Veteranclaims’s Blog

September 20, 2011

Single Judge Application, Medical Conclusions, Inference Must be Cited, Kahana v. Shinseki, 24 Vet.App. at 235; Uncontroverted, DeLaRosa, 515 F.3d at 1320

Excerpt from decision below:
“In support of his argument, the Secretary cites Dorland’s Illustrated Medical Dictionary, a medical reference publication often used by the Court to take judicial notice of medical facts, for the proposition that the tonsils are part of the pharynx, and thus distinct from the larynx. The Secretary, by stating a medical conclusion and supporting it with a citation to authority, has illustrated exactly the kind of citation to a medical reference material that was lacking from the Board’s decision. That said, the Court does not find that the distinction the Secretary is attempting to draw between the Board making a medical determination and stating medical facts persuasively counters the appellant’s argument. The medical facts stated by the Board (its anatomical findings)led to a medical determination that the veteran’s cancer was not a respiratory cancer for statutory purposes. R. at 11.
That determination must be supported by citations to proper medical authority. See Kahana, 24 Vet.App. at 235(holding that, even if the Board is merely drawing an inference from evidence, if that “inference results in a medical determination, the basis for that inference must be independent
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and it must be cited.”).
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—————————————————-

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-0680
GINGER C. MARTINA, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before SCHOELEN, Judge.

MEMORANDUM DECISION

Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.

SCHOELEN,Judge: The appellant, Ginger C. Martina,
appeals through counsel a December 30, 2009, Board of Veterans’ Appeals (Board)
decision that denied her entitlement to dependency
and indemnity compensation (DIC) pursuant to 38 U.S.C. § 1318 and
entitlement to DIC based on
service connection for the cause of the death of her husband, a veteran.
Record of Proceedings (R.)
at 3-15. The appellant does not challenge the Board’s disposition of her
DIC claim based on section
1318. The Court will therefore consider that claim abandoned on appeal.
See Ford v. Gober, 10
Vet.App. 531, 535 (1997) (holding that claims not argued on appeal are
deemed abandoned);
Bucklinger v. Brown, 5 Vet.App. 435 (1993). This appeal is timely, and the
Court has jurisdiction
to review the Board’s decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(
a). Single-judge disposition is appropriate. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (
1990). For the following reasons, the Court will vacate the Board’s decision and remand the matter
for further proceedings consistent with this opinion.

I. BACKGROUND
The veteran, James Russell Martina, served on active duty in the U.S.
Marine Corps from

July 1967 until July 1971, including a period of service in Vietnam that
exposed him to combat. R. at 189, 323. An August 2004 treatment note indicates that the veteran
developed a mass on his left
tonsil and was diagnosed with squamous cell carcinoma. R. at 117. By October 2005, the veteran
had developed nodules in his lungs, liver, and pancreas “highly suspect
for metastatic cancer.” R. at 133. The veteran died on October 16, 2005. R. at 191. His cause of
death was listed as carcinoma of the tongue with metastasis.1 Id. In November 2005, the appellant filed a claim for
DIC. R. at 184-88. In January 2006, the VA regional office denied the
appellant service connection for the death of the veteran and entitlement to DIC. R. at 113-15. In
December 2006, the appellant appealed to the Board. R. at 29.
The Board, in its December 30, 2009, decision here on appeal, denied the
appellant entitlement to service connection for the cause of the veteran’s death.
The Board determined that there is no direct link between the veteran’s cause of death and his
service. R. at 12. The Board also considered whether the veteran’s cause of death warranted presumptive
service connection. The Board noted that, based upon his service in Vietnam, the veteran is
presumed to have been exposed to herbicides. R. at 11. The Board additionally noted that respiratory
cancers are presumed to be related to herbicide exposure. Id. However, the Board found that the
veteran’s tonsil (or tongue) cancer did not fit within the category of respiratory cancer, and thus
could not be presumed to be related to his herbicide exposure. R. at 11-12.
Finally, the Board found that VA satisfied its duty to assist despite not
providing the appellant a medical opinion. R. at 8. The Board determined that a medical
opinion was not necessary because there was no indication that the veteran’s cause of
death was related to an in-service disease or injury. Id.
The appellant makes two arguments. The appellant disputes the Board’s
determination that
While the cause of death listed on the veteran’s death certificate is
carcinoma of the tongue, his treatment records indicate that he actually suffered from cancer of
the tonsil. R. at 117-18, 133.
The Board noted the discrepancy, and addressed both potential causes of
death in its decision. R. at 11.
2

1
VA fulfilled its duty to assist despite not requesting a medical opinion.
2
Appellant’s Brief (Br.) at 7-13. The appellant also argues that the Board provided an inadequate
statement of reasons or bases for its determination that the veteran’s cancer is not a form of
respiratory cancer. Id. at 14-17.

II. ANALYSIS
A. Reasons or Bases
When deciding a matter, the Board must include in its decision a written
statement of the reasons or bases for its findings and conclusions, adequate to enable an
appellant to understand the
precise basis for the Board’s decision as well as to facilitate review in
this Court. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v.
Derwinski, 1 Vet.App. 49, 56-57(1990). To comply with this requirement,the Board must analyze
the credibility and probative
value of the evidence, account for the evidence that it finds persuasive
or unpersuasive, and provide the reasons for its rejection of anymaterial evidence favorable to the
claimant. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995); Gilbert, 1 Vet.App. at 57.
The Board acknowledged that the veteran, because of his service in Vietnam,
is presumed to have been exposed to herbicides during his service, and that certain
diseases, like respiratory
cancer, are presumed to be related to herbicide exposure. R. at 11 (citing
38 U.S.C. § 1116, 1116(a)(2)(F)). The Board, stated, however, that
[t]he appellant and her representative argue that the [v]eteran’s
malignant neoplasm
of the tonsil (and/or tongue cancer) fits within the category of
respiratory cancers –
specifically cancer of the larynx – that are presumed by law to be
related to herbicide exposure. Unfortunately, the Board cannot agree because the larynx,
commonly called the voice box, is anatomically distinct from the tonsils. The
tonsils constitute
part of the pharynx, and cancer of the pharynx has not been included among
the
respiratory cancers presumed to be related to herbicide exposure.
Therefore, even
though the [v]eteran is presumed to have been exposed to herbicide in
Vietnam, his
malignant neoplasm of the tonsil (or tongue) is not presumed to be related
to
herbicide exposure because it is not listed among the diseases recognized
by law as
being presumptively related to such exposure.
R. at 11-12.
2
The appellant also argues that the Board’s statement of reasons or bases
is inadequate on
this point. Appellant’s Br. at 15-16; Reply Br. at 6.
3

According to statutory language, presumptive service connection is
available for veterans who were exposed to herbicides while serving in Vietnam that result in “[r]
espiratory cancers(cancer of the lung, bronchus, larynx, or trachea) becoming manifest to a degree
of disability of 10 percent or more.” 38 U.S.C. § 1116(a)(2)(F).
The appellant argues that the Board, in engaging in such a discussion, ”
impermissibly relied
upon its own unsubstantiated medical opinion” in determining that the
veteran’s cancer was not a
type of respiratory cancer. Appellant’s Br. at 16-17. The Court agrees.
The Board is required to
“consider only independent medical evidence to support [its] findings
rather than provide [its] own
medical judgment in the guise of a Board opinion.” Colvin v. Derwinski, 1
Vet.App. 171, 172
(1991); see also Kahana v. Shinseki, 24 Vet.App. 428, 434 (2011).
The
Board makes the medical
findings that the veteran’s cancer constitutes a cancer of the pharynx,
and that the pharynx is
anatomically distinct from the larynx, without supporting its decision
with any citation to medical
authority. Thus, the Board has violated the Court’s holdings in Colvin and
Kahana by rendering an unsupported medical opinion.
The Secretary argues that the Board was “not actually drawing a medical
conclusion as [a]ppellant would have the Court believe,”but was instead merely recording”
the undisputed fact that the larynx is the organ of voice . . . and that the tonsils are part of
the pharynx.” Secretary’s Br. at 12.
In support of his argument, the Secretary cites Dorland’s
Illustrated Medical Dictionary, a
medical reference publication often used by the Court to take judicial
notice of medical facts, for the
proposition that the tonsils are part of the pharynx, and thus distinct
from the larynx. The Secretary,
by stating a medical conclusion and supporting it with a citation to
authority, has illustrated exactly
the kind of citation to a medical reference material that was lacking from
the Board’s decision. That
said, the Court does not find that the distinction the Secretary is
attempting to draw between the
Board making a medical determination and stating medical facts
persuasively counters the appellant’s
argument. The medical facts stated by the Board (its anatomical findings)
led to a medical determination that the veteran’s cancer was not a respiratory cancer for
statutory purposes. R. at 11.
That determination must be supported by citations to proper medical
authority. See Kahana, 24 Vet.App. at 235 (holding that, even if the Board is merely drawing an
inference from evidence, if that “inference results in a medical determination, the basis for that
inference must be independent
4

and it must be cited.”).
Because the Board failed to appropriately support its medical
determinations with citation to independent medical authority, its statement of reasons or bases
concerning whether the veteran’s
cancer can be classified as a respiratory cancer under 38 U.S.C. § 1116(a)(2)(F) is inadequate. See
38 U.S.C. § 7104(d)(1); Allday, Caluza, and Gilbert, all supra. Therefore,
the Court will vacate the
Board’s decision regarding whether the veteran’s cancer was a respiratory
cancer under the statute
and remand the matter for further proceedings consistent with this
decision.

B. Duty To Assist
Generally, the Secretary’s duty to assist regarding his duty to supply a
medical examination
or opinion for compensation claims is governed by 38 U.S.C. § 5103A(d).
Under section
5103A(d)(1), the Secretary is required to provide a medical examination or
otherwise obtain a
medical opinion when “such an examination or opinion is necessary to make
a decision on the
claim.” Such an examination or opinion is necessary if the evidence of
record “contains competent
evidence that the claimant has a current disability, or persistent or
recurrent symptoms of disability”
and “indicates that the disability or symptoms may be associated with the
claimant’s active military,
naval, or air service,” but “does not contain sufficient medical evidence
for the Secretary to make
a decision on the claim.” 38 U.S.C. § 5103A(d)(2)(A),(B), and (C).
The Board applied these provisions and found that obtaining a medical
opinion is not
necessary in this case. R. at 8. However, the appellant argues, and the
Secretary concedes, that
because this case is a claim for DIC, the Board should not have applied
section 5103A(d) in
determining whether a medical opinion is necessary. Appellant’s Br. at 7-
10; Secretary’s Br. at 5.
The parties are correct, and the Board’s application of section 5103A(d)
was error. See DeLaRosa
v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008) (acknowledging that the
plain language of section
5103A(d) specifically limits it to “claims for disability compensation,”
and thus it does not apply to
DIC claims). Instead, the Board should have applied the more general duty-
to-assist provisions
found in section 5103A(a)(1), (2), and (3), which require the Secretary to
assist a claimant unless “no
reasonable possibility exists that such assistance would aid in
substantiating the claim.” See id; Wood v. Peake, 520 F.3d 1345, 1347 (Fed. Cir. 2008).
Though the parties agree that the Board applied the incorrect statute in
making its duty-to-
5

assist findings, they disagree on whether the Board’s error was
prejudicial. Appellant’s Br. at 10-13;
Secretary’s Br. at 5-10; Reply Br. at 3-6. Therefore, the ultimate
disposition of this issue will rest
on the Court’s determination of whether the Board’s error was harmless. 38
U.S.C. § 7261(b)(2); see
also Shinseki v. Sanders, 129 S. Ct. 1696, 1704 (2009) (noting that the
statute requiring this Court
to “take due account of prejudicial error [] requires the Veterans Court
to apply the same kind of
‘harmless error’ rule that courts ordinarily apply in civil cases”).
The parties’ dispute over whether the Board’s error was prejudicial rests
almost entirely on
resolution of the parties’ competing interpretations of the U.S. Court of
Appeals for the Federal
Circuit’s holdings in DeLaRosa and Wood, both supra. The Federal Circuit
decided DeLaRosa first.
The case concerned a veteran who committed suicide. The appellant, the
veteran’s former spouse,
argued that his death resulted from service-connected post-traumatic
stress disorder (PTSD). DeLaRosa, 515 F.3d at 1320. The Federal Circuit held that 38 U.S.C. §
5103A(a) should have been
applied by this Court and the Board to determine whether VA’s duty to
assist required it to provide
a medical examination, and further explained that the statute “does not
always require the Secretary
to assist the claimant in obtaining a medical opinion or examination
. . . . [Rather,] the Secretary
needs only to make reasonable efforts to assist a claimant in obtaining a
medical opinion when such
opinion is necessary to substantiate the claimant’s claim for a benefit.”
Id. at 1322(internal quotation
marks removed). The Federal Circuit concluded:
In light of the Board’s finding that the even more restrictive § 5103A(d)
did not
require the Secretary to provide a medical opinion and our holding that §
5103A(a)
does not always require the Secretary to obtain a medical opinion, we
conclude that
the Veterans Court’s application of § 5103A(d) [instead of §5103A(a)]
was harmless error. Id.
Less than two months later, the Federal Circuit, in Wood, clarified
DeLaRosa. Decades
before his death, the veteran in Wood suffered a head injury which, in his
autopsy report, was listed
as one of 18 factors contributing to his death. Wood, 520 F.3d at 1346-47.
The head injury was not,
however, included as a contributing factor on his death certificate. Id.
The Federal Circuit made a
number of statements explaining VA’s duty to assist in DIC cases. First,
the Federal Circuit clarified
its holding in DeLaRosa by stating:
6

We have recently held that § 5103A(a) “does not always require the
Secretary to
assist the claimant in obtaining a medical opinion or examination.” But §
5103A(a)
does require the VA to assist a claimant in obtaining a medical opinion or
examination whenever such an opinion is “necessary to substantiate the
claimant’s
claim.” In fact, the statute only excuses the VA from making reasonable
efforts to
provide such assistanc, if requested,when”no reasonable possibility exists
that such
assistance would aid in substantiating the claim.” Thus, the Veterans
Court erred by
not assessing whether the free medical opinion requested by Mrs. Wood was
“necessary to substantiate [her] claim,” or whether “no reasonable
possibility exists”
that the medical opinion requested by Mrs. Wood “would aid in
substantiating her claim,” under § 5103A(a). Id. at 1347-48.
The Federal Circuit stated that it found the error in DeLaRosa harmless
because “the record
contained no competent evidence whatsoever of the [PTSD] that the
veteran’s spouse alleged was
service-connected.” Id. at 1349. Explaining itself further, the Federal
Circuit emphasized that § 5103A(a) and § 5103A(d) “apply wholly different and unrelated
requirements” and, as such,
“misapplying § 5103A(d) rather than applying § 5103A(a) [is not] per se
harmless error because
subsection (d) is more ‘favorable’ to claimants as a matter of law.” Id.
Finally, the Federal Circuit noted:
The brief and unexplained statement in DeLaRosa that § 5103A(d) is “even
more restrictive” than § 5103A(a) cannot reasonably be read as a broad holding
that failing to meet all of the requirements of subsection (d) automatically means the
very different requirements of subsection (a) are not met, regardless of the
facts. Rather, our opinion in DeLaRosa carefully and expressly tied its holding to the
uncontroverted facts of the case. . . . [W]e could only affirm on the basis of harmless
error in DeLaRosa because the relevant facts were uncontroverted. Id. at 1350. The Federal
Circuit refused to find harmless error in Wood
because “the evidence is split and thus the medical facts are genuinely disputed.” Id.
The Secretary attempts to equate this case to DeLaRosa, arguing that, just
as there was no favorable evidence in DeLaRosa, there is no evidence in this case of any
link between the veteran’s
herbicide exposure and his cause of death. Secretary’s Br. at 9-10.
However, as the Federal Circuit
repeatedly noted in Wood, the sole reason it found that the error in
DeLaRosa was harmless was
because the facts of that case were “uncontroverted.” 520 F.3d at 1350.
Here, as in Wood, the
question is much more in doubt. There is no dispute that the veteran died
from cancer of either his
7

tongue or tonsil, and that, because he served in Vietnam, he is presumed
to have been exposed to
herbicide. As the Secretary accurately states, however, the key factual
finding for the Board is
whether the veteran’s confirmed diagnosis of tongue or tonsil cancer was
related to his service.
Because this factual finding is still in question, the evidence in this
case is not uncontroverted, and
therefore the Court will follow the Federal Circuit’s lead and decline to
find the Board’s error
harmless. Moreover, the appellant can attempt to demonstrate that the
veteran’s cancer was related
to exposure to herbicide on a direct basis. Combee v. Brown, 34 F.3d 1039,
1042 (Fed. Cir. 1994)
(“[T]he presumptive service connection procedure . . . does not foreclose
proof of direct service
connection.”).
Thus, the Court finds that the Board’s error in this case was prejudicial,
and remand is
warranted. See 38 U.S.C. § 7261(b)(2); Sanders, supra. On remand, the
Board should apply 38
U.S.C. § 5103A(a) to determine whether VA fulfilled its duty to assist in
this case. As the Federal
Circuit noted in Wood, this requires the Board to determine whether a
medical opinion or
examination is necessary to substantiate the appellant’s claim. 520 F.3d
at 1347-48.
Finally, on remand, the appellant is free to submit additional evidence
and argument on the
remanded matters, and the Board is required to consider any such relevant
evidence and argument.
See Kay v. Principi, 16 Vet.App. 529, 534 (2002) (stating that, on remand,
the Board must consider
additionalevidenceandargumentin assessingentitlementto benefit sought);
Kutscherouskyv.West,
12 Vet.App. 369, 372-73 (1999) (per curiam order). The Court has held that
“[a] remand is meant to entail a critical examination of the justification for the decision.”
Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991). The Board must proceed expeditiously, in
accordance with 38 U.S.C. §7112(requiring Secretary to provide for “expeditious treatment” of claims
remanded by the Court).

III. CONCLUSION
After consideration of the appellant’s and Secretary’s pleadings, and a
review of the record,
the Board’s December 30, 2009, decision is VACATED and the matter is
REMANDED to the Board
for further proceedings consistent with this decision.
DATED: September 13, 2011
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Copies to:
Sean A. Ravin, Esq.
VA General Counsel (027)
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