Wednesday, June 6, 2012

Single Judge Application, Parrish v. Shinseki, 24 Vet.App. 391, 401 (2011); Gabrielson v. Brown, 7 Vet.App. 36, 40 (1994); Board's Duty Discuss Favorable Evidence

Excerpt from decision below: "However, it is the Board, not a medical examiner, that has the duty to address information submitted bya claimant. See Parrish v. Shinseki, 24 Vet.App. 391, 401 (2011); Gabrielson v. Brown, 7 Vet.App. 36, 40 (1994)(noting that the Board, not medical examiners, has the duty to discuss favorable evidence in a statement of reasons or bases). ============================= ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS No. 11-1426 EDDIE D. IRISH, 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 Eddie D. Irish appeals though counsel that part of an April 4, 2011, decision of the Board of Veterans' Appeals (Board) that denied disability compensation for a left-hip disorder, erectile dysfunction (ED), to include as secondary to service- connected post-traumatic stress disorder (PTSD), and gastroesophageal reflux disease (GERD), to includeassecondaryto service-connectedPTSD, becausetheywerenot serviceconnected. Mr.Irish argues that the Board erred by (1) finding that the Secretary fulfilled his duty to assist because he failed to notify Mr. Irish that he was unable to retrieve private medical records in compliance with the September 2010 Board remand, (2) failing to provide a medical examination for his left-hip disorder and an inadequate statement of reasons or bases for its determination that the examination was not necessary, and (3) relying on inadequate compensation and pension ( C&P) examinations for ED and GERD and failing to provide an adequate statement of reasons or bases for its reliance on these examinations. The Secretary disputes Mr. Irish's contentions. Single- judge disposition is appropriate. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons stated below, that part of the decision of the Board on appeal will be affirmed. Mr. Irish's contentions are not supported by the record. Mr. Irish argues that the Board erred by failing to ensure VA compliance with the September 2010 Board remand that ordered the Secretary to provide Mr. Irish with written notice if the Secretary was unable to retrieve medical records relevant to his left hip claim. However, the remand order instructed the regional office (RO) to first "request that the Veteran identify all VA and non-VA medical providers who have treated him for any left hip disorder, [ED], or [GERD]" and then instructed the RO to make reasonable efforts to obtain the "named records" and give notice if they are unavailable. Record (R.) at 533. Here, the Secretarysent Mr. Irish a letter in October 2010 requesting that he complete and return VA Form 21-4141 so that the Secretary could have the information necessary to obtain the relevant private medical records. Mr. Irish points to no evidence in the record of proceedings (and the Court does not discern any) indicating that he completed or returned the VA Form 21-4141, identifying the private records he now alleges that the Secretary failed to obtain, see 38 U.S.C. § 5103A(b); Wood v. Derwinski, 1 Vet.App. 190, 193 (1991) ("The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."), and he otherwise fails to demonstratethattheBoard'sfindingsthattheSecretarysubstantiallycompliedwith theremandorder and that the duty to assist was satisfied are clearly erroneous, see Nolen v. Gober, 14 Vet.App. 183, 184 (2000) (Board's determination whether the Secretary has fulfilled his duty to assist generally is a finding of fact that the Court reviews under the "clearly erroneous" standard of review); Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) ('"A finding is "clearly erroneous" when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm convictionthata mistake has been committed."'(quotingUnitedStates v.U.S. GypsumCo.,333U.S. 364, 395 (1948))); see also Hilkert v. West, 12 Vet.App. 145, 151 (1999) ( en banc) (appellant bears burden of demonstrating error on appeal). With regard to Mr. Irish's argument that the Board erred by not providing a medical examination for the development of his left-hip condition, the Board found no evidence demonstrating an in-service injury, event, or disease tied to Mr. Irish's left-hip condition, and no continuity of symptomatology since service. Contrary to Mr. Irish's argument, the VA medical examination opining that his left-hip condition could be caused by " excessive wear" does not relate his hip condition to service. In the absence of an event, injury, or disease in service or any credible indication that Mr. Irish's current disabilities may be due to service, a medical examination is not required, see McLendon v. Nicholson, 20 Vet.App. 79, 81 (2006) (Secretary need not provide a medical examination when there is no evidence establishing an event, injury, or disease occurred in 2 service or any evidence indicating there may be a nexus between service and disability), and Mr. Irish fails to demonstrate that the Board's determination that an examination was not needed to decide the claim is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,"see id. at 83 (Board's determination thatmedicalexamination is unwarrantedis reviewed under the"arbitrary, capricious" standard); Hilkert, supra. Overall the Board's statementis understandable and facilitative of judicial review. See Allday v. Brown, 7 Vet.App. 517, 527 (1995) (Board's statement "must be adequate to enable a claimant to understand the precise basis for the Board's decision, as well as to facilitate review in this Court"). As to Mr. Irish's final argument, he contends that his C&P examinations were inadequate because the examiners ignored the medical literature supplied byMr. Irish and failed to consider the effect of his prescribed medication on his ED and GERD. However, it is the Board, not a medical examiner, that has the duty to address information submitted bya claimant. See Parrish v. Shinseki, 24 Vet.App. 391, 401 (2011); Gabrielson v. Brown, 7 Vet.App. 36, 40 (1994)(noting that the Board, not medical examiners, has the duty to discuss favorable evidence in a statement of reasons or bases). A medical examiner is called upon to apply his expertise to evaluate matters such as a patient's condition or cause thereof, and his report is adequate when it is predicated on correct facts, examinations, prior medical history, and when it provides sufficient detail and explanation to permit the Board, when combined with review of the entire record, to be fully informed on the claimant's disability. See D'Aries v. Peake, 22 Vet.App. 97, 104 (2008); Gabrielson, supra; Green v. Derwinski, 1 Vet.App. 121, 124 (1991). Here, the C&P examination reports relied on by the Board reflect that they were premised on examination of Mr. Irish and review of his medical records, and Mr. Irish fails to demonstrate that the examiners based their reports on any incorrect facts. Hilkert, supra. Moreover, medical examiners are presumed competent to render the medical opinions they render, and Mr. Irish fails to demonstrate otherwise with regard to his C& P examiners. Id.; see also Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (applying the presumption of regularity to medical examiners' overall competence); Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir. 2009) (holding that absent a challenge to a medical examiner's credentials, the Board may rely on the medical examiner's competence to supply a medical opinion). Additionally,theBoardaddressedthemedicaltreatises submittedbyMr.Irishbut discounted them because they did not "specifically address the Veteran's situation or provide a basis for a medical opinion of record," (R. at 15) and Mr. Irish points to no medical evidence supporting his belief that his ED or GERD were caused or aggravated by the use of prescribed medication, and 3 otherwise fails to demonstrate that the treatise information he submitted was more probative to his claim than the C&P examination reports. Hilkert, supra; see also Sacks v. West, 11 Vet.App. 314, 317(1998)(holding that treatise materials generallyarenot specificenoughto shownexus); Herlehy v. Brown, 4 Vet.App. 122, 123 (1993) (discussing how, in general, medical opinions directed at specificpatientsaremoreprobativethanmedicaltreatises); Hyder v.Derwinski, 1Vet.App.221,225 (1991) ("Layhypothesizing, particularly in light of the absence of anysupporting medical authority, serves no constructive purpose and cannot be considered by th[e] Court."). Moreover, the Board's statement is understandable and facilitative of judicial review and Mr. Irish fails to demonstrate otherwise, Allday, supra; see also Hilkert, supra. Accordingly, the April 4, 2011, decision of the Board is AFFIRMED. DATED: May 17, 2012 Copies to: Perry A. Pirsch, Esq. VA General Counsel (027) 4