Veteranclaims’s Blog

June 5, 2014

Single Judge Application; Horn v. Shinseki, 25 Vet.App. 231, 242 (2012); Reliance on Form with Unexplained “X”

Excerpt from decision below:

“Mr. Smith next argues that the Board improperly relied on two Medical Board reports. This Court has held that the Board may not rely on a Medical Board report containing only “an unexplained ‘X’ on a form” when it is “the only affirmative evidence.” Horn v. Shinseki, 25 Vet.App. 231, 242 (2012).

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 13-1349
JEFFREY N. SMITH, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before DAVIS, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

DAVIS, Judge: U.S. Navy and Army veteran Jeffrey N. Smith appeals through
counsel from a March 5, 2013, Board of Veterans’ Appeals (Board) decision that denied
disability benefits for residuals of right eye retinal detachment with macular scarring. The Board also remanded the issue of service connection for a psychiatric disorder; this claim is not currently before the Court because it is not the subject of a final Board decision. See Breeden v. Principi, 17 Vet.App. 478 (2004). For the following reasons, the Court will affirm the March 2013 decision.

I. ANALYSIS
Mr. Smith, who served on active duty from September to October 1974 and
from August to
September 1976, argues that the Court should reverse the Board decision
and award disability
benefits because the Board failed to show that his right eye condition was
not aggravated byservice.
Specifically, he alleges that the Board relied on an inadequate December
2012 VA medical report
finding no in-service aggravation, improperly relied on two Medical Board
determinations, and
failed to properly weigh the medical evidence of record.
To establish service connection for a present disability, “the veteran
must show (1) the
existence of a present disability; (2) in-service incurrence or
aggravation of a disease or injury; and

(3) a causal relationship between the present disability and the disease
or injury incurred or
aggravated during service.” Shedden v. Principi, 381 F.3d 1163, 1166-67 (
Fed. Cir. 2004). When no
preexisting medical condition is noted upon entry into service, a veteran
is presumed to have been
sound in every respect. 38 U.S.C. § 1111. However, the Secretary may
rebut the presumption of
soundness by clear and unmistakable evidence that the veteran’s condition
both preexisted service
and was not aggravated by such service. Id.; see Wagner v. Principi, 370 F.
3d 1089, 1096 (Fed. Cir.
2004). The parties heredo not dispute that Mr. Smith has a present eye
disabilityor that his condition
preexisted service. See Secretary’s Brief (Br.) at 14; Appellant’s Br. at
1; see also Record (R.) at 14-
15 (Board decision explaining that Mr. Smith reported sustaining “a
retinal detachment of the right
eye following an injury approximately two years prior to enlistment”).
Accordingly, the only issue
on appeal is whether Mr. Smith’s preexisting condition was aggravated by
service.
A. December 2012 Medical Report
Mr. Smith argues that the December 2012 medical report is inadequate
because the examiner
failed to discuss Mr. Smith’s September 1974 entrance examination, did not
explain whether his
vision changed during enlistment, improperly presumed that Mr. Smith’s
right eye vision was
20/400–rather than 20/100–when he entered service, referred to only
visual acuity, and did not
analyze Mr. Smith’s in-service complaints of eye pain.
TheSecretary’s dutyto assist requires VAto providemedicalexaminations
forcompensation
claims when “necessary to make a decision on the claim.” 38 U.S.C. §
5103A(d). A medical
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.
123, 123 (2007) (quoting Ardison v. Brown, 6 Vet.App. 405, 407 (1994)) (
internal quotation marks
omitted). The medical examination report must contain clear conclusions
and supporting data, as
well as “a reasoned medical explanation” connecting the data and
conclusions. Nieves-Rodriguez v.
Peake, 22 Vet.App. 295, 301 (2008). Whether a medical opinion is adequate
is a finding of fact that
the Court reviews under the “clearly erroneous” standard. See 38 U.S.C. §
7261(a)(4); D’Aries v.
Peake, 22 Vet.App. 97, 103 (2008).
Contrary to Mr. Smith’s argument, the December 2012 examiner discussed the
September
2

1974 entrance examination and explained that Mr. Smith’s vision did not
worsen duringservice. The
examiner specifically noted that
[t]he Navy recruitment physical from September 30, 1974 stated that the
right eye
vision was 20/400. On October 7, 1974, the Appellant was seen in the
Optometry
Clinic and subsequently the Ophthalmology Clinic where the vision was
confirmed
to be light perception and counting fingers. Thus, I do not agree . . .
that military
training may have contributed to his decreased vision.
R. at 40. By stating that the ophthalmology examination–which occurred
shortly before Mr. Smith’s
discharge–”confirmed” the entrance examination report, it is apparent
that the medical examiner
determined that there was no relevant distinction between the 20/400 and
20/LPO right eye vision
diagnoses and that Mr. Smith’s vision did not decrease in service. See R.
at 1992 (October 1974
examination report noting right eye vision of 20/LPO (light perception
only)), 1947 (October 25,
1974, discharge). This medical judgment is presumed sound in the absence
of sufficient contrary
evidence. See Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011) (
explaining that medical
examiners are presumed competent).
Mr. Smith also fails to establish that the examiner erred in stating that
Mr. Smith’s right eye
vision was 20/400 when he entered service. Mr. Smith merely alleges that
the entrance examination
“appears to have been altered” and so it is “unclear whether the right eye
vision [was] 20/100 or
20/400″ in September 1974. Appellant’s Br. at 8-9. He supports this
argument by pointing to a July
2012 medical report, which states that Mr. Smith’s “vision was 20/100
initially but it declined after
he enlisted.” R. at 77. He argues that because the July 2012 and December
2012 examinations offer
differing interpretations of the September 1974 entrance examination
report, the evidence is in
equipoise and he is entitled to the benefit of the doubt. See Gilbert v.
Derwinski, 1 Vet.App. 49, 54
(1990) (“[W]hen a veteran seeks benefits and the evidence is in relative
equipoise, the law dictates
that veteran prevails.”).
However, “the benefit of the doubt doctrine is a legal construct to be
applied by an
adjudicatorybodywhen the evidence is approximatelybalanced, not bya
medical professionalwhen
rendering an opinion.” D’Aries, 22 Vet.App. at 106; see Gilbert 1 Vet.App.
at 5 (explaining that the
benefit of the doubt doctrine “does not apply during the process of
submitting and gathering
evidence”). Accordingly, the December 2012 examiner did not need to afford
Mr. Smith the benefit
3

of the doubt or presume that the entrance examination recorded a 20/100
right eye vision.
Notably, the Board did not determine that the evidence was in equipoise as
to the vision
recordedin theSeptember1974entranceexamination, andthereforedid not needto
applythebenefit
of the doubt doctrine. See Gilbert, supra; R. at 22 (Board decision
finding that “the preponderance
of the evidence is against the Veteran’s claim”). The Board found that the
December 2012 examiner
“correctly” stated that the record did not contain any evidence to support
the July 2012 examiner’s
notation that Mr. Smith’s vision was 20/100 at his entrance examination. R.
at 20 (noting that the
July2012 examiner’s “information regarding the Veteran’s right eye
historymayhave come from the
Veteran’s own statements” rather than the claims file). This rationale
demonstrates that the Board
implicitlydeterminedthattheentranceexamination recordedaright
eyevisionof20/400, ratherthan
20/100. Because Mr. Smith has not established that this factual finding is
clearly erroneous, the
Court will not disturb it. 38 U.S.C. § 7261 (the Court reviews finding of
facts under the “clearly
erroneous” standard of review).
As to visual acuity, Mr. Smith argues that the examiner should have
addressed “the
possibility of other visual loss such as peripheral or light detection”
pursuant to 38 C.F.R. § 4.75(a)
(2013) (“The evaluation of visual impairment is based on impairment of
visual acuity, . . . visual
field, and muscle function.”). Appellant’s Br. at 10. This argument
confuses the duties of a medical
examiner with those of a VA adjudicator. “The medical examiner provides a
disability evaluation
and the rating specialist interprets medical reports in order to match the
rating with the disability.”
Moore v. Nicholson, 21 Vet. App. 211, 218 (2007), rev’d on other grounds
sub nom. Moore v.
Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). A medical examiner is not
required to discuss those
injuries not found during an examination or explain how a veteran’s
disability fits into the rating
schedule. See Stefl, supra (explaining that a medical examiner must “
describe[] the disability, if any”
in sufficient detail (emphasis added)). Rather, an examiner need
onlyprovide a disability evaluation
that is supported by a reasoned medical explanation. The December 2012
examiner fulfilled this
responsibility by reviewing the claims file and explaining that Mr.
Smith’s preservice eye injury
“precluded any recovery of central visual acuity” and was not aggravated
by service. R. at 39-40
(explaining that the eye injury sustained prior to service “would have a
permanent and negative
impact on visual recovery” and noting that several recent medical
examinations of record “measured
4

the vision in the right eye at the same level” found in service).
Further, unlike the Board, a medical examiner is not required to discuss
each piece of
favorable evidence. See Roberson v. Shinseki, 22 Vet. App. 358, 366 (2009
) (“A medical examiner
need not discuss all evidence favorable to an appellant’s claim when
rendering an opinion.”).
Accordingly, the Court does not find that the examiner erred in failing to
discuss Mr. Smith’s in-
service complaints of pain. The Court also rejects Mr. Smith’s argument to
the extent that he alleges
that the examiner was required to discuss in-service complaints of eye
pain because a July 2009
Court remand found a medical examination inadequate where it offered no
analysis to explain why
Mr. Smith’s two in-service complaints of eye pain “constituted no evidence
of aggravation.” R. at
531; see Stegall v. West, 11 Vet.App. 268, 271 (1998) (explaining that a
remand by the Court or
Board “confers on the veteran . . . as a matter of law, the right to
compliance with the remand
orders”). Here, nothing in the Court’s July 2009 remand requires the Board
to obtain a medical
examination that specifically discusses the in-service complaints of eye
pain. Rather, the Court’s
remand merelyexplained that the medical report there at issue was
inadequate because the examiner
did not provide a rationale or review the claims file, which included in-
service complaints of eye
pain. R. at 531. The Court also noted that the inadequate examination did
not explain what evidence
informed the medical conclusion that Mr. Smith’s vision was not aggravated
by service. Unlike that examination, the December 2012 medical report discussed the medical evidence of record and provided a reasoned medical explanation. See Nieves-Rodriguez, supra.

B. Medical Board Reports
Mr. Smith next argues that the Board improperly relied on two Medical Board reports. This Court has held that the Board may not rely on a Medical Board report containing only “an unexplained ‘X’ on a form” when it is “the only affirmative evidence.” Horn v. Shinseki, 25 Vet.App. 231, 242 (2012).
Here, as in Horn, the Board relied on Medical Board reports that utilized a standard form.
See R. at 1694 (August 1976 report noting: “Service aggravated: No.”), 1947 (October 1974 report containing an “X” in a box on a form next to “Not Aggravated by Service”).
However, unlike the Medical Board report in Horn, the reports here discuss Mr. Smith’s medical  history–including his preservice eye injury and surgery–and his current symptoms. Further, the  record here contains other
5

affirmative medical evidence relied on by the Board, including the
December 2012 medical report
that contains a detailed rationale based on the claims file. Accordingly,
the Court does not find that
the Board erred in finding the Medical Board reports probative.
C. Weighing Evidence
Lastly, Mr. Smith contends that the Board should have relied on the
July2012 medical report
because the examiner reviewed the claims file and provided a well-reasoned
medical opinion. This
argument is merely a disagreement with the Board’s weighing of the
evidence, which does not
support a remand. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed.
Cir. 2006) (the Board
retains discretion to weigh the evidence submitted). Notably, the Board
also explained that the July
2012 opinion was “entitled to no probative weight” because it was based on
an inaccurate factual
premise–that Mr. Smith’s vision was 20/100 at his entrance examination.
This determination is not
clearlyerroneous,andtheBoard’s explanation facilitates judicialreview.
See38U.S.C. §7261(a)(4);
Allday v. Brown, 7 Vet.App. 517, 527 (1995) (explaining that the Board is
required to provide a
written statement of the reasons or bases for its findings and conclusions
of fact and law, which
adequately enables an appellant to understand the basis for the Board’s
decision and to facilitate
review by this Court).

II. CONCLUSION
Based on the foregoing, the Court AFFIRMS the Board’s March 5, 2013,
decision.
DATED: May 20, 2014
Copies to:
Fritzie M. Vammen, Esq.
VA General Counsel (027)
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