Veteranclaims’s Blog

May 31, 2011

New and Material Evidence, Bielby v. Brown, No. 92-653(Argued March 31, 1994 Decided December 20, 1994 )

Excerpt from decision below:
“Evidence is new where it is not merely cumulative or repetitious of evidence already of record. Id. at 174. If the evidence is not new, there is no need determine whether the evidence is material. See Manio, 1 Vet.App. at 145.
We find that the evidence presented by the appellant is both new and
material. Specifically, we find that the May 1990 letter from Dr. Gilden
is new evidence because it makes two main points. First, it reiterates
his June 1988 Dr. Gilden’s opinion that the appellant manifested symptoms
of MS in service. Second, the letter provides Dr. Gilden’s opinion that
appellant’s symptoms were not the result of infectious mononucleosis as
advanced by the Board. To the extent that the letter restates Dr.
Gilden’s opinion that the symptoms manifested by the appellant in service
were those of MS, it is cumulative and repetitive of evidence already of
record. However, to the extent that the letter states that the
appellant’s symptoms were not caused by infectious mononucleosis, it
provides evidence conflicting with the theory advanced by the Board.

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UNITED STATES COURT OF VETERANS APPEALS

No. 92-653

David G. Bielby, Appellant,
v.
Jesse Brown,
Secretary of Veterans Affairs, Appellee.

On Appeal from the Board of Veterans’ Appeals

(Argued March 31, 1994 Decided December 20, 1994 )

James G. Zissler, with whom L. Poe Leggette was on the brief, for the
appellant.

Michele Russell Katina, with whom Mary Lou Keener, General Counsel;
Norman G. Cooper, Assistant General Counsel; and Adrienne Koerber, Deputy
Assistant General Counsel, were on the brief, for the appellee.

Before KRAMER, MANKIN, and IVERS, Judges. MANKIN, Judge, filed the
opinion of the Court in which IVERS, Judge, joined. KRAMER, Judge, filed
a separate concurring opinion.

MANKIN, Judge: David G. Bielby (appellant) appeals a March 3, 1992,
decision of the Board of Veterans’ Appeals (BVA or Board) determining that
the appellant had not submitted new and material evidence to reopen a
previously and finally disallowed claim. The appellant claims the BVA
erred in determining that the newly submitted evidence was not new and
material evidence sufficient to reopen his claim. In response, the VA
asserts that the evidence submitted by the appellant is cumulative of that
already contained in the record, and is not capable of changing the
outcome of the case. We hold, however, that the evidence presented by the
appellant is both new and material.

The appellant further claims that the Board’s procedures in utilizing
an independent medical examiner violated his procedural due process rights
. In response, the Secretary argues that there was no violation of the
appellant’s due process rights and that the procedure used was appropriate
in all respects. We hold, based on nonconstitutional grounds, that the
procedure was questionable and direct the Board to obtain a new opinion
from a different independent medical examiner before readjudicating the
appellant’s claims.

I. Factual Background
The appellant served on active military duty from June 1956 to May
1958. His service medical records for the period were largely destroyed
by the 1973 fire at the personnel records center in St. Louis. A
surviving medical record, however, does indicate that the appellant was
diagnosed and treated for infectious mononucleosis from April 12, 1957, to
June 1, 1957.
In May 1982, the appellant filed a claim for service connection of
multiple sclerosis (MS). In order to establish service connection for MS,
a claimant must demonstrate that the condition was incurred in or
aggravated by active military service. 38 U.S.C. ù 1131; 38 C.F.R. ù 3.
303 (1993). However, this means of demonstrating direct service
connection may be supplanted by satisfying the criteria for presumptive
service connection. MS will be presumed to have been incurred in service
if the claimant manifests the disease to a degree of ten percent or more
within seven years from the date of termination of service,
notwithstanding that there may be no evidence of the disease during
service. 38 U.S.C. ùù 1112, 1113, 1137; 38 C.F.R. ù 3.307 (1993), as
amended by 59 Fed. Reg. 5106, 5107 (1994); 38 C.F.R. ù 3.309 (1993), as
amended by 59 Fed. Reg. 5107 (1994).
In support of his claims for both direct and presumptive service
connection, the appellant submitted numerous lay statements, post-service
medical records, expert medical opinions, and a medical journal excerpt.
Each piece of evidence is addressed separately below.
The file contains numerous lay statements attesting to personal
knowledge of characteristic MS symptomatology the appellant exhibited
following his separation from service. The statements of these witnesses
reflected that they observed that the appellant
experienced dizziness, instability, and vision difficulties, including
blurred vision, and that he stumbled frequently and tired easily. A
former service comrade of the appellant recalled that the appellant had
been hospitalized for dizziness and vision difficulties while they were in
the service. He also recalled that the appellant experienced difficulty
in grasping objects. Another former comrade stated that the appellant had ”
some vision problems.” Finally, the appellant presented a letter, written
in 1966 by his former wife, describing psychiatric difficulties he
suffered during the presumptive period.
Post-service medical records and expert medical opinions discuss the
onset of his MS. In November 1982, Angie Voekel, M.D., and Jack Burks, M.
D., diagnosed the appellant as suffering from MS based upon his history.
As part of a neurologic consultation performed in January 1982, Dr. Karen
Hall noted that the appellant had been diagnosed in 1971 or 1972 with an
abrupt decrease in his right-eye vision. Dr. Hall also confirmed a prior
diagnosis that the appellant was suffering from a loss or destruction of
myelin, known as demyelinating disease. Webster’s Medical Desk
Dictionary 170 (1986). Myelin is the material which forms the sheath
around the core of the nerve fiber. In March 1983, Dr. Hall determined,
after reviewing the appellant’s medical records, history, and lay
statements, that he definitely had demonstrated symptoms of MS as early as
the mid-1950’s, when he exhibited difficulties with double vision,
tinnitus, weakness, and difficulty with balance.
A statement from Dr. Jack S. Burks addressed whether the appellant’s
early difficulties with double vision, dizziness, loss of sensation and
grip, and fatigue could be correlated with an onset of MS. Dr. Burks
stated, “Concerning [the] specific question as to whether these early
events were the early manifestations of [m]ultiple sclerosis, I cannot say
for certain. However, they are suggestive of early multiple sclerosis
symptoms. Statistically, his complaints . . . are among the most common
presenting symptoms of multiple sclerosis.”
The appellant also submitted an excerpt from a medical journal
concluding that infectious mononucleosis could have neurologic
ramifications leading to degeneration of the myelin sheath.
However, based upon the Board’s finding that the first symptoms of MS,
as described by one of the appellant’s doctors, did not appear until 1971
or 1972, and that there was no documentation contemporaneous with service
or the presumptive period of the appellant’s symptoms or concurrent
neurologic signs, the Board denied the appellant’s claim in December 1986.
The Board also found that the appellant’s in-service diagnosis of
infectious mononucleosis provided a more plausible explanation for the
symptoms he showed during service. Finally, it determined that the letter
from the appellant’s former wife, while discussing psychiatric
difficulties, did not mention any pertinent physical symptoms which might
yield a conclusion that the appellant had been suffering from MS.
In March 1987, the appellant attempted to reopen his claim for
service connection. In support of his claim, the appellant submitted
additional medical records from 1977 regarding alleged MS symptoms
existing at that time. He also submitted additional documentation from Dr.
Voekel, Dr. Hall, Dr. Burks, Dr. John Simon, Jr., and Dr. W. Herrera
supporting a diagnosis that his MS had an onset date in the mid-1950’s.
Additional lay statements regarding the appellant’s alleged MS symptoms
prior to the expiration of the presumptive period in 1965 were also
submitted.
The file also contains correspondence provided by the appellant,
dated in June 1988, from Dr. Donald H. Gilden. Dr. Gilden stated, “[The
appellant] not only has multiple sclerosis, but most likely has been
suffering from MS since he was 19 years of age. His neurologic symptoms
at that time were consistent, if not characteristic of MS, and represented
his first exacerbation of MS.”
In addition, the appellant offered numerous medical treatises which
discuss possible causes of MS, such as a link between mononucleosis and MS
or a link between Epstein-Barr virus (EBV) and MS, or a link between the
three. As a result of this submission, in July 1989 the VA directed an
engagement letter to the Milton S. Hershey Medical Center in Hershey,
Pennsylvania, requesting an independent medical opinion [hereinafter
opinion] regarding the cause and time of manifestation of the appellant’s
MS. The independent medical expert (IME), Dr. Richard Tenser, was
directed to discuss possible etiological connections for MS and other
illnesses, and the relation of the appellant’s history of symptoms to MS.
The exact text of this engagement letter is not known as a copy has never
been placed in the appellant’s file. The engagement letter, however, did
not include a copy of the appellant’s file. Nonetheless, without
reviewing any of the medical history contained in the appellant’s file,
the IME issued an opinion declaring, “I cannot conclude that there is any
correlation between the infectious mononucleosis in 1957 and the
subsequent development of multiple sclerosis, which first started possibly
in the early 1970’s.”
The Board directed a second engagement letter to the IME on August 21,
1989, explaining that an opinion customarily was not rendered until after
the IME had received and reviewed the claimant’s file. The appellant’s
file was enclosed with this second engagement letter, which also requested
an opinion regarding the “probability that the Epstein Barr virus was an
etiological factor in the development of the in-service infectious
mononucleosis in 1957 and the subsequent development of multiple sclerosis,
definitively diagnosed in 1982 with a reported history of symptoms
including double vision, tinnitus, vertigo, and weakness in the early
1970’s?” The IME responded to the Board’s request in a letter dated
August 25, 1989, in which he confirmed his prior findings.
The appellant’s claim for service connection was denied by a rating
decision dated October 1987. On appeal to the Board, the appellant made
three arguments. First, he contended that his MS became manifest during
service, masquerading as mononucleosis. Second, he asserted that MS
became manifest to a degree of ten percent or more during the presumptive
period. Finally, he argued that there was a causal relationship between
his in-service mononucleosis and his MS. Based upon the evidence of
record, the 1986 Board decision, and the expert opinion of the IME, the
Board’s February 8, 1990, decision again denied service connection for MS.
The appellant failed to appeal this decision within the jurisdictional
period and it therefore became final. 38 U.S.C. ù 7266(a).
In September 1990, the appellant again sought to reopen his claim.
To support reopening, the appellant submitted letters from Dr. Gilden and
Dr. Ralph J. Warren, as well as a considerable list of medical treatises.
Dr. Gilden’s letter reiterated his opinion that the appellant’s MS had its
onset date during service. Dr. Gilden also opined that the appellant’s
symptoms of dizziness, fatigue, and vision difficulties during service
were not due to infectious mononucleosis. Dr. Warren’s letter, based in
part on the 1966 letter written by the appellant’s former wife, opined
that the psychiatric difficulties exhibited by
the appellant during service and the presumptive period were symptoms of
MS. Finally, the list of treatises submitted by the appellant discussed
possible causes of MS. The appellant also used the treatises to call into
question the veracity of the conclusion reached by the IME, as well as the
integrity of the IME procedure and whether the IME was truly independent
of the Board. The Agency of Original Jurisdiction (AOJ) found that most
of the evidence submitted by the appellant was new but not material.
The appellant then submitted copies of several treatises discussing
the relationship between MS and mononucleosis, MS and neuropsychiatric
disorders, and MS and other infectious diseases from the list of treatises
previously submitted. An August 1991 rating decision continued to find
that new and material evidence had not been submitted. The appellant
appealed to the Board, which found in its March 3, 1992, decision that the
appellant had submitted neither new nor material evidence. This appeal
followed.

II. Analysis
A. New and Material Evidence
Under 38 U.S.C. ù 7104(b), a final decision by the Board on a given
claim “may not thereafter be reopened and allowed and a claim based upon
the same factual basis may not be considered.” However, 38 U.S.C. ù 5108
provides that a previously and finally disallowed claim may be reopened
where new and material evidence has been presented. In order to determine
if a claimant has presented new and material evidence, the Board must
conduct a two-step analysis. Manio v. Derwinski, 1 Vet.App. 140, 145 (
1991).
Whether newly submitted evidence is new and material is a question of
law which this Court reviews de novo. Masors v. Derwinski, 2 Vet.App.
181, 185 (1992). The new and material analysis requires that two findings
be made to conclude that the evidence is new and material–the Court must
find that the evidence, first, is new, and, second, that it is material.
Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). Evidence is new where it
is not merely cumulative or repetitious of evidence already of record.
Id. at 174. If the evidence is not new, there is no need determine
whether the evidence is material. See Manio, 1 Vet.App. at 145.
We find that the evidence presented by the appellant is both new and
material. Specifically, we find that the May 1990 letter from Dr. Gilden
is new evidence because it makes two main points. First, it reiterates
his June 1988 Dr. Gilden’s opinion that the appellant manifested symptoms
of MS in service. Second, the letter provides Dr. Gilden’s opinion that
appellant’s symptoms were not the result of infectious mononucleosis as
advanced by the Board. To the extent that the letter restates Dr.
Gilden’s opinion that the symptoms manifested by the appellant in service
were those of MS, it is cumulative and repetitive of evidence already of
record. However, to the extent that the letter states that the
appellant’s symptoms were not caused by infectious mononucleosis, it
provides evidence conflicting with the theory advanced by the Board. The
appellant had not previously submitted a professional opinion
contradicting this determination of the Board. Consequently, this
evidence is new.
We also find that the August 1990 letter from Dr. Warren is new
evidence. Dr. Warren opined that the psychiatric difficulties manifested
by the appellant during service and the presumptive period were symptoms
of MS. No such medical opinion had previously been of record, and,
therefore, we find that this evidence is new evidence.
Finally, the medical treatises submitted by the appellant after the
1986 denial are new evidence. None of the medical treatises submitted by
the appellant has previously been a part of the record. Furthermore, they
provide a new basis of authority for granting service connection in that
the treatises demonstrate several medically accepted causes for MS. In
short, the appellant has presented the treatises to illustrate that
disorders formerly unacceptable as causes are now accepted as causes for
MS. Thus, while the appellant has previously argued that a number of
different disorders may have been the cause of his MS, and the treatises
address those previous arguments, we find that they are presented for the
purpose of demonstrating that the weight of medical authority has changed,
and that the Board should change its determination to accord with that
authority. Therefore, we hold that the medical treatises are new evidence.
Newly presented evidence must also be material in order to constitute
evidence sufficient to reopen a claim. Colvin, 1 Vet.App. at 174. New
evidence is also material evidence where there is a reasonable possibility
that the new evidence, when viewed in the
context of all the evidence, both new and old, would change the outcome.
Id. For the sole purpose of assessing whether there is new and material
evidence to reopen a claim, the credibility of that evidence is presumed.
Justus v. Principi, 3 Vet.App. 510, 512 (1992). Once a determination as
to whether the evidence is sufficient to reopen a claim has been made, the
weight of the evidence to establish service connection is a question of
fact for the Board. Cox v. Brown, 5 Vet.App. 95, 98 (1993). Thus, new
and material evidence need not establish service connection for the
claimed disability, but need only create a reasonable possibility of
service connection for the sole purpose of reopening. Id.
The appellant has presented three theories to support his assertion
that he should be service connected. First, he asserts that MS was
manifested in service masquerading as infectious mononucleosis. Second,
he contends that MS was manifested during the presumptive period. Finally,
the appellant argues that the virus that causes mononucleosis also causes
MS.
The May 1990 letter of Dr. Gilden supports the appellant’s first
contention that MS was manifested during service masquerading as
mononucleosis. It provides a medical opinion that contradicts the
findings of the Board used to deny service connection for incurrence in
service. After the appellant has satisfied the burden of presenting new
and material evidence, the letter may then be considered of sufficient
weight to the fact finder to place the evidence in relative equipoise on
this issue. Where the evidence is in relative equipoise, the benefit of
the doubt must favor the appellant. 38 U.S.C. ù 1154(b); 38 C.F.R. ù 3.
102 (1993). Thus, there is a reasonable possibility that the new evidence,
when considered with all the evidence, both old and new, would change the
outcome on this issue.
The August 1990 letter of Dr. Warren supports the appellant’s second
assertion that MS was manifested during the presumptive period. Dr.
Warren’s opinion is based upon the evidence submitted previously by the
appellant, principally on the observations of the appellant’s former wife.
The appellant’s former wife observed in a letter dated March 18, 1966,
that the appellant was suffering from several psychiatric difficulties;
however, it did not discuss any physical disabilities. In its December
1986 decision, the Board concluded that this letter was not probative of
presumptive service connection because it did not suggest any physical
manifestations of MS.
The letter of Dr. Warren, although building on the former wife’s
letter, presents an alternative theory of presumptive service connection.
Dr. Warren opined that the appellant’s psychiatric problems were symptoms
of the onset of MS, a theory that the Board has not considered previously.
This evidence suggests that there were symptoms of MS during the
presumptive period, and constitutes a medical opinion which, when
considered with the other evidence of record, provides a reasonable
possibility that the outcome of this issue would be different.
The Secretary seeks to disqualify this evidence based on three
arguments. First, the Secretary, citing Black v. Brown, 5 Vet.App. 177 (
1993), and Swann v. Brown, 5 Vet.App. 229 (1993), argues that the evidence
should be disqualified because Dr. Warren relied upon evidence which was
related to him by the appellant, and because Dr. Warren’s psychiatric
diagnosis was made more than twenty years after termination of service.
The Secretary further implies that the evidence is somehow unreliable
because it was based upon evidence which was not contemporaneous with the
presumptive period. However, the opinion of Dr. Warren did not rely on
evidence solely related by the appellant, or upon evidence which was not
recorded contemporaneously with the presumptive period. The record
reflects that the observations upon which Dr. Warren relied were those of
the appellant’s former wife and that those observations were made
contemporaneously with the presumptive period.
Furthermore, 38 C.F.R. ù 3.307(c) requires that to demonstrate
presumptive service connection for MS, there be shown “by acceptable
medical or lay evidence characteristic manifestations of the disease to
the required degree, followed without unreasonable time lapse by definite
diagnosis.” The Secretary essentially argues that there was unreasonable
time lapse between the observation by the appellant’s former wife and the
diagnosis. However, MS is a disease with a prolonged course characterized
by remissions and relapses over a course of many years. Dorland’s
Illustrated Medical Dictionary 1496, 443 (27 ed. 1988). Because of the
difficulty in diagnosing MS, it does not seem that the lapse of time
between the appellant’s former wife’s observations and the diagnosis of Dr.
Warren is unreasonable. This, however, is ultimately a question of fact
for the Board to address on remand.
Second, the Secretary asserts that the evidence must be disqualified
because the AOJ has previously considered observations of the appellant’s
former wife. The Secretary cites Elkins v. Brown, 5 Vet.App. 474 (1993),
for the proposition that evidence that has been previously considered and
rejected by the AOJ cannot constitute the basis of a new and material
medical opinion. While the Secretary is correct in his assertion of the
general principle, the principle finds no application in this case. The
Board rejected the observations of the appellant’s former wife as
indicative of the onset of MS during the presumptive period because those
observations did not contain any evidence of physical symptoms. The
appellant is now asserting a new basis of establishing service connection,
i.e., that psychiatric symptoms manifested by the appellant during the
presumptive period were symptoms of MS. Neither the Board nor the AOJ has
yet to pass on this issue, and the Secretary is directed to do so on
remand.
Third, the Secretary, citing Paller v. Principi, 3 Vet.App. 535 (1992
), contends that Dr. Warren’s letter is merely a corroboration of
previously considered and rejected evidence and is, therefore, cumulative.
However, Dr. Warren’s letter provides a new theory under which the
appellant may be presumptively service connected. It is not rehashing or
providing further support for previously considered and rejected evidence.
Thus, this evidence may not be said to be cumulative, and the Secretary
will have the opportunity to consider it on remand.
The appellant’s second submission of medical treatises supports and
expands on his third argument for service connection that the virus that
causes mononucleosis also causes MS. The treatises provide support for a
medical theory which the Board has rejected as lacking support in the
medical community. The appellant has attacked this determination through
the presentation of evidence tending to show that his theory of causation
is not groundless as the Board has suggested. In fact, the evidence
presented by the appellant provides support for the theory that there may
be a causal relationship between MS and mononucleosis. Using the evidence
in this fashion is thus different from using it for the sole purpose of
disputing the Board’s finding that the appellant’s MS was not causally
related to his mononucleosis. Rather, it is used to dispute the validity
of the Board’s conclusion that medical evidence or research, in general,
does not support the appellant’s contention
that MS may be causally related to mononucleosis. Accordingly, this
evidence provides a reasonable possibility that the Board’s determination
would be different upon remand.

B. Independent Medical Examination
The appellant also contends that the Board and VA denied him
procedural due process. Specifically, the appellant claims the IME was
biased by the VA’s engagement letter and rendered a decision without
considering the record. It is a fundamental and longstanding principle of
judicial restraint, however, that the courts will avoid reaching
constitutional grounds where nonconstitutional grounds will obviate the
need to do so. Jean v. Nelson, 472 U.S. 846, 854 (1988); accord Arkansas
Louisiana Gas Co. v. Department of Public Utilities, 304 U.S. 61, 64 (
1938). It is on these nonconstitutional grounds that we will find that
the record supports the appellant’s contention that the IME was
questionable.
In this instance, the VA provided the IME with both a hypothetical
question and the appellant’s claims file. However, under the
circumstances, neither the hypothetical question nor the claims file
constituted a proper basis for an expert opinion upon which the BVA could
rely. There are few rules governing the procedure of obtaining and
utilizing an IME. The regulations state simply:

When warranted by the medical complexity or controversy
involved in a pending claim, an advisory medical opinion may be
obtained from one or more medical experts who are not employees of
the VA. Opinions shall be obtained from recognized medical schools,
universities, clinics or medical institutions with which arrangements
for such opinions have been made, and an appropriate official of the
institution shall select the individual expert(s) to render an
opinion . . . . Approval [for an IME] shall be granted only upon a
determination . . . that the issue under consideration poses a
medical problem of such obscurity or complexity, or has generated
such controversy in the medical community at large, as to justify
solicitation of an independent medical opinion. When approval has
been granted, the Compensation and Pension Service shall obtain the
opinion.

38 C.F.R. ù 3.328 (1993).
The VA Adjudication Procedure Manual, Part VI, para. 1.04 (Sept. 21,
1992) [hereinafter M21-1] states:

An advisory medical opinion may be obtained from medical
experts who are not employees of the VA if warranted by the medical
complexity or controversy involved in a pending claim. A request for
an independent medical opinion in conjunction with a pending claim
may be initiated by the regional office, by the claimant, or by his
or her representative. This request must be submitted in writing and
must set forth in detail the reasons why the opinion is necessary
. . . . If it is determined that an independent medical opinion is
warranted, the Compensation and Pension Service will obtain the
opinion.

Id.
We recognize that as a general principle the Federal Rules of
Evidence do not apply to proceedings before the Regional Office (RO), the
Board, or this Court. See Flynn v. Brown, 6 Vet.App. 500, 503 (1994) (
Rules of hearsay evidence do not apply to proceedings before Board).
However, this Court has relied on the Federal Rules of Evidence as a
source of persuasive authority in establishing rules of procedural
fairness to be applied in VA and Board proceedings. Thurber v. Brown, 5
Vet.App. 119, 126 (1993) (Fed. R. Evid. used as persuasive authority in
establishing procedural rule of fairness regarding notice and opportunity
to be heard); Austin v. Brown, 6 Vet.App. 547, 551 (1994). Therefore, we
will again turn to the Federal Rules of Evidence as a source of
persuasive authority.
The Federal Rules of Evidence have liberalized the standards by which
an expert may testify. Fed. R. Evid. 705 and committee notes. Under
Rule 705 an “expert may testify in terms of opinion or Previous DocumentinferenceNext Hit and give
reasons therefor without prior disclosure of the underlying facts or date,
unless the court requires otherwise.” Nonetheless, Rule 703 requires that
“[t]he facts or data in the particular case upon which an expert bases an
opinion or Previous HitinferenceNext Document may be those perceived by or made known to the expert
at or before the hearing.” This Rule permits the expert to base his
opinion on, for example, a hypothetical question setting out sufficient
facts of the case, or a review of the case file, or upon first hand
observation of evidence at the scene or in the courtroom. Fed. R. Evid.
703 and Committee Notes.
First, it appears from the record that the IME’s initial opinion in
this case was rendered without benefit of review of the appellant’s file.
The purpose of utilizing an expert, such as an IME, is to assist the trier
of fact in understanding complex evidentiary
materials in a claim. 38 C.F.R. ù 3.328; see also Daubert v. Merrell
Dow Pharmaceuticals, Inc., 113 S.Ct. 2786, 2795 (1993) (expert’s role is
to assist trier of fact understand complex issues in case); see also Fed.
R. Evid. 702. In fact, in other federal courts under Fed. R. Evid. 703,
an expert’s opinion is not competent unless it is based upon facts or data
in the particular case then under consideration. Burns v. Secretary of
Health and Human Services, 3 F.3d 415, 417 (Fed. Cir. 1993); Brown v.
Parker-Hannifan Corp., 919 F.2d 308, 311 (5th Cir. 1990); Calhoun v.
Honda Motor Co., Ltd., 738 F.2d 126, 131-32 (6th Cir. 1984); Horton v. W.
T. Grant Co., 537 F.2d 1215, 1218 (4th Cir. 1976); United States v. R.J.
Reynolds Tobacco Co., 416 F. Supp. 313, 315 (D.N.J. 1976); see also Fed.
R. Evid. 703 advisory committee’s note. In order for an expert’s opinion
to be based upon the facts or data of a case, those facts or data must be
disclosed to or perceived by the expert prior to rendering an opinion,
otherwise the opinion is merely conjecture and of no assistance to the
trier of fact. Horton, 537 F.2d at 1218. Since principles of service
connection require a showing that a disability was incurred in or
aggravated by military service, 38 C.F.R. ù 3.303 (1993), this causal
requirement dictates that an IME’s failure to, at a minimum, review a
claimant’s file as to military service and medical conditions while in
service, renders any opinion uninformed and valueless on the issue of
causation. We hold that the IME’s initial opinion in this matter is
without evidentiary value as he failed to review the appellant’s record,
and thus had no basis of fact or data upon which to render an expert
opinion as to any etiological relationships involved in this appellant’s
specific situation.
Next, the Board presented the IME with a flawed hypothetical question
. See Embrey v. Bowen, 849 F.2d 418, 423 (9th Cir. 1988) (expert’s
opinion in Social Security disability case could not be relied upon
because hypothetical question posed to expert did not accurately reflect
the claimant’s disabilities and other limitations). The hypothetical
question may not suggest an answer or limit the field of inquiry by the
expert. See id. Rather, the engagement letter must pose to the IME a
hypothetical question which fully and accurately reflects the disability
picture, including both objectively demonstrated disabilities and
subjectively claimed pain or other disability. See Gamer v. Secretary of
Health and Human Services, 815 F.2d 1275, 1279-80 (1987) (hypothetical
questions posed to expert in
Social Security disability case must set out all of claimant’s
disabilities, including those supported by medical evidence as well as
subjective claims of pain). If the engagement letter fails to set forth
all of the claimant’s impairments, both objective and subjective, or fails
to set forth any other relevant factual detail, such as the time period
during which symptomatology manifested itself, the IME cannot render an
opinion which is supported by a sufficient prior review of and plausible
basis in the record. See DeLorme v. Sullivan, 924 F.2d 841 (9th Cir. 1991
) (substantial evidence supported administrative law judge’s opinion based
upon opinion of vocational expert which was, in turn, based upon properly
developed hypothetical question setting forth all of claimant’s
disabilities); see also Janeway v. Secretary of Health and Human Services,
702 F. Supp. 795, 797 (C.D. Cal. 1988) (if hypothetical question posed to
expert in Social Security disability case does not set forth all of
claimant’s impairments, expert’s opinion cannot be based upon substantial
evidence); see also Gilbert v. Derwinski, 1 Vet.App. 49, 52-53 (1990) (
Court may overturn Board’s findings of fact where they are not supported
by a plausible basis in the record).
In this case, the Board constrained the IME’s scope of inquiry,
thereby limiting his investigation and tainting the results. The Board’s
second engagement letter stated that symptomatology characteristic of MS
had manifested itself only in the early 1970’s, while there was other
evidence of record providing an earlier date. The Board directed the IME
to address the issue regarding the etiologic relationship of EBV,
mononucleosis, and MS only, while a crucial consideration at the time was
the appellant’s claim for presumptive service connection. The statute, 38
U.S.C. ù 7109, and regulation, 38 C.F.R. ù 20.901, governing the
provision and use of an IME leaves to the discretion of the Board the
necessity of obtaining an opinion. Thus, the Board’s selection of issues
to be addressed by the IME is entirely discretionary but it cannot limit
background information so as to prejudice the IME. In this instance, the
Board presented the IME with a hypothetical question that incorrectly
limited the possible date of onset of the appellant’s claimed MS. The
Board’s limiting of the facts stated to the IME may have prevented him
from rendering a fully informed and neutral opinion.
Thus, we conclude that the BVA failed to provide the correct
hypothetical situation to be addressed by the IME, and that the IME
additionally failed to consider the correct facts as they were known at
the time of the adjudication because he did not review the record prior to
rendering an opinion. Consequently, the Board will obtain a new opinion
from a different IME as part of readjudicating the appellant’s reopened
claim.

C. Appellant’s Claim of Clear and Unmistakable Error
The record reflects that the appellant submitted a letter dated
September 1990 to the VA following the 1990 BVA decision, using the phrase
“[O]n the issue of a ‘clear and unmistakable error'” and citing 38 C.F.R.
ù 3.105(a) (1993). He further alleged that the BVA applied the wrong law
to his claim, and in support thereof, he cited a series of regulations,
alleging that “all require acceptance of and consideration of lay evidence
.” Those regulations are 38 C.F.R. ù 3.303(a) (principles related to
service connection); 38 C.F.R. ù 3.103(a) (duty to assist a claimant); 38
C.F.R. ù 3.103(b) (right to notice affecting the payments of benefits or
granting of relief); 38 C.F.R. ù 3.307(b) (evidentiary basis may be
established by medical evidence, competent lay evidence or both); and 38 C.
F.R. ù 3.303(b) (with chronic diseases shown in service or within the
presumptive period to permit a finding of service connection, subsequent
manifestations of the same disease are service connected unless attributed
to other causes).
The appellant’s substantive appeal (Form 1-9), received on March 27,
1991, made the same allegations using somewhat different terms and using
some different citations to the regulations. The appellant alleged in a
paragraph entitled “ERRORS THE VA MADE IN APPLYING THE LAW” that “No
effort has ever been made to adhere [to] Title 38 [C.F.R. ùù] 3.307[](b),
3.309, 3-303 [sic], 3.102, 3.103(b), or 3.326.” These are in effect, the
same allegations made in the 1990 letter to the RO.
A claim of CUE must be specific and not a mere broad allegation of a
failure to follow the regulations, or the failure to give due process, or
any other general, nonspecific claim of CUE. Fugo v. Brown, 6 Vet.App.
40, 44 (1993); Russell v. Principi, 3 Vet.App. 310 (1992) (an appellant
must assert “more than a disagreement as to how the facts were weighed or
evaluated). The appellant may not simply allege CUE on the basis that
prior
adjudications had improperly weighed and evaluated the evidence. Fugo,
6 Vet.App. at 43-44. Neither the appellant’s September 1990 letter nor
his Form 1-9 makes any assertions that compliance with the cited
regulations would have manifestly changed the outcome of his case. Thus,
as to the 1990 BVA decision, CUE was not pled in accordance with the
Court’s standard in Fugo. However, since the United States Court of
Appeals for the Federal Circuit recently held that this Court’s authority
to review CUE under 38 C.F.R. ù 3.105(a)(1993) “relat[es] only to review
of AOJ adjudicatory decisions and not to those of the Board,” Smith v.
Brown, __ F.3d __, __, No. 93-7043, slip op. at 28-9 (August 12, 1994),
this Court lacks jurisdiction to review the appellant’s allegations of CUE
. Id.

III. Conclusion
Having considered the appellant’s brief and reply brief, the
Secretary’s brief, and the record, the Court denies the Secretary’s motion
to strike as moot, and VACATES and REMANDS the matter. We hold that the
evidence presented by the appellant is new and material evidence. The
Board shall consider the sufficiency of this evidence in conjunction with
the old evidence to support the appellant’s claim for both presumptive and
direct service connection on remand. The Board shall obtain a new
independent medical opinion in a manner consistent with this opinion prior
to readjudicating the appellant’s claim.

KRAMER, Judge, concurring: I concur to the extent indicated.
As to Part II(A), the letters written by Dr. Gilden and Dr. Warren
constitute new and material evidence. Pursuant to 38 U.S.C. ù 5108,
the Secretary must reopen a previously and finally disallowed claim when ”
new and material” evidence is presented or secured with respect to that
claim. See 38 U.S.C. ù 7104(b). “New” evidence is that which is not
merely cumulative of other evidence of record. Cox v. Brown, 5 Vet.App.
95, 98 (1993). “Material” evidence is that which is relevant to and
probative of the issue at hand, and which provides a reasonable
possibility that the new evidence, when viewed in the context of all the
evidence, both new and old, would change the outcome of the case. Id.
Both Dr. Gilden’s and Dr. Warren’s letters: (1) provide information which
is not cumulative of other
evidence of record, (2) are relevant to and probative of the issue of
whether the appellant’s multiple sclerosis (MS) became manifest during the
presumptive period, and (3) provide a reasonable possibility, when viewed
in context of all the evidence of record, that the appellant could be
entitled to presumptive service connection for MS. Both letters are
therefore new and material.
As to Parts II(B), (C), on the specific facts of this case, whether
the two independent medical opinions violated the fair process
requirements of Thurber v. Brown, 5 Vet.App. 119, 120-21 (1993), and
Austin v. Brown, 6 Vet.App. 547, 551-52 (1994), is not a proper subject
for review by this Court. While the use of these two medical opinions may
have created error in the February 1990 Board of Veterans’ Appeal decision,
the Court has no jurisdiction over this decision because: (1) the Notice
of Disagreement which led to that decision was filed prior to November 18,
1988 (Veterans’ Judicial Review Act, Pub. L. No. 100-687, ù 402, 102 Stat.
4105, 4122 (1988) (found at 38 U.S.C. ù 7251 note)); (2) no timely
Notice of Appeal was filed as to that decision (38 U.S.C. ù 7266); and (3)
it cannot be the subject of review for clear and unmistakable error (CUE) (
Smith (William A.) v. Brown, __ F.3d __, No. 93-7043 (Fed. Cir. Aug. 12,
1994)). Thus, error in the February 1990 decision cannot be a predicate
either for ordering a new medical opinion or for CUE.
Nevertheless, because new and material evidence has been submitted, the
appellant’s claim is of necessity well grounded, thus triggering the duty
to assist. See Gobber v. Derwinski, 2 Vet.App. 470, 472 (1992); 38 U.S.C.
ù 5107. On that basis, a new medical examination/opinion should be
ordered.

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