Monday, November 7, 2011

Single Judge Application, Polovick v. Shinseki, 23 Vet.App. 48, 55 (2009), ,Agent Orange Cancer

Excerpt from decision below: "The Secretary concedes that the VA opinions are inadequate in this regard. Secretary's Br. at 8. In the decision on appeal, the Board explicitly chose to assign more probative weight to three negative VA opinions because "the VA opiners have relied upon epidemiological research and statistical information in reaching their conclusions as to the cause of the Veteran's particular carcinoma." R. at 10. In fact, none of the negative VA nexus opinions provide any other rationale for concluding that Mr. Kalisch's cancer is not related to his military service. R. at 22-23, 33-34, 83-84. This is exactly the type of reasoning that was prohibited in Polovick. The studies on which VA relied to determine which diseases should be presumptively service connected did not conclude that the medical evidence is against an association between Agent Orange exposure and pharyngeal cancers. Institute of Medicine of the National Academies, Veterans and Agent Orange: Update 2008, at 515. Instead, they concluded that there was "inadequate or insufficient information to determine whether there is an association." Id. Thus, the medical opinions are inadequate under Polovick and it was clearly erroneous for the Board to rely on them in its June 8, 2010, decision." ====================================================== ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 10-2590 WILLIAM J. KALISCH, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before GREENE, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. GREENE, Judge: The appellant, William J. Kalisch, through counsel, appeals a June 8, 2010, Board of Veterans'Appeals (Board)decision that denied his claim for disabilitycompensation based on service connection for squamous cell carcinoma of the left tonsillar fossa, claimed as due to herbicide exposure. Record (R.) at 3-12. Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). This appeal is timely and the Court has jurisdiction over the case pursuant to 38 U.S.C. §§ 7252(a) and 7266. For the reasons that follow, the Court will vacate the June 8, 2010, decision denying service connection for cancer of the left tonsil and remand the matter for further proceedings consistent with this decision. I. FACTS Mr. Kalisch served in the U.S. Armyfrom February1970 to October 1971, including service in Vietnam, where he was presumptively exposed to Agent Orange. R. at 485. In November 2003, he was diagnosed with "invasive squamous cell carcinoma" of the tonsillar fossa and the posterior pharyngeal wall. R. at 244. His risk factors for this cancer included "a history of significant tobacco use" and alcohol use, and being exposed to a lot of fumes at work. R. at 239-40, 246. In February 2004, he filed a claim for disability compensation based on service connection for his cancer of the tonsil. R. at 363-74. In June 2004, VA denied the claim, noting that cancer of the tonsils "is not listed as one of the eleven conditions [presumptively] associated with herbicide exposure." R. at 325. Mr. Kalisch timely submitted a Notice of Disagreement. R. at 316-21. On June 8, 2010, after additional procedural history and development, the Board issued the decision on appeal. R. at 3-12. The Board discussed the many private and VA medical opinions of record, but chose to assign more probative weight to three Previous DocumentnegativeNext Hit VA opinions because it found that "the VA opiners have relied upon epidemiological research and statistical information in reaching their conclusions as to the cause of the Veteran's particular carcinoma." R. at 10. Accordingly, the Board denied the claim. This appeal followed. II. ANALYSIS Mr. Kalisch has explicitly stated that he is claiming service connection only on a theory of direct causation and not on a theoryof presumptive causation or aggravation. Appellant's Brief (Br.) at 13; see 38 C.F.R. § 3.309(e) (2011) (cancer of the tonsil is not a condition to which presumptive serviceconnection applies). Establishingserviceconnection generallyrequiresmedicalor,in certain circumstances, lay evidence of (1) a current disability; (2) 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); 38 C.F.R. § 3.303 (2011). A finding of service connection is a factual determination that the Court reviews for clear error. See 38 U.S.C. § 7261(a)(4); Rose v. West, 11 Vet.App. 169, 171 ( 1998). Under this standard of review, the Board's factual determination may not be reversed unless the Court, in reviewing all the evidence of record, "'is left with the definite and firm conviction that a mistake has been committed.'" Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). In applying this standard, "this Court is not permitted to substitute its judgment for that of the [Board] on issues of material fact; if there is a 'plausible' basis in the record for the factual determinations of the [Board], even if this Court might not have reached the same factual determinations, we cannot overturn them." Gilbert, 1 Vet.App. at 53. Further, in 2 rendering its decision, the Board must provide a statement of the reasons or bases for its determination, one that is "adequate to enable a claimant to understand the precise basis for the Board's decision, as well as to facilitate informed review in this Court." Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert, 1 Vet.App. at 56-57; see 38 U.S.C. § 7104(d)(1). In this case, it is undisputed that Mr. Kalisch has cancer of the tonsil and presumptive exposure to herbicides due to his service in Vietnam. R. at 7, 244; 38 C.F. R. § 3.307(a)(6)(iii). Therefore, the claim turns on whether he can establish a direct causal nexus between his cancer of the tonsil and his military service. A. Adequacy and Weight of Medical Opinions An adequate medical opinion must be "accurate and fully descriptive . . . , with emphasis upon the limitation of activity imposed by the disabling condition." 38 C. F.R. § 4.1 (2011). It must be based on an accurate factual premise and on a consideration of the veteran's prior medical history and examinations and must describe the disability in sufficient detail so that the Board's "'evaluation of the claimed disability will be a fully informed one.'" Ardison v. Brown, 6 Vet.App. 405, 407 (1994) (quoting Green v. Derwinski, 1 Vet.App. 121, 124 (1991)); see also Floyd v. Brown, 9 Vet.App. 88, 93 (1996). In addition, the medical opinion "must support its conclusions with an analysis that the Board can consider and weigh against contrary opinions." Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007); see Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 304 (2008) ("[M]ost of the probative value of a medical opinion comes from its reasoning."); see also Hicks v. Brown, 8 Vet.App. 417, 421 (1995) (inadequate medical evaluation frustrates judicial review). Although VA need not provide a medical examination in all cases, "once the Secretary undertakes the effort to provide an examination when developing a service-connection claim, . . . he must provide an adequate one." Barr v. Nicholson, 21 Vet.App. 303, 311 (2007); see also Daves v. Nicholson, 21 Vet.App. 46, 51-52 (2007). Whether a medical examination is adequate is a finding of fact that the Court reviews to determine whether it is "clearly erroneous," as defined above. See D'Aries v. Peake, 22 Vet.App. 97, 104 (2008). In this case, the record contains medical opinions from both private and VA physicians. Mr. Kalisch argues that the negative VA opinions are inadequate because they are all based exclusively on the statistical data that VA used to decide which diseases should be presumptively associated with 3 Agent Orange exposure. Appellant's Br. at 14-16 (citing Polovick v.Shinseki, 23 Vet.App. 48, 55 (2009) (direct service connection may not be denied solely on the basis of the data that supported not creating a presumption of service connection)); see also Stefl, 21 Vet. App. at 124 (medical opinion is inadequate when it does not independently consider direct service connection). The Secretary concedes that the VA opinions are inadequate in this regard. Secretary's Br. at 8. In the decision on appeal, the Board explicitly chose to assign more probative weight to three negative VA opinions because "the VA opiners have relied upon epidemiological research and statistical information in reaching their conclusions as to the cause of the Veteran's particular carcinoma." R. at 10. In fact, none of the negative VA nexus opinions provide any other rationale for concluding that Mr. Kalisch's cancer is not related to his militaryservice. R. at 22-23, 33-34, 83-84. This is exactly the type of reasoning that was prohibited in Polovick. The studies on which VA relied to determine which diseases should be presumptively service connected did not conclude that the medical evidence is against an association between Agent Orange exposure and pharyngeal cancers. Institute of Medicine of the National Academies, Veterans and Agent Orange: Update 2008, at 515. Instead, they concluded that there was "inadequate or insufficient information to determine whether there is an association." Id. Thus, the medical opinions are inadequate under Polovick and it was clearly erroneous for the Board to rely on them in its June 8, 2010, decision. Furthermore, there is no other medical nexus opinion of record that provides sufficient competent medical evidence for VA to make a decision on the claim. See 38 U.S.C. § 5103A(d)(2); McLendon v. Nicholson, 20 Vet.App. 79, 81-86 (2006); 38 C.F.R. § 3.159(c)( 4)(2011). Although Mr. Kalisch argues that the positive nexus opinion provided by Dr. Ann Marie Gordon is both adequate and sufficient to decide the claim, the Board concluded that this opinion, along with the other private opinions, "simplydiscount[ed] [Mr. Kalisch]'s other risk factors of heavysmoking and alcohol use . . . with no explanation." R. at 10. After a review of Dr. Gordon's opinion, the Court cannot conclude that this finding is clearly erroneous. Dr. Gordon noted Mr. Kalisch's significant history of smoking and drinking but then concluded, without explanation or supporting rationale, that it was "at least as likely as not that the veteran's in-service exposure to herbicides contributed to the development of his oropharyngeal cancer." R. at 106. 4 Therefore, it was clearly erroneous for the Board to find that VA had satisfied its duty to assist and such finding, under the circumstances, is prejudicial. See Shinseki v. Sanders, 129 S. Ct. 1696, 1704 (2009); see also 38 U.S.C. § 7261(b)(2) (requiring the Court to "take due account of the rule of prejudicial error"). Thus, the Court will remand the claim so that an adequate medical opinion may be obtained. On remand, the Board should also consider whether this is the type of situation in which a clarification from Dr. Gordon might be appropriate. See Savage v. Shinseki, 24 Vet.App. 259 (2011) (setting forth criteria for when the Board has a duty to return for clarification unclear or insufficient private medical examination reports, or explain why such clarification is not needed). B. Requests for Medical Opinions When gathering evidence as part of its duty to assist a veteran in developing his claim, VA is required to act in an unbiased way. Douglas v. Shinseki, 23 Vet.App. 19, 26 (2009); Austin v. Brown, 6 Vet.App. 547 (1994). However, "the fundamental inquiry . . . is not the subjective intent [when] the medical examination report was requested but, rather, [1] the objective necessity of gathering further evidence, and [2] whether it was gathered 'in an impartial, unbiased, and neutral manner.'" Douglas, 23 Vet.App. at 26 (quoting Austin, 6 Vet.App. at 552). When a claimant submits a private medical report that "is sufficiently complete to be adequate for the purpose of adjudicating [his or her] claim," that report "may be accepted without a requirement for confirmation" by a VA physician. 38 U.S.C. § 5125 (emphasis added); 38 C. F.R. § 3.326(c)(2011) (providing that such a report "may be accepted for rating a claim without further examination" (emphasis added)); see Nieves-Rodriguez, 22 Vet.App. at 302 ("VA is statutorily permitted, but not required, to accept [such a report] as sufficient to grant a claim without confirmation by a VA examination."). VA has the discretion to procure a confirmatory examination or not, but "may not order additional development for the sole purpose of obtaining evidence unfavorable to a claimant." Turk v. Peake, 21 Vet.App. 565, 568 (2008); see Mariano v. Principi, 17 Vet.App. 305, 312 (2003); Shoffner v. Principi, 16 Vet.App. 208, 213 (2002) (noting that 38 C.F.R. § 3.304(c) "gives VA the discretion to determine how much development is necessary for a determination of service connection to be made"). However, VA may not exercise that discretion in " an arbitrary and 5 capricious manner." Nieves-Rodriguez, 22 Vet.App. at 302; see Struck v. Brown, 9 Vet.App. 145, 155 (1996); see 38 U.S.C. § 7261(a)(3). Regarding the objective necessity of gathering further evidence, when the Board requested the first VA opinion, there were multiple private opinions of record but, as discussed above, none of them provided sufficient competent medical evidence with which to decide the claim. See McLendon, supra. The Board stated that it had requested the later VA opinion from an expert "[t]o reconcile the various conflicting medical opinions." R. at 9. Given that the earlier VA examiner opined against Mr. Kalisch's claim, it is not clear to the Court how requesting an additional opinion from an expert could have prejudiced the claim. Accordingly, the Court concludes that VA did not exercise its discretion in an arbitrary and capricious manner when it requested the VA medical opinions. See Nieves-Rodriguez, supra. Regarding whether the request for a medical opinion was made "in an impartial, unbiased, and neutral manner," the Board's request to the VA expert did note initially that "[a]lthough this disease is not presumptively associated with herbicide exposure, service connection maybe granted if actual causation is shown." R. at 52. However, the request then states that "VA has determined that, taking account of the available evidence and NAS['] analysis, that the credible evidence against an association between herbicide exposure and oral, nasal, and pharyngeal cancers outweighs the credible evidence for such an association, and has determined that a positive association does not exist." R. at 52. This is a misstatement of the medical evidence. As noted above, the studies on which VA relied to determine which diseases should be presumptively service connected did not conclude that the medical evidence is against an association between herbicide exposure and pharyngeal cancers but, rather, that the information was not sufficient to determine whether there should be a presumed association. This does not preclude proving a direct causal association in any given case. However, the Board's statement in the request letter to the VA expert presents the IOM studies as if they also affirmatively disprove a direct causal association. This violates the requirement that the Board gather evidence "in an impartial, unbiased, and neutral manner." See Douglas and Austin, both supra. Mr. Kalisch also argues that the Board erred when it stated: "We also accord probative weight to the contemporaneous medical records, in which the Veteran's treating physicians 6 implicated his history of heavy smoking as the likely cause of his cancer ." R. at 10 (emphasis added). Mr. Kalisch argues that this statement is clearly erroneous because none of his treating physicians have "implicated his history of heavy smoking as the likely cause of his cancer." Appellant's Br. at 12. He further argues that the inclusion of this alleged fact in the Board's October 2009 request for a medical opinion also prejudiced the VA medical examiner against his claim. Appellant's Br. at 12. In fact, although Mr. Kalisch's treating physicians refer to his history of smoking as a risk factor for cancer, none of them indicated an opinion that his smoking was a "likely cause" of his cancer. R. at 113-14, 172-74, 175-76, 177-78, 179-80, 185-87. Accordingly, after a review of the record, the Court concludes that the Board's finding that Mr. Kalisch's treatment records weigh against his claim is clearly erroneous and that its reference to this information in its request for a medical opinion added to the prejudice discussed above. On remand, the Board must reevaluate this evidence and provide an adequate statement of the reasons or bases for its findings and conclusions in this regard. It must also ensure that any new requests for medical opinions are stated "in an impartial, unbiased, and neutral manner." See Douglas and Austin, both supra. C. Reversal or Remand Reversal is the appropriate remedy when the Board's decision is clearly erroneous in light of uncontroverted evidence in the claimant's favor, whereas remand is the appropriate remedy where Board has incorrectly applied law, failed to provide adequate statement of reasons or bases for its determinations, or where record is otherwise inadequate. Tucker v. West, 11 Vet. App. 369, 374 (1998); Hicks, 8 Vet.App. at 422. Although Mr. Kalisch argues that reversal is appropriate because Dr. Gordon's private nexus opinion provides sufficient competent medical evidence to decide the claim, that opinion is not supported by an adequate rationale, as discussed above. The Secretary argues that remand is the appropriate remedy because the competent medical evidence of record is insufficient to decide the claim. Secretary's Br. at 8, 11, 19, 20. In this case, the evidence is not uncontroverted and the record does not contain an adequate medical opinion. Therefore, the appropriate remedy is to remand the claim so that VA can obtain an adequate medical opinion, either by providing a new medical examination or by contacting Dr. Gordon and asking her to clarify the relationship between Mr. Kalisch's risk factors and her 7 conclusion that his cancer is related to his military service. See Tucker and Hicks, both supra. On remand, Mr. Kalisch is free to submit additional evidence and argument, including the arguments raised in his briefs to this Court, in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order), and the Board must consider any such evidence or argument submitted. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Board shall proceed expeditiously, in accordance with 38 U.S.C. §§ 5109B, 7112 (Secretary must provide " expeditious treatment" of claims remanded by Board or Court). III. CONCLUSION After consideration of Mr. Kalisch's and the Secretary's briefs, and a review of the record, the Board's June 8, 2010, decision denying service connection for cancer of the left tonsil is VACATED and the matter is REMANDED to the Board for further proceedings consistent with this decision. DATED: November 3, 2011 Copies to: Amy F. Fletcher, Esq. VA General Counsel (027) 8