Veteranclaims’s Blog

October 15, 2014

Single Judge Application; El-Amin v. Shinseki, 26 Vet.App. 136, 140 (2013); Does “related to” encompasse aggravation

Excerpt from decision below:

“In regard to the appellant’s argument that the February 2011 VA medical opinion was inadequate for failing to consider his lay statements that his depression began upon his discharge from service, the Board found such statements not credible and the appellant has not challenged that finding. Accordingly, the examiner could not have relied on those statements. See Reonal v. Brown, 5 Vet.App. 458, 461 (1993) (“An opinion based on an inaccurate
factual premise has no probative value.”).
In regard to the appellant’s contention that the opinion was inadequate for failing to directly address whether his service-connected disabilities aggravated his depression, the Court finds that the Board’s decision lacks adequate reasons or bases. See Allday v. Brown, 7 Vet.App. 517, 527(1995) (Board’s statement of reasons or bases for its decision “must be adequate to enable a claimant to understand the precise basis for the Board’s decision, as well as to facilitate informed review in this Court”). The Board found that “the weight of the evidence reflects that none of the Veteran’s service-connected disabilities caused or aggravated the Veteran’s depression.” R. at 10. With respect to aggravation, the Board characterized the examiner’s opinion as determining that the appellant’s depression “is not related to his . . . service-connected disabilities” and concluded that “there is no reliable evidence linking an increase in disability (aggravation) to a service[-]connected disease or injury.” R. at 11. However, the examiner did not explicitly opine on secondary aggravation and the Board failed to determine with sufficient explanation whether a medical opinion as to secondary aggravation was required and, if so, whether the examiner sufficiently addressed the aggravation
6

issue. In this regard, the Court notes the discussion in El-Amin v. Shinseki that an examiner’s use of the phrase “related to” is subject to interpretation as to whether it adequately encompasses aggravation under the particular facts at issue. 26 Vet.App. 136, 140 (2013). Although the Secretary argues that the examiner was not required to address the issue of secondary aggravation because it was not raised by the record, the Board made no such finding and instead chose to explicitly address that issue, thus raising the further issue, under the circumstances here, as to the adequacy of the VA examination in that regard. The Secretary offers no other arguments in
response to the appellant’s contentions.
Because the Board’s failure to sufficiently address the above-described issues frustrates judicial review, the Court will remand the issue of service connection for depression as secondary to the appellant’s service-connected disabilities for the Board to provide an adequate discussion.”

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

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 13-3398
JAMES H. LAQUEY, APPELLANT,
V.
ROBERT A. MCDONALD,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before PIETSCH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
PIETSCH, Judge: James H. Laquey appeals through counsel a November 1, 2013,
decision
of the Board of Veterans’ Appeals (Board) that denied (1) entitlement to
service connection for
depression as secondary to service-connected residuals of bilateral
osteoma (bone growth) removal
from the frontal sinus and (2) a total disability rating based on
individual unemployability (TDIU)
for service-connected disabilities. This appeal is timely and the Court
has jurisdiction pursuant to
38 U.S.C. §§ 7252(a) and 7266(a). The appellant essentially asserts that
the Board erred in
concludingthatVAmedicalopinions wereadequateforpurposesof
adjudicatingtheclaims. Single-
judge disposition is appropriate because the issue is of “relative
simplicity” and “the outcome is not
reasonably debatable.” Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
For the reasons set forth below, the Court will vacate the Board’s
November 2013 decision
and remand the matter for further proceedings consistent with this
decision.
I. BACKGROUND
The following summaryof the claim historymost relevant to the issues on
appeal is reflected
in the record of proceedings before the Court (record of proceedings).

The veteran served on active dutyin the U.S. Air Force from January1949
to February1950.
Record (R.) at 328. While in service, the appellant underwent surgery to
remove a bone growth
(osteoma) from his forehead/sinus region.
R. at 860.
The surgery resulted in significant
disfigurement including a depression in the forehead and a missing part of
the frontal sinus. R. at
777. In November 2007, a VA examiner, Dr. Fancher, Jr., diagnosed nasal
septal deviation and
chronic pansinusitis. R. at 778. He noted that a recent computerized
tomography (CT) scan of the
sinuses resulted in an impression of bilateral maxillary and frontal
ethnoid sinus disease with
occlusion of the right ostiomeatal unit. Id.; see also R. at 734-37 (CT
scan results).
The record reveals that the appellant is serviceconnectedforresidualsofhis
osteoma surgery
(rated as 50% disabling) and for frontal head disfigurement (rated as 30%
disabling). R. at 12, 77.
The appellant filed a claim for an increased rating in the form of a TDIU
in December 2007.
R. at 754-57. In an April 2009 VA medical examination report, Dr. Fancher
indicated that the
appellant continues to have chronic postnasal drainage and nasal
congestion. R. at 446. The doctor
further noted that pain was not an issue and that over the past year the
appellant apparently had not
had incapacitating episodes of chronic sinusitis. Id. The appellant
reported that he was forced to
retire from his job as a truck driver because of problems related to heavy
lifting. Id.
In November 2010, the Board remanded the issue of a TDIU, explaining in
part that Dr.
Fancher failed in his April 2009 report to sufficiently address employment-
related functional
limitations causedbytheservice-connecteddisabilities. R.at374,442-47(
examination report). The
Board elaborated: “[A]fter stating that the Veteran’s service-connected
disabilities would not make
him unemployable or affect employability, the sinus examiner then stated
that, ‘it should be noted
that specific medical issues could certainly affect employability.’ The
meaning of this statement is
unclear and needs additional explanation.” Id.
In the same decision, the Board found that “[t]he issue of entitlement to
service connection
for depression, as secondary to the service-connected osteoma residuals,
has been raised by the
record, but has not been adjudicated by the Agency of Original
Jurisdiction (AOJ).” R. at 372.
Although the Board did not explain how the issue was raised by the record,
the Court notes that the
appellant had submitted a statement asserting that he experienced
depression since his discharge
from service. R. at 415-416. The Board referred the issue to the AOJ for
appropriate action. Id.
2

In January 2011, Dr. Fancher responded to the Board’s remand by issuing a
January 2011
addendum. R. at 325. He stated that he had nothing to add to his previous
statement that none of
the issues for which he evaluated the appellant would make him
unemployable. Id.
In February2011, the appellant wasafforded a VA examination for the
purpose of evaluating
a mental condition as possibly secondary to service-connected disabilities.
R. at 318-24. After
interviewing the appellant and reviewing the claims file, the examiner
diagnosed “depression NOS
[(not otherwise specified)].” R. at 318-19, 323. The appellant reported
that his last employment was
as a truck driver, that he was a good employee and had good relationships
with his co-workers, and
that his retirement from that job in 2004 was not due to the effects of a
mental disorder, but rather,
was by choice and due to health problems that had resolved. R. at 320. The
examiner noted the
appellant’s report that his symptoms of depression began in his “early
60’s” and that he had “no idea
what to attribute it to.” R. at 322. The examiner further noted the
appellant’s report that he became
a caregiver for his wife due to health issues that “began in her 60’s.” R.
at 322-23. The examiner
concluded that the appellant’s mental condition did not impact his basic
activities of dailyliving and
caused “no difficulties” with employment. R. at 321, 323. With respect to
secondary service
connection, the examiner opined:
Depression is most likely caused by or a result of caregiver stress; [
veteran’s
symptoms] began when his wife began having health problems and worsened as
her
health became impaired and after he retired. He himself does not attribute
his
depression to his [history] of osteoma today. There is no evidence that
veteran’s
mood difficulties are in any way related to his military service.
R. at 324.
In December 2011, the appellant was afforded a VA medical examination for
the purpose of
evaluating his rating for scars and disfigurement. R. at 117-32. The
examiner noted the appellant’s
report that none of his scars was painful. R. at 125. The examiner further
indicated that none of the
appellant’s scars or disfigurements resulted in limitation of function,
involved other complications,
or impacted his ability to work. R. at 130.
In the decision under review, the Board denied service connection for
depression as
secondary to service-connected residuals of osteoma surgery, relying
heavily on the negative nexus
opinion of the February 2011 VA examiner. R. at 9. The Board also found
not credible the
3

appellant’s statements that his depression began upon his discharge from
service. R. at 10. With
respect to a TDIU, the Board determined that the appellant was eligible
for consideration of a TDIU
under 38 C.F.R. § 4.16(a). R. at 12. However, the Board denied a TDIU,
citing evidence that the
appellant retired by choice from his truck driving job in June 2004 due to
physical limitations that
prevented him from performing heavy lifting and the medical opinions of
record that the appellant’s
service-connected disabilities had no impact on his ability to be employed.
R. at 14-15.
Before the Court, the appellant argues that the February 2011 VA nexus
opinion as to his
depression was inadequate for failing to consider his laystatements as to
the inception of depression
symptoms upon discharge from service and for failing to explicitly opine
as to whether his
depression was aggravated by his service-connected disabilities. In the
alternative, he argues that
the Board failed to provideadequate reasons or basesforits determination
thatthe VA nexus opinion
was adequate with respect to the question of secondary service connection
based on aggravation.
With respect to a TDIU, the appellant argues that Dr. Fancher January 2011
addendum was
inadequate for failing to comply with the Board’s instruction to elaborate
on his previous statement
that specific medical issues could certainly affect employability.
The Secretary disagrees and argues that the Court should affirm the
Board’s decision.
II. ANALYSIS
A. Service Connection for Depression
Establishing service connection generally requires medical or, in certain
circumstances, lay
evidence of (1) a current disability; (2) an in-service incurrenceor
aggravation of a disease or injury;
and (3) a nexus between the claimed in-service disease or injury and the
present disability.
See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West,
12 Vet.App. 247, 253
(1999); Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78
F.3d 604 (Fed. Cir. 1996)
(table).
Secondary service connection may be awarded when a disability “is
proximately due to or
the result of a service-connected disease or injury.” 38 C.F.R. § 3.310(a
) (2014). “Additional
disabilityresultingfromtheaggravationofanon-service-
connectedconditionbyaservice-connected
condition is also compensable under 38 C.F.R. § 3.310(a).” Allen v. Brown,
7 Vet.App. 439, 448
4

(1995) (en banc). In this context, aggravation means “any increase in
disability,” as “distinguished
from the more specific form of the term ‘aggravation’ used in 38 U.S.C. §
1153, . . . which authorizes
compensation for an increase in disability resulting from aggravation
during service of an injury or
disease which existed before service.” Id. at 445, 448-49. Where secondary
aggravation is found,
the claimant is compensated for the degree of disability over and above
the degree of disability
existing prior to the aggravation. Id. at 448.
The Board has a duty to address all theories of service connection
reasonably raised either
by a liberal reading of the appellant’s submissions or by the contents of
the record. See Robinson v.
Peake, 21 Vet.App. 545, 552–56 (2008), aff’d sub nom. Robinson v.
Shinseki, 557 F.3d 1355 (Fed.
Cir. 2009); see also Delisio v. Shinseki, 25 Vet.App. 45, 53 (2011) (“upon
the filing of a claim for
benefits, the Secretarymust investigate the reasonablyapparent and
potential causes of the veteran’s
condition and theories of service connection that are reasonably raised by
the record or raised by a
sympathetic reading of the claimant’s filing”). “It is entirely possible
that the record might ‘indicate’
a theory of entitlement, but that a lay appellant might not be
sophisticated enough to recognize the
theory.” Robinson, 21 Vet.App. at 553.
Althoughamedicalexamination isnot requiredin everycase,”
oncetheSecretaryundertakes
the effort to provide an examination when developing a service-connection
claim, . . . he must
provide an adequate one.” Barr v. Nicholson, 21 Vet.App. 303, 311 (2007);
see also Daves
v. Nicholson, 21 Vet.App. 46, 51-52 (2007). 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. 102, 123 (2007) (
quoting Ardison v. Brown,
6 Vet.App.405, 407 (1994);Greenv.Derwinski,1Vet.App. 121, 124 (1991). When
an examination
is provided, the examiner must support his conclusions with an analysis
that is adequate for the
Board to consider and weigh against contrary opinions. Stefl, 21 Vet.App.
at 124. Thus, “[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).
5

The Board’s determination of 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, 104 (2008). “‘A 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.'” Gilbert v. Derwinski, 1
Vet.App. 49, 52 (1990)
(quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). When
applying this
standard, if the Court determines, after reviewing the record in its entirety, that the Board’s finding of fact is supported by a plausible basis, “‘the [Court] may not reverse it even though convinced that had it been sitting as trier of fact, it would have weighed the evidence differently.'” Id. (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573-74 (1985)).
In regard to the appellant’s argument that the February 2011 VA medical opinion was inadequate for failing to consider his lay statements that his depression began upon his discharge from service, the Board found such statements not credible and the appellant has not challenged that finding. Accordingly, the examiner could not have relied on those statements. See Reonal v. Brown, 5 Vet.App. 458, 461 (1993) (“An opinion based on an inaccurate
factual premise has no probative value.”).
In regard to the appellant’s contention that the opinion was inadequate for failing to directly address whether his service-connected disabilities aggravated his depression, the Court finds that the Board’s decision lacks adequate reasons or bases. See Allday v. Brown, 7 Vet.App. 517, 527(1995) (Board’s statement of reasons or bases for its decision “must be adequate to enable a claimant to understand the precise basis for the Board’s decision, as well as to facilitate informed review in this Court”). The Board found that “the weight of the evidence reflects that none of the Veteran’s service-connected disabilities caused or aggravated the Veteran’s depression.” R. at 10. With respect to aggravation, the Board characterized the examiner’s opinion as determining that the appellant’s depression “is not related to his . . . service-connected disabilities” and concluded that “there is no reliable evidence linking an increase in disability (aggravation) to a service[-]connected disease or injury.” R. at 11. However, the examiner did not explicitly opine on secondary aggravation and the Board failed to determine with sufficient explanation whether a medical opinion as to secondary aggravation was required and, if so, whether the examiner sufficiently addressed the aggravation
6

issue. In this regard, the Court notes the discussion in El-Amin v. Shinseki that an examiner’s use of the phrase “related to” is subject to interpretation as to whether it adequately encompasses aggravation under the particular facts at issue. 26 Vet.App. 136, 140 (2013). Although the Secretary argues that the examiner was not required to address the issue of secondary aggravation because it was not raised by the record, the Board made no such finding and instead chose to explicitly address that issue, thus raising the further issue, under the circumstances here, as to the adequacy of the VA examination in that regard. The Secretary offers no other arguments in response to the appellant’s contentions.
Because the Board’s failure to sufficiently address the above-described issues frustrates judicial review, the Court will remand the issue of service connection for depression as secondary to the appellant’s service-connected disabilities for the Board to provide an adequate discussion.

B. TDIU
Having determined that a remand is warranted on the issue of secondary
service connection
for depression, the Court finds it premature to address the appellant’s
arguments regarding the
Board’s denial of a TDIU. Because a TDIU must be evaluated in light of the
effects of all of a
veteran’s service-connected disabilities, evaluation of a TDIU is
inextricably intertwined with the
issue of service connection for depression. See Henderson v. West, 12 Vet.
App. 11, 20 (1998)
(“[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.” (quoting Harris v.
Derwinski, 1 Vet.App. 180, 183 (1991)(alteration in original)); Hatlestad
v. Brown, 5 Vet.App.524,
529 (1993) (the central inquiry in considering a TDIU is “whether that
veteran’s service-connected
disabilities alone are of sufficient severity to produce unemployability”).
The Board’s denial of a
TDIU therefore will be vacated and remanded for further consideration in
conjunction with the
question of service-connection for depression. See Harris, 1 Vet.App. at
183.
On remand, the appellant maypresent, and the Board must consider,
anyadditional evidence
and argument in support of the matters remanded. See Kay v. Principi, 16
Vet.App. 529, 534 (2002);
Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order).
The Court has held that
“[a] remand is meant to entail a critical examination of the justification
for the decision.” Fletcher
7

v. Derwinski, 1 Vet.App. 394, 397 (1991). This matter is to be provided
expeditious treatment on
remand. See 38 U.S.C. § 7112.

III. CONCLUSION
Upon consideration of the foregoing analysis, the record of proceedings, and the filings of the parties, the November 1, 2013, Board decision is VACATED and the matters addressed therein are REMANDED for further proceedings consistent with this decision.
DATED: September 25, 2014
Copies to:
Robert V. Chisholm, Esq.
VA General Counsel (027)
8

Advertisements

Leave a Comment »

No comments yet.

RSS feed for comments on this post. TrackBack URI

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Blog at WordPress.com.

%d bloggers like this: