Veteranclaims’s Blog

May 2, 2015

Single Judge Application; Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011); Colvin v. Derwinski, 1 Vet.App. 171, 172 (1991); Unsubstantiated Medical Opinion

Excerpt from decision below:

“Based on this evidence alone, the Board concluded that Mr. Gentry’s foot condition was not permanently worsened or aggravated by his military service. Such a conclusion amounts to an unsubstantiated medical opinion. See Colvin v. Derwinski, 1 Vet.App. 171, 172 (1991) (holding that the Board “must consider only independent medical evidence to support [its] findings rather than provide [its] own medical judgment in the guise of a Board opinion”); see also Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011) (holding that when a Board inference “results in a medical determination, the basis for that inference must be independent and it must be cited”). Specifically, the Board appears to have reviewed the service medical records and reached a medical conclusion that they do not show a worsening of pre-existing pes planus without explaining how the Board member is qualified to make such a determination.
Moreover, the Court finds it concerning that the Board failed to, in the least, reconcile the fact that Mr. Gentry’s pes planus was noted as non-disabling upon entrance into service but was not noted upon separation, despite recognizing that it is a pre-existing condition. R. at 9.”

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 14-0928
KENNETH R. GENTRY, APPELLANT,
V.
ROBERT A. MCDONALD,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before HAGEL, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
HAGEL, Judge: Kenneth R. Gentry appeals through counsel a March 4, 2014, Board of
Veterans’ Appeals (Board) decision that reopened a previously denied claim for VA disability
benefits for a bilateral foot condition, but denied it on the merits.1 Mr. Gentry’s Notice of Appeal
was timely, and the Court has jurisdiction to review the Board decision pursuant to 38 U.S.C.
§ 7252(a). The parties neither requested oral argument nor identified issues that they believe require
a precedential decision of the Court. Because the Board failed to provide adequate reasons or bases
for its decision that entitlement to benefits for a bilateral foot condition is not warranted, the Court
will vacate the March 2014 Board decision and remand the matter for further development, if
necessary, and readjudication consistent with this decision.
1 The Board also granted entitlement to benefits for tinnitus and that matter is therefore not before the Court.
See Medrano v. Nicholson, 21 Vet.App. 165, 170 (2007)(citing 38 U.S.C. § 7261(a)(4)).
I. FACTS
Mr. Gentry served on active duty in the U.S. Army from October 1973 to April 1975. His
service entrance examination contains a notation of “pes planus ([non disabling])”2 in the section
titled “summary of defects and diagnoses.” Record (R.) at 263. Service medical records reflect that
he was treated for “painful heels,” R. at 235, and “painful feet from flat feet,” R. at 241. In February
1975, Mr. Gentry was placed on restricted duty for two weeks with “no running” as a result of
“painful heels.” R. at 278. Upon separation, Mr. Gentry reported a history of foot trouble on his
report of medical history; however, the examiner, without commenting on Mr. Gentry’s report of foot
pain, stamped his report with the phrase “no significant history.” R. at 276.
In July 1983, Mr. Gentry submitted a claim for benefits for a foot disability and, the
following month, a VA regional office denied his claim. Mr. Gentry did not appeal that decision, and
it became final.
In June 2008, Mr. Gentry sought to reopen his claim for benefits for a foot disability. In July
2008, he submitted a letter stating that he had “what the doctor at the time at sic[k] bay called[] flat
feet, and . . . I [am] having problem[s] with my feet now.” R. at 134. Later that same month, he
submitted another letter stating that he started having “trouble” with his feet during basic training
and was treated by a doctor in Fort Jackson, South Carolina. R. at 150. In August 2008, Mr. Gentry
submitted private treatment records. His private physician noted that Mr. Gentry “has gradually
become more flat footed over the years.” R. at 120.
In December 2008 and July 2009, the regional office declined to reopen Mr. Gentry’s claim,
finding that no new and material evidence had been submitted. Mr. Gentry filed a Notice of
Disagreement with both decisions and ultimately appealed the July 2009 decision to the Board.
In June 2011, Mr. Gentry underwent a VA medical examination of his feet. The examiner
reviewed Mr. Gentry’s claims file and medical records and diagnosed him with “mild pes planus
without h[a]llux valgus.”3 R. at 54. The examiner noted “yes” next to the question of whether Mr.
2 Pes planus refers to flat feet, which is “a condition in which one or more of the arches of the foot have been
lowered and flattened out.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 716 (32d ed. 2012) [hereinafter
DORLAND’S].
3 Hallux valgus is an “angulation of the great toe away from the midline of the body, or toward the other toes.”
DORLAND’S at 818.
2
Gentry’s diagnosed condition is congenital or developmental and noted “no” next to the question of
whether there is any indication that his condition was worsened by service. R. at 55. The examiner
opined that Mr. Gentry’s “mild pes planus was less likely as not (50/50 probability) permanently
aggravated by activities in military service.” R. at 56. The examiner explained that Mr. Gentry was
“noted on [his] entrance exam[ination] to have mild pes planus,” and he “does not feel [Mr. Gentry’s]
condition meets the criteria that military service aggravated or made his mild pes planus worse than
the preexisting condition. . . . His morbid obesity is presently the most aggravating factor for his feet
along with advancing age and predisposition.” R. at 56.
In May 2012, Mr. Gentry testified at a hearing before a Board member, stating that his feet
problems did not begin until basic training and that they have continued ever since. He further stated
that his feet problems have worsened since service.
In May 2014, the Board issued the decision currently on appeal. The Board found that new
and material evidence had been submitted and reopened Mr. Gentry’s claim, but denied the claim on
the merits, explaining that “the evidence of record does not establish [that Mr. Gentry’s] foot
condition increased in severity during his military service.” R. at 11. This appeal followed.
II. ANALYSIS
On appeal, Mr. Gentry first argues that the Board erred in finding the June 2011 VA medical
examination adequate. He argues that the June 2011 examiner failed to provide an adequate rationale
for the opinion that his pes planus was not permanently aggravated in service. The Secretary argues
that any alleged errors in the June 2011 VA medical examination are harmless because the Board
did not rely on that report as a basis for its denial of Mr. Gentry’s claim. The Court agrees with the
Secretary.
A review of the Board’s decision reflects that the Board did not rely on the June 2011 VA
medical examination as evidence for or against Mr. Gentry’s claim. In fact, the Board relied on the
contemporaneous medical evidence of record, specifically Mr. Gentry’s service medical records, “as
highly probative evidence” against a finding of aggravation. Therefore, even assuming the Board
erred in finding the June 2011 VA medical examination adequate, Mr. Gentry has failed to
demonstrate how that error was prejudicial. See Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir.
3
2004); see also 38 U.S.C. § 7261(b)(2) (requiring the Court to “take due account of the rule of
prejudicial error”); Shinseki v. Sanders, 556 U.S. 396 (2009) (stating that the appellant bears the
burden of demonstrating prejudice on appeal).
Mr. Gentry next argues that the Board provided inadequate reasons or bases for its decision
that his bilateral foot disability was not permanently aggravated by his time in service. Specifically,
he asserts that the Board failed to reconcile favorable medical evidence, Appellant’s Brief (Br.) at
7, 9, and relied on its own unsubstantiated medical opinion, Reply Br. at 4. The Court agrees.
“[I]f a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim
for [benefits] for that disorder, but the veteran may bring a claim for [benefits for] aggravation of that
disorder. In the latter case, [38 U.S.C. § ] 1153 applies and the burden falls on the veteran to
establish aggravation.” Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004) (citing Jensen v.
Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994)). If the claimant demonstrates a worsening of his
condition in service, the burden then shifts to the government to rebut the presumption of
aggravation by clear and unmistakable evidence. Id. Section 1153 provides: “A preexisting injury
or disease will be considered to have been aggravated by active military, naval, or air service, where
there is an increase in disability during such service, unless there is a specific finding that the
increase in disability is due to the natural progress of the disease.”
Here, after summarizing the evidence of record, the Board found
that the contemporaneous medical evidence fails to describe any increase in severity
during service. Specifically, [Mr. Gentry’s] pes planus was noted as “not considered
disabling” on entrance. During service, his pes planus was mild. On his separation
examination, no foot condition was noted. [Mr. Gentry] also did not seek any
treatment for pes planus until 2008, which is 33 years after service.
As noted, the evidence generated contemporaneously with [Mr. Gentry’s] service
does not show any increase in severity of his pes planus, which the Board finds
highly probative evidence to rebut [his] contention voiced many years later that his
pes planus worsened during service. As [Mr. Gentry’s] foot condition was not noted
during his separation examination, [his] in-service treatment records weigh against
a finding of aggravation.
Therefore, the Board finds the evidence of record does not establish [Mr. Gentry’s]
foot condition increased in severity during his military service.
4
R. at 11.
As explained above, the Board did not rely on the June 2011 VA medical examination for
its finding that Mr. Gentry’s foot condition was not permanently aggravated by service. Rather, the
Board cited individual service medical records showing that Mr. Gentry had a non-disabling foot
condition upon entrance into service, was treated for “painful feet from flat feet,” R. at 241, and
“painful heels” that required placement on restricted duty during service, R. at 235, 278, and no foot
disability was noted upon separation from service, R. at 277. The Board also mentioned that, after
service, Mr. Gentry did not seek treatment for his foot condition until 33 years later.
Based on this evidence alone, the Board concluded that Mr. Gentry’s foot condition was not permanently worsened or aggravated by his military service. Such a conclusion amounts to an unsubstantiated medical opinion. See Colvin v. Derwinski, 1 Vet.App. 171, 172 (1991) (holding that the Board “must consider only independent medical evidence to support [its] findings rather than provide [its] own medical judgment in the guise of a Board opinion”); see also Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011) (holding that when a Board inference “results in a medical determination, the basis for that inference must be independent and it must be cited”). Specifically, the Board appears to have reviewed the service medical records and reached a medical conclusion that they do not show a worsening of pre-existing pes planus without explaining how the Board member is qualified to make such a determination.
Moreover, the Court finds it concerning that the Board failed to, in the least, reconcile the fact that Mr. Gentry’s pes planus was noted as non-disabling upon entrance into service but was not noted upon separation, despite recognizing that it is a pre-existing condition. R. at 9. The Board also
failed to take into consideration Mr. Gentry’s lay statements that his foot pain began in service and
failed to explain why the evidence of record does not show an increase in disability when it reflects
that pes planus, non-disabling upon entrance into service, required treatment and placement on
restricted duty with no running while he was in service. See Caluza v. Brown, 7 Vet.App. 498, 506
(1995) (noting that the Board must analyze the credibility and probative value of the evidence,
account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for
its rejection of any material evidence favorable to the claimant) , aff’d per curiam, 78 F.3d 604 (Fed.
Cir. 1996) (table).
5
In light of the foregoing, the Court finds that the Board violated Caluza and Colvin and that
its statement of reasons or bases for its determination that Mr. Gentry is not entitled to benefits for
a bilateral foot condition based on a theory of aggravation is inadequate. See id.; Colvin,
1 Vet.App. at 172; see also Kahana, 24 Vet.App. at 435.
Accordingly, vacatur and remand is warranted for the Board to provide an adequate
assessment of the evidence of record. When the Board reassesses the evidence on remand for the
purposes of providing adequate reasons or bases, if its analysis requires a medical assessment to
determine whether Mr. Gentry’s condition worsened in service, one should be obtained. See Tucker
v. West, 11 Vet.App. 369, 374 (1998) (“[W]here the Board has incorrectly applied the law, failed to
provide an adequate statement of reasons or bases for its determinations, or where the record is
otherwise inadequate, a remand is the appropriate remedy”).
On remand, Mr. Gentry is free to submit additional evidence and argument in accordance
with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). See Kay v.
Principi, 16 Vet.App. 529, 534 (2002). “A remand is meant to entail a critical examination of the
justification for the decision” by the Board. Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991). In
addition, the Board shall proceed expeditiously, in accordance with 38 U.S.C. § 7112 (expedited
treatment of remanded claims).
III. CONCLUSION
Upon consideration of the foregoing, the March 4, 2014, Board decision is VACATED and
the matter is REMANDED for further development, if necessary, and readjudication consistent with
this decision.
DATED: April 30, 2015
Copies to:
Robert V. Chisholm, Esq.
VA General Counsel (027)
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