Veteranclaims’s Blog

June 6, 2012

Single Judge Application, Parrish v. Shinseki, 24 Vet.App. 391, 401 (2011); Gabrielson v. Brown, 7 Vet.App. 36, 40 (1994); Board’s Duty Discuss Favorable Evidence

Excerpt from decision below:
However, it is the Board, not a medical examiner, that has the duty to address information submitted bya claimant. See Parrish v. Shinseki, 24 Vet.App. 391, 401 (2011); Gabrielson v. Brown, 7 Vet.App. 36, 40 (1994)(noting that the Board, not medical examiners, has the duty to discuss favorable evidence in a statement of reasons or bases).
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 11-1426
EDDIE D. IRISH, 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 Eddie D. Irish appeals though counsel that
part of an
April 4, 2011, decision of the Board of Veterans’ Appeals (Board) that
denied disability
compensation for a left-hip disorder, erectile dysfunction (ED), to
include as secondary to service-
connected post-traumatic stress disorder (PTSD), and gastroesophageal
reflux disease (GERD), to
includeassecondaryto service-connectedPTSD, becausetheywerenot
serviceconnected. Mr.Irish
argues that the Board erred by (1) finding that the Secretary fulfilled
his duty to assist because he
failed to notify Mr. Irish that he was unable to retrieve private medical
records in compliance with
the September 2010 Board remand, (2) failing to provide a medical
examination for his left-hip
disorder and an inadequate statement of reasons or bases for its
determination that the examination
was not necessary, and (3) relying on inadequate compensation and pension (
C&P) examinations for
ED and GERD and failing to provide an adequate statement of reasons or
bases for its reliance on
these examinations. The Secretary disputes Mr. Irish’s contentions. Single-
judge disposition is
appropriate. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the
reasons stated below, that
part of the decision of the Board on appeal will be affirmed.
Mr. Irish’s contentions are not supported by the record. Mr. Irish argues
that the Board erred
by failing to ensure VA compliance with the September 2010 Board remand
that ordered the

Secretary to provide Mr. Irish with written notice if the Secretary was
unable to retrieve medical
records relevant to his left hip claim. However, the remand order
instructed the regional office (RO)
to first “request that the Veteran identify all VA and non-VA medical
providers who have treated
him for any left hip disorder, [ED], or [GERD]” and then instructed the RO
to make reasonable
efforts to obtain the “named records” and give notice if they are
unavailable. Record (R.) at 533.
Here, the Secretarysent Mr. Irish a letter in October 2010 requesting that
he complete and return VA
Form 21-4141 so that the Secretary could have the information necessary to
obtain the relevant
private medical records. Mr. Irish points to no evidence in the record of
proceedings (and the Court
does not discern any) indicating that he completed or returned the VA Form
21-4141, identifying the
private records he now alleges that the Secretary failed to obtain, see 38
U.S.C. § 5103A(b); Wood
v. Derwinski, 1 Vet.App. 190, 193 (1991) (“The duty to assist is not
always a one-way street. If a
veteran wishes help, he cannot passively wait for it in those
circumstances where he may or should
have information that is essential in obtaining the putative evidence.”),
and he otherwise fails to
demonstratethattheBoard’sfindingsthattheSecretarysubstantiallycompliedwith
theremandorder
and that the duty to assist was satisfied are clearly erroneous, see Nolen
v. Gober, 14 Vet.App. 183,
184 (2000) (Board’s determination whether the Secretary has fulfilled his
duty to assist generally is
a finding of fact that the Court reviews under the “clearly erroneous”
standard of review); Gilbert
v. Derwinski, 1 Vet.App. 49, 52 (1990) (‘”A finding is “clearly erroneous”
when although there is
evidence to support it, the reviewing court on the entire evidence is left
with the definite and firm
convictionthata mistake has been committed.”‘(quotingUnitedStates v.U.S.
GypsumCo.,333U.S.
364, 395 (1948))); see also Hilkert v. West, 12 Vet.App. 145, 151 (1999) (
en banc) (appellant bears
burden of demonstrating error on appeal).
With regard to Mr. Irish’s argument that the Board erred by not providing
a medical
examination for the development of his left-hip condition, the Board found
no evidence
demonstrating an in-service injury, event, or disease tied to Mr. Irish’s
left-hip condition, and no
continuity of symptomatology since service. Contrary to Mr. Irish’s
argument, the VA medical
examination opining that his left-hip condition could be caused by ”
excessive wear” does not relate
his hip condition to service. In the absence of an event, injury, or
disease in service or any credible
indication that Mr. Irish’s current disabilities may be due to service, a
medical examination is not
required, see McLendon v. Nicholson, 20 Vet.App. 79, 81 (2006) (Secretary
need not provide a
medical examination when there is no evidence establishing an event,
injury, or disease occurred in
2

service or any evidence indicating there may be a nexus between service
and disability), and Mr.
Irish fails to demonstrate that the Board’s determination that an
examination was not needed to
decide the claim is “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with
law,”see id. at 83 (Board’s determination thatmedicalexamination is
unwarrantedis reviewed under
the”arbitrary, capricious” standard); Hilkert, supra. Overall the Board’s
statementis understandable
and facilitative of judicial review. See Allday v. Brown, 7 Vet.App. 517,
527 (1995) (Board’s
statement “must be adequate to enable a claimant to understand the precise
basis for the Board’s
decision, as well as to facilitate review in this Court”).
As to Mr. Irish’s final argument, he contends that his C&P examinations
were inadequate
because the examiners ignored the medical literature supplied byMr. Irish
and failed to consider the
effect of his prescribed medication on his ED and GERD. However, it is the Board, not a medical examiner, that has the duty to address information submitted bya claimant. See Parrish v. Shinseki, 24 Vet.App. 391, 401 (2011); Gabrielson v. Brown, 7 Vet.App. 36, 40 (1994)(noting that the Board, not medical examiners, has the duty to discuss favorable evidence in a statement of reasons or bases).
A medical examiner is called upon to apply his expertise to evaluate
matters such as a patient’s
condition or cause thereof, and his report is adequate when it is
predicated on correct facts,
examinations, prior medical history, and when it provides sufficient
detail and explanation to permit
the Board, when combined with review of the entire record, to be fully
informed on the claimant’s
disability. See D’Aries v. Peake, 22 Vet.App. 97, 104 (2008); Gabrielson,
supra; Green v.
Derwinski, 1 Vet.App. 121, 124 (1991). Here, the C&P examination reports
relied on by the Board
reflect that they were premised on examination of Mr. Irish and review of
his medical records, and
Mr. Irish fails to demonstrate that the examiners based their reports on
any incorrect facts. Hilkert,
supra. Moreover, medical examiners are presumed competent to render the
medical opinions they
render, and Mr. Irish fails to demonstrate otherwise with regard to his C&
P examiners. Id.; see also
Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (applying the
presumption of regularity to
medical examiners’ overall competence); Rizzo v. Shinseki, 580 F.3d 1288,
1292 (Fed. Cir. 2009)
(holding that absent a challenge to a medical examiner’s credentials, the
Board may rely on the
medical examiner’s competence to supply a medical opinion).
Additionally,theBoardaddressedthemedicaltreatises submittedbyMr.Irishbut
discounted
them because they did not “specifically address the Veteran’s situation or
provide a basis for a
medical opinion of record,” (R. at 15) and Mr. Irish points to no medical
evidence supporting his
belief that his ED or GERD were caused or aggravated by the use of
prescribed medication, and
3

otherwise fails to demonstrate that the treatise information he submitted
was more probative to his
claim than the C&P examination reports. Hilkert, supra; see also Sacks v.
West, 11 Vet.App. 314,
317(1998)(holding that treatise materials generallyarenot specificenoughto
shownexus); Herlehy
v. Brown, 4 Vet.App. 122, 123 (1993) (discussing how, in general, medical
opinions directed at
specificpatientsaremoreprobativethanmedicaltreatises); Hyder v.Derwinski,
1Vet.App.221,225
(1991) (“Layhypothesizing, particularly in light of the absence of
anysupporting medical authority,
serves no constructive purpose and cannot be considered by th[e] Court.”).
Moreover, the Board’s statement is understandable and facilitative of judicial review and Mr. Irish fails to demonstrate otherwise, Allday, supra; see also Hilkert, supra.
Accordingly, the April 4, 2011, decision of the Board is AFFIRMED.
DATED: May 17, 2012
Copies to:
Perry A. Pirsch, Esq.
VA General Counsel (027)
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