Single Judge Application, questionable wasting is Speculative Language; 38 C.F.R. 4.56 (2012); VA Clinician's Guide

Excerpt from decision below: "The rating schedule states that "[a]ccurate measurement . . . should be insisted on" and that "[m]uscle atrophy must also be accurately measured and reported." 38 C.F.R. § 4.46 (2012). As noted earlier, muscle wasting is the same as muscle atrophy, and the VA rating schedule lists "atrophy" as one of the objective findings used to rate the severity of a muscle injury and also notes that "the cardinal signs and symptoms of muscle disability [include] loss of power [and] weakness." 38 C.F.R. § 4.56 (2012). Furthermore, the VA Clinician's Guide is designed to provide guidance to clinicians performing compensation and pension (C&P) examinations, and because the July 2010 examination was a C&P examination, the guide's provisions have general applicability here. Camacho v. Nicholson, 21 Vet.App. 360, 364 (2007) ("The VA Clinician's Guide . . . is a guide to VA doctors providing generalized direction for the proper conduct of disability examinations."). The VA Clinician's Guide provides clinicians with guidance for testing muscle weakness. VA CLINICIAN'S GUIDE, s. 0.1, 11.7 (important elements of a disability examination for muscle disease or injury), 11.8 (standard muscle strength grading system). In this case, the Board relied on the opinion of the July 2010 VA examiner, who concluded that Mr. Dubose did not have a "current disorder of the chest wall which is related to 9 his time in the military." R. at 280. However, the examiner reported that Mr. Dubose suffered from "questionable slight muscle wasting inferior to the [service-connected] scar." R. at 279. After making that observation, she did not provide a conclusion as to whether the veteran has muscle wasting, and, if so, whether it is as likely as not that the wasting or atrophy is associated with Mr. Dubose's service-connected scar. R. at 279-80. The examiner did not indicate that she had compared the muscles on the left side of Mr. Dubose's chest, where she noted "questionable wasting" below his service-connected scar, with the same muscles on the right side. VA CLINICIAN'S GUIDE, s. 11.7(b)(2) ("When there is muscle atrophy, record the circumference of the atrophic muscle and the comparison muscle on the opposite side."). The Board, in assigning probative weight to this opinion and using it to support the denial of service connection, failed to explain its reliance on a medical examination report that included speculative language, as opposed to conclusive information, concerning the existence and etiology of any muscle wasting. In addition, the July 2010 VA examination report that the Board relied on to deny service connection found that there were no tests to assess whether weakness of the chest wall exists. R. at 279. However, given the existence of the above-cited VA rating schedule provisions and guidance to clinicians who perform C&P examinations, the Board erred in failing to explain why it relied on a medical examination that did not include appropriate testing and assessment of muscles of the chest wall. R. at 279; see 38 C.F.R. §§ 4.40, 4.46, 4.56 ( 2012); VA CLINICIAN'S GUIDE secs. 0.1, 11.7, 11.8. In short, the examiner did not explain her conclusion and the Board, likewise, in relying on the examination report to deny service connection, did not provide reasons or bases, given the existence of VA regulations and guidance on this topic, for accepting the doctor's unexplained conclusion that such testing is not available. Given the deficiencies in the examination report, the Board decision should have addressed the issues discussed above. However, the Board relied on the July 2010 medical opinion without discussing or resolving these inconsistencies and inadequacies. R. at 10. 10 Therefore, the Board failed to provide an adequate statement of the reasons or bases for its findings and conclusions, and this frustrates judicial review. See Allday and Gilbert, both supra." ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 11-2851 DAVID F. DUBOSE, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before BARTLEY, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. BARTLEY, Judge: The veteran, David F. Dubose, who is self-represented, appeals a July 25, 2011, Board of Veterans' Appeals (Board) decision that denied his claim for entitlement to service connection for a disability manifested by pain and weakness of the left side of the chest, to include as secondary to service-connected residuals from a left ribcage stab wound. Record (R.) at 3-11. The Board also determined that the record reasonably raised a claim for an increase in the disability evaluation for Mr. Dubose's service-connected residual scar from a left ribcage stab wound. R. at 4. The Board referred that claim to the agency of original jurisdiction for appropriate action and, therefore, that claim is not before the Court because it was not the subject of a final Board decision. See Breeden v. Principi, 17 Vet.App. 478 (2004). Single- judgedisposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). This appeal is timely and 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 July 25, 2011, Board decision and remand the matter for further proceedings consistent with this decision. I. FACTS Mr. Dubose served on active duty in the U.S. Army from November 1975 to November 1978. R. at 444. In July 1976, he sustained and was treated for a superficial stab wound to the left side of the chest. R. 371, 378. Swelling and tenderness to palpation were noted at that time, associated with a localized bacterial infection. R. at 388-89. In October 1978, Mr. Dubose's separation examination indicated that his lungs, chest, and heart were each normal. R. at 369-70. In December 2001, Mr. Dubose filed a claim for VA disability benefits based on service connection for residuals of the left ribcage stab wound that he received while on active duty. R. at 240-47. In February 2002, he told his VA physician that he had been suffering from intermittent pain in his left side for a year. R. at 155-56. Upon examination, the physician noted a "tender area localized [on the] left flank where [the] stab wound scar [ is located]." R. at 158. The physician observed that the tissue there was slightly different from that of the right side, "most likely due to scar tissue formation." R. at 158. In April 2002, the VA regional office (RO) sent a VCAA notice letter to Mr. Dubose. R. at 233-36. In November 2002, the RO issued a deferred rating decision and determined that a line of duty determination was necessary. R. at 221. In December 2002, the RO rendered an administrative decision that Mr. Dubose's stab wound was incurred in the line of duty and was not the result of misconduct. R. at 218-19. Subsequently, in December 2002, a VA examiner reported: [The veteran] states that he was stabbed in 1976 in Germany. He was hospitalized for approximately two weeks. He had problems with superficial infections and the scar was aspirated weekly for approximately six to eight weeks. He does not complain of any difficulties with breathing and denies tenderness to palpation of his left axíllary scar. R. 214-15. The assessment was traumatic scar with evidence of subcuticular neuroma1 from a stab Previous DocumentinjuryNext Hit. R. at 214. A neuroma is "a tumor growing from a nerve or made up largely of nerve cells and nerve fibers." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1266 (32d ed. 2011) [hereinafter " DORLAND'S"]. 2 1 In January 2003, the RO granted service connection for the scar as " residuals of a left ribcage stab wound" and assigned a disability evaluation of 10%, effective December 31, 2001. R. at 208-13. Almost three years later, in December 2005, Mr. Dubose requested an increased evaluation for his service-connected scar and stated he was experiencing " shortness of breath, weakness on left side, [and] pain." R. at 108. On January 13, 2006, Mr. Dubose underwent a VA scar examination. R. at 95- 96. The examiner noted that the service-connected scar was .15 centimeters at its maximum width and 1 centimeter at its maximum length, with no tenderness on palpitation; no inflammation; no elevation; no edema; no skin ulceration or breakdown over the scar; no keloid formation; no adherence to underlying tissue; and no depression of the scar. R. at 96. The examiner further noted that the scar was of normal texture with no inflexibility; was normal in color; had no underlying tissue loss; caused no disfigurement of the head, face, or neck; and did not limit motion or cause loss of function. R. at 96. On January 27, 2006, the RO issued a rating decision proposing to decrease the disability evaluation for Mr. Dubose's service-connected scar, "because the evidence fails to show a superficial scar that is painful on examination." R. at 89, 96 (scar does not demonstrate tenderness on palpitation). The RO also denied service connection for shortness of breath and for weakness and pain of the left side, both based on a lack of treatment and diagnosis. R. at 88. The following month, Mr. Dubose submitted a document that he labeled " Notice of Disagreement" (NOD), expressing his objection to all three aspects of the January 2006 rating decision and noting: "I am currently tak[ing] medication for pain due to the service[-]connected left rib cage stab wound." R. at 85. The RO responded with a letter that explained to Mr. Dubose that it could not accept his submission as an NOD to the proposed rating reduction because it was only a proposed action. R. at 82. Also in February 2006, a VA progress note indicated that Mr. Dubose complained of pain in his lower chest, that he related this pain to the stab wound he received during his military service. R. at 75-77. The physician reported that Mr. Dubose was "taking lortab for this from somewhere[, but] otherwise, no concerns." R. at 75-77. In March 2006, Mr. Dubose requested that a decision review officer (DRO) review his claims, de novo. R. at 74. After this review, the DRO issued a Statement of the Case that continued to deny the claims for service connection for shortness of breath and for weakness and pain of the left side. R. at 54-72. Mr. Dubose promptly submitted a VA Form 9, stating that he was appealing (1) the proposed reduction for residuals of a left ribcage stab wound, (2) denial of service connection for shortness of breath, and (3) denial of service connection for pain and weakness of the left side, the latter two claims to include as secondary to service-connected residual scar from left ribcage stab wound. R. at 51-52. Two months later, in a VA rating decision dated May 5, 2006, the RO reduced Mr. Dubose's disability evaluation for his service-connected scar from 10% to 0%. R. at 43. The RO explained that the decision was based on the January 2006 medical examination, which found that "[t]he scar was not tender to palpation" and on the fact that, despite Mr. Dubose's statement that he took pain medication for the scar, his "treatment reports revealed no treatment for your scar." R. at 43. The May 10, 2006, letter that accompanies the rating decision informed Mr. Dubose what to do if he disagreed with the decision. R. at 40. The record of proceedings does not reflect that Mr. Dubose submitted an NOD or any other document objecting to the actual reduction, nor did he appeal this decision. Also in May 2006, Mr. Dubose's claims for service connection for shortness of breath and for weakness and pain of the left side were certified to the Board. R. at 35-38. Four years later, in April 2010, the Board denied service-connected disability benefits for shortness of breath on the basis that no respiratory disorder was shown in service or currently. R. at 21-32. The Board also remanded Mr. Dubose's claim for disability benefits for pain and weakness on the left side so that VA could obtain a medical opinion on the issue of whether Mr. Dubose suffered from a current disability manifested by these complaints and, if so, whether there was a relationship to his military service. R. at 21-32. In July 2010, a VA examiner reviewed Mr. Dubose's claims folder and noted: " no treatment noted or diagnosis of weakness or pain related to the stab wound noted in the service medical record," and "[n]o respiratory issues," and concluded by determining that the "separation examination was basically normal." R. at 279. The examiner recorded Mr. Dubose's reported history and symptoms: 4 [The veteran] was stabbed with a type of slim jim in the left side of his chest. His lungs were not punctured. He did have consequences of cellulitis2 and potential abscess formation afterwards. There was no respiratory issue at the time. He denied problems prior to military service. He has pain occasionally in the left inferior lower aspect of his chest. There is no swelling, locking, or instability. He did not have surgery, but from [w]hat he described he did have I&Ds performed. The laceration was sutured, but he did require hospitalization for his cellulitis and/or abscesses. R. at 279. The examiner then performed a physical examination and noted: Examination of approximately T10 on the left in the mid-axillary area reveals a scar which is 0.8 x 0.1 cm. There is questionable slight muscle wasting3 inferior to the scar noted. The scar itself displays hyperalgesia [increased sensitivity to pain],4 but there is no erythema [redness],5 induration [hardness],6 or keloid formation [elevation].7 It does appear neurovascularly intact. There [are] no respiratory difficulties associated with [the] scar. There is no use of accessory respiratory muscles. Lungs are clear in all fields. The assessment of weakness of the anterior or maxillary chest wall is difficult to determine. There are no specific tests which can test for this, however, it did not appear ther[e] was weakness noted. There was no anatomic deformity noted from this superficial stab wound to the left mid-axillary area. Id. The VA examiner then opined that "[i]t is less likely than not that the [v] eteran has a current disorder of the chest wall which is related to his time in the military [because] there is no clear or chronic disability from his superficial stab wound which occurred 35 years ago and at the time was associated with cellulitis and/or abscess formation." R. at 280. On July 25, 2011, the Board issued the decision on appeal. R. at 2-14. Initially, the Board noted that Mr. Dubose's recent VA examination "suggest[ed] that the . . . stab wound scar was tender to palpation." R. at 4. The Board concluded that, because Mr. Dubose's scar was 2 3 Cellulitis is usually caused by infection of a wound by bacteria. DORLAND'S at 325 (32d ed. 2011). DORLAND'S at 978. 4 DORLAND'S at 886. 5 DORLAND'S at 643. 6 DORLAND'S at 933. 7 DORLAND'S at 978. 5 currently evaluated as noncompensable, a claim for an increased evaluation of the veteran's service-connected scar disability had been raised by the record but not adjudicated by the agency of original jurisdiction (AOJ). R. at 4. Therefore, the Board referred the claim for an increased evaluation for the veteran's service-connected noncompensable scar to the AOJ for "appropriate action." R. at 4. The Board reviewed Mr. Dubose's history and the treatment records for his service- connected scar. R. at 8. It discussed the July 2010 VA examination for evaluation of any current weakness and pain in the left chest and noted Mr. Dubose's statements at that examination. R. at 9. The Board relied on the examiner's diagnosis that the "stab wound . . . was resolved except for subjective tenderness to palpation on examination" and on his conclusion that "it is less likely than not that the Veteran had a current disorder of the chest wall which is related to his time in the military [because] there is no clear or chronic disability from his superficial stab wound which occurred 35 years ago and at the time was associated with cellulitis and/or abscess formation." R. at 10. It concluded: "After reviewing the evidence of record, the Board finds that other than the Veteran's already service-connected scar, the record fails to establish that a currently diagnosed condition manifested by pain and weakness of the left side of the chest exists." R. at 10. The Board discussed its duty to assist a veteran in the development of a claim, noted that VA had obtained relevant records and provided Mr. Dubose with VA examinations, and concluded that "the VCAA provisions have been considered and complied with." R. at 6. Accordingly, the Board denied that claim. R. at 12. This appeal followed. II. ANALYSIS A. Reduction of Disability Evaluation for Service-Connected Scar Mr. Dubose states that he has only one issue before the Court, which he identifies as "evaluation of residual from left rib cage stab wound, which is currently evaluated [at] 10 percent disabling, is dec[r]eased to 0 percent effective 08/01/2006." Appellant's Brief (Br.) at 1. He argues that the Court should "restore my 10 percent for my Service Connected Residuals of Left Rib Stab wound [sic]." Appellant's Br. at 2. The Secretary argues that the issue of a higher evaluation for Mr. Dubose's service-connected scar and the May 2006 reduction from 10% to a noncompensable evaluation are not before the Court. Secretary's Br. at 14. The Court agrees with the Secretary. The Court's jurisdiction is over final Board 6 decisions. See 38 U.S.C. § 7252; Jarrell v. Nicholson, 20 Vet.App. 326, 330-32 (2006) (en banc). In this case, the Board decision on appeal concluded that the record raised an unadjudicated claim for an increased disability evaluation for Mr. Dubose's service-connected scar, and referred that claim to the AOJ for "appropriate action." R. at 4. Because the claim has been referred to the AOJ, it is not before the Court. See Jarrell, supra. The Board decision also denied Mr. Dubose's claim for disability benefits based on service connection for pain and weakness of the left side of the chest, to include as secondary to service- connected residuals from a left ribcage stab wound. R. at 3-11. The denial of that claim is the sole issue before the Court. Regarding the prior reduction of Mr. Dubose's disability evaluation, VA may not reduce a veteran's disability evaluation unless it follows certain detailed procedures that are designed to provide the veteran with advance notice of a proposed reduction and an opportunity to contest the reduction and to submit evidence "to show that compensation payments should be continued at their present level." 38 C.F.R. § 3.105(e) (2012); see Majeed v. Principi, 16 Vet.App. 421, 433-34 (2002); see also Hargrove v. Shinseki, 629 F.3d 1377, 1379-81 (Fed. Cir. 2012) (J. Newman, dissenting) (although majority held that the U.S. Court of Appeals for Veterans Claims correctly dismissed petition because veteran had not exhausted his administrative remedies, VA nonetheless erred by failing to notify veteran that NOD could not be accepted because it was responding to proposed, rather than actual, reduction decision). In this case, Mr. Dubose submitted several documents to VA between January and March 2006, objecting to the January 2006 proposed reduction of his disability evaluation. R. at 85 (February 15, 2006, objection to proposed reduction), 74 (March 9, 2006, request for DRO review of proposed reduction), 51-52 (March 23, 2006, VA Form 9 includes proposed reduction in list of items being appealed to Board). Unlike the veteran in Hargrove, who was not informed that VA could not accept an NOD to a proposed reduction, Mr. Dubose objected to the proposed reduction, prompting VA to send him a letter 10 days later, explaining that VA could not accept an NOD as to a proposed reduction and that an NOD "can only be filed on final actions." R. at 7 82; see R at 82-84. After he received notice of VA's May 5, 2006, reduction decision, Mr. Dubose did not submit an NOD or any other document objecting to this decision. Accordingly, the reduction decision became final and the Court concludes that the Board did not err or fail to provide an adequate statement of reasons or bases when it did not address the May 2006 decision that reduced his disability evaluation to noncompensable. See Jarrell, supra. B. Service Connection for Pain and Weakness on the Left Side of the Chest The Board decision on appeal denied Mr. Dubose's claim for entitlement to service connection for a disability manifested by pain and weakness of the left side of the chest, to include as secondary to service-connected residuals of a left ribcage stab wound. R. at 3-11. The Secretary asserts that the Court should affirm the decision because the Board correctly determined that Mr. Dubose does not have a current disability manifested by pain and weakness on the left side of the chest and because the decision "has a plausible basis in the record and is not clearly erroneous." Secretary's Br. at 5. As part of the duty to assist, the Secretary must, in appropriate cases, provide a claimant with a thorough and contemporaneous medical examination and opinion. 38 U. S.C. § 5103A; see Green v. Derwinski, 1 Vet.App. 121, 124 (1991). A medical report may be inadequate when it is speculative, such as when its conclusions include equivocal language such as "could" or "might," without any other rationale or supporting data. See Hood v. Shinseki, 23 Vet.App. 295, 298-99 (2009); Polovick v. Shinseki, 23 Vet.App. 48, 54 (2009) (doctor's statement that veteran's brain tumor "may well be" connected to Agent Orange exposure was speculative); Bloom v. West, 12 Vet.App. 185, 187 (1999) (use of term "could," without other rationale or supporting data, is speculative); Goss v. Brown, 9 Vet.App. 109, 114 (1996) (use of the phrase " could not rule out" was too speculative to establish medical nexus); Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992) (medical opinions are speculative and of little or no probative value when physician makes equivocal findings such as "the veteran's death may or may not have been averted"). In addition, the Board is required to include in its decision a written statement of the reasons or bases for its findings and conclusions on all material issues of fact and law presented 8 on the record. 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995). 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. Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (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. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). The VA rating schedule provides diagnostic codes (DCs) that are used to evaluate muscle Previous HitinjuryNext Hit. See 38 C.F.R. § 4.73 (2012). These DCs include criteria for evaluating muscles located in the midaxillary region, which is the location of the veteran's service-connected scar (R. at 279). See DCs 5301, 5302. The rating schedule states that "[a]ccurate measurement . . . should be insisted on" and that "[m]uscle atrophy must also be accurately measured and reported." 38 C.F.R. § 4.46 (2012). As noted earlier, muscle wasting is the same as muscle atrophy, and the VA rating schedule lists "atrophy" as one of the objective findings used to rate the severity of a muscle injury and also notes that "the cardinal signs and symptoms of muscle disability [include] loss of power [and] weakness." 38 C.F.R. § 4.56 (2012). Furthermore, the VA Clinician's Guide is designed to provide guidance to clinicians performing compensation and pension (C&P) examinations, and because the July 2010 examination was a C&P examination, the guide's provisions have general applicability here. Camacho v. Nicholson, 21 Vet.App. 360, 364 (2007) ("The VA Clinician's Guide . . . is a guide to VA doctors providing generalized direction for the proper conduct of disability examinations."). The VA Clinician's Guide provides clinicians with guidance for testing muscle weakness. VA CLINICIAN'S GUIDE, s. 0.1, 11.7 (important elements of a disability examination for muscle disease or injury), 11.8 (standard muscle strength grading system). In this case, the Board relied on the opinion of the July 2010 VA examiner, who concluded that Mr. Dubose did not have a "current disorder of the chest wall which is related to 9 his time in the military." R. at 280. However, the examiner reported that Mr. Dubose suffered from "questionable slight muscle wasting inferior to the [service-connected] scar." R. at 279. After making that observation, she did not provide a conclusion as to whether the veteran has muscle wasting, and, if so, whether it is as likely as not that the wasting or atrophy is associated with Mr. Dubose's service-connected scar. R. at 279-80. The examiner did not indicate that she had compared the muscles on the left side of Mr. Dubose's chest, where she noted "questionable wasting" below his service-connected scar, with the same muscles on the right side. VA CLINICIAN'S GUIDE, s. 11.7(b)(2) ("When there is muscle atrophy, record the circumference of the atrophic muscle and the comparison muscle on the opposite side."). The Board, in assigning probative weight to this opinion and using it to support the denial of service connection, failed to explain its reliance on a medical examination report that included speculative language, as opposed to conclusive information, concerning the existence and etiology of any muscle wasting. In addition, the July 2010 VA examination report that the Board relied on to deny service connection found that there were no tests to assess whether weakness of the chest wall exists. R. at 279. However, given the existence of the above-cited VA rating schedule provisions and guidance to clinicians who perform C&P examinations, the Board erred in failing to explain why it relied on a medical examination that did not include appropriate testing and assessment of muscles of the chest wall. R. at 279; see 38 C.F.R. §§ 4.40, 4.46, 4.56 ( 2012); VA CLINICIAN'S GUIDE secs. 0.1, 11.7, 11.8. In short, the examiner did not explain her conclusion and the Board, likewise, in relying on the examination report to deny service connection, did not provide reasons or bases, given the existence of VA regulations and guidance on this topic, for accepting the doctor's unexplained conclusion that such testing is not available. Given the deficiencies in the examination report, the Board decision should have addressed the issues discussed above. However, the Board relied on the July 2010 medical opinion without discussing or resolving these inconsistencies and inadequacies. R. at 10. 10 Therefore, the Board failed to provide an adequate statement of the reasons or bases for its findings and conclusions, and this frustrates judicial review. See Allday and Gilbert, both supra. Accordingly, the Court will remand the matter so that VA may provide Mr. Dubose with an adequate medical examination or explain why it is not necessary to do so, and provide an adequate analysis of the July 2010 examination report. On remand, Mr. Dubose is free to submit additional evidence and argument, including the arguments raised in his briefs to this Court, in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order), and the Board must consider any such evidence or argument submitted. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Board shall proceed expeditiously, in accordance with 38 U.S.C. §§ 5109B, 7112 (requiring Secretary to provide for " expeditious treatment" of claims remanded by Board or Court). III. CONCLUSION After consideration of the briefs and a review of the record, the Board's July 25, 2011, decision is VACATED and the matter is REMANDED to the Board for further proceedings consistent with this decision. DATED: October 31, 2012 Copies to: David F. Dubose VA General Counsel (027) 11

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