Thursday, January 31, 2013

Monzingo v. Shinseki

      Monzingo v. Shinseki, docket no. 10-922 (Vet.App. Nov. 21, 2012)
In this case, the CAVC expanded on its case law surrounding the theory of constructive possession, finding that two scientific reports that were published with VA involvement were not “constructively” part of the record before the Board. The Court also clarified its case law on the adequacy and inadequacy of medical opinions.

In Monzingo, the Board denied the veteran’s claim for entitlement to service connection for hearing loss. On appeal to the Court, the veteran argued that the Board failed to (1) address the possibility that his service-connected tinnitus was evidence of ongoing hearing loss since service and (2) explain its reliance on a medical opinion that found that his hearing acuity actually improved during service. To support these arguments, the veteran relied on two scientific reports from 2006 and 1982. The 2006 report had been partly commissioned by VA. The 1982 report had been prepared with the participation of a VA employee. The veteran had not submitted either of these reports to VA during the pendency of his claim.

Following a full discussion of the Court’s case law on the theory of constructive possession, the Court found that there was no evidence that the two reports in question were constructively before the Board. The fact that VA sponsored and received a copy of the 2006 report was not enough to establish constructive possession. And the fact that the report was about military-related hearing loss was “too tenuous” a connection to support an expectation that the report would be in the record of every hearing loss claim. Similarly, the Court found that apart from noting the involvement of a VA employee in its preparation, there was no other support that the 1982 report was constructively before the Board. The Court found that “absent Mr. Monzingo’s submission of the document to VA or his request that it be obtained,” there was no reasonable expectation that this report would be in the record before the Board.

The Court also declined to take judicial notice of the findings in the two reports, stating that the findings were “neither facts of universal notoriety nor facts not subject to reasonable dispute.” The Court found that the Board did not err by failing to address these reports, since the veteran did not raise these reports and their findings to the Board, and they were not reasonably raised by the record.

Finally, the Court elaborated on what makes a medical opinion adequate. The Court began by reiterating that medical examiners are not required to address every piece of favorable evidence of record, citing Acevedo v. Shinseki, 25 Vet.App. 286, 293 (2012) (noting no reasons-or-bases requirement for examiners). The Court stated that “examination reports are adequate when they sufficiently inform the Board of a medical expert’s judgment on a medical question and the essential rationale for that opinion.” The Court cited D’Aries v. Peake, 22 Vet.App. 97, 104 (2008), to support this statement – but it seems to me that the Court’s statement loosens the standard enunciated in D’Aries. See D’Aries (“An opinion is adequate where it is based upon consideration of the veteran’s prior medical history and examinations and also describes the disability in sufficient detail so that the Board’s ‘evaluation will be a fully informed one.’”).

With respect to the medical examiner’s rationale, the Court acknowledged that the rationale provided in this case “did not explicitly lay out the examiner’s journey from the facts to a conclusion.” However, the Court found that that was not sufficient to render the report inadequate. Instead, the Court found that “the medical report must be read as a whole,” and that review of the entire report in this case demonstrated the basis for the examiner’s rationale.

The Court added that the veteran failed to show that he himself was competent to rebut the examiner’s opinion, citing Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (noting the competence of laypersons to testify as to symptoms, but not diagnoses). However, the Court later stated that the question in this case is whether the veteran’s “hearing acuity worsened during service,” (which seems to me to be more a question of symptomatology than diagnosis).

The Court noted that even if a medical opinion is inadequate to decide a claim, it is not necessarily entitled to no probative weight. If the opinion “is merely lacking in detail, then it may be given some weight based upon the amount of information and analysis it contains.” The Court stated that “VA is not permitted to completely ignore even an ‘inadequate’ opinion or examination, whether it is in favor or against a veteran’s claim.”

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