Veteranclaims’s Blog

June 2, 2014

Single Judge Application; Administrative Procedure Act Review; Board’s Failure to Appropiately and Consistently Address Evidence of Record

Excerpt from decision below:

“As noted by Justice Alito in the Supreme Court’s decision in Henderson v. Shinseki, the Court’s scope of review in this appeal is “similar to that of an Article III court reviewing agency action under the Administrative Procedure Act, 5 U.S.C. § 706.” 131 S. Ct. 1197, 1201 n.2 (2011) (citing 38 U.S.C. § 7261).”

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The Court agrees with the appellant’s contention that the Board failed to provide an adequate statement of reasons or bases for its assignment of little probative value to multiple favorable medical opinions suggesting a link between Agent Orange and gliobastoma, versus its assignment of full probative value to the January 2009 opinion. See Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990) (the Board is required to provide a written statement of the reasons or bases for its findings and conclusions, adequate to enable an appellant to understand the precise basis for the Board’s decision as well as to facilitate review in this Court). Specifically, the first two reasons for dismissing the favorable opinions, i.e., that the opinions were not specific to the veteran and that the examiners had never treated the veteran, apply equally to the January 2009 opinion. The January 2009 examiner based her rationale on a medical article that explained the “[g]eneral risk factors that

2In multiple incidents, the Board wrongly refers to this examination as the “December 2009 examination.” See R. at 3-15. However, it is clear from the record and the Board’s recitation of this examination that it is actually referring to the January 2009 examination in its analysis.
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have been associated with brain tumors” as well as to an “Agent Orange web page” that does not address “the facts in this particular Veteran’s case with any medical certainty.” R. at 14, 85, 90. The examiner also never personally treated the appellant. See R. at 85-90. Additionally, to the extent that the Board finds it meaningful that the January 2009 examiner copied a rationale from an unnamed article and crudely referred to something she found on the internet as “Agent Orange web page,” the Court disagrees that these “references” qualify as “specific references to the studies or laboratory reports used to support their conclusions.” R. at 14. Remand is required for the Board to appropriately, and consistently, address the evidence of record.”

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 13-3593
JANIE L. ADAMS, APPELLANT,
V.
SLOAN D. GIBSON,
ACTING SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before GREENBERG, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

GREENBERG, Judge: The appellant, Janie L. Adams, widow of veteran William L. Adams,
appeals through counsel a December 12, 2013, Board of Veterans’ Appeals (Board) decision that denied entitlement to benefits based on service connection for the cause of the veteran’s death. Record (R.) at 3-15. The appellant argues that the Board provided an inadequate statement of reasons or bases for discounting multiple favorable medical opinions and other potentially favorable evidence. Appellant’s Brief at 5-13. Review by a single judge is authorized by 38 U.S.C. § 7254(b) and is appropriate here. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). As noted by Justice Alito in the Supreme Court’s decision in Henderson v. Shinseki, the Court’s scope of review in this appeal is “similar to that of an Article III court reviewing agency action under the Administrative Procedure Act, 5 U.S.C. § 706.” 131 S. Ct. 1197, 1201 n.2 (2011) (citing 38 U.S.C. § 7261).
Because the Board provided an inadequate statement of reasons or bases for discounting favorable evidence, the Court will vacate the Board’s December 2013 decision and remand the matter for readjudication.
The veteran served honorably in the U.S. Air Force from December 1946 until May 1967,
including service in Japan and Vietnam. R. at 560-72; R. at 607. He was diagnosed with a brain tumor in 2004 and died in January 2006. R. at 179; R. at 338-40. The death certificate provides glioblastoma multiforme1 as the cause of death. R. at 179.
The appellant filed for benefits based on service connection for the cause of her husband’s
death in April 2006. R. at 171-78. In support of her claim, she submitted a medical opinion from the veteran’s treating internist stating that diabetes contributed to the veteran’s death. R. at 180. In January 2009, following the denial of the appellant’s claim and a timely appeal, VA obtained a diabetes mellitus medical opinion from a VA family practice physician. R. 83-90. The VA examiner opined that diabetes mellitus was less likely than not a contributing factor in veteran’s death. R. at 84. The examiner explained that there is no evidence that diabetes caused progression of glioblastoma multiforme beyond the natural progression of the disease, and added that brain tumors are not associated with diabetes mellitus. R. at 85. The VA examiner further opined that brain tumors are not associated with Agent Orange exposure. R. at 85. As support for this opinion, the examiner noted that “Agent Orange web page did not [recognize] glioblastoma as a condition related to Agent Orange,” and provided a copy and pasted excerpt in the opinion from an unnamed medical article that begins by stating, “[g]eneral risk factors that have been associated with brain tumors are discussed here.” R. at 85-90.
Mrs. Adams also submitted favorable medical opinions from two physicians. The first
opinion, written by Dr. Pamela New, a neurological surgeon, provides that laboratory studies of the main dioxin in Agent Orange have shown it to cause glioblastoma in laboratory animals. R. at 23. Dr. New explained that, because it is possible that Agent Orange causes the same cancer in humans as it does in animals, there is an equal chance that the incidence of glioblastoma in Vietnam veterans is caused by Agent Orange versus random occurrence. R. at 23. Dr. New concluded that, “[a]fter reviewing Mr. William Adams’ records, his diagnosis of glioblastoma has a 50/50 probability of having been caused by exposure to Agent Orange.” R. at 23. The second opinion, written by oncologist Dr. David Sanford, provides that exposure to herbicides has been associated with increased incidences of glioblastoma in animal experiments and that there is an increased incidence of glioblastoma in Vietnam veterans. R. at 33. Dr. Sanford noted that he had reviewed the veteran’s
1″Gliobastoma multiforme” is “the most malignant type of astrocytoma, . . . [and is] one of the most common primary tumors of the brain.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 784 (32d ed. 2012).
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medical records and opined that “Mr. Adams’ glioblastoma is [at] least as likely as not (50/50
probability) caused by or as a result of exposure to Agent Orange.” R. at 33.
In December 2013, the Board issued the decision now on appeal. R. at 3-15. In its decision,
the Board denied service connection for the cause of the veteran’s death based on its finding that “[t]he Veteran did not have any disability of service origin that contributed substantially and materially to his death, or hastened it, or otherwise aided or lent assistance to his death.” R. at 4.
In making this finding, the Board concluded that the two favorable medical opinions connecting the veteran’s Agent Orange exposure to gliobastoma are worth “little probative value” for three reasons.
First, it found that “the generic nature of these two medical opinions do not address the facts in this particular veteran’s case with any medical certainty . . . .” R. at 14. The Board found that this is in contrast to the January 20092 VA opinion, which it noted was “generated towards resolution of the Board’s specific inquiry.” R. at 14. Second, the Board found that “[t]hese physicians did not treat the Veteran during his lifetime,” and that the physicians’ opinions were “based on probabilities.” R. at 14. Finally, the Board concluded that the physicians “failed to provide any specific references to the studies or laboratory reports used to support their conclusions.” R. at 14. In addition, the Board found that the January 2009 VA opinion is worth full probative weight as it is “based on . . . information obtained from extensive review of the scientific and medical literature.” R. at 14.
The Court agrees with the appellant’s contention that the Board failed to provide an adequate statement of reasons or bases for its assignment of little probative value to multiple favorable medical opinions suggesting a link between Agent Orange and gliobastoma, versus its assignment of full probative value to the January 2009 opinion. See Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990) (the Board is required to provide a written statement of the reasons or bases for its findings and conclusions, adequate to enable an appellant to understand the precise basis for the Board’s decision as well as to facilitate review in this Court). Specifically, the first two reasons for dismissing the favorable opinions, i.e., that the opinions were not specific to the veteran and that the examiners had never treated the veteran, apply equally to the January 2009 opinion. The January 2009 examiner based her rationale on a medical article that explained the “[g]eneral risk factors that
2In multiple incidents, the Board wrongly refers to this examination as the “December 2009 examination.” See R. at 3-15. However, it is clear from the record and the Board’s recitation of this examination that it is actually referring to the January 2009 examination in its analysis.
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have been associated with brain tumors” as well as to an “Agent Orange web page” that does not address “the facts in this particular Veteran’s case with any medical certainty.” R. at 14, 85, 90. The examiner also never personally treated the appellant. See R. at 85-90. Additionally, to the extent that the Board finds it meaningful that the January 2009 examiner copied a rationale from an unnamed article and crudely referred to something she found on the internet as “Agent Orange web page,” the Court disagrees that these “references” qualify as “specific references to the studies or laboratory reports used to support their conclusions.” R. at 14. Remand is required for the Board to appropriately, and consistently, address the evidence of record.
Because the Court is remanding, it will not address the appellant’s remaining argument
regarding the Board’s treatment of a different veteran in a January 2012 Board decision. See Dunn v. West, 11 Vet.App. 462, 467 (1998) (remand of appellant’s claim under one theory moots the remaining theories advanced on appeal).
On remand, the appellant may present, and the Board must consider, any additional evidence
and arguments. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). This matter is to be provided expeditious treatment. See 38 U.S.C. § 7112; see also Hayburn’s Case, 2 U.S. (2 Dall.) 409, 410, n., 1 L. Ed. 436 (1792) (“[M]any unfortunate and meritorious [veterans], whom [C]ongress have justly thought proper objects of immediate relief, may suffer great distress, even by a short delay, and may be utterly ruined, by a long one.”).
For the foregoing reasons, the December 12, 2013, Board decision is VACATED and the
matter is remanded for readjudication.
DATED: May 30, 2014
Copies to:
Amy F. Odom, Esq.
VA General Counsel (027)
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