Veteranclaims’s Blog

November 29, 2011

Single Judge Application, Kahana v. Shinseki, 24 Vet.App. 428, 439 n.8 (2011), Opinion Based Upon Incomplete Factual Premise

Filed under: Uncategorized — veteranclaims @ 3:24 pm

Excerpt from decision below:
“Although there is nothing in the record to support the VA examiner’s statement about the veteran’s amended death certificate, the remainder of the examination may still be of some probative weight. R. at 132-33. The VA examiner reviewed the claims file and medical history and conferenced with a cardiologist before expressing the negative nexus opinion. Id. Additionally, the VA examiner provided an opinion prior to the veteran’s death that expressed that the veteran’s heart condition was not secondary to PTSD and that his heart condition was not aggravated by PTSD. R. at 441-42. The Board is the appropriate one to determine whether to afford weight to this examination. Although the VA examiner’s opinion was defective in one respect, it discussed a number of risk factors not related to service and the private opinions do not reflect such a discussion. See Kahana v. Shinseki, 24 Vet.App. 428, 439 n.8 (2011)(Lance, J., concurring) (noting that if an opinion is based upon an incomplete factual premise, it may be given reduced weight).

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—————————————————-
Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-4514
LAVONNE K. SMART, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before LANCE, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
LANCE, Judge: The appellant, Lavonne K. Smart, through counsel, appeals an
August 25,
2009, Board of Veterans’ Appeals (Board) decision that denied entitlement
to service connection for
the cause of the veteran’s death. Record (R.) at 3-17. 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 August 25, 2009, decision and remand the matter
for further proceedings
consistent with this decision.
I. FACTS
The veteran served on active dutyin the U.S. Armyfrom September 1942 to
December 1945.
R. at 113.
At the time of his death in October 2006, he was service connected for,
among other
disabilities, post-traumatic stress disorder (PTSD), rated as 70%
disabling, and had a total disability
rating based on individual unemployability (TDIU). R. at 483-96. Prior to
his death, he sought
service connection for coronary artery disease secondary to his service-
connected PTSD. Id.

The original death certificate issued in October 2006 reflected that the
immediate cause of
the veteran’s death was hypertensive and atherosclerotic heart disease (
ASHD) with diabetes and
Parkinson’s disease contributing to his death. R. at 426. An amended death
certificate issued in
January 2007 showed PTSD as an additional cause of death. R. at 366.
In a January 2005 VA medical opinion, a VA examiner, nurse practitioner
Jacqueline
Lamphier, opined that the veteran’s ASHD was not secondary to PTSD or
aggravated by it, but in
fact his ASHD was aggravated by his hypertension, hyperlipidemia, diabetes,
aging, and being
overweight and that all of these in turn were aggravated by the veteran’s
cigarette smoking. R. at
441-42. In an October 2007 report, the same examiner opined that there was
no nexus between the
veteran’s service-connected PTSD and his death. R. at 132-35. A November
2007 statement (R. at
65) from a private treating physician, Dr. Wilson, and a December 2007
letter (R. at 70) from a
licensed counselor, Ms. Lower, related the veteran’s death to his service-
connected PTSD.
In the August 2009 decision on appeal, the Board denied entitlement to
service connection
for the cause of the veteran’s death, finding that the probative evidence
of record is against a finding
that the veteran’s service-connected PTSD caused or contributed
substantially or materially to his
death.
II. ANALYSIS
The Secretaryconcedes Board error in regard to this appeal. Secretary’s
Brief (Br.) at 7. The
Court agrees that the Board erred; therefore, the only dispute is whether
remand or reversal is the
appropriate remedy.
Remand is generally the appropriate remedy when the Board has incorrectly
applied the law
or failed to provide an adequate statement of reasons or bases for its
determinations or where the
record is otherwise inadequate. Gutierrez v. Principi, 19 Vet.App. 1, 10 (
2004) (citing Falk v. West,
12 Vet.App. 402 (1999)); Tucker v. West, 11 Vet.App. 369, 374 (remanding
to permit the Board to
make the appropriate required determinations under the correct legal
standards). “[R]eversal is the
appropriate remedy when the only permissible view of the evidence is
contrary to the Board’s
decision.” Gutierrez, 19 Vet.App. at 10 (citing Johnson v. Brown, 9 Vet.
App. 7, 10 (1996)); see also
Gilbert v. Derwinski, 1 Vet.App.49, 52-53 (1990) (explainingthat the Court
mayreverse the Board’s
determinations of material fact if theydo not have a plausible basis in
the record). However, reversal

may be appropriate even if there is “existence of some controverting
evidence (that is, evidence that
is not in the appellant’s favor).” Padgett v. Nicholson, 19 Vet.App. 133,
147 (en banc) (unanimously
rejecting proposition that “a Board finding cannot be clearly erroneous
unless the evidence against
that finding is uncontroverted”) (opinion issued nunc pro tunc to November
2, 2004, sub nom.
Padgett v. Peake, 22 Vet.App. 159 (2008) (en banc)). Because reversal is a
greater remedy than
remand, the Court will address the appellant’s argument for reversal first.
See Mahl v. Principi, 15
Vet.App. 37, 38 (2001) (per curiam order) (explaining “if the proper
remedy is a remand, there is no
need to analyze and discuss all the other claimed errors that would result
in a remedyno broader than
a remand”).
Here, the appellant argues that reversal is the appropriate remedy because
the two favorable
privateopinionsareentitledto
fullprobativevaluebecausetheBoard’srationalefordiscountingeach
of them was based on clearly erroneous findings of fact. Appellant’s Br.
at 8-9. The appellant also
argues that the Board’s finding that the October 2007 VA examiner’s
opinion is worth any probative
value at all was implausible based on the evidence of record. Id. She
argues that the Court should
reverse the Board’s clearly erroneous findings of fact with regard to each
of the medical nexus
opinions of record, and reverse the Board’s finding that the October 2007
VA examiner’s opinion is
worth more probative weight than the private providers. Id. She argues
that, once the Board’s
“clearly erroneous” findings of fact are reversed, the record will consist
of two fully favorable
opinions and one non-probative negative opinion, as well as favorable
articles discussing a link
between PTSD and heart disease in older men, a death certificate listing
PTSD as a cause of death,
and treatment records documenting the veteran’s treating physician’s
concern that the PTSD was
exacerbating or contributing to the heart disease, and that the evidence
will then preponderate in
favor of the claim. Id.
The Secretaryconcedes that the Court should remand the Board’s decision
because the Board
failed to adequately address the medical and lay evidence of record.
Secretary’s Br. at 8-15. The
Secretarynotes that, while discussing the VA examiner’s October 2007
opinion, the Board indicated
that the VA examiner had noted that the veteran’s death certificate was
revised per family request
to show an additional cause of death as PTSD because the veteran was
service connected for PTSD
and was not service connected for hypertensive and ASHD, diabetes, or
Parkinson’s disease.
Secretary’s Br. at 10. The Secretary admits that there is nothing in the
record to support this

statement and that the record did not provide any basis for the issuance
of an amended death
certificate in January 2007.
Id. He concedes that the Board should have considered this
inconsistency between the VA examiner’s findings and the record and
discussed whether there was
bias in the examiner’s opinion. Secretary’s Br. at 10-11. The Secretary
also concedes that neither
the October 2007 VA examiner nor the Board adequately discussed medical
articles (R. at 63-85)
submitted by the appellant and the two private examiners that reported
that there was an increased
risk of hypertension and circulatorydisease among veterans diagnosed with
PTSD. He submits that
such an error requires remand for the Board to consider the favorable
evidence and whether an
additional VA opinion was needed.
The Secretaryalso concedes that the Board’s reasons or bases for
discounting the two private
examiners’ opinions were inadequate. Secretary’s Br. at 12. He admits that
the Board incorrectly
found that the opinions were conclusory when in fact both physicians
provided rationales for their
opinions and supplied articles summarizing medical research supporting
their positions. Id. He also
identifies a Colvin violation where the Board assigned less probative
value to the private physicians’
statements based on the fact that the veteran was diagnosed with ASHD
manyyears before there was
any indication he had PTSD, essentially exercising independent medical
judgement as there is no
evidence that this fact has any medical significance. Secretary’s Br. at
13; Colvin v. Derwinski,
1 Vet.App. 171, 175 (1991). He argues that remand is needed to allow the
Board to correct its
flawed rationale for awarding less probative value to the private
physicians opinions. Id.
The Secretary then identifies an additional basis for remand. Secretary’s
Br. at 13. In
discounting the appellant’s assertions that the veteran’s service-
connected PTSD was a contributory
factor in his death and that the veteran developed ASHD as a result of his
PTSD, or in the
alternative, that the PTSD aggravated the heart disease to aid in causing
the veteran’s death, the
Secretaryconcedes that the Board’s dismissal of her layassertions without
first determining whether
the issue is one for which lay evidence is competent was in error.
Secretary’s Br. at 13-14; see
Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Secretary
maintains that remand
is the appropriate remedyfor the Board’s failure to provide adequate
reasons or bases as to the above
discussed points. Secretary’s Br. at 16-22.
In her reply brief, the appellant argues that remand is not necessary
because there are no
factual disputes that must be resolved by the Board in the first instance
and that, contrary to the

Secretary’s concessions, the Board’s statement of reasons or bases is
adequate for both her
understanding and for judicial review. Appellant’s Reply Br. at 1-13. In
response to the Secretary’s
various concessions, the appellant argues that remand is not required for
the Board to discuss in the
first instance whether the VA examiner’s opinion exhibits bias; the Board
adequately discussed the
medical articles attached to the favorable medical opinions; remand for
the Board to reconsider the
lay evidence will only create an unnecessary burden on the Board; remand
is unnecessary for the
Board to discuss whether another VA examination and opinion is warranted;
and remand for the
Board to discuss whether a September 2004 opinion constitutes negative
evidence is both
unnecessary and inappropriate. Appellant’s Reply Br. at 7-13.
The Court agrees with the Secretary and concludes that remand is the
appropriate remedy.
As stated earlier, reversal is only appropriate where “‘the reviewing
court on the entire evidence is
left with a definite and firm conviction that a mistake has been committed.”
‘ Gilbert, 1 Vet.App. at
52 (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
Contrary to the appellant’s argument, it is not clear that the Board erred in according any probative weight to the October 2007 VA examiner’s opinion because it was based on an inaccurate factual premise. Appellant’s Br. at 15-16; Appellant’s Reply Br. at 2-3. Although there is nothing in the record to support the VA examiner’s statement about the veteran’s amended death certificate, the remainder of the examination may still be of some probative weight. R. at 132-33. The VA examiner reviewed the claims file and medical history and conferenced with a cardiologist before expressing the negative nexus opinion. Id. Additionally, the VA examiner provided an opinion prior to the veteran’s death that expressed that the veteran’s heart condition was not secondary to PTSD and that his heart condition was not aggravated by PTSD. R. at 441-42. The Board is the appropriate one to determinewhetherto afford weight to this examination. Although the VA examiner’s opinion was defective in one respect, it discussed a number of risk factors not related to service and the private opinions do not reflect such a discussion. See Kahana v. Shinseki, 24 Vet.App. 428, 439 n.8 (2011)(Lance, J., concurring) (noting that if an opinion is based upon an incomplete factual premise, it may be given reduced weight). Accordingly, there is still substantial doubt as to how to characterize the cause of the veteran’s death. Cf. Douglas v. Shinseki, 23 Vet.App. 19, 24 (2009) (concluding that
the Secretary’s authority to develop a claim necessarily includes the
authority to collect and develop evidence that might rebut the presumption of service connection). Where, as here, the Board failed to provide an adequate statement of reasons or bases for its conclusion or where the record is
otherwise inadequate, remand, and not reversal, is the appropriate remedy.
Tucker, 11 Vet.App. at 374; Hicks v. Brown, 8 Vet.App. 417, 422 (1995).
On remand, the appellant is free to submit additional evidence and
argument, including the arguments raised in her 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 (requiring
Secretary to provide for
“expeditious treatment” of claims remanded by Board or Court).

III. CONCLUSION
After consideration of the appellant’s and the Secretary’s briefs, and a
review of the record, the Board’s August 25, 2009, decision is VACATED and the matter is REMANDED to the Board for further proceedings consistent with this decision.
DATED: November 21, 2011
Copies to:
Amy F. Fletcher, Esq.
VA General Counsel (027)

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