Veteranclaims’s Blog

February 13, 2017

Single Judge Application; Rizzo v. Shinseki, 580 F.3d 1288, 1290-91 (Fed. Cir. 2009); Cox v. Nicholson, 20 Vet.App. 563 (2007); Challenge Medical Expert’s Qualifications

If you are going to challenge a medical opinion, do it at the RO level.

Excerpt from decision below:

“The appellant contends that the August 2008 VA medical examination was inadequate because the examiner, as a general practitioner, was not competent to render an etiological opinion due to “an incomplete knowledge base of oncology,” and that the examiner improperly relied on an “outdated 1999 study.” Appellant’s Br. at 7-8. Specifically, the appellant argues that the physician performed
“incomplete research” and made “no mention of any . . . articles or studies” linking benzene exposure to multiple myeloma. Appellant’s Reply Br. at 2-3. As the Secretary correctly notes, because the appellant did not raise any challenge to the examiner’s qualifications below, the Board was entitled to assume that he was competent and qualified to provide the requested opinion. See Rizzo v. Shinseki, 580 F.3d 1288, 1290-91 (Fed. Cir. 2009) (adopting this Court’s reasoning in Cox v. Nicholson, 20 Vet.App. 563 (2007), that, absent a challenge to a medical expert’s qualifications, the Board is not required to affirmatively establish such qualifications).”

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-1603
GEORGE POLANCO, APPELLANT,
V.
ERIC K. SHINSEKI,
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, George Polanco, through counsel, appeals an April 7, 2009,
Board of Veterans’ Appeals (Board) decision that denied his claim for entitlement to service connection for multiple myeloma.1 Record (R.) at 3-13. Single-judge disposition is appropriate.
See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). Initially, the Court notes that it issued an order on November 8, 2010, striking several attachments to the appellant’s brief and any references thereto in the parties’ briefs. The Court will thus not address any arguments concerning those attachments. 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 vacate the April 7, 2009, decision and remand the matter for further proceedings consistent with this decision.
1 Multiple myeloma is a condition “characterized by multiple bone marrow tumor[s].” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1219 (32d ed. 2012) [hereinafter DORLAND’S].

I. FACTS
The appellant served in the U.S. Marine Corps from November 1971 to June 1981 and from
May 1982 to September 1992.2 R. at 1541, 1882. In 1984, while in service, the appellant underwent
treatment for the removal of small, non-cancerous nodules in his forearms. See R. at 1399. The
appellant’s May 4, 1992, exit examination reports multiple lipomas3 on the appellant’s forearms. R.
at 1258. In a November 5, 1992, VA medical examination, the appellant stated “that he has had
lumps under his arms and all over his body” since he was assigned to work with hazardous materials,
including benzene, in 1991. R. at 820, 1374. A November 17, 1992, pathology report indicated a
history of subcutaneous nodules on the appellant’s trunk, arms, and legs but found no cancer in five
angiolipomas4 removed from the appellant’s left arm. R. at 1391.
Twelve years after service, in July 2004, the appellant filed a claim for compensation or
pension claiming entitlement to service connection for multiple myeloma. See R. at 1397. On
March 19, 2005, the Los Angeles RO denied his claim. R. at 1397-1401. The appellant filed a
Notice of Disagreement on June 30, 2005, and submitted private medical records detailing his
diagnosis with multiple myeloma. R. at 1327-35. The Board issued a decision on April 11, 2008,
remanding his claim for further development to include a VA examination. R. at 819-23.
In March 2008, the appellant received a letter from the U.S. Marine Corps describing
contaminated drinking water at Camp Lejeune in the early 1980s and stating that the appellant “may
fall into [the affected] population.” R. at 806-14. The letter contained instructions on how to obtain
2 The appellant’s brief includes a statement that the appellant served “from November 1971 to June 1981 . . .
including service in the Republic of Vietnam from March 1968 to March 1969.” Appellant’s Brief (Br.) at 1. This is
not just facially contradictory, it is also unsupported by either the portion of the record cited in the brief or the appellant’s
service records. See R. at 3, 1541, 1882 (stating that the appellant entered service in November 1971). Similarly, the
brief includes a statement that “the San Fiego [sic] VA Regional Office . . . issued its decision denying appellant’s claim.”
Appellant’s Br. at 1. While at first glance this appears to be a mere typographical error, the decision in question was
actually issued by the Los Angeles, California, VA regional office (RO), as evidenced by the pages of the Record cited
by the appellant’s brief. See R. at 1339-1345. The Court trusts that any further work product submitted by counsel to
this Court will reflect the level of professionalism expected in a federal appellate court. See Model Rules of Prof.
Conduct R. 1.1 (Competence), 1.3 (Diligence); U.S. VET.APP. R. ADM. & PRAC. 4(a) (adopting the Model Rules of
Professional Conduct as disciplinary standard for practice).
3 A lipoma is “a benign, soft, rubbery, encapsulated tumor of adipose tissue, usually composed of mature fat cells.” DORLAND’S at 1063.
4 An angiolipoma is “a frequently painful type of lipoma that contains clusters of thin-walled proliferating blood vessels.” DORLAND’S at 85.

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information on possible health effects and how to join a registry of potentially affected individuals. R. at 806. Nothing in the record suggests that the appellant replied to the letter in any way.
The appellant underwent a VA examination on August 12, 2008, conducted by a VA staff
physician. R. at 342-45. In his examination report, the physician opined that “it cannot be said that [hazardous chemical] exposure was at least as likely as not to be the cause of [the appellant’s] multiple myeloma.” R. at 344. In support of this conclusion, the physician noted that “[m]ultiple myeloma is a disease whose etiology is unknown and . . . there is a lack of scientific evidence to suggest that the cause is due to chemical exposure.” R. at 344. The examiner stated that he had reviewed a number of studies specifically evaluating the possible role of benzene, “the results largely confirm that benzene does not cause multiple myeloma.” R. at 344. Based on this examination report, the RO issued a Supplemental Statement of the Case on January 13, 2009, that again denied
entitlement to service connection for multiple myeloma. R. at 334-41.
On April 7, 2009, the Board issued the decision here on appeal. R. at 3-11. After discussing
the August 12, 2008, VA medical examination and articles submitted by the appellant indicating that benzene exposure may result in multiple myeloma, the Board held that the examination report was more probative than the evidence submitted by the appellant. R. at 3-11. Accordingly, the Board denied his claim. R. at 9.

II. ANALYSIS
A. Contaminated Water at Camp Lejeune
The appellant argues that VA violated its duty to assist by not investigating whether exposure to contaminated water at Camp Lejeune could have led to his multiple myeloma. Appellant’s Br. at 9. Citing to a service record that indicates he was stationed at Camp Lejeune from February 14, 1972, to March 23, 1972, R. at 1769, the appellant asserts that “[VA]’s conclusion that appellant never served at Camp Lejeune is clearly in error.” Appellant’s Br. at 9. The Court agrees. Although the Board also found that there was no “competent evidence of record which associates [exposure to contaminated water] with the [appellant’s] multiple myeloma,” R. at 10, it is clear from the record that no attempt was made to obtain records from the Department of the Navy study identified by the
appellant, including the extent of the contamination, the chemicals found, and the likelihood that the
3
appellant was exposed when he was at Camp Lejeune in February and March 1972, nor does the Board appear to have otherwise developed this issue. The Court will remand the appellant’s claim for the Board to address this issue, including whether, in light of any new evidence obtained, the appellant is entitled to a new medical examination.
On remand, the appellant is free to submit additional evidence and argument on this issue, 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, 7112 (requiring Secretary to provide for “expeditious treatment” of claims remanded by Board or Court).

B. Adequacy of Medical Examination
Although the Court has already determined that remand is necessary, the Court will address the appellant’s remaining arguments. See Quirin v. Shinseki, 22 Vet.App. 390, 396 (2009) (holding that the Court may address the appellant’s other arguments to provide guidance on remand). The appellant contends that the August 2008 VA medical examination was inadequate because the examiner, as a general practitioner, was not competent to render an etiological opinion due to “an incomplete knowledge base of oncology,” and that the examiner improperly relied on an “outdated 1999 study.” Appellant’s Br. at 7-8. Specifically, the appellant argues that the physician performed
“incomplete research” and made “no mention of any . . . articles or studies” linking benzene exposure to multiple myeloma. Appellant’s Reply Br. at 2-3. As the Secretary correctly notes, because the appellant did not raise any challenge to the examiner’s qualifications below, the Board was entitled to assume that he was competent and qualified to provide the requested opinion. See Rizzo v. Shinseki, 580 F.3d 1288, 1290-91 (Fed. Cir. 2009) (adopting this Court’s reasoning in Cox v. Nicholson, 20 Vet.App. 563 (2007), that, absent a challenge to a medical expert’s qualifications, the Board is not required to affirmatively establish such qualifications).
Further, as the Secretary notes, “[t]he examiner clearly stated that he considered a number of studies which specifically evaluated the possible role of benzene in the development of multiple myeloma.” Secretary’s Br. at 9; see R. at 344. The examiner stated that “the results largely confirm that benzene does not cause multiple myeloma.” R. at 344 (emphasis added). He also discussed “a

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current article in UpToDate,” noting it concluded that, while benzene exposure might play a role in the development of multiple myeloma, the data were not convincing. R. at 344. The Court also notes that the appellant submitted several articles to VA that indicated a possible link between exposure to benzene and multiple myeloma. R. at 5. All of these articles were submitted to VA before or in November 2007, R. at 5, and were discussed by the Board in its April 2008 and April 2009 decisions. R. at 5. Further, as the Board noted, the articles were part of both the available medical literature and the appellant’s claims file at the time of the August 2008 medical examination and thus “presumably reviewed by the August 2008 VA examiner, who provided a detailed rationale for his conclusion and indicated he had reviewed the [appellant’s claims file].” R. at 7.
Based on the foregoing, the Court holds that the Board was not clearly erroneous when it
determined that the August 2008 medical opinion was adequate for rating purposes. See D’Aries v. Peake, 22 Vet.App. 97, 103 (2008) (whether a medical opinion is adequate is a finding of fact, which the Court reviews under the “clearly erroneous” standard); Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) (Board 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.'” (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948))).

C. Additional Arguments
The appellant finally offers several arguments to the effect that the Board failed to provide
adequate notice or an adequate statement of reasons or bases for its decision. Appellant’s Br. at 10-11. The Court finds these arguments to be unpersuasive.
First, the appellant argues that the Board’s statement of reasons or bases is inadequate
because it “relied heavily on the defective August 2008 medical opinion.” Appellant’s Br. at 11.
This, however, is merely a restatement of the appellant’s above attack on the examination, which the Court has already addressed.
Second, the appellant asserts that the Board was clearly erroneous when it found that he
demonstrated an understanding of the evidentiary requirements necessary to substantiate his claim.
Appellant’s Br. at 11. The appellant bases his argument on the Board’s statement that articles submitted by the appellant were “general in nature and nonspecific to the appellant’s case.” Appellant’s Br. at 11 (quoting R. at 9). This argument is disingenuous, however, as the appellant
5
submitted lay statements and medical records in support of his claim, in addition to the articles discussed, that clearly demonstrate he understood the need to prove a medical nexus to prevail. See R. at 7-9 (Board discussion of other evidence submitted by the appellant). Further, as the Board correctly notes, the appellant received actual notice of the evidence required to substantiate his claim in a December 2004 letter. R. at 12; see R. at 1396-99 (March 2005 RO decision discussing December 2004 notice letter). Based on this, the Court finds that the Board’s determination was not clearly erroneous. See Gilbert, supra.
Third, the appellant argues that the Board’s conclusion that “[t]o the extent that it is argued
that the [appellant’s] multiple myeloma is due to toxic chemical exposure in or about 1991, none of
the articles indicates that the latent period for the development of multiple myeloma due to toxic
chemical exposure may be as long as 12 to 13 years” is misleading and is an inadequate reason for
denying his claim. Appellant’s Br. at 11-12. He asserts that “[n]either the VA medical opinion or
the pertinent articles . . . discuss the gestation period between benzene exposure and the onset of
symptoms, nor does the [Board] cite any authority to support its conclusion that a 12 to 13 year
gestation period belies [the] appellant’s claim.” Appellant’s Br. at 12. The Secretary responds that
the Board “was not attempting to assert that there is a 12 to 13 year gestation period between
exposure to benzene and the onset of symptoms associated with multiple myeloma.” Secretary’s Br.
at 12. Rather, the Board found “no competent medical evidence to suggest that such latent
development would be consistent with the natural progression of the disease.” Secretary’s Br. at 12.
As the Board went on to hold:
In summary, none of the articles shows that the etiological relationship between
exposure to toxic chemicals and multiple myeloma is of such a degree of certainty
that, under the facts of this case, it provides sufficiently probative medical
evidence demonstrating a causal relationship between multiple myeloma and service
to warrant a grant of the claim. R. at 10. The Board concluded that there was no medical evidence linking the appellant’s multiple
myeloma to service, nor was there continuity of symptomatology linking the appellant’s multiple myeloma with service. R. at 8-10; see also Hickson v. West, 12 Vet.App. 247, 253 (1999)(establishing service connection generally requires, inter alia, a nexus between in-service disease or injury and the present disability); 38 C.F.R. § 3.303(b) (2011) (service connection may be established
6
by showing continuity of symptomatology). The Court thus holds that the Board provided an adequate statement of reasons or bases. See Allday v. Brown, 7 Vet.App. 517, 527 (1995) (statement “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”).

III. CONCLUSION
After consideration of the parties’ briefs and a review of the record, the Board’s April 7, 2009,
decision is VACATED, and the matter is REMANDED to the Board for further proceedings
consistent with this decision.
DATED: October 28, 2011
Copies to:
David S. Mendelsohn, Esq.
VA General Counsel (027)
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