Veteranclaims’s Blog

November 7, 2011

Single Judge Application, Polovick v. Shinseki, 23 Vet.App. 48, 55 (2009),Agent Orange Cancer

Filed under: Uncategorized — veteranclaims @ 7:58 pm

Excerpt from decision below:
“The Secretary concedes that the VA opinions are inadequate in this regard. Secretary’s Br. at 8.
In the decision on appeal, the Board explicitly chose to assign more
probative weight to three negative VA opinions because “the VA opiners have relied upon epidemiological research and statistical information in reaching their conclusions as to the cause of the Veteran’s particular carcinoma.” R. at 10. In fact, none of the negative VA nexus opinions provide any other rationale for concluding that Mr. Kalisch’s cancer is not related to his military service. R. at 22-23, 33-34, 83-84. This is exactly the type of reasoning that was prohibited in Polovick.
The studies on which VA relied to determine which diseases should be presumptively service connected did not conclude that the medical evidence is against an association between Agent Orange exposure and pharyngeal cancers. Institute of Medicine of the National Academies, Veterans and Agent Orange: Update 2008, at 515. Instead, they concluded that there was “inadequate or insufficient information to determine whether there is an association.” Id. Thus, the medical opinions are inadequate under Polovick and it was clearly erroneous for the Board to rely on them in its June 8, 2010, decision.”
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-2590
WILLIAM J. KALISCH, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

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

GREENE, Judge: The appellant, William J. Kalisch, through counsel, appeals
a June 8,
2010, Board of Veterans’Appeals (Board)decision that denied his claim for
disabilitycompensation
based on service connection for squamous cell carcinoma of the left
tonsillar fossa, claimed as due
to herbicide exposure.
Record (R.) at 3-12. Single-judge disposition is appropriate. See
Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). This appeal is timely
and the Court has
jurisdiction over the case pursuant to 38 U.S.C. §§ 7252(a) and 7266.
For the reasons that follow,
the Court will vacate the June 8, 2010, decision denying service
connection for cancer of the left
tonsil and remand the matter for further proceedings consistent with this
decision.
I. FACTS
Mr. Kalisch served in the U.S. Armyfrom February1970 to October 1971,
including service
in Vietnam, where he was presumptively exposed to Agent Orange. R. at 485.
In November 2003,
he was diagnosed with “invasive squamous cell carcinoma” of the tonsillar
fossa and the posterior
pharyngeal wall. R. at 244. His risk factors for this cancer included “a
history of significant tobacco
use” and alcohol use, and being exposed to a lot of fumes at work. R. at
239-40, 246. In February
2004, he filed a claim for disability compensation based on service
connection for his cancer of the

tonsil. R. at 363-74. In June 2004, VA denied the claim, noting that
cancer of the tonsils “is not
listed as one of the eleven conditions [presumptively] associated with
herbicide exposure.” R. at
325. Mr. Kalisch timely submitted a Notice of Disagreement. R. at 316-21.
On June 8, 2010, after additional procedural history and development, the
Board issued the
decision on appeal. R. at 3-12. The Board discussed the many private and
VA medical opinions of
record, but chose to assign more probative weight to three Previous DocumentnegativeNext Hit VA
opinions because it found
that “the VA opiners have relied upon epidemiological research and
statistical information in
reaching their conclusions as to the cause of the Veteran’s particular
carcinoma.” R. at 10.
Accordingly, the Board denied the claim. This appeal followed.

II. ANALYSIS
Mr. Kalisch has explicitly stated that he is claiming service connection
only on a theory of
direct causation and not on a theoryof presumptive causation or
aggravation. Appellant’s Brief (Br.)
at 13; see 38 C.F.R. § 3.309(e) (2011) (cancer of the tonsil is not a
condition to which presumptive
serviceconnection applies). Establishingserviceconnection
generallyrequiresmedicalor,in certain
circumstances, lay evidence of (1) a current disability; (2) in-service
incurrence or aggravation of a
disease or injury; and (3) a nexus between the claimed in-service disease
or injury and the present
disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009);
Hickson v. West, 12 Vet.App.
247, 253 (1999); Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per
curiam, 78 F.3d 604 (Fed.
Cir. 1996) (table); 38 C.F.R. § 3.303 (2011).
A finding of service connection is a factual determination that the Court
reviews for clear
error. See 38 U.S.C. § 7261(a)(4); Rose v. West, 11 Vet.App. 169, 171 (
1998). Under this standard
of review, the Board’s factual determination may not be reversed unless
the Court, in reviewing all
the evidence of record, “‘is left with the definite and firm conviction
that a mistake has been
committed.'” Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) (quoting
United States v. U.S. Gypsum
Co., 333 U.S. 364, 395 (1948)). In applying this standard, “this Court is
not permitted to substitute
its judgment for that of the [Board] on issues of material fact; if there
is a ‘plausible’ basis in the
record for the factual determinations of the [Board], even if this Court
might not have reached the
same factual determinations, we cannot overturn them.” Gilbert, 1 Vet.App.
at 53. Further, in
2

rendering its decision, the Board must provide a statement of the reasons
or bases for its
determination, one that is “adequate to enable a claimant to understand
the precise basis for the
Board’s decision, as well as to facilitate informed review in this Court.”
Allday v. Brown, 7 Vet.App.
517, 527 (1995); Gilbert, 1 Vet.App. at 56-57; see 38 U.S.C. § 7104(d)(1).
In this case, it is undisputed that Mr. Kalisch has cancer of the tonsil
and presumptive
exposure to herbicides due to his service in Vietnam. R. at 7, 244; 38 C.F.
R. § 3.307(a)(6)(iii).
Therefore, the claim turns on whether he can establish a direct causal
nexus between his cancer of
the tonsil and his military service.
A. Adequacy and Weight of Medical Opinions
An adequate medical opinion must be “accurate and fully descriptive . . . ,
with emphasis
upon the limitation of activity imposed by the disabling condition.” 38 C.
F.R. § 4.1 (2011). It must
be based on an accurate factual premise and on a consideration of the
veteran’s prior medical history
and examinations and must describe the disability in sufficient detail so
that the Board’s “‘evaluation
of the claimed disability will be a fully informed one.'” Ardison v. Brown,
6 Vet.App. 405, 407
(1994) (quoting Green v. Derwinski, 1 Vet.App. 121, 124 (1991)); see also
Floyd v. Brown,
9 Vet.App. 88, 93 (1996). In addition, the medical opinion “must support
its conclusions with an
analysis that the Board can consider and weigh against contrary opinions.”
Stefl v. Nicholson,
21 Vet.App. 120, 124 (2007); see Nieves-Rodriguez v. Peake, 22 Vet.App.
295, 304 (2008) (“[M]ost
of the probative value of a medical opinion comes from its reasoning.”);
see also Hicks v. Brown,
8 Vet.App. 417, 421 (1995) (inadequate medical evaluation frustrates
judicial review). Although VA need not provide a medical examination in all cases, “once the
Secretary undertakes the effort to provide an examination when developing a service-connection claim, . . .
he must provide an adequate one.” Barr v. Nicholson, 21 Vet.App. 303, 311 (2007); see also
Daves v. Nicholson, 21 Vet.App. 46, 51-52 (2007). Whether a medical examination is adequate is
a finding of fact that the Court reviews to determine whether it is “clearly erroneous,” as
defined above. See D’Aries v. Peake, 22 Vet.App. 97, 104 (2008).
In this case, the record contains medical opinions from both private and VA physicians. Mr. Kalisch argues that the negative VA opinions are inadequate because they are all based exclusively on the statistical data that VA used to decide which diseases should
be presumptively associated with
3

Agent Orange exposure. Appellant’s Br. at 14-16 (citing Polovick v.Shinseki, 23 Vet.App. 48, 55 (2009) (direct service connection may not be denied solely on the basis of the data that supported not creating a presumption of service connection)); see also Stefl, 21 Vet.
App. at 124 (medical opinion is inadequate when it does not independently consider direct
service connection). The Secretary concedes that the VA opinions are inadequate in this regard.
Secretary’s Br. at 8.
In the decision on appeal, the Board explicitly chose to assign more
probative weight to three negative VA opinions because “the VA opiners have relied upon
epidemiological research and statistical information in reaching their conclusions as to the cause of
the Veteran’s particular carcinoma.” R. at 10. In fact, none of the negative VA nexus opinions
provide any other rationale for concluding that Mr. Kalisch’s cancer is not related to his
militaryservice. R. at 22-23, 33-34, 83-84. This is exactly the type of reasoning that was prohibited in Polovick.
The studies on which VA relied to determine which diseases should be presumptively service
connected did not conclude that the medical evidence is against an association between Agent Orange
exposure and pharyngeal cancers. Institute of Medicine of the National Academies, Veterans and Agent Orange:
Update 2008, at 515. Instead, they concluded that there was “inadequate or insufficient
information to determine whether there is an association.” Id. Thus, the medical opinions are
inadequate under Polovick and it was clearly erroneous for the Board to rely on them in its June 8, 2010,
decision.
Furthermore, there is no other medical nexus opinion of record that
provides sufficient competent medical evidence for VA to make a decision on the claim. See 38
U.S.C. § 5103A(d)(2);
McLendon v. Nicholson, 20 Vet.App. 79, 81-86 (2006); 38 C.F.R. § 3.159(c)(
4)(2011). Although
Mr. Kalisch argues that the positive nexus opinion provided by Dr. Ann
Marie Gordon is both
adequate and sufficient to decide the claim, the Board concluded that this
opinion, along with the
other private opinions, “simplydiscount[ed] [Mr. Kalisch]’s other risk
factors of heavysmoking and
alcohol use . . . with no explanation.” R. at 10. After a review of Dr.
Gordon’s opinion, the Court
cannot conclude that this finding is clearly erroneous. Dr. Gordon noted
Mr. Kalisch’s significant
history of smoking and drinking but then concluded, without explanation or
supporting rationale,
that it was “at least as likely as not that the veteran’s in-service
exposure to herbicides contributed
to the development of his oropharyngeal cancer.” R. at 106.
4

Therefore, it was clearly erroneous for the Board to find that VA had
satisfied its duty to
assist and such finding, under the circumstances, is prejudicial. See
Shinseki v. Sanders, 129 S. Ct.
1696, 1704 (2009); see also 38 U.S.C. § 7261(b)(2) (requiring the Court
to “take due account of the
rule of prejudicial error”). Thus, the Court will remand the claim so that
an adequate medical
opinion may be obtained. On remand, the Board should also consider whether
this is the type of
situation in which a clarification from Dr. Gordon might be appropriate.
See Savage v. Shinseki, 24
Vet.App. 259 (2011) (setting forth criteria for when the Board has a duty
to return for clarification
unclear or insufficient private medical examination reports, or explain
why such clarification is not
needed).

B. Requests for Medical Opinions
When gathering evidence as part of its duty to assist a veteran in
developing his claim, VA
is required to act in an unbiased way. Douglas v. Shinseki, 23 Vet.App. 19,
26 (2009); Austin v.
Brown, 6 Vet.App. 547 (1994). However, “the fundamental inquiry . . . is
not the subjective intent
[when] the medical examination report was requested but, rather, [1] the
objective necessity of
gathering further evidence, and [2] whether it was gathered ‘in an
impartial, unbiased, and neutral
manner.'” Douglas, 23 Vet.App. at 26 (quoting Austin, 6 Vet.App. at 552).
When a claimant
submits a private medical report that “is sufficiently complete to be
adequate for the purpose of
adjudicating [his or her] claim,” that report “may be accepted without a
requirement for
confirmation” by a VA physician. 38 U.S.C. § 5125 (emphasis added); 38 C.
F.R. § 3.326(c)(2011)
(providing that such a report “may be accepted for rating a claim without
further examination”
(emphasis added)); see Nieves-Rodriguez, 22 Vet.App. at 302 (“VA is
statutorily permitted, but not
required, to accept [such a report] as sufficient to grant a claim without
confirmation by a VA
examination.”). VA has the discretion to procure a confirmatory
examination or not, but “may not
order additional development for the sole purpose of obtaining evidence
unfavorable to a claimant.”
Turk v. Peake, 21 Vet.App. 565, 568 (2008); see Mariano v. Principi, 17
Vet.App. 305, 312 (2003);
Shoffner v. Principi, 16 Vet.App. 208, 213 (2002) (noting that 38 C.F.R. §
3.304(c) “gives VA the
discretion to determine how much development is necessary for a
determination of service
connection to be made”). However, VA may not exercise that discretion in ”
an arbitrary and
5

capricious manner.” Nieves-Rodriguez, 22 Vet.App. at 302; see Struck v.
Brown, 9 Vet.App. 145,
155 (1996); see 38 U.S.C. § 7261(a)(3).
Regarding the objective necessity of gathering further evidence, when the
Board requested
the first VA opinion, there were multiple private opinions of record but,
as discussed above, none
of them provided sufficient competent medical evidence with which to
decide the claim. See
McLendon, supra. The Board stated that it had requested the later VA
opinion from an expert “[t]o
reconcile the various conflicting medical opinions.” R. at 9. Given that
the earlier VA examiner
opined against Mr. Kalisch’s claim, it is not clear to the Court how
requesting an additional opinion
from an expert could have prejudiced the claim. Accordingly, the Court
concludes that VA did not
exercise its discretion in an arbitrary and capricious manner when it
requested the VA medical
opinions. See Nieves-Rodriguez, supra.
Regarding whether the request for a medical opinion was made “in an
impartial, unbiased,
and neutral manner,” the Board’s request to the VA expert did note
initially that “[a]lthough this
disease is not presumptively associated with herbicide exposure, service
connection maybe granted
if actual causation is shown.” R. at 52. However, the request then states
that “VA has determined
that, taking account of the available evidence and NAS[‘] analysis, that
the credible evidence against
an association between herbicide exposure and oral, nasal, and pharyngeal
cancers outweighs the
credible evidence for such an association, and has determined that a
positive association does not
exist.” R. at 52. This is a misstatement of the medical evidence. As noted
above, the studies on
which VA relied to determine which diseases should be presumptively
service connected did not
conclude that the medical evidence is against an association between
herbicide exposure and
pharyngeal cancers but, rather, that the information was not sufficient to
determine whether there
should be a presumed association. This does not preclude proving a direct
causal association in any
given case. However, the Board’s statement in the request letter to the VA
expert presents the IOM
studies as if they also affirmatively disprove a direct causal association.
This violates the
requirement that the Board gather evidence “in an impartial, unbiased, and
neutral manner.” See
Douglas and Austin, both supra.
Mr. Kalisch also argues that the Board erred when it stated: “We also
accord probative
weight to the contemporaneous medical records, in which the Veteran’s
treating physicians
6

implicated his history of heavy smoking as the likely cause of his cancer
.” R. at 10 (emphasis
added). Mr. Kalisch argues that this statement is clearly erroneous
because none of his treating
physicians have “implicated his history of heavy smoking as the likely
cause of his cancer.”
Appellant’s Br. at 12. He further argues that the inclusion of this
alleged fact in the Board’s October
2009 request for a medical opinion also prejudiced the VA medical examiner
against his claim.
Appellant’s Br. at 12.
In fact, although Mr. Kalisch’s treating physicians refer to his history
of smoking as a risk
factor for cancer, none of them indicated an opinion that his smoking was
a “likely cause” of his
cancer. R. at 113-14, 172-74, 175-76, 177-78, 179-80, 185-87. Accordingly,
after a review of the
record, the Court concludes that the Board’s finding that Mr. Kalisch’s
treatment records weigh
against his claim is clearly erroneous and that its reference to this
information in its request for a
medical opinion added to the prejudice discussed above. On remand, the
Board must reevaluate this
evidence and provide an adequate statement of the reasons or bases for its
findings and conclusions
in this regard. It must also ensure that any new requests for medical
opinions are stated “in an
impartial, unbiased, and neutral manner.” See Douglas and Austin, both
supra.

C. Reversal or Remand
Reversal is the appropriate remedy when the Board’s decision is clearly
erroneous in light of
uncontroverted evidence in the claimant’s favor, whereas remand is the
appropriate remedy where
Board has incorrectly applied law, failed to provide adequate statement of
reasons or bases for its
determinations, or where record is otherwise inadequate. Tucker v. West,
11 Vet. App. 369, 374
(1998); Hicks, 8 Vet.App. at 422. Although Mr. Kalisch argues that
reversal is appropriate because
Dr. Gordon’s private nexus opinion provides sufficient competent medical
evidence to decide the
claim, that opinion is not supported by an adequate rationale, as
discussed above. The Secretary
argues that remand is the appropriate remedy because the competent medical
evidence of record is
insufficient to decide the claim. Secretary’s Br. at 8, 11, 19, 20.
In this case, the evidence is not uncontroverted and the record does not
contain an adequate
medical opinion. Therefore, the appropriate remedy is to remand the claim
so that VA can obtain
an adequate medical opinion, either by providing a new medical examination
or by contacting Dr.
Gordon and asking her to clarify the relationship between Mr. Kalisch’s
risk factors and her
7

conclusion that his cancer is related to his military service. See Tucker
and Hicks, both supra. On
remand, Mr. Kalisch is free to submit additional evidence and argument,
including the arguments
raised in his briefs to this Court, in accordance with Kutscherousky v.
West, 12 Vet.App. 369, 372-73
(1999) (per curiam order), and the Board must consider any such evidence
or argument submitted.
See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Board shall proceed
expeditiously, in
accordance with 38 U.S.C. §§ 5109B, 7112 (Secretary must provide ”
expeditious treatment” of
claims remanded by Board or Court).

III. CONCLUSION
After consideration of Mr. Kalisch’s and the Secretary’s briefs, and a
review of the record,
the Board’s June 8, 2010, decision denying service connection for cancer
of the left tonsil is
VACATED and the matter is REMANDED to the Board for further proceedings
consistent with this
decision.
DATED: November 3, 2011
Copies to:
Amy F. Fletcher, Esq.
VA General Counsel (027)
8

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