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

Single Judge Application, Delisio, 25 Vet.App. at 54; Investigation of Casual Disease as Service-Connected

Excerpt from decision below: "The appellant argues that the August 2007 VA examination was inadequate because it failed to provide an opinion on the potential secondary relationship between the appellant's chronic substance abuse and his service-connected PTSD. Appellant's Brief (Br.) at 4-7. In his reply brief, the appellant also argues that the Court's recent holding in DeLisio v. Shinseki, 25 Vet.App. 45 (2011) is controlling, and that his alcohol and drug addiction were reasonably encompassed by his service-connected PTSD claim. Appellant's Reply Br. at 2-4. He thus contends that "VA was under a duty to investigate and develop a possible theory of secondary service connection [for the appellant's chronic substance abuse]." Appellant's Reply Br. at 4. The Secretary responds that the August 2007 examination is adequate for rating purposes because the examiner was not required to opine on the relationship between the appellant's substance abuse and his service-connected PTSD. Secretary's Br. at 5-9. The Court agrees with the Secretary that the August 2007 examination is adequate." ===================== "Additionally, DeLisio is not for application here. DeLisio held that if the condition for which VA benefits are sought is not directly associated with service, but information obtained during the processing of the claim reasonably indicates that the cause of the condition is a disease or other disability that may be associated with service, the Secretary generally must investigate whether the causal disease or disability is related to service, in order to determine whether the claimed condition is related secondarily to service. Delisio, 25 Vet.App. at 54. The appellant is already service connected for the condition for which benefits are sought, PTSD. DeLisio would apply only where substance abuse was the condition the appellant was initially seeking service connection for, and information obtained during the 4 processing of the substance abuse claim reasonably indicated that PTSD may have caused the underlying substance abuse condition." ========================== ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 10-4072 GATES D. ROBERTSON, 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, Gates D. Robertson, through counsel, appeals a September 17, 2010, Board of Veterans' Appeals (Board) decision that denied entitlement to an initial disability rating in excess of 50% for post-traumatic stress disorder (PTSD). 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). Both parties filed briefs, and the appellant filed a replybrief. Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 ( 1990). For the following reasons, the Court will affirm the Board's decision. I. BACKGROUND The appellant served honorably on active duty in the U.S. Army from June 1970 to June 1972, including service in Vietnam. Record of Proceedings (R.) at 1097. While in Vietnam the appellant experienced several confirmed stressors, including enemy attacks and one incident in particularwheretheappellant tried unsuccessfullyto help ableedingsoldier, andwatchedthesoldier die. R. at 330, 894-95. The appellant contends that he began drinking and abusing drugs for the first time following this tragic event. R. at 330, 894-95. The appellant initiallyfiled a claim for disabilitybenefits for PTSD in July1996. R. at 1065- 68. A VA regional office (RO) denied the appellant's claim in May 1997. R. at 994-99. No appeal was filed, and this determination became final. In August 2002, the appellant sought to reopen his claim (R. at 985), but was denied in January2003 when the RO determined that no new and material evidence had been submitted (R. at 958-62). The appellant subsequently submitted more evidence that was received by VA on June 30, 2003, and the RO found that new and material evidence had been submitted to reopen his claim for PTSD and granted entitlement to a 30% disability rating for PTSD in March 2005 effective the date of the receipt of the evidence. R. at 786-90. The appellant filed a Notice of Disagreement in November 2005 arguing that he deserved a higher rating. R. at 542. In October 2006, the appellant was granted a 50% rating for PTSD (R. at 447-450), and immediately appealed this decision stating he "want[ed] to continue his appeal to the Board . . . for a higher compensation rating for his PTSD" (R. at 442). VAprovidedacompensation andpension(C&P)examination in August 2007(R.at321- 33), during which the examiner noted that the appellant continues to meet criteria for PTSD. He presents with reexperiencing, avoidance and hyperarousal symptoms consistent with PTSD. [The appellant's] symptoms are moderately affecting his social, work and psychological functioning. Based on his self report and a comparison from his last C&P exam, his symptoms have not increased or changed significantly. [The appellant's] symptoms do affect his employment; however, his current unemployment is not directly related to his PTSD symptoms. Instead [his current unemployment] is secondary to his drug use and subsequent arrest. R. at 330-31. In August 2010, the American Legion, on behalf of the appellant, submitted the following statment to the Board: The veteran began using illicit drugs and alcohol as a means of overcoming combat stress during service. It is unfortunate that the habit has continued long after service. . . . Considering the veteran only began illicit drug and alcohol use to cope with the stress of combat, [t]he American Legion argues that the veteran's lower level of functioning has everything to do with his PTSD. Further, 38 C.F.R. § 3. 301 (c)(2), stipulates that "[o]rganic diseases and disabilities which are a secondary result of the chronic use of alcohol as a beverage, whether out of compulsion or otherwise, will 2 not be considered of willful misconduct origin." Also, 38 C.F.R. § 3.301 ( c)(3) stipulates that "[w]here drugs are used for therapeutic purposes or where use of drugs or addiction thereto, results from a service-connected disability, it will not be considered of misconduct origin." Therefore, the "lower level of functioning" that developed as result of the veteran's alcohol/drug abuse and dependency is subject to compensation anyways. R. at 20-21. In September 2010, the Board relied on the August 2007 examination to find that a 50% disability rating more closely approximated the severity of the appellant's PTSD. R. at 14. This appeal ensued. II. ANALYSIS The appellant argues that the August 2007 VA examination was inadequate because it failed to provide an opinion on the potential secondary relationship between the appellant's chronic substance abuse and his service-connected PTSD. Appellant's Brief (Br.) at 4-7. In his reply brief, the appellant also argues that the Court's recent holding in DeLisio v. Shinseki, 25 Vet.App. 45 (2011) is controlling, and that his alcohol and drug addiction were reasonably encompassed by his service-connected PTSD claim. Appellant's ReplyBr. at 2-4. He thus contends that "VA was under a duty to investigate and develop a possible theory of secondary service connection [for the appellant's chronic substance abuse]." Appellant's Reply Br. at 4. The Secretary responds that the August 2007 examination is adequate for rating purposes because the examiner was not required to opine on the relationship between the appellant's substance abuse and his service-connected PTSD. Secretary's Br. at 5-9. The Court agrees with the Secretary that the August 2007 examination is adequate. Under 38 U.S.C. § 5103A(d), the Secretary's duty to assist includes, in appropriate cases, "providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim." 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). A medical examination is considered adequate "where it is based upon consideration of the veteran's prior medical history and examinations and also describes the 3 disability, if any, 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) (quoting Green v. Derwinski, 1 Vet.App. 121, 124 (1991))); see also Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008) ("A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two."). "Whether a medical opinion is adequate is a finding of fact, which this Court reviews under the 'clearly erroneous' standard." D'Aries v. Peake, 22 Vet. App. 97, 104 (2008). A factual finding 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." United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); see also Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990). The August 2007 examination was provided in connection with his appeal for a higher rating for PTSD. The examiner provided a thorough report that compared his current PTSD condition with findings from earlier examinations. See R. at 321-33. In determining that the appellant's PTSD had not worsened, the examiner sufficiently described the effect the PTSD had on his daily life. The examiner also noted that the appellant was still struggling with chronic substance abuse. R. at 322- 33. However, because there is no secondary service-connection claim for substance abuse resulting from service-connected PTSD currently before the Court, this argument is not a basis for error. The appellant makes no arguments with respect to the adequacy of the PTSD evaluation. The Board's determination that this examination was adequate is therefore not clearly erroneous. See D'Aries, supra. Additionally, DeLisio is not for application here. DeLisio held that if the condition for which VA benefits are sought is not directly associated with service, but information obtained during the processing of the claim reasonably indicates that the cause of the condition is a disease or other disability that may be associated with service, the Secretary generally must investigate whether the causal disease or disability is related to service, in order to determine whether the claimed condition is related secondarily to service. Delisio, 25 Vet.App. at 54. The appellant is already service connected for the condition for which benefits are sought, PTSD. DeLisio would apply only where substance abuse was the condition the appellant was initially seeking service connection for, and information obtained during the 4 processing of the substance abuse claim reasonably indicated that PTSD may have caused the underlying substance abuse condition. These are not the facts of this case, and the Court therefore discerns no merit in this argument. However, if the appellant believes that he has a substance abuse claim secondary to his PTSD that remains pending and unadjudicated, the appropriate procedure is to pursue a resolution of the claim by VA, e.g., seek issuance of a final RO decision with proper notification of appellate rights and, if the decision is unfavorable, initiate a Notice of Disagreement. See 38 U.S.C. §§ 5104, 7105; DiCarlo v. Nicholson, 20 Vet.App. 52, 56 ( 2006). If the Secretary fails to process the claim, then the appellant can file a petition with this Court challenging the Secretary's refusal to act. See DiCarlo, 20 Vet.App. at 56-57 (citing Costanza v. West, 12 Vet.App. 133, 134 (1999)). III. CONCLUSION After consideration of the appellant's and the Secretary's pleadings, and a review of the record, the Board's September 17, 2010, decision is AFFIRMED. DATED: March 16, 2012 Copies to: Mark R. Lippman, Esq. VA General Counsel (027) 5