Veteranclaims’s Blog

February 13, 2013

Single Judge Application, Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009), Nexus Statement; Jandreau v. Nicholson, 492 F.3d 1372, 1376- 77 (Fed. Cir. 2009); Lay Person Medical Etiology

Excerpt from decision below:
“Second, the Board categorically rejected Mr. Black’s lay statements that his current back disability is related to his in-service back injuries solely on the basis that he is a layperson. See R. at 7-8 ( “Although the Veteran[] believes that his current back disability is related to injury during
service, as a layperson he is not qualified to furnish medical opinions or diagnoses.” (citing Espiritu, 2 Vet.App. at 494-95)). That reasoning contravenes multiple holdings by the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) on that issue. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (holding that this Court erred in “stat[ing] categorically that ‘a valid medical opinion’ was required to establish nexus, and that the appellant was ‘not competent’ to provide testimony as to nexus because she was a layperson”); Jandreau v. Nicholson, 492 F.3d 1372, 1376-
77 (Fed. Cir. 2009) (rejecting this Court’s view that competent medical evidence is required when the determinative issue involves medical etiology or medical diagnosis); see generally King v. Shinseki, 700 F.3d 1339, 1344-45 (Fed. Cir. 2012) (summarizing the Federal Circuit’s caselaw in this
area). Lay evidence of medical etiology or continuity of symptoms may be sufficient, in and of itself, to establish a nexus between Mr. Black’s current back disability and his service–the element of service connection that the Board found lacking in this case. R. at 8; see Barr v. Nicholson, 21 Vet.App. 303, 307 (2007) (explaining that nexus may also be established by a showing of continuity of symptoms since service).
Accordingly, the Court concludes that the Board’s failure to properly consider that lay evidence prejudiced his claim for service connection for residuals of a low back injury. See 38 U.S.C. § 7261(b)(2) (requiring the Court to “take due account of the rule of prejudicial error”).
============================

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 11-1351
BENNY D. BLACK, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before BARTLEY, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
BARTLEY, Judge: Veteran Benny D. Black appeals through counsel a March 14, 2011,
Board of Veterans’ Appeals (Board) decision denying entitlement to service connection for residuals
of a low back injury. Record (R.) at 3-9. This appeal is timely and the Court has jurisdiction to 1
review the Board’s decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition
is appropriate in this case. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons
that follow, the Court will set aside the portion of the March 2011 Board decision denying his claim
for service connection for residuals of a low back injury and remand that claim for readjudication
consistent with this decision.
I. FACTS
Mr. Black served on active duty in the U.S. Marine Corps from October 1961 to May 1971,
including service in Vietnam. R. at 365-69, 371. Service medical records (SMRs) reflect that Mr.
Black complained of and sought treatment for back pain on numerous occasions throughout service.
The Board also granted entitlement to service connection for tinnitus. Mr. Black does not challenge any aspect 1
of the Board’s favorable decision on that claim.
The first such instance was when he was hospitalized in October 1963 after injuring his back lifting
“a heavy tank.” R. at 238. He complained of back pain, tenderness, and limitation of motion at that
time and was diagnosed with lumbosacral strain. Id. After three days of treatment with analgesics,
muscle relaxants, bed rest, and heat, his symptoms subsided and he was discharged to full duty. Id.
A November 1963 medical record also noted that he had injured his back. R. at 246. In April 1964,
Mr. Black sought treatment for back pain, but no diagnosis was given. R. at 248. In August 1965,
Mr. Black again complained of a “sore back” and was diagnosed with acute low back strain. R. at
250. He sought further treatment for back pain two days later and was placed on light duty. Id.
In October 1967, Mr. Black was involved in a motorcycle accident and suffered sprained
spinal muscles, among other injuries. R. at 315. He subsequently complained of back pain on four
separate occasions in January 1968 and was variously diagnosed with muscle strain and “no [spine]
disease.” R. at 252-53. One of the January 1968 medical records reflects a past history of back
injury for three years. R. at 252. In March 1969, he again sought treatment for back pain, was
diagnosed with probable pulled or strained muscles, and was placed on light duty for one week. R.
at 318. In April 1969, Mr. Black complained of back pain but exhibited “good” range of motion.
R. at 258. He was ultimately diagnosed with probable muscle strain. Id.
Service medical examinations performed in January 1965, September 1968, and November
1969 revealed no abnormalities of the spine. R. at 291, 324-27. Upon separation from service in
May 1971, Mr. Black’s spine was evaluated as normal. R. at 242-43, 283-84.
The first postservice record of back pain contained in the record of proceedings is a
November 2006 VA treatment note reflecting a diagnosis of low back pain. R. at 161-62. Less than
a year later, in May 2007, a magnetic resonance image (MRI) was taken of Mr. Black’s spine, which
revealed moderate degenerative spondylosis with significant facet arthropathy of his lumbosacral
vertebrae. R. at 160. In a subsequent VA neurosurgery consultation in July 2007, Mr. Black 2
complained of back pain of five years’ duration that had worsened over the last year; however, he
“Spondylosis” is “ankylosis of a vertebral joint[;] degenerative spinal changes due to osteoarthritis.” 2
DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1754 (32d ed. 2012) [hereinafter DORLAND’S]. “Ankylosis” is
“immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Id. at 94. “Facet arthropathy,”
also known as “facet osteoarthritis,” is “a type of spondylarthritis centered in facet joints with disk degeneration and
pain.” Id. at 1344.
2
also indicated that he had been hospitalized for a back injury while in the Marine Corps and had been
treated with bed rest for that injury. R. at 158. The diagnosis at that time was stenosis of the lumbar
spine, worse at L4-L5. R. at 160. 3
In November 2007, Mr. Black filed a claim for service connection for, inter alia, a low back
injury with secondary arthritis. R. at 189-202.
In July 2008, Mr. Black underwent a VA medical examination in connection with that claim.
R. at 141-48. The examiner reviewed Mr. Black’s claims file and VA medical records and elicited
a medical history from the veteran. R. at 141, 146. Significantly, the examiner noted that Mr. Black
“has a history of low back pain which he believes started in is continuous [sic],” “believes his back
[pain] is related to working in the military,” and “does not have a specific injury related to the back.”
R. at 146. After performing a physical examination of Mr. Black’s spine, the examiner diagnosed
him with spondylosis of the lumbar spine. R. at 146-47. The examiner then opined:
The veteran was not diagnosed with any chronic back condition while in the service.
The veteran’s post service records indicate he was not complaining of consistent back
pain until approximately 2006. Therefore, I must conclude that the veteran’s back
condition is not related to military service but is related to the aging process since
there is not a consistent history of chronic low back pain or diagnosis of a condition
such as spondylosis, arthritis[,] or degenerative disk disease that occurs during
military service or shortly thereafter. I must conclude that it is related to the aging
process.
R. at 147.
Based primarily on the results of the July 2008 VA medical examination, a VA regional
office (RO) issued an August 2008 decision that, inter alia, denied Mr. Black’s claim for service
connection for a low back injury with arthritis. R. at 118-33. Mr. Black filed a timely Notice of
Disagreement (NOD) with that decision and subsequently requested that a decision review officer
(DRO) readjudicate his claim. R. at 100, 104. In August 2009, the RO issued a Statement of the
Case, prepared by a DRO, continuing to deny his claim. R. at 36-62. Two months later, Mr. Black
filed a VA Form 9, Substantive Appeal, which stated in pertinent part:
“Spinal stenosis” is “narrowing of the vertebral canal, nerve root canals, or intervertebral foramina of the 3
lumbar spine caused by encroachment of bone upon the space . . . . The condition may be either congenital or due to
spinal degeneration.” DORLAND’S at 1770.
3
My back was injured on active duty while lifting and in the mo[t]orcycle wreck noted
in active duty. This type of injury would not show on the x-ray[]s of that time
period. . . . These in[j]uries are consistent with injury from the motorcycle accident
and worsened by the inevitable aging process.
R. at 34.
In March 2011, the Board issued the decision currently on appeal, which denied Mr. Black
entitlement to service connection for a low back injury. R. at 3-9. Specifically, the Board
acknowledged that Mr. Black’s medical records “show a low back injury and intermittent back
complaints for several years” after the in-service injury, but found that he “was not shown to have
developed a chronic low back disability” at that time because his in-service diagnoses of muscle
strain were “acute in nature,” he “was not shown to have any back disability upon discharge from
service,” and he was not diagnosed with a chronic back disability “until more than 30 years after
discharge from service.” R. at 7. The Board then explained that, “[a]lthough the Veteran has
asserted that he had tinnitus ever since service, he had made no such assertion about his back pain.”
Id. The Board also found that, “[a]lthough the Veteran[] believes that his current back disability is
related to injury during service, as a layperson he is not qualified to furnish medical opinions or
diagnoses.” R. at 7-8 (citing Espiritu v. Derwinski, 2 Vet.App. 492, 494-95 (1992)). Finally, the
Board noted that the July 2008 VA medical examination, which it implicitly found adequate, was
against Mr. Black’s claim and there was “no medical evidence to the contrary.” R. at 8. Thus, the
Board concluded that the preponderance of the evidence weighed against an award of service
connection for a low back injury. Id. This appeal followed.
II. ANALYSIS
A. Lay Statements
Mr. Black first argues that the Board erred in finding that his lay statements regarding his inservice
back injury and continuing symptoms of back pain since service were not competent. See
Appellant’s Brief (Br.) at 9-11. The Court agrees that the Board’s treatment of Mr. Black’s lay
statements was improper, albeit not for the reasons provided by the veteran.
Contrary to Mr. Black’s contentions, the Board did not determine that he was not competent
to identify the onset of his back pain or assert that the pain persisted since service. In fact, the Board
4
stated the opposite, explaining that “a layperson is competent to testify about the onset and continuity
of symptomatology [of a disability].” R. at 6. The Board also examined Mr. Black’s SMRs and
determined that they established that he was injured in service and experienced back pain during
service and shortly thereafter. R. at 7. Having found that Mr. Black’s back pain first manifested in
service (a finding favorable to the veteran), there was no reason for the Board to further discuss any
evidence regarding the origin of his back pain in service, including his lay statements on that issue,
and the Board did not do so. Similarly, the Board did not address Mr. Black’s competency to opine
on the continuity of his back pain since service because the Board found that he had not made any
allegations of continuity of back pain. Id. (“Although the Veteran has asserted that he had tinnitus
ever since service, he had made no such assertion about his back pain.”). In other words, the Board
never made a finding–adverse or otherwise–regarding Mr. Black’s competency to identify the onset
of his back pain or state that he continuously experienced back pain since service. Thus, Mr. Black’s
competency arguments must fail. See Cromer v. Nicholson, 19 Vet.App. 215, 219 (2005) (per
curiam order) (stating that the Court need not delve into an argument based on an inaccurate factual
predicate).
That conclusion, however, does not end the Court’s analysis. In reviewing Mr. Black’s
allegations of error regarding the Board’s treatment of his lay statements, the Court identified two
Board errors not asserted by the veteran. See Mason v. Shinseki, 25 Vet.App. 83, 94 (2011) (“It is
undisputed that ‘U.S. courts of appeals have the discretion to raise legal issues not raised by a party.'”
(quoting Patton v. West, 12 Vet.App. 272, 283 (1999)); see also Kamen v. Kemper Fin. Servs., Inc.,
500 U.S. 90, 99 (1991) (“When an issue or claim is properly before the court, the court is not limited
to the particular legal theories advanced by the parties, but rather retains the independent power to
identify and apply the proper construction of governing law.”).
First, the Board erroneously found that Mr. Black “made no . . . assertion” that he continued
to experience back pain since service. R. at 7. Yet, the record reflects that he made exactly that
assertion to the July 2008 VA medical examiner. See R. at 146 (“The veteran has a history of low
back pain which he believes started in is continuous [sic] . . . . He believes his back [pain] is related
to working in the military.”).
5
Second, the Board categorically rejected Mr. Black’s lay statements that his current back disability is related to his in-service back injuries solely on the basis that he is a layperson. See R. at 7-8 ( “Although the Veteran[] believes that his current back disability is related to injury during
service, as a layperson he is not qualified to furnish medical opinions or diagnoses.” (citing Espiritu, 2 Vet.App. at 494-95)). That reasoning contravenes multiple holdings by the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) on that issue. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (holding that this Court erred in “stat[ing] categorically that ‘a valid medical opinion’ was required to establish nexus, and that the appellant was ‘not competent’ to provide testimony as to nexus because she was a layperson”); Jandreau v. Nicholson, 492 F.3d 1372, 1376-
77 (Fed. Cir. 2009) (rejecting this Court’s view that competent medical evidence is required when the determinative issue involves medical etiology or medical diagnosis); see generally King v. Shinseki, 700 F.3d 1339, 1344-45 (Fed. Cir. 2012) (summarizing the Federal Circuit’s caselaw in this
area). Lay evidence of medical etiology or continuity of symptoms may be sufficient, in and of itself, to establish a nexus between Mr. Black’s current back disability and his service–the element of service connection that the Board found lacking in this case. R. at 8; see Barr v. Nicholson, 21 Vet.App. 303, 307 (2007) (explaining that nexus may also be established by a showing of continuity of symptoms since service). Accordingly, the Court concludes that the Board’s failure to properly consider that lay evidence prejudiced his claim for service connection for residuals of a low back injury. See 38 U.S.C. § 7261(b)(2) (requiring the Court to “take due account of the rule of prejudicial error”).
Remand of that claim is therefore warranted. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that remand is the appropriate remedy “where the Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate”).

B. Adequacy of the July 2008 VA Medical Examination
Although the Court has already determined that remand is necessary, the Court will
nevertheless address Mr. Black’s argument regarding the adequacy of the July 2008 VA medical
examination so that the Board knows whether it is entitled to rely on that examination report on
remand. See Quirin v. Shinseki, 22 Vet.App. 390, 396 (2009) (holding that the Court may address
6
an appellant’s other arguments after determining that remand is warranted to provide guidance to the
Board). Specifically, Mr. Black asserts that that examination was inadequate because the examiner
(1) made statements that “conflicted” with his SMRs; (2) “used an incorrect standard” in reviewing
his SMRs; and (3) failed to account for potentially favorable medical evidence. Appellant’s Br. at
12, 16-17. These arguments are unpersuasive. 4
Contrary to Mr. Black’s contention, the VA examiner’s statement that “there is not a
consistent history of chronic low back pain or diagnosis of a condition such as spondylosis,
arthritis[,] or degenerative disk disease that occurs during military service or shortly thereafter” does
not necessarily conflict with his history of in-service back complaints. R. at 146; see Appellant’s Br.
at 12. Each incident of low back pain in service was attributed to muscle strain, which the examiner
appears to have considered acute and transitory and not indicative of a chronic disability causing
consistent back pain. R. at 147 (“The veteran was not diagnosed with any chronic back condition
while in the service. The veteran’s post service records indicate he was not complaining of consistent
back pain until approximately 2006.” (emphasis added)). Although it undoubtedly would have been
preferable for the examiner to articulate that reasoning more clearly, a review of the medical
examination as a whole reveals that reasoning. Thus, the examination was not inadequate in that
regard. See Monzingo v. Shinseki, 26 Vet.App. 97, 106 (2012) (holding that a medical opinion that
“does not explicitly lay out the examiner’s journey from the facts to a conclusion” is not inadequate
so long as the Court can discern the examiner’s reasoning from a “review of the report as a whole”).
Further, Mr. Black’s assertion that the examiner used “an incorrect standard” of analysis to
determine whether the veteran’s current low back disability is related to service is premised on an
artificially narrow reading of the examiner’s opinion. Appellant’s Br. at 16. The examiner was not,
as the veteran contends, requiring evidence of “diagnosis of a condition such as spondylosis,
To the extent that Mr. Black argues that the Board committed clear and unmistakable error (CUE) in relying 4
on the July 2008 VA medical examination, there is no final and unappealed denial of his claim for service connection
for residuals of a low back injury that could serve as the foundation for a motion for revision based on CUE. See
38 C.F.R. § 3.105(a) (2012) (“Previous determinations which are final and binding . . . will be accepted as correct in the
absence of [CUE]. Where evidence establishes such error, the prior decision will be reversed or amended.”). Thus, his
allegations of CUE are premature and the Court cannot address them at this time. See Andre v. Principi, 301 F.3d 1354,
1361 (Fed. Cir. 2002) (“[E]ach ‘specific’ assertion of CUE . . . must be the subject of a decision by the [Board] before
[this] Court can exercise jurisdiction over it.”); Russell v. Principi, 3 Vet.App. 310, 315 (1992) (en banc) (noting that
the”necessary jurisdictional ‘hook'” for the Court is “a decision of the [Board] on the specific issue of [CUE]”).
7
arthritis[,] or degenerative disk disease” during or shortly after military service to establish a
relationship between Mr. Black’s current spondylosis and service as the veteran suggests. R. at 146;
see Appellant’s Br. at 16. Rather, the examiner was making clear that the lack of a diagnosis of a
chronic low back condition in service, a 35-year gap between service and the diagnosis of such a
condition, and the transitory nature of his low back injuries in service, weighed against finding such
a relationship. R. at 146. Again, the examiner’s opinion is not entirely clear, but a reading of the
opinion in its entirety, instead of selectively quoting from it as Mr. Black does, reveals a sufficient
rationale for the Court to uphold the Board’s implicit finding that it was adequate. See Monzingo,
26 Vet.App. at 106; see also Mitchell v. Shinseki, 25 Vet.App. 32, 38 (2011) (chastising the appellant
for her “selective quotation of our cases”).
Finally, although Mr. Black is correct that the examiner did not discuss the May 2007 MRI
or the July 2007 VA neurosurgery consultation reports, “[t]here is no requirement that a medical
examiner comment on every favorable piece of evidence in a claims file” to render an adequate
opinion. Monzingo, 26 Vet.App. at 105; see Acevedo v. Shinseki, 25 Vet.App. 286, 293 (2012)
(“[T]here is no reasons or bases requirement imposed on examiners.”). Those documents
demonstrate that Mr. Black currently has spondylosis of the lumbar spine, a fact acknowledged by
the examiner in the July 2008 opinion. R. at 148 (comparing x-rays taken at that examination with
x-rays taken in November 2006 and noting that Mr. Black’s thoracolumbar spondylosis had
“increased” since that time). Because the examiner was aware of those recent diagnoses, his decision
not to discuss the aforementioned medical reports did not render his opinion inadequate. See Nieves-
Rodriguez v. Peake, 22 Vet.App. 295, 302 (2008) (explaining that a medical examiner must be aware
of the relevant facts necessary to render an opinion on the medical issue at hand); Stefl v. Nicholson,
21 Vet.App. 120, 123 (2007) (to be adequate, an examination must, inter alia, be “based upon
consideration of the veteran’s prior medical history”).
Based on the foregoing, the Court concludes that the Board’s implicit finding that the July 2008 VA medical examination was adequate was not clearly erroneous and, therefore, the Board did not err in relying on it. See D’Aries v. Peake, 22 Vet.App. 97, 103 (2008) (explaining that the Court reviews the Board’s determination that a medical examination was adequate under the “clearly
8
erroneous” standard of review set forth in 38 U.S.C. § 7261(a)(4)); Ardison v. Brown, 6 Vet.App. 405, 407 (1994) (holding that the Board errs when it relies on an inadequate medical examination).

C. Other Arguments
Mr. Black also argues that the Board’s statement of reasons or bases for its decision was
inadequate for various reasons. Appellant’s Br. at 13-16. However, the Court need not address that
argument at this time because the Court has already determined that remand is warranted, and on remand the Board will necessarily provide a new statement of reasons or bases. See Mahl v. Principi, 15 Vet.App. 37, 38 (2001) (per curiam order) (“[I]f the proper remedy is a remand, there is no need to analyze and discuss all the other claimed errors that would result in a remedy no broader than a remand.”).
Mr. Black remains free to present any additional argument and evidence pertaining to his lower back claim to the Board on remand 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). The Court reminds the Board that “[a] remand is meant to entail a critical examination of the justification for [the Board’s] decision,” Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991), and must be performed in an expeditious manner in accordance with 38 U.S.C. § 7112.

III. CONCLUSION
Upon consideration of the foregoing, the portion of the March 2011 Board decision denying entitlement to service connection for residuals of a low back injury is SET ASIDE and that claim is REMANDED for readjudication consistent with this decision.

DATED: February 8, 2013
Copies to:
Robert G. Maurer, Esq.
VA General Counsel (027)
9

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1 Comment »

  1. Really good insight regarding this subject. Thank you for posting about it.

    Comment by Sugar Land Defense Law Firm — February 17, 2013 @ 11:27 am


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