Veteranclaims’s Blog

March 30, 2012

Single Judge Application, Rucker v. Brown, 10 Vet.App. 67, 73 (1997) (“[R]ecourse to the [Federal] Rules [of Evidence] is appropriate where they will assist in the articulation of the Board’s reasons.”)

Excerpt from decision below:
“With regard to his inadequate-reasons-or-bases argument, Mr. Larson contends that the Board inadequately explained (what he views as) its impermissible discounting of (1) lay statements, (2) VA medical records, and (3) three favorable medical opinions. As to the lay statements, however, the Board acknowledged them, noted that they contained inconsistencies as to the onset of Mr. Larson’s dizziness, and assigned more probative value to those statements made to doctors and less value to those made to the Secretary in furtherance of his claim for benefits. See R. at 12 (Board noting that the Federal Rules of Evidence generally finds statements made to physicians for the purposes of diagnosis or treatment “exceptionally trustworthy” and citing Rucker v. Brown, 10 Vet.App. 67, 73 (1997) (“[R]ecourse to the [Federal] Rules [of Evidence] is appropriate where they will assist in the articulation of the Board’s reasons.”)).”
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 11-454
DALE H. LARSON, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before KASOLD, Chief Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
KASOLD, Chief Judge: Veteran Dale H. Larson appeals through counsel that
part of a
January14, 2011, decision of the Board of Veterans’ Appeals (Board) that
denied Mr. Larson’s claim
for benefits for Meniere’s disease and vertigo because they were not
service connected. Mr. Larson
argues that the Board (1) relied on an inadequate June 2010 medical report
, (2) should have
remanded his claim forclarificationoftwomedicalreports, (3) provided
inadequate reasons or bases
for its determinations, and (4) clearly erred in denying benefits. The
Secretary disputes these
arguments. Single-judge disposition is appropriate. Frankel v. Derwinski,
1 Vet.App. 23, 25-26
(1990). For the reasons stated below, that part of the Board decision on
appeal will be affirmed.
In support of his argument that the June 2010 report was inadequate, Mr.
Larson contends
that the report does not explain and distinguish its nexus opinion from
that provided in the record
lay testimony and other medical reports. However, there is no requirement
that a report address all
laytestimonyor other medical reports in the record. See Roberson v.
Shinseki, 22 Vet.App. 358, 367
(2009) (“A medical examiner need not discuss all evidence favorable to an
appellant’s claim when
rendering an opinion.”). There also is no requirement that a medical
professional contrast his
opinion with that of another medical professional to be deemed adequate.
Rather, “[a]n opinion is
adequatewhereit is baseduponconsideration oftheveteran’s
priormedicalhistoryandexaminations

and also describes the disability in sufficient detail so that the
Board’s ‘evaluation of the claimed
disability will be a fully informed one.'” D’Aries v. Peake, 22 Vet.App.
97, 104 (2008) (quoting
Green v. Derwinski, 1 Vet.App. 121, 124 (1991)). It is the Board’s duty to
determine the adequacy
of a medical opinion and weigh it against the other record evidence. See
Gabrielson v. Brown,
7 Vet.App. 36, 40 (1994) (noting that a medical opinion is “onlythat, an
opinion,” and that the Board
is ultimately required to address favorable evidence and provide reasons
or bases for its findings).
Here, the June 2010 medical report reflects that the medical professional
reviewed the entire
file, including “audio testing, ENG, physician reports, C&P evaluations, [
and] personal statements
from the patient and his family.” Record (R.) at 38. The medical
professional also provided a nexus
opinion based on her medical judgment and provided rationale to support
her conclusion. Mr.
Larson fails to demonstrate that (1) the medical professional did not
consider the lay evidence and
medical records in the file, (2) the file reviewed was incomplete such
that some records were not
considered, or (3)themedicalprofessional otherwiseignored relevant
evidence. See Hilkert v. West,
12 Vet.App. 145, 151 (1999) (en banc) (holding that appellant bears burden
of demonstrating error
on appeal); see also Rizzo v. Shinseki, 580 F.3d 1288, 1291 (Fed. Cir.
2009) (holding that a VA
medical professional is presumed competent to discharge his or her
official duties in the absence of
evidence to the contrary); D’Aries, supra.
Also in support of his argument that the June 2010 report was inadequate,
Mr. Larson
presents three additional contentions of error. First, he contends that
the June 2010 medical report
failed to address whether Mr. Larson’s vertigo was related to service.
Although the report does not
explicitly state that Mr. Larson’s vertigo was not related to service, the
report reflects that (1)
Meniere’s disease is characterized by vertigo, hearing loss, tinnitus, and
other symptoms, (2) Mr.
Larson’s hearing loss and tinnitus are disabilities independent from his
Meniere’s disease and could
be related back to service, (3) vertigo was first reported in 1995, and (4)
Mr. Larson’s Meniere’s
disease is not related to service. Read as a whole, it is not clearly
erroneous to read the report as
support for finding that Mr. Larson’s vertigo is not related to service,
given that vertigo was first
reported 30 years after service and particularly in contrast to the
medical professional’s opinion that
(1) hearing loss and tinnitus were disabilities deemed independent from
his Meniere’s disease, (2)
vertigo was a symptom of Meniere’s disease but not noted as independent of
Mr. Larson’s Meniere’s
2

disease, and (3) Mr. Larsons’s Meniere’s disease was not related to
service. See Gilbert v. Derwinski,
1 Vet.App. 49, 52 (1990) (“‘A finding is clearlyerroneous when . . . the
reviewing court on the entire
evidence is left with the definite and firm conviction that a mistake has
been committed.'” (quoting
United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948))).
Second, Mr. Larson contends that the doctor’s statement is ambiguous as to
whether or not
Mr. Larson has Meniere’s disease. However, such a reading of the report
ignores its material
essence, to wit: Mr. Larson’s current Meniere’s disease is not related to
service. Even assuming Mr.
Larson’s view of the evidence could be deemed reasonable, he fails to
demonstrate that the Board’s
view of this evidence was clearly erroneous. Gilbert, 1 Vet.App. at 52-53 (”
‘Where there are two
permissible views of the evidence, the factfinder’s choice between them
cannot be clearly
erroneous.'” (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573-
74 (1985))).
Third, Mr. Larson contends thatthe2010medicalprofessional
incorrectlystated that the first
complaint of vertigo was made in 1995. However, Mr. Larson fails to
identifyanyrecord documents
containing a complaint or diagnosis of vertigo prior to 1995. See Hilkert,
supra. To the extent he
identifies a notation of dizziness in a 1988 VA medical record, he fails
to demonstrate that reports
of dizziness equate to having vertigo, which is a particular type of
dizziness.1
Moreover, he fails to
demonstrate that the June 2010 medical professional erred when rendering
her implicit opinion that
any reports of dizziness prior to 1995 were not reports of vertigo. Rizzo,
supra. In sum, Mr. Larson
fails to demonstrate that the Board clearly erred in finding that the June
2010 report was adequate.
See D’Aries, 22 Vet.App. at 103-04 (“Whether a medical opinion is adequate
is a finding of fact,
which the Court reviews under the ‘clearly erroneous’ standard.”); Gilbert,
1 Vet.App. at 52.
In support of his argument that the Board should have remanded his claim
for clarification
of two medical reports, Mr. Larson relies on SavageNext Document v. Shinseki, 24 Vet.
App. 259, 260 (2011), and
contends that the Board should have sought clarification of private
medical reports, dated in May
2006 and August 2006. However, clarification of private medical reports is
required only when
clarification “could provide relevant information that is otherwise not in
the record and cannot be
1
“Vertigo” is defined as “an illusory sense that either the environment or
one’s own body is revolving; it
may result from diseases of the internal ear or may be due to disturbances
of the vestibular centers or pathways in the
central nervous system. The term is sometimes erroneously used to mean any
form of dizziness.” DORLAND’S
ILLUSTRATED MEDICAL DICTIONARY 2051 (32d ed. 2012) (emphasis added).
3

obtained in some other way.” Id. at 269. Here, the record reflects that
the June 2010 medical
opinion provided sufficient medical evidence for the Board to render a
decision on the claim.
Accordingly, clarification of the older private medical reports was not
needed. Id.; see also
McLendon v. Nicholson, 20 Vet.App. 79, 84 (2006) (“[I]f there is
sufficient competent medical
evidence on file for the Secretary to make a decision on the claim, he may
proceed to do so . . . .”).
Withregardtohisinadequate-reasons-or-basesargument,Mr.
LarsoncontendsthattheBoard
inadequately explained (what he views as) its impermissible discounting of (
1) lay statements, (2)
VA medical records, and (3) three favorable medical opinions. As to the
lay statements, however,
the Board acknowledged them, noted that they contained inconsistencies as
to the onset of Mr.
Larson’s dizziness, and assigned more probative value to those statements
made to doctors and less
value to those made to the Secretary in furtherance of his claim for
benefits. See R. at 12 (Board
noting that the Federal Rules of Evidence generally finds statements made
to physicians for the
purposes of diagnosis or treatment “exceptionally trustworthy” and citing
Rucker v. Brown, 10
Vet.App. 67, 73 (1997) (“[R]ecourse to the [Federal] Rules [of Evidence]
is appropriate where they
will assist in the articulation of the Board’s reasons.”)).
RegardingtheVAmedicalrecordsallegedlyignored,althoughMr.Larsoncited to
numerous
records purportedlynoting dizziness prior to 1989, the record of
proceedings onlyreflects a notation
of dizziness in the 1988 VA record discussed above. Moreover, Mr. Larson
fails to demonstratewhy
the Board might have been required to address this particular document
when, as noted above,
dizziness does not necessarily equate to vertigo and the June 2010 medical
professional opined that
vertigo was not identified until 1995. In sum, Mr. Larson fails to
demonstrate that the Board failed
to address materially favorable evidence or otherwise inadequately
explained its decision. See
Thompson v. Gober, 14 Vet.App. 187, 188 (2000) (Board must provide
adequate statement of
reasons or bases “for its rejection of any material evidence favorable to
the claimant”); Hilkert,
supra; Allday v. Brown, 7 Vet.App. 517, 527 (1995) (holding that the
Board’s statement “must be
adequate to enable claimant to understand the precise basis for the
Board’s decision, as well as to
facilitate review in this Court”).
As to the three favorable medical opinions, the Board addressed each
opinion and provided
rationale for its respective assignment of weight. See Owens v. Brown, 7
Vet.App. 429, 433 (1995)
4

(“It is not error for the [Board] to favor the opinion of one competent
medical expert over that of
another when the Board gives an adequate statement of reasons and bases.”).
Specifically, the Board
assigned (1) no probative value to the May 2006 medical opinion, because
it provided no opinion
on vertigo or Meniere’s disease, (2) “very little probative value” to the
March 2006 opinion, because
an October 2008 joint motion for remand (JMR) noted its ambiguity on the
issue of nexus between
his disabilities and service,and(3)”some,but not high, probative value”to
the August 2006 opinion,
because it did not address the separation report of medical history, in
which Mr. Larson specifically
noted no history of dizziness. R. at 19. Overall, Mr. Larson fails to
demonstrate that the Board
provided inadequate reasons or bases in its statement. See Allday, supra.
In support of his clear-error argument, Mr. Larson contends that the
record evidence
preponderates in favor of finding a continuity of symptoms, as well as a
nexus between his
disabilities and service, and that the Board clearly erred in finding
otherwise. However, the record
does not support his contentions. The Board found, inter alia, (1) no
objective evidence of dizziness
for 20 years after service despite numerous VA medical records from that
time period, (2) Mr.
Larson’s laystatements noting an onset of dizziness in the 1990s more
probative than his more recent
statements recounting dizziness in service, (3) the June 2010 report
against nexus more probative
than the other medical evidence of record (for the reasons discussed above
), and (4) the
preponderance of the evidence against the claim. Based on a review of the
record of proceedings,
the Board’s findings are plausible and not clearly erroneous. See Burger v.
Brown, 5 Vet.App. 340,
343 (1993) (Board findings of fact are reviewed under the “clearly
erroneous” standard); Gilbert, 1
Vet.App. at 52; see also Hilkert, supra.
Accordingly, that part of the January 14, 2011, Board decision on appeal
is AFFIRMED.
DATED:
March 21, 2012
Copies to:
Perry A. Pirsch, Esq.
VA General Counsel (027)
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