Veterans’ Claims MU v. Shinseki 09-3570

United States Court of Appeals for Veterans Claims

_________________________

Vet. App. No. 09-3570

M.U,

Appellant

,

v.

ERIC K. SHINSEKI,

Secretary of Veterans Affairs,

Appellee.

_______________________________________________________________

BRIEF FOR APPEALLANT

_________________________________________________________________

David Anaise, MD, JD

Benham & Anaise, LLC

177 N Church Ave Ste 883

Tucson AZ 85701

(520) 882-3622

TABLE OF CONTENTS

TABLE OF CONTENTS

TABLE OF CASES, STATUTES, AND OTHER AUTHORITIES

STATEMENT OF THE ISSUES

STATEMENT OF THE CASE

SUMMARY OF THE ARGUMENT

The Board’s finding that no nexus is found between Veteran’s disability due to Rheumatoid Arthritis and his service in Korea is clearly erroneous and therefore must be reversed?

ARGUMENT

1. Dr. Shaw’s opinion is not speculative

2. Dr. Persselin’s report misstates the medical literature

3. The Board must accept Veteran’s complaint of pain as a cardinal sign of Rheumatoid Arthritis and assess presumption of disability pursuant to Title 38 U.S.C. 1112(a)(1) (1988)

4. The Board failed to assist Appellant (Veteran’s spouse).

5. The Board erred in not applying the Benefit-of-the-Doubt DOCTRINE

6. The Board failed to explain adequately its decision not to follow the Benefit-of-the-Doubt DOCTRINE

   CONCLUSION

TABLE OF CASES, STATUTES, AND OTHER AUTHORITIES

Cases

Statutes

Regulations and Other Authorities

Record before the Agency

STATEMENT OF THE ISSUES

1. Whether the Board’s finding that no nexus is found between Veteran’s disability due to Rheumatoid Arthritis and his service in Korea is clearly erroneous and therefore must be reversed?

2. In the alternative whether the Board erred in not applying the benefit-of-the-doubt doctrine?

3. In the alternative whether the Board failed to assist Appellant (Veteran’s spouse)?

   STATEMENT OF CASE

               Mr. Arthur U, (hereinafter, Veteran), had active military service from July 1953 to July 1956. He served at time of war in Korea.[1] (R. 4). He was awarded 100% non-service-connected disability for Rheumatoid Arthritis in 1982. (R. 587). Veteran died in June 2005 from complications of Rheumatoid Arthritis. (R. 52). Mrs. Margaret U, Veteran’s surviving spouse, is appellant in this matter (hereinafter, appellant).

               This matter came to the Board of Veterans’ Appeals (hereinafter, the Board) on appeal from a December 2005 rating decision rendered by the Seattle, Washington, Regional Office (RO) of the Department of Veterans’ Affairs (VA), which denied appellant’s claim for entitlement to service connection for Veteran’s cause of death. The Board found that Veteran did die from complications of Rheumatoid Arthritis but found no service connection. (R. 3).

   Appellant asserts that a contributory cause of Veteran’s death, Rheumatoid Arthritis, is related to events during his active service. The Board presented the following chronology:

1. Musculoskeletal findings were marked as normal on Veteran’s service enlistment examination report dated in April 1953. (R. 36).

2. Sick call treatment records show that from May 27, 1954, to approximately June 1, 1954, and on April 3, 1955, Veteran complained of, and was treated for, a sprained back and sore back. (R. 41).

3. In July 1956, Veteran’s service discharge examination report noted no back complaints or pathology. (R. 42).

4. The Board found that the earliest actual diagnosis of Rheumatoid Arthritis was made in 1960. (R. 42).

5. A March 1982 VA hospital summary report reflected a diagnosis of longstanding active Rheumatoid Arthritis since 1960. Veteran’s Rheumatoid Arthritis factor was again noted to be positive. A chest x-ray was noted to show heavy bronchovesicular markings in both bases, which was typical of Rheumatoid Arthritis. (R. 988).

6. In an August 1982 statement, Veteran indicated that he had experienced a great deal of pain in his shoulders and back during service.

7. A May 1968 private clinical record from Nehalam Bay Medical Center reflected findings of arthritis of multiple joints. (R. 10).

8. An April 1973 serology report revealed a positive Rheumatoid Arthritis factor. (R. 11).

9. A June 1977 treatment note from Mason General Hospital also revealed a positive Rheumatoid Arthritis factor. (R. 12).

10. In an August 1989 statement, a private physician, R. L. Y., M.D., listed a diagnosis of active and advanced Rheumatoid Arthritis. It was further noted that Veteran was totally disabled due to fibrosis of the lung secondary to Rheumatoid Arthritis. (R. 52).

11. Veteran died in June 2005. His death certificate listed the immediate cause of his death as respiratory failure, due to or as a consequence of pulmonary fibrosis. (R. 52).

12. During the July 2008 hearing, appellant asserted that Veteran experienced problems with his joints right after discharge from service and began to receive treatment in 1957. She further reported that at that time she had to begin helping Veteran to shave, to tie his shoes, and to brush his hair. Appellant further testified that, upon discharge from the service, Veteran moved to Washington State to be close to medical care for arthritis. She testified that the VA informed her that Veteran’s medical records, including the record of hospitalization in Japan and the record of care in 1956-1960, were lost in a fire. (R. 12).

13. In February 2008, a VA physician, Dr. Shaw, who is a medical director and chief at a VA facility, and who was Veteran’s personal physician for years, provided a medical report basing his opinion on the entire medical record and his familiarity with Veteran. He opined that by history, Veteran was noted to be diagnosed in 1960 with RA (Rheumatoid Arthritis), but was reported as early as May 1954 to have had back pain diagnosed as “sprained back” during service. He opined that Veteran probably[2]
    
    
    developed Rheumatoid Arthritis while in service, but noted that there were only very short notations of his Infirmary visits and no clear trail of evidence. The physician also noted that any tests pointing to a diagnosis of Rheumatoid Arthritis while in service were not performed by the examining physicians, and that such testing in 1954-56 would have been rudimentary at best. (R. 12).

14. In a March 2009 letter, the Board requested that another VA physician, Dr. Jay E. Persselin, provide a medical advisory opinion. In April 2009, Dr. Persselin concluded that there was less than a 50 percent probability that Veteran’s Rheumatoid Arthritis had its initial clinical presentation during service or within one year after separation from service. (R. 16).

15. Dr. Persselin stated that he reviewed the contents of 3 volumes of the claim file, but he admitted that he had not seen any of the records which were pertinent to the question of whether or not Rheumatoid Arthritis had occurred or had been aggravated during Veteran’s service or upon discharge from the service.[3]
    
    
    Dr. Persselin agreed that there is no single presentation of Rheumatoid Arthritis. He also agreed that rheumatoid factor antibodies may initially be negative at the time of presentation and may ultimately be found positive. He also agreed that there are several well recognized initial presentations, and that less common presentations sometimes result in delaying the diagnosis. The expert went on to delineate the typical characteristic textbook presentation of Rheumatoid Arthritis, but did not adequately research the presentation of back involvement in Rheumatoid Arthritis. (R. 16).

16. Dr. Persselin admitted that Rheumatoid Arthritis can result in inflammation of the apophyseal joint (the joint linking the posterior articulation of adjacent vertebral bodies of the spine). He noted that in the 1982 discharge summary, a reference was made to scoliosis of the lumbosacral spine, and that a lumbosacral x-ray in May 1989 noted retro scoliosis of lumbosacral spine with convexity of the right as well as grade II spondylolisthesis L5-S1 and sclerotic appearing apophyseal joints also involving the L5-S1 region with traction osteophytes at L2-L3. Some sacroiliac joint sclerosis symmetrical was also noted. The expert conceded that Rheumatoid Arthritis could possibly explain the sclerotic changes described in L5-S1 region. Dr. Persselin concluded, however, that back involvement is rare in Rheumatoid Arthritis, and opined that there is less than 50% probability that the veteran’s Rheumatoid Arthritis had its initial clinical presentation during the time he was in the service or was present within 1 year after separation from the service.

17. Based on Dr. Persselin’s opinion, the Board held that Dr. Shaw’s opinion was speculative. (R. 17).

18. The Board concluded that Dr. Persselin’s April 2009 findings constituted the most probative (persuasive) evidence on the question of whether a contributory cause of Veteran’s death was incurred as a result of active service. Finally, the Board considered the applicability of the benefit-of-the-doubt doctrine but held:

    “As the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990).”

    SUMMARY OF THE ARGUMENT

    The Board’s finding that no nexus is found between Veteran’s disability due to Rheumatoid Arthritis and his service in Korea is clearly erroneous and therefore must be reversed

                In rejecting any nexus between Veteran’s cause of death and his military service, the Board violated several rules established by the VA.

1. The Board rejected the testimony of Veteran’s treating physician who opined with considerable certainty that Veteran suffered from Rheumatoid Arthritis during military service. The Board explained that they did so because the physician had pointed out the obvious findings that most of the pertinent medical records were lost. The Board inferred that the entire testimony was speculative in violation of McLendon, 20 Vet. App. at 85.

2. The Board noted that there was tension between Dr. Shaw’s conclusions and findings and had a duty to contact Dr. Shaw to address the apparent tension between the physician’s conclusion and the reasoning. See Watai v. Brown
   , 9 Vet. App. 441, 444 (1996).

3. The Board had no right to seek another medical opinion from a veteran hospital physician, since Dr. Shaw is the medical director and Chief of a VA facility. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). The Board should have contacted Dr. Shaw before it ordered another exam for the sole purpose of defeating Dr. Shaw’s opinion.

4. The Board accepted Dr. Jay Persselin’s opinion that back pain is an unusual symptom of Rheumatoid Arthritis. Review of the medical literature shows that this conclusion is incorrect, and that back pain is not as rare as the expert led the Board to believe.

5. The Board had a duty to contact Dr Shaw to alert him that his opinion that Veteran’s back pain while in service was a presenting symptom of Rheumatoid Arthritis was considered speculative in view of Dr. Persselin’s opinion. The Board should have provided Dr. Shaw with Dr. Persselin’s opinion and should have asked for rebuttal. It is assumed that Dr. Shaw would have provided the Board with citations of medical treatises negating Dr. Persselin’s conclusions.

6. The Board accepted without further comment Dr. Persselin’s assertion that Veteran could not have been suffering from Rheumatoid Arthritis during his service, because he suffered only from joint pain, and because no objective findings or laboratory findings were recorded. We argue that this is a legal error. Pain is a cardinal finding in Rheumatoid Arthritis, and remand is necessary where the Board fails to credit adequately this finding. See Ferguson v. Derwinski
   , 1 Vet. App. 428 (1991).

7. Rheumatoid Arthritis is listed as a Disease subject to the presumptive service connection list. According to the code, the disease must have become manifest to a degree of 10 percent or more within 1 year of separation from service. The rule thus requires the VA to evaluate Veteran’s admission to a medical facility in 1953-1956 for back pain as “symptomatology which in retrospect may be identified and evaluated as manifestation of the chronic disease to the required 10-percent degree.”

8. After obtaining the opinion of Dr. Persselin, the Board sent it to appellant (Veteran’s wife) and asked her to respond. The Board was fully aware that appellant was unrepresented. Indeed the Board held that appellant is lacking any medical expertise.[4]
   
   
   We argue that pursuant to the VJRA, the Board had a duty to advise appellant as to how to respond to Dr. Persselin’s opinion. At a minimum, the Board had a duty to inform appellant that, based on Dr. Persselin’s report, they were inclined to believe that Rheumatoid Arthritis does not affect the spine, and to advise her to obtain a rebuttal from Dr. Shaw. See Layno v. Brown,6 Vet. App. 465 (1994). We further argue that the failure to cross examine Dr. Persselin is a violation of Veteran’s constitutional right to confront the expert who provided the opinion relied on by the Board. See
   Gambill v. Peake, 2008 U.S. App. Vet. Claims LEXIS 480 (U.S. App. Vet. Cl., Apr. 28, 2008).

   ARGUMENTS

   I. Dr. Shaw’s opinion is not speculative

               The Board dismissed Dr. Shaw’s opinion as speculative:

   “By contrast, in his February 2008 statement, another VA physician opined that Veteran probably developed Rheumatoid Arthritis while in service, but noted that there were only very short notations of his Infirmary visits during service suggesting that this is the case, and that there was no clear trail of evidence.”

               It is important to contrast the testimony of both experts. Dr. Shaw is a medical director of a VA facility. He had treated Veteran and had obtained a medical history from Veteran and his wife (appellant). Dr. Shaw admitted that few medical records from 1953 to 1960 had survived, a fact which should not have come as a great surprise to the Board, since the VA had already reported that those records had been destroyed in a fire.

               The Board could not make a nexus decision based on the 1953-1960 medical records. Instead, it chose to rely solely on the published medical literature. As such it chose to accept as true Dr. Persselin’s statement that back pain is not a symptom of Rheumatoid Arthritis. The Board held as speculative Dr. Shaw’s opinion that back pain is indeed a symptom of Rheumatoid Arthritis.

               Once an expert opinion raises questions of fact or science, it is the Board’s obligation to develop the record further. It would have been an exceedingly simple matter for the Board to forward Dr. Persselin’s opinion to Dr. Shaw, and to ask Dr. Shaw to rebut the scientific basis of Dr. Persselin’s objection. Indeed the Board had a duty to contact Dr. Shaw even before soliciting additional opinions. As this Court held in Mariano v. Principi, 17 Vet. App. 305, 312 (2003):

   “ … because it would not be permissible for VA to undertake … additional development if [the] purpose was to obtain evidence against an appellant’s case.”

               In our case the Board chose among two conflicting IME opinions without further development. We argue that simply rejecting one testimony and accepting the other without more development does not meet the requirement of the law. In Gabrielson v. Brown, 7 Vet. App. 36 (1994), this Court held:

   “An IME opinion is only that, an opinion. In an adversarial proceeding, such an opinion would have been subject to cross-examination on its factual underpinnings and its expert conclusions. The VA claims adjudication process is not adversarial, but the Board’s statutory obligation under 38 U.S.C. 7104(d)(1) to state “the reasons or bases for [its] findings and conclusions” serves a function similar to that of cross-examination in adversarial litigation. The BVA cannot evade this statutory responsibility merely by adopting an IME opinion as its own, where, as here, the IME opinion fails to discuss all the evidence which appears to support appellant’s position. Accordingly, the BVA decision here contained “neither an analysis of the credibility or probative value of the evidence submitted by and on behalf of appellant in support of [her] claim nor a statement of the reasons or bases for the implicit rejection of this evidence by the Board.”” Gilbert, 1 Vet. App. at 59.

               The fact that Dr. Shaw noted that few medical records from 1953-1960 survived does not contradict his testimony that, as evidenced by the medical literature, back pain is not uncommonly seen in Rheumatoid Arthritis, and that, based on the totality of Veteran’s medical history known to him through his years of caring for Veteran, he was led to the conclusion that probably, that is with considerable certainty, Veteran suffered from Rheumatoid Arthritis while in the service.

               This Court has cautioned the Board against holding expert testimony as speculative. In McLendon v. Nicholson,
   
   20 Vet. App. 79, 81 (2006), this Court held that medical evidence that is too speculative to establish nexus is also insufficient to establish a lack of nexus; a VA medical examination must be undertaken to resolve the nexus issue. Id. (citing Forshey v. Principi, 284 F.3d 1335, 1363 (Fed. Cir. 2002) (Mayer, C.J., and Newman, J., dissenting) (“The absence of actual evidence is not substantive ‘negative evidence.’”) It should be noted that both McLendon and the applicable statutes require some assessment of probability, as opposed to a definitive statement of the cause of the disabilities. See McLendon, 20 Vet. App. at 85; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) (Veteran prevails when evidence supports claim or is in relative equipoise.) If the physician is able to state that a link between a disability and an in-service injury or disease is “less likely than not,” or “at least as likely as not,” he or she can and should give that opinion; there is no need to eliminate all lesser probabilities or ascertain greater probabilities.

               In Jones v. Shinseki, N
   o. 07-3060 (10/2009), the court enunciated the Board’s duty to search exhaustively for relevant information:
   

   “This Court’s precedent establishes that the duty to assist requires VA to obtain all relevant information that may reasonably be obtained before the Board may rely on a VA medical examiner’s opinion to deny a claim. The cases discussed below hold that where an examiner specifically identifies additional information that would facilitate a more conclusive opinion, the duty to assist requires that VA at least investigate the feasibility of providing that information.”

               In Green v. Derwinski, 1 Vet. App. 121 (1991), this Court remanded the case to the Board stating: “It is impossible to square the Secretary’s duty to assist … with [VA’s] failure to follow up on the examiner’s suggestions.”

   II. Dr. Persselin’s report misstates the medical literature

               Dr. Persselin stated that he reviewed the contents of 3 volumes of the claim file, but he admitted that he had not seen any of the records which were pertinent to the question of whether or not Rheumatoid Arthritis had occurred or had been aggravated during Veteran’s service or upon discharge from the service.[5] Dr. Persselin agreed that there is no single presentation of Rheumatoid Arthritis. He also agreed that rheumatoid factor antibodies may initially be negative at the time of presentation and may ultimately be found positive. He also agreed that there are several well recognized initial presentations, and that less common presentations sometimes result in delaying the diagnosis. The expert went on to delineate the typical characteristic textbook presentation of Rheumatoid Arthritis, but did not adequately research the presentation of back involvement in Rheumatoid Arthritis.

               Dr. Persselin admitted that Rheumatoid Arthritis can result in inflammation of the apophyseal joint (the joint linking the posterior articulation of adjacent vertebral bodies of the spine). He noted that in the 1982 discharge summary, a reference was made to scoliosis of the lumbosacral spine. He noted that a lumbosacral x-ray in May 1989 indicated retro scoliosis of the lumbosacral spine with convexity of the right as well as grade II spondylolisthesis L5-S1 and with sclerotic-appearing apophyseal joints also involving the L5-S1 region with traction osteophytes at L2-L3. Some sacroiliac joint sclerosis symmetrical was also noted. The expert conceded that Rheumatoid Arthritis could possibly explain the sclerotic changes described in the L5-S1 region. Dr. Persselin concluded, however, that back involvement is rare in Rheumatoid Arthritis, and opined:

   “It is my opinion that there is less than 50% probability that the veteran’s Rheumatoid Arthritis had its initial clinical presentation during the time he was in the service or was present within 1 year after separation from the service.”

               We argue that the expert’s conclusion that back pain is rarely a manifestation of Rheumatoid Arthritis is simply incorrect. We ask that the Court take judicial notice of the following articles reviewing Rheumatoid Arthritis of the thoracic and lumbar spine. In a study from the Department of Orthopedic Surgery, Toyama, Japan,[6] the author studied 106 patients who met the criteria of the American Rheumatism Association for Rheumatoid Arthritis. 42 patients, or 40%, had symptoms of low back pain. Abnormal radiological findings and lumbar spine were detected in 57%, and 42% had both lumbar and cervical lesions. The authors concluded that:

   “[L]umbar lesions were frequently observed in patients with RA. The possibility of lumbar lesion as well as lesion of the cervical spine and peripheral joint should be noted when examining patients with RA.”

               Sakai, et al., from the University of Tokushima in Japan,[7] reviewed 104 patients suffering from Rheumatoid Arthritis who presented with moderate arthritis. 47 of the patients, or 45.2%, exhibited a lumbar lesion on an MRI with changes including either disc narrowing or disc ballooning.

               AWB Heywood, et al., published a study in the Journal of Bone and Joint Surgery, the official publication of the British Society of Bone and Joint Surgery.[8] The author suggested that synovitis probably starts in the apophyseal joints slowing eroding cartilage and subchondral bone in exactly the same way as it does in peripheral joints. The author listed 8 published reports linking lumbar and thoracic vertebral disease with Rheumatoid Arthritis from 1952-1986. The author also ventured that the incidence of patients with back pain who are not in advanced degree of Rheumatoid Arthritis clearly must be higher.

               H. Sims-Williams, et al., noted that in contrast with the neck, involvement of the lumbar spine in Rheumatoid Arthritis has received little attention.[9] They observed in their patient population that radiologic manifestations of rheumatoid changes were present in the lumbar spines of 5% of males and 3% of females.

   “Our patients all had extensive, active, erosive Rheumatoid Arthritis and attacks of back pain often coincided with flares of rheumatoid synovitis elsewhere. Pain occurred mainly in the lumbar spine and in some patients radiated into the legs.”

               The Court should also take judicial notice that Rheumatoid Arthritis of the back is reported in veterans. Dr. Donald Resnick of the Department of Radiology, Veterans Administration Hospital, San Diego, California, described thoracolumbar spine abnormalities in veterans suffering from Rheumatoid Arthritis.[10]This Court recently heard the case of a veteran appealing his denial for Rheumatoid Arthritis of the back.[11]
   
   

               Federal Rule of Evidence 201 allows the court to take judicial notice, at any stage of the proceeding, of facts that are “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). Judicial notice is mandatory where a party requests it and supplies the Court with the necessary information. Fed. R. Evid. 201(d). Scientific studies are a proper subject of judicial notice. See Brown v. Bd. of Educ., 347 U.S. 483, 495 n.11 (1954) (taking judicial notice of scientific studies). See also Paralyzed Veterans of Am. v. McPherson, 2008 Sept. Dist. Sept 69542. Medical treatises published in peer-reviewed publications clearly meet the definition of the rule “sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)

              

   III. The Board must accept Veteran’s complaint of pain as a cardinal sign of Rheumatoid Arthritis and assess presumption of disability pursuant to Title 38 U.S.C. 312(a)(1) (1988)

               The Board accepted without further comment Dr. Persselin’s assertion that Veteran could not have been suffering from Rheumatoid Arthritis during his service, because he suffered only from joint pain, and because no objective findings or laboratory findings were recorded. We argue that this is a legal error. Pain is a cardinal finding in Rheumatoid Arthritis, and remand is necessary where the Board fails to credit adequately this finding. In Ferguson v. Derwinski, 1 Vet. App. 428 (1991) the Court held:

   “The BVA decision in this case states: “The veteran’s Rheumatoid Arthritis is manifested by complaints of joint pain, with no more than minimal objective findings shown on recent examinations.” This is the only language in the BVA decision that appears to comment on appellant’s subjective complaints of pain. The BVA cannot simply ignore parol evidence from a claimant, particularly where, as here, pain is the sole issue.”

               Rheumatoid Arthritis is listed as a Disease subject to the presumptive service connection list. According to the code, the disease must have become manifest to a degree of 10 percent or more within 1 year of separation from service. The factual basis may be established by medical evidence, competent lay evidence, or both. Symptomatology shown in the prescribed period may have no particular significance when first observed, but in the light of subsequent developments, it may gain considerable significance. Cases in which a chronic condition is shown to exist within a short time following the applicable presumptive period, but without evidence of manifestations within the period, should be developed to determine whether there was symptomatology which, in retrospect, may be identified and evaluated as manifestation of the chronic disease to the required 10-percent degree. Dr. Persselin reported that Rheumatoid Arthritis progresses very slowly. He noted that the clinic determined that Veteran was an “interesting case,” because he progressed to full elbow contracture in two years. We doubt that the examiner would have found this case “interesting” had he known that the onset of the condition was 1953. Based on Dr. Persselin and the medical literature, it is the rule rather than the exception that four years may elapse before the diagnosis of Rheumatoid Arthritis can be made. Veteran left the service in 1956 and was diagnosed with Rheumatoid Arthritis in 1960. The rule thus requires the VA to evaluate Veteran’s admission to a medical facility in 1953-1956 for back pain as “symptomatology which in retrospect may be identified and evaluated as manifestation of the chronic disease to the required 10-percent degree.”

   IV. The BVA failed to assist appellant

               After obtaining the opinion of Dr. Persselin, the Board sent it to appellant (Veteran’s wife) and asked her to respond. The Board was fully aware that appellant was unrepresented. Indeed the Board held that appellant is lacking any medical expertise.[12] We argue that pursuant to the VJRA, the Board had a duty to advise appellant as to how to respond to Dr. Persselin’s opinion. At a minimum, the Board had a duty to inform appellant that, based on Dr. Persselin’s report, they were inclined to believe that Rheumatoid Arthritis does not affect the spine, and to advise her to obtain a rebuttal from Dr. Shaw.

               In Layno v. Brown,6 Vet. App. 465 (1994), the CAVC ruled that when a claimant’s service medical records were destroyed or lost, the VA is under a duty to advise the claimant to obtain other forms of evidence. In Patton v. West, 12 Vet. App. 272 (1999), the CAVC held that during personal hearings conducted by VA adjudicators, pursuant to 38 C.F.R. 3.103(c), the VA has the responsibility to “suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant’s position.” Accordingly, if the claimant or the records in the claims file put the VA on notice of the existence of evidence that may help substantiate the claim, the VA is required to obtain the evidence itself or advise the claimant to submit the evidence.

               Once the claimant has met his burden under 5107(a) of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded, the burden then shifts to the Secretary to “assist such a claimant in developing the facts pertinent to the claim.” 38 U.S.C. 5107(a).

   “Within the non-adversarial process of VA claims adjudication, the word ‘pertinent’ takes on an even stronger meaning; the Secretary’s duty applies to all relevant facts, not just those for or against the claim.” Murphy v. Derwinski
   , U.S. Vet. App. No. 90-107

               Hams v. West, 1998 U.S. Vet. App. LEXIS 908 No. 96-592 (1998), is a case almost identical to the case at bar involving a Veteran with Rheumatoid Arthritis of the back.[13]
   
   
   Twenty-eight years after his discharge, the veteran applied for service connection for arthritis of the knees and back. The veteran submitted a letter from Dr. Skogerboe, his treating physician, concerning the doctor’s treatment of him in 1954. The letter was at odds with the physician’s 1954 records which failed to discuss Rheumatoid Arthritis. The medical records from the years during which the physician had treated appellant were no longer maintained. The court vacated the Board’s decision. The Court reasoned that a recent letter indicated that the veteran was treated for the condition within one year of his service; therefore, his claim was well-grounded. 38 U.S.C. 5107(a). In view of the conflict between the doctor’s certificate and other medical records, the Board had a duty to develop the case further. The Court reasoned: “When an appellant presents a claim for VA benefits and supports the claim, VA has a duty to assist appellant in developing the facts pertinent to the claim.” 38 U.S.C. 5107(a); see Allday v. Brown, 7 Vet. App. 517, 526 (1995); Littke v. Derwinski, 1 Vet. App. 90, 91-92 (1990); Murphy, 1 Vet. App. at 81-82. The record does not indicate that the VA made any effort to contact Dr. Skogerboe and to ask him to explain the apparent inconsistency between his 1954 medical certificate and his 1983 letter. Such evidence would clearly be relevant to the central issue in appellant’s claim. Similarly, in our case remand is necessary to allow the Board to contact Dr. Shaw.

               At the heart of the argument is Veteran’s constitutional right to confront the expert who provided the opinion relied on by the Board. In Gambill v. Peake, 2008 U.S. App. Vet. Claims LEXIS 480 (U.S. App. Vet. Cl., Apr. 28, 2008), the Court held that the US Constitution’s Due Process Clause applies to such proceedings. See also Cushman v. Shinseki, No. 2008-7129, 576 F.3d 1290, 2009 U.S. App. LEXIS 17848 (Fed. Cir. Aug. 12, 2009). Mr. Gambill argued that the Due Process Clause is not satisfied by giving the veteran the opportunity to respond to an opinion from a VHA medical professional or an independent medical examiner, but that the veteran must be given an opportunity to confront any physician who submits a medical opinion which the veteran regards as contrary to his interests in whole or in part. The submission of interrogatories, he contended, is the minimum necessary to satisfy his due process right to confront the evidence against him.

            The Court chose not to address the constitutional issues raised by Gambill; instead it decided the case squarely on the facts of the specific case, determining that the error was a harmless error. This ruling, however, left other litigants with the right to confront the evidence against them, if indeed doing so will not be a harmless error as it was in Gambill. It is therefore instructive to review the dissent in this case. The dissenting judge observed that in Richardson v. Perales, 402 U.S. 389 (1971), the Supreme Court preserved the right of Social Security disability claimants to confront the medical experts by interrogatories. The Court held that the reports of medical experts were admissible evidence, “subject as they are to being material and to the use of the subpoena and consequent cross-examination.” The dissenting Judge in Gambill concluded:

“I can think of no justification for suggesting that veterans, who have borne the battle, are entitled to less due process than social security disability applicants.”

            Although interrogatories may not always be necessary, clearly the conclusion regarding the case at bar is that the Board cannot meet its duties by merely sending the report of the expert to an unrepresented appellant, without instructing her as to exactly what she needs to do with it. A simple statement by the Board that it finds Dr. Shaw’s opinion speculative, and suggesting that appellant forward the report to Dr. Shaw or another expert for rebuttal, would have prevented this violation of appellant’s constitutional rights. The remedy in this case is to remand the case, to ask Dr. Shaw for rebuttal, and to admit the numerous treatises that negate Dr. Persselin’s opinion.

1. The Board erred in not applying the Benefit-of-the-Doubt DOCTRINE

               The Board noted:

   “In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990).”

               The Gilbert Court (cited by the Board as the basis for its decision) held that, in order to deny benefits, the negative evidence cannot be phrased as “not as likely,” but rather the preponderance of the evidence must be against the claim, i.e., that there is no reasonable possibility that Veteran is correct: The Board was thus faced with two testimonies provided by equally eminent professionals in the VA healthcare system.

               Dr. Shaw, Veteran’s treating physician, opined that Rheumatoid Arthritis probably (that is, “with considerable certainty”[14]) began while Veteran was in service. Dr. Persselin opined that there was less than a 50 percent probability that Veteran’s Rheumatoid Arthritis had its initial clinical presentation during service.[15]Dr. Persselin did not state that there is no reasonable possibility Veteran is correct, and thus his testimony does not meet the non-persuasion level required by the rule. These two opinions appear to be in equipoise.

               The Board noted:

   “In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990).”

               In Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990).the very case relied on by the Board, the Court remanded the appellant’s case, because, as in the case at bar, the Board’s decision included neither an analysis of the credibility or probative value of the evidence submitted by and on behalf of the veteran in support of his claim nor did it include any explanation for the bare conclusion that “the Board does not find that [the] doctrine [of reasonable doubt] would warrant allowance of the benefit sought on appeal.”

               The Gilbert Court held:

   “The decision thus fails to comply with the requirement of 38 U.S.C. 7104 (d)(1) (1988) that there be a “written statement of the . . . reasons or bases for” factual findings and conclusions of law.”

               The Supreme Court noted that the The Benefit-of-the-Doubt Doctrine is a unique standard of proof doctrine reserved only for decisions on claims for veterans’ benefits. Unlike other claimants and litigants, pursuant to 38 U.S.C. 3007(b), a veteran is entitled to the “benefit of the doubt” when there is an “approximate balance of positive and negative evidence.” In Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979), the Supreme Court, reasoned:

   “Addington teaches that, in any given proceeding, the minimum standard of proof tolerated by the due process requirement reflects not only the weight of the private and public interests affected, but also a societal judgment about how the risk of error should be distributed between the litigants.”

               The benefit-of-the-doubt rule is codified at 38 U.S.C. 5107, which provides that:

   “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. 5107(b) (West Supp. 2001)

               The implementing regulation, 38 C.F.R. 3.102, restates that provision in terms of reasonable doubt:

   “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.”

               The Court inOrtiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001) explained:

   “Whether the positive and negative evidence renders a decision “too close to call” can perhaps be best understood by analogizing to sandlot baseball’s “tie goes to the runner” rule.”

               Alternatively, the Ortiz court noted the benefit-of-the-doubt rule may be viewed as shifting the “risk of non-persuasion” onto the VA to prove that the veteran is not entitled to benefits, citing the Supreme Court decision in Dep’t of Labor v. Greenwich Collieries, 512 U.S. 267, 281, 129 L. Ed. 2d 221, 114 S. Ct. 2251. According to the Ortiz ruling, to deny benefits, the preponderance of the evidence must be against granting benefits in the veteran’s claim. It is only when the evidence is clearly negative that the VA has overcome its risk of non-persuasion.

               The Gilbert Court (cited by the Board as the basis for its decision) held that, in order to deny benefits, the negative evidence cannot be phrased as “not as likely,” but rather the preponderance of the evidence must be against the claim, i.e., that there is no reasonable possibility that Veteran is correct:

   “A veteran need only demonstrate that there is an “approximate balance of positive and negative evidence” in order to prevail; entitlement need not be established “beyond a reasonable doubt,” by “clear and convincing evidence,” or by a “fair preponderance of evidence.” … This unique standard of proof is in keeping with the high esteem in which our nation holds those who have served in the Armed Services. It is in recognition of our debt to our veterans that society has through legislation taken upon itself the risk of error when, in determining whether a veteran is entitled to benefits, there is an “approximate balance of positive and negative evidence.” By tradition and by statute, the benefit of the doubt belongs to the veteran. … The reasonable doubt doctrine is also applicable even in the absence of official records, particularly if the basic incident allegedly arose under combat, or similarly strenuous conditions, and is consistent with the probable results of such known hardships.” (Gilbert, 1Vet.App. 49)

               The benefit-of-the-doubt doctrine is uniquely applicable to this case for several reasons:

• The majority of the official records from 1953 to 1960 have been lost.

• The records from Veteran’s private medical providers from 1960-1968 were also lost.

• Appellant has repeatedly testified that such records were provided when Veteran initially filed for disability but were lost while in custody of the VA.

• The testimony of Veteran and appellant were not provided to the expert.

              In February 2008, a VA physician, Dr. Shaw, who is a medical director and who was Veteran’s personal physician for years, provided a medical report basing his opinion on the entire medical record and on his familiarity with Veteran. He opined that, by history, Veteran was diagnosed in 1960 with RA (Rheumatoid Arthritis), but was reported as early as May 1954 to have had back pain diagnosed as “sprained back” during service. Dr. Shaw. opined that Veteran probably (that is, “with substantial certainty”) developed Rheumatoid Arthritis while in service, but noted that there were only very short notations of his Infirmary visits suggesting that this was the case, and no clear trail of evidence. The physician also noted that any tests pointing to a diagnosis of Rheumatoid Arthritis while in service were not performed by the examining physicians, and that such testing would have been rudimentary at best in 1954-56.

              In its decision, the Board called Dr. Shaw “another VA physician.” The Board failed to apprise this Court that Dr. Shaw is the Chief Medical Director of a VA facility. Dr. Shaw was also the treating physician for Veteran, and is, therefore, the most knowledgeable person about Veteran’s medical history. The Board also failed to indicate sufficiently that Dr. Shaw’s opinion was rendered a full year before the Board asked Dr. Persselin for his opinion. The Board also failed to explain why another opinion from a VA physician was needed, in violation ofMariano v. Principi, 17 Vet. App. 305, 312 (2003). In Mariano, the Court chastised the Board for seeking additional opinions after an acceptable opinion had been obtained, holding that: “[I]t would not be permissible for VA to undertake … additional development if [the] purpose was to obtain evidence against an appellant’s case.”

              Not satisfied with the opinion of Dr. Shaw, the Board sought an advisory medical opinion from the Veterans Health Administration (VHA). The expert, Dr. Persselin, admitted to having no access to crucial information from 1953 to 1986. Unlike Dr. Shaw, Dr. Persselin had never examined Veteran, and thus he could not opine on Veteran’s credibility or on his medical history which had been provided to Dr. Shaw. The expert testimony merely provided an opinion that back pain is “not consistent with any initial presentation of Rheumatoid Arthritis” based on the expert’s limited review of the medical literature. The Board was thus faced with two testimonies provided by equally eminent professionals in the VA healthcare system.

              Dr. Shaw, Veteran’s treating physician, opined that Rheumatoid Arthritis probably (that is, “with considerable certainty”[16]) began while Veteran was in service. Dr. Persselin opined that there was less than a 50 percent probability that Veteran’s Rheumatoid Arthritis had its initial clinical presentation during service.[17]Dr. Persselin did not state that there is no reasonable possibility Veteran is correct, and thus his testimony does not meet the non-persuasion level required by the rule. These two opinions are most likely in relative equipoise.

              38 C.F.R. 3.102 (2001) states in its pertinent part:

  “Thus, 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 her claim, the veteran must prevail.”

              In order to avoid applying the benefit-of-the-doubt doctrine, the Board simply rejected Dr. Shaw’s opinion as speculative and wholly embraced Dr. Persselin’s opinion. We argue that Dr. Shaw’s testimony is not speculative, and that Dr. Persselin’s testimony is inaccurate. Thus a remand is needed to develop the record fully.

              The benefit-of-the-doubt doctrine imposes an additional duty on the court. When 4004(d)(1) has been complied with, and when this Court is reviewing Board decisions which do not apply the “benefit-of-the-doubt” standard, it is engaged in two separate analyses. Pursuant to 38 U.S.C. 4061(a)(4), the Court must first determine if the Board’s findings of material fact made in reaching its decision were clearly erroneous. Second, after making these determinations, this Court must use them and apply 38 U.S.C. 4061(a)(1), (3) to decide whether the Board’s decision not to apply the “benefit of the doubt” standard was in accordance with 38 U.S.C. 3007(b). Though these two analyses are interrelated, they are still made independently of one another and under different scopes of review.

  CONCLUSIONS

              Dr. Shaw, Veteran’s treating physician, opined that Rheumatoid Arthritis probably (that is, “with considerable certainty”[18]) began while Veteran was in service. Dr. Persselin opined that there was less than a 50 percent probability that Veteran’s Rheumatoid Arthritis had its initial clinical presentation during service.[19]Dr. Persselin did not state that there is no reasonable possibility Veteran is correct, and thus his testimony does not meet the non-persuasion level required by the rule. These two opinions are most likely in equipoise.

              The Board threw out Dr. Shaw’s opinion for no apparent reason and wholeheartedly accepted Dr. Persselin’s opinion. The Board cannot meet its duties to assist by merely sending the report of the expert to an unrepresented appellant, without instructing her exactly as to what she needs to do with it. A simple statement by the Board that it finds Dr. Shaw’s opinion speculative, and suggesting that appellant forward the report to Dr. Shaw. or another expert for rebuttal, would have prevented this violation of appellant’s constitutional rights. The remedy in this case is to remand the case, to ask Dr. Shaw. for rebuttal, and to admit the numerous treatises that negate Dr. Persselin’s opinion.

  Date: 07/22/2010                                                    Respectfully Submitted,

  /s/ David Anaise, MD, JD

  David Anaise, MD, JD

  Benham & Anaise, LLC

  177 N Church Ave Ste 883

  Tucson AZ 85701

  (520) 882-3622

  Counsel for Appellant