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March 17, 2011

Single Judge Application, C.F.R. 4.2, Inadequate Medical Opinion

Filed under: Uncategorized — Tags: — veteranclaims @ 5:19 pm

Excerpt from decision below:
“It is a medical examiner’s responsibility to provide a well-supported opinion so
that the Board may carry out its duty to weigh the evidence of record. See Nieves-
Rodriguez v. Peake, 22 Vet.App. 295, 304 (2008) (concluding that medical opinion is not entitled to any weight “if it contains only data and conclusions”); Stefl, 21 Vet.App. at 124 (stating that VA medical opinion “must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). A medical report may be inadequate if it fails to discuss something that is necessary. See 38 C.F.R. § 4.2 (2010).
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-1971
BOBBY W. OZBOLT, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MOORMAN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
MOORMAN, Judge: The appellant, Bobby W. Ozbolt, appeals through counsel a
May 15,
2009, Board of Veterans’ Appeals (Board) decision that denied entitlement
to service connection for
a skin disorder of the hands and feet. Record (R.) at 3-10. Both parties
filed briefs, and the appellant
filed a reply brief. This appeal is timely, and the Court has jurisdiction
pursuant to 38 U.S.C.
§§ 7252(a) and 7266(a). A single judge may conduct this review because
the outcome in this case
is controlled by the Court’s precedents and “is not reasonably debatable.”
Frankel v. Derwinski,
1 Vet.App. 23, 25-26 (1990). For the following reasons, the Court will
vacate the Board’s May2009
decision and remand the matter.
I. FACTS
A. Military, Medical, and Procedural History
Mr. Ozbolt served on active duty in the U.S. Army from March 1950 to March
1953. R. at
4, 1261, 1278. His service medical records reveal that Mr. Ozbolt was
treated for “[d]ermatitis,

venenata due to Rhus”1
during active service in 1952. R. at 1214, 1254; see R. at 1194, 1206. A
medical examination performed upon Mr. Ozbolt’s discharge from the Army
reveals a normal
clinical evaluation. R. at 1263-64.2
In May1953 followingdischarge fromthe Army, Mr. Ozbolt worked for Chandler
Products.
R. at 129, 884. In a statement, Mr. Ozbolt reported that he first worked
in the company’s shipping
room and then was transferred to the machine shop where he worked first as
an “I.D. grinder” for six
years and then as a trainee on carbide dyes. R. at 129. He stated that he
had no medical problems
for 20 years and then suddenly “came down with a rash on 90 percent of [
his] body” with blistering
between the fingers, toes, and feet. Id. He stated that he has been
examined by many doctors over
the years and at various hospitals and that he has been diagnosed as
having contact dermatitis. Id.
Statements
throughout
the
record
reveal
that
Mr.
Ozbolt
believes
that
the
dichlorodiphenyltrichloroethane (DDT) he used to treat athlete’s foot and
to repel lice and ticks for
three years while in service caused his skin condition.3
See R. at 37, 128-30, 514, 861, 1184.
In August 2004, Mr. Ozbolt filed a claim for compensation with VA for ”
injuryNext Hit to soles of
feet & palm of hands from the use of DDT powder” while in service. R. at
1171-83. The claim
indicates that Mr. Ozbolt received disability benefits from the Office of
Workers’ Compensation for
irritant contact dermatitis. R. at 1171. In September 2004, a VA regional
office (RO) sent a notice
to Mr. Ozbolt, advising him of the evidence needed to substantiate his
claim. R. at 1151-56.
Mr. Ozbolt has submitted numerous private medical opinions and records of
treatment
indicating that he has been diagnosed as having contact dermatitis. R. at
775, 812, 884-85, 890, 891,
892-93, 895-96, 964, 1157, 1159, 1161, 1163-64, 1165-66, 1167. One such
record notes that Mr.
Ozbolt’s condition “arose from a contact irritant dermatitis received at
work in 1973.” R. at 890.
Dermatitis venenata is “1. allergic contact d[ermatitis] 2. former name
for contact dermatitis due to exposure
to sensitizing agents in plants.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY
503 (31st ed. 2007)[hereinafter
“DORLAND’S”]. Rhus dermatitis is “allergic contact dermatitis due to
exposure to plants of the genus Rhus that contain
the sensitizing agent urushiol; the most common plants are poison ivy,
poison oak, and poison sumac.” DORLAND’S at
502.
2
1
The report of medical examination is partially illegible.
Dichlorodiphenyltrichloroethane is “a chlorinated hydrocarbon pesticide
moderately toxic to humans and other
animals; it was formerly widely used but is now banned in the United
States except for a few specialized purposes
because of the ecological damage it causes.” DORLAND’S at 480.
3
2

Others note that Dr. Castrovinci, a private physician, diagnosed irritant
contact dermatitis and found
a positive patch test to cutting oil. R. at 884-85, 892, 895, 1157, 1163,
1166, 1167. Mr. Ozbolt also
submitted a statement by his wife, stating she knew of his skin condition
in 1953 and that it has been
ongoing ever since. R. at 865.
In January 2005, the RO denied Mr. Ozbolt’s claim for entitlement to
service-connected
compensation for chemical exposure to the hands and feet. R. at 754-62. In
February 2005, Mr.
Ozbolt filed a Notice of Disagreement with the RO decision. R. at 508-10.
In July 2005, the RO
sent Mr. Ozbolt a Statement of the Case. R. at 484-97. In August 2005, Mr.
Ozbolt appealed the
RO decision to the Board and requested a Board hearing. R. at 278-80. In
May 2007, Mr. Ozbolt
testified before the Board via video conference. R. at 183-96.4
During his hearing, he associated his
current skin problems with exposure to DDT during service. R. at 186.
In September 2007, the Board remanded Mr. Ozbolt’s claim for entitlement
to service
connection for a skin condition of the hands and feet for a medical
examination “addressing whether
the veteran’s current skin disorder(s) relate to service.” R. at 61. On
remand, the Board instructed
that Mr. Ozbolt be scheduled for a VA examination “with an appropriate
specialist in order to
determine the nature, severity and etiology of any current skin disorder
of the hands and feet.” R.
at 62. The Board further instructed the examiner to “advance an opinion as
to the likelihood (likely,
as likely as not, not likely) that a skin disorder of the hands and feet
is related to service. The
examiner should provide a complete rationale for any conclusions reached.”
Id. (emphasis in
original).
In November 2007, Mr. Ozbolt underwent a VA medical examination for his
skin condition
by Physician Assistant Patrick Hopperton. R. at 37-40. The examiner
reviewed the claims file and
noted Mr. Ozbolt’s history of skin complaints. R. at 37. He then examined
Mr. Ozbolt’s skin and
concluded that “it would be pure speculation to determine [whether] the
veteran’s current skin
condition is related to the veteran’s one time diagnosis of a Rhus
dermatitis secondary to poison ivy
exposure during active military enlistment.” R. at 37-38.
While not dispositive of the issues before the Court, we are compelled to
comment on the poor quality of the
Board’s video conference hearing transcription. R. at 183-96. The most
cursory reading by any responsible VA
employee could have corrected these obvious transcription errors. Instead,
these errors rendered the transcription
unintelligible and nonsensical.
4
3

In December 2007, VA issued a Supplemental Statement of the Case denying
entitlement to
service connection for chemical exposure to the hands and feet. R. at 25-
36. In May 2009, the
Board issued the decision here on appeal. R. at 3-10. The Board found that
Mr. Ozbolt’s skin
condition is not related to his military service and accordingly denied
entitlement to service
connection. R. at 4.
B. Parties’ Arguments
The appellant argues that the Board failed to ensure VA compliance with
the Board’s
September 2007 remand instructions. Appellant’s (App.) Brief (Br.) at 7-9.
First, the appellant
argues,theremandinstructionsrequiredexamination bya”specialist”andnot
aphysician’s assistant.
App. Br. at 8-9. Second, the examiner did not, as instructed, render a
medical nexus opinion. App.
Br. at 9. The appellant next argues that the medical examination was
inadequate because it rendered
an insufficiently supported conclusion and failed to consider the
appellant’s lay testimony of
continuity of symptomatology. App. Br. at 9-12. For these reasons, the
appellant argues, the Board
failed to ensure compliance with VA’s duty to assist. App. Br. at 13-15.
In the alternative, the
appellant argues, the Board provided an inadequate statement of reasons
and bases for its decision.
App. Br. at 15-16.
The Secretary first argues that the Board substantially complied with the
remand order.
Secretary’s (Sec’y) Br. at 7-12. To support this position, the Secretary
asserts that a physician’s
assistant is competent to render a medical opinion and the appellant
submitted no evidence before
the Board that showed otherwise. Sec’y Br. at 9-10. Second, the Secretary
contests the appellant’s
assertion that the medical examination was inadequate, arguing that a
medical examination is not
deficient simplybecause the examiner stated that he could not render an
opinion. Sec’yBr. at 9. The
Secretary further argues that the examiner did not fail to consider the
appellant’s lay statements of
continuity of symptomatology. Sec’y Br. at 11-12. Finally, the Secretary
argues that the Board
provided an adequate statement of reasons and bases for its decision.
Sec’y Br. at 14-15.
II. ANALYSIS
Establishing service connection generally requires medical evidence or, in
certain
circumstances, lay evidence of the following: (1) a current disability; (2)
in-service incurrence or
aggravation of a disease or Previous HitinjuryNext Hit; and (3) a nexus between the claimed in-
service disease or Previous HitinjuryNext Document
4

andthepresent disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (
Fed. Cir. 2009);Jandreau
v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Hickson v. West, 12
Vet.App. 247, 253
(1999). Service connection may be established by showing continuity of
symptomatology, which
requires a claimant to demonstrate (1) that a condition was “noted” during
service; (2) evidence of
postservice continuity of the same symptomatology; and (3) medical or, in
certain circumstances,
lay evidence of a nexus between the present disability and the postservice
symptomatology. See
Barr v. Nicholson, 21 Vet.App. 303, 307 (2007); see also Davidson, supra;
Jandreau, 492 F.3d at
1377 (whether lay evidence is competent and sufficient in a particular
case is a factual issue to be
addressed by the Board); 38 C.F.R. § 3.303(b) (2010). The Board must
analyze the credibility and
probative value of the evidence, account for the persuasiveness of the
evidence, and provide reasons
for rejecting 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).
Pursuant to 38 U.S.C. § 5103A, the Secretary’s duty to assist includes,
in appropriate cases,
the dutyto conduct a thorough and contemporaneous medical examination. See
Green v. Derwinski,
1 Vet.App. 121, 124 (1991). The Secretary must make a reasonable effort to
obtain a medical
opinion when it is necessaryto substantiateaclaimforbenefits. 38U.S.C.
§5103A(a)(1); DeLaRosa
v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). A medical opinion “is
adequate where it is based
upon consideration of the veteran’s prior medical history and examinations
and also describes the
disability, if any, in sufficient detail so that the Board’s ‘evaluation
of the claimed disability will be
a fully informed one.'” Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007) (
quoting Ardison v. Brown,
6 Vet.App. 405, 407-08 (1994)); Green, supra.
It is a medical examiner’s responsibility to provide a well-supported opinion so
that the Board may carry out its duty to weigh the evidence of record. See Nieves-
Rodriguez v. Peake, 22 Vet.App. 295, 304 (2008) (concluding that medical opinion is not entitled to any weight “if it contains only data and conclusions”); Stefl, 21 Vet.App. at 124 (stating that VA medical opinion “must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). A
medical report may be inadequate if it fails to discuss something that is
necessary. See 38 C.F.R. § 4.2 (2010).
Whether a medical examination report is adequate is generally a finding of fact that the Court reviews under the “clearly erroneous” standard of review. See 38 U.S.C. § 7261(a)(4); Nolan v. Gober, 14 Vet.App. 183, 184 (2000). When applying the “clearly erroneous” standard, if
5

the Court finds, after reviewing the record in its entirety, that the
Board’s finding of fact is supported
by a plausible basis, “‘the [Court] may not reverse it even though
convinced that had it been sitting
as trier of fact, it would have weighed the evidence differently.'” Id. (
quoting Anderson v. City of
Bessemer City, 470 U.S. 564, 573-74 (1985)).
Additionally, in Stegall v. West, 11 Vet.App. 268, 271 (1998), this Court
held that a remand
by the Board “confers on the veteran . . . as a matter of law, the right
to compliance with the remand
orders”; and the Board itself errs when it fails to ensure compliance with
the terms of such a remand.
Although the Secretary is required to comply with remand orders, it is
substantial compliance, not
absolute compliance, that is required. See Dyment v. West, 13 Vet.App. 141,
146-47 (1999) (holding
that there was no Stegall violation when the examiner made the ultimate
determination required by
the Board’s remand, because such determination “more than
substantiallycomplied with the Board’s
remand order”); Evans v. West, 12 Vet.App. 22, 31 (1998) (holding that
remand was not warranted
becausetheSecretarysubstantiallycompliedwith theBoard’s remandorder);cf.
Marianov.Principi,
17 Vet.App. 305, 311 (2003) (remanding where the Secretary failed to
comply or even substantially
complywith the Board remand order). Moreover,inmakingits determinations,
the Court is required
to take due account of the rule of prejudicial error. 38 U.S.C. § 7261(b);
Conway v. Principi,
353 F.3d 1369, 1374-75 (Fed. Cir. 2004).
In its September 2007 remand, the Board specified that “[t]he veteran
should be scheduled
for a VA examination with an appropriate specialist in order to determine
the nature, severity[,] and
etiology of any current skin disorder of the hands and feet.” R. at 62 (
emphasis added). Physician
Assistant Hopperton performed the examination. R. at 37-39. The appellant
argues that the choice
of VA examiner did not substantially comply with the remand instructions (
App. Br. at 7-8) while
the Secretary argues that the examiner was competent to render his opinion
and that the appellant
should have challenged the medical expert’s competence at the Board. Sec’y
Br. at 7-10 (citing
Rizzo v. Shinseki, 580 F.3d 1288, 1291 (Fed. Cir. 2009); Cox v. Nicholson,
20 Vet.App. 563, 568-
569 (2007)).
The Court agrees with the appellant that the question here is not whether
the VA examiner
was competent to render medical opinions as a general matter, whether a
physician’s assistant was
competent when the Board’s remand instruction specifically called for “an
appropriate specialist.”
App. Br. at 8; R. at 62. Because the Board on remand specifically
designated a specialist to conduct
6

the examination, VA did not comply with this requirement. A specialist is ”
a physician whose
practice is limited to a particular branch of medicine or surgery,
especially one who, by virtue of
advanced training, is certified by a specialty board as being qualified to
so limit his practice.”
DORLAND’S at 1767. Here, the medical examiner indicated that he is a
physician’s assistant and not
a physician who specializes in skin disorders. R. at 38. Furthermore, the
record does not show that
the examiner has professional training substantially similar to that of a
specialist. Id. Still further,
the examination report did bear a physician’s name and electronic
signature. Id. However, that
electronic signature followed the statement: “Receipt Acknowledged By,”
which does not signify
that this physician applied her signature because she concurred with the
medical judgment. Id.
Accordingly,Court holds thattheBoarddid not ensureVA’s substantial
compliancewiththisportion
of the Board’s remand instructions.
The September 2007 remand also instructed the examiner to “advance an
opinion as to the
likelihood (likely, as likely as not, not likely) that a skin disorder of
the hands and feet is related to
service.” R. at 62. The medical examiner concluded that “it would be pure
speculation to determine
the veteran’s current skin condition is related to the veteran’s one time
diagnosis of Rhus dermatitis
secondary to poison ivy exposure during active militaryenlistment.” R. at
38. The appellant argues
both that this conclusion fails to comply with the Board’s remand
instruction because it provides no
medical nexus opinion and that this lack of a medical nexus opinion
renders the examination
inadequate. App. Br. at 9, 11; App. Reply Br. at 6-8.
As the Secretary argues, an examiner’s statement that he cannot render an
opinion does not
mean that the opinion is inadequate. Sec’y Br. at 9 (citing Roberts v.
West, 13 Vet.App. 185, 189
(1999)). However, the use of the term “speculation” cannot be “a mantra
that short circuits the
careful consideration to which each claimant’s case is entitled.” Jones v.
Shinseki, 23 Vet.App. 382,
389 (2010). In Jones, the Court held that “it must be clear on the record
that the inability to opine
on questions of diagnosis and etiology is not the first impression of an
uninformed examiner, but
rather an assessment arrived at after all due diligence in seeking
relevant medical information that
mayhave bearing on the requested opinion.” Id. The Court further explained
that “before the Board
can rely on an examiner’s conclusion that an etiology opinion would be
speculative, the examiner
must explain the basis for such an opinion or the basis must otherwise be
apparent in the Board’s
review of the evidence.” Id. at 390. Accordingly, “it must be clear, from
either the examiner’s
7

statements or the Board decision, that the examiner has indeed considered
‘all procurable and
assembled data.'” Id. (quoting 38 C.F.R. § 3.102 (2009)). “When the
record leaves this issue in
doubt, it is the Board’s duty to remand for further development.” Id.
Here, the examiner provided no rationale to support his conclusion that it
would be
speculative to relate the appellant’s in-service skin condition to his
current condition. R. at 37-38.
After describing the appellant’s complaints, reviewing the claims file,
and conducting a physical
examination, the examiner announced this bare conclusion without giving
any reasons for his
opinion. Id. The opinion contains only data and conclusions and thus
cannot be afforded any
weight. See Nieves-Rodriguez, 22 Vet.App. at 304. Furthermore, it is not
clear whether the
examiner acknowledged the standard for providing a medical nexus
opinion–likely, as likely as not,
not likely–enunciated bythe Board in the September 2007 remand. R. at 62.
Indeed, as the appellant
points out, the examiner’s statement regarding speculation could possibly
be based on his lack of the
specialized medical knowledge needed to evaluate a possibly complex
dermatological issue. App.
Reply Br. at 4-5.
Rather than remanding for further development, the Board, in its May 2009
decision, relied
on a lack of “medical evidence of a nexus between the current skin
disorder and the in-service
disorder” to deny the appellant’s claim.
R. at 8.
The Board acknowledged that “the VA
compensation examiner stated that it would be ‘pure speculation’ to relate
the Veteran’s current
disorder to his isolated diagnosis of dermatitis during service in 1952.”
Id. The Board also stated
that none of the private medical records contain a nexus opinion. Id.
Contrary to the Secretary’s
argument that the Board treated this opinion as non-evidence (Sec’yBr. at
9), the Board relied on the
fact that the record does not contain a medical nexus opinion to deny the
appellant’s claim. R. at 8.
Accordingly, the Court holds that the Board committed clear error in
adjudicating this claim based
on the inadequate 2007 VA examination report.
Theappellantalsoarguesthatthemedicalexamination opinion
containsfurtherdeficiencies,
namely that the VA examiner failed to consider the appellant’s statements
that show continuity of
symptomatology. App. Br. at 11-12. The Court disagrees. The Court has held
that a medical
examination was inadequate where the medical examiner ”
impermissiblyignored the appellant’s lay
assertions.” Dalton v. Nicholson, 21 Vet.App. 23, 39 (2006). Unlike in
Dalton, the medical
examiner here acknowledged the appellant’s self-reported complaints. R. at
37. The examiner
8

addressed continuity of symptomatology by reporting that “[t]he veteran
states that this skin
condition that he first started to experience in 1952 has never fully
resolved. It has been intermittent
in nature.” Id. Furthermore, because the appellant’s wife’s statements
showing continuity of
symptomatology mirror the statements considered by the examiner, the
examiner was not required
to address them specifically. R. at 865; see Gabrielson v. Brown, 7 Vet.
App. 36, 40 (1994) (stating
that a medical examiner is not required to discuss all the evidence
favorable to the appellant in his
medical opinion).
The medical examiner did, however, fail to consider whether DDT exposure
during service
could have caused the appellant’s current condition. The examiner
acknowledged the appellant’s
claim that he was treated with DDT powder during service. R. at 37. He
then stated simply that “the
veteran’s C-file does not show any treatment [with DDT] for tinea pedis”
without any further
analysis. Id. The examiner concluded that it would be speculative to
determine that the appellant’s
current condition was related to his in-service poison-ivy exposure,
without considering, or even
mentioning, whether DDT exposure may have caused the appellant’s current
condition. Id. The
medical examiner may not simply ignore statements that the appellant was
exposed to DDT while
in service and rely on a lack of medical evidence when considering whether
a medical nexus existed
between the present disability and service. See Dalton, 21 Vet.App. at 39;
see also Mariano,
17 Vet.App. at 312 (holding that VA medical examiner’s conclusions were of
“questionable
probative value” where the examiner failed to consider certain
information).
The Court finds no merit in the Secretary’s argument that the duty to
assist has not been
triggered in this case and that any error was nonprejudicial to the
appellant. Sec’y Br. at 13-14. In
September 2007, the Board made the determination that a further medical
opinion was necessary,
triggering VA’s dutyto provide an adequate one. R. at 61-63; see Barr, 21
Vet.App. at 311. Because
VA failed to develop this claim byproviding an inadequate examination, and
because the Board then
relied on this examination, the appellant has been prejudiced. See
Shinseki v. Sanders, 129 S.Ct.
1696, 1708 (2009) (holding that this Court must take due account of the
rule of prejudicial error).
For the reasons stated above, the November 2007 VA medical examination was
inadequate
and did not comply, or substantially comply, with the Board’s remand
instructions. The Board
clearlyerred whenit relied,in part, on this inadequate opinion to
concludethattheappellant’s current
skin condition was not connected to service. Because the Court holds that
the Board clearly erred
9

in its decision, the Court will not examine the adequacy of the Board’s
statement of reasons and
bases. Accordingly, the Court will remand the claim for a new VA
examination by a skin specialist,
as required by the prior remand, and for readjudication consistent with
this decision. On remand,
the appellant 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).
III. CONCLUSION
Based on the foregoing analysis and a review of the record on appeal, the
May 15, 2009, Board
decision is VACATED, and the claim for entitlement to service connection
for a skin disorder of the
hands and feet is REMANDED for further proceedings consistent with this
decision.
DATED: March 11, 2011
Copies to:
Nancy L. Foti, Esq.
VA General Counsel (027)
10

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