Veteranclaims’s Blog

October 27, 2011

Single Judge Application, VA May Not Develop Negative Evidence, Mariano v. Principi, 17 Vet.App. 305,312 (2003)

Filed under: Uncategorized — veteranclaims @ 2:17 pm

Excerpt from decision below:
“Consequently, the Court will vacate the Board’s decision and remand the matter for readjudication. Specifically, the Board must first consider whether, given the conflicting evidence of record, an expert or independent medical opinion would be helpful. If the Board determines that additional development is necessary, it must adequately explain its reasons or bases for the decision to pursue such development. See Mariano v. Principi, 17 Vet.App. 305,
9

312 (2003) (holding that, because VA may not develop negative evidence, it “must provide an adequate statement of reasons or bases for its decision to pursue further development where such development reasonably could be construed as obtaining additional evidence for that purpose”).
Second, the Board should consider whether the competent evidence of record is in equipoise and, if so, the Board must resolve all doubt in favor of Mr. Dickerson. See 38 U.S.C. § 5107(b); Hayes v. Brown, 5 Vet.App. 60, 69 (1993) (holding that the determination that the evidence is in equipoise is a finding of fact by the Board).”
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-2004
EUGENE H. DICKERSON, 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: Eugene H. Dickerson appeals through counsel a February 18,
2010, Board
of Veterans’ Appeals (Board) decision that denied entitlement to VA
disability benefits for arthritis,
to include rheumatoid arthritis and osteoarthritis, of multiple joints. Mr.
Dickerson’s Notice of
Appeal wastimely, and the Court has jurisdiction to review the Board
decision pursuant to 38 U.S.C.
§ 7252(a). Neither party requested oral argument or identified issues
that they believe require a
precedential decision of the Court. Because the Board provided inadequate
reasons or bases for its
determination that Mr. Dickerson is not entitled to benefits for
rheumatoid arthritis, the Court will
vacate that portion of the February 2010 Board decision and remand the
matter for further
development, if necessary, and readjudication consistent with this
decision. The remainder of the
Board decision will be affirmed.
I. FACTS
Mr. Dickerson served on active duty in the U.S. Navy from September 1943
to April 1946.
His service medical records reveal a diagnosis of and treatment for
rheumatoid arthritis.

In August 1969, a VA regional office denied Mr. Dickerson’s claim for
benefits for
rheumatoid arthritis, finding no link between his current condition and
his in-service diagnosis. Mr.
Dickerson continuouslyappealed that decision, and in March 1979 the
Boardagaindenied his claim.
Because there was no appellate review of Board decisions at that time, the
decision became final.
In February 1985, Mr. Dickerson sought to reopen his claim. In October
1985, he advised
VA in a letter that he had received treatment for rheumatoid arthritis
since his discharge from
service, but that the physician who treated him in the 1940s and 1950s was
deceased and his records
were unavailable. He stated that he had also received treatment from “Dr.
J. H. Smith of
Christiansburg[, Virginia,] andalsoDr.
BlaylockattheLewisGaleHospitalofRoanoke,[Virginia].”
Record (R.) at 495. Mr. Dickerson reported that both doctors told him he
had chronic arthritis.
In September 1986, the regional office determined that no change was
warranted in its
previous decisionsandthatMr.Dickerson remainednon-service-connectedfor
rheumatoid arthritis.
Overthenext 20years, Mr.Dickerson repeatedlyattempted to reopen his claim,
but his claim
remained denied. Of note during this time period, Mr. Dickerson testified
at a hearing before the
regional office in September 1996. He testified that he had received
treatment from Drs. Nixon,
McClelland, Bowen, and Jones, and that all of them diagnosed him with
rheumatoid arthritis. R. at
433. He reported that Drs. Nixon, Jones, and Bowen were deceased.1
He also stated that he
currently received treatment at the Salem, Virginia, VA medical center.
In October 2006, Mr. Dickerson again sought to reopen his claim. He stated
that his current
treatment was with a rheumatologist at an unidentified VA medical center.
The record contains VA
treatment records dated between November 2004 and November 2007 from the
Salem VA medical
center. Those records contain numerous mentions of treatment for or
complaints of rheumatoid
arthritis. R. at 366, 367, 369, 374, 376, 382; see also R. at 372 (”
Rheumatology Attending Note”),
377 (“He also has an app[ointmen]t today with Rheum[atology]”), 378 (”
Rheumatology follow-up
note”), 386 (“Rheumatologyfollow-up note”); but see R. at 380 (impression
of osteoarthritis in knee
in note signed by Mr. Dickerson’s reported rheumatologist), 387 (same,
except in fingers).
The record contains a September 1976 letter from Dr. McClelland stating
that his records relating to his
treatment of Mr. Dickerson in the 1960s had been destroyed in a fire, but
that he recalled treating Mr. Dickerson “for
injuries of a hip which could have been either traumatic or arthritic.” R.
at 546.
1
2

In May 2007, VA advised Mr. Dickerson of the need to submit new and
material evidence
to reopen his claim. VA also requested that he advise if he had received
private treatment so that
VA could obtain those records. Mr. Dickerson responded by supplying recent
private medical
records as well as lay statements regarding his in-service condition.
In January 2008, the regional office reopened Mr. Dickerson’s claim based
on VA treatment
records showing a current diagnosis of rheumatoid arthritis, but
inexplicably denied his claim
“because the evidence continues to show this condition was not incurred in
or aggravated bymilitary
service.”2
R. at 266. Mr. Dickerson filed a Notice of Disagreement with that decision
and ultimately
appealed to the Board.
In September 2008, Mr. Dickerson underwent a VA medical examination in
which the
examiner was directed to “provide an opinion as to whether it is at least
as likely as not that the
veteran’s rheumatoid arthritis had its onset in service, or if it is
related to the episode of rheumatoid
arthritis diagnosed in service.” R. at 192. The examiner, a nurse
practitioner, reviewed and
summarized Mr. Dickerson’s service medical records, as well as his private
and VA post-service
medical records. The examiner opined:
[Mr. Dickerson] indeed has a record of being treated for polyarthralgia
and a
diagnosis of rheumatoid arthritis given while in the military. He also has
a probable
diagnosis of rheumatoid arthritis via a VA disabilitygeneral medical exam
in the late
1960’s. This exam, in the late 1960’s, actually has x-ray evidence of a
possible
connective tissue disease, such as rheumatoid arthritis. Unfortunately[,]
there are no
The Court notes that this is the same reasoning given in VA’s May 2007
notice letter regarding the submission
of new and material evidence. R. at 356. However, the initial August 1969
regional office decision denied Mr.
Dickerson’s claim for lack of a link between his current condition and his
in-service diagnosis. R. at 605 (“His present
condition . . . is in no way related to the acute transitory complaints in
service.”); see also R. 574 (June 1978 Statement
of the Case declining to reopen because new evidence submitted was “not
sufficient to establish continuity of symptoms
for arthritis from the claimant’s separation until the present time”); 553 (
March 1979 Board decision stating, “The
complaints during service were not early manifestations of the rheumatoid
arthritis first established as a disease entity
many years after service”). Apparently, however, beginning with the July
1995 rating decision declining to reopen the
claim, VA adopted the belief that Mr. Dickerson’s claim had been
previously denied due to a lack of evidence showing
“treatment for rheumatoid arthritis while on active duty or within one
year following separation from active duty.” R.
at 761.
Mr. Dickerson does not challenge the characterization of the missing
element of his claim over the course of
the past four-plus decades, and, in any event, the Board decision on
appeal reopened his claim, finding that new and
material evidence had been submitted. The Court highlights these
discrepancies only to encourage the Secretary to
practice precision and consistency in his treatment of a claim and in
recounting the history of the claim’s adjudication
in his brief to the Court.
2
3

records . . . confirming the actual diagnosis[,] and there are no records
of continued
treatment specifically for rheumatoid arthritis post-military discharge.
While in the
[service,] [Mr.Dickerson]hadpolyarthralgia,inflammation, swelling,
andpainin the
usual joints [in which] rheumatoid arthritis initially presents[, but t]
here doesn’t
appear to be continuation of treatment for rheumatoid arthritis thereafter.
He has
received treatment for osteoarthritis in his later years by our
rheumatologist here at
the VA [medical center]. That same provider in 2001 didn’t see[] any
evidence of
active rheumatoid arthritis and proceeded to treat for osteoarthritis. He
did speak to
a suggestive history of rheumatoid arthritis. On today’s exam there are no
signs or
symptoms suggestive of acute or chronic rheumatoid arthritis. [Mr.
Dickerson] has
ample evidence, clinically, of osteoarthritis[,] especially to both hands
and knees.
[He] most likely had rheumatoid arthritis in his youth and this condition
went into
remission as he aged. Presently there are no signs of joint inflammation
or panus
formation (joint findings suggestive of deformityfrom chronic rheumatoid
arthritis).
Therefore, it is this examiner’s opinion, based on circumstantial evidence,
that while
in the military[,] [Mr. Dickerson] had acute arthritis, most likely
rheumatoid type,
that hasn’t produced significant joint damage or functional loss as
evidenced by
today’s and past joint exams.
R. at 186.3
In May 2009, the Board reopened Mr. Dickerson’s claim and remanded it for
additional
development. Specifically, the Board determined that “[a] remand is
necessary to clarify any
inconsistencies in the medical record with a new examination that would
include a medical opinion,
based on the record, as to the likelihood that anyarthritis, to include
osteoarthritis and/or rheumatoid
arthritis of multiple joints, is related to service.” R. at 119. The Board
stated that the examiner
should conduct all tests necessary to analyze the nature and etiology of
any such
disorder(s), including any X-rays, and tests necessary to determine
whether any
suspected condition found meets clinical criteria for classification as
rheumatoid
arthritis as a chronic disorder; and if so, whether this is presently
active or in
remission.
R. at 120. The Board also directed the regional office to obtain any
outstanding private or VA
medical records relating to treatment for any kind of arthritis.
VA obtained additional VA treatment records that contain mentions of
treatment for or
complaints of rheumatoid arthritis. R. at 60 (including rheumatoid
arthritis on a “problem list” of
Arthralgia is joint pain. See DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 150 (
32d ed. 2012).
Polyarthralgia is “arthralgia in many different joints.” Id. at 1487.
3
4

Mr. Dickerson’s conditions); 64, 71, 82, 94 (noting that Mr. Dickerson
was being treated by a VA
rheumatologist and was having difficulties managing rheumatoid arthritis
with medication); 59, 66,
72, 83, 89 (noting stable, ongoing rheumatoid arthritis); 96 (listing
rheumatoid arthritis as an “active
problem”); but see R. at 51 (noting “extensive osteoarthritis” in the
hands, knees, and ankles), 97
(“Rheumatology follow-up note” signed by Mr. Dickerson’s reported
rheumatologist diagnosing
osteoarthritis).
In July 2009, VA requested that Mr. Dickerson complete and return an
authorization and
consent form identifying health care providers from whom relevant medical
records still needed to
be obtained. R. at 62. Later that month, Mr. Dickerson’s representative
responded: “Mr. Dickerson’s
medical history is already of record[;] any additional treatment
information would come from the
Salem VA medical center.” R. at 61.
In December 2009, Mr. Dickerson underwent the requested VA examination,
provided by
the same nurse practitioner who conducted the September 2008 examination.
The examiner stated
that he reviewed Mr. Dickerson’s claims file and recounted his medical
history. The examiner also
stated that Mr. Dickerson was being treated by a VA rheumatologist for
osteoarthritis. R. at 37.
Aftera physical examination, the examiner found “no clinical evidence of
connective tissue disease”
in Mr. Dickerson’s hands, knees, elbows, ankles, or feet. R. at 39. X-rays
were taken of the left hip,
and the report revealed “[d]egenerative changes . . . in the lower lumbar
spine. Generalized
osteopenia noted. No fracture, dislocation, or other bony abnormality. The
hip joint space is well
preserved. Mineralization is good.” R. at 40. The impression was “normal
hip.” Id. The examiner
also reviewed a 2008 left hip x-ray for comparison, and the findings were
essentially identical.
Under “Summary of all problems, diagnoses[,] and functional effects,” the
examiner noted:
“DIAGNOSIS: no radiographic evidence of left hip arthritic condition[.]
PROBLEM
ASSOCIATED WITH THE DIAGNOSIS: osteoarthritis or rheumatoid arthritis.” R.
at 41. The
examiner concluded that neither osteoarthritis nor rheumatoid arthritis
caused by or due to Mr.
Dickerson’s military service. With respect to rheumatoid arthritis, the
examiner stated:
[T]hereis no connection with militaryservice because there is no arthritis
of anykind
to the left hip. It is my opinion as well that the osteoarthritis
diagnosed in his hands
and other joints listed throughout his [claims] file and here at the VA [
medical
center] Salem is not the result of the acute rheumatoid arthritis
diagnosed in military
5

service in 1944. Rheumatoid arthritis is a chronic condition of
exacerbations and
remissions. There are occasions where there is an acute arthritis without
remissions.
I cannot find documented evidence of a rheumatologic exacerbation in the [
claims]
file. Consequentlymyprevious opinion stands . . . based on circumstantial
evidence,
that while in the militarythis veteran had acute arthritis, most
likelyrheumatoid type,
that hasn’t produced significant joint damage or functional loss as
evidenced by
today’s and past joint exams.
R. at 43.
In February 2010, the Board issued the decision on appeal. The Board first
determined that
VA satisfied its duty to assist and that no relevant outstanding evidence
had been identified. The
Board then recounted Mr. Dickerson’s medical history and the medical
evidence of record, from the
in-service diagnosis of rheumatoid arthritis to the December 2009 VA
examination. The Board
noted that the questions to be answered were whether Mr. Dickerson
currently has rheumatoid
arthritis and, if so, whether that condition is related to the in-service
diagnosis of rheumatoid
arthritis. The Board relied on the September 2008 and December 2009 VA
examination reports to
conclude that Mr. Dickerson does not have a current diagnosis of
rheumatoid arthritis and that,
although Mr. Dickerson’s VA treatment records show that he “complained of
pain and swelling in
his joints with a history of inflammatory arthritis and evidence of
possible rheumatoid arthritis,”
those treatment records did not contain a “clear diagnosis of rheumatoid
arthritis since service.” R.
at 12. The Board also considered Mr. Dickerson’s statements in support of
his claim, but found that
“[w]hile he may well believe that he has a current disability of
rheumatoid arthritis, as a layperson
. . . [he] is simply not qualified to render a medical diagnosis in this
regard.” R. at 13. Accordingly,
the Board denied his claim.4
II. ANALYSIS
On appeal, Mr. Dickerson argues that the Board failed to ensure compliance
with its May
2009 remand order because the December 2009 VA examiner “did not order any
tests to determine
4
The Board also determined that Mr. Dickerson’s current diagnosed
disability of osteoarthritis was not related
to service. Mr. Dickerson, however, raises no arguments related to that
decision and the Court deems any appeal of that
portion of the Board’s decision abandoned. See Grivois v. Brown, 6 Vet.App.
136, 138 (1994) (holding that issues or
claims not argued on appeal are considered abandoned).
6

whether [he] has rheumatoid arthritis.” Appellant’s Brief (Br.) at 10. Mr.
Dickerson also asserts that
the Board provided inadequate reasons or bases for its decision to deny
his claim because the Board
failed to account for inconsistencies in the medical evidence regarding
whether he has a current
diagnosis of rheumatoid arthritis. The Court will consider each argument
in turn.
A. Compliance with May 2009 Remand Order
“[A] remand by this Court or the Board confers on the . . . claimant, as a
matter of law, the
right to compliance with the remand orders.” Stegall v. West, 11 Vet.App.
268, 271 (1998). When
“the remand orders of the Board or this Court are not complied with, the
Board itself errs in failing
to [e]nsure compliance.” Id. Such an error can constitute the basis for a
remand by this Court. Id.
Further, once VA has determined that a medical examination is necessary,
as was found in this case,
VA is required to ensure that the examination is adequate. See 38 C.F.R. §
4.2 (2011). If an
examination is found to be inadequate, “it is incumbent upon the rating
board to return the report as
inadequate for evaluation purposes.” Id.; see also Stegall, 11 Vet.App. at
270-71 (remanding where
a VA examination was “inadequate for evaluation purposes”); Hicks v. Brown,
8 Vet.App. 417, 422
(1995) (concluding that an inadequate medical evaluation frustrates
judicial review).
Here, the Board ordered that Mr. Dickerson be provided a new VA medical
examination to
determine whether he has a current diagnosis of rheumatoid arthritis and,
if so, whether that
condition is related to service. As noted above, the Board instructed the
examiner to “conduct all
tests necessary to analyze the nature and etiology of any such disorder(s),
including any X-rays, and
tests necessary to determine whether any suspected condition found meets
clinical criteria for
classification as rheumatoid arthritis as a chronic disorder.” R. at 120.
Contrary to Mr. Dickerson’s claim that the December 2009 VA examiner “did
not order any
tests,” Appellant’s Br. at 10, the examination report clearlyshows that
the examiner ordered an x-ray
of Mr. Dickerson’s left hip and lower back to determine if there was any
radiological evidence of
rheumatoid arthritis. It is clear that Mr. Dickerson believes that the
examiner was required to order
additional tests, based on information contained in VA’s Adjudication and
Procedure Manual, but
the Board clearly left it to the examiner’s discretion to determine what
tests were “necessary” to
provide the requested opinion. Here, the examiner exercised his discretion
to “only” order an x-ray
to inform his opinion, and Mr. Dickerson has not demonstrated that doing
so was improper.
7

Accordingly, the Court concludes that the Board ensured at least
substantial compliance with its
December 2009 remand order. See Dyment v. West, 13 Vet.App. 141, 146–47 (
1999) (holding that
there is no error when an examiner “more than substantially complie[s]
with the Board’s remand
order”), aff’d sub nom. Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002).
Moreover, the examiner’s purported “fail[ure] to consider the disability
factors” of
rheumatoid arthritis outlined in the Adjudication Procedures
Manual–including “dryness of the eyes
and mouth (Sjogren’s syndrome), pulmonary complications, anemia,
enlargement of the spleen,
muscular atrophy, gastrointestinal symptoms, circulatory changes,
imbalance in water metabolism,
or dehydration, vascular changes, cardiac involvement, dry joints, [and]
low renal function,”
Appellant’s Br. at 13–is, at best, harmless error, given that Mr.
Dickerson does not assert either that
he suffers from any of these symptoms or that the examiner overlooked
evidence of these symptoms
in his review of the medical record. See Conway v. Principi, 353 F.3d 1369,
1374 (Fed. Cir. 2004);
see also 38 U.S.C. § 7261(b)(2) (requiring the Court to “take due account
of the rule of prejudicial
error”).
To the extent that Mr. Dickerson attempts to argue that, because the VA
examiner who
performed the December 2009 examination was a nurse practitioner and not a
physician, he was not
competent or knowledgeable enough to provide an adequate examination, the
Court notes that it is
well-settled that the Board is entitled to presume the competence of a VA
examiner in the absence
of evidence demonstrating otherwise. See Cox v. Nicholson, 20 Vet.App. 563,
569 (2007). Mr.
Dickerson offers nothing more than bald speculation that the examiner was
unqualified to perform
the December 2009 examination and, accordingly, has not carried his burden
of demonstrating error
on this point. See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (holding
that the appellant has the
burden of demonstrating error), aff’d per curiam, 232 F.3d 908 (Fed. Cir.
2000) (table).
B. Reasons or Bases
Mr. Dickerson contends that the Board “failed to adequately explain the
inconsistencies in
the medical record as to whether [he] has a current diagnosis of
rheumatoid arthritis.” Appellant’s
Br. at 16. The Court agrees.
The Board stated:
8

Although several . . . treatment records indicate that the Veteran
complained of pain
and swelling in his joints with a history of inflammatory arthritis and
evidence of
possible rheumatoid arthritis, and there is evidence he was being treated
by the VA
Rheumatology Clinic, none of the treatment records contains a clear
diagnosis of
rheumatoid arthritis since service.
R. at 12. This statement is simply unsupported by the medical evidence of
record. As outlined in
Part I above, the record is replete with evidence of a current diagnosis
of rheumatoid arthritis.
Although the evidence contained in Mr. Dickerson’s VA medical records
conflicts with the opinion
of the VA medical examiner who conducted the September 2008 and December
2009 VA
examinations,suchconflictdoesnot renderthosemedicalrecordsnot
probativeorincompetent. The
Board’s attempt to discount the VA medical records as merely demonstrating
a “history” of
inflammatoryarthritis and “possible”rheumatoid arthritis is insufficient
in lightofthenumerousVA
treatment records that expressly state that Mr. Dickerson is being treated
for “ongoing” and “stable”
rheumatoid arthritis. This is especially important in light of the Board’s
acknowledgment that
rheumatoid arthritis is a potentially chronic condition of active and
dormant states. R. at 120. The
Court concludes, therefore, that the Board has provided inadequate reasons
or bases for its
determination that Mr. Dickerson does not have a current diagnosis of
rheumatoid arthritis. See 38
U.S.C. § 7104(d)(1); Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d
per curiam, 78 F.3d 604
(Fed. Cir. 1996) (table).
TheCourt maynot reversetheBoard’s decision,however.
DespitethenumerousVAmedical
records that indicate a current diagnosis of rheumatoid arthritis, there
is also a fair amount of
evidence that indicates that Mr. Dickerson does not, in fact, suffer from
rheumatoid arthritis, not the
least of which are the two VA examinations and the notations from Mr.
Dickerson’s rheumatologist
that he is being treated for osteoarthritis. See Gutierrez v. Principi, 19
Vet.App. 1, 10 (2004)
(holding that “reversal is the appropriate remedy when the only
permissible view of the evidence is
contrary to the Board’s decision”). Consequently, the Court will vacate
the Board’s decision and
remand the matter for readjudication. Specifically, the Board must first
consider whether, given the conflicting evidence of record, an expert or independent medical opinion
would be helpful. If the Board determines that additional development is necessary, it must
adequately explain its reasons or bases for the decision to pursue such development. See Mariano v.
Principi, 17 Vet.App. 305,
9

312 (2003) (holding that, because VA may not develop negative evidence, it “must provide an adequate statement of reasons or bases for its decision to pursue further development where such development reasonably could be construed as obtaining additional evidence
for that purpose”).

Second, the Board should consider whether the competent evidence of record
is in equipoise and,
if so, the Board must resolve all doubt in favor of Mr. Dickerson. See 38
U.S.C. § 5107(b); Hayes
v. Brown, 5 Vet.App. 60, 69 (1993) (holding that the determination that
the evidence is in equipoise
is a finding of fact by the Board).
On remand, Mr. Dickerson is free to submit additional evidence and
argument in accordance
with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam
order). See Kay v.
Principi, 16 Vet.App. 529, 534 (2002). Further, “[a] remand is meant to
entail a critical examination
of the justification for the decision” by the Board. Fletcher v. Derwinski,
1 Vet.App. 394, 397
(1991). In addition, the Board shall proceed expeditiously, in accordance
with 38 U.S.C. § 7112
(expedited treatment of remanded claims).

III. CONCLUSION
Upon consideration of the foregoing, that portion of the February 18, 2010,
Board decision
that denied entitlement to VA benefits for rheumatoid arthritis is VACATED
and the matter is
remanded for further development, if necessary, and readjudication
consistent with this decision.
The remainder of the Board decision is AFFIRMED.
DATED: October 24, 2011
Copies to:
Jeany Mark, Esq.
VA General Counsel (027)
10

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