Veteranclaims’s Blog

August 8, 2013

Single Judge Application; Inadequate Medical Conclusion; Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008)

Excerpt from decision below:

“Although “[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, a medical examination report or opinion must “sufficiently inform the Board of a medical expert’s judgment on a medical question and the essential rationale for that opinion.” Monzingo v. Shinseki, 26 Vet.App. 97, 105 (2012). In other words, the examiner must provide “not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.” Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008).
============================

The Board explained in its May 2009 remand order that Mr. Watkins’s claim for service connection for heart disease included the theory that his heart problems began in service, as evidenced by the 23 in-service blood pressure readings reflecting prehypertension. R. at 675 (May 2009 Board remand acknowledging those in-service test results and stating that the veteran “cited to medial treatise evidence that such readings were considered to be indicative of prehypertension”); see also R. at 8 (May 2012 Board decision currently on appeal stating that “the medical treatise information cited by the Veteran’s attorney purports to show a link between his current heart disease and elevated/pre-hypertension blood pressure readings in service”). The Board concluded that, in light of those readings and the medical treatise evidence submitted by Mr. Watkins, a VA medical examination was necessary to assess the likelihood of a relationship between his current heart disease and service, including consideration of the prehypertension issue. R. at 677. Despite these clear instructions, the January 2011 VA examiner listed the results of the veteran’s in-service blood pressure tests without addressing whether any of those readings indicated prehypertension or whether in-service prehypertension might be related to his postservice hypertension and subsequent heart problems. R. at 73. Rather, the examiner focused exclusively on two blood pressure readings that meet VA’s definition of “hypertension,” providing reasons why those particular readings were insufficient to demonstrate a link between Mr. Watkins’s heart disease and service.11 See R. at 72-73.

The examiner’s analysis leaves unanswered the critical medical question that prompted the Board to seek the January 2011 VA medical examination in the first place–namely, whether and to
what extent prehypertensive blood pressure readings in service demonstrate a relationship between the veteran’s current heart disease and his service. See R. at 675-77.
Although “there is no reasons or bases requirement imposed on examiners,” Acevedo v. Shinseki, 25 Vet.App. 286, 293 (2012),

11To the extent that the examiner summarily declared that “no [blood pressure] reading is even borderline” (R. at 72) and was using that term in the medical sense (see supra note 7), she did not explain how she reached that conclusion in light of the listed blood pressure readings that satisfy the definition of prehypertension proffered by the veteran prior to the Board’s May 2009 decision and supported by the medical treatise evidence of record. See Nieves-
Rodriguez, supra.
7

an examiner was not free to ignore the precise medical question that the Board deemed necessary to adjudicate a claim. See Monzingo, Stefl, Ardison, and Green, all supra.

In short, the January 2011 VA medical examiner’s failure to answer the question posed by the Board in its May 2009 remand order prevented the Board from being sufficiently informed about the onset and course of the veteran’s claimed heart disease. The Court therefore concludes that the Board failed to ensure substantial compliance with its May 2009 remand order. See Donnellan, Dyment, and Stegall, all supra.

This error is prejudicial because, as the Board stated in its decision on appeal, “neither the Veteran, the Veteran’s attorney, nor VA adjudicators” was competent to opine as to whether prehypertensive blood pressure readings in service were indicative of a link between Mr. Watkins’s current heart disease and service. R. at 8;

============================

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 12-1954
RICKY L. WATKINS, 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 Ricky L. Watkins appeals, through counsel, a May 4, 2012, Board of Veterans’ Appeals (Board) decision denying service connection for hypertensive cardiomyopathy, status-1 post myocardial infarction, stenting, mitral valve prolapse,2 and implantable cardioverter defibrillator (ICD) implant (claimed as heart disease). Record (R.) at 3-14. This appeal
is timely and the Court has jurisdiction to 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 May 2012 Board decision and remand the matter for further development and readjudication
consistent with this decision.

1″Cardiomyopathy” is “a disease that weakens and enlarges the heart muscle,” which “makes it harder for [the]
heart to pump blood and deliver it to the rest of [the] body. Cardiomyopathy can lead to heart failure.” Cardiomyopathy,
MAYO CLINIC, http://www.mayoclinic.com/health/cardiomyopathy/DS00519 (last visited July 30, 2013).

2The “mitral valve” is “the valve between the left atrium and left ventricle of the heart.” DORLAND’S
ILLUSTRATED MEDICAL DICTIONARY 2021 (32d ed. 2012) [hereinafter DORLAND’S]. During mitral valve prolapse, the
mitral valve “bulges (prolapses) upward, or back into the atrium,” which “sometimes leads to blood leaking backward
into the left atrium, a condition called mitral valve regurgitation.” Mitral Valve Prolapse, MAYO CLINIC,
http://www.mayoclinic.com/health/mitral-valve-prolapse/DS00504 (last visited July 30, 2013).

I. FACTS
Mr. Watkins served on active duty in the U.S. Air Force from July 1980 to August 1991 and
served in the Air Force Reserve thereafter. R. at 332. He underwent numerous blood pressure tests during service, with systolic pressure readings ranging from 100 to 140 and diastolic pressure
readings ranging from 62 to 92. R. at 1313, 1474, 1477, 1480, 1482, 1487, 1489, 1491, 1497, 1499-1500, 1505, 1512, 1518, 1526, 1528-29, 1533-34, 1540, 1556-57, 1562, 1564, 1570, 1576, 1580, 1616, 1620, 1622; see R. at 73 (list of blood pressure test results between January 5, 1981, and May 1, 1993). The highest blood pressure readings were taken in October 1982, when he was treated for
a laceration of the finger (R. at 1534), and in November 1987, when he was treated for dehydration (R. at 1529). Specifically, in October 1982, his blood pressure was 136/90, and in November 1987,
his blood pressure was 130/80 while lying down, 120/90 while sitting, and 140/92 while standing. R. at 1529, 1534. In addition, in March 1984, Mr. Watkins was advised to followup with a physician
regarding hyperlipidemia 3 (R. at 1540), and, in March 1988, he was noted to have “[e]levated cholesterol” (R. at 1487, 1526).
In June 2003, Mr. Watkins was hospitalized with severe anterior chest pain with nausea, sweating, and shortness of breath. R. at 427. He suffered an acute inferior wall myocardial
infarction complicated by ventricular fibrillation and a stent was implanted in his artery. Id. He was discharged from the hospital with a diagnosis of hypertension, among other conditions. Id. At a
followup examination later that month, the veteran was diagnosed with arteriosclerotic heart disease,4 hypertension, and nicotine addiction. R. at 1112.
In August 2003, Mr. Watkins filed a claim for, inter alia, service connection for a heart condition. R. at 1157-59. In January 2004, while his claim was being processed by a VA regional
office (RO), the veteran was hospitalized with symptoms of congestive heart failure.5 R. at 487. He
3″Hyperlipidemia” is “a general term for elevated concentrations of any or all of the lipids in the plasma.”
DORLAND’S at 891.
4″Arteriosclerotic heart disease,” also known as “ischemic heart disease,” is “any of a group of acute or chronic
cardiac disabilities resulting from insufficient supply of oxygenated blood to the heart.” DORLAND’S at 536.
5″Congestive heart failure” is “a clinical syndrome due to heart disease, characterized by breathlessness and
abnormal sodium and water retention, often resulting in edema.” DORLAND’S at 677.
2

was discharged from the hospital later that month with diagnoses of, inter alia, recent onset
congestive heart failure, atherosclerotic heart disease,6 and hypertension. R. at 488, 1063.
In June 2004, the RO denied service connection for a heart condition. R. at 1101-05. Mr.
Watkins filed a timely Notice of Disagreement with that decision (R. at 1053) and subsequently
perfected his appeal to the Board (R. at 964).
In October 2005, Mr. Watkins sought treatment for shortness of breath on exertion and was
diagnosed with severe mitral regurgitation and cardiomyopathy. R. at 340. The next month, he
underwent a successful mitral valve replacement. Id. In July 2006, Mr. Watkins was referred to a
cardiologist to discuss the possible implantation of an ICD as “a primary prevention of sudden
cardiac death” (R. at 545); an ICD was implanted the following month (R. at 544-46). The veteran’s
discharge diagnoses after that procedure included ischemic cardiomyopathy, congestive heart failure,
coronary artery disease, and hypertension. R. at 544.
In January 2008, the Board denied service connection for heart disease, finding that there was
no evidence that any cardiac condition began in or was related to service. R. at 727-47. Mr. Watkins
appealed that decision to the Court and, in December 2008, the Court remanded the claim pursuant
to a joint motion for remand. R. at 683-90, 712.
In May 2009, the veteran was seen at a VA medical center and was assessed with, inter alia,
ischemic cardiomyopathy, congestive heart failure, coronary artery disease, hypertension, and
hyperlipidemia. R. at 156-60. Later that month, the Board remanded his claim for additional
development, to include a VA medical examination. R. at 673-79. The Board noted that Mr.
Watkins’s service medical records (SMRs) “reflected numerous blood pressure readings ranging from
120 to 134 systolic pressure, and 80 to 92 diastolic pressure,” which were “considered to be
indicative of pre-hypertension” per medical treatise evidence from the National Heart, Lung, and
Blood Institute7 cited by the veteran. R. at 675. The Board concluded that, in light of that evidence,
6″Atherosclerosis” is “a common form of arteriosclerosis with formation of deposits of yellowish plaques
(atheromas) containing cholesterol, lipoid material, and lipophages in the intima and inner media of large and mediumsized
arteries.” DORLAND’S at 172.
7The medical evidence cited in the May 2009 Board decision defines “prehypertension” as “blood pressure
between 120/80 mmHG and 139/89 mmHG” and states that individuals with prehypertension “are likely to develop
[hypertension] in the future.” What Are High Blood Pressure and Prehypertension?, NAT’L HEART, LUNG, & BLOOD
INST., NAT’L INSTS. OF HEALTH, http://www.nhlbi.nih.gov/hbp/hbp/whathbp.htm (last visited July 30, 2013). The terms
3

a VA medical examination was necessary to determine whether the veteran’s current heart disease
“is of service onset, is otherwise related thereto, or was present within one year of service separation,
to include consideration of his blood pressure readings therein which it has been contended were
evidence of pre-hypertension.” R. at 677 (emphasis added).
Mr. Watkins underwent the ordered VA heart examination in January 2011. R. at 72-82.
The examiner reviewed the claims file, including the veteran’s SMRs, and listed the results of his
blood pressure tests from January 5, 1981, to May 1, 1993. R. at 72-73. She explained that, “[w]ith
the exception of two datapoints, one at the time of a laceration, the other when dehydrated, no [blood
pressure] reading is even borderline.”8 R. at 72. The examiner then chronicled Mr. Watkins’s
cardiac history (R. at 73-78), noting that it was “not clear when the veteran was diagnosed with
[hypertension], but this was not recorded as a condition in 1996 per C&P [VA compensation and
pension] records” (R. at 73). She also performed a physical examination and various clinical tests,
but was unable to conduct a stress test because Mr. Watkins’s ejection fraction9 was too low. R. at
79-80. The examiner diagnosed hypertensive cardiomyopathy, status-post myocardial infarction,
stenting, mitral valve replacement, and ICD implant, which she concluded was not caused by or a
result of service. R. at 81. She opined: “The patient did not have hypertension during the service
or as late as 1993 (2 years post discharge from service[)]. His [blood pressure] readings in service
were normal with the exception of two borderline values associated with a laceration and
dehydration respectively.”10 R. at 81-82.
In December 2011, the RO issued a Supplemental Statement of the Case (SSOC) that
continued to deny his claim. R. at 58-71. Later that month, Mr. Watkins responded to the SSOC,
“prehypertension” and “borderline hypertension” are interchangeable and refer to the same range of blood pressure
readings. See DORLAND’S at 1510 (“The term [prehypertension] replaces the older classifications called borderline
hypertension.”).
8The examiner did not define “borderline” and it is unclear whether she is using that term colloquially or
medically–i.e., prehypertensive (see supra note 7).
9″Ejection fraction” is “the proportion of the volume of blood in the ventricles at the end of diastole [(the
dilatation of the heart)] that is ejected during systole [(the contraction of the heart)].” DORLAND’S at 511, 740, 1865.
10The examiner does not specify what definition of “hypertension” she is using. For VA benefits purposes, “the
term hypertension means that the diastolic blood pressure is predominantly 90 mm. or greater.” 38 C.F.R. § 4.104,
Diagnostic Code 7101, Note (1) (2013).
4

arguing that the January 2011 VA examination was inadequate because the examiner did not sufficiently explain her negative linkage opinion in light of in-service notations of elevated
cholesterol and prehypertensive blood pressure readings. R. at 40-42.

In May 2012, the Board issued the decision currently on appeal, which denied serviceconnection for hypertensive cardiomyopathy, status-post myocardial infarction, stenting, mitral valve
prolapse, and ICD implant. R. at 3-14. The Board rejected Mr. Watkins’s arguments regarding the adequacy of the January 2011 VA medical examination, stating that neither the veteran nor his
representative was competent to interpret the results of the in-service blood pressure tests. R. at 8.
The Board also explained that, to the extent that “the medical treatise information cited by the
Veteran’s attorney purports to show a link between his current heart disease and elevated/prehypertension blood pressure readings in service,” the treatise “neither addresses the
specific facts of the Veteran’s case, nor provides a basis for a medical opinion of record.” Id. The Board concluded that the January 2011 VA examination was adequate, and the examiner’s negative nexus opinion was highly probative, because it was based on a thorough review of the claims folder, including 31 in-service blood pressure readings, and contained a comprehensive and detailed
rationale. R. at 8, 13-14. The Board also found that there was no other competent evidence of record regarding a linkage between Mr. Watkins’s heart disease and his service and therefore denied
his claim. R. at 15. This appeal followed.

II. ANALYSIS
Mr. Watkins argues that the Board clearly erred in relying on the January 2011 VA examination because it was inadequate. See Appellant’s Brief (Br.) at 8-14. Specifically, he asserts
that the examiner failed to provide an adequate rationale for her opinion that the veteran’s current heart disease was not related to service because she did not account for or explain the significance
of the SMRs containing 23 prehypertensive blood pressure readings and notations of elevated cholesterol and possible hyperlipidemia as directed by the Board in its May 2009 remand order. See
id. at 9, 12-13.
The Secretary responds that the examiner “cite[d] most” of the disputed blood pressure readings in her examination report and the other readings are “equivalent to the others cited by the
5

examiner[,] which she did not find to be borderline or pre-hypertensive.” Secretary’s Br. at 11. He also asserts that Mr. Watkins’s argument regarding the examiner’s alleged failure to address the notations of elevated cholesterol and hyperlipidemia must fail because “there is no reasons-or-bases requirement imposed on a medical examiner,” and, in any event, the examiner “noted [the veteran’s] past medical history of hyperlipidemia and that he was taking a statin . . . for his elevated cholesterol.” Id. at 14. Essentially, the Secretary argues that mere acknowledgment of that evidence was enough to make the examiner’s report adequate. See id. at 14-15. None of the Secretary’s arguments are persuasive.
A remand by the Board confers on the claimant a legal right to compliance with the remand order. Stegall v. West, 11 Vet.App. 268, 271 (1998). Substantial compliance, not strict compliance,
with the remand order is required. See Donnellan v. Shinseki, 24 Vet.App. 167, 176 (2010); Dyment v. West, 13 Vet.App. 141, 147 (1999). When a claim is remanded to provide the claimant with a VA medical examination, the Secretary must ensure that the examination provided is adequate. See Barr v. Nicholson, 21 Vet.App. 303, 311 (2007) (“[O]nce the Secretary undertakes the effort to provide an examination when developing a service-connection claim . . ., he must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided.”).
A VA medical examination is adequate “where it is based upon consideration of the veteran’s prior medical history and examinations and also describes the disability . . . 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)) (internal quotation marks omitted); see Green v. Derwinski, 1 Vet.App. 121, 124 (1991). Although “[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, a medical examination report or opinion must “sufficiently
inform the Board of a medical expert’s judgment on a medical question and the essential rationale for that opinion.” Monzingo v. Shinseki, 26 Vet.App. 97, 105 (2012). In other words, the examiner
must provide “not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.” Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008).
“If a
diagnosis is not supported by the findings on the examination report or if the report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for
6

evaluation purposes.” 38 C.F.R. § 4.2 (2013). The Court reviews the Board’s determination that a medical examination or opinion was adequate under the “clearly erroneous” standard of review set
forth in 38 U.S.C. § 7261(a)(4). See D’Aries v. Peake, 22 Vet.App. 97, 104 (2008).
The Board explained in its May 2009 remand order that Mr. Watkins’s claim for service connection for heart disease included the theory that his heart problems began in service, as evidenced by the 23 in-service blood pressure readings reflecting prehypertension. R. at 675 (May 2009 Board remand acknowledging those in-service test results and stating that the veteran “cited to medial treatise evidence that such readings were considered to be indicative of prehypertension”); see also R. at 8 (May 2012 Board decision currently on appeal stating that “the medical treatise
information cited by the Veteran’s attorney purports to show a link between his current heart disease and elevated/pre-hypertension blood pressure readings in service”). The Board concluded that, in light of those readings and the medical treatise evidence submitted by Mr. Watkins, a VA medical examination was necessary to assess the likelihood of a relationship between his current heart disease
and service, including consideration of the prehypertension issue. R. at 677. Despite these clear
instructions, the January 2011 VA examiner listed the results of the veteran’s in-service blood
pressure tests without addressing whether any of those readings indicated prehypertension or whether
in-service prehypertension might be related to his postservice hypertension and subsequent heart
problems. R. at 73. Rather, the examiner focused exclusively on two blood pressure readings that
meet VA’s definition of “hypertension,” providing reasons why those particular readings were
insufficient to demonstrate a link between Mr. Watkins’s heart disease and service.11 See R. at 72-73.
The examiner’s analysis leaves unanswered the critical medical question that prompted the Board to seek the January 2011 VA medical examination in the first place–namely, whether and to
what extent prehypertensive blood pressure readings in service demonstrate a relationship between the veteran’s current heart disease and his service. See R. at 675-77. Although “there is no reasons or bases requirement imposed on examiners,” Acevedo v. Shinseki, 25 Vet.App. 286, 293 (2012), an

11To the extent that the examiner summarily declared that “no [blood pressure] reading is even borderline” (R.
at 72) and was using that term in the medical sense (see supra note 7), she did not explain how she reached that
conclusion in light of the listed blood pressure readings that satisfy the definition of prehypertension proffered by the
veteran prior to the Board’s May 2009 decision and supported by the medical treatise evidence of record. See Nieves-
Rodriguez, supra.
7

examiner was not free to ignore the precise medical question that the Board deemed necessary to adjudicate a claim. See Monzingo, Stefl, Ardison, and Green, all supra. In short, the January 2011 VA medical examiner’s failure to answer the question posed by the Board in its May 2009 remand order prevented the Board from being sufficiently informed about the onset and course of the
veteran’s claimed heart disease. The Court therefore concludes that the Board failed to ensure substantial compliance with its May 2009 remand order. See Donnellan, Dyment, and Stegall, all
supra.
This error is prejudicial because, as the Board stated in its decision on appeal, “neither the Veteran, the Veteran’s attorney, nor VA adjudicators” was competent to opine as to whether prehypertensive blood pressure readings in service were indicative of a link between Mr. Watkins’s current heart disease and service. R. at 8
; see 38 U.S.C. § 7261(b)(2) (requiring the Court to “take due account of the rule of prejudicial error”); Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991)(holding that the Board “may consider only independent medical evidence to support [its] findings” and may not offer its own unsubstantiated medical opinion to fill in gaps in the record). Remand is therefore required to provide the veteran with an adequate medical opinion addressing the
prehypertension issue that the Board previously determined was necessary to fully and fairly adjudicate his claim. See Barr, supra; 38 C.F.R. § 4.2 (noting that it is the Board’s obligation to
return an examination report as inadequate when “the report does not contain sufficient detail”); see also 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”).
Given the foregoing disposition, the Court need not address whether the examiner’s failure to discuss the in-service notations of elevated cholesterol and possible hyperlipidemia constitute an
independent basis for remand of his claim for service connection for hypertensive cardiomyopathy. 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.”). On remand, Mr. Watkins is free to present that argument, as
well as any additional arguments and evidence, to the Board 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
8
(2002); Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam order) (“A narrow decision preserves
for the appellant an opportunity to argue those claimed errors before the Board at the readjudication,
and, of course, before this Court in an appeal, should the Board rule against him.”). 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 May 4, 2012, Board decision is SET ASIDE and
the matter is REMANDED for further development and readjudication consistent with this decision.
DATED: August 7, 2013
Copies to:
Virginia A. Girard-Brady, Esq.
VA General Counsel (027)
9

Advertisements

Leave a Comment »

No comments yet.

RSS feed for comments on this post. TrackBack URI

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Create a free website or blog at WordPress.com.

%d bloggers like this: