Veteranclaims’s Blog

January 19, 2015

Single Judge Application; VA Evidentiary Standard; Burden of Nonpersuasion is with VA; Wise v. Shinseki, 26 Vet.App. 517, 531 (2014);Examiner Impermissibly Relied Upon Lack of Evidence

Excerpt from decision below:

“In relying on this medical opinion, the Board did not explain how, given the evidentiary standards applicable in the veterans law context, this rationale–which appears to require nothing less than definitive scientific evidence establishing causation – was adequate to support a conclusion applying the “at least as likely as not” standard. See Wise v. Shinseki, 26 Vet.App. 517, 531 (2014) (noting that rather than mandate that “a medical principle reach the level of scientific consensus in order to support a claim for VA benefits,” Congress established a low standard in 38 U.S.C. 5107(b) authorizing VA to resolve scientific or medical questions in the claimant’s favor when the positive and negative evidence is in “approximate balance”); see also Jones v. Shinseki, 23 Vet.App. 382, 388 n.1 (2010) (noting that in the veterans benefits system, the benefit of the doubt on any material issue goes to the veteran if the evidence is in equipoise and the burden of nonpersuasion is with VA).

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

Thus, the examiner impermissibly relied on a lack of treatment records to find that there was no
6
evidence of aggravation. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (noting that VA’s examiner’s opinion, which relied on the absence of contemporaneous medical evidence, “failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran’s] disability such that his claim of serviceconnection could be proven”); Dalton v.Nicholson, 21 Vet.App. 23, 39 (2007) (finding a medical examination inadequate where the examiner “impermissibly ignored the appellant’s lay assertions that he had sustained a back injury during service”).

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

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 14-0338
ERIC F. DELANO, APPELLANT,
V.
ROBERT A. MCDONALD,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before SCHOELEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
SCHOELEN, Judge: The appellant,EricF. Delano, through counsel, appeals an
October24, 2013, Board ofVeterans’Appeals (Board)decisionin whichtheBoarddenied his
claim for disability compensation for alcoholism, to include as secondary to service-connected
panic disorder without agoraphobia and as secondaryto post-traumatic stress disorder (PTSD).
Record of Proceedings (R.)
at 3-15. This appeal is timely, and the Court has jurisdiction to review
the Board’s decision pursuant
to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is
appropriate. See Frankel v.
Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, the
Court will vacate the
decision and remand the matter for further proceedings consistent with
this decision.
I. BACKGROUND
The appellant served on active duty in the U.S. Marine Corps from November
2001 to
November 2005. R. at 1239. The appellant was treated for alcohol
dependence in September and
October 2007. R. at 973, 1001-02. At this time, the appellant reported
spending seven months in
an outpatient treatment program for substance use in 2003. Id. In November
2007, the appellant
submitted a claim for disability compensation for alcoholism and expressed
his belief that “PTSD
triggered [his] alcohol dependence.” R. at 993. In a January 2008 VA
examination, the examiner

opined that the appellant’s panic disorder did not cause or aggravate his
polysubstance dependence.
R. at 942.
A February 2008 rating decision denied the appellant’s claim. R. at 917-21.
As part of his
appeal, the appellant submitted several treatise articles suggesting a
link between psychiatric
disabilities and alcohol abuse. R. at 887-912. In a March 2010 VA
examination, the examiner
opined that the appellant’s panic disorder did not cause or aggravate his
alcohol dependence.
R. at 648. The Board denied the appellant’s claim in October 2010. R. at
401-31. On appeal to this
Court, the parties entered into a joint motion for remand (JMR) for the
Board to consider whether
the appellant’s recently service-connected PTSD caused or aggravated his
alcohol dependence.
R. at 315-21.
In August 2012, the appellant was afforded another VA examination. R. at
92-102. The
examiner began his opinion on causation by noting that “[t]o establish
causation or etiology, there
must be scientific proof of a cause and effect relationship.” R. at 99.
The examiner then reviewed
medical literature and opined that “a search of scientific literature . . .
reveals no scientific evidence
that PTSD causes (is the etiology) of alcohol dependence or other drug
dependencies.” R. at 101.
In March 2013, the Board remanded the appellant’s claim because the August
2012 VA examination
was incomplete – the examiner failed to address aggravation in his
opinion. R. at 56.
In April 2013, the examiner provided an addendum opinion repeating his
original medical
literature review and then adding:
As for aggravation of the alcohol dependence, there are no entries in CPRS
for the
veteran for alcohol treatment[;] his last treatment involvement was in
2007 with
SUDP at VAMC [VA medical center]. There is no scientific evidence to
indicate
that there is permanent aggravation of alcohol dependence by PTSD. This is
noted
above. The veteran goes against medical advisement to cease alcohol use.
The[re] is no scientific evidence that PTSD causes persistent aggravation of Alcohol Dependence. R. at 35. The examiner further stated that “[n]egative evidence is not a scientific proof of the cause and effect relationship. The burden of proof is on the individual who says there is a cause and ef[f]ect relationship to show that there is with scientific evidence.” Id.
Finally, the examiner included a note that
2

[I’m] not an expert of law, but I have read that there is Supreme Court ruling [that] established many years ago [that] alcohol dependence is willful misconduct and therefore the responsibility is the burden of proof of the veteran. The veteran has not sought out a reasonable level of treat[ment] for his alcohol dependence
that is a treatable condition. Id. The examiner concluded that the appellant’s alcohol dependence was
less likely than not caused or aggravated by his PTSD. R. at 31.
In the March 2013 decision on appeal, the Board relied on the VA examiner’s opinion that there was no scientific evidence that PTSD caused or permanently aggravated the appellant’s alcohol dependence. R. at 13. In discussing aggravation, the Board also noted that the appellant’s alcohol
and substance abuse began before he enlisted, but the Board acknowledged
that his alcohol use
“drastically increased in service.” R. at 14. The Board observed that the
appellant did not expressly
attribute his increase in consumption to exposure to a traumatic event. Id.
Finding the probative
evidence weighed against secondary service connection, the Board denied
the appellant’s claim.
R. at 13, 15. This appeal followed.

II. ANALYSIS
When VA undertakes to provide a medical examination or opinion, the Board
has a duty to
ensure the medical examination or opinion is adequate. See Barr v. Nicholson,
21 Vet.App. 303,311
(2007). An adequate medical examination is based upon consideration of the
veteran’s 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. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet.App. 405, 407 (
1994)) (internal
quotation marks omitted). Whether a medical opinion is adequate is a
finding of fact, which the
Court reviews under the “clearlyerroneous” standard. See 38 U.S.C. § 7261(
a)(4); D’Aries v. Peake,
22 Vet. App. 97, 104 (2008); Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990
). “‘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, 1 Vet.App.
at 52 (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
3

As with any determination, the Board must provide a statement of the
reasons and bases for
its determination, adequate to enable an appellant to understand the
precise basis for the Board’s
decision as well as to facilitate review in this court. See 38 U.S.C. §
7104(d)(1); Allday v. Brown,
7 Vet.App. 517, 527 (1995). It is the Board’s duty as factfinder to
analyze the credibility and
probative value of the evidence, account for the evidence that it finds
persuasive or unpersuasive,
and provide the reasons for its rejection of any material evidence
favorable to the claimant. See
Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d, 78 F.3d 604 (Fed. Cir.
1996) (table); Gilbert,
1 Vet.App. at 57. “[T]he Board cannot determine that layevidence lacks
credibilitymerely because
it is unaccompanied by contemporaneous medical evidence.” Buchanan v.
Nicholson, 451 F.3d
1331, 1337 (Fed. Cir. 2006).
The appellant argues that the August 2012 VA examination and April 2013
addendum are
inadequate, and the Board erred in relying on them. Appellant’s Brief (Br.)
at 4-8. Specifically, the
appellant asserts that the examiner applied the wrong evidentiary standard
and improperly provided
a negative opinion based on the fact that the appellant did not seek
treatment for his alcohol
dependence and the examiner’s opinion that alcohol dependence is willful
misconduct. Id. at 6-7.
The appellant further argues that the Board provided an inadequate
statement of reasons and bases.
Id. at 8-10. The Secretary argues that although the examiner may have
inappropriately discussed
whether alcohol dependence constituted willful misconduct, this statement
was separate from his
opinion and does not render the opinion inadequate.1
Secretary’s Br. at 4-9. The Secretary further
1
The Court agrees that the examiner’s superfluous statement that “alcohol
dependence is
willful misconduct” is inappropriate for two reasons. First, offering an
opinion on the law is outside
the purview of a medical examiner who serves as an expert witness on
medical questions. See
Sizemore v. Principi, 18 Vet.App. 264, 275 (2004) (faulting a VA examiner
for “expressing an
opinion on whether the appellant’s claimed in-service stressors have been
substantiated, [which] is
a matter for determination by the Board and not a medical matter” and
remanding for a new medical
examination to “remove whatever taint there maybe from [the examiner’s]
overreaching”); see also
Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 302 (2008) (explaining that VA
medical examiners
are “nothing more or less than expert witnesses” who provide opinions on
medical matters);
Moore v. Nicholson, 21 Vet.App. 211, 218 (2007) (“The medical examiner
provides a disability
evaluation and the rating specialist interprets medical reports in order
to match the rating with the
disability.”), rev’d on other grounds sub nom. Moore v. Shinseki, 555 F.3d
1369 (Fed. Cir. 2009);
VA ADJUDICATION PROCEDURES MANUAL REWRITE, pt. III, subpt. iv, ch. 3, § A(
9)(j) (“Do not request a medical authority to make conclusions of law, which is a
responsibility inherent to the
4

asserts that the examiner’s rationale was adequate and supported by the record. Id. at 8. Finally, the Secretary contends that the Board provided adequate reasons and bases for its decision. Id. at 13.
In the decision on appeal, the Board relied on the 2012 and 2013 VA examiner’s conclusion
that it was less likely than not that the appellant’s alcohol dependence was caused or aggravated by
his service-connected psychiatric disorders. R. at 12-15. Specifically,
the Board noted that in the
August 2012 opinion, the VA examiner cited and summarized research that
indicated comorbidity
and other links between PTSD and alcohol dependence but opined that these
articles “did not reveal
scientific evidence that PTSD causes alcohol dependence.” R. at 12.
Following a remand for the
examiner to discuss aggravation, the Board noted that in the 2013 addendum,
the examiner found
that a search of medical literature did not reveal “‘objective
professional scientific evidence that
PTSD is the cause of alcohol dependence [or] of the persistent aggravation
of alcohol dependence.'”
R. at 13. The Board also reiterated the examiner’s finding that there were
no records for alcohol
treatment after 2007.2
Id.
The Court finds that the Board erred in relying on the 2012 and 2013 VA
medical opinion
and addendum because they are inadequate. 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 disability resulting from the aggravation
of a non-service-connected
condition by a service-connected condition is also compensable under 38 C.
F.R. § 3.310(a).”
Allen v. Brown, 7 Vet.App. 439, 448 (1995) (en banc). Here, the examiner
opined that the
rating activity.”). Second, to the extent that the examiner’s statement
suggests that alcohol
dependence can never be service connected because it is willful misconduct,
this is inaccurate. See
Allen v. Principi, 237 F.3d 1368, 1377 (Fed. Cir. 2001) (finding that
alcohol abuse resulting from
a service-connected disability – including PTSD – may be compensable).
It is unclear whether the examiner was aware that the appellant sought
treatment for
substance use prior to 2007. Specifically, the Court notes that the record
contains evidence
indicating that the appellant participated in seven months of outpatient
treatment for alcohol
dependence during 2003 – the year in which the appellant reported
experiencing a stressor.
R. at 973, 1001-02. Because these treatment records were not in the record
of proceedings, the Court
declines to make a finding on the significance of these records. However,
on remand, the Board may
need to direct the examiner to address the significance, if any, of in-
service treatment for alcohol
abuse in the same year that the appellant’s alleged stressor occurred.
5
2

appellant’s alcohol dependence was less likely than not caused or
aggravated by his service-
connected psychiatric disabilities. R. at 31. However, as the Board noted,
the examiner’s rationale
for causation was based on his finding that although his literature review
indicated a link between
PTSD and alcohol dependence, it “did not reveal scientific evidence that
PTSD causes alcohol
dependence.” R. at 12. In relying on this medical opinion, the Board did not explain how, given the
evidentiary standards applicabl ein the veterans law context, this rationale–which appears to require
nothing less than definitive scientific evidence establishing causation – was adequate to support a conclusion applying the “at least as likely as not” standard. See Wise v. Shinseki, 26 Vet.App. 517, 531 (2014) (noting that rather than mandate that “a medical principle reach the level of scientific consensus in order to support a claim for VA benefits,” Congress established a low standard in 38 U.S.C. 5107(b) authorizing VA to resolve scientific or medical questions in the claimant’s favor when the positive and negative evidence is in “approximate balance”); see also Jones v. Shinseki, 23 Vet.App. 382, 388 n.1 (2010) (noting that in the veterans benefits system, the benefit of the doubt on any material issue goes to the veteran if the evidence is in equipoise and the burden of nonpersuasion is with VA). Moreover, the examiner relied solely on
statistical evidence without
applying this general information to the appellant’s specific
circumstances and history. A medical
examination lacking a rationale that explains the appellant’s disability
in sufficient detail for the
Board’s analysis to be fullyinformed is inadequate. See Stefl, supra;
Nieves-Rodriguez, 22 Vet.App.
at 304 (noting that “most of the probative value of a medical opinion
comes from its reasoning”).
The examiner’s opinion on aggravation is likewise inadequate. The examiner
opined that the
appellant’s condition was less likely than not aggravated by his service-
connected disabilities but
again based this conclusion on a lack of “objective professional
scientific evidence” indicating that
there is “permanent aggravation of alcohol dependence by PTSD.” R. at 13.
Once again, the Board
ignored the fact that the examiner appears to have applied a more
stringent standard than that
necessary to establish service connection in the veterans law context.
Additionally, although here the examiner did consider the appellant’s
medical history, as the
Board’s discussion shows,becausetherewerenorecordsoftreatment
after2007theexamineropined
that there was “no evidence of permanent aggravation of alcohol dependence
by PTSD.” R. at 13.
Thus, the examiner impermissibly relied on a lack of treatment records to
find that there was no
6

evidence of aggravation. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (
Fed. Cir. 2006) (noting
that VA’s examiner’s opinion, which relied on the absence of
contemporaneous medical evidence,
“failed to consider whether the lay statements presented sufficient
evidence of the etiology of [the
veteran’s] disabilitysuchthathis claimofserviceconnection couldbeproven”);
Dalton v.Nicholson,
21 Vet.App. 23, 39 (2007) (finding a medical examination inadequate where
the examiner
“impermissibly ignored the appellant’s lay assertions that he had
sustained a back injury during
service”). Based on the foregoing, the Court finds that the 2012 and 2013
VA opinion and
addendum were inadequate and the Board erred in relying on them.
Consequently, the Court will
vacate the Board decision and remand thematterfortheBoardto obtainan
adequate medical opinion
that reviews the evidence in accordance with the proper standard of proof.
Finally, the Court agrees with the appellant that the Board also provided
inadequate reasons
and bases for finding that service connection based on a theory of
secondary causation was not
shown because the appellant’s alcohol abuse preceded service. The Board
noted that the appellant
had a family history of alcohol dependence, drank moderately from age 16
until enlistment, and was
arrested once for driving under the influence (DUI) two years before
enlistment. R. at 14. However,
it is unclear from the Board’s analysis how it determined from these facts
that the appellant suffered
from alcohol dependence prior to service. Thus, the Court finds the
Board’s reasons and bases on
this point are not adequate. See Allday, supra.
Onremand,theappellantisfreeto submit
additionalevidenceandargumentontheremanded
matters, and the Board is required to consider any such relevant evidence
and argument. See Kay
v.Principi,16Vet.App.529,534(2002)(statingthat,onremand,theBoardmust
consideradditional
evidence and argument in assessing entitlement to benefit sought);
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 v. Derwinski,
1 Vet.App. 394, 397 (1991). The Board must proceed expeditiously, in
accordance with 38 U.S.C.
§ 7112 (requiring Secretaryto provide for “expeditious treatment”
ofclaimsremandedbythe Court).
7

III. CONCLUSION
After consideration of the appellant’s and the Secretary’s pleadings, and
a review of the
record, the Board’s October 24, 2013, decision is VACATED and the matter
is REMANDED to the
Board for further proceedings consistent with this decision.
DATED: December 29, 2014
Copies to:
Perry A. Pirsch, 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

Create a free website or blog at WordPress.com.

%d bloggers like this: