Veteranclaims’s Blog

September 15, 2011

Single Judge Application, Probative Value of Medical Opinion Comes From its Reasoning, Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 304(2008)

Excerpt from decision below:
“Because this Court has previously explained that “most of the probative value of a medical opinion comes from its reasoning,” the Court concludes that there was a plausible basis for the Board’s determination that the private physician’s opinions were entitled to minimal probative value. Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 304 (2008).”
=========================================

—————————————————-

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-2246
EZZIE THOMAS, 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: Ezzie Thomas appeals through counsel a June 7, 2010, Board
of Veterans’
Appeals (Board) decision that denied entitlement to VA benefits for right
and left knee disorders.
Mr. Thomas’s Notice of Appeal was timely, and the Court has jurisdiction
to review the Board
decision pursuant to 38 U.S.C. § 7252(a). Neither partyrequested oral
argument or identified issues
they believe require a precedential decision of the Court. Because the
Board relied on an adequate
VA medical examination, adequately explained its determination regarding
the weighing of
countervailing medical opinions, and considered all material issues of law,
the Court will affirm the
June 2010 Board decision.
I. FACTS
Mr. Thomas served on active duty in the U.S. Air Force from September 1949
to January
1953. No abnormalities of the extremities or joints were noted during his
entrance examination.
Most of the remainder of Mr. Thomas’s service treatment records are
presumed to have been
destroyed in the July 1973 fire at the National Personnel Records Center
in St. Louis, Missouri.
A June 2001 VA treatment note indicates that Mr. Thomas sought treatment
for right knee
pain and was referred for a knee brace. Similar complaints were noted in
VA treatment notes from

March and April 2002. For instance, an April 2002 note indicates that Mr.
Thomas taught “tennis
to inner city kids [t]wo days weekly” and that “[h]is knee bother[ed] him
after heavy work out[s].”
Record (R.) at 816. Another April 2002 note reflects that Mr. Thomas
reported a history “of remote
sports injuries, but . . . no surgeries,” and that he had been
experiencing symptoms associated with
the right knee for over 20 years. X-rays taken at that time “revealed
severe narrowing of the medial
joint line with multiple marginal osteophytes”1
and “severe degenerative changes of the
patellofemoral joint,” leading to a diagnosis of degenerative joint
disease and chondromalacia.2
R.
at 821.
In March 2004, Mr. Thomas filed a claim for VA benefits for a “bilateral
knee condition due
to playing football while on active duty in the U.S. Air Force.”3
R. at 858. In December 2004, one
of Mr. Thomas’s fellow servicemembers submitted a statement indicating
that while the men “were
stationed at Bergstrom Air Force Base [they] tried out for the football
team,” but that Mr. Thomas
was unable to continue practicing after he “injured his knees early in the
season,” which caused him
to walk with “a pronounce[d] limp as he moved about the base.” R. at 841.
In a June 2005 rating decision, a VA regional office denied Mr. Thomas
entitlement to VA
benefits for left and right knee conditions. Mr. Thomas filed a Notice of
Disagreement with this
decision in March 2006. His Notice of Disagreement was accompanied by a
letter from his wife,
in which she stated that Mr. Thomas played football while at Bergstrom Air
Force Base and, “[o]n
several occasions[,] he would come home with knee or ankle injuries” that
she treated with massages
and heat applications. R. at 794. Mr. Thomas also submitted a letter from
a private physician. The
physician stated that he reviewed the statements submitted by Mr. Thomas’s
wife and fellow
servicemember and that Mr. Thomas “sustained multiple traumatic injuries
during his tenur[e].” R.
at 795. The private physician then opined that he could, “with reasonable
certainty[,] state that [Mr.
Anosteophyteisa”bonyexcrescence or osseous outgrowth.”
DORLAND’SILLUSTRATEDMEDICALDICTIONARY
1348 (32d ed. 2011) [hereinafter DORLAND’S].
2
1
Chondromalacia is “softening of the articular cartilage, most frequently
in the patella.” DORLAND’S at 352.
Mr. Thomas characterized this as a claim to reopen a previously denied
claim for such benefits, but the record
contains no indication that he previously applied for and was denied
benefits for a bilateral knee condition and VA
therefore adjudicated his claim as though it were an initial claim for
benefits.
3
2

Thomas’s] time on the football field in the military contributed to his
present degenerative joint
disease of his knees.” R. at 795.
VA medical records dated between August 2005 and February 2007 continue to
reflect
complaints of bilateral knee pain resulting in diagnoses of degenerative
joint disease.
After further development, Mr. Thomas appealed to the Board, which
remanded his claims
in June 2009 so that a VA medical examination could be obtained. This
medical examination was
conducted in September 2009. The examiner’s report indicates that there
were “[n]o records of any
knee pain or issues while in service” and Mr. Thomas “[d]enie[d] any
history of knee pain while in
service”; that he had “[n]o history of traumatic injury to [his] knees
during service”; and that his
condition had not previously required surgery. R. at 75. After a physical
examination, the examiner
diagnosed Mr. Thomas with bilateral moderate knee degenerative joint
disease. He concluded,
however, that this condition was less likelythan not related to Mr.
Thomas’s militaryservice because
“[t]here [was] no history or record of a traumatic injury in the service
to explain [his] current
[degenerative joint disease]” and “it is unlikely that [four] years of
service, or 1.5 years of football
(without significant knee injury)[,] would have degenerated his knee to
its current condition.” R. at
77. Instead, the examiner opined that Mr. Thomas’s “current knee condition
is more likely a result
of age-related degenerative changes.” R. at 77.
In November 2009, this opinion was returned to the VA examiner for
clarification.
Specifically, the decision review officer instructed the examiner to
provide a new opinion that
“include[d] a discussion of the creditable lay evidence submitted by [Mr.
Thomas’s] wife, . . . Army
buddy[,] . . . and the statement from his private physician.” R. at 67. In
response, the VA examiner
issued an addendum to his earlier report in January 2010. The VA
examiner’s opinion was identical
to that previously provided, except that it also discussed the relevant
lay and medical evidence, as
directed. With regard to the lay statements, the VA examiner “acknowledge[
d] that [Mr. Thomas]
played football and sustained injuries in this sport,” but concluded that
it was still “more likely that
[his] advanced age[] and normal articular cartilage degenerative changes
are responsible for his
current [degenerative joint disease] than his football playing.” R. at 54.
With regard to the private
physician’s letter, the VA examiner stated that he disagreed with the
private physician’s opinion
because, absent evidence that those injuries required hospitalization or
surgery, Mr. Thomas’s
3

“advanced age, activities, and other factors were more significant in the
development of
[degenerative joint disease] than his brief tenure of football while in
service.” R. at 54.
InMarch2010,Mr.Thomas’s
privatephysiciansubmittedasecondletterdetailingstatements
made by Mr. Thomas’s wife regarding her husband’s history of knee problems.
Specifically, the
letter noted that Mr. Thomas’s wife indicated that her husband “took lots
of over the count[er]
medications” and “refused corrective surgical interventions because he saw
. . . bad outcomes with
[his] buddies,” and that “[h]is knee problems stopped him from running
around when all of his
buddies were ‘wide open.'” R. at 19. The examiner then opined that Mr.
Thomas had “advanced
arthritis in both knees and his military career had a negative impact on
his knee health.” R. at 21.
The Board issued the decision now on appeal in June 2010, concluding that
the
preponderance of the evidence did not indicate that Mr. Thomas’s current
bilateral degenerative joint
disease was related to his service and therefore denying his claims. In
reaching this conclusion, the
Board afforded “great probative value [to the VA examiner’s opinion
because] it was based on a
review of the file, an examination of [Mr. Thomas], and . . . a rationale
was provided.” R. at 7. The
Board concluded that this opinion outweighed those provide by the private
physician because “the
private physician did not provide a rationale for his nexus opinion.” R.
at 8. The Board also found
that “the absence of medical complaint of a bilateral knee condition for
many years after service
[was] highly probative evidence against [Mr. Thomas’s] claim.” R. at 8.
Finally, the Board found
all of the lay evidence of record credible and that it therefore
constituted evidence of an in-service
injury. However, the Board found that none of this “evidence show[ed] that [
Mr. Thomas] had
arthritis to any degree within one year of separation of service” and that,
although Mr. Thomas had
related his in-service football injury to his current bilateral knee
condition, “his opinion [was]
outweighed by the more probative medical opinion of record.” R. at 8.
On appeal, Mr. Thomas contends that the September 2009 VA medical
examination was
inadequate, even in light of the January 2010 addendum. He also argues
that the Board failed to
provide adequate reasons or bases for its determination that the VA
examiner’s opinion was more
4

probative than the private physician’sopinions. Finally,hecontendsthat
the Board failed to consider
whether his degenerative joint disease should be service connected as a
chronic condition.4
The Secretary argues that the VA medical examination was adequate, that
the Board
adequatelyexplained its determinationthattheexaminer’s resultingopinion
wasmoreprobativethan
that offered by the private physician, and that the record simply does not
provide any evidence that
Mr. Thomas’s current degenerative joint disease of the knees manifested
itself as a chronic condition
during his service or within the relevant presumptive period.
II. ANALYSIS
A. Adequacy of the VA Medical Examination
The Secretary “shall make reasonable efforts to assist a claimant in
obtaining evidence
necessary to substantiate the claimant’s claim for a benefit under a law
administered by the
Secretary.” 38 U.S.C. § 5103A(a)(1). The Secretary’s duty to assist a
claimant includes, among
other things, “providing a medical examination or obtaining a medical
opinion when such an
examination or opinion is necessaryto make a decision on the claim.” 38 U.
S.C. § 5103A(d)(1); see
38 C.F.R. § 3.159(c) (2011).
The medical examination provided must be “thorough and
contemporaneous” and consider prior medical examinations and treatment.
Green v. Derwinski,
1 Vet.App. 121, 124 (1991). A medical examination is adequate “where it is
based upon
consideration oftheveteran’s
priormedicalhistoryandexaminationsandalsodescribesthedisability
. . . in sufficient detail so that the Board’s ‘evaluation of the claimed
disability will be a fully
informed one.'” Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007) (quoting
Ardison v. Brown,
6 Vet.App. 405, 407 (1994)). If an examination report does not contain
sufficient detail, “it is
incumbent upon the rating board to return the report as inadequate for
evaluation purposes.”
38 C.F.R. § 4.2 (2011); see Bowling v. Principi, 15 Vet.App. 1, 12 (2001) (
emphasizing the Board’s
dutyto return inadequate examination report). The Board maycommit error
requiring remand when
4
Mr. Thomas does not allege that VA failed to satisfy any of its enhanced
duties that arose due to his missing
service medical records. See Washington v. Nicholson, 19 Vet.App. 362, 370 (
2005) (explaining that where a veteran’s
are presumed to have been lost or destroyed while inthe possession ofthe
government, VA’s dutyto assist is heightened);
O’Hare v. Derwinski, 1 Vet.App. 365, 367 (1991) (“[W]here the service
medical records are presumed destroyed . . .
the [Board]’s obligation to explain its findings and conclusions and to
consider carefully the benefit-of-the-doubt rule
is heightened.”).
5

it relies on an inadequate medical examination. See Ardison, 6 Vet.App.
at 407 (holding that an
inadequate medical examination frustrates judicial review).
Whether a medical opinion is adequate is a finding of fact, which the
Court reviews under
the “clearlyerroneous” standard. See 38 U.S.C. § 7261(a)(4); D’Aries v.
Peake, 22 Vet.App. 97, 103
(2008); Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990). “A factual finding
‘is “clearly erroneous”
when although there is evidence to support it, the reviewing court on the
entire evidence is left with
the definite and firm conviction that a mistake has been committed.'”
Hersey v. Derwinski,
2 Vet.App. 91, 94 (1992) (quoting United States v. U.S. Gypsum Co., 333 U.
S. 364, 395 (1948)).
Here, Mr. Thomas argues that the VA medical examiner’s report was
inadequate because it
failed “to properly consider the injuries described in the lay statements
in spite of . . . VA’s
determination that those lay statements were credible.” Appellant’s Brief (
Br.) at 4. The Court
disagrees.
The VA examiner’s initial opinion failed to discuss the lay statements of
Mr. Thomas’s wife
and the fellow servicemember. Accordingly, the decision review officer
returned the examination
report as inadequate, directed the examiner to consider those lay
statements, which were described
as credible, and further instructed him to offer a new opinion that
directly addressed the lay
statements. See R. at 67; see also 38 C.F.R. § 4.2. In the January 2010
addendum to the initial
report, the VA examiner acknowledged these lay statements and accepted
that they were evidence
that Mr. Thomas played football for approximately 1.5 years during his
service and that he suffered
knee injuries as a result, but noted that the lay statements did not
indicate that these injuries required
hospitalization or surgery. The examiner then opined that, without
evidence of an injury so severe
that it required hospitalization or surgery, it remained more likely that
Mr. Thomas’s current
degenerativejoint diseasewascausedbythenormalagingprocess thanhis in-
servicefootball-related
experiences.
In light of this portion of the examiner’s January 2010 addendum, the
Court concludes that
there is no foundation for Mr. Thomas’s argument that the VA examiner
failed to properly consider
the laystatements and the Board therefore did not clearlyerr in concluding
that the examiner’s report
was adequate. See D’Aries, 22 Vet.App. at 103.
6

B. Reasons or Bases
Mr. Thomas next argues that the Board failed to adequately explain its
decision to afford
greater probative value to the VA medical examiner’s opinion than those
offered by his private
physician.
It is for the Board to weigh the evidence in the first instance,
Washington, 19 Vet.App. at
369, and the Court may not substitute its judgment for the determinations
of the Board on an issue
of material fact. Hersey, 2 Vet.App. at 94. Accordingly, the Board’s
assessment of the credibility
and weight to be given to evidence is a finding of fact that the Court
reviews under the “clearly
erroneous” standard of review. 38 U.S.C. § 7261(a)(4); Wood v. Derwinski,
1 Vet.App. 190, 193
(1991); Gilbert, 1 Vet.App. at 52. To this end, it is well established
that the Board is permitted to
favor one medical opinion over another provided that it gives an adequate
statement of its reasons
and bases for doing so. See Simon v. Derwinski, 2 Vet.App. 621, 622 (1992).
To comply with this
requirement, the Board’s explanation must beadequateto enableaclaimant to
understand the precise
basis for the Board’s decision, as well as to facilitate review in this
Court. Gilbert, 1 Vet.App. at 57.
Here, the rationale the Board provided for favoring the VA examiner’s
opinion over those
provided bythe private physician was that, whereas the VA examiner based
his opinion “on a review
of the file[ and] an examination of [Mr. Thomas], and . . . [provided] a
rationale” for his opinion, R.
at 7, “the private physician did not provide a rationale for his nexus
opinion.” R. at 8. After
reviewing the private physician’s opinions, the Court agrees that they are
unsupported by medical
reasoning. In fact, Mr. Thomas appears to concede this point, as he argues
that the VA examiner’s
opinion also was unsupported by a rationale, meaning that the
countervailing opinions were equally
probative and he should have been afforded the benefit of the doubt.
Appellant’s Br. at 6 (citing
38 U.S.C. § 5107(b)). Because this Court has previouslyexplained that ”
most of the probative value
of a medical opinion comes from its reasoning,” the Court concludes that
there was a plausible basis
fortheBoard’s determination thattheprivatephysician’s opinions
wereentitledtominimal probative
value. Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 304 (2008).
Furthermore,theCourtdisagreeswith Mr.Thomas’s
argumentthattheVAmedicalexaminer
likewise failed to provide a rationale for his opinion. As discussed above,
the VA medical examiner
explained in his January2010 addendum that, without evidence of an
injuryso severe that it required
7

hospitalization or surgery, Mr. Thomas’s current bilateral knee
degenerative joint disease was more
likely attributable to the natural aging process than his football-related
injuries. As a medical
rationale was, therefore, provided by the VA examiner, the Court concludes
that there was a
plausible basis for the Board’s determination that the VA examiner’s
opinion was entitled to greater
probative value than those offered bythe private physician, and that the
Board adequately explained
its determination on this point. See Simon, 2 Vet.App. at 622; Wood, 1 Vet.
App. at 193.
C. Consideration of Chronicity
Finally, Mr. Thomas argues that the Board failed to consider whether,
pursuant to 38 C.F.R.
§ 3.303(b), the lay statements of record constituted evidence of in-
service symptoms of a chronic
condition from which he also now suffers. In relevant part, § 3.303(b)
provides:
With chronic disease shown as such in service (or within the [one-year]
presumptive
period under [38 C.F.R.] § 3.307) so as to permit a finding of service
connection,
subsequent manifestations of the same chronic disease at any later date,
however
remote, are service connected, unless clearlyattributable to intercurrent
causes. This
rule does not mean that any manifestation of joint pain . . . in service
will permit
service connection of arthritis . . . first shown as a clearcut clinical
entity, at some
later date. For the showing of chronic disease in service there is
required a
combination of manifestations sufficient to identify the disease entity,
and sufficient
observation to establish chronicity at the time, as distinguished from
merely isolated
findings or a diagnosis including the word “Chronic.”
This Court has explained that this provision is for application “when the
evidence demonstrates:
(1) that the veteran had a chronic disease in service, or during an
applicable presumption period . .
. and (2) that the veteran presently has the same condition.” Savage v.
Gober, 10 Vet.App. 488, 495
(1997).
Here, Mr. Thomas contends that “the [Board] did not discuss or consider
whether the
symptoms the veteran suffered in service, pain and swelling, were
manifestations of the chronic
condition from which he now suffers.” Appellant’s Br. at 7. He does not,
however, specifically
identify the evidence of record that he contends demonstrates the onset of ”
clearcut clinical”
degenerative joint disease of the knees while he was in service, meaning
evidence demonstrating “a
combination of manifestations sufficient to identify” in-service
degenerative joint disease and “to
establish chronicity at the time.” 38 C.F.R. § 3.303(b). It is Mr.
Thomas’s burden to demonstrate
Board error and, without so much as identifying the specific evidence in
the record of proceedings
8

that he contends triggered the provisions of § 3.303(b), he cannot carry
this burden. See Hilkert v.
West, 12 Vet.App. 145, 151 (1999) (holding that the appellant has the
burden of demonstrating
error), aff’d, 232 F.3d 908 (Fed. Cir. 2000) (table).
In fact, it does not appear that Mr. Thomas even alleges that he did
suffer from chronic
degenerative joint disease of the knees while in service or during the
presumptive period following
his separation from service; instead, he only alleges that he experienced
knee pain and swelling
during service. However, without more, this is not sufficient to indicate
the onset of a chronic
condition during service or the presumptive period. As § 3.303(b)
expresslyprovides, the rule it sets
forth “does not mean that any manifestation of joint pain . . . in service
will permit service
connection of arthritis . . . first shown as a clearcut clinical entity,
at some later date.” Here, even
the private physician who offered opinions on Mr. Thomas’s behalf did not
state that Mr. Thomas’s
in-service knee pain and swelling were caused bychronic degenerative joint
disease that manifested
at that time. Instead, he merely opined that his in-service football
injuries were likely the cause of
his current degenerative joint disease of the knees.
The Board is only required to discuss the provisions of law that the
record indicates are
material to a veteran’s claim. See 38 U.S.C. § 7104(d)(1) (requiring the
Board to provide a written
statement of the reasons or bases for its “findings and conclusions[] on
all material issues of . . . law
presented on the record”). Without some indication in the record that Mr.
Thomas had chronic
degenerative joint disease of the knees during service or within one year
thereafter, the Board was
under no obligation to discuss the chronicity provisions of § 3.303(b).
Id.; see also Savage,
10 Vet.App. at 495.

III. CONCLUSION
Upon consideration of the foregoing, the June 7, 2010, Board decision is
AFFIRMED.
DATED: September 13, 2011
Copies to:
Shannon L. Brewer, Esq.
VA General Counsel (027)
9

Advertisements

Leave a Comment »

No comments yet.

RSS feed for comments on this post. TrackBack URI

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Blog at WordPress.com.

%d bloggers like this: