Excerpt from decision below:
“Mr. Daake further contends that the Board’s statement is inadequate because the Board failed to adequately apply the lower evidentiary standard required under 38 U.S.C. § 1154. Specifically, he asserts that the Board failed to consider whether his lay evidence was satisfactory or consistent with the circumstances, conditions, or hardships of service. See Collette v. Brown, 82 F.3d 389, 392-93 (Fed. Cir. 1996) (explaining that a § 1154(b) inquiry requires a determination of whether the lay evidence is satisfactory and, if so, whether that evidence is consistent with the circumstances, conditions, or hardships of such service). Although the Board failed to address the application of § 1154 to Mr. Daake’s lay evidence, a favorable application of § 1154 would not address the basis for the Board’s decision, which was the lack of medical nexus between his current knee disability and service. See Brock v. Brown, 10 Vet.App. 155, 162 (1992) (“[T]he reduced evidentiary burden
provided for combat veterans by 38 U.S.C. § 1154(b) relate[s] only to the question of service incurrence, ‘that is, what happened then – not the questions of either current disability or nexus to service, as to both of which competent medical evidence is generally required.'” (quoting Libertine v. Brown, 9 Vet.App. 521, 524 (1996))).”
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 14-3781
DOUGLAS A. DAAKE, APPELLANT,
V.
ROBERT A. MCDONALD,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before KASOLD, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
KASOLD, Judge: Veteran Douglas A. Daake appeals through counsel a September 5, 2014,
decision of the Board of Veterans’ Appeals (Board) that denied benefits for (1) bilateral hearing loss
and residuals of a head injury because the evidence was against finding that he had these disabilities,
and (2) residuals of a neck and left-knee injury because those disabilities were not service connected.
He argues variously that the Board (1) relied on inadequate medical examinations, (2) failed to
ensure compliance with its remand order, and (3) offered inadequate reasons and bases. Single-judge
disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons
discussed below, the Board decision on appeal will be affirmed.
At the outset it is noted that Mr. Daake was represented before the Board by counsel, and
there is no indication that he raised to the Board the first and second arguments noted above.
See Strickland v. Washington, 466 U.S. 668, 690 (1984) (“[C]ounsel is strongly presumed to have
rendered adequate assistance and made all significant decisions in the exercise of reasonable
professional judgment.”); Rizzo v. Shinseki, 580 F.3d 1288, 1291 (Fed. Cir. 2009) (“[When] the
veteran does not challenge a VA medical expert’s competence or qualifications before the Board, this
court holds that VA need not affirmatively establish that expert’s competency.”); Fugere v.
Derwinski, 1 Vet.App. 103, 105 (1990) (“Advancing different arguments at successive stages of the
appellate process does not serve the interests of the parties or the Court. Such a practice hinders the
decision making process and raises the undesirable specter of piecemeal litigation.”), aff’d, 972 F.2d
331 (Fed. Cir. 1992).
Hearing Loss
Mr. Daake contends that the Board improperly relied on a March 2013 medical report
evaluating his hearing because the examiner did not provide a rationale for his opinion that Mr.
Daake’s hearing loss was not due to service. Mr. Daake’s assertion is baldly presented and fails to
demonstrate that the Board erred in assigning weight to this opinion. See Hilkert v. West,
12 Vet.App. 145, 151 (1999) (en banc) (appellant bears burden of demonstrating error on appeal),
aff’d per curiam, 232 F.3d 908 (Fed. Cir. 2000) (table); see also D’Aries v. Peake, 22 Vet.App. 97,
104 (2008) (“Whether a medical examination is adequate is a finding of fact, which this Court
reviews under the ‘clearly erroneous’ standard”); Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) (“‘A
finding is “clearly erroneous” when . . . 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))). Moreover, even assuming inadequacy in the examiner’s
nexus opinion, the Board denied benefits for hearing loss because any loss of hearing in Mr. Daake’s
case did not constitute a disability for VA benefits purposes, and that finding is not clearly erroneous.
See Palczewski v. Nicholson, 21 Vet.App. 174, 179-80 (2007) (Secretary may define what level of
hearing loss constitutes a disability); Gilbert, supra.
Left-Knee Disability
Mr. Daake notes that an earlier Board remand sought a medical nexus opinion on whether
it was “very likely, as likely as not, or unlikely” that his left-knee disability was related to service.
He further notes that the March 2013 medical report obtained on remand did not use this
terminology, and he contends that the report (1) did not comply with the remand order, (2) was
ambiguous as to its nexus opinion, and (3) unclear as to the basis for the examiner’s opinion. As to
Mr. Daake’s first and second contentions, although the March 2013 examiner did not quote verbatim
one of the phrases quoted above, he opined that it was “less likely than not” that Mr. Daake’s leftknee
condition was due to service, and Mr. Daake fails to demonstrate that that phrasing does not
substantially comply with the Board remand order, or that such phrasing is ambiguous. See Hilkert,
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supra; see also Dyment v. West, 13 Vet.App. 141, 146-47 (1999) (requiring substantial compliance
with Board remand orders).
In support of his third contention, Mr. Daake asserts that the March 2013 examiner based his
no-nexus opinion on the absence of contemporaneous medical evidence. At the outset, although the
Board may not reject lay evidence based solely on the lack of contemporaneous medical reports,
see Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (“[T]he Board cannot
determine that lay evidence lacks credibility merely because it is unaccompanied by
contemporaneous medical evidence.”), no such proscription applies to medical examiners in the
formation of their medical opinions. Moreover, here, the March 2013 examiner predicated his
opinion on not only the absence of contemporaneous medical evidence but also the type of trauma
reported by Mr. Daake.
Also in support of his third contention, Mr. Daake asserts that the examiner did not consider
his lay statements or Social Security Disability documents. The March 2013 report, however,
reflects that the examiner reviewed the claims file, and the text of the report specifically reflects
consideration of Mr. Daake’s statements regarding his knee injury and condition. In sum, Mr. Daake
fails to demonstrate that the examiner failed to consider any evidence. See Hilkert, supra; see also
Rizzo, 580 F.3d at 1292 (applying the presumption of regularity to VA medical examiners in the
discharge of their official duties).
Mr. Daake also argues that the Board’s statement is inadequate because it is unclear whether
the Board accepted the lay evidence as credible. Although the Board made no such specific finding,
it did find that his left-knee disability was not chronic based on the history Mr. Daake provided on
a 2012 examination report as well as the lack of medical reports of any left-knee injury since he left
service in 1970. In this context, and reading the Board’s statement as a whole, see Janssen v.
Principi, 15 Vet.App. 370, 379 (2001) (rendering a decision on the Board’s statement of reasons or
bases “as a whole”), the Board gave greater weight to the 2013 medical report against nexus than it
gave to Mr. Daake’s assertion that his left-knee disability was due to service because the issue was
a medical one. In sum, nothing in the Board’s statement indicates that it found Mr. Daake not
credible. Rather, the Board assigned weight based on the expertise of the medical examiner on the
medical issue of nexus between Mr. Daake’s current knee disability and his in-service injury, which
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he sustained some 40 years ago. The Board’s statement is understandable and facilitative of judicial
review. See Allday v. Brown, 7 Vet.App. 517, 527 (1995) (holding that the Board’s statement “must
be adequate to enable a claimant to understand the precise basis for the Board’s decision, as well as
to facilitate review in this Court”); see also Janssen, supra.
Mr. Daake further contends that the Board’s statement is inadequate because the Board failed to adequately apply the lower evidentiary standard required under 38 U.S.C. § 1154. Specifically, he asserts that the Board failed to consider whether his lay evidence was satisfactory or consistent with the circumstances, conditions, or hardships of service. See Collette v. Brown, 82 F.3d 389, 392-93 (Fed. Cir. 1996) (explaining that a § 1154(b) inquiry requires a determination of whether the lay evidence is satisfactory and, if so, whether that evidence is consistent with the circumstances, conditions, or hardships of such service). Although the Board failed to address the application of § 1154 to Mr. Daake’s lay evidence, a favorable application of § 1154 would not address the basis for the Board’s decision, which was the lack of medical nexus between his current knee disability and service. See Brock v. Brown, 10 Vet.App. 155, 162 (1992) (“[T]he reduced evidentiary burden
provided for combat veterans by 38 U.S.C. § 1154(b) relate[s] only to the question of service incurrence, ‘that is, what happened then – not the questions of either current disability or nexus to service, as to both of which competent medical evidence is generally required.'” (quoting Libertine v. Brown, 9 Vet.App. 521, 524 (1996))).
Moreover, the record reflects that the examiner assumed an in-service injury and still deemed
a no-nexus opinion appropriate. Specifically, the 2010 examination report notes that a knee injury
was more likely than not, but further noted in support of his no-nexus opinion (1) the lack of inservice
treatment records (other than a report of “locked knee” on his separation report), as well as
(2) Mr. Daake’s postservice experience as an automation tender that required extensive walking, and
his statements that he did not receive treatment from 1970 to 1997 and that he experienced knee pain
since back surgery in 2004. Succinctly stated, the Board’s explanation is understandable and
facilitative of judicial review. See Allday, supra.
Head and Neck Disabilities
Mr. Daake notes that the March 2013 examination report states that his neck disability is
“less likely than not” due to service, and he contends that the use of “less likely” could be interpreted
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as his neck disability being at least as likely as not related to his service. Appellant’s Br. at 11. He
also asserts that the Board’s statement is inadequate for not addressing this ambiguity. Succinctly
stated, Mr. Daake focuses on “less likely” to the exclusion of the additional “than not” that makes
up the complete phrase used in the report, and he fails to demonstrate ambiguity in the phrasing used
in the report or that the Board’s statement is inadequate for not addressing any such ambiguity.
See Hilkert, and Allday, both supra.
Mr. Daake also contends that the Board erred by relying on that portion of the March 2013
report evaluating his head and neck because the examiner did not conduct x-rays or tests measuring
impairment, functional loss, or range of motion. The report reflects that the examiner not only
reviewed the claims file, but he also examined Mr. Daake, and Mr. Daake fails to demonstrate that
further testing was necessary for the examiner to render a competent medical opinion. See Hilkert,
supra; see also Rizzo, 580 F.3d at 1292 (holding that VA examiner is presumed competent in the
absence of evidence to the contrary).
Conclusion
Upon consideration of the foregoing, the September 5, 2014, decision of the Board on appeal
is AFFIRMED.
DATED: October 2, 2015
Copies to:
Molly Steinkemper, Esq.
VA General Counsel (027)
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