Lead Opinion
KASOLD, Judge, filed the opinion of the Court. LANCE, Judge, filed a dissenting opinion.
Veteran Frank E. Coburn appeals through counsel a March 24, 2003, decision of the Board of Veterans’ Appeals- (Board) that denied entitlement to service connection for residuals of left and right leg injuries, and left and right hip injuries. The Secretary argues that the appeal must be remanded pursuant to Stegall v. West,
I. BACKGROUND
Mr. Coburn served on active duty in the U.S. Army from January 1954 to January 1956. Record (R.) at 26. The National Personnel Records Center reports that all of Mr. Coburn’s service medical records are missing and presumed destroyed in a 1973 fire. R. at 50, 626. In February 1994, Mr. Coburn filed a claim for service connection for bilateral hip and leg injuries stating that his injuries were sustained in service when he jumped from a telephone pole while assigned at Fort Leonard Wood, Missouri. R. at 79. His sister subsequently supported his claim with a statement that she knew of the telephone pole incident from her mother, who told her about it while Mr. Coburn was assigned at Fort Leonard Wood, Missouri.
A March 2001 Board decision noted that “the veteran and his family have to some extent laid the groundwork for inservice injuries, and there is evidence with regard to post-service injuries and disabilities” but found that “although there are some VA records in the file, there is no medical opinion of record which analyzes the potential relationship between ■ any service injury(ies) and/or inservice and post-service symptoms.” R. at 594. The 2001 Board remanded the claims presently on appeal with .instructions to arrange an orthopedic examination to ascertain the current nature, severity, and etiology of any orthopedic disorders of either leg or hip. R. at 595-99.
An examination was undertaken in October 2002. The examiner noted in his report that he had reviewed the claims file and the submitted medical history, and concluded that it was “at least as likely as not” that the leg and hip problems had their onset in service as a result of the telephone pole incident. R. at 658. The examiner also stated that “given that the patient denies other history of traumas or falls, this is the most likely explanation in my medical opinion.” R. at 658.. The report of the October 2002 examination is the only medical nexus report on record for Mr. Coburn.
In the decision on appeal, the 2003 Board rejected the examiner’s opinion -as incompetent because it appeared “to be based solely upon the veteran’s own statements regarding his medical history.” R. at 21. That Board stated that “the examiner’s review noted the absence of medical evidence of an injury to the veteran’s legs in service” and that the examiner “appears to have ignored the sequela of numerous left knee injuries after service beginning in 1975 in forming this opinion.” - R. at 21. The Board concluded that there was no competent evidence linking any of Mr. Co-burn’s medical disabilities to service and denied his claims. R. at 21-22.
ÍI. ANALYSIS
A. Waiver of Stegall and Other Bases for Remand,
The Secretary argues that this matter must be remanded pursuant to Ste-
The Court notes that the right to “compliance with the remand orders” provided in Stegall is a process right guaranteed to VA claimants, not the Secretary. See Stegall,
Mr. Coburn argues that reversal is appropriate in this case and he further states that he does not seek remand for the purposes of additional development. However, reversal is the appropriate remedy when the only permissible view of the evidence is contrary to the Board’s decision. See Johnson v. Brown,
The Court also notes, however, that, in contrast to a Stegall remand for compli-
Regarding Mr. Coburn’s assertion that he does not seek remand for further development, the Court notes that there is no clear indication in the appellant’s briefing that he is knowingly and intentionally seeking to waive his right to a remand. See Janssen v. Principi,
B. Inadequate Reasons and Bases
For service connection to be awarded, there must be (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West,
The Board could have found that the evidence preponderated against Mr. Coburn’s having suffered the reported in-service injury.
Rather, the Board rejected the medical report because the Board found that the report failed to address the postservice injuries suffered by Mr. Coburn, leading the Board to conclude that the medical examiner had not considered the entire file. That conclusion, however, is in stark contrast to the statements made by the medical examiner in the medical report. The medical examiner not only explicitly stated that he reviewed the claims file and all medical reports provided, he also explicitly noted that the appellant’s “pertinent past medical history and findings” were in the claims file (R. at 656), and he concluded his report by stating that “[g]iv-en that the patient denies other history of traumas or falls,” the most likely explanation was that his current disabilities were “at least as likely as not” the result of his in-service injury (R. at 658).
In reaching the conclusion that the medical examiner had not reviewed the claims file, the Board did not address the repeated statement by the medical examiner that he had reviewed the claims file or his specific reference to the appellant’s “pertinent past medical history and findings” that were in the claims file. Given the examiner’s explicit acknowledgment of the appellant’s past medical history as being-part of the claims file that he had reviewed, the Board should have discussed whether the medical examiner’s statement that Mr. Coburn denied other injuries (which led the medical examiner to conclude his current disabilities were related to the in-service injury) constituted a denial of any postservice injuries or, instead, postservice injuries not addressed in the claims file. Inasmuch as the Board rejected the medical report because the Board concluded the medical examiner failed to consider the claims file, the Board had a duty to adequately discuss those aspects of the report clearly indicating the conclusion opposite that of the medical examiner’s. See Fortuck v. Principi,
The Board also rejected the medical report because the Board determined that the examiner had relied on the testimony of Mr. Coburn. However, reliance on a veteran’s statements renders a medical report incredible only if the Board rejects the statements of the veteran. See Kowalski, supra (citing Wilson v. Derwinski,
We further note that the rejection of the medical report in this instance — the only one in the record — left the record largely in the same condition it was in when the 2001 Board remanded the matter for the purpose of obtaining a medical nexus assessment because the claims file contained no such assessment. R. at 594. Yet, the 2003 Board failed to explain why it could proceed to render a decision on the claim when, based on basically the same evidence, the 2001 Board determined that a remand for a medical nexus opinion was necessary. The Board is required to provide a full explanation of the reasons or bases for its decisions. See 38 U.S.C. § 7104(a), (d)(1); Allday, supra; see also 38 U.S.C. §. 5103A; Wells v. Principi,
Finally, we caution the Board that, although it may reject medical opinions, it may not then substitute its own medical judgment for those rejected. See Colvin v. Derwinski,
On remand, Mr. Coburn will have the opportunity to present any additional evidence and argument in support of his claim, and the Board must consider any evidence and argument so presented. See Kay v. Principi,
III. CONCLUSION
Based on the foregoing analysis, the decision of the Board is SET ASIDE and the matter is REMANDED for further development consistent with this opinion.
Notes
. We note only possible options of the Board with regard to the elements of service connection and do not imply that any possible finding would have been appropriate on the evidence in the record.
Dissenting Opinion
dissenting:
While I generally agree with the black-letter law articulated by the majority, I disagree with its application of the law to the facts of this case. The majority’s find
I. THE MAJORITY’S REASONS OR BASES REMAND
My disagreement with the majority’s reasons-or-bases analysis can be stated in a nutshell. I believe that the Board’s statement of reasons or bases was adequate because it is clear that the Board concluded that the only medical nexus opinion of record was based on an inaccurate factual premise. The basis for that conclusion was that the voluminous evidence of record contradicted a reasonable interpretation of the medical opinion’s plain language. The majority places a much higher burden on the Board to meticulously dissect the medical opinion and to explicitly reject every interpretation of it other than the one it clearly chose. As detailed below, I do not believe this failure to explicitly address all other interpretations frustrates our review of whether the evidence supports the Board’s unambiguous conclusion that the medical opinion was based on a faulty premise. Applying an unnecessarily high reasons-or-bases standard rather than deciding the issue presented perpetuates the hamster-wheel reputation of veterans law and ignores the appellant’s pointed argument that “[h]av-ing had his claims in adjudication for ten years, he believes that the evidence of record is adequate for grant of service connection.” Appellant’s Br. at 8.
There is no dispute that a medical opinion based on an inaccurate factual premise is not competent evidence. See Reonal v. Brown, 5 Vet.App. 458, 460-61 (1993) (an opinion based upon an inaccurate factual premise has no probative value). There is no question that an opinion is based on an inaccurate factual premise if it assumes an injury in service that the Board finds did not occur. Id. In my view, a medical opinion is also' based on an inaccurate factual premise when it assumes that there were no intervening injuries between service and the examination, and that assumption is contrary to the Board’s express findings. That is the case here. The medical nexus opinion at issue is based on a faulty premise, and there is no way to determine from the report what the doctor’s opinion would have been had he considered the factual basis accepted by the Board. Accordingly, it is not competent evidence on the medical nexus issue.
The majority glosses over the facts surrounding the medical opinion with a two-sentence summary of its conclusion. I would add the following: Despite the examiner’s assertion that the appellant’s medical records were reviewed, every paragraph of the “History of Present Illness” section begins with “The patient reports” or “he reports.” R. at 656. Furthermore, despite the plethora of medical evidence that documented a knee injury in a car accident 20 years after service (which began a documented period of continuous complaints, re-injuries and treatment), see infra, the medical opinion contains no mention of the accident or any of the appellant’s subsequent complaints and treatment. The Board seized on these facts in observing that the doctor’s opinion “appears to be based entirely on the medical history elicited from the veteran” and that
To the extent that the majority relies on an ambiguity in the medical opinion, I believe that it is the Board’s responsibility to interpret the evidence in the first instance and that we must give deference to its interpretation. Hersey v. Derwinski,
The majority places great emphasis on the Board’s conclusion that the doctor did not review the appellant’s claims file. Given the wealth of medical evidence of an intervening accident, the phrasing of the medical history, and the complete absence of any mention of the records of the accident in the doctor’s report, the Board reasonably discredited the doctor’s claim to have reviewed the whole claims file. Moreover, the appellant does not benefit from' the alternative interpretation. It could be true that the doctor reviewed the entire claims file but chose to believe the appellant’s denial of a history of intervening injuries. However, this would not render the doctor’s opinion competent evidence.- It does not matter why the 'doctor accepted the false premise that the 1975 car accident injury did not occur. What
The majority also places emphasis on the fact that the doctor’s opinion makes a boilerplate reference to having reviewed the appellant’s medical history. R. at 656. However, the Board acknowledged that “the examiner noted that the claims file was reviewed during this examination.” R. at 20. In my view, the majority’s assertion that a more thorough discussion was required misapplies the burden. Our review is not frustrated where we understand the Board’s conclusion (the opinion was incompetent because it assumed no intervening injuries) and what evidence is relied on to reach this conclusion (the language of the opinion and the ample evidence of an intervening injury). See Gilbert v. Derwinski,
Turning to the issue actually raised by the appellant, I cannot support an award of compensation benefits based on an inadequate and clearly questionable medical opinion. Accordingly, since I find that the appellant has purposefully and unequivocally abandoned and waived consideration of all issues that would warrant a Stegall remand or a remand for additional development, including clarification of the 2002 VA examiner’s opinion or a new VA medical examination, see infra, I would affirm the Board’s denial of service connection on the grounds that there is no competent, probative credible evidence of record linking the appellant’s current disabilities to an event or injury in service.
II. THE APPELLANT’S WAIVER OF OTHER ISSUES
Despite the preceding analysis, I must state that I do not agree with the Board’s denial of service connection in this case. Had the issue been presented for our review, I would have remanded this matter to the Board — as the Secretary has suggested — based on the RO’s apparent failure to comply with the Board’s 2001 remand order. Nonetheless, I find that the appellant, who is represented by counsel, has knowingly and voluntarily waived the true remandable error in this matter, and therefore, I would affirm the Board’s decision.
Upon finding that the 2002 VA medical examiner’s opinion was not competent to provide the necessary medical nexus opin
However, on appeal to this Court, the appellant, through counsel, has stated in no uncertain terms that he does not want the Court to consider this error. First, the appellant’s opening brief does not allege any failure by the Secretary to comply with the Board’s 2001 remand order, and therefore any error in that regard should be deemed abandoned. See Ford v. Gober,
A remand by the Court or the Board confers on an appellant the right to VA compliance with the terms of the remand order. In this case the appellant is quite comfortable with the orthopedic examination which he received following the [Board] remand and does not seek another.... Stegall only requires that the [RO] follow the [Board’s] instructions, that is exactly what happened in this case.
Reply Br. at 1-2 (emphasis in original). Clearly, the appellant has taken the position that the VA medical examination complied with the terms of the remand order and therefore a Stegall remand is not warranted.
Furthermore, concerning the duty-to-assist issue, in an effort to clearly frame the issues on appeal to the Court, the appellant, in his opening brief, included a section entitled “Preliminary Statement— What is Not Being Appealed.” Br. at 7-8. Therein he explicitly stated that he “does
The foregoing excerpts from the appellant’s briefs clearly and unequivocally demonstrate that the appellant, through counsel, has made a purposeful decision to forego his right to procedural compliance with the Board’s 2001 remand order, and has decided that he does not want this Court to consider any error in the development of his case. If there was any doubt as to the appellant’s desire, his reaction to the Secretary’s brief eliminated it. When presented with the suggestion that this case be remanded, the appellant vigorously asserted that the Secretary had no power to raise the error he was trying to concede. Appellant’s Reply Br. at 1-2. The appellant has engaged in a deliberate strategy to limit our review to the sufficiency of the evidence based on the theory that the Secretary is estopped from finding that a VA medical opinion is incompetent when he adjudicates a claim on the merits after a Stegall remand. We should not override his decision and we should decide the argument that he has raised. See Janssen v. Principi,
In my view, the appellant’s position before the Court is analogous to an invocation of 38 C.F.R. § 3.655(b) (2005) at the VA level. That regulation provides that “when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record.” Id. The appellant has stated before the Court “[h]e does not seek a remand for purposes of additional development” (Br. at 7-8) and that “[e]quity calls for the case to be decided on the evidence of record” (Br. at 18). Just as the appellant can force an adjudication of the existing evidence by the Board, I believe that an appellant who is represented by counsel and who is unambiguous in his wishes can do the same at this level. My caveat is that appellants should be aware that explicitly waiving obvious procedural errors does not entitle them to special consideration of the arguments they choose to make.
The majority critiques my position by saying: “[I]n this instance, waiver of a remand would, in essence, constitute an abandonment of the appeal.” In my view, however, their suggestion puts the cart
The majority’s contrary characterization of this procedurally sound and accepted judicial position actually reveals their disappointment that the appellant has foresworn the remandable error in this case. However, our role as appellate judges is to decide the issues raised on appeal based on the record of proceedings before the agency. Advocates and parties are charged with the responsibility to build and develop that record. In that process, counsel, claimants, and the Secretary may make tactical and strategic choices. Once made, those choices, however improvident they may appear in retrospect, become a part of the proceeding, and it is not our role as judges to overrule those strategic litigation decisions of represented appellants. Acting otherwise merely contributes to the congestion of an overburdened system at the expense of thousands of eligible claimants who await adjudication.
Had the appellant’s position been correct, his decision to waive the remandable error in this case would have put him substantially closer to having money in hand. However, his gamble in rejecting the Secretary’s concession of error should fail and the consequence should be that he must now seek to reopen his claim with new and material evidence. By paternalis-tically manufacturing a remand and taking the risk out of the appellant’s brinksmanship, the majority encourages appellants to take extreme litigation positions and discourages them from working with the Secretary where there is remandable error, as the Secretary conceded in his brief in this case. This decision will lead to less cooperation in cases that should be disposed by joint motions for remand. Appellants have the right to waive remandable error, but they should not be encouraged to do so based on the belief that the Court will find a way to implicitly undo their waiver if their argument for reversal fails. For that reason, and the reasons stated above, I disagree with the majority’s approach to this case and must respectfully dissent.