Veteranclaims’s Blog

April 15, 2014

Single Judge Application, Board Relied Upon Overruled Caselaw; King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012); cf. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006)


Excerpt from decision below:

“The Board relied on Routen and Espiritu, both supra, for this proposition. Id. To the extent these cases suggest that lay evidence is categorically incompetent with respect medical issues, including causation, they have been overruled by the U.S. Court of Appeals for the Federal Circuit (Federal Circuit). See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012); cf. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (both discussing when lay evidence may be competent on a particular issues). “The governing statute, regulation,  and our precedent,”the Federal Circuit stated, “make clear that competent lay evidence may be used to establish a medical condition, including causation.” King, 700 F.3d at 1344. Of course, it remains for the Board to determine in this particular case whether lay evidence is “competent and sufficient” to address a specific medical issue. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). But when the Board fails to cite any of the Federal Circuit precedent mentioned above and states categorically that “the [v]eteran is not competent to provide an opinion requiring medical knowledge or a clinical examination by a medical professional” (R. at 12), the Court is unable to determine whether the Board considered the lay evidence in this case correctly. See Gilbert, supra (noting that the Board’s statement of reasons or bases must be sufficient to facilitate judicial review). This is especially so in this case, where the only apparent criteria relevant to the February 2012 examiner’s opinion was the nature of Mr.
8

Nikkila’s symptoms both before and after the September 2003 MVA, a matter on which the Board found that the veteran was competent to opine. See R. at 12 (“The Board acknowledges that the[v]eteran was competent to report symptoms he experienced, such as headaches . . . .”). “

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

—————————————————-
Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 12-3595
DALE E. NIKKILA, 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 Dale E. Nikkila appeals through counsel a November
20, 2012,
Board of Veterans’ Appeals (Board) decision denying an increased
disability evaluation in excess
of 30% for cephalgia—that is, headaches—and entitlement to a total
disability evaluation based on
individual unemployability (TDIU). Record (R.) at 3-17. 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. See Frankel v. Derwinski, 1 Vet.App. 23,
25-26 (1990). For the
reasons set forth below, the Court will set aside the November 2012 Board
decision and remand the
matter for readjudication consistent with this decision.
I. FACTS
Mr. Nikkila served on active duty in the U.S. Marine Corps from June 1985
to June 1989.
R. at 143. In December 1990, the VA regional office (RO) granted service
connection for cervical
strain with headaches, resulting from an October 1988 in-service motor
vehicle accident (MVA);
rated him byanalogyunderDiagnostic Code(DC)8100 (migraines); and assigned
a 10% evaluation.
R. at 2518-23; see 38 C.F.R. § 4.124a, DC 8100 (2013).

In the following years, the veteran underwent treatment at a VA medical
center. In a March
2000 VA treatment record, Mr. Nikkila stated that he thought his headaches
were “worse,” in that
he was currently suffering from a headache lasting three days; he
described his headache pain as
“constant.” R. at 1424. An October 2002 treatment addendum remarked that
the veteran continued
to have headaches,”whicharenothingnew”(R.at999),and a December 2002 annual
physical report
remarked that Mr. Nikkila “had a headache rated at approximately a 5 [out
of 10].” R. at 996. In
January 2003, he was seen at a VA urgent care clinic for “chronic”
headaches that he characterized
as “constant.” R. at 983. In a February 2003 VA progress note, Mr. Nikkila
stated he had suffered
from headaches for “many, manyyears,” that before the previous fall
theywere intermittent but now
they were “more constant,” and that the intensity varied during the course
of the headache, which
would begin in the area of the temples and become more diffuse. R. at 980-
82. In an addendum,
the examiner remarked that Mr. Nikkila stated he suffers headaches 3 days
a week, 24 hours at a
time. R. at 983.
Meanwhile, in January 2003, the veteran sought an increased evaluation for
cephalgia. R.
at 2202. An April 2003 VA neurological disorders examination report
recorded complaints of daily
“needle like pains in both sides of his posterior neck in the paraspinal
muscular areas. . . . since
November of 2002.” R. at 2166. Associated with neck pain were steady
headaches in both temples
occurring daily and lasting “hours.” Id. Pain intensity was normally 2 out
of 10, but flareup pain
reached 8 or 9 out of 10; flareups occurred about 3 times per week and
lasted 2 to 6 hours. Id. At
the time, the veteran did “not describe any episode where he had to stay
at home because of neck
pain or headache problems.” R. at 2167. The examiner diagnosed “[c]hronic
cervical muscle strain
with occipital cephalgia.” R. at 2168. In June 2003, the RO separated
cephalgia from cervical
muscle strain, evaluated each condition individually, and continued the 10%
evaluation for
cephalgia, denying a 30% evaluation because the veteran did not have “
prostrating attacks averaging
once a month.” R. at 2157.
The veteran was involved in another MVA in September 2003. R. at 2060. He
sustained a
concussion and a fractured left clavicle and experienced “some residual
headaches and cognitive
problems . . . expected to resolve.” R. at 2060. Subsequent computed
tomographyhead scan showed
“an equivocal area of tiny punctate hemorrhage in the left frontal cortex.”
R. at 2057; see also R.
2

at 1096, 1224-38 (September 2003 hospital and followup records). An April
2004 private medical
examination report noted that Mr. Nikkila lost consciousness during the
September 2003 MVA and
“since then has been complaining of headaches, occipital and frontal
region, visual problems with
occasional blurred vision and transposing words and letters, occasional
slurred speech.” R. at 1258.
In March 2005, Mr. Nikkila sought an increased evaluation for his service-
connected
disabilities. R. at 2076-77. An April 2005 VA examination report recorded
Mr. Nikkila’s headaches
symptoms since the September 2003 MVA: daily pain of 2 or 3 out of 10 and
flareups of 6 to 8 out
of 10, occurring 3 times in the last 6 months and lasting days. R. at 2051.
The RO denied an
increased evaluation in June 2005, determining that his headaches did not
meet the 30% criteria and
that his cognitive problems were due to his 2003 MVA. R. at 2040-48. Mr.
Nikkila disagreed with
this decision and appealed to the Board. R. at 1985, 2018-35, 2038.
Whilehis appeal waspending,Mr.Nikkilasubmittedto
theBoardadditionalmedicalrecords
and a September 2005 Social Security Administration (SSA) decision
determining that neck and
back pain, headaches, and memory problems all qualified as severe
impairments that limited his
ability to work and qualified him for SSA disability compensation. R. at
1733-1820.
In an August 2007 decision, the Board denied an increased evaluation for
cephalgia (R. at
1665-78), but on appeal this Court, pursuant to a joint motion to remand,
set aside the Board decision
and remanded the matter for VA to obtain additional medical records (R. at
1579-86). See R. at
1558-64 (September 2009 Board order remanding matter for further
development). VA treatment
records from 2008 and 2009 were thereafter associated with the claims file.
R. at 1422-1557. One
such record from July 2008 noted Mr. Nikkila’s statement that his “[h]
eadaches never go away” but
“just vary in intensity.” R. at 1554.
The veteran underwent a VA examination in November 2009. R. at 1373-75.
The examiner
noted Mr. Nikkila’s reports that he experienced “constant generalized
headaches that involve the
whole head,” which “started 6 to 6-1/2 years ago.” R. at 1373. The veteran
reported having
“constant, all-day pain” that sometimes reached 7 or 8 on a scale of 10
and caused nausea and
difficulty concentrating. Id. The examiner diagnosed “[c]hronic daily
headache” and observed that
“[t]he veteran reports that these have become more problematic since his
2003 car accident.” R. at
1375.
3

After reviewing additionallysubmitted evidence and stating that it was
resolving reasonable
doubt in the veteran’s favor, the RO in March 2011 increased the veteran’s
cephalgia evaluation from
10% to 30%, effective March 2005. R. at 684-95. Mr. Nikkila filed a Notice
of Disagreement as
to this decision and appealed to the Board. R. at 151, 619-25. In
September 2011, the Board again
remanded for additional development the cephalgia issue, as well as the
issue of entitlement to
TDIU,basedontheappearancethatMr.Nikkila’s
headacheshadworsenedsincetheNovember2009
VA examination. R. at 587-608. More recent VA treatment records were
associated with the claims
file (R. at 282-402, 510-66), including a November 2011 VA neurology
followup notation that
stated: “Continued dailyheadaches. He has had them since the militarybut
theywere not as frequent
or as severe. They worsened significantly after 2003 when he was involved
in a[n MVA].” R. at
519.
Mr. Nikkila underwent another VA examination in May 2012. R. at 43-47. The
examiner
opined that the cause of the increased severity and frequency of the
veteran’s headaches was the
September 2003 MVA. R. at 46. In support of this opinion, the examiner
stated that the 2003 VA
examination showed that, prior to the MVA, cephalgia was “fairly well
controlled.” Id. Since then,
the examiner stated, the “headaches have gotten out of control” and noted
that headaches occur on
a daily basis and “frequently progress to a 7 or 8” on a pain scale of 10.
Id. The examiner further
noted that Mr. Nikkila had “a great deal of difficulty concentrating which
is required for him to be
gainfully employed.” Id. In an addendum, the examiner elaborated on the
medical evidence of
record, specifically quoting from the April 2003 VA examination. R. at 42-
43. The examiner then
reiterated her opinion that any increase in headache frequency or
intensity stemmed from the 2003
postservice MVA. R. at 43; see R. at 33-39 (RO’s continued denial of an
increased cephalgia
evaluation and entitlement to TDIU).
IntheNovember2012decisiononappeal, theBoarddeniedanincreasedevaluation in
excess
of 30% for cephalgia and denied entitlement to TDIU. R. at 3-17. First,
the Board found that the
VA examinations of record were adequate to evaluate the claims. R. at 6-7.
Next, after reviewing
the medical evidence and Mr. Nikkila’s argument that “it is not possible
to separate the level of
severity of the headaches prior to the [2003 MVA] from the headaches
following this accident,” the
Board stated: “It is not disputed the [v]eteran has continuous headaches.
It is significant to point out,
4

however,thattheVAexamineropined,followingtheFebruary2012VAexamination,
the[v]eteran’s
current headaches are directly related to the [2003 MVA], and may be
distinguished from the
headaches he had prior to it.” R. at 12. Although finding Mr. Nikkila
credible and “competent to
report symptoms he experienced, such as headaches,” the Board found that
he was not competent
to opine as to the medical cause of his worsened cephalgia. Id. (citing
Espiritu v. Derwinski,
1 Vet.App. 492 (1992), and Routen v. Brown, 10 Vet.App. 183 (1997)).
Finally, the Board denied
TDIU, relying on the February 2012 VA examiner’s opinion that
unemployability was attributable
to the current headache condition, which was not associated with service-
connected cephalgia. R.
at 13-16. This appeal followed.
II. ANALYSIS
On appeal, Mr. Nikkila argues that the Board erred by failing to
address—and by relying on
the February2012 VA examiner’s opinion, which failed to address—”
significant evidence”showing
that service-connected cephalgia was not “under control” prior to the
September 2003 MVA.
Appellant’s Brief (Br.) at 11-24. He further argues that the Board
improperly relied on the February
2012 VA medical opinion because that examiner noted that she had contacted
the veteran’s treating
neurologist, who confirmed that prior to the 2003 MVA Mr. Nikkila had not
responded to headache
treatment, but no evidence of the neurologist’s statement was contained in
the record before the
Board. Id. at 24-27. The Secretary disputes these contentions and
otherwise argues the propriety
of the Board’s decision. Secretary’s Br. at 8-26. For the following
reasons, the Court finds that the
Board offered inadequate reasons or bases for its decision, and agrees
with Mr. Nikkila that the
decision must be set aside.
In cases involving the denial of an increased evaluation, the Court
reviews the Board’s
determination of the appropriate degree of disability as a finding of fact
subject to the “clearly
erroneous” standard of review. 38 U.S.C. § 7261(a)(4); see Smallwood v.
Brown, 10 Vet. App. 93,
97 (1997). In this case, the Board did not address whetherMr. Nikkila’s
present cephalgia symptoms
meet the criteria for a higher evaluation under DC 8100. Rather, the Board
denied an increased
evaluation based on its factual finding that any increase in symptom
severity is related to the 2003
postservice MVA, not to service or to service-connected cephalgia. See R.
at 12. The Court
5

nevertheless reviews this finding of fact under the “clearly erroneous”
standard of review set forth
in 38 U.S.C. § 7261(a)(4).
As part of VA’s duty to assist, the Secretary must, in appropriate cases,
provide a claimant
with a thorough and contemporaneous medical examination. 38 U.S.C. §
5103A; see Green v.
Derwinski, 1 Vet.App. 121, 124 (1991). An adequate medical opinion must be “
accurate and fully
descriptive . . . , with emphasis upon the limitation of activity imposed
by the disabling condition.”
38 C.F.R. § 4.1 (2013). It must be based on an accurate factual premise
and on consideration of the
veteran’s prior medical history and examinations and must describe the
disability in sufficient detail
so that the Board’s “‘evaluation of the claimed disability will be a fully
informed one.'” Ardison v.
Brown, 6 Vet.App. 405, 407 (1994) (quoting Green, 1 Vet.App. at 124); see
also Floyd v. Brown,
9 Vet.App. 88, 93 (1996). In addition, the medical opinion “must support
its conclusions with an
analysis that the Board can consider and weigh against contrary opinions.”
Stefl v. Nicholson,
21 Vet.App. 120, 124 (2007). The Board’s finding regarding the adequacyof
a medical examination
is a finding of fact subject to the “clearly erroneous” standard of review.
See D’Aries v. Peake,
22 Vet.App. 97, 103 (2008). “A factual 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
conviction that a mistake has been committed.'” Hersey v. Derwinski, 2 Vet.
App. 91, 94 (1992)
(quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
As with any finding on an issue of material fact and law presented on the
record, the Board
is required to support its findings with a statement of reasons or bases
that enables a claimant to
understand the precise basis for the Board’s decision and facilitates
review in this Court. See 38
U.S.C. § 7104(d)(1); Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). To
comply with this
requirement, the Board must analyze the credibility and probative value of
the evidence, account for
evidence that it finds to be persuasive or unpersuasive, and provide
reasons for its rejection of any
material evidence favorable to the claimant. See Caluza v. Brown, 7 Vet.
App. 498, 506 (1995).
Although there is no reasons-and-bases requirement imposed on VA examiners,
the Board
may not simply accept and rely on a medical opinion that does not provide
supporting rationale or
describe the disability with the detail necessary to ensure that the
Board’s “evaluation of the claimed
disability will be a fully informed one.” Ardison, 6 Vet.App. at 407; see
Gabrielson v. Brown,
6

7 Vet.App. 36, 40 (1994) (“The [Board] cannot evade [its] statutory
responsibility merely by
adopting [a medical examiner’s] opinion as its own, where, as here, the [
medical examiner’s] opinion
fails to discuss all the evidence which appears to support appellant’s
position.”).
To support its factual findings and ultimate denial of an increased
evaluation, the Board
relied on the opinion of the February 2012 VA examiner.*
R. at 12. In so doing, the Board failed
to account for material evidence that favors Mr. Nikkila. For example, the
2012 VA examiner stated
that before the 2003 MVA, Mr. Nikkila’s headaches “were fairly well
controlled.” R. at 46. But the
2012 examiner actually quoted the April 2003 examination report to the
effect that before the 2003
MVA, Mr. Nikkila was experiencing headaches “daily,” with a pain intensity
of 4 to 5 out of 10 that
lasted hours. R. at 42, 2166. Further, in April 2003 the veteran reported
flareups that occurred 3
times per week, lasted 2 to 6 hours, and reached a pain intensity of 8 or
9 out of 10. Id. The
headache symptoms recited in the April 2003 VA examination report, which
were cited by the
February 2012 VA examiner, appear to contradict the 2012 examiner’s
opinion that before the 2003
MVA Mr. Nikkila’s headaches were well controlled. Neither the Board nor
the February 2012 VA
examiner discussed or explained this apparent contradiction. Nor did the
February 2012 VA
examiner explain her conclusion that the veteran’s headaches since the
accident—which still
occurred daily and “frequently progress[ed] to a 7 or 8” on a pain scale
of 10—”have gotten out of
control.” R. at 46. Mr. Nikkila was suffering from cephalgia on a daily
basis both before and after
the September 2003 MVA. Compare R. at 2166, with R. at 46. Pain intensity
before the MVA
would often reach 8 or 9 during the week whereas, after the MVA, pain
would reach 7 or 8. Id.
Reviewing such symptoms, it is not apparent how pre-MVA headaches were “
controlled” but post-
MVA headaches were not. The Board failed to discuss this inconsistency and
the examiner failed
offer a rationale to support her bare conclusions concerning symptoms
before the 2003 MVA being
“fairly well[-]controlled” and the symptoms after the 2003 MVA being “out
of control.” R. at 46.
See Stefl, Floyd, and Ardison, all supra.
*
Contrary to the Secretary’s assertion (Secretary’s Br. at 10-11), although
the Board generally cited medical
opinions besides the February 2012 examiner’s, it is clear from the
Board’s decision that it relied solely on that opinion
to justify its determination that worsening of service-connected cephalgia
was caused by a non-service-connected
incident. See R. at 12.
7

Because the Board did not discuss this relevant favorable evidence, its
reasons or bases for
denying an increased evaluation are inadequate to permit Mr. Nikkila to
understand the basis for its
decision and to facilitate review in this Court. See Caluza and Gilbert,
both supra. Thus, the Court
will set aside the Board’s decision to deny an increased evaluation for
service-connected cephalgia
and remand that matter for the Board to address Mr. Nikkila’s argument and,
if necessary, seek
clarification from the February 2012 examiner. See Tucker v. West, 11 Vet.
App. 369, 374 (1998)
(holding that remand is appropriate “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”).
On remand, the Board should also consider whether it properly evaluated
the veteran’s
competence. Although findingthatMr.Nikkilawas”competenttoreportsymptoms
heexperienced,
such as headaches,” the Board found that he was categorically not
competent to opine as to the
medical cause of his worsened cephalgia. R. at 12. The Board relied on
Routen and Espiritu, both supra, for this proposition. Id. To the extent these cases suggest that lay evidence is categorically incompetent with respect medical issues, including causation, they have been overruled by the U.S. Court of Appeals for the Federal Circuit (Federal Circuit). See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012); cf. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (both discussing when lay evidence may be competent on a particular issues). “The governing statute, regulation,  and our precedent,”the Federal Circuit stated, “make clear that competent lay evidence may be used to establish a medical condition, including causation.” King, 700 F.3d at 1344. Of course, it remains for the Board to determine in this particular case whether lay evidence is “competent and sufficient” to address a specific medical issue. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). But when the Board fails to cite any of the Federal Circuit precedent mentioned above and states categorically that “the [v]eteran is not competent to provide an opinion requiring medical knowledge or a clinical examination by a medical professional” (R. at 12), the Court is unable to determine whether the Board considered the lay evidence in this case correctly. See Gilbert, supra (noting that the Board’s statement of reasons or bases must be sufficient to facilitate judicial review). This is especially so in this case, where the
only apparent criteria relevant to the February 2012 examiner’s opinion was the nature of Mr.
8

Nikkila’s symptoms both before and after the September 2003 MVA, a matter
on which the Board found that the veteran was competent to opine. See R. at 12 (“The Board acknowledges that the[v]eteran was competent to report symptoms he experienced, such as headaches . . . .”). The Board should address this issue on remand.
Finally, the Court finds that the Board’s decision with respect to TDIU
must also be set aside
and that matter remanded. “[W]here a decision on one issue would have a
significant impact upon
another, and that impact in turn could render any review by this Court of
the decision [on the other
claim] meaningless and a waste of judicial resources, the two claims are
inextricably intertwined.”
Henderson v. West, 12 Vet.App. 11, 20 (1998) (internal quotations omitted);
see Smith v. Gober,
236 F.3d 1370, 1372 (Fed. Cir. 2001) (explaining that, “in the interests
of judicial economy and
avoidance of piecemeal litigation,” claims that are “intimately connected”
should be adjudicated
together).
Here, the Board denied TDIU based on the February 2012 VA examiner’s
opinion that
unemployability was attributable to the current headache condition, which
was not associated with
service-connected cephalgia. R. at 13-16. Because a Board reevaluation as
to whether Mr. Nikkila
is entitledto anincreasedcephalgiaevaluation
couldalterorunderminetheBoard’s basisfordenying
TDIU, the Court concludes that TDIU is inextricably intertwined with the
cephalgia claim and must
be returned to the Board to be adjudicated together with that matter.
In pursuing his case on remand, Mr. Nikkila is free to submit any
additional evidence and
argument, including the arguments raised in his brief to this Court, in
accordance with
Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order),
and the Board must
consider any such evidence or argument submitted. See Kay v. Principi, 16
Vet.App. 529, 534
(2002). The Board shall proceed expeditiously, in accordance with 38 U.S.C.
§§ 5109B and 7112.

III. CONCLUSION
Upon consideration of the foregoing, the November20,2012, Board decision is
SETASIDE, and the matter is REMANDED for readjudication consistent with this
decision.
DATED: February 20, 2014
9

Copies to:
Dennis L. Peterson, Esq.
VA General Counsel (027)
10


 

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