Veteranclaims’s Blog

March 15, 2013

Single Judge Application: Speculative Medical Opinion; Jones v. Shinseki, 23 Vet.App. 382, 390 (2010)

Filed under: Uncategorized — veteranclaims @ 3:14 pm

Excerpt from decision below:
“Thus, before the Board can rely on an examiner’s conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board’s review of the evidence. Jones v. Shinseki, 23 Vet.App. 382, 390 (2010) (citations omitted). This Court further explained that an examiner’s claim that a particular opinion would require speculation “should reflect the limitations of knowledge in the medical community at large and not those of a particular examiner,” and that “it should be clear in the examiner’s remarks whether it cannot be determined from current medical knowledge that a specific in-service injury or disease can possibly cause the claimed condition, or that the actual cause cannot be selected from multiple potential causes.” Id. Moreover, the examiner “may also have an obligation to conduct research in the medical literature depending on the evidence in the record at the time of examination.” Id.
In the present case, the February 2011 VA examiner stated that any opinion as to whether the veteran’s basal cell carcinoma was “specifically due to sun exposure while in service is speculation, because so many years have elapsed between his time in [Vietnam] and now.” R. at 262 (capitalization altered). But from this statement it is not clear whether the examiner was asserting that, because of the number of years since Mr. Glinsmann’s service, the issue cannot be determined
from current medical knowledge, or whether the particular examiner is not qualified to render such an opinion. Nor is it apparent from the opinion whether the examiner investigated relevant medical literature when arriving at his conclusion.
Moreover, the Board did not explain its interpretation of the February 2011 VA examiner’s opinion, merely “acknowledg[ing]” his statement “that he was unable to relate the [v]eteran’s basal cell carcinoma to sun exposure in service without speculation.” R. at 21. There is no citation in the Board’s decision to Jones or any other case suggesting that the Board considered the ambiguity in the examiner’s assertion or the sufficiency of the examiner’s reasoning as to speculation. See Allday and Gilbert, both supra. It is clear, however, that the Board, by relying on the February 2011 VA examiner’s opinion, implicitly found it to be adequate. See R. at 20-21. In light of Jones, this finding of adequacy was erroneous. See D’Aries v. Peake, 22 Vet.App. 97, 103-04 (2008) (holding that whether a medical opinion is adequate is a finding of fact reviewed under the “clearly erroneous”
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standard, which means that “although there is evidence to support [the finding], the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed”).
============================

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 12-0294
CALVIN R. GLINSMANN, 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 Calvin R. Glinsmann appeals, through counsel, from an October
19, 2011, Board of Veterans’ Appeals (Board) decision, which denied service connection for (1)
cardiovascular disorder, to include as due to in-service herbicide exposure; and (2) skin cancer, to
include as due to in-service herbicide exposure.1 Record (R.) at 3-23. This appeal is timely and the
Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is
appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons set forth
below, the Court will set aside the portions of the October 19, 2011, Board decision on appeal that
1 The Board also denied service connection for hypertension; however, because Mr. Glinsmann does not present
argument with respect to that issue the Court will not address it. See DeLisio v. Shinseki, 25 Vet.App. 45, 47 (2011)
(declining to address issues not raised on appeal and affirming only those portions of the Board decision raised by
counsel that the Court concluded lacked merit). Furthermore, the Court notes that although pages five through nine of
Mr. Glinsmann’s brief challenge the denial of service connection for cardiovascular disease, the first page of his brief
indicates that he is withdrawing that issue. In December 2012, the Court ordered Mr. Glinsmann to advise whether he
was appealing that issue, but he failed to respond. The Secretary “notes that Appellant’s brief is confusing as to whether
he intended to appeal the heart condition claim or not,” but addresses the denial of service connection for a heart
condition because the veteran “presents arguments on this issue despite his asserted withdrawal.” Secretary’s Brief at
6. Because the Secretary has addressed the issue, and so that the veteran is not punished for counsel’s failure to respond
to the Court’s order, the Court will address the issue. However, counsel is reminded that he is obligated to comply with
this Court’s orders. See U.S. VET. APP. R. 38(b) (“Failure to take any step under these Rules, or to comply with an order
of the Court, may be grounds for such action as the Court deems appropriate . . . .” (emphasis added)).
denied service connection for cardiovascular disorder and skin cancer, both to include as due to inservice
herbicide exposure, and remand the set aside matters for readjudication consistent with this
decision.
I. FACTS
Mr. Glinsmann served on active duty in the U.S. Army from September 1966 to September
1968, including service in Vietnam. R. at 10, 294. Service medical records (SMRs) do not contain
any entries related to skin or heart conditions. See R. at 658-84. In January 2008, he filed claims
for service connection for, inter alia, skin cancer—specifically, basal cell carcinoma2—and a heart
condition, both of which he alleged were caused by exposure to Agent Orange.3 R. at 558. The VA
regional office (RO) denied service connection for skin cancer and a heart condition in an April 2008
rating decision. R. at 455-62. The RO noted that (1) skin cancer and a heart condition were not
conditions recognized by VA as presumptively related to Agent Orange exposure, (2) SMRs showed
no treatment for skin cancer or a heart condition while on active duty, and (3) no current scientific
or medical evidence associated skin cancer or a heart condition with Agent Orange exposure. Id.
Mr. Glinsmann filed a Notice of Disagreement and appealed to the Board. R. at 387, 453.
In a June 2010 decision, the Board found that the evidence was not sufficient to decide the
issues of service connection for skin cancer and cardiovascular disorder. R. at 372-79. The Board
observed that “[a]lthough the current appeal includes the issue of . . . service connection for a
cardiovascular disorder, medical evidence of record does not reflect a diagnosis of ischemic heart
disease[,] nor has the [v]eteran contended that he has been diagnosed with this disability.” R. at 373.
The Board remanded the matters for a VA examination to determine the nature, extent, and etiology
of a cardiovascular disorder and skin cancer and instructed the examiner to opine whether they were
“caused by, or otherwise related to, the [v]eteran’s active duty, including in-service exposure to
2 Basal cell carcinoma is “the most common form of skin cancer, consisting of an epithelial tumor of the skin
originating from neoplastic differentiation of basal cells; many patients have histories of exposure to ionizing radiation,
and less often of arsenic poisoning. These skin cancers are much more common in light-skinned individuals than in the
darker-skinned, and in older than younger persons . . . .” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 290 (32d ed.
2012). This decision uses the terms “skin cancer” and “basal cell carcinoma” synonymously.
3 As a veteran who served in Vietnam during the Vietnam era, Mr. Glinsmann is presumed to have been exposed
to certain herbicide agents, including Agent Orange. See 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6) (2012).
2
Agent Orange.” R. at 377.
In February 2011, Mr. Glinsmann underwent a VA examination. R. at 260-65. With respect
to a cardiovascular disorder, the examiner noted that the veteran had been diagnosed with “sick sinus
syndrome and atrial fibrillation, but . . . could not find specific diagnoses of coronary artery disease
or ischemic disease.” R. at 262. “[A]t this point in time,” the examiner continued, “it is unknown
as to whether he has true ischemic heart disease, because his medical records are not affording us
any further insight into this.” Id. Therefore, the examiner could not “comment[ ] . . . as to whether
[Mr. Glinsmann] has true and specific ischemic heart disease that would be related to [A]gent
[O]range exposure.” Id.
The examiner’s report as to skin cancer is as follows:
Very briefly, this gentleman has had a number of basal cell cancers removed from the
scalp and left ear in the past. As far as this examiner is aware, there is no specific
listing of presumptive conditions that includes basal cell skin cancer related to Agent
Orange exposure. Therefore, this examiner cannot find any valid medical reasoning
that would show basal cell cancers of the scalp and left ear are caused by [A]gent
[O]range exposure, as these are not presumptive conditions. The most likely cause
of basal cell cancers usually comes from excessive sun exposure and other issues, to
include natural progression of disease with age. However, the current list of
presumptive conditions does not include basal cell carcinoma. There are no
aggravation issues either. Therefore, even though he does have a number of scars
about the scalp that were noted on today’s physical examination, no other findings or
examinations are needed, because basal cell carcinoma is not a presumptive condition
secondary to [A]gent [O]range exposure, and this examiner feels there is no
relationship between either of these. Whether these are SPECIFICALLY due to sun
exposure while INSERVICE is speculation, because so many years have elapsed
between his time in [Vietnam], and now.
Id.; see R. at 122-97 (postservice private and VA cardiac treatment records, diagnosing, inter alia,
atrial fibrillation and sick sinus syndrome).
Upon reviewing the examiner’s report, the RO determined that it was not clear whether Mr.
Glinsmann did or did not have ischemic heart disease and sought a medical opinion as to whether
cardiac problems—such as atrial fibrillation and congestive heart failure—could be part of the
ischemic heart disease process. R. at 119, 121. A subsequent VA medical opinion found that the
evidence of record did not support a diagnosis of ischemic heart disease. R. at 115. In a May 2011
rating decision, the RO denied service connection for ischemic heart disease, previously claimed as
3
heart condition, for purposes of retroactive benefits. R. at 88-97. The following month the RO
issued a Supplemental Statement of the Case continuing its denial of service connection for skin
cancer and a heart condition. R. at 63-67.
In July 2011, the RO issued a deferred rating decision, determining once again that
clarification was needed because the February 2011 VA examination did not address adequately
“whether the veteran’s atrial fibrillation and sick sinus syndrome [are] as likely as not caused by, or
otherwise related to, the veteran’s active duty, including exposure to herbicides.” R. at 47; see also
R. at 46. A few days after the deferred rating decision was issued, the February 2011 VA examiner
offered a supplemental medical opinion. He opined that he could not find “any specific
cardiovascular disease that is at least as likely as not caused by or otherwise related to his military
service, to include exposure to Agent Orange.” R. at 42. “The reasoning,” the examiner continued,
“is because he does not appear to have specific ischemic heart disease, according to current
presumptive guidelines. He does appear to have a cardiovascular issue, which is his atrial fibrillation
and sick sinus syndrome, but again, these do not pertain to current guidelines related to presumptive
conditions.” Id.
The Board issued the decision currently on appeal on October 19, 2011, denying service
connection for skin cancer and a cardiovascular disorder, both to include as due to in-service
herbicide exposure. R. at 3-23. The Board first found that the February and July 2011 opinions
offered by the examiner were adequate. R. at 6. Next, the Board found that basal cell carcinoma was
not presumptively related to service based on exposure to Agent Orange. R. at 21. Relying on the
February 2011 VA examiner’s opinion, the Board determined that skin cancer was not service
connected on a direct basis:
There is no nexus evidence to support a finding of service connection on a direct
basis. As noted above, no medical professional has provided any opinion that the
[v]eteran has skin cancer that is related to his military service, including being due
to herbicide exposure. The only medical opinion of record, that of the February 2011
VA examiner, indicates that the [v]eteran’s basal cell carcinoma is not related to his
military service. That opinion is uncontradicted and is supported by a rationale. . . .
The Board acknowledges that the February 2011 examiner opined that he was unable
to relate the [v]eteran’s basal cell carcinoma to sun exposure in service without
speculation since so many years had elapsed between the [v]eteran’s service and the
4
present. No medical professional has provided any opinion to indicate that sun
exposure in service caused basal cell carcinoma, nor has the [v]eteran himself
contended that he has skin cancer related to in-service sun exposure.
Id. Finally, with respect to cardiovascular disorder, the Board acknowledged that Mr. Glinsmann
was presumed to have been exposed to Agent Orange during service but determined that he did not
have a diagnosis of ischemic heart disease entitled to presumptive service connection. R. at 17.
Although observing that the veteran did have heart problems such as atrial fibrillation and sick sinus
syndrome, the Board relied on the July 2011 VA examiner’s opinion that these conditions were not
related to service. R. at 18. This appeal followed.
II. ANALYSIS
A. Cardiovascular Disorder
Mr. Glinsmann argues, inter alia, that the July 2011 VA medical opinion was inadequate
because it failed to address the issue of direct service connection for cardiovascular disorder.
Appellant’s Brief (Br.) at 8-9. The Court agrees.
The Secretary’s duty to assist includes “providing a medical examination or obtaining a
medical opinion when such an examination or opinion is necessary to make a decision on the claim.”
38 U.S.C. § 5103A(d). “[O]nce the Secretary undertakes the effort to provide an examination, . . .
he must provide an adequate one.” Barr v. Nicholson, 21 Vet.App. 303, 311 (2007). An
examination is adequate “where it is based upon consideration of the veteran’s prior medical history
and examinations and also describes the disability, if any, in sufficient detail so that the Board’s
‘evaluation of the claimed disability will be a fully informed one.'” Stefl v. Nicholson, 21 Vet.App.
120, 123 (2007) (quoting Ardison v. Brown, 6 Vet.App. 405, 407 (1994)).
In Stefl, this Court clarified that “[t]he availability of presumptive service connection for
some conditions based on exposure to Agent Orange does not preclude direct service connection for
other conditions based on Agent Orange exposure.” Id.; accord Polovick v. Shinseki, 23 Vet.App.
48, 52-53 (2009); cf. Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994) (noting that, despite
“an exclusive catalogue of [radiogenic] maladies triggering presumptive service connection, . . .
[v]eterans retain the opportunity to show direct service connection by establishing direct actual
causation”). To that end, “[a] medical nexus opinion finding a condition is not related to service
5
because the condition is not entitled to presumptive service connection, without clearly considering
direct service connection, is inadequate on its face.” Stefl, 21 Vet.App. at 124. Moreover, a bald
statement that a condition is not related to service is not sufficient: “[A] mere conclusion by a
medical doctor is insufficient to allow the Board to make an informed decision as to what weight to
assign to the doctor’s opinion.” Id. at 125.
Here, the July 2011 VA examiner opined that he could not find “any specific cardiovascular
disease that is at least as likely as not caused by or otherwise related to [Mr. Glinsmann’s] military
service, to include exposure to Agent Orange[,] . . . because he does not appear to have specific
ischemic heart disease, according to current presumptive guidelines.” R. at 42. This is
indistinguishable from the opinion in Stefl that the Court found “inadequate on its face.”
21 Vet.App. at 124. Similarly, to the extent the examiner’s concluding statement—”nothing in his
military records that would indicate these current cardiovascular diseases are related to military
service” (R. at 43)—could be interpreted as addressing direct service connection, it is no better than
the “mere conclusion” offered by the examiner in Stefl and equally “insufficient to allow the Board
to make an informed decision as to what weight to assign to the doctor’s opinion.” Stefl, 21 Vet.App.
at 125. The Board erred in relying on this inadequate opinion, which did not address sufficiently the
issue of direct service connection for Mr. Glinsmann’s cardiovascular disorder. Therefore, remand
is necessary for the Board to correct this defect. See Tucker v. West, 11 Vet.App. 369, 374 (1998)
(“[W]here 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, a remand is the
appropriate remedy.”).
B. Skin Cancer
It is clear from review of the February 2011 VA examiner’s opinion that he committed the
same Stefl error with respect to the claim for service connection for skin cancer. Apart from a
passing reference to aggravation, the examiner focused exclusively on the fact that skin cancer, i.e.,
basal cell carcinoma, is not listed as a disease presumptively caused by Agent Orange exposure. R.
at 262. Indeed, because skin cancer is not a recognized presumptive Agent Orange disease, the
examiner suggested that “no other findings or examinations are needed.” Id. The examiner’s failure
to address the probability of a link between skin cancer and service on a direct basis, and the Board’s
6
reliance on this examiner’s opinion, contrary to Stefl, is grounds for remand of the skin cancer claim.
See Tucker, supra. In addition, to the extent that his statement—”this examiner feels there is no
relationship between either of these”—could be interpreted as addressing direct service connection,
such a statement is too cursory to qualify as an adequate medical opinion. See Stefl, 21 Vet.App. at
125 (“[A] mere conclusion by a medical doctor is insufficient to allow the Board to make an
informed decision as to what weight to assign to the doctor’s opinion.”).
Mr. Glinsmann argues further that, to the extent that the February 2011 VA examiner raised
the issue of whether the veteran’s basal cell carcinoma might have been caused by sun exposure
during service, VA had a duty to assist him in developing this theory of service connection.
Appellant’s Br. at 10. The Court will address this argument in order to provide guidance and ensure
a proper decision on remand. See Quirin v. Shinseki, 22 Vet.App. 390, 395 (2009).
The Board is obligated to consider all theories of a claim that are raised by the record. See
Robinson v. Mansfield, 21 Vet.App. 545, 553 (2008), aff’d sub nom. Robinson v. Shinseki, 557 F.3d
1355 (Fed. Cir. 2009). “However, . . . ‘[w]here a fully developed record is presented to the Board
with no evidentiary support for a particular theory of recovery, there is no reason for the Board to
address or consider such a theory.'” Massie v. Shinseki, 25 Vet.App. 123, 129 (2011) (quoting
Robinson, 557 F.3d at 1361). According to Mr. Glinsmann, the examiner’s observation raised the
issue of whether basal cell carcinoma might be proved on the basis of direct service connection but
VA failed to explore this possible avenue for his claim. Appellant’s Br. at 10-11. Remand is
necessary, he maintains, to determine whether his carcinoma was caused by “prolonged exposure to
sunlight in tropical regions.” Id. This argument, in turn, depends on whether the February 2011 VA
examiner raised the theory of service connection based on sun exposure and clearly opined against
such a theory, or simply raised the theory and did not venture a clear etiological opinion.
This Court has discussed the adequacy of a medical opinion where the examiner asserts he
or she cannot offer an opinion without speculating as follows:
An examiner’s conclusion that a diagnosis or etiology opinion is not possible without
resort to speculation is a medical conclusion just as much as a firm diagnosis or a
conclusive opinion. However, a bald statement that it would be speculative for the
examiner to render an opinion as to etiology or diagnosis is fraught with ambiguity.
For example, it is not clear whether the examiner lacks the expertise to render such an opinion, or whether some additional testing or information is needed, and possibly
7

available, that would permit such an opinion, either of which would render the
opinion inadequate for resolving the claim. Thus, before the Board can rely on an examiner’s conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board’s review of the evidence. Jones v. Shinseki, 23 Vet.App. 382, 390 (2010) (citations omitted). This Court further explained that
an examiner’s claim that a particular opinion would require speculation “should reflect the limitations of knowledge in the medical community at large and not those of a particular examiner,” and that “it should be clear in the examiner’s remarks whether it cannot be determined from current medical knowledge that a specific in-service injury or disease can possibly cause the claimed condition, or
that the actual cause cannot be selected from multiple potential causes.” Id. Moreover, the examiner “may also have an obligation to conduct research in the medical literature depending on the evidence in the record at the time of examination.” Id.
In the present case, the February 2011 VA examiner stated that any opinion as to whether the veteran’s basal cell carcinoma was “specifically due to sun exposure while in service is speculation, because so many years have elapsed between his time in [Vietnam] and now.” R. at 262 (capitalization altered). But from this statement it is not clear whether the examiner was asserting that, because of the number of years since Mr. Glinsmann’s service, the issue cannot be determined
from current medical knowledge, or whether the particular examiner is not qualified to render such an opinion. Nor is it apparent from the opinion whether the examiner investigated relevant medical literature when arriving at his conclusion.
Moreover, the Board did not explain its interpretation of the February 2011 VA examiner’s opinion, merely “acknowledg[ing]” his statement “that he was unable to relate the [v]eteran’s basal cell carcinoma to sun exposure in service without speculation.” R. at 21. There is no citation in the Board’s decision to Jones or any other case suggesting that the Board considered the ambiguity in the examiner’s assertion or the sufficiency of the examiner’s reasoning as to speculation. See Allday and Gilbert, both supra. It is clear, however, that the Board, by relying on the February 2011 VA examiner’s opinion, implicitly found it to be adequate. See R. at 20-21. In light of Jones, this finding of adequacy was erroneous. See D’Aries v. Peake, 22 Vet.App. 97, 103-04 (2008) (holding
that whether a medical opinion is adequate is a finding of fact reviewed under the “clearly erroneous”
8

standard, which means that “although there is evidence to support [the finding], the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed”).

III. CONCLUSION
On remand, the Board must reexamine the evidence of record and conduct additional
development necessary to adjudicate the claim. See Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991)(“If the medical evidence of record is insufficient, or . . . of doubtful weight or credibility, the [Board] is always free to supplement the record by seeking an advisory opinion, ordering a medical examination[,] or citing recognized medical treatises in its decisions that clearly support its ultimate conclusions.”); see also Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991) (explaining that “[a] remand is meant to entail a critical examination of the justification for [the Board’s] decision”). Mr. Glinsmann may present any additional arguments he wishes to the Board upon readjudication. See Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam order).
Upon consideration of the foregoing, the portions of the October 19, 2011, Board decision on appeal are SET ASIDE and the matters are REMANDED for readjudication consistent with this decision.
DATED: March 12, 2013
Copies to:
Calvin Hansen, Esq.
VA General Counsel (027)
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