11.11.2017

David Apperson vs David Shulkin


Designated for electronic publication only

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 16-1046

DAVID W. APPERSON, APPELLANT,

V.

DAVID J. SHULKIN, M.D.,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before ALLEN, Judge.

MEMORANDUM DECISION

Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.


ALLEN, Judge: Appellant David W. Apperson appeals through counsel a December 30, 2015, Board of Veterans' Appeals (Board) decision denying him entitlement to service connection for a bilateral shoulder disability. This appeal was timely filed and the Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). For the reasons discussed below, the Court will set aside the December 30, 2015, Board decision and remand this matter for further proceedings.

I. RELEVANT BACKGROUND AND PROCEDURAL HISTORY

Appellant served honorably on active duty in the United States Army from January 1977 to March 1979. Record (R.) at 5225. Appellant reports that, while stationed at Fort Benning, Georgia, he fell during a platoon run and sustained a clavicle injury. R. at 5793–5794. He further reports that he was taken to a military doctor and told that he had a broken collar bone (clavicle). R. at 5794. Aside from appellant's testimony, the record provides no documentation of this incident or diagnosis. Appellant explains that he was told he could "recycle, which means start [training] over after it healed, but [that he] said 'no, I'm the acting platoon leader' . . . [and] did with one arm what other people did with two." R. at 5794.

Aside from the platoon run at Fort Benning, appellant indicated a second in-service incident in which he was injured. While explaining the onset of his pain, appellant reported:
  • when I was a unit police officer and I was guarding the gate and three individuals wanted to go outside the gate without proper passes. There became an altercation and I was basically fighting three guys and one guy had a rock about eight inches in a T-shirt and hit me in the back of the head.
R. at 5796. This testimony was corroborated in a statement from Thomas W. Walker, who was stationed with appellant in Korea from August 1977 to August 1978. R. at 3793. Mr. Walker testified that, "[i]n the summer of 1977 it was known throughout the regiment that while a [unit police officer] at the gate [appellant] had to single handedly, simultaneously, battle three individuals who were utilizing numb-chucks (sic) and rocks as weapons." Id.

Appellant testified that he continued to have problems with his shoulder while he was in service, but that he did not seek medical treatment until 2003 when he woke up to find his neck, shoulder, and side in "tremendous pain." R. at 5795. Appellant then submitted a service-connection claim for a shoulder condition, the regional office (RO) denied his claim, and appellant appealed to the Board. R. at 4920–21, 4962, 5938–42.

After the Board remanded this matter based on its finding that two previous VA examinations, one in September 2013 and another in October 2014, were insufficient to adjudicate appellant's shoulder claim, R. at 2159, VA provided him another examination in May 2015. R. at 5239–50. Similar to its conclusion about the 2013 and 2014 examinations, the Board held that the May 2015 examination's medical rationale was "quite clearly" inadequate and remanded the matter yet again. R. at 1421–27. Upon remand, VA obtained a September 2015 supplemental opinion. R. at 5236–38. In its December 30, 2015, decision, the Board found that, when taken together, the May 2015 report and September 2015 supplemental opinion were adequate for adjudication purposes. R. at 5. It concluded that "[appellant's] bilateral shoulder disorder was not incurred in or aggravated by service, nor may it be presumed to have been." R. at 4 (citations omitted). This appeal followed.

II. ANALYSIS

Appellant essentially raises two arguments, both of which he alleges establish clear error for which the Court should remand this matter. First, he maintains that the Board erred in finding the September 2015 VA supplemental opinion adequate. Appellant's Brief (Br.) at 8. Second, he asserts that the Board erred by providing inadequate reasons and bases for disregarding an appellant-favorable February 2010 medical opinion. Id. at 14. As described below, the Court agrees with appellant that the examiner lacked an adequate rationale in her September 2015 supplemental opinion because she contradicted an earlier examiner's findings without giving a rationale and failed to discuss whether appellant's in-service personal assault caused or aggravated his shoulder condition. While it is true that the Court reviews the Board's determination that an examination is adequate under the "clearly erroneous" evidentiary standard, see D'Aries v. Peake, 22 Vet.App. 97, 103 (2008), the Board's conclusion that the September 2015 examination is adequate simply does not pass muster.

To begin with, in the September 2015 opinion, the examiner contradicts a finding made by a VA examiner in September 2013 without providing a rationale for doing so. Although the 2013 report states that x-rays were negative for an old or new clavicle fracture, it went on to conclude that "[t]he x-rays of the bilateral shoulders . . . [show] mild deformity of the right clavicle that could be consistent with previous clavicle fracture." R. at 5789. Despite this recognition, the September 2015 opinion unequivocally states that "[the 2010 and 2015] x-rays of the clavicles reveal that the clavicle has no evidence of a poorly healed clavicle fracture." R. at 5238. Given the 2013 examiner's admission that the mild deformity could be consistent with a previous fracture, the Court struggles to understand the September 2015 examiner's conclusion that the x-rays show no evidence of an old fracture. Perhaps a more thorough rationale would have explained this, but the Board was left without one and this Court will remand accordingly. See Hicks v. Brown, 8 Vet.App. 417, 422 (1995) (where the record is incomplete because of an inadequate medical opinion, remand is appropriate).

Additionally, the examiner failed to address a documented in-service assault and whether this incident contributed to appellant's bilateral shoulder condition. It is well established that "the Board is required to consider all issues raised either by the claimant or by the evidence of record." Robinson v. Peake, 21 Vet.App. 535, 552 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). Although the Secretary is not required to investigate all possible theories of service connection, he "must investigate the reasonably apparent and potential causes of [appellant's] condition and theories of service connection that are reasonably raised by the record or raised by a sympathetic reading of [appellant's] filing." DeLisio v. Shinseki, 25 Vet.App. 45, 53 (2011) (citing Robinson, 21 Vet.App. at 552).

In her September 2015 supplemental opinion, the examiner stated that "[appellant's] claimed condition of left clavicle fracture reportedly happened in 1978[,] [but] [t]here is nothing in the [record] to substantiate this." R. at 5238. She continued, "[appellant] had no symptoms again in his shoulder until 2003 and this is due to an unrelated condition." Id. Notably, the examiner failed to discuss appellant's assault incident and whether this affected his claimed shoulder condition. The Secretary argues that "[appellant was] hit in the back of the head, neck or back, with a rock, or other weapons, and not the shoulders . . . the evidence of record pertains to different body parts than what is here on appeal," adding that the Board is not required to engage in "prognostication." Secretary's Br. at 10. The Court finds this argument disingenuous at best.

When making a claim, "a claimant is not expected to have medical expertise and generally 'is only competent to identify and explain the symptoms that he observes and experiences.'" DeLisio, 25 Vet.App. at 53 (quoting Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (per curiam)). Appellant referenced the clavicle fracture at Fort Benning and the assault in Korea as affecting his neck. R. at 5796 (Q: "tell me what injury occurred that caused the neck problems?" A: "Well, there's actually two. One is when I rolled at [Fort Benning] and, second, is when I was a unit police officer . . . "). But he also referred to both incidents as possible origins of his shoulder pain. R. at 5794 (Q: "Okay. [After falling at Fort Benning,] did you continue to have problems with your left shoulder during . . . service?" A: "Not that I recall except for some instance when I was a unit police officer[.]" (emphasis added)). Yet, the examiner only considered the Fort Benning incident when providing a conclusion for appellant's bilateral shoulder claim. R. at 5238. If appellant testified to the assault and clavicle injury as contributing to his shoulder pain, then it escapes the Court why the examiner would only discuss one of the two. Indeed, the Board even referenced the assault in its decision. R. at 7 ("[appellant] also testified that he had shoulder problems later, which were aggravated by an assault during active service"). The examiner's omission renders the medical opinion inadequate and, thus, the Board committed clear error that warrants remand. See Hicks, 8 Vet.App. at 422.

Given the disposition described above, the Court will not at this time address the remaining arguments and issues appellant has raised. See Best v. Principi, 15 Vet.App. 18, 20 (2001). On remand, appellant is free to submit additional evidence and argument, including the arguments raised in his briefs to this Court, in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order), and the Board must consider any such evidence or argument submitted. Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Board shall proceed expeditiously, in accordance with 38 U.S.C. §§ 5109B and 7112.

III. CONCLUSION

After consideration of the parties' briefs and a review of the record, the December 30, 2015, Board decision is SET ASIDE and the matter is REMANDED to the Board for further proceedings consistent with this decision.

DATED: October 6, 2017

Copies to:

Glenn R. Bergmann, Esq.

VA General Counsel (027)


David Apperson v David Shulkin
United States Court of Appeals for Veterans Claims
Received 11 November 2017 (Veterans Day)


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