Single Judge Application, Savage v. Shinseki, 24 Vet.App. 259, 260 (2011), Duty to Return for Clarification Unclear or Insufficient Examination reports

Excerpt from decision below: "Thus, when the Board finds a VA examination report to be unclear, it ordinarily should remand the matter to the RO for clarification from the examiner. See Bowling v. Principi, 15 Vet.App. 1, 12 (2001) (holding that the Board has a duty, under 38 C.F.R. § 19.9(a), to remand a case "[i]f further evidence or clarification of the evidence or correction of a procedural defect is essential for a proper appellate decision"); see also Savage v. Shinseki, 24 Vet.App. 259, 260 (2011) ("in some circumstances, VA does have a duty to return for clarification unclear or insufficient private examination reports . . . , or the Board must explain why such clarification is not necessary."). The Board in the instant case erred in rejecting the favorable medical evidence of record without complying with its duty to assist by seeking further clarification from the examiners. R. at 14. Accordingly, remand is required. See Savage and Bowling, both supra." ==================================================== ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 10-3957 BARRY A. KRUPKIN, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before FARLEY, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. FARLEY, Judge: The appellant, Barry A. Krupkin, appeals from the October 5, 2010, decision of the Board of Veterans' Appeals (Board) that denied entitlement to an increased disability rating in excess of 10% for residuals of shell fragment wounds (SFWs) to the abdomen with retained foreign bodies (RFB). Single-judge disposition is appropriate when the issue is of "relative simplicity" and "the outcome is not reasonablydebatable." Frankel v. Derwinski, 1 Vet.App. 23, 25- 26 (1990). This appeal is timelyand the Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). For the reasons that follow, the Court will vacate the October 2010 Board decision to the extent that it denied entitlement to an increased disability rating and remand that matter. In the same decision, the Board also denied entitlement to service connection for Kaposi's sarcoma, claimed as cancer, and entitlement to an effective date prior to December 10, 1999, for the grant of service connection for type II diabetes mellitus. In a separate Board decision also dated October5, 2010, the Board denied the payment or reimbursement of unauthorized medicalexpenses incurred at a private medical facility on May 11, 2007. The appellant raises no argument with respect to the Board's denial of his claims for service connection for Kaposi's sarcoma, entitlement to an effective date prior to December 10, 1999, for the grant of service connection for diabetes mellitus, or entitlement to payment or reimbursement of unauthorized medical expenses; these claims are therefore deemed abandoned. 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, 436 (1993). I. FACTS The appellant served on active duty in the U.S. Army from July 1968 to February 1970, including service in Vietnam. Record (R.) at 358. In May 1970, the regional office (RO) granted service connection for anxiety reaction and for multiple SFWs, including an SFW to the abdomen with laceration of the liver, status post operation, and an SFW to the abdomen with RFB. R. at 4785-86. The RO assigned a 100% disability rating for the convalescent period. Id. In August 1970, the RO assigned a 10% rating for the appellant's SFW to the abdomen with laceration of the liver and a separate 10% rating for the appellant's SFW to the abdomen with RFB. R. at 4754-56. In April 1984, the RO determined that the most recent VA examination failed to show objective findings to support a compensable rating for superficial and healed SFWs, including those to the abdomen, and reduced the disability ratings for all of the appellant's service-connected SFWs to noncompensable. R. at 4554-57; see also R. at 4559-68 (February 1984 VA examination report). The appellant filed a claim for increased disability ratings for his service-connected conditions (see R. at 4282, 4319), and in November 1988, the RO increased the ratings for the appellant's SFW to the abdomen with laceration of the liver to 10% and for his SFW to the abdomen with RFB to 10%. R. at 4284. In July 2007, the appellant filed a claim seeking increased ratings for his service-connected SFWs to the abdomen and left leg. R. at 1356-62. He stated that he continued to suffer severe pain from his injuries and that he recently underwent surgery to remove shrapnel from the left and right sides of his abdomen. R. at 1356, 1358. He submitted surgical and pathology reports from Dr. David Herf, which reflected that the RFBs to the appellant's abdomen and left leg had become "increasingly tender to touch and very superficial." R. at 1338. The pathology report reflected that foreign bodies were removed from the appellant's right side abdomen and left upper abdomen. R. at 1340. 2 In August 2007, the appellant underwent a VA examination conducted by Dr. Sanford Epstein. R. at 1303-07. The appellant reported constant, severe pain. R. at 1304. He also reported constant sweating, nausea four times a week, and periodic emesis. Id. Dr. Epstein noted a midline abdominal scar that was 27 cm long by 4 cm wide and was superficial, linear, flat, and nontender to palpation. R. at 1305. He also noted an 18 cm by 1 cm horizontal scar that traversed the lower third of the midline abdominal scar. Id. The VA examiner described this scar as linear, flat, superficial, and also nontender to palpation. Id. He further noted that the appellant was wheelchair bound and morbidly obese, "easily bends over from the waist down, except for being limited by his habitus." R. at 1304, 1306. Dr. Epstein specifically stated that the appellant could not get into examination table position and that he "would have to speculate as to whether or not palpation of the abdomen reveals any tenderness, masses or organomegaly because [the appellant] is not able to lie on the examination table." R. at 1305. An x-ray of the appellant's abdomen revealed "[m]ultiple irregular small metallic densities overlying the abdomen . . . which maybe related to prior ballistic injury" and "[i]rregular linear densities overlying the abdomen and pelvis, [which] are nonspecific and may be surgical." R. at 1306. Dr. Epstein rendered a diagnosis of a history of SFW to the abdomen with RFB and laceration to the liver, postoperative with scarring. R. at 1306. In September 2008, the RO denied the appellant's claim for an increased rating for his service-connected residuals of an SFW to the abdomen. See R. at 473, 647. The appellant perfected an appeal. R. at 442-72, 647. In his Notice of Disagreement, the appellant argued that the RO failed to consider the massive scar tissue on his stomach. R. at 647. In particular, the appellant alleged that a 14-inch long horizontal scar on his abdomen stemmed from a 1991 operation and had resulted in additional nerve and muscle damage that caused constant pain and disfigurement and restricted his ability to bend his torso forward. Id. In his Substantive Appeal, the appellant noted that Dr. James Moody had surgically removed an incarcerated hernia from his stomach in October 1991 at the Destin Hospital. R. at 442. The appellant also submitted a statement from Dr. Moody dated in June 1998, in which Dr. Moody stated that he had surgically repaired an incarcerated incisional hernia in 1991. R. at 446. Dr. Moody opined that the appellant's incarcerated hernia was due to the deep penetrating injury that the appellant sustained in Vietnam. Id. He further stated that the appellant subsequently had another incisional hernia that required placement of mesh. Id. 3 The appellant also submitted an inpatient record dated in October 1991 from the Humana Hospital in Destin, Florida, which revealed that, after the appellant had presented with right-side abdominal pain, an ultrasound showed findings that were consistent with a large ventral hernia demonstrating incarcerated tissue from within the abdomen. Id. The attending physician, Dr. Causton, stated that he obtained a surgical consult from Dr. Moody, and that the appellant was admitted to the hospital for surgery. Id. In addition, the appellant submitted a May 1984 medical evaluation from Dr. MurrayTodd. R. at 464-66. In pertinent part, Dr. Todd diagnosed the appellant with muscle tissue damage caused by deep penetrating wounds of the torso. R. at 466. A private treatment record from Dr. Herf reflected that the appellant was admitted to the North Okaloosa Medical Center in April 1996 for a ventral hernia repair. R. at 466-68. On October 5, 2010, the Board issued its decision in which it denied entitlement to an increased rating in excess of 10% for the appellant's SFW to the abdomen with RFBs. R. at 3-21. This appeal followed. II. ANALYSIS A Board determination of the appropriate degree of disability under the rating code is a finding of fact subject to the "clearly erroneous" standard of review. 38 U.S.C. § 7261(a)(4); see Smallwood v. Brown, 10 Vet.App. 93, 97 (1997). "A factual 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 conviction that a mistake has been committed.'" Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 ( 1948)). The Court may not substitute its judgment for the factual determinations of the Board on issues of material fact merely because the Court would have decided those issues differently in the first instance. See id. The Board must consider all evidence of record and discuss all " potentially applicable" provisions of law and regulation. 38 U.S .C. § 7104(a); Schafrath v. Derwinski, 1 Vet.App. 589, 592-93 (1991). The Board's decision must include an adequate statement of the reasons or bases for its findings and conclusions on all material issues of fact and law presented on the record; that statement must be adequate to enable an appellant to understand the precise basis for the Board's decision, as well as to facilitate informed review in this Court. 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 4 with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). The appellant argues that his abdomen injury was "further aggravated over the years by the additional loss of nerve and muscle tissue damages and greatly further disfigured [his] body due to repeated operations." Appellant's Brief (Br.) at 2. The appellant argues that the Board failed to consider that in 1991 he underwent a "life saving operation" caused by his original shrapnel injury. Appellant's Br. at 3. The appellantfurtheralleged that Dr. Joseph Monastero, his VA physician from Eglin Air Force Base, had to call home health nurses to provide wound care because the mesh pushes through his stomach. Appellant's Br. at 4. The appellant argues for the application of the benefit of the doubt and asks the Court to rule in his favor and find that he is entitled to a higher rating for his abdomen. Appellant's Br. at 6. The Secretary argues for affirmance of the Board's decision. Secretary's Br. at 4-9. The Secretaryhas filed a separate motion to strike an attachment to the appellant's replybrief and arguments based thereon as the document attached by the appellant contains a handwritten attestation that postdates the Board's October 5, 2010, decision. Secretary's Motion at 1-2. The appellant has filed a written opposition to the Secretary's motion. The motion to strike the attachment to the appellant's reply brief will be granted as the Secretary correctly argues that such a document may not be considered by the Court as it was not contained in the record of proceedings before the Board. Secretary's Motion at 1-2; see 38 U.S.C. § 7252(b) (the Court is prohibited from considering anymaterial that was not contained in the "record before the Secretaryand the Board."); Bonhomme v. Nicholson, 21 Vet.App. 40, 43-45 (2007); Rogozinski v. Derwinski, 1 Vet.App. 19, 20 (1990). The Board purported to limit its decision in the instant case to the adjudication of the appellant's claim for an increased rating for residuals of an SFW to the abdomen with RFB. R. at 14. The Board expressly found that the appellant's claim for an increased rating for residuals of an SFW to the abdomen with laceration of the liver was not on appeal. Id. The Board specifically found that Dr. Moody's 1998 letter related to "a second condition for which the [appellant is service[ 5 ]connected: his residuals of an [SFW] to the abdomen with laceration to the liver." Id. The Board determined that the appellant's "claim here is not seeking an increase for those deep penetrating wounds that he suffered; instead, this claim is focused on [his] other, more superficial wounds to the abdomen for which he obtained a separate rating." Id. While the appellant did not explicitly raise the issue of entitlement to an increased rating for residuals of an SFW to the abdomen with laceration of the liver, the appellant, as a lay person, is not qualified to delineate the precise boundaries of his condition or his claim. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). An appellant's claim is not narrowly limited to the diagnosis he puts down, but encompasses additional disabilities reasonably raised by "the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim." Clemons v. Shinseki, 23 Vet.App. 1, 5 (2009). The Court has jurisdiction over "any matters that were reasonably raised below that the Board should have decided, with regard to a claim properly before the Court, but failed to do so." Id. at 3. Because this appellant cannot be expected to understand the technical differences between symptoms of residuals of an SFW to the abdomen with a laceration of the liver and symptoms of residuals of an SFW to the abdomen with RFB, the Board erred in limiting his claim for an increased rating for residuals of SFWs to the abdomen to a claim for an increased rating for residuals that were due to RFBs. R. at 14. The appellant's claim necessarilyincluded anyrelated disabilityraised during the development of that claim, as he is seeking increased compensation for his symptoms regardless of diagnosis. See Clemons, 23 Vet.App. at 3. Even if the claim for an increased rating for SFWs to the abdomen with laceration of the liver was never appealed to the Board, the findings made in that claim and its outcome may well be relevant to this appeal. Accordingly, the Board's failure to address the appellant's entitlement to an increased rating for his SFW to the abdomenwith laceration of the liver frustrates judicial review and warrants remand. See Allday, supra; see also Clemons, supra (Court has jurisdiction to remand anymatters reasonablyraised below that Board should have but failed to decide). The Secretary "shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit under a law administered by the 6 Secretary." 38 U.S.C. § 5103A(a)(1). The Secretary's duty to assist a claimant includes, among other things, "providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessaryto make a decision on the claim." 38 U. S.C. § 5103A(d)(1); see 38 C.F.R. § 3.159(c) (2011). Further, 38 C.F.R. § 4.2 requires that, once obtained, if an examination report does not contain sufficient detail, "it is incumbent upon the rating board to return the report as inadequate for evaluation purposes." 38 C.F.R. § 4.2 (2011). The Court reviews the Board's determination that VA satisfied its duty to assist under the "clearly erroneous" standard of review. Nolen v. Gober, 14 Vet.App. 183, 184 (2000). Here, the Board rejected VA and private medical evidence that indicated that the appellant underwent multiple postservice abdominal surgeries related to his SFWs because the Board found that the appellant had "fabricated evidence in an effort to support his claim." R. at 14. The Board offered an inadequate statement of reasons or bases for this conclusion. Id.; see Allday and Gilbert, both supra. Moreover, pursuant to 38 C.F.R. § 19.9(a) (2011), "[i]f further . . . clarification of the evidence . . . is essential for a proper appellate decision, [the Board] shall remand the case to the agency of original jurisdiction, specifying the action to be undertaken." Id. Thus, when the Board finds a VA examination report to be unclear, it ordinarily should remand the matter to the RO for clarification from the examiner. See Bowling v. Principi, 15 Vet.App. 1, 12 (2001) (holding that the Board has a duty, under 38 C.F.R. § 19.9(a), to remand a case "[i]f further evidence or clarification of the evidence or correction of a procedural defect is essential for a proper appellate decision"); see also Previous DocumentSavageNext Hit v. Shinseki, 24 Vet.App. 259, 260 (2011) ("in some circumstances, VA does have a duty to return for clarification unclear or insufficient private examination reports . . . , or the Board must explain why such clarification is not necessary."). The Board in the instant case erred in rejecting the favorable medical evidence of record without complying with its dutyto assist byseekingfurther clarification from the examiners. R. at 14. Accordingly, remand is required. See Previous HitSavageNext Document and Bowling, both supra. To the extent that the appellant argues for reversal of the Board's decision, his argument is not persuasive. Appellant's Br. at 6. Reversal is the appropriate remedy only in cases in which the only permissible view of the evidence is contrary to the Board's decision. Gutierrez v. Principi, 19 Vet.App. 1, 10 (2004); Johnson v. Brown, 9 Vet.App. 7, 10 (1996). Generally, where the Board has 7 incorrectly applied the law or failed to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate, remand is the appropriate remedy. Tucker v. West, 11 Vet.App.369, 374 (1998); see Coburn v. Nicholson, 19 Vet.App. 427, 431 (2006) (holding that remand is appropriate when "the Court finds that the Board decision is defective in its reasons or bases therebypreventing properreview bythe Court"). Here, the Court is precluded from reviewing the Board's decision due to its failure to address the appellant's entire claim for an increased rating for SFWs to the abdomen, as well as VA's failure to fully comply with its duty to assist. Thus, reversal is not the proper remedy; the Court will vacate the decision and remand the matter on appeal for readjudication. In light of the need to remand the appellant's claim for an increased rating for residuals of SFWs to his abdomen based on the foregoing errors, his remaining assertions of error are moot. See Dunn v. West, 11 Vet.App. 462, 467 (1998) (remand of the appellant's claim under one theory moots the remaining theories advanced on appeal). On remand, the appellant may present, and the Board must consider, any additional evidence and argument in support of the matter remanded. See Kay v. Principi,16 Vet.App. 529, 534 (2002). This matter is to be provided expeditious treatment on remand. See 38 U.S.C. § 7112. III. CONCLUSION Upon consideration of the foregoing analysis, the record on appeal,and the parties' pleadings, the Secretary’s motion to strike the attachment to the appellant's reply brief is granted and the Board's October 5, 2010, decision is VACATED to the extent that it denied entitlement to an increased disability rating and that matter is REMANDED for proceedings consistent with the foregoing. DATED: November 30, 2011 Copies to: Barry A. Krupkin VA General Counsel (027) 8

Single Judge Application, Clarification Medical Reports, Savage 24 Vet.App. 259, 260 (2011)

Excerpt from decision below:
"In Savage, the Court held that, "in some circumstances, VA does have a duty to return for clarification unclear or insufficient private examination reports . . . , or the Board must explain why such clarification is not necessary."
24 Vet.App. 259, 260 (2011). The Court further explained that: It should be clearly understood, then, that we do not interpret VA statutes and regulations as establishing a broad requirement that VA inquire of private medical experts regarding the opinions expressed in their examination reports or the general bases therefor. Indeed, we do not expect that clarification of a private examination report will be necessary in most instances . . . .
7

Rather, our holding is limited to those instances in which the missing information is relevant, factual, and objective–that is, not a matter of opinion–and
where the missing evidence bears greatly on the probative value of the private
examination report. Id. at 270 (first and third emphasis added). In that case, the Court held that VA violated its duty to seek clarification of a private medical opinion where it failed to inquire as to a precise and discernable fact, which speech recognition test the private physician had used, information that was
"factual, objective" and did "not in any way rely on the opinion of the
examiner." Id."
=================================================
----------------------------------------------------

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-4228
HARRY W. LOWRY, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before HAGEL, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
HAGEL, Judge: Harry W. Lowry appeals through counsel an October 27, 2009,
Board of
Veterans' Appeals (Board) decision that denied entitlement to VA benefits
for syphilis and an
acquiredpsychiatricdisorder,includingassecondaryto syphilis. TheCourt
hasjurisdiction pursuant
to 38 U.S.C. §§ 7252(a) and 7266(a) to review the October 2009 Board
decision. Neither party
requestedoralargumentoridentifiedissues
theybelieverequireaprecedentialdecisionoftheCourt.
Because the Board provided an adequate statement of reasons or bases for
its decision that Mr.
Lowry is not entitled to VA benefits for syphilis or an acquired
psychiatric disorder, the Court will
affirm the October 2009 Board decision.
I. FACTS
Mr. Lowry served on active duty in the U.S. Army from November 1976 to
October 1980;
however, his period of service from January 1979 to October 1980 is
considered dishonorable for
VA benefit purposes. In July 1980, Mr. Lowry underwent a mental status
examination, and it was
determined that his behavior was normal, he was fully alert and oriented,
his mood was level, and
his thinking and thought content were clear.


Private medical records indicate that, in June 1988, Mr. Lowry tested
positive for syphilis.
In 1999, Mr. Lowry received treatment for various conditions from a
private physician, Dr.
Ellis F. Muther. In August 1999, Dr. Muther stated that he "reviewed with [
Mr. Lowry] the results
of his spinal fluid test which probably indicate that he does not have
neurosyphilis. The remainder
of his blood work-up was normal." Record (R.) at 1224.
Shortly thereafter, Mr. Lowry filed a claim for VA benefits for syphilis
and an acquired
psychiatric disorder, including as secondary to syphilis. In a September
2001 rating decision, a VA
regional office denied Mr. Lowry's claims. Mr. Lowry appealed that
decision to the Board and a
lengthy series of appeals and remands back and forth between the Board and
this Court ensued.
Also in September 2001, Mr. Lowry underwent a psychiatric consultation,
where he was
diagnosed with major depression, post-traumatic stress disorder, and some
form of dementia.
In March 2004, Edith D'Aquila-Lloyd, a VA medial center nurse, stated that "
in 1978 [Mr.
Lowry] acquired syphilis without knowing it. In 1987 he was diagnosed with
syphilis . . . the
specialist physician told him that he had contracted the disease
approximately8-10 years prior to this
diagnosis." R. at 422. She also stated that "[i]t is conceivable that the
neurologic impairment and
the psychiatric illness are the effect of the tertiary syphilis." Id.
In September 2004, Mr. Lowrysubmitted a statement that: "Icontracted
syphilis while in the
Army. I was treated in 1987 at Health Department in Essex, MD . . .
treatment did not work . . . I
had what appeared to be a wart after I arrived at [Fort] Myer. It went
away." R. at 1000.
In March 2007, Dr. Muther submitted a letter, stating:
[Mr. Lowry was] seen . . . for reassessment of [his] neurological and
psychological
impairment due to neurosyphilis which was detected seven years after [ ]
military
service[. H]owever, tertiarysyphilis can cause a varietyof neurological
impairments
among them cognitive dysfunction and a variety of psychiatric disorders
which have
been in the past variously labeled as bipolar disorder, substance abuse,
and others.
It is reasonable to assume that you contracted this neurosyphilis during
your military
service since symptoms of neurosyphilis may [exist] many years before they
are
evident.
R. at 419. A handwritten note at the end of the letter states that "
because your honorable period of
service was longer it is more likely you contracted syphilis at that time."
R. at 419.
2


In August 2007, Mr. Lowry underwent a VA infectious, immune, and
nutritional disabilities
examination. The examiner indicated that Mr. Lowry's claims folder and
medical records were
reviewed. After recording Mr. Lowry's medical history and performing a
physical examination, the
examiner stated that: "Icannot provide [the] request[ed] opinion about the
time of contraction of the
disease without resorting to speculation." R. at 286.
Also in August 2007, Mr. Lowry underwent a VA psychiatric examination. The
examiner
indicated thatMr.Lowry's claims file was reviewed. The examiner also
recordedhis medical history
and performed a mental status evaluation, diagnosing a mood disorder not
otherwise specified with
psychotic features by history. The examiner then stated that:
A determination of whether or not the claimant contracted his diagnosed
syphilis
during his period of honorable active military service cannot be
determined by this
examiner without resorting to mere speculation. Perhaps the physician
assessing his
physical status could address that. Regarding the relationship between his
current
psychiatricdisorderandhis claimedsyphilis; again, [this]
cannotberesolvedwithout
resorting to mere speculation. . . . If there were any organic nexus, it
would be more
likely to be associated with his head trauma, which was immediately
preceding his
episodes of psychosis (i.e., within one year) than his syphilis, which
admittedly had
gone for some period of time without treatment, but which showed no
evidence of
psychiatricconsequences,andwhichhadbeentreatedeffectivelyseveralyears
before
his major psychotic decompensation.
R. at 281-82.
In April 2008, a letter from the Baltimore County Department of Health
stated that "[t]his
is an old medical record retrieved from the Maryland State [Sexually
Transmitted Disease] medical
archives. Mr. Lowry was seen at the Essex Clinic initially on February 23,
1987 . . . where he was
treated . . . for early latent syphilis." R. at 175.
In April 2009, Mr. Lowry underwent an additional VA psychiatric
examination. The
examiner reviewed Mr. Lowry's medical records, as well as his medical and
psychiatric history, and
then performed a mental status examination. The examiner diagnosed Mr.
Lowry with biopolar
disorder and neurosyphilis. The examiner did not offer an opinion as to
whether Mr. Lowry's
syphilis or acquired psychiatric disorders were related to service.
3


Later that month, Mr. Lowry was afforded an additional VA examination.
The examiner
stated that a syphilis test was done but that the results were within
normal limits. The examiner
continued that a diagnosis of syphilis was
Not possible because there is no pathology to render a diagnosis. The
medical
records use the diagnosis of neurosyphilis; however I was not able to find
any
medical records or office visits for a primary syphilis diagnosis, work up,
exam
findings etc. This concludes that the term Neurosyphilis was more likely
than not a
psychological diagnosis that was made as a result of the claimant's mood
disorder,
history that he gave of a penile lesion and more likely than not a [
veneral disease
research laboratory] or similar test. The probability of a false positive
. . . testing
[result] is high enough to present concern that this [ ] influenced a
diagnosis. There
is no documentation that Ifound regardinga syphilis test so Icannot
comment further
on the exact test performed. There is one person that seems to have pushed
this
diagnosis in the medical records review, and this is a one, Dr. Murther.
He
admittedly all but states in one documented comment that he is making an
assumption about the diagnosis and does not reveal any conclusive data or
argument
as to why he made this opinion. There is too much speculation without
enough
convincingphysicalevidenceto
evensupportthisdiagnosisincludingthedescription
from the claimant of the word "wart."
R. at 87. The examiner then opined that:
The wart the claimant refers to is not necessarily a manifestation of
syphilis. Other
causes would be Herpes Simplex, Chancroid, Bechert Syndrome, Genital Warts.
I
was not able to find a service note for a genital wart in the medical
records. The
review of records I have including this exam does not allow for a
correlation that a
genital wart existed. Furthermore,thelesions ofsyphilis arealmost always
described
as an ulcer and the term wart would make it more likely than not that this
was not a
syphilis lesion.
...
I have thoroughly reviewed all the medical records and unless I have
overlooked
something or there is medical documentation missing, the records that I
have
received from [VA] do not contain any visits for a penile wart and this
especially
includes the service period up until and ending with 1978. Furthermore,
there is no
reason to believe or assume that any part of the medical records are
missing. There
were several noted visits during the service [period] for some back pain;
a lymph
node in the groin, an eye lesion etc., and this concludes me to opin[e]
that the
claimant did not have any reservation about presenting to the medical
clinic for
assistance with his problems.
4


R. at 88.
In the October2009 Board decision currentlyon appeal, the Board found that
Mr. Lowrywas
not entitled to VA benefits for syphilis or an acquired psychiatric
disorder, including as secondary
to syphilis. The Board noted that Mr. Lowry had not tested positive for
syphilis since July 1988.
The Board also explained that it found the medical opinions of Dr. Muther
and nurse D'Acquila-
Loyd less probative than the April 2009 VA medical opinion and that, as
such, any indications of
syphilis were not related to Mr. Lowry's period of honorable service. The
Board also found that Mr.
Lowry did not show any evidence of a psychiatric disorder during service
and, because he was not
service connected for syphilis, his current psychiatric disorder could not
be secondary to that
condition.
In his brief, Mr. Lowry's sole argument is that the Board provided an
inadequate statement
of reasons or bases for its decision. Specifically, he asserts that "the
Board engaged in illogical or
erroneous reasoning, drew unwarranted conclusions[,] . . . failed to seek
original records that might
elucidatetheissues, developedits own medical opinion
evidenceimproperlyandwithout notice,and
presumed medical facts not in evidence." Appellant's Brief (Br.) at 1. The
Secretary disputes these
contentions and argues that the Board's reasons or bases are adequate,
logical, and within its fact-
finding discretion. In addition, Mr. Lowry filed a notice of supplemental
authority pursuant to Rule
30(b) of this Court's Rules of Practice and Procedure, indicating his
belief that the Court's decision
in SavageNext Hit v. Shinseki, 24 Vet.App. 259 (2011), is applicable to his appeal.
II. ANALYSIS
In rendering its decision, the Board is required to provide a written
statement of the reasons
or bases for its "findings and conclusions[] on all material issues of
fact and law presented on the
record." 38 U.S.C. § 7104(d)(1). The statement must be adequate to
enablea claimant to understand
the precise basis for the Board's decision, as well as to facilitate
review in this Court. See Gilbert
v. Derwinski, 1 Vet.App. 49, 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 to be
persuasive or unpersuasive, and provide the reasons for its rejection of
any material evidence
favorable to the claimant. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995),
aff'd per curiam,
5


78 F.3d 604 (Fed. Cir. 1996) (table). The Board may commit error
requiring remand when it fails
to provide an adequate statement of its reasons or bases. See Gilbert, 1
Vet.App. at 57.
Mr. Lowry first argues that the Board relied upon inadequate and illogical
reasoning in
rejecting evidence favorable to his claim, including making impermissible
medical judgments and
mischaracterizing facts. The Court disagrees. First, the Court notes that
it is the Board's duty to
weigh the evidence and to determine its credibility and probative value.
See Washington v.
Nicholson, 19 Vet.App. 362- 367-68 (2005). Here, the Court concludes that
the Board complied
with this duty by discussing the relevant evidence of record, including
the favorable medical
evidence. The Board specifically addressed Mr. Lowry's arguments in this
regard, explaining that:
As the attorney alluded to, [Mr. Lowry] has submitted statements from two
treating
professionals, [Dr. Murther] and [Nurse D'Aquila-Lloyd], purporting to
link [his]
February 1987 syphilis diagnosis to his military service. These opinions
are entirely
based on [Mr. Lowry]'s statements as to his symptoms, treatment and
diagnoses that
he made to them ten years after this treatment and twenty years after his
service. At
the time they made their conclusions, neither doctor appears to have had
access to
[his] treatment records – either from service, the intervening period
between the
conclusion of his service and his February1987 diagnosis of syphilis, his
subsequent
syphilis treatment in 1987, or his follow-up consultations in 1988 and
1989.
Significantly, the Board received records from Franklin Squarein
February2004 and
from [Baltimore County Public Health] in May 2008, after the two
statements were
issued, and has no medical records whatsoever between service and 1987.
More
significantly, these records show early latent syphilis in February 1987
and do not
include a diagnosis of neurosyphilis.
...
Neither medical opinion accounts for why [Mr. Lowry]'s February 1987
syphilis
diagnosis was characterized as "early latent," nor do they account for why
he would
continue to develop new neurological and psychological complications from
a
disease, despite all laboratory testing coming up negative for a current
infection.
Consequently, these opinions hav[e] little probative value. Not only are
they rife
with factual inaccuracies, they are based entirely on [Mr. Lowry]'s
account of his
symptoms, treatment and diagnoses.
R. at 18-19. The Board went on to discuss why it did not find Mr. Lowry
credible, including
contradictory statements that he made throughout the course of the appeal
and the lack of evidence
6


in his service treatment and post-service medical records. The Court
finds the Board's discussion
thorough and logical, particularly in light of the several remands made
from this Court instructing
the Board to further explain its findings. Although Mr. Lowry does not
ultimately agree with the
Board's findings, the Court cannot discern any instances of the use of
improper medical judgment
or mischaracterization of the facts.
Mr. Lowry next argues that the Board's use of The Merck Manual to explain
the definition
of "latent syphilis" was improper and constituted an improper use of
medical judgment. Although
the Court acknowledges that the Board may not exercise independent medical
judgment, see Colvin
v. Derwinski, 1 Vet.App. 171, 175 (1991), the Court does not equatethe
Board's citing a medical text
for the definition of a term with independent medical judgment. The Merck
Manual is an accepted
general medical text, and it is often used by this Court to supplement the
definitions of medical
terms. See, e.g., Brokowski v. Shinseki, 23 Vet.App. 79, 82, n.6 (2009) (
citing to The Merck Manual
to define peripheral vascular disease); Barr v. Nicholson, 21 Vet.App. 303,
308 (2007) (citingto The
Merck Manual to define varicose veins). Further, the Court has held that,
in a Board decision,
"'reasons or bases' could include relevant portions of medical treatises
and journals, epidemiological
studies, [and] perhaps even references to legal decisions on the same
issues." Murphy v. Derwinski,
1 Vet.App. 78, 81 (1990). Therefore, because the Board cited The Merck
Manual only to provide
a definition for a medical term, it did not violate the principle that the
Board may not exercise its
own independent medical judgment.
Similarly, Mr. Lowry argues that the Board made an improper medical
judgment by
discounting the Baltimore County Public Health record, as opposed to
supplementing the document
pursuant to Previous HitSavageNext Hit. Again, the Court disagrees. In Previous HitSavageNext Hit, the Court held
that, "in some
circumstances, VA does have a duty to return for clarification unclear or
insufficient private
examination reports . . . , or the Board must explain why such
clarification is not necessary."
24 Vet.App. 259, 260 (2011). The Court further explained that:
It should be clearly understood, then, that we do not interpret VA
statutes and
regulations as establishing a broad requirement that VA inquire of private
medical
experts regarding the opinions expressed in their examination reports or
the general
bases therefor. Indeed, we do not expect that clarification of a private
examination
report will be necessary in most instances . . . .
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Rather, our holding is limited to those instances in which the missing
information is
relevant, factual, and objective–that is, not a matter of opinion–and
where the
missing evidence bears greatly on the probative value of the private
examination
report.
Id. at 270 (first and third emphasis added). In that case, the Court held
that VA violated its duty to
seek clarification of a private medical opinion where it failed to inquire
as to a precise and
discernable fact, which speech recognition test the private physician had
used, information that was
"factual, objective" and did "not in any way rely on the opinion of the
examiner." Id.
Here, Mr. Lowry contends that VA had a duty to seek clarification of the
letter provided by
the Baltimore County Public Health Department. That letter states:
This is an old medical record retrieved from the Maryland State [
sexuallytransmitted
disease] medical archives. Mr. Lowry was seen at the Essex [sexually
transmitted
disease] clinic initially on February23, 1987. His [rapid plasma reagin]
was reactive
with a titer of 1:32 and a positive [fluorescent treponemal antibody]. Mr.
Lowry
returnedto [the]Essex [sexuallytransmitteddisease]cliniconMarch16,
1987where
he was treated with 2.4 [million units] of Bicillin for early latent
syphilis.
R. at 175. However, as stated above, the Court explicitly declined to
interpret VA's duty to seek
clarification of a private medical record to situations where, as here,
the ambiguity in the private
medical record arises from the physician's failure to provide a medical
opinion, for example, an
opinion as to the exact date Mr. Lowry initially acquired syphilis. This
is simply not the kind of
narrow, discreet, factual, and objective information that can form the
basis of VA's duty to seek
clarification of a private medical opinion. See Previous HitSavageNext Document, supra.
Consequently, the Court concludes
that the Board did not clearlyerr bynot seeking clarification of the
letter from the Baltimore County
Public Health Department.
In the same vein, Mr. Lowry next argues that the Board erred in not
obtaining all available
medical records, therefore violating the duty to assist. Specifically, he
argues that after receiving the
letter from the Baltimore County Public Health Department, the Board had a
duty to obtain
additional original medical records; he states that "[t]he letter also
does not saywhether all available
records were reviewed or whether all of the information on the available
records is included in the
summary stated in the letter." Appellant's Br. at 9. In its decision, the
Board found that "VA . . .
8


fulfilled its dutyto assist[,]" noting thattheregionaloffice"obtained [Mr.
Lowry's] servicetreatment
records, VA treatment records, Social Security Administration records, and
those private medical
records that he and his attorney and prior representative identified as
pertinent." R. at 10.
After a review of the record, the Court concludes that the Board did not
clearly err by not
requesting any additional treatment records from the Baltimore County
Public Health Department.
Although Mr. Lowry indicated that there were possibly additional records
available from the
Baltimore County Public Health Department, there is no indication from the
record that he provided
VA with the additional information required to obtain those records. See
38 U.S.C. § 5103A(b)(1).
Accordingly, the Court concludes that Mr. Lowryhas not carried his burden
of demonstrating error.
See Hilkert v. West, 12 Vet.App. 145, 151 (1999), aff'd 232 F.3d 908 (Fed.
Cir. 2000) (table).
Finally, Mr. Lowryargues that the Board's decision is written in an
argumentative and biased
manner and that it is illogical because the reasoning used to deny his
claim in the October 2009
decision differs from the rationale proffered in the prior vacated Board
decisions. Once again, the
Court disagrees. With regard to Mr. Lowry's argument about bias, he cites
to 38 C.F.R. § 4.23 for
the proposition that:
rating officers must not allow their personal feelings to intrude; an
antagonistic,
critical, or even abusive attitude on the part of a claimant should not in
any instance
influence the officers in the handling of the case. Fairness and courtesy
must at all
times be shown to applicants by all employees whose duties bring them in
contact,
directly or indirectly, with the Department's claimants.
38 C.F.R. § 4.23 (2011). Although the Court agrees with and emphasizes
the importance of this
principle, the Court cannot discern from the record any instance of bias
or unfairness that
compromised the adjudication process in Mr. Lowry's appeal. To the
contrary, as was noted above,
the Court acknowledges that, given the lengthy procedural history in this
case and the fact that the
Board was instructed on several different occasions to clarify its reasons
or bases, a more detailed
discussion of why Mr. Lowry's claims were being denied was required. See,
e.g., Fletcher v.
Derwinski, 1 Vet.App. 394, 397 (1991) (Court reminding the Board that a
remand "is meant to entail
a critical examination of the justification for the decision"). The Court
concludes that, as outlined
above, such a statement of reasons or bases was provided here. Upon review
of the record and the
Board decision, the Court can simply not conclude that the manner in which
the Board decision was
9


written goes against VA's nonadversarial adjudication system. See
Henderson v. Shinseki, 131 S. Ct.
1197, 1200 (2011) (noting that "VA's process for adjudicating [a claim] at
the regional office and
the Board is ex parte and nonadversarial").
Turning to Mr. Lowry's argument that the Board decision should be vacated
because the
Board used different reasoning to deny Mr. Lowry's claims in October 2009
than in the previous
Board decisions, this argument is also without merit. Throughout the
course of Mr. Lowry's appeal,
during much of which he was represented by an attorney, he was provided
with the opportunity to
provide additional evidence each time his claim was remanded, and he did
so. Accordingly,
evidence was added to the record at various points in the appeal process.
The Court notes that
"Determinations as to service connection will be based on review of the
entire evidence of record"
and not merely on the evidence that was of record at the time of a prior
remand. 38 C.F.R.
§ 3.303(a) (2011) (emphasis added); see also 38 C.F.R. § 19.7 (2011) ("
Decisions of the Board are
based on a review of the entire record.") (emphasis added). Therefore, it
logically dictates that the
reasoning employed in the Board decision would not remain static as the
evidence was added to the
record. Further, once a prior Board decision has been vacated, it has been
nullified or cancelled and
is void. See BLACK'S LAW DICTIONARY 1688 (9th ed. 2009). Accordingly, the
reasoning employed
in that Board decision also becomes null and void and is therefore
inapplicable to any subsequent
adjudication that takes place as part of the appeal.
For the reasons outlined above, the Court concludes that the Board
provided an adequate
statement of reasons or bases for its decision. See Gilbert, 1 Vet.App. at
57. Accordingly, the Court
will affirm the October 2009 Board decision.
III. CONCLUSION
Upon consideration of the foregoing, the October 27, 2009, Board decision
is AFFIRMED.
DATED: August 5, 2011
Copies to:
David E. Boelzner, Esq.
VA General Counsel (027)
10