Single Judge Application, Rucker v. Brown, 10 Vet.App. 67, 73 (1997); Recourse to the Federal Rules of Evidence

Excerpt from decision below: "With regard to his inadequate-reasons-or-bases argument, Mr. Larson contends that the Board inadequately explained (what he views as) its impermissible discounting of (1) lay statements, (2) VA medical records, and (3) three favorable medical opinions. As to the lay statements, however, the Board acknowledged them, noted that they contained inconsistencies as to the onset of Mr. Larson's dizziness, and assigned more probative value to those statements made to doctors and less value to those made to the Secretary in furtherance of his claim for benefits. See R. at 12 (Board noting that the Federal Rules of Evidence generally finds statements made to physicians for the purposes of diagnosis or treatment "exceptionally trustworthy" and citing Rucker v. Brown, 10 Vet.App. 67, 73 (1997) ("[R]ecourse to the [Federal] Rules [of Evidence] is appropriate where they will assist in the articulation of the Board's reasons."))." =========================== Skip navigation U.S. Court of Appeals for Veterans Claims View | Download | Details Previous document | Next document . 11-454 LarsonDH_11-454.pdf Search Terms: SAVAGE CreationDate: 03/21/2012 15:00:30 Creator: PrintServer150 ModDate: 03/29/2012 15:47:36 Producer: Corel PDF Engine Version 15.0.0.512 Title: X_XMPMETA_DC_TITLE: Times New Roman X_XMPMETA_XMPRIGHTS_MARKED: True ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS No. 11-454 DALE H. LARSON, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before KASOLD, Chief Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. KASOLD, Chief Judge: Veteran Dale H. Larson appeals through counsel that part of a January14, 2011, decision of the Board of Veterans' Appeals (Board) that denied Mr. Larson's claim for benefits for Meniere's disease and vertigo because they were not service connected. Mr. Larson argues that the Board (1) relied on an inadequate June 2010 medical report , (2) should have remanded his claim forclarificationoftwomedicalreports, (3) provided inadequate reasons or bases for its determinations, and (4) clearly erred in denying benefits. The Secretary disputes these arguments. Single-judge disposition is appropriate. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons stated below, that part of the Board decision on appeal will be affirmed. In support of his argument that the June 2010 report was inadequate, Mr. Larson contends that the report does not explain and distinguish its nexus opinion from that provided in the record lay testimony and other medical reports. However, there is no requirement that a report address all laytestimonyor other medical reports in the record. See Roberson v. Shinseki, 22 Vet.App. 358, 367 (2009) ("A medical examiner need not discuss all evidence favorable to an appellant's claim when rendering an opinion."). There also is no requirement that a medical professional contrast his opinion with that of another medical professional to be deemed adequate. Rather, "[a]n opinion is adequatewhereit is baseduponconsideration oftheveteran's priormedicalhistoryandexaminations and also describes the disability in sufficient detail so that the Board's 'evaluation of the claimed disability will be a fully informed one.'" D’Aries v. Peake, 22 Vet.App. 97, 104 (2008) (quoting Green v. Derwinski, 1 Vet.App. 121, 124 (1991)). It is the Board's duty to determine the adequacy of a medical opinion and weigh it against the other record evidence. See Gabrielson v. Brown, 7 Vet.App. 36, 40 (1994) (noting that a medical opinion is "onlythat, an opinion," and that the Board is ultimately required to address favorable evidence and provide reasons or bases for its findings). Here, the June 2010 medical report reflects that the medical professional reviewed the entire file, including "audio testing, ENG, physician reports, C&P evaluations, [ and] personal statements from the patient and his family." Record (R.) at 38. The medical professional also provided a nexus opinion based on her medical judgment and provided rationale to support her conclusion. Mr. Larson fails to demonstrate that (1) the medical professional did not consider the lay evidence and medical records in the file, (2) the file reviewed was incomplete such that some records were not considered, or (3)themedicalprofessional otherwiseignored relevant evidence. See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (holding that appellant bears burden of demonstrating error on appeal); see also Rizzo v. Shinseki, 580 F.3d 1288, 1291 (Fed. Cir. 2009) (holding that a VA medical professional is presumed competent to discharge his or her official duties in the absence of evidence to the contrary); D'Aries, supra. Also in support of his argument that the June 2010 report was inadequate, Mr. Larson presents three additional contentions of error. First, he contends that the June 2010 medical report failed to address whether Mr. Larson's vertigo was related to service. Although the report does not explicitly state that Mr. Larson's vertigo was not related to service, the report reflects that (1) Meniere's disease is characterized by vertigo, hearing loss, tinnitus, and other symptoms, (2) Mr. Larson's hearing loss and tinnitus are disabilities independent from his Meniere's disease and could be related back to service, (3) vertigo was first reported in 1995, and (4) Mr. Larson's Meniere's disease is not related to service. Read as a whole, it is not clearly erroneous to read the report as support for finding that Mr. Larson's vertigo is not related to service, given that vertigo was first reported 30 years after service and particularly in contrast to the medical professional's opinion that (1) hearing loss and tinnitus were disabilities deemed independent from his Meniere's disease, (2) vertigo was a symptom of Meniere's disease but not noted as independent of Mr. Larson's Meniere's 2 disease, and (3) Mr. Larsons's Meniere's disease was not related to service. See Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) ("'A finding is clearlyerroneous when . . . the reviewing court on 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))). Second, Mr. Larson contends that the doctor's statement is ambiguous as to whether or not Mr. Larson has Meniere's disease. However, such a reading of the report ignores its material essence, to wit: Mr. Larson's current Meniere's disease is not related to service. Even assuming Mr. Larson's view of the evidence could be deemed reasonable, he fails to demonstrate that the Board's view of this evidence was clearly erroneous. Gilbert, 1 Vet.App. at 52-53 (" 'Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous.'" (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573- 74 (1985))). Third, Mr. Larson contends thatthe2010medicalprofessional incorrectlystated that the first complaint of vertigo was made in 1995. However, Mr. Larson fails to identifyanyrecord documents containing a complaint or diagnosis of vertigo prior to 1995. See Hilkert, supra. To the extent he identifies a notation of dizziness in a 1988 VA medical record, he fails to demonstrate that reports of dizziness equate to having vertigo, which is a particular type of dizziness.1 Moreover, he fails to demonstrate that the June 2010 medical professional erred when rendering her implicit opinion that any reports of dizziness prior to 1995 were not reports of vertigo. Rizzo, supra. In sum, Mr. Larson fails to demonstrate that the Board clearly erred in finding that the June 2010 report was adequate. See D'Aries, 22 Vet.App. at 103-04 ("Whether a medical opinion is adequate is a finding of fact, which the Court reviews under the 'clearly erroneous' standard."); Gilbert, 1 Vet.App. at 52. In support of his argument that the Board should have remanded his claim for clarification of two medical reports, Mr. Larson relies on SavageNext Document v. Shinseki, 24 Vet. App. 259, 260 (2011), and contends that the Board should have sought clarification of private medical reports, dated in May 2006 and August 2006. However, clarification of private medical reports is required only when clarification "could provide relevant information that is otherwise not in the record and cannot be 1 "Vertigo" is defined as "an illusory sense that either the environment or one's own body is revolving; it may result from diseases of the internal ear or may be due to disturbances of the vestibular centers or pathways in the central nervous system. The term is sometimes erroneously used to mean any form of dizziness." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 2051 (32d ed. 2012) (emphasis added). 3 obtained in some other way." Id. at 269. Here, the record reflects that the June 2010 medical opinion provided sufficient medical evidence for the Board to render a decision on the claim. Accordingly, clarification of the older private medical reports was not needed. Id.; see also McLendon v. Nicholson, 20 Vet.App. 79, 84 (2006) ("[I]f there is sufficient competent medical evidence on file for the Secretary to make a decision on the claim, he may proceed to do so . . . ."). Withregardtohisinadequate-reasons-or-basesargument,Mr. LarsoncontendsthattheBoard inadequately explained (what he views as) its impermissible discounting of ( 1) lay statements, (2) VA medical records, and (3) three favorable medical opinions. As to the lay statements, however, the Board acknowledged them, noted that they contained inconsistencies as to the onset of Mr. Larson's dizziness, and assigned more probative value to those statements made to doctors and less value to those made to the Secretary in furtherance of his claim for benefits. See R. at 12 (Board noting that the Federal Rules of Evidence generally finds statements made to physicians for the purposes of diagnosis or treatment "exceptionally trustworthy" and citing Rucker v. Brown, 10 Vet.App. 67, 73 (1997) ("[R]ecourse to the [Federal] Rules [of Evidence] is appropriate where they will assist in the articulation of the Board's reasons.")). RegardingtheVAmedicalrecordsallegedlyignored,althoughMr.Larsoncited to numerous records purportedlynoting dizziness prior to 1989, the record of proceedings onlyreflects a notation of dizziness in the 1988 VA record discussed above. Moreover, Mr. Larson fails to demonstratewhy the Board might have been required to address this particular document when, as noted above, dizziness does not necessarily equate to vertigo and the June 2010 medical professional opined that vertigo was not identified until 1995. In sum, Mr. Larson fails to demonstrate that the Board failed to address materially favorable evidence or otherwise inadequately explained its decision. See Thompson v. Gober, 14 Vet.App. 187, 188 (2000) (Board must provide adequate statement of reasons or bases "for its rejection of any material evidence favorable to the claimant"); Hilkert, supra; Allday v. Brown, 7 Vet.App. 517, 527 (1995) (holding that the Board's statement "must be adequate to enable claimant to understand the precise basis for the Board's decision, as well as to facilitate review in this Court"). As to the three favorable medical opinions, the Board addressed each opinion and provided rationale for its respective assignment of weight. See Owens v. Brown, 7 Vet.App. 429, 433 (1995) 4 ("It is not error for the [Board] to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons and bases."). Specifically, the Board assigned (1) no probative value to the May 2006 medical opinion, because it provided no opinion on vertigo or Meniere's disease, (2) "very little probative value" to the March 2006 opinion, because an October 2008 joint motion for remand (JMR) noted its ambiguity on the issue of nexus between his disabilities and service,and(3)"some,but not high, probative value"to the August 2006 opinion, because it did not address the separation report of medical history, in which Mr. Larson specifically noted no history of dizziness. R. at 19. Overall, Mr. Larson fails to demonstrate that the Board provided inadequate reasons or bases in its statement. See Allday, supra. In support of his clear-error argument, Mr. Larson contends that the record evidence preponderates in favor of finding a continuity of symptoms, as well as a nexus between his disabilities and service, and that the Board clearly erred in finding otherwise. However, the record does not support his contentions. The Board found, inter alia, (1) no objective evidence of dizziness for 20 years after service despite numerous VA medical records from that time period, (2) Mr. Larson's lay statements noting an onset of dizziness in the 1990s more probative than his more recent statements recounting dizziness in service, (3) the June 2010 report against nexus more probative than the other medical evidence of record (for the reasons discussed above ), and (4) the preponderance of the evidence against the claim. Based on a review of the record of proceedings, the Board's findings are plausible and not clearly erroneous. See Burger v. Brown, 5 Vet.App. 340, 343 (1993) (Board findings of fact are reviewed under the "clearly erroneous" standard); Gilbert, 1 Vet.App. at 52; see also Hilkert, supra. Accordingly, that part of the January 14, 2011, Board decision on appeal is AFFIRMED. DATED: March 21, 2012 Copies to: Perry A. Pirsch, Esq. VA General Counsel (027) 5