Veteranclaims’s Blog

July 9, 2011

Single Judge Application, Treatise Material and Prejudice, Sacks v. West, 11 Vet.App. 314, 317 (1998), Herlehy v. Brown, 4 Vet. App. 122, 123 (1993)

Excerpt from decision below:
“Further, to establish prejudice, Mr. McLaughlin would have to demonstrate
that the treatise material was specific to him and could outweigh the specific medical opinions against his claim, and he has not done so. See Sacks v. West, 11 Vet.App. 314, 317 (1998) (holding that treatise materials generally are not specific enough to show nexus); Herlehy v. Brown, 4 Vet. App. 122, 123 (1993)(discussing how, in general, medical opinions directed at specific patients are more probative than
medical treatises); see also Sanders, supra.
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 10-2130
JAMES MCLAUGHLIN, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before KASOLD, Chief Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
KASOLD, Chief Judge: Veteran James McLaughlin appeals pro se that part of
a June 21,
2010, decision of the Board of Veterans’ Appeals (Board) that denied
disability compensation for
asthma, autoimmune disorder,1
and systematic arthritis of multiple joints because they were not
service connected. Mr. McLaughlin asserts numerous errors with the Board’s
decision, including
specific allegations that the Board (1) erred in its duty-to-assist
determination and (2) improperly
relied on the September 2009 VA medical opinion.2
The Secretary disputes these arguments.
Single-judge disposition is appropriate. Frankel v. Derwinski, 1 Vet.App.
23, 25-26 (1990). For the
reasons stated below, the Board’s decision will be affirmed.
The record does not support Mr. McLaughlin’s arguments. In order to
substantiate a claim
for benefits, the evidence must establish (1) a current disability, (2) an
in-service incurrence or
“Autoimmune disease” is “a disorder caused by an immune response directed
against self antigens . . . .
[S]ome diseases, such as systematic lupus erythematosus and rheumatoid
arthritis are often classified as autoimmune
diseases even though their pathogenesis is unclear.” DORLAND’S ILLUSTRATED
MEDICAL DICTIONARY 536 (31st ed.
2007) [hereinafter DORLAND’S].
Mr. McLaughlin also files a motion for oral argument. As his appeal
involves no matters that require
more extensive briefing, his motion will be denied. See Winslow v. Brown,
8 Vet.App. 469, 471 (1996) (denying
motion for oral argument where Court did not believe it would materially
assist in disposition of appeal).
2
1

aggravation of a disease or Previous DocumentinjuryNext Hit, and (3) a nexus between the claimed
in-service disease or Previous HitinjuryNext Document
and the current disability. Hickson v. West, 12 Vet.App. 247, 253 (1999).
With regard to asthma, the Board found – and the record on appeal
reflects – that the
evidence did not establish a nexus between Mr. McLaughlin’s current asthma
and service. See
Hickson, supra. In rendering its decision, the Board relied on a September
2009 VA medical report
that was based on a review of the record and in which the physician opined
that Mr. McLaughlin’s
asthma was an allergic-type asthma, not caused by cold air, gonorrhea, or
penicillin in service. The
Board also noted that (1) there was no medical opinion contrary to the
September 2009 report, (2)
asthma symptoms began 13 years after service, (3) private treatment
records did not indicate that
cold weather in service caused Mr. McLaughlin’s asthma, and (4) Mr.
McLaughlin did not
demonstrate the requisite medical expertise to posit competent testimony
regarding the medical
etiologyof his asthma, seeEspiritu v. Derwinski, 2 Vet.App. 492, 495 (1992
) (in general, laywitness
may not “offer probative evidence on a matter normally regarded to be the
province of an expert”).
With regard to an autoimmune disorder or systemic arthritis, the Board
found that the
evidence demonstrated no current disability. See Hickson, supra. The Board
noted that, although
certain medical reports noted symptoms of arthritis or an arthritic
component, none contained a
specific diagnosis of autoimmune disorder, systematic arthritis, or
rheumatoid arthritis,3
and the
September2009 physician explicitlyopined that Mr. McLaughlin did not
haveautoimmunedisorder
or systemic arthritis. Further, although the record reflects a recent
increase in positive antinuclear
antibodies (ANAs),4
VA physicians in April 2009 and September 2009 both stated that the
increase
could be a false positive, and the September 2009 physician explained that ”
the finding of positive
ANA in and of itself is not solely diagnostic of an autoimmune disorder.”
Record (R.) at 41.
Overall, Mr. McLaughlin received two VA examinations on this issue, and a
medical examiner’s
review of his medical records, none of which supports his claim. Moreover,
Mr. McLaughlin
“Rheumatoid arthritis” is “a chronic systematic disease primarily of the
joints . . . . The cause is unknown,
but autoimmune mechanisms and virus infection have been postulated.”
DORLAND’S at 152-59.
“Antinuclear antibodies” are “antibodies directed against nuclear antigens;
ones against a variety of
different antigens are almost invariably found in systematic lupus
erythematosus and are frequently found in
rheumatoid arthritis.” DORLAND’S at 102.
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3
2

identifies no medical diagnosis in the record contrary to the September
2009 physician’s explicit
opinion that Mr. McLaughlin has no current autoimmune disorder or
systematic arthritis.
Withregardto Mr.McLaughlin’sspecificassertions of error, although
theBoardshould have
discussed the treatise material brought to its attention by Mr. McLaughlin
at his Board hearing, Mr.
McLaughlin fails to demonstrate prejudice, and the Court cannot discern
any from the record on
appeal. See Shinseki v. Sanders, 129 S. Ct. 1696, 1706, 1708 (2009) (
holding that appellant
generallybears burdenofdemonstratingprejudiceonappeal,
andfindingprejudicenotdemonstrated
when appellant did not explain, and Court could not discern, how error
could have made difference
in outcome). The record reflects that the Board hearing officer stated
that he could review the
treatise on his own and Mr. McLaughlin does not demonstrate that the
hearing officer did not do so.
Further, to establish prejudice, Mr. McLaughlin would have to demonstrate
that the treatise material
was specific to him and could outweigh the specific medical opinions
against his claim, and he has
not done so. See Sacks v. West, 11 Vet.App. 314, 317 (1998) (holding that
treatise materials
generally are not specific enough to show nexus); Herlehy v. Brown, 4 Vet.
App. 122, 123 (1993)
(discussing how, in general, medical opinions directed at specific
patients are more probative than
medical treatises); see also Sanders, supra.
Also unsuccessful is Mr. McLaughlin’s argument that the Board improperly
relied on the
September 2009 VA medical opinion because the physician (1) was not an
expert rheumatologist,
(2) was employed by the VA rather than an independent medical expert, and (
3) did not personally
examine him. First, in the absence of specific reasons why the physician
is unqualified to render a
medical opinion, the Board is permitted to presume that the physician is
competent. See Bastien v.
Shinseki, 599 F.3d 1301, 1307 (Fed. Cir. 2010). Second, the Secretary “is
explicitly and implicitly
authorized to use its own employees as experts.” Bastien, supra; see also
Winsett v. West, 11
Vet.App. 420, 426 (1998) (“[W]hether the Board chooses to refer a
particular case for an
independent medical opinion is entirely within its discretion.”). Third,
the Secretary is permitted to
request and grant probative weight to the medical opinions of nonexamining
physicians. See
Williams v. Brown, 4 Vet.App. 270, 273 (1993) (“Nowhere is it provided in
law or regulation that
opinions by the examining [physicians] are inherently more persuasive than
that of other competent
medical health professionals.”). Moreover, although Mr. McLaughlin argues
that the September
3

2009 physician provided inadequate scientific evidence and reasoning for
his opinion, Mr.
McLaughlin has not demonstrated that he has the necessary expertise to
challenge the September
2009 physician’s medical reasoning. See Hilkert v. West, 12 Vet.App. 145,
151 (1999) (en banc)
(appellant bears burden of demonstrating error on appeal); Espiritu, supra.
In sum, based on the record on appeal, the Board’s specific findings that
support its service-
connection determinations are plausible and not clearly erroneous. See
Russo v. Brown, 9 Vet.App.
46, 50 (1996) (finding of service connection, or lack thereof, is a
finding of fact reviewed under the
“clearly erroneous” standard of review); Gilbert v. Derwinski, 1 Vet.App.
49, 52 (1990). Moreover,
the Board’s statement of reasons or bases in support of its findings is
understandable and facilitative
of judicial review. See Allday v. Brown, 7 Vet.App. 517, 527 (1995) (
Board’s 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”).
Accordingly, that part of the June, 21, 2010, decision of the Board on
appeal is AFFIRMED.
DATED: July 1, 2011
Copies to:
James McLaughlin
VA General Counsel (027)
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