Veteranclaims’s Blog

September 3, 2014

Single Judge Application; Relevant, Factual, Objective Information; Carter v Shinseki, 26 Vet.App. 534, 545 (2014); Savage, 24 Vet.App. at 270);

Excerpt from decision below:

“Moreover, the appellant’s reliance on Savage is misplaced as the Court in Savage “explicitly limited VA’s duty to seek clarification of private medical reports to situations where ‘the missing
information is relevant, factual, and objective–that is, not a matter of opinion.'” Carter v. Shinseki, 26 Vet.App. 534, 545 (2014) (citing Savage, 24 Vet.App. at 270). As the
information sought in this case is a matter of opinion, it falls outside the limited scope of Savage.
Moreover, as recently clarified in Carter, the Court in Savage “held that when a private medical
report is the only evidence on a material issue, and material medical evidence can no longer be
obtained as to that issue, yet clarification of a relevant, objective fact would render the private medical report competent for the assignment of weight,” VA must attempt to obtain such clarification. Id. at 545 (citing Savage, 24 Vet.App. at 276). Here, the August 2012 C&P opinion addresses the precise issue discussed by Dr. Beauvais’s opinion. Compare R. at 110 (Dr. Beauvais’s April 2012 opinion), with R. at 75-90 (August 2012 C&P opinion). Thus, even without Dr. Beauvais’ opinion, there is competent medical evidence answering the question at issue. See Carter, 26 Vet.App. at 545. 

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

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 13-1082
WILLIAM EARL WATSON, APPELLANT,
V.
ROBERT A. MCDONALD,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before LANCE, Judge.

MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

LANCE, Judge: The appellant, William Earl Watson, through counsel, appeals
a March 18,
2013, Board of Veterans’ Appeals (Board) decision that reopened but denied
his claim for
entitlement to service connection for a bilateral knee disability. Record (
R.) at 2-16. Single-judge
disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (
1990). This appeal is
timely, and the Court has jurisdiction over the case pursuant to 38 U.S.C.
§§ 7252(a) and 7266. For
the reasons that follow, the Court will affirm the March 18, 2013,
decision.
I. FACTS
The appellant served in the U.S. Army Reserve on active duty for training (
ACDUTRA)
from December 11, 1977, to January 11, 1978. R. at 356. His October 1977
pre-enlistment
examination found that his lower extremities were normal. R. at 364.
Service medical records
(SMRs) from December 16, 1977, note that the appellant complained of “both
legs giv[ing] out,” R.
at 386, and that he was diagnosed with “osteochondritis dissecans”(OCD) in “
both knees,”R. at 384.
That same day, he underwent an examination after which the examiner noted
that the appellant’s
bilateral OCD existed prior to service. R. at 378. On January 3, 1978, a
Medical Board examiner
noted that the appellant “ha[d] a long history of pain in both knees” and “[
s]ince coming on active

duty, he has had persistent trouble with his knees.” R. at 376. The
January 1978 Medical Board
examiner diagnosed the appellant with OCD in both knees, found that this
condition existed prior
to service, and recommended that the appellant be separated from service.
Id. Subsequently, the
appellant received an honorable discharge on January 11, 1978. R. at 356.
In June 1999, the appellant submitted a claim for entitlement to service
connection for a
bilateral knee disability. R. at 396-99. In December 1999, the VA regional
office (RO) denied his
claim. R. at 129-31. In doing so, the RO found that his knee disorder
preexisted service and was
not aggravated therein. R. at 130. The appellant did not appeal that
decision and it became final.
In May 2012, he submitted a request to reopen his claim for entitlement to
service connection for a
bilateral knee disability on the basis of new and material evidence. R. at
108-09. The appellant
submitted an April 2012 letter from his private doctor stating that the
appellant’s “bilateral knee
problems are directly related to his service in the military dating back
to 1977.” R. at 110.
In August 2012, the appellant underwent a VA compensation and pension (C&P)
examination, R. at 75-90, after which the VA examiner opined that the
appellant’s bilateral knee
disability is less likely than not proximately due to or the result of the
appellant’s service, R. at 88.
The examiner noted that the appellant reported for basic training on
December 11, 1977, “[b]y
December 15, 1977 “sought medical attention for ‘both legs giving out,'”
and was diagnosed with
OCD on December 16, 1977. Id. The examiner commented that “[t]his is a
matter of 5 days time
between transportation from home, arrival at the reception battalion and a
medical diagnosis
warranting medical board proceedings,” noting that “[t]here was no mention
of trauma.” Id. He
explained that the symptoms describedin theappellant’s SMRs “are typical
for patients with [OCD]”
as “[p]atients typically complain of activity-related pain with
intermittent swelling and locking or
sensatino [sic] of giving-out of the knee.” R. at 89. The examiner further
explained that because
“(OCD) is a condition in which a segment of articular cartilage . . .
gradually separates from the
surrounding osteocartilaginous tissue, the gradual worsening over time
. . . described by [Dr.
Beauvais], would be expected as a natural course of the disease process
and not a representation of
a service aggravation.” Id. The examiner stated that “[t]his is further
supported by civilian medical
records from the 1980’s and 1990’s containing mention of previous knee
trauma and effusion and
pain after playing basketball in the 1990’s.” Id.
2

In September 2012, the RO issued a rating decision in which it determined
that new and
material evidence had been submitted, but denied service connection. R. at
69-74. That same
month, the appellant filed a Notice of Disagreement, R. at 67-68, and VA
issued a Statement of the
Case in November 2012, R. at 30-56. Later in November 2012, the appellant
perfected his appeal
to the Board. R. at 26-29.
In the March 18, 2013,decisiononappeal, theBoarddeniedserviceconnection
fora bilateral
knee disability. The Board relied on the August 2012 VA examiner’s opinion
to find that the
appellant’s bilateral knee disability preexisted service and was not
aggravated therein. R. at 11-14.

II. ANALYSIS
The appellant presents three arguments on appeal. First, he contends that the Board violated 38 U.S.C. § 7104(a) byfailing to consider all material evidence in the record. Appellant’s Brief (Br).
at 8-11; Reply Br. at 2-4. Second, he argues that the Board clearly erred by denying service
connection for a bilateral knee disability as the Board relied on inadequate medical opinions to find
that his disability preexisted service. Appellant’s Br. at 11-21; Reply Br. at 5-10. Third, the
appellant argues that, even assuming that his bilateral knee disability preexisted service, the Board clearly erred when it found that his condition was not aggravated by service. Appellant’s Br. at 21-
24; Reply Br. at 10-12.

A. April 2012 Private Medical Opinion
With respect to the appellant’s first argument, that the Board failed to
consider all material
evidence in the record, he argues that the Board’s failures to (1) fairly
assess the April 20, 2012,
medical opinion of Dr. Beauvais, (2) seek clarification from Dr. Beauvais,
or (3) explain why such
clarification was unnecessary violate VA’s duty to consider all material
evidence in the record and
this Court’s decision in Savage v. Shinseki, 24 Vet.App. 259 (2011).
Appellant’s Br. at 9, 8-11;
Reply Br. at 2-4. Initially, the Board acknowledged Dr. Beauvais’s opinion
and noted “that Dr.
Beauvais did not provide any rationale to support his opinion that the
bilateral knee disability was
aggravated during or as a result of [the appellant’s] militaryservice.” R.
at 13. The Board stated that
“[o]n the other hand, the August 2012 VA examiner reviewed the claims file,
interviewed and
examined the [a]ppellant, and provided a detailed and adequate reasoning
and bases for the opinion
3

that it [sic] the [a]ppellant’s bilateral knee disability existed prior to
service and was not permanently
worsened or aggravated” during service. Id. The Board concluded that “[f]
or these reasons, the
opinion by the August 2012 VA examiner is afforded great probative value.”
Id.
Thus, contrary to the appellant’s assertion, the Board did not dismiss the
probative value of
Dr. Beauvais’s opinion, Appellant’s Br. at 9; rather, the Board assigned
greater probative value to the
August 2012 VA examiner’s opinion and the Court is not convinced that the
Board clearly erred in
doing so. See Hood v. Shinseki, 23 Vet.App. 295, 299 (2009) (“The Court
reviews factual findings
under the ‘clearly erroneous’ standard.”); Washington v. Nicholson, 19 Vet.
App. 362, 367–68 (2005)(noting that it is the Board’s duty, as fact finder, to assess the credibility and probative weight of all relevant evidence); see also White v. Principi, 243 F.3d 1378, 1381 (Fed.  Cir. 2001) (noting that the Board is not required to give more probative weight to the opinion of the treating physician).
Moreover, the appellant’s reliance on Savage is misplaced as the Court in Savage “explicitly limited VA’s duty to seek clarification of private medical reports to situations where ‘the missing information is relevant, factual, and objective–that is, not a matter of opinion.'” Carter v. Shinseki, 26 Vet.App. 534, 545 (2014) (citing Savage, 24 Vet.App. at 270). As the information sought in this case is a matter of opinion, it falls outside the limited scope of Savage.
Moreover, as recently clarified in Carter, the Court in Savage “held that when a private medical report is the only evidence on a material issue, and material medical evidence can no longer be obtained as to that issue, yet clarification of a relevant, objective fact would render the private medical report competent for the assignment of weight,” VA must attempt to obtain such clarification. Id. at 545 (citing Savage, 24 Vet.App. at 276). Here, the August 2012 C&P opinion addresses the precise issue discussed by Dr. Beauvais’s opinion. Compare R. at 110 (Dr. Beauvais’s April 2012 opinion), with R. at 75-90 (August 2012 C&P opinion). Thus, even without Dr. Beauvais’ opinion, there is competent medical evidence answering the question at issue. See Carter, 26 Vet.App. at 545.
Accordingly, the Board was not required to seek clarification from Dr. Beauvais and the appellant
has not satisfied his burden of demonstrating error on appeal. See Hilkert v. West, 12 Vet.App.
145, 151 (1999)(en banc)(“An appellant bears the burden of persuasion on appeals to this Court.”),
aff’d per curiam, 232 F.3d 908 (Fed. Cir. 2000) (table).
4

B. Adequacy of the August 2012 C&P Opinion
With respect to the appellant’s second argument, that the Board relied on
inadequate medical
opinions to find that his disability preexisted service, to the extent
that the appellant argues that,
because his October 1977 pre-enlistment examination lists his lower
extremities as normal, he is
presumed to have been in sound condition upon entry into service,
Appellant’s Br. at 15-16, 20, the
Board correctly noted that he cannot rely on the presumption of soundness
for his period of
ACDUTRA, R. at 10. Paulson v. Brown, 7 Vet.App. 466, 470 (1995). Moreover,
the appellant
asserts that “[b]ecause of the suddenness and acuteness of [his] condition,
and the fact that it never
manifested until service, it is apparent that [his] knee condition was
incurred during his service.”
Appellant’s Br. at 16. However, neither the appellant nor his counsel has
demonstrated that they
possess any medical expertise, and the Court cannot accept the appellant’s
counsel’s lay assertion as
evidence of a medical connection or diagnosis. Hyder v. Derwinski, 1 Vet.
App. 221, 2525 (1991)
(“Lay hypothesizing . . . serves no constructive purpose and cannot be
considered by the Court.”).
The appellant also contends that the Board erred by relying on the August
2012 VA opinion
as the examiner made an “unjustifiable statement” that the progression of
his disease was a natural
course of progression. Appellant’s Br. at 17. Here, the Board determined
that the August 2012
opinion was adequate as the “VA examiner provided a detailed summaryof the [
a]ppellant’s medical
and service history,” R. at 11, and as the opinion was “clear, detailed,
based on the record, and
supported by the overall evidence of record,” R. at 13. Indeed, the August
2012 VA examiner
reviewedtheappellant’s claimsfile,conductedanexamination,
notedtheappellant’s pastandcurrent
medical history, including x-ray images, and provided a rationale for her
opinion. R. at 75-90. In
doing so, the examiner noted that
because [OCD] is a condition in which a segment of articular cartilage
. . . gradually
separates from the surroundingosteocartilaginous tissue, the gradual
worseningover
time . . . described by [Dr. Beauvais], would be expected as a natural
course of the
disease process and not a representation of service aggravation from very
few days
of active service.
R. at 89. The Court holds that the Board’s determination that the August
2012 VA medical opinion
was adequate is not the product of clear error. See D’Aries v. Peake, 22
Vet.App. 97, 104 (2008)
5

(holding that whether a medical opinion is adequate is a finding of fact,
which the Court reviews
under the “clearly erroneous” standard); see also Hood, 23 Vet.App. at 299.
Similarly, the appellant’s argument that the Board erred by relying on the
January 1978
Medical Board opinion is inaccurate and not persuasive. Appellant’s Br. at
11-21. The January1978
Medical Board examiner noted that the appellant “has a long history of
pain in both knees
particularly with any heavy physical activity” and that “[s]ince coming on
active duty, he has had
persistent trouble with his knees.” R. at 376. The appellant argues that
his admission that he had
a long history of bilateral knee pain never took place and “that this was
nothing more than an
unjustifiable conclusion of the Medical Board.” Appellant’s Br. at 19. The
appellant cites no
evidence of record that he presented this argument to the Board. Indeed,
the premise of his argument
is basedonextra-recordevidence,namelythetestimonyoftheappellant’s
counselthattheappellant’s
admission that he had a long history of knee pain to the 1978 Medical
Board examiner never took
place. The Court is precluded from considering any material that is not
contained in the record,
including the testimony provided by the appellant’s counsel. See 38 U.S.C.
§ 7252(b); Rogozinski
v. Derwinski, 1 Vet.App. 19, 20 (1990) (holding that review in this Court
shall be on the record of
proceedings before the Secretaryand the Board). Therefore, the Court
maynot and will not consider
any of the arguments premised on extra-record evidence or opinion.

C. Entitlement to Service Connection
Theappellant’s third argument,thatevenassumingthathis
bilateralkneedisabilitypreexisted
service, the Board clearly erred when it found that the appellant’s
condition was not aggravated by
service, is unavailing. The appellant specifically argues that “the record
contains ample evidence
that, . . . [his] knee condition was aggravated during service . . . ,
including the abrupt change from
the [a]ppellant experiencing no pain or symptoms prior to his enlistment
to, over time, the constant
and debilitating knee pain that he suffers today.” Appellant’s Br. at 21;
Reply Br. at 10-12.
Evaluations of the weight to be accorded evidence, however, are solely
within the province of the
Board. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (it is the
Board’s duty “to analyze
the credibility and probative value of the evidence”); Owens v. Brown, 7
Vet.App. 429, 433 (1995)
(it is the province of the Board to weigh and assess the evidence of
record); Wood v. Derwinski,
1 Vet.App. 190, 193 (1991) (The Board “has the duty to assess the
credibilityand weight to be given
6

to the evidence. Such assessments will be overturned only if ‘clearly
erroneous.'” (quoting Gilbert
v. Derwinski, 1 Vet.App. 49, 52 (1990))). The Court holds that the
appellant’s arguments amount
to mere disagreements with how the Board weighed and evaluated the
evidence of record and do not
demonstrate clear error. Appellant’s Br. at 21-24; see Madden, 125 F.3d at
1481; Owens, 7 Vet.App.
at 433; Wood, 1 Vet.App. at 193; see also Hood, 23 Vet.App. at 299.
III. CONCLUSION
After consideration of the appellant’s and the Secretary’s briefs, and a
review of the record,
the Board’s March 18, 2013, decision is AFFIRMED.
DATED: July 31, 2014
Copies to:
Chitra M. Kalyanaraman, Esq.
VA General Counsel (027)
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