Deanna R. POLOVICK, Appellant, v. Eric K. SHINSEKI, Secretary of Veterans Affairs, Appellee.
No. 06-3024.
United States Court of Appeals for Veterans Claims.
Decided April 22, 2009.
Argued Nov. 5, 2008.
III. CONCLUSION
Based on the foregoing analysis and a review of the record on appeal, the Board‘s July 14, 2005, decision is REVERSED to the extent that it determined that it lacked jurisdiction to entertain the appellant‘s appeal of the disability rating assigned for his suprapubic disability, and the matter is REMANDED for further adjudication consistent with this decision. On remand, the appellant is free to submit additional evidence and argument on the remanded matter, which the Board must consider when readjudicating his claim. See Kay v. Principi, 16 Vet.App. 529, 534 (2002); Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). The Board must provide expeditious treatment of this matter on remand. See
Robert V. Chisholm of Providence, Rhode Island, with whom Zachary M. Stolz and Landon Overby, of Washington, D.C., were on the brief, for the appellant.
Before KASOLD, HAGEL, and DAVIS, Judges.
KASOLD, Judge:
Mrs. Deanna R. Polovick, surviving spouse of Vietnam War veteran Michael J. Polovick, appeals through counsel an October 2, 2006, decision of the Board of Veterans’ Appeals (Board) that denied dependency and indemnity compensation (DIC), accrued benefits, and educational benefits because it found that Mr. Polovick‘s death
I. BACKGROUND
A. Medical Opinions
Mr. Polovick served in the U.S. Air Force from July 1966 until April 1970, including service in Vietnam. Record (R.) at 21. In October 1993, he was diagnosed with malignant glioma1 (a brain tumor) on the right side of his brain. R. at 66. In March 1994, he filed a claim for disability compensation for an “Agent Orange related brain tumor.” R. at 53. In May 1994, the brain tumor caused Mr. Polovick‘s death. R. at 118.
In June 1994, Mrs. Polovick filed a claim for DIC, accrued benefits, and educational benefits, contending that Mr. Polovick‘s brain tumor resulted from exposure to Agent Orange. R. at 123-29. In support of her claim, Mrs. Polovick submitted the medical opinions of Dr. Alan Dixon, Dr. Craig Bash, and Dr. Huda Montemarano. Dr. Dixon, Mr. Polovick‘s treating physician, stated in an August 1994 opinion that Mr. Polovick‘s brain tumor “may well be” connected to his exposure to Agent Orange but added that he was not an expert in causation. R. at 463.
Dr. Bash provided an expert opinion for Mrs. Polovick regarding the cause of her husband‘s death. Dr. Bash is a board certified radiologist with additional certifications in neuroradiology. He stated that he had performed or interpreted “thousands of CT, MRI scans, PET scans and angiograms, on patients with brain tumors” correlating his findings with clinical records (R. 607, 610-17) and that it was “more likely than not” that Mr. Polovick‘s brain tumor was related to his exposure to Agent Orange (R. at 607). His conclusion was based on the results of what he described as a meta-analysis, or statistical synthesizing, of the studies relied on by the Institute of Medicine of the National Academies (IOM) in their 2002 Veterans and Agent Orange: Update (2002 Agent Orange Update). R. at 608. Although the IOM concluded that the available evidence only supported placing brain tumors in the category of “Limited/Suggestive Evidence of No Association,” Dr. Bash noted that this conclusion was based on a required minimum 95 percent confidence level for placing a disease in any particular category of association. Based on his own statistical analysis of the available evidence, including the IOM studies, Dr. Bash opined that it was “more likely than not” that there was an association between Mr. Polovick‘s brain tumor and Agent Orange exposure, particularly because the period of time between Mr. Polovick‘s presumed exposure to Agent Orange and the onset of his brain tumor was “not inconsistent with the magnitude of time lags associated with an evolution of [this type of] tumor.” Id.
Like Dr. Bash, Dr. Montemarano also provided an expert opinion for Mrs. Polovick in support of her claim. Dr. Montemarano, whose qualifications include a board certification in radiology and service as a section chief at Walter Reed Army Medical Center and as a clinical instructor at the Armed Forces Institute of Pathology, stated that she has been the primary care provider for hundreds of patients and has performed or interpreted various imaging studies on thousands of patients on media “includ[ing] film, CT and MRI.” R. 713-17.
In April 2005, the Secretary sought a medical opinion from the Armed Forces Institute of Pathology (AFIP). In contrast to the above opinions, the AFIP‘s Dr. Florabel G. Mullick and Dr. Linda A. Murakata opined that it was “unlikely” that Mr. Polovick‘s brain tumor was caused by his exposure to herbicides in Vietnam. The AFIP doctors based their conclusion on the fact that the IOM‘s 2002 Agent Orange Update placed brain tumors in the category of “Limited/Suggestive Evidence of No Association.” The AFIP report further noted that a search for more recent published studies on the relationship between herbicides and brain cancer “fails to disclose data different than that published by the [2002 Agent Orange Update].” R. at 603-04. The AFIP report did not comment on the confidence levels used by the IOM in reaching its conclusion. Id.
B. October 2006 Board Decision
The Board denied Mrs. Polovick‘s claim because it found that a preponderance of the evidence weighed against a finding that Mr. Polovick‘s brain tumor was service connected. The Board determined that presumptive service connection for the cause of Mr. Polovick‘s death was not warranted because glioma is not one of the diseases listed under
In reaching the latter conclusion, the Board found the AFIP opinion more persuasive than the opinions of Dr. Dixon, Dr. Bash, and Dr. Montemarano. R. at 14. Without explanation, the Board concluded that it found Dr. Dixon‘s opinion to be less persuasive than the AFIP opinion. R. at 14, 15. With respect to Dr. Montemarano‘s opinion, the Board found that it was entitled to less weight than the AFIP report because it conflicted with the findings published in the 2004 Agent Orange Update.
With regard to Dr. Bash, the Board stated that it gave less weight to his opinion because
[h]e did not provide copies of the work product used in arriving at his conclusions. Ill conducted meta-analyses may be biased owing to exclusion of relevant studies or inclusion of inadequate studies. The Board has no information on how his analysis was performed, or to the extent in which he included or excluded data.
R. 14. The Board concluded that in formulating his opinion Dr. Bash resorted to speculation and further concluded that the opinion did not demonstrate the direct and immediate causal relationship between herbicide exposure and the development of Mr. Polovick‘s brain tumor. R. at 14.
Because the AFIP opinion comported with the findings of the IOM, including those published in the Agent Orange Updates, the Board found that the AFIP opinion was more persuasive than Dr. Montemarano‘s or Dr. Bash‘s. Id.
C. Appellant‘s Arguments on Appeal
Mrs. Polovick argues on appeal that the Board (1) provided an inadequate statement of reasons or bases for its determination that the opinions of Dr. Dixon, Dr. Bash, and Dr. Montemarano were less persuasive than the AFIP opinion, and (2) misinterpreted and misapplied
II. LAW
Title 38, section 1116(b)(1) of the U.S.Code directs the Secretary to “prescribe regulations providing that a presumption of service connection is warranted for [a] disease” when a positive statistical association exists between Agent Orange exposure and the occurrence of that disease in humans. The statute further provides that a positive association exists when “the credible evidence for the association is equal to or outweighs the credible evidence against the association.” In making this determination the Secretary is to take into account reports from the National Academy of Sciences under section 3 of the Agent Orange Act of 1991 as well as all other available sound medical and scientific information.
To carry out this directive, the National Academy of Sciences convened an IOM committee to answer, inter alia, “whether a statistical association with herbicide exposure exists.” Agent Orange Act of 1991, Pub.L. No. 102-4, 105 Stat. 11 § 3(d)(1)(A) (codified as amended at
Even though a disease is not included on the list of presumptive diseases, a nexus
When rendering its decision, the Board is statutorily required to provide a statement of reasons or bases for its findings and conclusions.
III. ANALYSIS
A. Statistical Analysis and Direct Service Connection
At the outset, we note that in the arena of diseases caused by Agent Orange, Congress has premised presumptive service connection on statistical analysis. Specifically,
To require the Secretary to grant service connection for disabilities based on the opinion of individual doctors that there is a statistical correlation between Agent Orange exposure and a disease not otherwise on the Secretary‘s list of diseases presumptively caused by Agent Orange would circumvent the congressional mandate that the Secretary designate a disease as presumptively caused by Agent Orange when “the credible evidence for the association is equal to or outweighs the credible evidence against the association.” See Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 19-20, 100 S.Ct. 242, 62 L.Ed.2d 146 (1979) (determining that where a statute specifies particular remedies, courts must be wary of expanding available remedies beyond those explicitly provided by Congress). It would also permit the opinions of individual doctors to
This is not to say that statistical analysis cannot be a factor to consider when assessing whether the totality of the evidence is sufficient to establish direct service connection, even when the statistical analysis alone would be insufficient to warrant adding a disease to the
B. Reasons or Bases for the Medical Opinions of Dr. Dixon, Dr. Montemarano, Dr. Bash, and the AFIP
1. Opinion of Dr. Dixon
Although the Board did not explicitly state why it gave greater weight to the AFIP report than to Dr. Dixon‘s report, the Board noted that Dr. Dixon opined only that Mr. Polovick‘s brain tumor “may well be” connected to his exposure to Agent Orange and further caveated that he was not an expert on causation. Thus, the opinion was speculative and cannot support a finding of direct or presumptive service connection. See McLendon v. Nicholson, 20 Vet.App. 79, 85 (2006) (stating that a speculative medical opinion as to causation cannot establish a medical nexus to service); Bloom v. West, 12 Vet.App. 185, 187 (1999) (use of the term “could,” without other rationale or supporting data, is too speculative to support award of benefits); Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992) (holding that medical opinions are speculative and of little or no probative value when a physician makes equivocal findings such as “the veteran‘s death may or may not have been averted“);
2. Opinion of Dr. Montemarano
The record supports Mrs. Polovick‘s argument that the Board provided an inadequate statement of reasons or bases for discounting Dr. Montemarano‘s opinion. The Board stated that it afforded less weight to Dr. Montemarano‘s opinion because it did not comport with the conclusions reached by the IOM in the 2004 Agent Orange Update. R. at 15. However, the IOM reports are based on general statistics and used for purposes of determining whether there is sufficient nexus between a disease and Agent Orange to warrant placing the disease on the list of presumptive diseases under
3. Opinion of Dr. Bash
The record also supports Mrs. Polovick‘s assertion that the Board provided an inadequate statement of reasons or bases for its determination that Dr. Bash‘s medical opinion should be accorded less weight than the AFIP opinion. The Board discounted Dr. Bash‘s opinion because it conflicted with the IOM findings, as published in the Agent Orange Updates, and because he did not provide copies of his work product. As with Dr. Montemarano‘s opinion, to the extent the Board assigned less weight to Dr. Bash‘s opinion on direct service connection because it did not comport with the conclusions reached by the Agent Orange Updates for presumptive service connection, the Board‘s decision is inadequate. See Allday and Gabrielson, both supra.
4. AFIP Report
The Board‘s statement of reasons or bases for its reliance on the AFIP report also is inadequate. Succinctly stated, the AFIP physicians’ opinion that Mr. Polovick‘s brain tumor was not directly related to service is based solely on the fact that this disease is listed in the “Limited Evidence of No Association” category in the 2002 Agent Orange Update. However, the Agent Orange Updates use only a general statistical analysis to determine whether a disease should be service connected on a presumptive basis. See Introduction to 2002 Agent Orange Update (stating that the conclusions reached in the Update “are related to associations between exposure to chemicals and health outcomes in human populations, not to the likelihood that any individual‘s health problem is associated with or caused by the herbicides in question“). Moreover, the report provides no discussion of whether Mr. Polovick himself experienced any risk factors for the development of glioma, whether the time lag between exposure to Agent Orange and development of his brain tumor was consistent with the amount of time generally noted for tumor development, or why the AFIP physicians found the conclusions reached by Agent Orange Updates to be persuasive. R. at 596-97; Stefl, 21 Vet.App. at 124 (providing examples of points that may be discussed in a direct service connection examination report).
To permit the denial of service connection for a disease on the basis that it is not likely there is any nexus to service solely because the statistical analysis does not support presumptive service connection, would, in effect, permit the denial of direct service connection simply because there is no presumptive service connection. This is contrary to the recognition in Stefl that “[t]he existence of presumptive service connection for a condition based on exposure to Agent Orange presupposes that it is possible for medical evidence to prove such a link before the National Academy of Sciences recognizes a positive association.” Stefl, 21 Vet.App. at 124. Having
C. Interpretation and Application of Section 5107(b)
Mrs. Polovick also argues that the Board misinterpreted and misapplied
D. Remand
On remand, Mrs. Polovick may present, and the Board must consider, any additional evidence and argument in support of the matters remanded. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). These matters are to be provided expeditious treatment on remand. See
IV. CONCLUSION
For the foregoing reasons, the October 2, 2006, decision of the Board is SET ASIDE and the matters REMANDED for further adjudication consistent with this opinion.
KASOLD
JUDGE