Sample Veteran's Brief 2 by LawStudentWelch

VIEWS: 42 PAGES: 12

									                            ISSUES PRESENTED FOR REVIEW


I. Remand is required for the Board to provide an adequate statement of reasons or bases for
finding the VA examinations to be of great probative weight.

II. Remand is required as VA failed its duty to assist the veteran to obtain an adequate medical
opinion to apply the benefit of the doubt doctrine.

III. Remand is required as the Board failed to provide an adequate statement of reasons or bases
for not considering relevant and probative lay evidence submitted on the veteran’s behalf.


                                STATEMENT OF THE CASE


                                A. JURISDICTION STATEMENT

       This Court’s jurisdiction in this matter is based on 38 U.S.C § 7252.


                             SUMMARY OF THE ARGUMENT


       There are contradictory medical opinions of record in this matter. (R. 44, 60, 84, 203,

302, 319) The veterans is seeking a service connection on a secondary basis for a back injury.

Establishing a service connection on a secondary basis requires a showing that a disability is

proximately due to or the result of a service-connected disease or injury. 38 C.F.R §3.310 (a).

The Board is required to provide reasons or bases for both its findings and conclusions on all

material issues of fact and the law presented in the record. 38 U.S.C. § 7104(d)(1) To comply

with this statutory duty, the Board must analyze the credibility and probative value of the

medical evidence and account for the evidence it finds persuasive or unpersuasive. Gabrielson v.

Brown, 7 Vet. App. 36 (1995).

       In this case, the veteran submitted three private medical examinations, two of which were

conducted by orthopedists. (R. 44, 84, 319-321) In contrast, the three VA examinations the
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veteran underwent were conducted by nurse practitioners. (R. 60, 203, 302). The Board finds a

2009 VA nurse practitioner opinion especially probative because she consulted with an

orthopedic expert (R. 14), whereas the veteran bypassed the proxy of a nurse practitioner and

went directly to an independent practicing orthopedist. Remand is required for the Board to

provide an adequate statement of reasons or bases for finding the VA nurse practitioner

examinations to be of great probative weight as opposed to the opinions of an independent

practicing orthopedist.

       When a medical opinion must be obtained, the duty to assist requires the VA to obtain a

thorough and complete medical opinion. Barr v. Nicholson, 21 Vet. App. 303, 311-312 (2007).

The VA obtained multiple medical opinions of this case however none of the VA medical

opinions have adequately provided a bases or rationale for the opinion. (R. 60, 203, 302). An

adequate medical opinion requires a clear conclusion with supporting data and “a reasoned

medical explanation connecting the two.” Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301

(2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In short, the VA failed in its duty to

assist the veteran in obtaining an adequate medical opinion.

       Further, the Secretary shall consider all information and lay and medical evidence of

record giving the veteran the “benefit of the doubt” when there is an approximate balance

between positive and negative evidence at issue. 38 U.S.C. § 5107(b). The veteran has a record

of favorable lay evidence submitted on his behalf indicating a long history of abnormal gait and

back pain. (R. 10-11, 44, 60, 84, 155, 159, 203, 302, 319, 339). There is also medical evidence

from an orthopedic surgeon concluding the veteran’s back pain could possibly be related to his

ankle injury. (R. 84).    The VA failed to apply the benefit of the doubt doctrine to such evidence




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to determine entitlement to service connection for low back disability secondary to service

connected traumatic arthritis of the left ankle.


                                    STANDARD OF REVIEW

       When considering all evidence in the record, the Board's finding of a service connection,

or lack thereof, is a finding of fact subject to the "clearly erroneous" standard of review. 38

U.S.C. § 7261(a)(4); Kahana v. Shinseki, 24 Vet.App. 428, 433 (2011); Dyment v. West, 13

Vet.App. 141, 144 (1999); Wood v. Derwinski, 1 Vet.App. 190, 193 (1991); Gilbert v. Dewinski,

1 Vet.App. 49, 52 (1990).

       First, "[t]he Board's findings regarding the probative value of medical opinions, as well as

its ultimate finding whether a disability is service connected, is subject to the 'clearly erroneous'

standard. Parrish v. Shinseki, 24 Vet.App. 391, 399 (2011); see also Owens v. Brown, 7

Vet.App. 429, 433 (1995) (the Board's assignment of greater probative weight to one medical

opinion then to another is subject to the "clearly erroneous" standard of review).

       Second, "the outcome of the Board's application of the equipoise standard found in 38

U.S.C. § 5107(b) is a factual determination that th[is] Court reviews under the 'clearly erroneous'

standard." Mitchell v. Principi, 17 Vet.App. 495, 496 (2004) (citing Mariano v. Principi, 17

Vet.App. 305, 313 (2003); see 38 U.S.C. §§ 5107(b), 7261(b)(1). The Board's application of the

benefit of the doubt rule, as codified in 38 U.S.C. § 5107(b), and its subsequent findings of fact

are subject to the clearly erroneous standard of review. Caplis v. Nicholson, No. 05-3697, 2007

WL 3084494, at *2 (Vet. App. September 20, 2007) ("The Board's determination of service

connection and its application of the benefit of the doubt rule are findings of fact that the Court

reviews under the 'clearly erroneous' standard of review set forth in 38 U.S.C. § 7261(a)(4)"); see

also Russo v. Brown, 9 Vet.App. 46, 50 (1996); Swann v. Brown, 5 Vet.App. 229, 232 (1993).

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Last, the Board is required to consider all pertinent lay evidence presented. See 38 U.S.C. §

1154(a); see also 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.303(a), 3.307(b) (2010). "The Board's

assessment of the credibility and weight to be given to [lay] evidence is a finding of fact that

th[is] Court reviews under the 'clearly erroneous' standard of review." Bussa v. Shinseki, No. 09-

4448, 2011 WL 5042036, at *5 (Vet.App. October 25, 2011) (stating how the Board must

account for and analyze all lay evidence presented, and provide a supporting rationale for

accepting or rejecting that evidence when rendering its opinion).

       As a result, "[u]nder the 'clearly erroneous' standard of review, th[is] Court must set aside

a finding of material fact when, after reviewing the record as a whole, it 'is left with the definite

and firm conviction that a mistake has been committed.'" Flores v. Nicholson, 19 Vet.App. 516,

521 (2005) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948).

                                           ARGUMENT


I. The Board failed to provide an adequate statement of reasons or bases for finding the VA

examinations to be of great probative weight.

       There are contradictory medical opinions of record. (R. 44, 60, 84, 203, 302, 319).

       The Board is required to provide reasons or bases for its findings and conclusions on all

material issues of fact and law presented on the record. 38 U.S.C. § 7104 (d) (1). In addition, it

is well settled that Board of Veterans Appeals is required to consider all relevant evidence of

record and to consider and discuss in its decision all “potentially applicable” laws and

regulations. Majeed v. Principi, 16 Vet. App. 421, 431 (2002). To comply with the statutory

requirement, the Board must analyze the credibility and probative value of the medical evidence

and account for the evidence it finds persuasive or unpersuasive. Gabrielson v. Brown, 7 Vet.

App. 36 (1995). Where the record is inadequate due to contradictory medical opinions contained

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in the records, remand is required. 38 C.F.R § 19.182 (a); see also Littke v. Derwinski, 1 Vet.

App. 90 (1990).

       The veteran submitted three private medical examinations, two of which were conducted

by orthopedists. (R. 44, 84, 319-321). In 2008, Dr. W.M.I., the veteran’s orthopedic surgeon,

stated that an MRI had demonstrated central canal stenosis at the L4-5 level with degenerative

disc disease and facet athropathy throughout the lumbosacral spine. (R. 319). He concluded that

the veteran had significant limitation of pronation and supination of his left ankle, and that this

“can certainly aggravate the degenerative condition of his lumbosacral spine”. (R. 321). The

Board also gave great weight to the nurse practitioner’s opinions on the basis that had “reviewed

the claims file” (R. 5, 14), but ignored the fact that Dr. W.M.I also reviewed the orthopedic

records the veteran brought in with him. (R. 319).

               The mere statement that one physician did or did not have access
               to a claims file is of little use in providing adequate reasons or
               bases for a decision of the Board of Veterans’ Appeals where the
               Board fails to explain what information in the claims file was
               important and necessary for a competent and persuasive medical
               opinion, and why the absence of record review detracts from the
               probative value of the opinion of a physician. It follows that
               review of a claims file by a VA examiner, without more, does not
               automatically render the examiner's opinion competent or
               persuasive. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301
               (2008). see Stefl, supra., 21 Vet. App. 120 (2007).

       In March 2010, Dr. B.A.C., an orthopedic physician, examined the veteran and concluded

that his back pain was possibly caused by his ankle injury. (R. 84). As it relates to the back,

painful motion must be considered as a part of disability when rating the joints for purposes of

disability benefits. 38 C.F.R. § 4.45 (1991). In June 2010, Dr. M.S. concluded that the veteran’s

lumbar spine pain in most likely caused by the aggravation of his degenerative conditions of his

spine by post-traumatic arthritis. Dr. M.S. went on to note that Dr. W.M.I had come to the same



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conclusion regarding the veteran’s ankle and back pain. (R. 44). Dr. M.S. also considered the

possibility of a left hip growth plate disorder, but indicated that no final conclusions could be

drawn without orthopedic surgery. (R. 44).

       The veteran underwent three VA examinations, all of which were conducted by nurse

practitioners. (R. 60, 203, 302). The Board finds the VA medical opinions to be of great

probative weight as they were rendered having access to the veteran’s claim file. (R. 14).

However, review of the claims file does not necessarily confer probative value on a medical

opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Further, the Board does not

identify what documents it feels were relevant that the private examiners did not review. In

addition, the Board also finds that the 2009 VA nurse practitioner opinion especially probative

because she consulted with an orthopedic expert. (R. 14). However, all three examinations were

by nurse practitioners, thus the fact that she consulted with an orthopedist is not distinguishing.

Moreover, the Board acknowledged that the fact underlying the explanation given by the VA

orthopedist regarding the childhood injury to the hip plate growth was disputed by the veteran,

but dismissed it as merely a possible explanation for the uneven leg gait. (R. 12). But this leaves

the opinion without any stated rationale.

       38 C.F.R. § 4.1 (1991) requires that each disability be viewed in relation to its history and

that there be emphasis upon the limitation of activity imposed by the disabling condition.

Service treatment records show that in March 1958, Mr. Lewis reported a back ache at the right

scapula on motion of the scapula, which was noted to be a strain of the rhomboid muscle. (R.9)

Additionally, Section 20 of the separation examination report notes that Mr. Lewis has “bone,

joint or other deformity.” (R. 404). The Secretary shall consider all information and lay and

medical evidence of record giving the veteran the “benefit of the doubt” when there is an



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approximate balance of positive and negative evidence on a material issue. 38 U.S.C. § 5107(b).

The VA failed to apply the benefit of the doubt doctrine to determine entitlement to service

connection for low back disability secondary to service connected traumatic arthritis of the left

ankle.

         Under 38 C.F.R. § 4.40 (1991), a functional disability due to pain may be the basis of a

compensable rating. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Similarly, 38 C.F.R §

4.45 (1991) requires that painful motion must be considered as a part of the disability when

rating the joints for purposes of disability benefits. Thus, (emphasis added) Sections 4.40 and

4.45 together make clear that pain must be considered capable of producing compensable

disability of the joints. Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). The VA medical

examiner conducted tests regarding the veteran’s degree of motion, but did not consider his

statements on pain. The veteran noted on several occasions in his compensation and pension

exams that he was experiencing discomfort and pain in his back (R. 60, 203, 206, 207), but this

issue was overlooked by the VA medical examiner and the Board when making their conclusion.

Remand is required for the Board to provide an adequate statement of reasons or bases for

finding the VA examinations to be of great probative weight.


 II. VA failed in its duty to assist the veteran to obtain an adequate medical opinion and to
                             apply the benefit of the doubt doctrine.

         When a medical opinion must be obtained, the duty to assist requires the VA to obtain a

thorough and complete medical opinion. Barr v. Nicholson, 21 Vet. App. 303, 311-312 (2007).

For a VA medical opinion to be adequate, it must be supported with a sufficient rationale and

explanation. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Court of Appeals for

Veterans Claims has held that an adequate medical opinion requires a clear conclusion with



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supporting data and “a reasoned medical explanation connecting the two”. Nieves-Rodriguez v.

Peake, 22 Vet. App. 295, 301 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).

       In Ortiz v. Principi, 274 F.3d 1161 (Fed. Cir. 2001), the Court of Appeals for the Federal

Circuit established that the BVA shall consider all information, including, but not limited to, lay

and medical evidence of the record, giving the veteran the benefit of the doubt when there is an

approximate balance of positive and negative evidence on a material issue. The Ortiz court

further explained that if both positive and negative evidence exists as to a veterans claim, then

the evidence may be in “approximate balance,” in which this Court must decide a matter in favor

of a veteran. This “benefit of the doubt” rule is codified in 38 U.S.C. § 5107(b), and provides:

                    The Secretary shall consider all information and lay and
                    medical evidence of record in a case before the Secretary
                    with respect to benefits under laws administered by the
                    Secretary. When there is an approximate balance of
                    positive and negative evidence regarding any issue
                    material to the determination of a matter, the Secretary
                    shall give the benefit of the doubt to the claimant.

38 U.S.C.A. § 5107(b) (2001).

The implementing federal regulation restates the benefit of the doubt provision in terms of a
“reasonable doubt.” The regulation provides:

                    When, after careful consideration of all procurable and
                    assembled data, a reasonable doubt arises regarding
                    service origin, the degree of disability, or any other
                    point, such doubt will be resolved in favor of the
                    claimant. By reasonable doubt is meant one which exists
                    because of an approximate balance of positive and
                    negative evidence which does not satisfactorily prove or
                    disprove the claim.

38 C.F.R. § 3.102 (2001).

       Consequently, “when the positive and negative evidence relating to a veteran’s claim for

benefits are in approximate balance, thereby creating a reasonable doubt as to the merits of his or

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her claim, the veteran must prevail.” Ortiz, 274 F.3d at 1364 (internal citations omitted). The

Ortiz court ultimately concluded that the “benefit of the doubt” rule has no application where the

Board determines that the 'preponderance of evidence' weighs against the veteran’s claim. Id. at

1366 (stating that this is not a bright line rule, because where the Board finds by a preponderance

of the evidence that a claim merits denial, the Court will give due deference to that decision).

       However, this reasoning is based on the assumption that an adequate reasons and bases

has been articulated by the Board, in which it would not be error for the Board to deny a veteran

the benefit of the doubt. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). The Gilbert court

went on to state that “[t]he proper course in a case with an inadequate [reasons and bases

statement] is to vacate the [Board’s] decision and to remand the matter . . . for further

proceedings.” Id. at 57 (the Gilbert Court discussed extensively that if two permissible views

exist in the record, and the Board failed to include an adequate statement of the “reasons and

bases” for its findings, then remand would be required).

       It is undisputed that the veteran has a leg length discrepancy, a long history of abnormal

gait, and complaints of back pain. (R. 10-11, 44, 60, 84, 155, 159, 203, 302, 319, 339). It is also

undisputed that the VA obtained multiple medical opinions in this case. However, none of the

VA medical opinions have adequately provided a bases or rationale for the opinion. (R. 60, 203,

302). In fact, the 2009 VA opinion, which the Board finds especially probative, is without any

stated rationale as the Board acknowledged the fact that underlying the explanation given by the

VA orthopedist regarding the childhood injury to the hip growth plate (R.12, 14, 57, 63), which

was denied by the veteran and his treating doctors. (R. 12, 24, 30, 31, 44). In this case, the VA

examiner failed to make an adequate medical assessment of the Veteran's low back injury, other

than to note that the Veteran's left ankle was “clearly not the cause or a contributing/aggravating



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factor in the Veteran’s current degenerative osteoarthropathy of the lumbar spine." It was opined

that the Veteran's left ankle injury that occurred in his early years affected the growth plate." (R.

11-12 ). The Board and Medical examiner failed to address the Veterans lower back injury, but

instead placed blame on an a non-existent injury and claim that the Veteran has not brought

forward. The Board was therefore unable to properly fulfill its role to critically examine the

underpinnings of the medical opinion, and thus to adequately assess its probative value.


       Further, the Board failed to explain its reasoning for relying upon the third examination

report, and as a result, this medical opinion it not entitled to any weight since “it contains only

data and conclusions." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The VA has

only provided data regarding the Veteran's condition, but no direct conclusions that are related to

his back injury. The VA therefore failed in its duty to assist the veteran on the basis that it did

not attempt to obtain additional and more thorough medical reports to better determine the cause

of his injuries where the evidence of record was clearly in equipoise. Nolen v. Gober, 14 Vet.

App. 183, 184 (2000).

       As a result, remand is required to ensure that the VA clarifies its opinion, basing its

conclusions upon only information contained in the medical records, and not upon a “hip-growth

plate” condition in which the Veteran has testified he does not have, and also which is not

substantiated by subsequent medical reports. (R. R. 12, 24, 30, 31, 44).

       Moreover, favorable lay evidence submitted on the veteran’s behalf indicates that he had

a long history of abnormal gait and complaints of back pain. (R. 155, 159, 339). It is undisputed

that the veteran has a leg length discrepancy. (R. 10-11, 44, 60, 84, 203, 302, 319). In 2008, Dr.

W.M.I, a Board Certified Orthopedic Surgeon, examined the veteran, reviewed the orthopedic

records the veteran brought in, and concluded that the veteran had significant limitation of


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pronation and supination of his left ankle and that this “can certainly aggravate the degenerative

condition of his lumbosacral spine”. (R. 321). In March 2010, Dr. B.A.C., an orthopedic

physician, concluded that the veteran’s back pain could possibly be caused by his ankle injury.

(R. 84). Also, in June 2010, Dr. M.S. opined that the Veteran’s lumbar spine pain was caused

by aggravation of his degenerative conditions of the spine by this post-traumatic arthritis. (R.

44). Dr. M.S. considered the possibility of a left hip growth plate, but indicated that no final

conclusions could be drawn without orthopedic surgery. (R. 44).

        Based on the foregoing, it is evident the VA failed to apply the benefit of the doubt

doctrine to determine entitlement to service connection for low back disability secondary to

service connected traumatic arthritis of the left ankle.




     III. The Board Failed to provide an adequate statement of reasons or bases for not
     considering relevant and probative lay evidence submitted on the veteran’s behalf.

       Favorable lay evidence submitted on the veteran’s behalf indicates that he had a long

history of abnormal gait and complaints of back pain. (R. 155, 159, 339). The Board must

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. 38 U.S.C § 7104 (d) (1). The Secretary is to consider all lay or

material evidence of record including the claimants’ statements. 38 U.S.C § 5103 A (d) (2).

The Board notes that the veteran is competent to give evidence about what he has experienced.

Layno v. Brown, 6 Vet. App. 465 (1994). (R. 12). However, a lay person can provide eye

witness account of a veteran’s visible symptoms as well. Espiritu v. Derwinski, 2 Vet. App. 492

(1992). The Board failed to consider the favorable lay evidence submitted on the veteran's

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behalf indicating that he has a long history of abnormal gait and complaints of back pain. (R.

155, 159, 339). In Kahana, the Court concluded, “[t]he Boards categorical rejection and failure

to analyze and weigh [an] appellant’s lay evidence in accordance with established precedent

[will] render its statements of reasons and bases inadequate. Kahana, 24 Vet. App. at 435. See

Allday v. Brown, 7 Vet. App. 517 (1995); Caluza v. Brown, 7 Vet. App. 498 (1995); Gilbert v.

Derwinski, 1 Vet. App. 49 (1990).



                        CONCLUSION AND RELIEF REQUESTED

       The Board failed to provide an adequate statement of reasons or bases for finding the VA

examination opinions to be of great probative weight. Moreover, VA failed its duty to assist the

veteran to obtain an adequate medical opinion and to apply the benefit of the doubt doctrine.

Finally, the board failed to provide an adequate statement of reasons or bases for not considering

the relevant and probative lay evidence submitted on the veteran’s behalf. Remand is required.




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