Tuesday, September 20, 2011

Single Judge Application, Medical Conclusions Must be Cited, Kahana v. Shinseki, 24 Vet.App. 428, 434 (2011), Uncontroverted, DeLaRosa, 515 F.3d at 1320

Excerpt from decision below: "In support of his argument, the Secretary cites Dorland's Illustrated Medical Dictionary, a medical reference publication often used by the Court to take judicial notice of medical facts, for the proposition that the tonsils are part of the pharynx, and thus distinct from the larynx. The Secretary, by stating a medical conclusion and supporting it with a citation to authority, has illustrated exactly the kind of citation to a medical reference material that was lacking from the Board's decision. That said, the Court does not find that the distinction the Secretary is attempting to draw between the Board making a medical determination and stating medical facts persuasively counters the appellant's argument. The medical facts stated by the Board (its anatomical findings) led to a medical determination that the veteran's cancer was not a respiratory cancer for statutory purposes. R. at 11. That determination must be supported by citations to proper medical authority. See Kahana, 24 Vet.App. at 235 (holding that, even if the Board is merely drawing an inference from evidence, if that "inference results in a medical determination, the basis for that inference must be independent 4 and it must be cited.")." ============================= ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 10-0680 GINGER C. MARTINA, 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, Ginger C. Martina, appeals through counsel a December 30, 2009, Board of Veterans' Appeals (Board) decision that denied her entitlement to dependency and indemnity compensation (DIC) pursuant to 38 U.S.C. § 1318 and entitlement to DIC based on service connection for the cause of the death of her husband, a veteran. Record of Proceedings (R.) at 3-15. The appellant does not challenge the Board's disposition of her DIC claim based on section 1318. The Court will therefore consider that claim abandoned on appeal. See Ford v. Gober, 10 Vet.App. 531, 535 (1997) (holding that claims not argued on appeal are deemed abandoned); Bucklinger v. Brown, 5 Vet.App. 435 (1993). This appeal is timely, and the Court has jurisdiction to review the Board's decision pursuant to 38 U.S.C. §§ 7252(a) and 7266( a). Single-judge disposition is appropriate. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 ( 1990). For the following reasons, the Court will vacate the Board's decision and remand the matter for further proceedings consistent with this opinion. I. BACKGROUND The veteran, James Russell Martina, served on active duty in the U.S. Marine Corps from July 1967 until July 1971, including a period of service in Vietnam that exposed him to combat. R. at 189, 323. An August 2004 treatment note indicates that the veteran developed a mass on his left tonsil and was diagnosed with squamous cell carcinoma. R. at 117. By October 2005, the veteran had developed nodules in his lungs, liver, and pancreas "highly suspect for metastatic cancer." R. at 133. The veteran died on October 16, 2005. R. at 191. His cause of death was listed as carcinoma of the tongue with metastasis.1 Id. In November 2005, the appellant filed a claim for DIC. R. at 184-88. In January 2006, the VA regional office denied the appellant service connection for the death of the veteran and entitlement to DIC. R. at 113-15. In December 2006, the appellant appealed to the Board. R. at 29. The Board, in its December 30, 2009, decision here on appeal, denied the appellant entitlement to service connection for the cause of the veteran's death. The Board determined that there is no direct link between the veteran's cause of death and his service. R. at 12. The Board also considered whether the veteran's cause of death warranted presumptive service connection. The Board noted that, based upon his service in Vietnam, the veteran is presumed to have been exposed to herbicides. R. at 11. The Board additionally noted that respiratory cancers are presumed to be related to herbicide exposure. Id. However, the Board found that the veteran's tonsil (or tongue) cancer did not fit within the category of respiratory cancer, and thus could not be presumed to be related to his herbicide exposure. R. at 11-12. Finally, the Board found that VA satisfied its duty to assist despite not providing the appellant a medical opinion. R. at 8. The Board determined that a medical opinion was not necessary because there was no indication that the veteran's cause of death was related to an in-service disease or injury. Id. The appellant makes two arguments. The appellant disputes the Board's determination that While the cause of death listed on the veteran's death certificate is carcinoma of the tongue, his treatment records indicate that he actually suffered from cancer of the tonsil. R. at 117-18, 133. The Board noted the discrepancy, and addressed both potential causes of death in its decision. R. at 11. 2 1 VA fulfilled its duty to assist despite not requesting a medical opinion. 2 Appellant's Brief (Br.) at 7-13. The appellant also argues that the Board provided an inadequate statement of reasons or bases for its determination that the veteran's cancer is not a form of respiratory cancer. Id. at 14-17. II. ANALYSIS A. Reasons or Bases When deciding a matter, the Board must include in its decision a written statement of the reasons or bases for its findings and conclusions, adequate to enable an appellant to understand the precise basis for the Board's decision as well as to facilitate review in this Court. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57(1990). To comply with this requirement,the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of anymaterial evidence favorable to the claimant. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995); Gilbert, 1 Vet.App. at 57. The Board acknowledged that the veteran, because of his service in Vietnam, is presumed to have been exposed to herbicides during his service, and that certain diseases, like respiratory cancer, are presumed to be related to herbicide exposure. R. at 11 (citing 38 U.S.C. § 1116, 1116(a)(2)(F)). The Board, stated, however, that [t]he appellant and her representative argue that the [v]eteran's malignant neoplasm of the tonsil (and/or tongue cancer) fits within the category of respiratory cancers – specifically cancer of the larynx – that are presumed by law to be related to herbicide exposure. Unfortunately, the Board cannot agree because the larynx, commonly called the voice box, is anatomically distinct from the tonsils. The tonsils constitute part of the pharynx, and cancer of the pharynx has not been included among the respiratory cancers presumed to be related to herbicide exposure. Therefore, even though the [v]eteran is presumed to have been exposed to herbicide in Vietnam, his malignant neoplasm of the tonsil (or tongue) is not presumed to be related to herbicide exposure because it is not listed among the diseases recognized by law as being presumptively related to such exposure. R. at 11-12. 2 The appellant also argues that the Board's statement of reasons or bases is inadequate on this point. Appellant's Br. at 15-16; Reply Br. at 6. 3 According to statutory language, presumptive service connection is available for veterans who were exposed to herbicides while serving in Vietnam that result in "[r] espiratory cancers(cancer of the lung, bronchus, larynx, or trachea) becoming manifest to a degree of disability of 10 percent or more." 38 U.S.C. § 1116(a)(2)(F). The appellant argues that the Board, in engaging in such a discussion, " impermissibly relied upon its own unsubstantiated medical opinion" in determining that the veteran's cancer was not a type of respiratory cancer. Appellant's Br. at 16-17. The Court agrees. The Board is required to "consider only independent medical evidence to support [its] findings rather than provide [its] own medical judgment in the guise of a Board opinion." Colvin v. Derwinski, 1 Vet.App. 171, 172 (1991); see also Kahana v. Shinseki, 24 Vet.App. 428, 434 (2011). The Board makes the medical findings that the veteran's cancer constitutes a cancer of the pharynx, and that the pharynx is anatomically distinct from the larynx, without supporting its decision with any citation to medical authority. Thus, the Board has violated the Court's holdings in Colvin and Kahana by rendering an unsupported medical opinion. The Secretary argues that the Board was "not actually drawing a medical conclusion as [a]ppellant would have the Court believe,"but was instead merely recording" the undisputed fact that the larynx is the organ of voice . . . and that the tonsils are part of the pharynx." Secretary's Br. at 12. In support of his argument, the Secretary cites Dorland's Illustrated Medical Dictionary, a medical reference publication often used by the Court to take judicial notice of medical facts, for the proposition that the tonsils are part of the pharynx, and thus distinct from the larynx. The Secretary, by stating a medical conclusion and supporting it with a citation to authority, has illustrated exactly the kind of citation to a medical reference material that was lacking from the Board's decision. That said, the Court does not find that the distinction the Secretary is attempting to draw between the Board making a medical determination and stating medical facts persuasively counters the appellant's argument. The medical facts stated by the Board (its anatomical findings) led to a medical determination that the veteran's cancer was not a respiratory cancer for statutory purposes. R. at 11. That determination must be supported by citations to proper medical authority. See Kahana, 24 Vet.App. at 235 (holding that, even if the Board is merely drawing an inference from evidence, if that "inference results in a medical determination, the basis for that inference must be independent 4 and it must be cited."). Because the Board failed to appropriately support its medical determinations with citation to independent medical authority, its statement of reasons or bases concerning whether the veteran's cancer can be classified as a respiratory cancer under 38 U.S.C. § 1116(a)(2)(F) is inadequate. See 38 U.S.C. § 7104(d)(1); Allday, Caluza, and Gilbert, all supra. Therefore, the Court will vacate the Board's decision regarding whether the veteran's cancer was a respiratory cancer under the statute and remand the matter for further proceedings consistent with this decision. B. Duty To Assist Generally, the Secretary's duty to assist regarding his duty to supply a medical examination or opinion for compensation claims is governed by 38 U.S.C. § 5103A(d). Under section 5103A(d)(1), the Secretary is required to provide a medical examination or otherwise obtain a medical opinion when "such an examination or opinion is necessary to make a decision on the claim." Such an examination or opinion is necessary if the evidence of record "contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability" and "indicates that the disability or symptoms may be associated with the claimant's active military, naval, or air service," but "does not contain sufficient medical evidence for the Secretary to make a decision on the claim." 38 U.S.C. § 5103A(d)(2)(A),(B), and (C). The Board applied these provisions and found that obtaining a medical opinion is not necessary in this case. R. at 8. However, the appellant argues, and the Secretary concedes, that because this case is a claim for DIC, the Board should not have applied section 5103A(d) in determining whether a medical opinion is necessary. Appellant's Br. at 7- 10; Secretary's Br. at 5. The parties are correct, and the Board's application of section 5103A(d) was error. See DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008) (acknowledging that the plain language of section 5103A(d) specifically limits it to "claims for disability compensation," and thus it does not apply to DIC claims). Instead, the Board should have applied the more general duty- to-assist provisions found in section 5103A(a)(1), (2), and (3), which require the Secretary to assist a claimant unless "no reasonable possibility exists that such assistance would aid in substantiating the claim." See id; Wood v. Peake, 520 F.3d 1345, 1347 (Fed. Cir. 2008). Though the parties agree that the Board applied the incorrect statute in making its duty-to- 5 assist findings, they disagree on whether the Board's error was prejudicial. Appellant's Br. at 10-13; Secretary's Br. at 5-10; Reply Br. at 3-6. Therefore, the ultimate disposition of this issue will rest on the Court's determination of whether the Board's error was harmless. 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 parties' dispute over whether the Board's error was prejudicial rests almost entirely on resolution of the parties' competing interpretations of the U.S. Court of Appeals for the Federal Circuit's holdings in DeLaRosa and Wood, both supra. The Federal Circuit decided DeLaRosa first. The case concerned a veteran who committed suicide. The appellant, the veteran's former spouse, argued that his death resulted from service-connected post-traumatic stress disorder (PTSD). DeLaRosa, 515 F.3d at 1320. The Federal Circuit held that 38 U.S.C. § 5103A(a) should have been applied by this Court and the Board to determine whether VA's duty to assist required it to provide a medical examination, and further explained that the statute "does not always require the Secretary to assist the claimant in obtaining a medical opinion or examination . . . . [Rather,] the Secretary needs only to make reasonable efforts to assist a claimant in obtaining a medical opinion when such opinion is necessary to substantiate the claimant's claim for a benefit." Id. at 1322(internal quotation marks removed). The Federal Circuit concluded: In light of the Board's finding that the even more restrictive § 5103A(d) did not require the Secretary to provide a medical opinion and our holding that § 5103A(a) does not always require the Secretary to obtain a medical opinion, we conclude that the Veterans Court's application of § 5103A(d) [instead of §5103A(a)] was harmless error. Id. Less than two months later, the Federal Circuit, in Wood, clarified DeLaRosa. Decades before his death, the veteran in Wood suffered a head injury which, in his autopsy report, was listed as one of 18 factors contributing to his death. Wood, 520 F.3d at 1346-47. The head injury was not, however, included as a contributing factor on his death certificate. Id. The Federal Circuit made a number of statements explaining VA's duty to assist in DIC cases. First, the Federal Circuit clarified its holding in DeLaRosa by stating: 6 We have recently held that § 5103A(a) "does not always require the Secretary to assist the claimant in obtaining a medical opinion or examination." But § 5103A(a) does require the VA to assist a claimant in obtaining a medical opinion or examination whenever such an opinion is "necessary to substantiate the claimant's claim." In fact, the statute only excuses the VA from making reasonable efforts to provide such assistanc, if requested,when"no reasonable possibility exists that such assistance would aid in substantiating the claim." Thus, the Veterans Court erred by not assessing whether the free medical opinion requested by Mrs. Wood was "necessary to substantiate [her] claim," or whether "no reasonable possibility exists" that the medical opinion requested by Mrs. Wood "would aid in substantiating her claim," under § 5103A(a). Id. at 1347-48. The Federal Circuit stated that it found the error in DeLaRosa harmless because "the record contained no competent evidence whatsoever of the [PTSD] that the veteran's spouse alleged was service-connected." Id. at 1349. Explaining itself further, the Federal Circuit emphasized that § 5103A(a) and § 5103A(d) "apply wholly different and unrelated requirements" and, as such, "misapplying § 5103A(d) rather than applying § 5103A(a) [is not] per se harmless error because subsection (d) is more 'favorable' to claimants as a matter of law." Id. Finally, the Federal Circuit noted: The brief and unexplained statement in DeLaRosa that § 5103A(d) is "even more restrictive" than § 5103A(a) cannot reasonably be read as a broad holding that failing to meet all of the requirements of subsection (d) automatically means the very different requirements of subsection (a) are not met, regardless of the facts. Rather, our opinion in DeLaRosa carefully and expressly tied its holding to the uncontroverted facts of the case. . . . [W]e could only affirm on the basis of harmless error in DeLaRosa because the relevant facts were uncontroverted. Id. at 1350. The Federal Circuit refused to find harmless error in Wood because "the evidence is split and thus the medical facts are genuinely disputed." Id. The Secretary attempts to equate this case to DeLaRosa, arguing that, just as there was no favorable evidence in DeLaRosa, there is no evidence in this case of any link between the veteran's herbicide exposure and his cause of death. Secretary's Br. at 9-10. However, as the Federal Circuit repeatedly noted in Wood, the sole reason it found that the error in DeLaRosa was harmless was because the facts of that case were "uncontroverted." 520 F.3d at 1350. Here, as in Wood, the question is much more in doubt. There is no dispute that the veteran died from cancer of either his 7 tongue or tonsil, and that, because he served in Vietnam, he is presumed to have been exposed to herbicide. As the Secretary accurately states, however, the key factual finding for the Board is whether the veteran's confirmed diagnosis of tongue or tonsil cancer was related to his service. Because this factual finding is still in question, the evidence in this case is not uncontroverted, and therefore the Court will follow the Federal Circuit's lead and decline to find the Board's error harmless. Moreover, the appellant can attempt to demonstrate that the veteran's cancer was related to exposure to herbicide on a direct basis. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994) ("[T]he presumptive service connection procedure . . . does not foreclose proof of direct service connection."). Thus, the Court finds that the Board's error in this case was prejudicial, and remand is warranted. See 38 U.S.C. § 7261(b)(2); Sanders, supra. On remand, the Board should apply 38 U.S.C. § 5103A(a) to determine whether VA fulfilled its duty to assist in this case. As the Federal Circuit noted in Wood, this requires the Board to determine whether a medical opinion or examination is necessary to substantiate the appellant's claim. 520 F.3d at 1347-48. Finally, on remand, the appellant is free to submit additional evidence and argument on the remanded matters, and the Board is required to consider any such relevant evidence and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002) (stating that, on remand, the Board must consider additionalevidenceandargumentin assessingentitlementto benefit sought); Kutscherouskyv.West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). The Court has held that "[a] remand is meant to entail a critical examination of the justification for the decision." Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991). The Board must proceed expeditiously, in accordance with 38 U.S.C. §7112(requiring Secretary to provide for "expeditious treatment" of claims remanded by the Court). III. CONCLUSION After consideration of the appellant's and Secretary's pleadings, and a review of the record, the Board's December 30, 2009, decision is VACATED and the matter is REMANDED to the Board for further proceedings consistent with this decision. DATED: September 13, 2011 8 Copies to: Sean A. Ravin, Esq. VA General Counsel (027) 9