Khadijah El-Amin v. Eric K. Shinseki , 26 Vet. App. 136 ( 2013 )

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO.10-3031
KHADIJAH EL-AMIN, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Argued November 15, 2012 Decided January 15, 2013)
Martin V. Totaro, of Washington, D.C., with whom Barbara A. Curran, of Livingston, New
Jersey, was on the brief, for the appellant.
Dustin P. Elias, with whom Will A. Gunn, General Counsel; R. Randall Campbell, Assistant
General Counsel; and Nisha C. Wagle, Deputy Assistant General Counsel, all of Washington, D.C.,
were on the brief, for the appellee.
Before KASOLD, Chief Judge, and HAGEL and MOORMAN, Judges.
HAGEL, Judge, filed the opinion of the Court. KASOLD, Chief Judge, filed a dissenting
opinion.
HAGEL, Judge: On May 17, 2012, the Court issued a memorandum decision affirming an
August 16, 2010, Board of Veterans' Appeals (Board) decision that denied Khadijah El-Amin
entitlement to VA benefits for the cause of her husband's death. On June 6, 2012, Mrs. El-Amin,
through counsel, filed a motion for reconsideration or, in the alternative, a decision by a three-judge
panel. On August 29, 2012, the matter was submitted to a panel of the Court and oral argument was
held on November 15, 2012. The Court will withdraw the May 17, 2012, memorandum decision and
issue this opinion in its stead.
The precise question for the panel is whether a VA examiner's statement that deceased
veteran Khalil El-Amin's alcoholism was "related to" factors other than his service-connected post-
traumatic stress disorder is sufficient to permit the Board to conclude that Mr. El-Amin's service-
connected post-traumatic stress disorder did not aggravate his alcoholism. We conclude that it is not.
Further, we find that the Board erred in relying on an inadequate medical opinion to conclude that
Mr. El-Amin's non-service-connected alcoholism was not aggravated by his service-connected post-
traumatic stress disorder. Accordingly, the Court will vacate the August 2010 Board decision and
remand the matter for further development and readjudication consistent with this decision.
I. FACTS
Mr. El-Amin served on active duty in the U.S. Marine Corps from September 1966 to May
1969, including service in Viet Nam. The record reflects that, during his lifetime, Mr. El-Amin was
diagnosed with and treated for drug and alcohol abuse and hepatitis C, none of which was ever
determined to be connected to his military service.
Mr. El-Amin died in October 2006, and his death certificate lists the cause of death as hepatic
cirrhosis. At the time of his death, Mr. El-Amin was in receipt of VA disability benefits for post-
traumatic stress disorder, with a 70% disability rating. Mrs. El-Amin seeks benefits for the cause
of her husband's death, asserting that Mr. El-Amin's service-connected post-traumatic stress disorder
either caused or aggravated his alcoholism, which in turn led to the cirrhosis that caused his death.
In the August 2010 decision on appeal, the Board denied Mrs. El-Amin's claim on the basis
that there is no evidence that Mr. El-Amin's death was a result of any service-connected condition.
The decision was based almost exclusively on an October 2008 VA medical opinion, which was
based on a records review, in which the examiner stated:
[I]t is this examiner's conclusion that there is no confirmatory or supportive evidence
that the veteran's post-traumatic stress disorder caused his alcohol abuse, and thus it
is NOT at least as likely as not that the veteran's [post-traumatic stress disorder]
caused his alcohol abuse. Conversely, it is more likely than not that the veteran's
alcohol abuse was related to factors other than the veteran's post-traumatic stress
disorder.
Record (R.) at 93. When considering the record evidence, the Board adopted this opinion as the
rationale for its decision:
The Board finds the October 2008 opinion of the VA examiner to be the most
probative evidence of record regarding whether [Mr. El-Amin's] cause of death was
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related to service. The Board notes that there is no medical evidence of record that
contradicts the opinion of the examiner.
...
Also, the Board acknowledges [Mrs. El-Amin's] contention that [her husband's]
service-connected [post-traumatic stress disorder] caused him to drink, which in turn
caused or aggravated his cirrhosis. Certainly, [she] is competent to report how much
and how often [her husband] was drinking during the marriage. She is not
competent, however, to opine as to the cause of [his] addiction to alcohol or his
cirrhosis, and, even if the Board found [her] competent in that regard, the Board
nevertheless finds the opinion of the October 2008 examiner to be the most probative
evidence regarding the relationship between [Mr. El-Amin's] [post-traumatic stress
disorder] and cirrhosis.
R. at 11, 12. This appeal followed.
II. ANALYSIS
A. Cause of Death and Aggravation
A veteran's death will be considered service connected when a service-connected disability
"was either the principal or a contributory cause of death." 38 C.F.R. § 3.312(a) (2012); see
38 U.S.C. § 1310. For a service-connected disability to be considered a contributory cause of death,
it must be shown that it contributed substantially or materially to the production of death, combined
to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c).
In a decision early in its history, the Court determined that "any additional impairment of
earning capacity resulting from an already service-connected condition, regardless of whether or not
the additional impairment is itself a separate disease or injury caused by the service-connected
condition, shall be compensated." Allen v. Brown, 7 Vet.App. 439, 448 (1995). More specifically,
"when aggravation of a veteran's non-service-connected condition is proximately due to or the result
of a service-connected condition, such veteran shall be compensated for the degree of disability (but
only that degree) over and above the degree of disability existing prior to the aggravation." Id. It
follows logically from this holding that the "compensation" for such aggravation by the service-
connected condition includes the death benefits that Mrs. El-Amin seeks here, if it can be shown that
the non-service-connected disability was aggravated to the degree that it contributed substantially
or materially to the production of death, combined to cause death, or aided or lent assistance to the
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production of death. 38 C.F.R. § 3.312(c). Such a finding would result in an unbroken chain
between the service-connected disability and the condition that caused the veteran's death. Here, for
example, the chain would proceed: Mr. El-Amin's service-connected post-traumatic stress disorder
aggravated his non-service-connected alcoholism, which caused or contributed to his cirrhosis,
which caused his death.
To be sure, the question of whether any aggravation of Mr. El-Amin's non-service-connected
alcoholism contributed to his development of cirrhosis is a factual one that has not yet been
addressed by the Board. See Elkins v. Gober, 229 F.3d 1369, 1377 (Fed. Cir. 2000) ("Fact-finding
in veterans cases is to be done by the expert [Board], not by the Veterans Court."). The Board did
not reach this question below because the inquiry ended when the Board determined that there was
no connection between Mr. El-Amin's service-connected post-traumatic stress disorder and his non-
service-connected alcoholism. At oral argument, however, the Secretary conceded that there is prima
facie evidence that Mr. El-Amin's alcoholism caused or contributed to the development of cirrhosis.
On remand, the Board will consider and weigh this evidence in the first instance if it determines that
the evidence of aggravation of Mr. El-Amin's alcoholism by his post-traumatic stress disorder weighs
in favor of his claim or is in equipoise. See 38 U.S.C. § 5107(b) ("When there is an approximate
balance of positive and negative evidence regarding any issue material to the determination of a
matter, the Secretary shall give the benefit of the doubt to the claimant.").
B. Adequacy of Medical Examination
The law regarding adequacy of VA medical examinations is well settled and voluminous.
The Secretary's duty to assist a claimant includes, among other things, "providing a medical
examination or obtaining a medical opinion when such an examination or opinion is necessary to
make a decision on the claim." 38 U.S.C. § 5103A(d)(1); 38 C.F.R. § 3.159(c)(4) (2012). The
medical examination provided must be "thorough and contemporaneous" and consider prior medical
examinations and treatment. Green v. Derwinski, 1 Vet.App. 121, 124 (1991). A medical
examination 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 of the claimed disability will be a fully informed one.'" Stefl v. Nicholson, 21 Vet.App.
120, 123 (2007) (quoting Ardison v. Brown, 6 Vet.App. 405, 407 (1994)). Additionally, a medical
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examiner must provide a "reasoned medical explanation connecting" his observations and his
conclusions. Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 304 (2008) ("It is the factually accurate,
fully articulated, sound reasoning for the conclusion . . . that contributes probative value to a medical
opinion."). If an examination report does not contain sufficient detail, "it is incumbent upon the
rating board to return the report as inadequate for evaluation purposes." 38 C.F.R. § 4.2 (2012); see
Bowling v. Principi, 15 Vet.App. 1, 12 (2001) (emphasizing the Board's duty to return inadequate
examination report).
Whether a medical opinion is adequate is a finding of fact, which the Court reviews under
the "clearly erroneous" standard. See 38 U.S.C. § 7261(a)(4); D'Aries v. Peake, 22 Vet.App. 97, 103
(2008); Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990). "A factual finding 'is "clearly erroneous"
when although there is evidence to support it, the reviewing court on the entire evidence is left with
the definite and firm conviction that a mistake has been committed.'" Hersey v. Derwinski,
2 Vet.App. 91, 94 (1992) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
The Board determined that the October 2008 VA medical examination report was adequate
because "the examiner reviewed the claims file, provided the requested opinions, and gave adequate
rationale for his conclusions." R. at 8. The Court finds the Board's conclusion clearly erroneous.
The October 2008 VA examiner's opinion focuses solely on direct causation, concluding that
Mr. El-Amin's post-traumatic stress disorder did not cause his alcoholism. R. at 92-93 ("[T]he
examiner found no mental health provider that offered the opinion that the veteran's alcohol
dependence or abuse was caused by his post-traumatic stress disorder;" "[I]t is this examiner's
conclusion that there is no confirmatory or supportive evidence that the veteran's post-traumatic
stress disorder caused his alcohol abuse, and thus it is NOT at least as likely as not that the veteran's
[post-traumatic stress disorder] caused his alcohol abuse."). Although the examiner then stated that
it was "more likely than not that the veteran's alcohol abuse was related to factors other than the
veteran's post-traumatic stress disorder," R. at 93 (emphasis added), it is not at all clear to the Court
that this encompasses a discussion of aggravation (the theory on which Mrs. El-Amin bases her
claim) at all, let alone with respect to post-traumatic stress disorder. It is likewise unclear to the
Court how the Board could interpret the examiner's statements as having considered whether Mr.
El-Amin's post-traumatic stress disorder aggravated his alcohol abuse. At best, it might be said that
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the examiner considered and opined that Mr. El-Amin's alcohol abuse was aggravated by (that is,
"was related to") "factors other than" post-traumatic stress disorder. R. at 93. This does not rule out
the possibility that it was also aggravated to some degree by his post-traumatic stress disorder; the
examiner only opined that Mr. El-Amin's alcoholism was not "caused" by his post-traumatic stress
disorder. Id. This is the only plain statement provided by the examiner with respect to the
relationship between Mr. El-Amin's post-traumatic stress disorder and his alcohol abuse.
Accordingly, on the question of aggravation, the Board's conclusion that the examination was
adequate was clearly erroneous, see D'Aries, 22 Vet.App. at 103, and therefore the Board erred in
finding that VA satisfied its duty to assist, see Nolen v. Gober, 14 Vet.App. 183, 184 (2000).
To be fair to the examiner, however, his focus on direct causation appears to have been
driven by the VA inquiry request for the examination. In fact, the examiner opened his examination
report by stating that he had been "asked to provide an opinion regarding the cause of death." R. at
92. The inquiry report requested that the examiner "indicate if the veteran's alcohol abuse was
related to [his] [post-traumatic stress disorder] or if the alcohol abuse was a separate[,] unrelated
disability." R. at 95. This could, perhaps, be interpreted as including a request for an opinion on
aggravation, but the inquiry request went on to require that the examiner state his conclusion
using one of the following legally recognized phrases:
a) _____ is caused by or a result of _____
b) _____ is most likely caused by or a result of _____
c) _____ is at least as likely as not (50/50 probability) caused by or a result of _____
d) _____ is less likely as not (less than 50/50 probability caused by or a result of
_____
e) is not caused by or a result of _____
f) I cannot resolve this issue without resort to mere speculation
Id. These options do not permit the examiner to opine on any question other than one of direct
causation. Cf. Bielby v. Brown, 7 Vet.App. 260, 269 (1994) (finding improper the Board's reliance
on an independent medical opinion where the Board constrained the scope of inquiry in the
engagement letter, thereby "limiting [the examiner's] investigation and tainting the results").
In light of the above discussion, the Court will vacate the Board decision and remand the
matter for a new VA medical opinion that considers the relevant evidence of record and expressly
opines as to whether Mr. El-Amin's service-connected post-traumatic stress disorder aggravated his
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non-service-connected alcohol abuse and, if so, to what degree. If aggravation is found, the Board
must then determine whether the degree of aggravation of alcohol abuse caused or contributed to the
development of cirrhosis and determine whether a medical opinion is necessary to answer that
question. In this regard, the Court notes that the October 2008 VA examiner indicated that he, as
a psychologist, was not equipped to render an opinion on that question. Accordingly, the Board
should, if it determines that a medical opinion is necessary on this issue, seek the opinion of a
qualified medical professional.1
As a final matter, the Court notes that the Board also denied entitlement to burial benefits.
Although Mrs. El-Amin did not raise any arguments related to that decision in her briefs, because
that denial was premised on the Board's finding that Mr. El-Amin's service-connected post-traumatic
stress disorder was not a contributory cause of his death, the matters are inextricably intertwined.
See Henderson v. West, 12 Vet.App. 11, 20 (1998) ("[W]here a decision on one issue would have
a 'significant impact' upon another, and that impact in turn 'could render any review by this Court of
the decision [on the other claim] meaningless and a waste of judicial resources,' the two claims are
inextricably intertwined." (quoting Harris v. Derwinski, 1 Vet.App. 180, 183 (1991), overruled on
other grounds by Tyrues v. Shinseki, 23 Vet.App. 166 (2009) (en banc), aff'd, 631 F.3d 1380 (Fed.
Cir. 2011); vacated and remanded, 132 S. Ct. 75 (2011)); see also Smith v. Gober, 236 F.3d 1370,
1372 (Fed. Cir. 2001) (holding that, where the facts underlying two claims are "intimately
connected," the interests of judicial economy and of avoiding piecemeal litigation require the claims
to be appealed together). Because the Court is remanding Mrs. El-Amin's claim for benefits for the
cause of her husband's death, her claim for burial benefits must also be remanded.
On remand, Mrs. El-Amin is free to submit additional evidence and argument in accordance
with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). See Kay v.
Principi, 16 Vet.App. 529, 534 (2002). "A remand is meant to entail a critical examination of the
justification for the decision" by the Board. Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991). In
1
To be clear, the Court is not directing the Board to obtain two separate opinions–one on the question of
whether Mr. El-Amin's post-traumatic stress disorder aggravated his alcohol abuse and one on the question of whether
that aggravation contributed to the development of cirrhosis–as long as the Board seeks a single opinion from a medical
professional qualified to answer both questions.
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addition, the Board shall proceed expeditiously, in accordance with 38 U.S.C. § 7112 (expedited
treatment of remanded claims).
As a final matter, the Court feels that it would be remiss if it did not recognize the superior
oral advocacy by both counsel in this appeal. Such advocacy, of course, reflects well on these
lawyers. More important to the Court, however, is that it permits the Court to consider and decide
the key issue or issues presented by the case and to decide them with some dispatch. Despite the
outcome of this or other cases, their professionalism serves their clients well and displays respect
for and honor to this Court. It further facilitates the delivery of justice in a timely fashion.
III. CONCLUSION
Upon consideration of the foregoing, the August 16, 2010, Board decision is VACATED and
the matters are REMANDED for further development and readjudication consistent with this
decision.
KASOLD, Chief Judge, dissenting: I issued the single-judge memorandum decision
affirming the Board decision that denied Mrs. El-Amin entitlement to VA benefits for the cause of
her husband's death, while noting that Mrs. El-Amin had submitted a confusing brief. Through new
counsel, Mrs. El-Amin filed a motion for reconsideration and in the alternative panel review on the
basis that the medical opinion relied on by the Board was inadequate because it did not address
aggravation. Although piecemeal litigation is not condoned, Fugere v. Derwinski, 1 Vet.App. 103,
105 (1990) ("Advancing different arguments at successive stages of the appellate process does not
serve the interests of the parties or the Court. Such a practice hinders the decision-making process
and raises the undesirable specter of piecemeal litigation."), the request for reconsideration brought
clarity to the original argument and the issue warranted panel review because the outcome now
appeared to be reasonably debatable. Accordingly, I granted reconsideration and forwarded Mrs. El-
Amin's appeal to panel for decision. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990) (finding
that a single judge may resolve an appeal if "the case on appeal is of relative simplicity and[, inter
alia,] . . . does not apply an established rule of law to a novel fact situation [or] the outcome is not
reasonably debatable").
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On panel review, I disagree with the conclusion reached by the majority.2 Succinctly stated,
although the examiner's opinion is not perfect, I do not find it limited to direct causation or so
unclear as to aggravation that the Board was clearly erroneous in its (1) view of that opinion in the
context of the entire record, (2) weighing of all of the record evidence, or (3) decision that Mr.
El-Amin's death was not service connected. See Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990)
("'Where there are two permissible views of the evidence, the factfinder's choice between them
cannot be clearly erroneous.'" (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573-74
(1985)); see also Thompson v. Gober, 14 Vet.App. 187, 192 (2000) ("'Perfection is an aspiration, but
the failure to achieve it in the judicial process, as elsewhere in life, does not, absent injury, require
a repeat performance.'" (quoting Miles v. M/V Mississippi Queen, 753 F.2d 1349, 1352 (5th Cir.
1985)); see also Stallworth v. Nicholson, 20 Vet.App. 482, 491 (2006) (Lance, J., dissenting) (noting
that an "unjustified remand [] only 'perpetuates the hamster-wheel reputation of veterans law'")
(quoting Coburn v. Nicholson, 19 Vet.App. 427, 434 (2000) (Lance, J., dissenting)).
Nevertheless, I note that this case underscores the need for panel review when – prior to oral
argument or panel discussion – the outcome of a case appears reasonably debatable as to the facts.
See Frankel, 1 Vet.App. at 25-26. Claimants for VA benefits get a one-person review at the agency
of original jurisdiction and a one-person review at the Board. Although most of our cases can and
should be decided by a single judge, Frankel does not limit panel review to questions of law and
there should be little hesitation to send a case to panel when the result could be reasonably debatable.
Id.; see also Washington v. Nicholson, 19 Vet.App. 362, 372-75 (2005) (Kasold, J., concurring in
part and dissenting in part) (disagreeing on the weighing of the facts).
2
Although I disagree with the ultimate decision of the majority, I concur in their recognition of the superior
oral advocacy of counsel for both parties.
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