Veteranclaims’s Blog

June 16, 2011

Single Judge Application, Medical Treatise To Rebut Negative VA Evidence

Filed under: Uncategorized — Tags: , — veteranclaims @ 7:33 pm

Excerpt from decision below:
“The Court concludes that the Board’s statement concerning the medical
treatise evidence offered by Mr. Halls was insufficient because it only addressed whether that evidence was independently sufficient to establish a medical nexus between his current headaches and the 1970, in-service motor vehicle accident. It therefore failed to fully comply with 38 C.F.R. § 4.2, which requires the ratings specialist to “interpret reports of examination in light of the whole recorded history. . . .” Specifically, the Board failed to consider how the information contained in the medical treatise evidence affected the adequacy and probative value of the unfavorable October 1998 VA medical opinion, given various contradictions between the information contained in the medical treatise evidence and the medical reasoning employed by the VA medical examiner. Indeed, the parties’ October 2007 joint motion for remand stated that the evidence had been offered by Mr. Halls not to establish medical nexus, but to “rebut [the] negative VA medical opinion,” and that the Board therefore erred in its March 2006 decision by failing to discuss it. If the Board were permitted to out rightly discount medical treatise evidence on the basis that it is does not address the specific facts of a particular case, there would be no value in ever introducing medical treatise evidence, since all such evidence is necessarily “generic” in this sense. Rather, once submitted, medical treatise evidence becomes part of the whole recorded history of a claim against which all medical examination reports must be considered. See 38 C.F.R. § 4.2 (2010).
If there is any question as to whether such evidence bears considering as
a general matter, as Mr. Halls notes in his reply brief, the Federal Rules of Evidence, specifically Rule 803(18), have specifically carved an exception to the hearsay rule so that such evidence may be admitted for consideration. Although the Court is well aware that the Federal Rules of Evidence do not apply in VA adjudications, the text of Rule 803(18) and the policy considerations that support it are instructive regarding the competency of treatise evidence.”
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-1075
THEODORE L. HALLS, 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: Theodore L. Halls appeals through counsel a March 4, 2009,
Board of
Veterans’Appeals(Board)decisionthatdeniedentitlementto
VAbenefitsforchronicheadachesand
awarded an increased initial disability rating of 70% for organic
affective disorder prior to March
2, 2005.1
The Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a)
to review the
March 2009 Board decision. Because, in denying Mr. Halls’s claim for VA
benefits for chronic
headaches, the Board failed to adequately explain how it resolved medical
Previous DocumenttreatiseNext Hit evidence
submitted by Mr. Halls against the reasoning employed by a VA medical
examiner who provided
an unfavorable opinion, the Court will vacate that portion of the Board’s
March 2009 decision and
remandthematterforfurtherdevelopmentandreadjudicationconsistentwiththis
decision. Because
Mr. Halls’s organic affective disorder claim is not inextricably
intertwined with his separate claim
for VA benefits for post-traumatic stress disorder, the Board did not
clearly err in rating his organic
The Board’s March 2009 decision also remanded a number of additional
claims, including a claim for
entitlement to VA benefits for post-traumatic stress disorder. Those
claims are therefore not before the Court at this time.
See 38 U.S.C. § 7266 (stating that the Court reviews only final decisions
of the Board); see also Howard v. Gober,
220 F.3d 1341, 1344 (Fed. Cir. 2000) (Board remand does not constitute a
final decision that may be appealed (citing
38 C.F.R. § 20.1100(b) (1999))).
1

affective disorder claim despite remanding his post-traumatic stress
disorder claim, and the Court
will therefore affirm that portion of the Board’s March 2009 decision.
I. FACTS
Mr.Hallsservedonactive dutyfrom April 1968 to November1976,
includingservicein Viet
Nam. It is undisputed that Mr. Halls sustained an injury to his head in a
motor vehicle accident in
1970, that he sought treatment for headaches in July 1973, and that, at
that time, he reported that
these headaches began approximately one year earlier.
In July 1993, Mr. Halls filed a claim for VA benefits for chronic
headaches, which he
attributed to the 1970 motor vehicle accident, and it was denied bya VA
regional office in a January
1994 rating decision. Mr. Halls appealed this decision.
After further development, in October 1998 Mr. Halls was provided a VA
medical
examination that included a neurological examination. In an addendum to
the resulting report, the
medical examiner stated that “it is my conclusion that [Mr. Halls’s]
current headaches are less likely
than not to be secondary to the motor vehicle accident he had in 1970.”
Record (R.) at 1591. In
explaining this opinion, the medical examiner stated that
[Mr. Halls] does not describe, and records do not indicate, ongoing
headaches since
the time of the accident. Post-traumatic headaches are generally felt at
the time and
following the incident the patient did have some headaches briefly, but
records
indicate that these did improve. He did not have subsequent problems with
headaches until 1973 according to the service medical records and those
indicate that
the onset of those [headaches] was a year prior to his presentation in
1973. That
would give the onset of those headaches in 1972 which would be then far
enough
removed from his car accident to be unrelated to the accident, especially
given the
fact that he was treated for sinusitis, etc.
R. at 1591. Accordingly, the medical examiner concluded that
[t]he current nature of his headaches, the fact that there was a
significant period of
improvement in headaches after the caraccident, a fair amount of time of a
headache-
free interval with intermittent headaches through the years, in addition
to the fact that
his current headaches per his report have only been a problem for the last
two or three
years indicate to me that these are not post-traumatic headaches, but a
muscle
contraction type headache.
R. at 1591.
2

In 1997, Mr. Halls filed a claim for VA benefits for a psychological
disorder and, in a
February 1999 rating decision, the regional office awarded Mr. Halls VA
benefits for an organic
affective disorder, establishing an initial disability rating of 30%,
effective from the date he filed his
claim. In an April 2005 rating decision, the regional office increased
this disability rating to 50%,
effective January 24, 2004, and awarded a 100% rating effective March 2,
2005.
In March 2006, the Board issued a decision that denied Mr. Halls’s claim
for VA benefits for
chronic headaches and increased the initial disabilityratingfor his
organic affective disorder to 50%
for the entire period prior to March 2, 2005. Mr. Halls appealed this
decision to the Court, which,
pursuant to a joint motion, remanded the matter back to the Board in
October 2007. With regard to
Mr. Halls’s chronic headaches claim, the parties agreed that this remand
was necessary because the
Board failed to discuss “medical Previous HittreatiseNext Hit evidence relating to post-
traumatic headaches [submitted
by Mr. Halls in 2004] in an attempt to rebut [the] negative VA medical
opinion.” R. at 36; see also
R. at 516-558 (containing medical Previous HittreatiseNext Hit evidence in question).
This remand precipitated the March 2009 decision now on appeal, in which
the Board
concluded that the weight of the evidence was against Mr. Halls’s claim
for VA benefits for chronic
headaches. The Board also awarded Mr. Halls an increased initial
disability rating of 70% for
organic affective disorder for the period prior to March 2, 2005. Mr.
Halls appealed both of these
decisions to the Court.
On appeal, with regard to his chronic headaches claim, Mr. Halls contends
that the medical
Previous HittreatiseNext Hit evidencehesubmitted in response to the
October1998VAmedicalexaminer’s opinion tends
to undermine the reasoning the medical examiner utilized in reaching her
conclusion. He further
asserts that the Board failed to adequately explain its reasons or bases
for finding that the
unfavorable opinion was nevertheless adequate, competent, and persuasive
in light of the submitted
medical Previous HittreatiseNext Hit evidence. Mr. Halls also asserts that his organic
affective disorder claim is
inextricably intertwined with a separate claim for post-traumatic stress
disorder that was remanded
by the Board in the decision now on appeal and that the Board therefore
erred by adjudicating his
organic affective disorder claim.
In response, the Secretary asserts that Mr. Halls actually takes issue
with the way the Board
weighed the evidence of record when it denied his claim for VA benefits
for chronic headaches, the
3

Board adequately explained its weighing of that evidence, and its
decision should be affirmed. The
Secretaryalso argues that Mr. Halls’s organic affective disorder claim is
not inextricablyintertwined
with his post-traumatic stress disorder claim, and that the Board
therefore did not err in adjudicating
the former while remanding the latter.
II. ANALYSIS
A. Reasons or Bases
Mr. Halls first contends that the Board failed to provide an adequate
statement of its reasons
or bases in that it failed to adequately explain why it found that the
October 1998 VA medical
opinion wasadequate,competent, andpersuasivedespitethemedicaltreatise
evidencehesubmitted.
In rendering its decision, the Board is required to provide a written
statement of the reasons or bases
for its “findings and conclusions[] on all material issues of fact and law
presented on the record.”
38 U.S.C. § 7104(d)(1). The statement must be adequate to enable a
claimant to understand the
precise basis for the Board’s decision, as well as to facilitate review in
this Court. See Gilbert v.
Derwinski, 1 Vet.App. 49, 57 (1990). To comply with this requirement, the
Board must analyze the
credibilityand probative value of the evidence, account for the evidence
that it finds to be persuasive
or unpersuasive, and provide the reasons for its rejection of any material
evidence favorable to the
claimant. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per
curiam, 78 F.3d 604 (Fed. Cir.
1996) (table). The Board may commit error requiring remand when it fails
to provide an adequate
statement of its reasons or bases. See Gilbert, 1 Vet.App. at 57.
The Board’s March 2009 decision that is nowbeforetheCourt resultedfrom an
October2007
remand order entered by this Court at the request of the parties, who
agreed that a remand was
necessaryso that the Board could consider medical Previous HittreatiseNext Hit evidence that
was submitted byMr. Halls
to “rebut [the] negative VA medical opinion.” R. at 36. On remand, in its
March 2009 decision, the
Board noted that Mr. Halls had submitted two articles on post-traumatic
headaches, but discussed
the relevant aspects of onlyone. It characterized the relevant portions of
this article as follows: “One
articleindicatedthatpost-
traumaticheadachesincluded’musclecontraction’typeheadaches,andthat
they may be recurrent with throbbing, pain, and both exacerbated and
prolonged by emotional
factors.” R. at 12. Citing to Libertine v. Brown, 9 Vet.App. 521, 523 (
1996), the Board nevertheless
dismissed the medical Previous HittreatiseNext Hit evidence because “[i]t has been held . . .
that generic medical literature
4

which does not apply medical principles regarding causation or etiologyto
the facts of an individual
case does not provide competent evidence to establish the nexus element.”
R. at 12. Accordingly,
it found that the October 1998 VA medical opinion was “more persuasive”
than the medical Previous HittreatiseNext Hit
evidence because “the VA examiner’s opinion . . . was based upon a
detailed review of the claims
file[,] the specific facts in [Mr. Halls’s] case, and was supported by a
detailed rationale.” R. at 12.
The Court concludes that the Board’s statement concerning the medical
Previous HittreatiseNext Hit evidence
offered by Mr. Halls was insufficient because it only addressed whether
that evidence was
independently sufficient to establish a medical nexus between his current
headaches and the 1970,
in-service motor vehicle accident. It therefore failed to fully comply
with 38 C.F.R. § 4.2, which
requires the ratings specialist to “interpret reports of examination in
light of the whole recorded
history. . . .” Specifically, the Board failed to consider how the
information contained in the medical
Previous HittreatiseNext Hit evidence affected the adequacy and probative value of the
unfavorable October 1998 VA
medical opinion, given various contradictions between the information
contained in the medical
Previous HittreatiseNext Hit evidence and the medical reasoning employed by the VA medical
examiner. Indeed, the
parties’ October 2007 joint motion for remand stated that the evidence had
been offered byMr. Halls
not to establish medical nexus, but to “rebut [the] negative VA medical
opinion,” and that the Board
therefore erred in its March 2006 decision by failing to discuss it. If
the Board were permitted to
outrightly discount medical Previous HittreatiseNext Hit evidence on the basis that it is does
not address the specific facts
of a particular case, there would be no value in ever introducing medical
Previous HittreatiseNext Hit evidence, since all
such evidence is necessarily “generic” in this sense. Rather, once
submitted, medical Previous HittreatiseNext Hit
evidence becomes part of the whole recorded history of a claim against
which all medical
examination reports must be considered. See 38 C.F.R. § 4.2 (2010).
If there is any question as to whether such evidence bears considering as
a general matter,
as Mr. Halls notes in his reply brief, the Federal Rules of Evidence,
specifically Rule 803(18), have
specifically carved an exception to the hearsay rule so that such evidence
may be admitted for
consideration. Although the Court is well aware that the Federal Rules of
Evidence do not apply in
VA adjudications, the text of Rule 803(18) and the policy considerations
that support it are
instructive regarding the competency of Previous HittreatiseNext Hit evidence. This rule, of
course, does not pertain to
the weight to be given to such evidence, only that it is worth weighing.
It is the law of veterans
5

benefits, which does apply to the adjudication of veterans-benefits
claims by VA, that requires that
evidence favorable to the claimant must be discussed and weighed against
the other evidence of
record. Peyton v.Derwinski,1Vet.App.282,285-86(1991) (explaining that the
Boardmust provide
the reasons for its rejection of any material evidence favorable to the
veteran).
In this case, and as stated above, various contradictions exist between
the medical reasoning
employed by the VA medical examiner and the information contained in the
medical Previous HittreatiseNext Hit
evidence submitted by Mr. Halls. First, the VA medical examiner reasoned
that Mr. Halls’s
headaches were less likely than not the result of head trauma suffered
during the in-service motor
vehicle accident because the headaches he experienced immediately
thereafter eventually improved
and dissipated and were only experienced intermittently for a long period
of time until two to three
years prior to the date of the examination, when they apparently became
more persistent. However,
as characterized by the Board, the medical Previous HittreatiseNext Hit evidence indicated, in
relevant part, that post-
traumatic headaches “may be recurrent.” R. at 12. The word “recurrent”
means “appearing or
occurring again or periodically.” WEBSTER’S NEW WORLD DICTIONARY 1123 (3d
ed. 1988)
(emphasis added). Accordingly, the medical Previous HittreatiseNext Hit evidence indicated
that it may not be unusual
for post-traumatic headaches to be recurrent, periodic, or intermittent.
The Board offered no
explanation of how it resolved this contradiction in finding that the
October 1998 VA medical
examiner’s opinion was adequate and persuasive.
Similarly, whereas the Board found that the medical Previous HittreatiseNext Hit evidence ”
indicated that post-
traumatic headaches include[] ‘muscle contraction’ type headaches,” the VA
medical examiner
concluded that Mr. Halls likely suffered from muscle contraction type
headaches rather than post-
traumatic headaches, suggesting she believed the two types of headaches to
be mutually exclusive.
R. at 12, 1591. Again, the Board offered no explanation of how it
reconciled this contradiction.
Finally, the Court notes that the Board characterized the medical Previous HittreatiseNext Hit
evidence as
suggesting that post-traumatic headaches “may be . . . both exacerbated
and prolonged byemotional
factors,” and that Mr. Halls is currently receiving VA benefits for an
organic affective disorder that
is characterized by symptoms including short temper, mood instability,
depression, irritability, and
anger outbursts, symptoms that, according to the Board’s findings, have
worsened since he was first
service connected for the condition in 1997. R. at 12, 16-18. However,
neither the Board nor the
6

VA medical examiner who offered the October 1998 opinion discussed
whether these emotive
symptoms may have contributed to Mr. Halls’s headaches.
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). Because, according to the Board’s own description of it, the
medical Previous HittreatiseNext Hit evidence
submitted by Mr. Halls contradicted various aspects of the reasoning
utilized by the VA medical
examiner in reaching her unfavorable October 1998 opinion, the Board was
required to explain how
and why it resolved this contradiction in finding that the medical
examiner’s opinion was adequate,
probative, and persuasive. Because it did not do so, the Court will vacate
that portion of the Board’s
March 2009 decision that denied Mr. Halls’s claim for chronic headaches
and remand this matter for
readjudication consistent with this decision. If the Board is unable to
reconcile the VA medical
examiner’s opinion with the medical Previous HittreatiseNext Hit evidence, it should request
an additional opinion from
a VA medical examiner who considers the entire record, including the
medical Previous HittreatiseNext Document evidence
submitted byMr. Halls. See Barr v. Nicholson, 21 Vet.App. 303, 311 (2007
) (“[O]nce the Secretary
undertakes the effort to provide an examination when developing a service-
connection claim, even
if not statutorily obligated to do so, he must provide an adequate one or,
at a minimum, notify the
claimant why one will not or cannot be provided.”)
B. Inextricably Intertwined
Mr. Halls next contends that the Board erred by adjudicating his organic
affective disorder
claim even though it remanded a separate claim for post-traumatic stress
disorder, because the two
claims are inextricably intertwined and therefore should be adjudicated
together. At the outset, the
Court notes that Mr. Halls does not make any argument contesting the
disability ratings or effective
dates assigned by the Board for his service-connected organic affective
disorder. Accordingly, the
Court deems any arguments pertaining to these issues to be abandoned. See
Grivois v. Brown,
6 Vet.App. 136, 138 (1994) (issues or claims not argued on appeal are
considered abandoned).
This Court has held that “where a decision on one issue would have a
‘significant impact’
upon another, and that impact in turn ‘could render any review by this
Court of the decision [on the
7

other claim] meaningless and a waste of judicial resources,’ the two
claims are inextricably
intertwined.” Henderson v. West, 12 Vet.App. 11, 20 (1998) (quoting Harris
v. Derwinski,
1 Vet.App. 180, 183 (1991), overruled on other grounds by Tyrues v.
Shinseki, 23 Vet.App. 166
(2009)).
Here, Mr. Halls asserts that
[i]f . . . VA grants service connection for [his] [post-traumatic stress
disorder]
effective September 1995, then [his] combined service-connected
psychiatric
symptoms may meet the 100% rating criteria prior to March 2005. In other
words,
since[post-traumatic stress disorder] and organicaffective
disorderinvolvedifferent
symptoms and separate diagnostic and rating criteria, a favorable decision
regarding
[post-traumatic stress disorder] could result in the veteran meeting the
criteria for a
higher psychiatric rating prior to March 2005—the same issue currently
before the
Court.
Appellant’s Br. at 10-11.
The Court is perplexed by Mr. Halls’s argument. Assuming, as Mr. Halls
argues, that his
claims for post-traumatic stress disorder and organic affective disorder
do “involve different
symptoms and separate diagnostic and rating criteria,” such factors would
seem to suggest his two
claims are in fact distinct, involve separate issues, and therefore are
not inextricably intertwined.
However, as a matter of law, it is apparent that both conditions fall
under the general rating criteria
for mental disorders set forth in 38 C.F.R. § 4.130, as post-traumatic
stress disorder is evaluated
under diagnostic code 9411 and the Board chose to rate Mr. Halls’s organic
affect disorder pursuant
to the diagnostic code for “[d]ementia due to head trauma,” 9304.
Nevertheless, in the event that Mr. Halls is ultimately service connected
for post-traumatic
stress disorder, it appears VA has determined that Mr. Halls’s claimed
mental disorders should be
treated as distinct psychological disabilities assigned separate ratings,
rather than a single
psychological disorder. See Boggs v. Peake, 520 F.3d 1330, 1337 (Fed. Cir.
2008) (holding that “a
veteran cannot be compensated more than once for the same disability”). If,
on remand, Mr. Halls
is service connected for post-traumatic stress disorder, it is difficult
to understand why the Board’s
decision to increase his initial disability rating to 70% for organic
affective disorder would prevent
him from also being evaluated as 100% disabled due to his post-traumatic
stress disorder, should the
evidence support such a rating.
8

Accordingly, the Court concludes that Mr. Halls’s psychological disorder
claims are not
inextricablyintertwinedandwillthereforeaffirmtheportion oftheBoard’s
March2009decisionthat
awarded him a 70% initial disability rating for organic affective disorder.
III. CONCLUSION
Upon consideration of the foregoing, that portion of the March 4, 2009,
Board decision that
denied VA benefits for chronic headaches is VACATED and the matter is
REMANDED for further
development and readjudication consistent with this decision. That portion
of the March 4, 2009,
Board decision that awarded an initial disability rating of 70% for
organic affective disorder prior
to March 2, 2005, is AFFIRMED.
DATED: January 20, 2011
Copies to:
Darla J. Lilley, Esq.
VA General Counsel (027)
9

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