Derwinski, 1 Vet.App
314, 316-17 (1991).
5
6


disease is fatal to her argument that Dr. Robbins's opinion was
inadequate in this regard. 38 U.S.C.
§ 5107(a); see also Jones, 23 Vet.App. at 391 ("Notwithstanding the duty
to assist, it remains the
claimant's responsibility to submit evidence to support his claim."); Wood
v. Derwinski, 1 Vet.App.
190, 193 (1991) ("The duty to assist is not always a one-way street.").
Second, Mrs. Stutenkemper asserts that Dr. Robbins's opinion was
inadequate because he
relied on another study concluding that 39% of continuous smokers
developed chronic obstructive
pulmonary disease, but ignored the inverse of this conclusion: that 61% of
continuous smokers did
not develop chronic obstructive pulmonary disease. In other words, Mrs.
Stutenkemper argues that
Dr. Robbins's reliance on this study was erroneous because it "places the
odds against a finding that
[Mr. Stutenkemper] developed [chronic obstructive pulmonary disease] from
smoking alone."
Appellant's Br. at 8 (emphasis in original). However, the Court discerns
no error in Dr. Robbins's
statement that chronic obstructive pulmonary disease "is a very common
result of smoking" as
demonstrated by a scientific study showing significantly higher rates of
occurrence of chronic
obstructive pulmonary disease in smokers than in non-smokers and his
conclusion, based on this
evidence, that Mr. Stutenkemper's chronic obstructive pulmonary disease
was likely caused by his
"long history of cigarette smoking." R. at 27. Therefore, the Court
concludes that Dr. Robbins's
medical opinion was not inadequate in this regard. See Stefl, 21 Vet.App.
at 123.
Third,Mrs.StutenkempercontendsthatDr.Robbins'sopinion wasinadequatebecause"
none
of the clinical studies or research upon which he relied correlated
herbicide exposure with
continuous smoking to ascertain the likelihood of the combined assaults in
developing [chronic
obstructive pulmonary disease]." Appellant's Br. at 8. However, she does
not point to any medical
study that has addressed that particular question and, as described above,
failed to demonstrate that
Dr. Robbins's opinion is inadequate for any other reason. A medical
examiner is not required to
exceed the limits of current medical knowledge, and the Court will not, as
Mrs. Stutenkemper seems
to suggest, commission VA to conduct such a study. See Jones, 23 Vet.App.
at 390. Consequently,
the Court concludes that Mrs. Stutenkemper has failed to carry her burden
of demonstrating error
in that regard. See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (holding
that appellant has the
burden of demonstrating error), aff'd, 232 F.3d 908 (Fed. Cir. 2000) (
table).
7


B. Dr. Bell's June 1998 and Dr. Chaudary's September 2007 Opinions
Mrs. Stutenkemper next argues that the September 2007 VA medical opinion
by Dr.
Chaudarywas inadequate because the parties agreed in a July 2009 joint
motion for remand that was
adopted bythe Court that it wasinadequate for ratingpurposes. Although Mrs.
Stutenkemper argues
only that Dr. Chaudary's opinion was inadequate for this reason, the Court
notes that the parties
agreed in the motion that Dr. Bell's and Dr. Chaudary's opinions were
inadequate. Specifically, the
joint motion for remand stated:
The parties agree that VA erred when it did not provide John Stutenkemper
. . . with
an adequate medical examination and did not provide Joyce Stutenkemper
. . . with
an adequate medical opinion that addressed whether [Mr. Stutenkemper's
chronic
obstructive pulmonary disease] was related to his presumed exposure to
Agent
Orange during service. . . Neither the June 1998 VA medical examination [
by Dr.
Bell] nor the September 2007 VA medical opinion [by Dr. Chaudary]
addressed
whether [Mr. Stutenkemper's chronic obstructive pulmonary disease] was
related to
his presumed exposure to Agent Orange during service.
R. at 54. Consequently, the Court will consider whether the foregoing
language in the July 2009
joint motion for remand precluded the Board from later relying on both Dr.
Bell's and Dr. Chaudary's
medical opinions.
A remand by the Court "confers on the veteran or other claimant, as a
matter of law, the right
to compliance with the remand orders," and "the Board itself errs in
failing to insure compliance"
with a Court remand. Stegall v. West, 11 Vet.App. 268, 271. Further,
absent a specific Court order,
the terms of a joint motion for remand are similarly enforceable. Forcier
v. Nicholson, 19 Vet.App.
414, 425-26 (2006). On August 3, 2009, the Court granted the parties'
joint motion for remand and
specifically incorporated its substance into the Court's remand order,
including the findings that Dr.
Bell's and Dr. Chaudary's medical opinions were inadequate and the
instructions to obtain a new VA
medical examination to determine whether Mr. Stutenkemper's chronic
obstructive pulmonary
disease was related to his presumed in-service exposure to Agent Orange in
the absence of an
adequatemedicalopinion addressingthatquestion. SeeStutenkemperv.Shinseki,
No.08-0696(Vet.
App. Aug. 3, 2009) (unpublished order).
Despite this conceded fact, in the decision currently on appeal, the Board
explicitly
"afford[ed] great probative weight" to Dr. Bell's and Dr. Chaudary's
medical opinions, along with
8


Dr. Robbins's medical opinion, and impermissibly relied on those two
inadequate medical opinions
to deny Mrs. Stutenkemper's claim for benefits for the cause of her
husband's death. R. at 15.
Accordingly, the Court concludes that the Board erred in relying on the
June 1998 opinion by Dr.
Bell and the September 2007 opinion by Dr. Chaudary, which the parties
agreed were inadequate in
the joint motion for remand that was incorporated into the Court's remand
order.6
See Ardison,
6 Vet.App. at 407.
C. Prejudicial Error
The Court's analysis does not end with the determination that the Board
committed error;
rather,theCourt isrequiredbystatuteto
considerwhethersucherrorprejudicedtheclaimant'sclaim.
38 U.S.C. § 7261(b)(2) (requiring the Court to "take due account of the
rule of prejudicial error");
Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004). The Court
concludes that the Board's
reliance on the inadequate medical opinions by Dr. Bell and Dr. Chaudary
was harmless error.
As stated above, for Mrs. Stutenkemper to prevail on her claim for
benefits for the cause of
her husband's death, she was required to demonstrate that her husband's
chronic obstructive
pulmonary disease was attributable to his presumed in-service exposure to
herbicides. See n.4,
above. The evidence Mrs. Stutenkemper submitted for this purpose included
two private medical
opinions; her own laystatements and the laystatements of friends and
relatives; and the VA medical
opinions of Drs. Bell, Chaudary, and Robbins.
With respect to the evidence favorable to Mrs. Stutenkemper's claim, the
Board considered
the private medical opinions, but accordedthem "no probative weight"
because theycontained "only
data and conclusions" and were "speculative." R. at 14-15. Mrs.
Stutenkemper does not assert that
the Board's evaluation of the weight to be assigned to the private medical
opinions was clearly
erroneous, and the Court will not conclude otherwise. See 38 U.S.C. §
7261(a)(4); Washington v.
Nicholson, 19 Vet.App. 362, 369 (2006) (holding that it is the Board's
responsibility to determine
the appropriate weight to be given to evidence); Wood, 1 Vet.App. at 193;
Gilbert v. Derwinski,
1 Vet.App.49, 52 (1990). The Board also considered the laystatements made
byMrs. Stutenkemper
6
Although Mrs. Stutenkemper also argues that the June 1998 opinion by Dr.
Bell is inadequate because it
contains "only data . . . and a conclusion . . . without any reasoned
explanation connecting the conclusion with the facts,"
Appellant's Br. at 10, the Court need not address this argument because it
concluded that Dr. Bell's medical opinion is
inadequate on other grounds.
9


and her friends and relatives, "the only [other] evidence of record that [
Mr. Stutenkemper]'s cause
of death was related to his service in any way other than through his
nicotine dependence." R. at 17.
The Board rejected those laystatements because it found that Mrs.
Stutenkemper and her friends and
relatives, as laypeople, did not possess the requisite "specialized
medical knowledge, training, or
experience" to provide a competent opinion as to a connection between Mr.
Stutenkemper's
presumed in-service exposure to Agent Orange and his chronic obstructive
pulmonary disease. Id.
Again, Mrs. Stutenkemper does not challenge this determination, and the
Court will not disturb it.
See Hilkert, 12 Vet.App. at 151.
The Board then considered the evidence against Mrs. Stutenkemper's claim,
including Dr.
Bell's June 1998 medical opinion, Dr. Chaudary's September 2007 medical
opinion, and Dr.
Robbins's November 2009 medical opinion. The Board "afford[ed] them great
probative weight"
because they were "based upon a review of all evidence of record in the
claims file at the time of the
opinion" and "identifie[d] specific facts and findings in the record that
were of import to the
opinion[s], as well as medical research and literature that supports the
conclusions reached." R. at
15. As explained in Part II.B, above, the Board erred in relying on Dr.
Bell's and Dr. Chaudary's
opinions because they were inadequate. See Ardison, 6 Vet.App. at 407.
However, as the Court
concluded in Part II.A, above, Dr. Robbins's opinion was adequate and,
therefore, the Board did not
err in relying on it. Thus, Dr. Robbins's opinion was the only probative
evidence of record on the
issue of whether Mr. Stutenkemper's chronic obstructive pulmonary disease
was related to his
presumed in-service exposure to herbicides, and the Board determined that
Dr. Robbins's opinion
was against Mrs. Stutenkemper's claim. Therefore, even though the Board
erred in relying on the
inadequate medical opinions of Dr. Bell and Dr. Chaudary, that error was
harmless because the only
remaining probative evidence was against her claim. See 38 U.S.C. § 7261(
b)(2); Conway, 353 F.3d
at 1374.
10


III. CONCLUSION
Upon consideration of the foregoing, the March 12, 2010, Board decision is
AFFIRMED.
DATED: July 12, 2011
Copies to:
Todd M. Wesche, Esq.
VA General Counsel (027)
11