Ouida Wise v. Eric K. Shinseki
2014 U.S. Vet. App. LEXIS 601
| Vet. App. | 2014Background
- Ouida Wise, surviving spouse of veteran George W. Wise, appeals a 2012 VA Board denial of DIC based on service-connected death.
- Veteran served 1943–1945; death certificate lists arrhythmia due to arteriosclerotic cardiovascular disease, CHF, and COPD as causes.
- Veteran had prior PTSD service-connection awards up to 100%; VA treating physician suggested PTSD could contribute to death.
- Board requested an advisory opinion from VA cardiologist Dr. Thea Calkins, who stated she lacked formal psychiatry training and viewed PTSD from a lay perspective.
- Dr. Calkins concluded it was not likely PTSD aggravated heart disease; Board relied on her opinion and deemed opposing treatise evidence of limited value, denying DIC.
- Court finds error and remands for development and readjudication, including addressing competency, evidentiary deficiencies, and duty-to-assist failures.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Competence of the expert | Calkins lacked psychiatric expertise; her self-admission creates irregularity requiring discussion. | Board presumed competence of medical expert; not required to discuss competence absent challenge. | Remand required to address competence due to self-admitted lack of expertise. |
| Deficiencies in Dr. Calkins's opinion | Opinion relied on outdated records and pre-death CAD notes; contradicted by death-certificate CAD. | Calkins based on available records and standard cardiac risk factors; Board weighed opinions accordingly. | Remand warranted to evaluate opinion's deficiencies and the Board's reliance on it. |
| Duty to obtain outstanding cardiovascular records | VA duty to assist required obtaining cardiovascular records from 2000–2008; records were incomplete. | Board statement was vague; post-2000 records do not necessarily undermine the medical opinion. | Remand to ensure proper duty-to-assist development and record retrieval. |
| Consideration of favorable medical literature | Board failed to adequately weigh literature linking PTSD to cardiovascular risk and apply the benefit-of-the-doubt standard. | Board found literature of limited probative value as not generally accepted in the medical community. | Remand to reassess evidence under the correct standard and explain weighing. |
| Overall framework for DIC causation on remand | Remand is needed to properly analyze whether PTSD contributed to death under 38 C.F.R. § 3.312 and § 5107(b). | Board can revisit with complete record; no prejudice beyond current issues. | Remand to permit complete development and readjudication consistent with decision. |
Key Cases Cited
- Parks v. Shinseki, 716 F.3d 581 (Fed. Cir. 2013) (presumption of competence governs examiner qualification unless irregularity shown)
- Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (presumption of competence applies unless examiner's qualifications are questioned)
- Rizzo v. Shinseki, 580 F.3d 1281 (Fed. Cir. 2009) (competence presumed absent evidence questioning examiner)
- Cox v. Nicholson, 20 Vet.App. 563 (2007) (court reviews examiner competence when raised; evaluates adequacy of rationale)
- Caluza v. Brown, 7 Vet.App. 498 (1995) (requirement to address credibility and probative value in Board's reasons and bases)
- Gilbert v. Derwinski, 1 Vet.App. 49 (1990) (Board must provide reasons or bases enabling review)
- Tucker v. West, 11 Vet.App. 369 (1998) (remand when the record is inadequate or legal standards misapplied)
- Jones v. Shinseki, 23 Vet.App. 382 (2010) (difference between legal and medical standards of proof in veteran claims)