Veteranclaims’s Blog

September 3, 2014

Single Judge Application; Wise v. Shinseki, 26 Vet.App. 517, 530(2014); Negative Linkage Opinion

Excerpt from decision below:

“The Board’s reliance on the September 2011 opinion that there was no connection between the spine and ankle conditions or spine and knee condition because a majority of medical literature did not support a connection renders it uncertain whether the Board used the correct legal standard in assessing secondary service connection for the claimed conditions. R. at 15. In Wise v. Shinseki, this Court found that the Board’s acceptance of a negative linkage opinion based on the fact that a causal relationship had not been established to the point of being generally accepted in the scientific community raised the issue of whether the Board’s decision “ran afoul of the benefit of the doubt rule.” 26 Vet.App. 517, 530(2014). The Court cannot conclude, given the Board’s unquestioning acceptance of examiner’s statement that a “majority” of medical literature does not support a connection, that the Board did not run afoul of the benefit of the doubt rule here as well. 

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 13-1011
RICHARD D. TEELE, APPELLANT,
V.
SLOAN D. GIBSON,
ACTING 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 Richard D. Teele appeals through counsel a
February 6, 2013,
Board of Veterans’ Appeals (Board) decision that denied service connection
for a right knee
disability and a bilateral ankle disability.1
Record (R.) at 3-21. 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 to review the Board’s decision. 38 U.S.C. §§ 7252(
a) and 7266(a). For the
reasons that follow, the Court will set aside the February2013 Board
decision and remand the matter
for further proceedings.
I. FACTS
Mr. Teele served on active duty in the U.S. Navy from June 1985 to June
1990, and from
January to April 1991. R. at 4, 705, 2956, 2986, 3016. In May 1989, he was
treated for complaints
Mr. Teele does not present any argument concerning the Board’s finding of
no clear and
unmistakable error in a November 1990 rating decision that denied service
connection for tinnitus and
expressly notes that he is not appealing this portion of the decision.
Appellant’s Brief at 2. Accordingly, the
Court will not address that issue. See DeLisio v. Shinseki, 25 Vet.App. 45,
47 (2011) (Court’s disposition
of case addressed only those portions of the Board decision argued on
appeal).
1

of right knee pain and popping. R. at 2693. The examiner noted mild edema,
crepitus, and patella
apprehension tenderness and diagnosed “overuse syndrome.” R. at 2693.
In July 1990, Mr. Teele submitted a claim for service connection for right
and left knee and
ankle disabilities and a low back disability. R. at 2625-28. In August
1990, a VA physician examined
Mr. Teele’s back, ankles, and left knee and diagnosed chronic low back
strain, a history of ankle
strains, and old trauma to the left knee, currently asymptomatic. R. at
2602. He gave an impression
of normal ankles and a normal left knee. R. at 2610. The examination
report contains no reference
to the veteran’s right knee. R. at 2600-19. In November 1990, VA denied
the knee and ankle claims
and granted service connection for the low back disability. R. at 2590-93.
Mr. Teele filed a timely
Notice of Disagreement (NOD) that did not address the right-knee or
bilateral-ankle disabilities. R.
at 2583-84.
In July 2007, Mr. Teele submitted a claim for service connection for a
knee condition and
a bilateral ankle condition, both claimed as secondary to back strain. R.
at 2147-48, 2150. In April
2008,aVAjoints examiner diagnosed degenerative joint disease (DJD) in both
kneesandanklesand
opined that those disabilities were “not related in any way to his [
service-connected] conditions
because none of these conditions are known to cause these secondary
conditions.” R. at 1763. He
also opined: “None of these secondary conditions have been aggravated by
his [service-connected]
conditions.” Id. VA denied the claims and Mr. Teele filed a timely NOD and
appealed to the Board.
R. at 148-49, 901-02, 1672-88.
In August 2011, the Board reopened the knee and ankle claims and remanded
them for
further development and readjudication. R. at 101-18. The Board found the
April 2008 VA opinion
inadequate because the examiner did not opine as to direct service
connection and provided no
rationale for his opinion as to secondary service connection based on
aggravation. R. at 115.
Accordingly, it ordered a new VA examination and opinion and ordered that
the examiner provide
“a complete rationale for any opinion expressed” as to these issues. R. at
116-17.
In September 2011, a VA knee examiner diagnosed right knee DJD. R. at 81.
Noting the in-
service 1989 right knee complaint and absence of treatment records between
1990 and 2000, the
examiner opined as to direct service connection that “it is less likely
than not that his current right
knee condition was directly caused by the one episode of treatment in the
military. The mild right
2

knee DJD is likely the result of aging.” R. at 88. As to whether the
right knee condition was as likely
as not caused by or aggravated by the service-connected spine condition,
the examiner stated:
[A] previous C&P examination provides the opinion that the knee condition
was not
related to the spine condition. I agree with the previous opinion. It is
not likely that
the spine condition caused or permanentlyaggr[a]vated the right knee
condition. The
majority of the medical literature as well as my own experience as a spine
specialist
does not support a connect [sic] between a spine condition and a knee
condition.
R. at 88.
That same examiner performed a September 2011 VA ankle examination and
diagnosed
bilateral ankle DJD. R. at 74. After noting that there was no record of
ankle treatment for years after
separation, the examiner opined as to direct service connection that “it
is less likely than not that the
current bilatera[l] ankle [DJD] was directlycaused byor permanentlyaggr[a]
vated byhis time in the
service. It is more likely a result of aging.” R. at 79. As to whether
bilateral ankle DJD was as likely
as not secondary to, that is, caused or aggravated by, the service-
connected spine condition, the
examiner stated:
[A] previous C&P examination provides the opinion
that the bilateral ankle condition
was not related to the spine condition. I agree with the previous opinion.
It is not
likely that the spine condition caused or permanentlyaggr[a]vated the
bilateral ankle
condition. The majority of the medical literature as well as my own
experience as a
spine specialist does not support a connect [sic] between a spine
condition and an
ankle condition.
R. at 79. In May 2012, VA continued to deny the claims. R. at 50-65.
In February 2013, the Board issued the decision on appeal. R. at 3-21. The
Board stated that
theSeptember2011VAexamination reports included “extensive rationale for
theopinion provided”
and concluded that VA satisfied its duty to assist and substantially
complied with the August 2011
remand order. R. at 8-9. On the merits, the Board denied the claims based
on a lack of evidence
linking the disabilities to service or to Mr. Teele’s service-connected
back disability. R. at 15-18.
This timely appeal followed.
II. ANALYSIS
Mr. Teele argues that the Board erred when it found that VA satisfied its
duty to assist and
also that it failed to comply with the August 2011 remand order because it
relied on the September
3

2011 negative linkage opinions in which the VA examiner provided no
medical reasoning for his
conclusions. Appellant’s Brief (Br.) at 5. He also argues that these
errors render the Board’s reasons
or bases inadequate. Id. at 6. The Secretary responds that the September
2011 negative linkage
opinions are “more than adequate” because they address all relevant issues
and include a clear
opinion supported by an adequate rationale. Secretary’s Br. at 9. Mr.
Teele’s arguments are
persuasive.
A VA medical examination or opinion is adequate if it is “thorough and
contemporaneous,”
considers the veteran’s prior medical examinations and treatment, and “
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)). “[A] medical examination report must contain 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 medical opinion “must support its
conclusions with an
analysis that the Board can consider and weigh against contrary opinions.”
Stefl, 21 Vet.App. at 124;
see Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 304 (2008) (“most of the
probative value of a
medical opinion comes from its reasoning”); see also Hicks v. Brown, 8 Vet.
App. 417, 421 (1995)
(inadequate medical evaluation frustrates judicial review).
Whether a medical opinion is adequate is a finding of fact that the Court
reviews for clear
error. See D’Aries v. Peake, 22 Vet. App. 97, 104 (2008). Under this
standard, the Court “will not
disturb a Board finding unless, based on the record as a whole, the Court
is convinced that the
finding is incorrect.” Hood v. Shinseki, 23 Vet.App. 295, 299 (2009); see
Gilbert v. Derwinski,
1 Vet.App. 49, 52 (1990) (“‘the [Court] may not reverse [a factual finding]
even though convinced
that had it been sitting as the trier of fact, it would have weighed the
evidence differently.'” (quoting
Anderson v. City of Bessemer City, 470 U.S. 564, 573-74 (1985))).
Every Board decision must include a written statement of reasons or bases
for its findings
and conclusions on all material issues of fact and law; this statement
must be adequate to enable the
appellant to understand the precise basis for the Board’s decision and to
facilitate informed review
by this Court. 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517,
527 (1995). The Board
must analyze the credibility and probative value of the evidence, account
for the persuasiveness of
4

the evidence, and provide reasons for rejecting any material evidence
favorable to the claimant.
Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (
Fed. Cir. 1996) (table).
In this case, the September 2011 examiner provided no rationale to support
his negative
linkage opinions as to direct service connection. R. at 88.2
He simply listed two facts and then
concluded, without explanation, that “it is less likely than not that his
current right knee condition
was directly caused by the one episode of treatment in the military. The
mild right knee DJD is likely
the result of aging.” Id. However, “a medical examination report must
contain not only clear
conclusions with supporting data, but also a reasoned medical explanation
connecting the two.”
Nieves-Rodriguez, 22 Vet.App. at 301. Because the examiner failed to
provide a rationale
connecting the facts he cited to his conclusion concerning direct service
connection, those portions
of the September 2011 examination reports pertaining to direct service
connection for the right knee
and bilateral ankle conditions are inadequate and remand of those matters
is required for the Board
to obtain clarification concerning the September 2001 opinion or a new
opinion altogether. See
Hicks, 8 Vet.App. at 421.
In addition, the September 2011 examiner related three reasons for his
conclusion that it was
less likely than not that the right knee and bilateral ankle conditions
were secondary to the service-
connected spine condition: (1) he agreed with the conclusion of a 2008 VA
examiner who provided
a negative linkage opinion; (2) the majority of medical literature did not
support a connection
between a spine condition and a knee condition; and (3) based on his
experience as a spine specialist
he did not believe there was a connection. R. at 88. Although no reasons
or bases requirement is
imposed on medical experts who provide opinions, Acevedo v. Shinseki, 25
Vet.App. 286, 293
(2012), the Board is bound by such a requirement, 38 U.S.C. § 7104(d)(1).
As explained below, the
Court concludes that the Board failed to provide reasons or bases for its
reliance on the part of the
September 2011 opinion related to secondary service connection for right
knee and bilateral ankle
conditions.
The examiner used virtually identical language to support both the
negative linkage opinion for the
knee and the negative linkage opinion for the ankles. See R. at 76, 88.
Therefore, the Court will discuss the
opinions together, as the same deficiencies in rationale apply to both
opinions.
2
5

First, the Board failed to discuss the 2011 examiner’s seeming reliance
on the 2008 negative
linkage opinion that the Board had previously rejected as inadequate
because, among other
deficiencies, it provided no rationale. The Board’s failure to discuss the
2011 examiner’s apparent
reliance on the 2008 opinion that the Board had rejected renders
inadequate the Board’s reasons or
bases for its decision. See Gilbert, 1 Vet.App. at 57.
Next, veterans benefits law requires an “approximate balance of positive
and negative evidence” to prove any issue material to a claim. 38 U.S.C. § 5107(b).
The Board’s reliance on the September 2011 opinion that there was no connection between the spine and ankle conditions or spine and knee condition because a majority of medical literature did not support a connection renders it uncertain whether the Board used the correct legal standard in assessing secondary service connection for the claimed conditions. R. at 15. In Wise v. Shinseki, this Court found that the Board’s acceptance of a negative linkage opinion based on the fact that a causal relationship had not been established to the point of being generallyaccepted in the scientific community raised the issue of whether the Board’s decision “ran afoul of the benefit of the doubt rule.” 26 Vet.App. 517, 530(2014). The Court cannot conclude, given the Board’s unquestioning acceptance of examiner’s statement that a “majority” of medical literature does not support a connection, that the Board did not run afoul of the benefit of the doubt rule here as well. The Board’s failure to discuss this issue frustrates judicial review and renders inadequate the reasons or bases for its decision. See id. at 530-31; Allday, 7 Vet.App. at 527; Caluza, 7 Vet.App. at 506.
Third, the examiner referenced his experience as a spine specialist. R. at 88. Absent any irregularity, “VA benefits from a presumption that it has properly chosen a person qualified to provide a medical opinion in a particular case.” Parks v. Shinseki, 716 F. 3d 581, 585 (Fed. Cir. 2013)(citing Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011)); Wise, 26 Vet.App. at 524-27. It is presumed that VA followed a regular process that ordinarily results in the selection of a competent medical professional. Parks, 716 F.3d at 585 (“Viewed correctly, the presumption [of competence] is not about the person or a job title; it is about the process.”). Thus, absent clear evidence to the contrary sufficient to rebut the presumption of competence, the fact that a person was chosen by VA to provide an opinion generally assures that person’s competence to provide the requested opinion.
6

Sickels v. Shinseki, 643 F.3d1362,1366(Fed.Cir. 2011). Therefore,
theSeptember2011examiner’s
competence to give an opinion on the matters at issue is not in question.
However, given the deficiencies related to the other bases for the
September 2011 opinion
asto secondaryserviceconnection, theexaminer’s generalreferenceto his
experience,without more,
does not salvage this opinion. See Nieves-Rodriguez, 22 Vet.App. at 304 (“
most of the probative
value of a medical opinion comes from its reasoning”); Stefl, 21 Vet.App.
at 124 (medical opinion
“must support its conclusions with an analysis that the Board can consider
and weigh against
contrary opinions”).
Accordingly, the Board erred in finding that “a complete and thorough
rationale [wa]s
provided for the September 2011 opinions from the VA examiner” as to
direct service connection
and in failing to provide adequate reasons or bases for its reliance on
the opinions as to secondary
service connection. R. at 15; see Ardison, 6 Vet.App. at 407 (holding that
the Board errs when it
relies on an inadequate medical examination report or opinion). The Board
thus erred in relying on
those opinions to deny service connection. See id. Remand is warranted to
correct that error. See
Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that remand is the
appropriate remedy”where
the Board has incorrectlyapplied the law, failed to provide an adequate
statement of reasons or bases
for its determinations, or where the record is otherwise inadequate”).
On remand, Mr. Teele is free to submit additional evidence and argument,
including the
arguments raised in his briefs 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. A final
decision by the Board
following the remand herein ordered will constitute a new decision that,
if adverse, maybe appealed
to this Court on the filing of a new Notice of Appeal with the Court not
later than 120 days after the
date on which notice of the Board’s new final decision is mailed to the
appellant. See Marsh v. West,
11 Vet.App. 468, 472 (1998).
7

III. CONCLUSION
Upon consideration of the foregoing, that portion of the Board’s February
2013 decision that
is on appeal is SET ASIDE and the matter is REMANDED to the Board for
further proceedings
consistent with this decision.
DATED: July 18, 2014
Copies to:
Glenn R. Bergmann, Esq.
VA General Counsel (027)
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