Frances D'Aries v. James B. PeakeFrances D'Aries v. James B. Peake
Lead Opinion
Before the Court is Frances D’Aries’s appeal of a May 18, 2005, Board of Veterans’ Appeals (Board) decision that denied service connection for the cause of her husband’s death under
I. FACTS
Mrs. D’Aries’s husband, Lawrence D’Aries, served on active duty in the U.S. Army from December 1942 to February 1946 during World War II. His service included combat duty in Germany, where he suffered a head injury in March 1945 when a shell landed near him. At the time of his death on December 27, 1998, Mr. D’Aries was receiving VA compensation for several service-connected disabilities, including chronic brain syndrome associated with brain trauma from the 1945 incident, with post-traumatic headaches, rated 70% disabling, and a loss of bone of the skull, rated 30% disabling. His combined sche-dular evaluation was 80% disabling. The death certificate listed his cause of death as cardiorespiratory arrest due to or as a consequence of sepsis, due to or as a consequence of pneumonia. Record (R.) at 177.
In April 1999, Mrs. D’Aries applied for dependency and indemnity compensation. With her claim, Mrs. D’Aries submitted a letter from Mr. D’Aries’s private physician, Dr. Henry McCabe. In that letter, Dr. McCabe expressed his opinion that Mr. D’Aries’s chronic brain disorder, “along with his [djiabetes, prevented him from sensing appropriately the symptoms which were developing leading up to his pneumonia and blood poisoning (sepsis), and ultimately, unfortunately, his untimely demise.” R. at 179. In August 1999, VA received Mr. D’Aries’s hospital admission records, which indicated that he had been admitted to the hospital on December 27,
In August 1999, after reviewing the medical evidence of record, a VA regional office denied Mrs. D’Aries’s claims for benefits for the cause of her husband’s death and dependency and indemnity compensation, finding that there was no relationship between Mr. D’Aries’s death and his military service. Mrs. D’Aries filed a Notice of Disagreement with that decision.
In January 2000, Dr. McCabe submitted another letter regarding Mr. D’Aries’s death. In that letter, Dr. McCabe indicated that he had treated Mr. D’Aries “primarily” for diabetes mellitus, congestive heart failure, arteriosclerotic cardiovascular disease, atrial fibrillation, and hypertension. R. at 233. Dr. McCabe wrote:
The combination of [Mr. D’Aries’s] diseases, arteriosclerotic cardiovascular disease and hypertension all combined to cause a chronic organic brain syndrome, which became progressively worse in his later years.... [I]t is my opinion that these problems both directly and indirectly contributed to the condition listed at the time of his demise (i.e.[,] Chronic Brain Syndrome).
It is quite possible that the head trauma which he sustained many years ago may also have contributed to this condition, but in all likelihood, the more chronic and progressive nature of his other conditions was responsible for the deterioration of his mental skills later in life.
Id. Mrs. D’Aries appealed to the Board in April 2000.
In May 2001, Mrs. D’Aries received notice pursuant to the then-recently enacted Veterans Claims Assistance Act of 2000, Pub.L. No. 106-475, 114 Stat. 2096 (codified at
In August 2002, the Board remanded Mrs. D’Aries’s claims in order to afford her a hearing before the Board. In October 2002, Dr. McCabe submitted a third letter regarding Mr. D’Aries’s death. In that letter, Dr. McCabe wrote:
Towards the latter part of his life, Mr. D’Aries began to experience symptoms consistent with Organic Brain Syndrome. These symptoms included confusion, hallucinations, euphoria, agitation, insomnia[,] and[,] subsequently!,] disequilibrium.
In all probability, the culmination of this entity was initiated by an episode of severe head trauma which he sustained many years ago. Over a long period of time[,] this caused cerebral atrophy[,] which significantly reduced and impaired his mental capacity and motor skills.
*101 Despite his other medical illnesses[,] it was the complications of his Organic Brain Syndrome and their sequelae which led to his mental and physical deterioration later in life[,] and ultimately to his demise. It is my medical opinion that any retroactive review of his government benefits must incorporate this issue in its evaluation due to the causal effect it had upon his death.
R. at 262. Mrs. D’Aries was afforded a Board hearing held in February 2003.
In October 2004, the Board informed Mrs. D’Aries that it had “decided to ask one or more experts to provide a medical opinion” with respect to her claim for benefits for the cause of her husband’s death.
That same month, Dr. Joseph Quinn, a neurologist with the Portland VA medical center, provided the requested opinion. Dr. Quinn recounted Mr. D’Aries’s extensive medical history, beginning with the head trauma he suffered in 1945 and ending with the illnesses that preceded his death in 1998. Dr. Quinn noted that there was no evidence in Mr. D’Aries’s medical history that he suffered from mental impairment, retardation, or difficulty concentrating as a result of his head trauma. Dr. Quinn also summarized the opinions of Dr. McCabe, highlighting those portions quoted above. In pertinent part, Dr. Quinn concluded:
[T]he record indicates that [Mr. D’Aries] sustained a severe head injury in 1945, resulting in chronic headaches and “nervousness”, but without cognitive or other neurologic deficits. He was first appreciated to show signs of dementia in 1987, in concert with evidence of severe diabetes-related vascular disease. His cognitive deficits were still considered mild during evaluation only a few months before his death in 1998. His death by pneumonia and sepsis is not unusual for unhealthy elderly diabetic patients, even in the absence of dementia.
I conclude that there is little evidence to indicate that [Mr. D’Aries’s] head injury caused his dementia, and that there is little evidence to indicate that the dementia was severe enough to result in pneumonia and sepsis. I therefore further conclude that [his] service-connected brain syndrome did not cause or contribute to his death.
R. at 274-75.
On May 18, 2005, the Board issued the decision on appeal, denying entitlement to service connection for the cause of Mr. D’Aries’s death. The Board first deter
With respect to the merits of the claim, the Board attached “significant probative value” to the opinion of Dr. Quinn and “essentially no probative value” to the opinion of Dr. McCabe. R. at 6. The Board found that Dr. Quinn had reviewed Mr. D’Aries’s claims file and provided “a thorough and detailed opinion about a disorder within his area of medical expertise” that was “consistent with the competent evidence o[f| record.” Id. In contrast, the Board stated that it could not establish whether Dr. McCabe had reviewed the claims file before rendering his October 2002 opinion, which the Board found included “virtually no rationale and ... fail[ed] to address how [Mr. D’Aries’s] mental deterioration resulted in sepsis and pneumonia.” R. at 6-7. The Board also noted factual and medical inconsistencies in Dr. McCabe’s opinions, which it found “greatly reduee[d] the probative value of his most recent (and most favorable) opinion.” R. at 7. The Board stated that the fact that Dr. McCabe was Mr. D’Aries’s treating physician did not, alone, increase the probative value of his opinion, especially given that Dr. McCabe did not treat Mr. D’Aries during the hospital stay that preceded his death. Id.
The Board determined that, despite Mrs. D’Aries’s argument to the contrary, Dr. Quinn’s extensive recounting of Mr. D’Aries’s medical history left “little doubt” that he had reviewed Mr. D’Aries’s claims file as instructed. Id. The Board also rejected Mrs. D’Aries’s argument that Dr. Quinn did not give her the benefit of the doubt when rendering his opinion. The Board stated that the benefit of the doubt doctrine is a legal standard to be employed by an adjudicatory body, not by a medical professional. Finally, the Board found that Dr. Quinn’s specialty in neurology clearly “rendered] him qualified to address the effects of an organic brain disorder.” R. at 7-8. The Board concluded that there was no competent medical evidence linking Mr. D’Aries’s terminal illness to his military service and therefore denied Mrs. D’Aries’s claim.
In her brief, Mrs. D’Aries makes three arguments. First, that the Board erred by relying on a medical advisory opinion that was inadequate for the following reasons: (1) the Board requested an opinion from an “internal medicine specialist” but received an opinion from a neurologist; (2) Dr. Quinn was directed by the Board to review Mr. D’Aries’s claims file in its entirety, but he indicated in his report only that he had received a “chart” on Mr. D’Aries; and (3) “the Board violated the principles of fundamental fairness” by including in its request an explanation of the criteria for determining whether a condition was a principal or contributory cause of death but not advising that the benefit of the doubt must be given to a veteran on any material issue. Appellant’s Br. at 8-10. Second, Mrs. D’Aries argues that the Board erred by failing to give weight to the fact that Dr. McCabe was Mr. D’Aries’s treating physician for the nine years prior to his death. Appellant’s Br. at 11. Finally, Mrs. D’Aries asserts that the Board erred in finding that VA complied with its duty to notify under the Veterans Claims Assistance Act because she was not given adequate notice prior to the initial adjudication of her claim. In this respect,
The Secretary, in his brief, argues that the Board’s decision is supported by the evidence of record and is, therefore, not clearly erroneous. Specifically, the Secretary contends that the Board did not err in accepting an advisory medical opinion from a neurologist rather than from an internal medicine specialist. He asserts that, although the Board requested that an internal medicine specialist render this opinion, the chief of staff of the medical center to whom the request was sent determined that the appropriate medical expert to address the question was a neurologist. Secretary’s Br. at 16. The Secretary next argues that Mrs. D’Aries has taken a single sentence in Dr. Quinn’s opinion out of context in arguing that he did not review Mr. D’Aries’s claims file, as he was directed to do by the Board’s engagement letter. Secretary’s Br. at 17. In this respect, he argues that it is clear from Dr. Quinn’s “detailed opinion,” which includes an “extensive and thorough review” of the medical evidence, that he had access to and reviewed the claims file prior to making his assessment. Id. As to Mrs. D’Aries argument regarding the benefit of the doubt doctrine, the Secretary contends that the doctrine is a statutory construct applicable only to those who are adjudicating a claim, not to medical professionals rendering opinions. Secretary’s Br. at 18. The Secretary next rejects Mrs. D’Aries “treating physician” argument, asserting that, not only has she not cited any authority to support her argument, but also she has ignored this Court’s express rejection of such a rule in Van Slack v. Brown,
II. ANALYSIS
A. Adequacy of the Medical Examination Sought by the Board
The text of
In rendering its decision, the Board is required to provide a written statement of the reasons or bases for its “findings and conclusions[ ] on all material issues of fact and law presented on the record.”
1. Entitlement to Compliance with the October 200U Engagement Letter
Mrs. D’Aries first argues that the medical advisory opinion was inadequate because, although the Board requested the opinion of an “internal medicine specialist,” it received the opinion of a neurologist.
The Secretary, in contrast, would have us find that Stegall does not apply because an engagement letter from the Board to a VA medical center requesting a medical opinion or examination under
First, the Board explicitly recognized in its decision that Dr. Quinn’s “specialty [in neurology] alone renders him qualified to address the effects of an organic brain disorder.” R. at 8. Additionally, the Board recounted Dr. Quinn’s recitation of Mr. D’Aries’s “extensive medical history,” as well as the doctor’s thorough explanation and rationale in reaching his conclusion that Mr. D’Aries’s service-connected brain injuries did not cause or contribute to his death. Id. The Board concluded that, because Dr. Quinn “provided a thorough and detailed opinion about a disorder within his area of expertise, and [because] the opinion [was] consistent with the competent evidence o[f) record,” his opinion was of “significant probative value.” R. at 6. Finally, the Court takes judicial notice of the fact that neurology is the medical specialty that deals with the nervous system, which includes the brain. Dorland’s Illustrated Medical Dictionary 1285 (31st ed.2007); see also Smith (Brady) v. Derwinski,
2. Review of the Claims File
Mrs. D’Aries states that Dr. Quinn indicated only that he “received a chart on” Mr. D’Aries, which she contends is insufficient to comply with the Board’s instruction that the examiner “review the claims file in its entirety.” R. at 273, 281. The Board found that “[t]he extent to which [Dr. Quinn] reported [Mr. D’Aries’s] extensive medical history ... leaves little doubt that he reviewed the claims folder.” R. at 7. The Court agrees with the Board. Following his initial statement that he received a chart on Mr. D’Aries, Dr. Quinn summarized Mr. D’Aries’s medical history, spanning more than 50 years. He also referenced and quoted from numerous medical records, test results, and treatment notes. R. at 273. In his conclusion, he stated, “The record indicates that [Mr. D’Aries] sustained a severe head injury ... resulting in chronic headaches and ‘nervousness’, but without cognitive or other neurologic deficits.” R. at 274. As noted above, a medical opinion must be based upon consideration of the veteran’s prior medical history and examinations and also describe the disability in enough detail for the Board to be able to make an informed decision. See Ardison,
3. Requirement To Advise a Medical Examiner of the Benefit of the Doubt Doctrine
Finally, Mrs. D’Aries contends that Dr. Quinn’s advisory medical opinion was inadequate because the Board “violated the principles of fundamental fairness” by not including a request that the medical expert give Mr. D’Aries the benefit of the doubt on material issues. Appellant’s Br. at 10. Contrary to her argument, however, the benefit of the doubt doctrine is a legal construct to be applied by an adjudicatory body when the evidence is approximately balanced, not by a medical professional when rendering an opinion as to the cause of a veteran’s death. See
For these reasons, the Court finds that the medical examination provided by Dr. Quinn was adequate for rating purposes, and that the Board’s explanation for finding that opinion credible and adequate for rating purposes is supported by adequate reasons or bases. See Gilbert,
B. Weight Assigned to the Opinion of Mr. D’Aries’s Treating Physician
The Board is permitted to favor one medical opinion over another provided it gives an adequate statement of its reasons and bases for doing so. See Simon v. Derwinski,
Mrs. D’Aries argues that the Board erred by not giving additional weight to Dr. McCabe’s opinion in bght of his role as Mr. D’Aries’s personal physician. In doing so, Mrs. D’Aries ignores this Court’s express rejection of a “rule that gives the opinions of treating physicians greater weight in evaluating claims made by veterans.” Guerrieri,
Turning to the general issue of the weight afforded by the Board to Dr. McCabe’s opinion, the Court finds no error. In assigning “essentially no probative value” to Dr. McCabe’s opinion, the Board engaged in extensive discussion of the conflicting medical evidence of record. R. at 6-8. The Board found that it could not determine whether Dr. McCabe had reviewed Mr. D’Aries’s claims file before rendering his October 2002 opinion. R. at 6. The Board also found that the October 2002 opinion contained “virtually no rationale” and failed to address how Mr. D’Aries’s mental deterioration led to the sepsis and pneumonia that caused his death. R. at 6-7. Further, the Board noted “a level of inconsistency, with both the medical evidence and [Dr. McCabe’s] own statements,” in the three opinions provided by Dr. McCabe. R. at 7. Specifically, the Board noted that Dr. McCabe’s December 1998 opinion included diabetes as a significant cause of death, but left that cause of death out of his two subsequent opinions. Id.; see also R. at 179, 233, 262. The Board also found that Dr. McCabe’s December 2000 opinion, in which he stated that a combination of hypertension, renal disease, and cardiovascular disease caused Mr. D’Aries’s mental deterioration, contradicted his October 2002 opinion, in which he stated that complications from organic brain syndrome led to Mr. D’Aries’s deterioration and subsequent death. R. at 7; see also R. at 233, 262. Ultimately, the Board concluded that Dr. McCabe “demonstrated a willingness to render a medical opinion without a close and accurate review” of Mr. D’Aries’s medical history, and thus found that his opinions lacked probative value. R. at 7.
In contrast, the Board found that Dr. Quinn’s opinion was based on a review of Mr. D’Aries’s complete claims file, that he was familiar with Mr. D’Aries’s “extensive medical history,” and that he provided “a thorough and detailed opinion about a disorder within his area of medical expertise” that was “consistent with competent evidence of record.” R. at 6. In light of this discussion, and in light of the fact that it is the Board, not the Court, that is responsible for assessing the credibility and weight to be given to evidence, the Court cannot say that the Board’s assignment of more probative value to Dr. Quinn’s opinion than to Dr. McCabe’s was clearly erroneous. See Owens v. Brown,
C. Preadjudicatory Notice
Mrs. D’Aries argues that the Board erred in finding that VA complied with its duty to notify under the Veterans Claims Assistance Act. She contends only that, because the May 2001 notice letter was sent after the initial adjudication of her claim, she was not properly notified and the Board erroneously relied on a postdecisional document in reaching its conclusion. The Court disagrees. Mrs. D’Aries’s argument fails to address the fact that the initial adjudication of her claim occurred in August 1999, more than one year before the Veterans Claims Assistance Act was enacted. At the time of the August 1999 adjudication of Mrs. D’Aries’s claim, VA had no duty to provide such predecisional notice. This Court has held that where “notice was not mandated at the time of the initial [Agency of Original Jurisdiction] decision, the [Agency of Original Jurisdiction] did not err in not providing such notice specifically complying with
III. CONCLUSION
On consideration of the foregoing, the May 18, 2005, Board decision is AFFIRMED.
Notes
. The Court notes that the Board bifurcated Mrs. D’Aries's claims in September 2003 and denied her claim for dependency and indemnity compensation under
. The Court finds it necessary to point out that this issue was raised by counsel for the first time on appeal. At oral argument, counsel for Mrs. D'Aries conceded that he had not raised this precise issue to the Board, although he asserted that it was the Board's failure to provide Dr. Quinn’s curriculum vitae that prevented him from doing so. However, the record reveals that counsel sought clarification of Dr. Quinn's "qualifications" by requesting his curriculum vitae from the Board in a December 2004 letter, as well as in an April 2005 letter. R. at 284, 292. The Board responded that it had "no information on Dr. Quinn” and therefore could not provide his curriculum vitae, an issue that counsel raised to the Board, but which the Board found meritless. R. at 288; see R. at 8. However, in the December 2004 letter, counsel also requested a copy of the engagement letter the Board sent to the Portland VA facility, and he received that document in early April 2005. R. at 288, 291. It is clear that counsel had notice that the Board requested a medical opinion from an internal medicine specialist, and that he had a copy of Dr. Quinn’s report, which revealed him to be a member of the neurology department of the Portland VA Medical Center. R. at 288, 291-92. Further, in an April 2005 letter to the Board, while in possession of both the Board's engagement letter and Dr. Quinn's opinion, counsel objected to some aspects of Dr. Quinn's opinion&emdash;but not specifically to his speciality&emdash;and requested that the Board “return the case to Dr. Quinn for his review of the entire claims file and a new opinion which takes into con
. At the time Gilbert was decided, the benefit of the doubt doctrine was codified at
When, after consideration of all the evidence and material of record in a case before [VA] with respect to benefits under laws administered by [VA], there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.
That provision was amended in May 1991 and redesignated as
Concurrence Opinion
concurring in the result:
I concur in the conclusion of the Court that the medical opinion provided by Dr. Quinn substantially complied with the terms of the Board’s October 2004 engagement letter, and for the reasons set forth in the per curiam decision. I write separately only to express my belief that there is, in practical terms, no difference between a remand decision by the Board directing that a medical examination or opinion be performed or obtained and an engagement letter issued by the Board requesting the same, and therefore Stegall controls in this instance.
In my view, the Board’s October 2004 engagement letter was as much a directive regarding the specialty of the medical ex
My colleague’s contrary statement below notwithstanding, I take no position regarding the Board’s competence or authority under
Concurrence Opinion
concurring in the result:
I concur in the result reached by the Court, but write separately simply to state that my colleague, in his concurring statement, assumes that the Board is vested with the authority to specify the appropriate medical expert to answer the medical question(s) forming the basis of the
HAGEL, Judge, and LANCE, Judge, filed concurring opinions.
. VHA Directive 2000-049 has been superseded by directive 2006-019, which remains substantively the same. See Medical Review Assistance to Board of Veterans Appeals Cases, VHA Directive 2006-019 (Apr. 3, 2006).