Veteranclaims’s Blog

February 23, 2011

Single Judge Application Libertine v. Brown, 9 Vet.App., Medical Treastise and Medical Nexus

Filed under: Uncategorized — Tags: , — veteranclaims @ 4:45 pm

Excerpt from decision below:
“Even assuming that the paragraph from Mr.Crump’s statement constitutes medical treatise evidence, this Court has previously held that such generalized medical literature is too generic to independently establish a medical nexus between a veteran’s particular in-service injury and a currently diagnosed condition. See, e.g., Libertine v. Brown, 9 Vet.App. 521, 523 (1996). Accordingly, the quoted portion of the medical article was not material to the issue critical to the adjudication of Mr. Crump’s claim: a direct connection between his in-service sun exposure and his currently diagnosed basal cell carcinoma of the nose. The Board therefore did not err by failing to discuss this evidence. See Caluza, 7 Vet.App. at 506.”
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 08-1187
THOMAS B. CRUMP, 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: Thomas B. Crump appeals through counsel a January 2, 2008,
Board of
Veterans’ Appeals (Board) decision that denied entitlement to VA benefits
for a residual shell
fragment wound scar on the back of the head and for basal cell carcinoma
of the nose. The Court
has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a) to review
the January 2008 Board
decision. Because the Board provided an inadequate statement of its
reasons or bases in determining
that there is no evidence that Mr. Crump has a residual scar on the back
of his head, the Court will
vacate that portion of the January 2008 Board decision and remand the
matter for further
development and readjudication consistent with this decision. Because the
Board relied on an
adequate medical opinion and provided a sufficient statement of its
reasons or bases, the Court will
affirm that portion of the Board’s January 2009 decision that denied
entitlement to VA benefits for
basal cell carcinoma of the nose.
I. FACTS
Mr. Crump served on active duty with the U.S. Marine Corps from August
1940 until March
1967, including service in the Asiatic-Pacific Campaign during World War
II and in the Korean
Conflict. Mr. Crump also participated in the defense of Pearl Harbor on
December 7, 1941, when
it was attacked by the Empire of Japan.

In September 2003, Mr. Crump filed a claim for VA benefits for a scar on
the back of his
head, indicating that it was the result of a wound he suffered during the
attack on Pearl Harbor. In
November 2003, Mr. Crump submitted a statement in support of his claim,
indicating that he
suffered this wound when he was hit in the back of the head byshrapnel
during the bombing of Pearl
Harbor and that he was treated for it outside the naval hospital. A
separate statement previously
submitted by Mr. Crump in connection with an unrelated claim also recounts
these events and states
that his name was not taken at the hospital due to the chaos of the moment.
In addition to his own
statements, a former gunnery sergeant that served with Mr. Crump at Pearl
Harbor offered a letter
dated November 2003 stating that Mr. Crump had been wounded in the head
during the attack.
Also in November 2003, Mr. Crump applied for VA benefits for basal cell
carcinoma of the
nose.
In July 2003, Mr. Crump was afforded a VA medical examination with a nurse
practitioner.
In the examiner’s report, several claimed conditions were noted, including
basal cell carcinoma,
which Mr. Crump told the examiner had been diagnosed in 1990. The report
also indicated that Mr.
Crump told the examiner that he believed the cancer was caused by sun
exposure during his long
period of active duty. The examiner diagnosed Mr. Crump with “basal cell
carcinoma of the nose
by history; status post[-]skin grafting,” but concluded that “this
condition was not diagnosed until
1990 and is not likely related to military service.” Record (R.) at 589.
In April 2004, a VA regional office denied both of Mr. Crump’s claims and
in May 2004 he
filed a Notice of Disagreement.
In July 2004, Mr. Crump submitted a statement in support of his claim,
explaining that he
had been stationed in South Carolina and California for a period of time
and that his duties required
him to be constantly exposed to sun. He also stated that several
dermatologists that treated him
informed him that “the damage to [his] face was caused from the cumulative
results of excessive
exposure to sun.” R. at 439. Finally, Mr. Crump quoted from an article he
represented was written
by a private dermatologist:
“When your skin absorbs the sun’s rays, those rays actually damage the DNA
in your
skin’s cells. This damage causes the cells to become dysfunctional.
Dysfunctional
cells don’t behave properly, the results of which include a reduction in
the production
of collagen and elastin (the substances in the skin that support it and
make it plump
2

and healthy), a thinning of the top layer of skin, a halt in the skin’s
natural ability to
slough off its dead layers, and a rise in pigmentation. In the worst cases,
these
dysfunctional cells become cancerous.”
R. at 439.1
In March 2005, Mr. Crump submitted medical records pertaining to his basal
cell carcinoma
claim, one of which indicated that he had been diagnosed with the
condition as early as December
1982.
After further development, Mr. Crump appealed both claims to the Board.
In April 2007, Mr. Crump was afforded another VA medical examination. The
examiner’s
report indicates that Mr. Crump reported a lot of in-service sun exposure
and having been wind
burned while stationed in Alaska. It also indicates Mr. Crump reported
having worked as a farmer
following service but that he “state[d] he wore [a] wide brimmed hat and
long sleeves nearly
constantly.” R. at 72. In documenting Mr. Crump’s history of skin
conditions, the examiner noted
that he had been treated for three lesions of the left cheek and temple
area while in service. The
examiner ultimately provided the following medical opinion:
I would state that [the] left cheek lesions are at least as likely [
service connected],
multiple other lesions to include the nose [and other areas] are not.
There is evidence
in [the service medical records] of treatment of left cheek lesions [
diagnosed as]
senile keratosis. . . . There is no evidence of treatment of other skin
lesions in
service, [with] civilian treatment documented startingin [the] 1980[]s.
Althoughper
[Mr. Crump] he did have [a lot] of sun exposure/sunburns in the tropics
and wind
burn in Alaska, he also worked as a [f]armer for decades which could have
contributed greatly to sun exposure and resulting skin changes. It would
be only
mere speculation to say that any lesions other than the left cheek [
lesions] were
[service connected] some 50-60 y[ea]rs ago.
R. at 76.
In September 2007, Mr. Crump testified at a hearing before the Board. At
that time, Mr.
Crump stated that, in the past, the scar on the back of his head from the
wound he suffered during
the bombing of Pearl Harbor would occasionally trouble him by getting
sunburned, becoming
Mr. Crump’s statement indicates that a copy of this article was attached
to his statement, but no such copy is
included in the record of proceedings.
1
3

irritated when wearing a cap, and causing a burning sensation, but that
he currently had no problems
with the scar.
In January 2008, the Board issued the decision now on appeal, denying Mr.
Crump’s claim
for VA benefits for a shell fragment wound scar on the back of the head
because there was no
medical evidence of such a scar and denying his claim for VA benefits for
basal cell carcinoma of
the nose because the June 2003 and April 2007 VA medical opinions
preponderated against the
claim.
II. ANALYSIS
A. Residual Shell Fragment Wound Scar
Mr. Crump first contends that, with respect to his residual scar claim,
the Board clearlyerred
in determining that VA satisfied its duty to assist. The Secretary
concedes error as to the Board’s
finding on Mr. Crump’s residual scar claim, but characterizes that error
as one in which the Board
failed to provide a sufficient statement of its reasons or bases.
IndenyingMr. Crump VA benefits for the residual scar, the BoardfoundthatMr.
Crumpwas
competentto providetestimonyregardinghis in-
serviceheadinjuryandthatthetestimonyheoffered
was credible. However, the Board concluded that there was no evidence that
Mr. Crump now has
“a residual scar on the back of the head attributable to the Pearl Harbor
incident.” R. at 8. In support
of this finding, the Board stated that “[n]either the July 2003 nor the
April 2007 VA examination
makes any mention of the claimed residual scar and no medical evidence of
such residual scar has
been submitted.” R. at 8-9.
In fact, Mr. Crump has repeatedly asserted that he does have such a scar
on the back of his
head and that this scar is the result of the wound he suffered during the
bombing of Pearl Harbor.
For instance, during his September 2007 testimony before the Board he was
asked whether he
currently had a healed, non-tender scar on the back of his head from the
wound he suffered at Pearl
Harbor and he answered affirmatively.
When evaluating a claim for disability compensation benefits, 38 U.S.C. §
1154(a) requires
that VA give “due consideration” to “all pertinent medical and lay
evidence . . . .” With regard to
layevidence,it is well established that a veteran is competent to describe
observablesymptoms, such
as pain. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007).
Here, the Board did not
4

discuss the competency or credibility of Mr. Crump’s lay testimony during
the September 2007
hearing, nor of any of the other similar statements he offered throughout
the course of the
development of his claim. The Board’s failure to do so thus renders its
statement of reasons or bases
inadequate. See 38 U.S.C. § 7104(d)(1) (requiring that Board 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”); see also Caluza v. Brown, 7 Vet.App. 498, 506 (1995),
aff’d per curiam, 78 F.3d 604
(Fed. Cir. 1996) (table) (holding that to comply with reasons or bases
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). Accordingly, the Court will vacate that
portion of the Board’s January
2008 decision that denied entitlement to VA benefits for a residual shell
fragment wound scar and
remand the matter for further development and readjudication consistent
with this decision.
The Court also notes that, although the Board found that the July 2003 and
April 2007 VA
medical examination reports made no mention of the claimed scar, nothing
in either of those reports
indicates that the examiners were asked to confirm the existence of such a
scar or offer a nexus
opinion pertaining to it. The July 2003 examiner specifically listed all
claims pertinent to her
examination of Mr. Crump, but there was no mention of the residual scar
claim. Similarly, the April
2007 examiner prefaced his medical opinion byoutlining the questions he
had been asked to answer,
but, again, those questions did not pertain to the residual scar claim.
Accordingly, if on remand the
Board concludes that further medical evidence is necessary to adjudicate
Mr. Crump’s residual scar
claim,it should providehim with anadditionalVAmedicalexamination
andspecificallyrequest that
the examiner address any unresolved questions. See 38 U.S.C. § 5103A(d)(1
) (Secretary’s duty to
assist claimants includes “providing a medical examination or obtaining a
medical opinion when
such an examination or opinion is necessary to make a decision on the
claim”).
Further, on remand, Mr. Crump is free to submit additional evidence and
argument in
accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per
curiam order). See
Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Court reminds the Board
that “[a] remand is
meant to entail a critical examination of the justification for the
decision.” Fletcher v. Derwinski,
5

1 Vet.App. 394, 397 (1991). In addition, the Board shall proceed
expeditiously, in accordance with
38 U.S.C. § 7112 (expedited treatment of remanded claims).
B. Basal Cell Carcinoma of the Nose
Mr. Crump next contends that, with respect to his basal cellcarcinomaclaim,
the Board erred
by relying on the July 2003 VA medical examiner’s opinion, which he
asserts was inadequate, and
by failing to discuss the medical treatise evidence outlined in his July
2004 statement.
1. July 2003 Medical Opinion
Mr. Crump argues that the July 2003 VA medical opinion was inadequate
because it was not
supported by a sufficient rationale.
A medical examination “is adequate where it is based upon consideration of
the veteran’s
prior medical historyand examinations and also describes the disability
. . . 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)). Further, this
Court has previously explained that “most of the probative value of a
medical opinion comes from
its reasoning,” and that “[t]he Board must be able to conclude that a
medical expert has applied valid
medical analysis to the significant facts of the particular case in order
to reach the conclusion
submitted in the medical opinion.” Nieves-Rodriguez v. Peake, 22 Vet.App.
295, 304 (2008).
Whether a medical opinion is adequate is a finding of fact, which the
Court reviews under the
“clearly erroneous” standard. See 38 U.S.C. § 7261(a)(4); D’Aries v.
Peake, 22 Vet.App. 97, 103
(2008); Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990). “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 July 2003 VA medical examiner opined that it was not likely that Mr.
Crump’s basal cell
carcinoma of the nose was caused by his military service because it was
not diagnosed until 1990,
apparently concluding that the lapse of time between Mr. Crump’s in-
service sun exposure and this
diagnosis suggested the two were unrelated. However, subsequent to this
examination, Mr. Crump
submitted additional medical records indicating that he had been diagnosed
with the condition as
early as December 1982. Hence, not only was the reasoning employed bythe
July 2003 VA medical
6

examiner undermined to some degree, her opinion was no longer based on Mr.
Crump’s known and
complete medical history. See Nieves-Rodriguez, 22 Vet.App. at 304;
Ardison, 6 Vet.App. at 407.
Accordingly, the Board clearly erred in relying on the opinion.
However, the Court concludes that this error did not prejudice Mr. Crump.
See 38 U.S.C.
§ 7261(b) (requiring the Court to take due account of the rule of
prejudicial error). In denying Mr.
Crump’s basal cell carcinoma claim, the Board also relied on the April
2007 VA medical examiner’s
opinion. That opinion did take into consideration the medical records
indicating a December 1982
diagnosis.
The examiner concluded that, in the absence of some evidence of in-service
symptoms—such as the cheek lesions Mr. Crump experienced while in
service—and due to the
passage of time, he would have to resort to mere speculation if he were to
offer an opinion as to
whether Mr. Crump’s in-service sun exposure and wind burns were more, less,
or equally as likely
to have caused his current basal cell carcinoma of the nose than his post-
service farming career.
Mr. Crump has not challenged the adequacy of this opinion. Further, this
Court has
previously explained that “an examination is not inadequate merely because
the examiner states he
or she cannot reach a conclusion without resort to speculation” so long as
the “examiner has done
all that reasonably should be done to become informed about a case . . .
and the inability to render
a requested opinion is adequately explained.” Jones v. Shinskei, 23 Vet.
App. 382, 391 (2010).
Accordingly, the Board’s reliance on the April 2007 VA medicalexaminer’s
opinion was appropriate
and there was a plausible basis for the Board’s determination that Mr.
Crump failed to establish his
entitlement to VA benefits for basal cell carcinoma of the nose. Thus, the
Court concludes that the
Board’s reliance on the inadequate July 2003 VA medical examiner’s opinion
did not prejudice Mr.
Crump.
2. Consideration of Medical Treatise Evidence
Mr. Crump next contends that the Board’s statement of its reasons or bases
was inadequate
because the Board failed to discuss the portion of the dermatologist’s
article he quoted in his July
2004 statement in support of his claim. To comply with the reasons-or-
bases requirement of
38 U.S.C. § 7104(d)(1), 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, 7 Vet.App. at 506.
7

Theportion ofthemedicalarticleMr.Crump quotedfromin his
July2004statementoutlined
the connection between sun exposure and the development of skin cancer.
The Board did not
explicitly discuss this evidence in its decision. However, Mr. Crump’s
basal cell carcinoma claim
was not denied by the Board on the basis of a finding that there is no
connection between sun
exposure and skin cancer; rather, the Board denied the claim because the
most probative medical
nexus evidenceofrecord—theApril2007 VA medicalexaminer’s
opinion—concluded that it would be impossible to determine whether the condition was at least as likely as not related to the in-service sun exposure, given the post-service exposure to sun Mr. Crump likely experienced as a farmer and the lack of evidence of in-service symptoms of the condition. Even assuming that the paragraph from Mr.Crump’s statement constitutes medical treatise evidence, this Court has previously held that such generalized medical literature is too generic to independently establish a medical nexus between a veteran’s particular in-service injury and a currently diagnosed condition. See, e.g., Libertine v. Brown, 9 Vet.App. 521, 523 (1996). Accordingly, the quoted portion of the medical article was not material to the issue critical to the adjudication of Mr. Crump’s claim: a direct connection between his in-service sun exposure and his currently diagnosed basal cell carcinoma of the nose. The Board therefore did not err by failing to discuss this evidence. See Caluza, 7 Vet.App. at 506.

III. CONCLUSION
Upon consideration of the foregoing, that portion of the January2, 2008,
Board decision that
denied entitlement to VA benefits for a residual shell fragment wound scar
on the back of the head
is VACATEDandthematteris REMANDEDforfurtherdevelopment and readjudication
consistent
with this decision. That portion of the January 2, 2008, Board decision
that denied entitlement to
VA benefits for basal cell carcinoma of the nose is AFFIRMED.

DATED: February10, 2011
Copies to:
Jeany C. Mark, Esq.
VA General Counsel (027)
8

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