Vet. App. No. 19-3129 ______
IN THE UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS ______
VYTAUTAS L. RAMUNAS, Appellant,
v.
ROBERT L. WILKIE, Secretary of Veterans Affairs, Appellee. ______
ON APPEAL FROM THE BOARD OF VETERANS’ APPEALS ______
BRIEF OF THE APPELLEE, SECRETARY OF VETERANS AFFAIRS ______
WILLIAM A. HUDSON, JR. Principal Deputy General Counsel
MARY ANN FLYNN Chief Counsel
KENNETH A. WALSH Deputy Chief Counsel
JESSICA K. GRUNBERG Senior Appellate Attorney Office of General Counsel (027J) U.S. Department of Veterans Affairs 810 Vermont Avenue, N.W. Washington, D.C. 20420 (202) 632-6745
Attorneys for Appellee TABLE OF CONTENTS
TABLE OF AUTHORITIES ...... iii I. ISSUES PRESENTED ...... 1 II. STATEMENT OF THE CASE ...... 2
A. Jurisdictional Statement ...... 2
B. Nature of the Case ...... 2
C. Statement of Relevant Facts ...... 2
III. SUMMARY OF THE ARGUMENT ...... 6 IV. ARGUMENT ...... 8
A. Standard of review ...... 8
B. The Board adequately explained that the evidence of record, including an adequate February 2013 lumbar spine examination, weighs against a
finding that Appellant’s lumbar spine disorder is related to service ...... 9
C. The Court should vacate and remand the part of the Board decision
denying service connection for a cervical spine disorder ...... 15
D. The Court should vacate and remand the part of the Board decision dismissing claims for service connection for hepatitis and a rating in excess of 10% for facial acne ...... 18
V. CONCLUSION ...... 19
ii TABLE OF AUTHORITIES
Cases Acevedo v. Shinseki, 25 Vet.App. 286 (2012) ...... 11 Acree v. O’Rourke, 891 F.3d 1009 (2018) ...... 18 Ardison v. Brown, 6 Vet.App. 405 (1994) ...... 9 Barr v. Nicholson, 21 Vet.App. 303 (2007) ...... 9, 16 Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) ...... 14 Caluza v. Brown, 7 Vet.App. 498 (1995) ...... 8 Carbino v. West, 168 F.3d 32 (Fed. Cir. 1999) ...... 15 D’Aries v. Peake, 22 Vet.App. 97 (2008) ...... 9, 15 DeLisio v. Shinseki, 25 Vet.App. 45 (2011) ...... 18 Deloach v. Shinseki, 704 F.3d 1370 (Fed. Cir. 2013) ...... 12 Fears v. Wilkie, 21 Vet.App. 308 (2019) ...... 11 Fountain v. McDonald, 27 Vet.App. 258 (2015) ...... 14 Gilbert v. Derwinski, 1 Vet.App. 49 (1990) ...... 8, 12, 15 Hyder v. Derwinski, 1 Vet.App. 221 (1991) ...... 11 Kern v. Brown, 4 Vet.App. 350 (1993) ...... 10 Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) ...... 14 Monzingo v. Shinseki, 26 Vet.App. 97 (2012) ...... 11 Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007) ...... 8 Owens v. Brown, 7 Vet.App. 429, 433 (1995) ...... 12, 15 Reonal v. Brown, 5 Vet.App. 458 (1993) ...... 16 Smith v. Shinseki, 24 Vet.App. 40 (2010) ...... 12, 13 Solomon v. Brown, 6 Vet.App. 396 (1994) ...... 8 Stefl v. Nicholson, 21 Vet.App. 120 (2007) ...... 9, 11, 15 Tucker v. West, 11 Vet.App. 369 (1998) ...... 19
iii Washington v. Nicholson, 19 Vet.App. 362 (2005) ...... 12
Statutes 38 U.S.C. § 7104(d)(1) ...... 8, 17 38 U.S.C. § 7252(a) ...... 2 38 U.S.C. § 7261(a)(4) ...... 8
Regulations 38 C.F.R. § 20.204(b)(1) (2018) ...... 18
RECORD CITATIONS
R. at 4-12 (March 2019 Board decision) ...... passim
R. at 22 (December 2018 statement) ...... 6, 17
R. at 30-53 (October 2018 Board hearing) ...... 5, 6, 18
R. at 2963 (October 2014 VA Form 9) ...... 5
R. at 3125-26 (May 1984 separation examination) ...... 2, 13, 14
R. at 3127-28 (May 1984 report of medical history) ...... 2, 13, 14
R. at 3130-31 (March 1988 report of medical history) ...... 13, 14
R. at 3201 (DD 214) ...... 2
R. at 3237-71 (August 2014 SOC) ...... 5
R. at 3457-77 (December 2013 lay statement and evidence) ...... 5, 17
R. at 3551-53 (September 2013 NOD) ...... 5
R. at 3660-68 (May 2013 rating decision) ...... 5
R. at 3698-731 (February 2013 VA examinations) ...... passim
R. at 3743 (December 1988 treatment record) ...... 16
R. at 3754-55 (April 2004 treatment record) ...... 3
iv R. at 3768 (December 2012 report of general information) ...... 3
R. at 3769-72 (November 2008 treatment record) ...... 3
R. at 3796 (August 1983 STR) ...... 2, 10
R. at 3798-809 (September 2012 claim) ...... 3
R. at 4001-07 (September 2011 claim) ...... 3
R. at 4017 (September 2011 report of general information) ...... 3
R. at 4336-38 (April 2004 treatment record) ...... 3
R. at 4362-64 (June 2003 treatment record) ...... 3
R. at 4507 (March 1993 treatment record) ...... 3, 16
R. at 4510 (July 1993 treatment record) ...... 3, 16
R. at 4656-57 (December 1984 rating decision) ...... 3
R. at 4665-67 (August 1984 C&P examination) ...... 3, 15
R. at 4669-70 (June 1984 claim) ...... 3
v IN THE UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
VYTAUTAS L. RAMUNAS, ) ) Appellant, ) ) v. ) Vet. App. No. 19-3129 ) ROBERT L. WILKIE, ) Secretary of Veterans Affairs, ) ) Appellee. )
______
ON APPEAL FROM THE BOARD OF VETERANS’ APPEALS ______
BRIEF OF THE APPELLEE, SECRETARY OF VETERANS AFFAIRS ______
I. ISSUES PRESENTED
In denying service connection for a lumbar spine condition, did the Board of Veterans’ Appeals (Board) correctly find that VA’s duty to assist was satisfied by a February 2013 VA lumbar spine examination that is based on Appellant’s medical history, and adequately explain that the probative evidence weighs against this claim?
Should the Court vacate and remand the parts of the Board decision denying service connection for a cervical spine condition and dismissing claims for hepatitis and an increased rating for facial acne?
1 II. STATEMENT OF THE CASE
A. Jurisdictional Statement
The Court has jurisdiction under 38 U.S.C. § 7252(a), which grants the
United States Court of Appeals for Veterans Claims exclusive jurisdiction to
review final decisions of the Board.
B. Nature of the Case
Appellant, Vytautas L. Ramunas, appeals the March 11, 2019, Board
decision that denied claims of entitlement to service connection for a cervical
spine disorder and a lumbar spine disorder, and dismissed claims for service
connection for hepatitis and a rating in excess of 10% for facial acne. [Record
Before the Agency (R.) at 4-12].
C. Statement of Relevant Facts
Appellant served in the United States Air Force from June 1980 to June
1984. [R. at 3201]. His service treatment records (STRs) show that he sought treatment for upper back pain in August 1983, at which time he stated that he had been involved in a motor vehicle accident (MVA) a few months prior. [R. at
3796]. Appellant described his pain as occurring in his “upper [and] mid back” and radiating “from past cervical over to between shoulder blades.” Id. He was assessed with a trapezius muscle strain. Id. At his separation examination in
May 1984, his spine was evaluated as normal. [R. at 3125-26]. And in an accompanying report of medical history, Appellant denied recurrent back pain and arthritis. [R. at 3127-28].
2 Immediately after his separation from service, Appellant filed a claim for
compensation for lymphoma. [R. at 4669-70]. In connection with his claim, he underwent a VA examination in August 1984, during which he reported “[n]o history of musculoskeletal difficulties.” [R. at 4666 (4665-67)]. He was later
awarded service connection for Woringer Kolopp disease and a groin scar from
residuals of a lymph node biopsy. [R. at 4656-57].
Subsequent treatment records show that Appellant complained of neck pain in 1993. [R. at 4507, 4510]. Ten years later, he again began to complain of neck pain. [R. at 4362-64] (June 2003 treatment record noting complaints of occupational neck pain and assessing left neck stiffness); see also [R. at 3754-
55 (April 2004 radiology diagnostic report noting complaints of “neck pain left
sided for years”), 4336 (4336-38) (April 2004 treatment record noting Appellant
complained of “neck pain [that] might be related to anxiety”), 3769-72 (November
2008 outpatient note recording complaints of “chronic neck pain x 10 years”)].
In September 2011, Appellant filed claims for service connection for, inter
alia, hepatitis and acne scarring. [R. at 4001-07, 4017]. In 2012, Appellant filed
additional claims for service connection for a cervical spine disorder and a
lumbar spine disorder. [R. at 3768 (December 2012 report of general information
showing Appellant called regarding a claim for service connection for a lumbar
spine condition), 3798-809 (September 2012 claim for a cervical spine
condition)].
3 In February 2013, Appellant underwent VA examinations for his cervical and lumbar spine conditions. [R. at 3698-731].
The cervical spine examination report shows that the VA examiner
reviewed the record and conducted an in-person examination. [R. at 3719]. In
describing the medical history related to Appellant’s cervical spine condition, the
examiner stated that Appellant was involved in an MVA during service in March
1983 and subsequently sought treatment in August 1983 for “mid and upper back
pain of [a] one month duration.” [R. at 3720]. The examiner noted that the August
1983 STR contained a diagnosis of trapezius muscle strain, and the examiner
stated that the “next documented neck pain was on 6/18/1993 [10 years after
MVA].” Id. Ultimately, the VA examiner diagnosed degenerative disc disease and
spinal stenosis of the cervical spine but opined that the cervical spine conditions
were less likely than not incurred in or caused by service. [R. at 3700]; see [R. at
3720, 3730]. The examiner reasoned that there was no documented neck injury
at the time of the MVA, and that there was no documented neck pain between
August 1983 and June 2003. [R. at 3700].
The lumbar spine examination report also shows that the VA examiner
reviewed the record and conducted an in-person examination. [R. at 3707]. As to
the lumbar spine, the examiner diagnosed degenerative disc disease (DDD).
[R. at 3707]. The examiner noted that STRs were silent for low back pain, but
that Appellant “state[d] that he has been having low back pain . . . since MVA in
service in 1983.” [R. at 3708]. The examiner then opined that the lumbar spine
4 condition is less likely than not related to service. [R. at 3704]. The examiner stated that STRs did not document low back pain, and that such reports of pain were not documented “until recently.” Id.
In May 2013, the Department of Veterans Affairs (VA) Regional Office
(RO) granted service connection for facial acne/acne vulgaris with scarring,
which it rated 10% disabling. [R. at 3666 (3660-68)]. The RO also denied service
connection for hepatitis, a cervical spine condition, and a lumbar spine condition.
[R. at 3662-63].
Thereafter, Appellant filed a September 2013 notice of disagreement
(NOD), in which he expressed disagreement with the acne vulgaris rating and the
denials of service connection for the three other conditions. [R. at 3551-53]. He
also submitted a lay statement and evidence in support of his cervical spine
claim in December 2013. [R. at 3457-77]. In his lay statement, Appellant
asserted that evidence “clearly invalidate[s] the statement made by the
examining physician” that records do not show “complaints of my neck hurting
from 1983 to the year 200[3].” [R. at 3474].
In August 2014, the RO issued a statement of the case (SOC) continuing
the denial of a rating in excess of 10% for facial acne and the denials of service
connection for a cervical disc condition, a lumbar condition, and hepatitis. [R. at
3237-71]. Appellant then perfected his appeal to the Board. [R. at 2963].
Appellant testified before the Board in October 2018. [R. at 30-53]. The
Veterans Law Judge (VLJ) noted that one issue on appeal was “entitlement to an
5 increased rating greater than 10 percent for facial acne” but that it was her understanding that Appellant “wish[ed] to drop that issue.” [R. at 31]. The VLJ asked if her understanding was correct, to which Appellant responded “[y]es, correct.” Id. Similarly, the VLJ noted that “entitlement to service connection for hepatitis is also going to be dropped” and asked Appellant if that was correct. Id.
Again, he replied “[y]es, correct.” Id. The VLJ stated that “we’re going to drop those two issues.” Id. Appellant then testified about his claimed cervical and lumbar spine conditions. He stated that he was involved in an MVA during service that caused back and neck pain, and that he continued to have back and neck issues after service. [R. at 35, 39].
In December 2018, Appellant submitted a statement reiterating his contention that the February 2013 VA cervical spine examiner incorrectly stated that “neck pain was nowhere to be found until June 2003.” [R. at 22].
In May 2019, the Board issued a decision denying service connection for lumbar and cervical spine conditions, and dismissing the claims related to hepatitis and facial acne. [R. at 4-12]. This appeal followed.
III. SUMMARY OF THE ARGUMENT
The Court should affirm the part of the Board decision denying service connection for a lumbar spine condition. The Board properly relied on a February
2013 VA lumbar spine examination, which is based on Appellant’s medical history, to include his lay reports of back pain since service and STRs showing no complaints of low back pain. Appellant fails to show that the examination is
6 based on an inaccurate factual premise, as he concedes both that STRs do not document low back pain and that the examiner considered his lay statements regarding pain since service. Appellant also fails to show that the Board relied solely on the absence of lumbar pain in service to find that the evidence of record outweighed Appellant’s reports of low back pain since service. As the Board explained, Appellant’s separation examination shows that he had a normal spine, and Appellant did not complain of service-related low back pain until many years after his separation. Additionally, the record contains evidence contemporaneous to Appellant’s service showing that he explicitly denied recurrent back pain.
The Court should vacate and remand that part of the Board decision denying service connection for a cervical spine disorder. The February 2013 VA cervical spine examination relied on by the Board is based upon an inaccurate factual premise, because the examiner incorrectly stated that Appellant did not complain of neck pain between 1983 and 2003. Additionally, the Board did not address medical evidence showing that Appellant complained of neck pain in
1993.
The Court should also vacate and remand that part of the Board decision dismissing claims for service connection for hepatitis and a rating in excess of
10% for facial acne. Although the Board correctly stated that Appellant expressed his desire to withdraw those claims at the October 2018 Board hearing, the
Board did not adequately explain if Appellant fulfilled the necessary requirements for a valid verbal withdrawal of his appeals.
7 IV. ARGUMENT
A. Standard of review
The Court reviews the Board’s findings of fact, including its service
connection determinations, under the “clearly erroneous” standard of review.
38 U.S.C. § 7261(a)(4); see Solomon v. Brown, 6 Vet.App. 396, 402 (1994).
Under this deferential standard of review, the Court must affirm the Board’s
factual findings if they are “plausible in light of the record.” Gilbert v. Derwinski, 1
Vet.App. 49, 52 (1990).
The Court also reviews whether the Board has supported its decision with
a written statement of reasons or bases for its factual findings and conclusions of
law. 38 U.S.C. § 7104(d)(1). To comply with this requirement, the Board must
analyze the probative value of evidence, account for evidence it finds persuasive
or unpersuasive, and explain why it rejected evidence materially favorable to the
claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995). The Board is not required
to address each item of evidence, as it is presumed to have considered all
evidence of record. Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir.
2007).
8 B. The Board adequately explained that the evidence of record, including an adequate February 2013 lumbar spine examination, weighs against a finding that Appellant’s lumbar spine disorder is related to service
1. February 2013 VA lumbar spine examination
The February 2013 VA lumbar spine examination is adequate because it is based upon Appellant’s medical history, to include his lay reports of pain since service.
Once the Secretary undertakes the effort to provide an examination, he must provide an adequate one. See Barr v. Nicholson, 21 Vet.App. 303, 311
(2007). A medical opinion is adequate “where it is based upon consideration of the veteran’s prior 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 subject
to review under the deferential “clearly erroneous” standard. D’Aries v. Peake, 22
Vet.App. 97, 104 (2008).
The 2013 VA examiner reviewed Appellant’s claims file and conducted an
in-person examination. [R. at 3703]. The examiner then correctly stated that
Appellant’s STRs do not document low back pain and that low back pain had not
been documented in medical records “until recently.” [R. at 3703-04]. Appellant
points to no evidence contradicting the examiner’s statement, and instead argues
9 that the examination “appears to be based upon an inaccurate factual premise” because an August 1983 STR shows he complained of “upper and mid back
pain” that radiated to his shoulder blades. Appellant’s Brief (Br.) at 11 (emphasis
added); see [R. at 3796] (August 1983 STR). But, as Appellant recognizes, the documentation of upper and mid back pain does not show that STRs documented low back pain. See id. (“[T]o the extent that it matters that Appellant
did not complain of low back pain . . . .”). Appellant’s concession that his STRs
do not document low back pain undermines his argument that the VA examiner
inaccurately stated that there is “[n]o documented low back pain in his STR[s].”
[R. at 3704].
Notably, the VA examiner considered the August 1983 STR documenting
“mid and upper back pain” in evaluating Appellant’s separately claimed cervical
spine condition. [R. at 3720]; see also [R. at 8]. Appellant fails to explain why the
VA examiner should have addressed “the medical significance” of this STR when
evaluating his low back, rather than his cervical spine. See Appellant’s Br. at 11.
To the extent Appellant contends that the STR documenting upper and mid back
pain is relevant to his low back condition—and not the cervical spine condition as
noted by the VA examiner—the Secretary submits that neither Appellant nor his
attorney have shown that they are qualified to explain the significance of medical
evidence. See Kern v. Brown, 4 Vet.App. 350, 353 (1993) (rejecting an
unsupported medical hypothesis because “appellant’s attorney is not qualified to
provide an explanation of the significance of the clinical evidence”); Hyder v.
10 Derwinski, 1 Vet.App. 221, 225 (1991) (explaining that lay hypothesizing serves
no constructive purpose). Additionally, the 2013 VA examiner is presumed
competent to know how to properly evaluate a condition. See Monzingo v.
Shinseki, 26 Vet.App. 97, 106-07 (2012); see also Fears v. Wilkie, 21 Vet.App.
308 (2019).
The Court should also reject Appellant’s argument that the VA examiner
failed to consider lay reports of pain since service, as Appellant concedes that
the February 2013 VA examiner recorded his reports “that ‘he has been having
low back pain . . . since MVA in service in 1983.’” Appellant’s Br. at 12-13; see
[R. at 3708]. There appears to be no dispute, therefore, that the VA examiner
considered both Appellant’s lay statements of pain since service and the STRs
containing no documentation of low back pain. This shows that the VA
examination report is based upon consideration of Appellant’s medical history, to
include his reported medical history. See Stefl, 21 Vet.App. at 123. Further,
although Appellant contends that the examiner should have provided a
“meaningful discussion” of his lay statements, this argument confuses the duties
of a medical examiner with those of the adjudicator. Appellant’s Br. at 13-14; see
Monzingo, 26 Vet.App. at 105 (rejecting an appellant’s argument that the
examiner was required to “provide a detailed review” of his medical history); see
also Acevedo v. Shinseki, 25 Vet.App. 286, 293 (2012) (holding that VA
examiners are not bound by a reasons-or-bases requirement).
11 In sum, the February 2013 VA examination is adequate because it is based on Appellant’s medical history, and Appellant fails to show that the Board erred by relying on it.
2. Reasons or bases
The Board adequately explained that the evidence of record “weighs against a finding of continuity of relevant symptoms” since service, [R. at 9], and
Appellant’s argument to the contrary is merely a disagreement with the Board’s probative value assessment.
It is the Board’s responsibility to assess the credibility and probative weight of evidence, Washington v. Nicholson, 19 Vet.App. 362, 368 (2005), and the
Court may only overturn the Board’s probative value determinations if they are clearly erroneous, Smith v. Shinseki, 24 Vet.App. 40, 48 (2010). See Owens v.
Brown, 7 Vet.App. 429, 433 (1995) (explaining that it is the responsibility of the
Board to assess the credibility and weight to be given to evidence). Under the
“clearly erroneous” standard of review, the Court must uphold the Board’s determinations “if there is a ‘plausible’ basis in the record for the factual determinations of the [Board], even if this Court might not have reached the same factual determinations.” Gilbert, 1 Vet.App. at 53; see Deloach v. Shinseki,
704 F.3d 1370, 1380 (Fed. Cir. 2013) (explaining that the Court “may not weigh any evidence itself”).
The Board here considered Appellant’s competent reports of experiencing lumbar spine pain since service, but it found that his statements were outweighed
12 by evidence contemporaneous to his service. [R. at 9]. Such evidence included
Appellant’s separation examination, which shows that his spine was evaluated as normal. Id.; see [R. at 3125]. A report of medical history accompanying the
separation examination also shows that Appellant explicitly denied recurrent back
pain and arthritis. [R. at 3127]; see also [R. at 3130] (March 1988 report of
medical history continuing to deny recurrent back pain and arthritis). Further, the
Board correctly stated that there was a “well over 25 year gap in time between
separation from service and the Veteran’s first assertion of an in-service onset of
spinal problems” and that Appellant had not claimed a back condition when
initially applying for disability benefits in 1984. [R. at 9] (noting that the February
2013 VA examination was also more probative than “lay assertions made in connection with the claim[]” for benefits).
The Board’s probative value assessment is not clearly erroneous because
it is supported by a plausible basis in the record. See Smith, 24 Vet.App. at 48.
Contrary to Appellant’s contention, the Board did not rely solely on the “absence
of documentation relating to . . . a lumbar spine disorder” in finding lay
statements less probative. Appellant’s Br. at 19. Rather, the Board relied on
evidence contemporaneous to Appellant’s separation, which shows that
Appellant denied recurrent back pain and had a normal spine. [R. at 9]; see [R. at
3125 (May 1984 Report of Medical Examination containing an “X” in the “normal”
column for line 38, regarding the spine), 3127 (May 1984 Report of Medical
History containing a check-mark in the “no” column next to “[r]ecurrent back
13 pain”)]; see also [R. at 3130] (1988 report of medical history showing Appellant denied recurrent back pain). Appellant attempts to argue that he was not expected to report back pain during service or at separation, see Appellant’s Br. at 20, but this argument is unpersuasive because his service records show that he explicitly denied recurrent back pain in 1984 and 1988.
The Board also did not err in considering the 25-year gap in time between
Appellant’s service and his report of in-service low back pain, in addition to contemporaneous service records showing that Appellant denied recurrent low back pain. But see Appellant’s Br. at 21-22. As the United States Court of
Appeals for the Federal Circuit has explained, the Board may consider “evidence of a prolonged period without medical complaint, along with other factors.”
Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Buchanan v.
Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (explaining that the Board may weigh the absence of contemporaneous medical evidence against lay evidence, but cannot determine that lay evidence lacks credibility solely based on the absence of contemporaneous medical evidence). Similarly, Appellant fails to
show that the Board erred in finding probative that Appellant’s initial claim for
benefits did not mention a low back condition, as this is just one factor the Board
considered in finding that the evidence weighed against Appellant’s assertion
that he has experienced low back pain since service. [R. at 9]; see Fountain v.
McDonald, 27 Vet.App. 258, 273 (2015) (explaining that the Board “may not rely
solely on the fact that the appellant did not file, at a particular point, a claim for
14 VA benefits”) (emphasis added). Notably, a VA examination provided in connection with that initial claim shows that Appellant denied a “history of musculoskeletal difficulties” at that time. [R. at 4666] (August 1984 examination).
In sum, the Board’s finding that Appellant’s lay assertions of low back pain since service were outweighed by contemporaneous evidence is supported by a plausible basis in the record, to include reports of medical history showing that
Appellant denied recurrent back pain in 1984 and 1988. Appellant thus fails to show that the Board’s probative value assessments are clearly erroneous, and his argument amounts to a mere disagreement with the Board’s analysis and its ultimate denial of service connection. See Gilbert, 1 Vet.App. at 53; Owens, 7
Vet.App. at 433. As a final matter, the Secretary notes that he has limited his response to only those arguments raised by Appellant in his opening brief and submits that any other arguments or issues should be deemed abandoned. See
Carbino v. West, 168 F.3d 32, 34 (Fed. Cir. 1999).
C. The Court should vacate and remand the part of the Board decision denying service connection for a cervical spine disorder
1. February 2013 VA cervical spine examination
The Court should vacate and remand that part of the Board decision denying entitlement to service connection for a cervical spine disorder because the Board relied on an inadequate February 2013 VA cervical spine examination.
See D’Aries, 22 Vet.App. at 104; Stefl, 21 Vet.App. at 123.
15 The Secretary agrees with Appellant that the February 2013 VA cervical spine examination is inadequate because it is based on an inaccurate medical history. See Reonal v. Brown, 5 Vet.App. 458, 461 (1993) (“An opinion based upon an inaccurate factual premise has no probative value.”); see also
Appellant’s Br. at 17. The VA examiner stated that, after August 1983, “[t]he next documented neck pain was on 6/18/2003 [10 years after MVA].” [R. at 3720]. But the record shows that treatment records dated in 1993 contain complaints of neck pain.1 See [R. at 4507 (March 1993 consultation sheet noting complaints of neck pain and containing a provisional diagnosis of arthritis), 4510 (July 1993 treatment record stating “refer to rheumatology for neck pain”)]. Accordingly, the
Secretary concedes that remand is warranted to obtain a new VA examination.
See Barr, 21 Vet.App. at 311.
Notably, although Appellant contends that the VA examiner also failed to consider his lay reports of pain since service, such an argument is undermined by his concession that the examiner noted his reports of neck pain since service.
Appellant’s Br. at 12-13 (“Appellant reported during the February 2013 VA examinations, that . . . his neck pain ‘has persi[s]ted’ since service.”); see [R. at
3720] (noting that Appellant’s “pain has persi[s]ted” since service). Appellant, therefore, does not show that the VA examiner also erred by failing to consider his lay statements. The Secretary also notes that any error by the Board in failing
1 Appellant also asserts that a December 1988 treatment record documents neck pain, but that record notes only a swollen lymph node in the cervical region and some “past neck pain.” [R. at 3743]; see Appellant’s Br. at 17.
16 to address the adequacy of the February 2013 VA examination is moot, given the
Secretary’s concession that the VA examination is inadequate and that a new VA examination is warranted. See [R. at 22 (Appellant’s December 2018 statement
asserting that the VA examiner’s notation that “documented neck pain was
nowhere to be found until June 2003” was “false and inaccurate), 3474
(December 2013 lay statement asserting that evidence invalidates the
examiner’s notation that he did not complain of neck pain between 1983 and
2003)]; see also Appellant’s Br. at 23 (arguing that the Board erred by failing to
address the adequacy of the VA examination).
2. Reasons or bases
The Secretary further agrees with Appellant that the Board erred by failing to consider the 1993 medical records documenting complaints of neck pain. See
38 U.S.C. § 7104(d)(1); see also Appellant’s Br. at 17 (arguing that the records
“bolster [his] contentions regarding continuity of cervical spine symptoms since
service”). In any subsequent decision, the Board should consider such evidence.
Although the Secretary does not agree with Appellant’s related argument that the
Board failed to adequately weigh his lay statements against the other evidence of
record, he declines to further address the alleged deficiency because the Board
will be required to provide an adequate statement of reasons or bases in a
subsequent decision on this claim.
17 D. The Court should vacate and remand the part of the Board decision dismissing claims for service connection for hepatitis and a rating in excess of 10% for facial acne
The Secretary agrees with Appellant that the Court should vacate and remand the part of the Board decision finding that Appellant withdrew his appeal with respect to the hepatitis and facial acne claims at an October 2018 Board hearing, because the Board provided an inadequate statement of reasons or bases for this finding. [R. at 6]; see Appellant’s Br. at 25.
The Federal Circuit has explained that the withdrawal standard established in DeLisio v. Shinseki, 25 Vet.App. 45 (2011) is a reasonable standard and applies to hearing withdrawals under 38 C.F.R. § 20.204(b)(1) (2018). See Acree v. O’Rourke, 891 F.3d 1009 (2018). Thus, to effectively verbally withdraw an appeal at a Board hearing, the withdrawal must be “explicit, unambiguous, and undertaken with a full understanding of its consequences.” Id. at 1013; see
DeLisio, 25 Vet.App. at 57.
In this matter, the Board failed to address whether Appellant’s withdrawal of the hepatitis and facial acne claims at the October 2018 Board hearing was done with a full understanding of the consequences. Rather, the Board stated only that Appellant “withdrew his appeal with respect to [these] claims” at the
Board hearing. [R. at 6]; see [R. at 31] (Board hearing showing that Appellant replied “[y]es, correct” when asked by the VLJ if Appellant wished to drop the facial acne and hepatitis issues). Thus, the Secretary concedes that remand is warranted for the Board to adequately address whether Appellant fulfilled the
18 necessary requirements for a valid verbal withdrawal of his appeals at the Board
hearing. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (explaining that remand is the appropriate remedy where the Board provided an inadequate statement of reasons or bases).
V. CONCLUSION
WHEREFORE, for the foregoing reasons, the Secretary respectfully
submits that the part of the Board’s March 11, 2019, decision denying service
connection for a lumbar spine disorder should be affirmed, and that the
remainder of the Board’s decision should be vacated and remanded.
Respectfully submitted,
WILLIAM A. HUDSON, JR. Principal Deputy General Counsel
MARY ANN FLYNN Chief Counsel
/s/ Kenneth A. Walsh KENNETH A. WALSH Deputy Chief Counsel
/s/ Jessica K. Grunberg JESSICA K. GRUNBERG Senior Appellate Attorney Office of General Counsel (027J) U.S. Department of Veterans Affairs 810 Vermont Avenue, N.W. Washington, D.C. 20420 (202) 632-6745
Attorneys for Appellee Secretary of Veterans Affairs
19