Ouida Wise v. Eric K. Shinseki , 26 Vet. App. 517 ( 2014 )

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 12-2764
OUIDA WISE, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Decided April 16, 2014)
Sean A. Kendall of Boulder, Colorado, and Michael E. Wildhaber of Washington, D.C., were
on the brief for the appellant.
Karen P. Galla, Appellate Attorney, with whom Rudrendu Sinhamahapatra, Appellate
Attorney; Will A. Gunn, General Counsel; David L. Quinn, Acting Assistant General Counsel; and
Gayle E. Strommen, Deputy Assistant General Counsel, all of Washington, D.C., were on the brief
for the appellee.
Before DAVIS, SCHOELEN, and BARTLEY, Judges.
BARTLEY, Judge: Ouida Wise, surviving spouse of veteran George W. Wise, appeals
through counsel a September 12, 2012, Board of Veterans' Appeals (Board) decision denying
dependency and indemnity compensation (DIC) based on service connection for the cause of the
veteran's death. Record (R.) at 3-25.1 This appeal is timely and the Court has jurisdiction to review
the Board's decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). For the reasons that follow, the
Court will set aside the appealed portion of the September 2012 Board decision and remand that
matter for further development and readjudication consistent with this decision.
1
The Board also denied a claim for DIC under 38 U.S.C. § 1318. R. at 20-25. Because Mrs. Wise indicated
in her brief that she did not wish to appeal the Board's decision with respect to that claim (see Appellant's Brief (Br.) at
1 n.1), the Court will not address it further. See DeLisio v. Shinseki, 25 Vet. App. 45, 47 (2011) (Court's disposition of
the case addressed only those portions of the Board decision raised on appeal).
I. FACTS
Mr. Wise served on active duty in the U.S. Army from April 1943 to December 1945,
including service in Europe during World War II. R. at 1065. He landed in Europe during the
Normandy invasion and served as a medic in an ambulance unit on campaigns in the Ardennes,
northern France, the Rhineland, and central Europe. Id.; R. at 1020-21. He treated and evacuated
soldiers at the Battle of the Bulge and helped liberate several German concentration camps, including
Dachau, Buchenwald, and Landsberg. See R. at 471-76, 1018-21. For his service, Mr. Wise was
awarded the Bronze Star, the European-African-Middle Eastern Campaign Medal, the World War
II Victory Medal, and the Good Conduct Medal. R. at 1065. His service medical records do not
reflect any complaints of or treatment for a cardiovascular condition. R. at 1053-60.
Following service, Mr. Wise applied for and was granted service connection for post-
traumatic stress disorder (PTSD), initially evaluated as 10% disabling effective September 3, 1985.
R. at 1003-04. That grant of service connection was based in part on Mr. Wise's statement that he
had been "haunted" by "bad memories" of service for 40 years and that he repressed those memories
by working himself to exhaustion so that he did not have time to think about what happened in
service. R. at 1021. Those memories included flashbacks of "picking up casualties" throughout
World War II, "being [o]n the front lines continuously," and "clean[ing] up concentration camps."
R. at 1020. Specifically, Mr. Wise stated that, during the Normandy invasion, he was threatened at
gunpoint by a fellow servicemember and, after disembarking from his vehicle, "stepped on a human
hand [that] was [lying] there all by itself." Id. He also explained that he was in the first ambulance
into Bastogne during the Battle of the Bulge and was "less than 100 yards" away from the Malmedy
Massacre. R. at 1021. Mr. Wise's PTSD evaluation was subsequently increased to 30%, effective
March 21, 1989, and 100%, effective July 24, 2000. See R. at 315-19, 984-85.
Mr. Wise died on November 26, 2008. R. at 247. His death certificate lists his immediate
cause of death as "arrhythmia due to or as a consequence of" arteriosclerotic cardiovascular disease,
congestive heart failure, and chronic obstructive pulmonary disease. Id.
In December 2008, Mrs. Wise filed a claim for DIC (R. at 237-44), which was denied by a
VA regional office (RO) in May 2009 (R. at 1087-90). Later that month, she submitted a letter from
her late husband's VA treating physician, Dr. Michael Bleiden, opining that it was "possible that the
2
stress from [the veteran's] PTSD contributed to his sudden death." R. at 208. Dr. Bleiden's opinion
included an abstract from a 2007 article published in the Journal of the American Medical
Association (JAMA) that found that male veterans with symptoms of PTSD were "more likely to
develop coronary heart disease" and "suggest[ed] that higher levels of [PTSD] symptoms may pose
an even greater cardiovascular risk." Id. In July 2009, the RO continued to deny entitlement to DIC,
rejecting Dr. Bleiden's opinion as speculative. R. at 199-201. Mrs. Wise filed a timely Notice of
Disagreement as to that decision (R. at 193) and subsequently perfected her appeal to the Board (R.
at 158).
In July 2011, Mrs. Wise testified at a Board hearing (R. at 113-25) and later submitted three
Internet articles describing recent research regarding a link between PTSD and heart disease (R. at
129-33). One of those articles, published on the ScienceDaily website, refers to a 2010 study
presented at the American Heart Association's (AHA's) 2010 Scientific Sessions that demonstrated
that PTSD "more than doubles a veteran's risk of death from any cause and is an independent risk
factor for cardiovascular disease." R. at 129.
After further development, Mrs. Wise submitted another letter from Dr. Bleiden, who opined
that it was "more likely than not that Mr. Wise's PTSD aided and assisted [in] his death from heart
disease, as stress is [a] risk factor for ischemic heart disease." R. at 68. Dr. Bleiden stated that the
veteran had "very significant PTSD," as reflected by his "very frequent mental hygiene clinic visits
. . . starting in 1986," including visits "every 2 to 4 weeks" between 1995 and 1998. R. at 69; see
R. at 70-95 (complete list of the veteran's mental health appointments from June 1986 to November
2008). Dr. Bleiden explained that there was "no way that [Mr. Wise] would have needed to be seen
so frequently unless he had severe mental health problems." R. at 69.
In May 2012, the Board requested an advisory medical opinion from the Veterans Health
Administration (see R. at 43), which was prepared by VA staff cardiologist Dr. Thea N. Calkins in
July 2012. R. at 46-52. Dr. Calkins began her opinion with the following disclaimer:
I will preface my remarks by stating that I have practiced as a clinical non invasive
cardiologist for approximately the past 20 years. However, I have no formal training
or background in [p]sychiatry other than the rudimentary month[-]long [p]sychiatry
rotation in medical school more that 25 years ago. And I have pre[]cious little
experience treating veterans, having worked briefly as a cardiologist part time at a
3
VA clinic some 12 years ago, and the past few months at my current position. I have
never been asked to perform a chart review of this nature.
1 would also like to make the observation that I have been provided with two large
folders containing the patient's records for review, but must state that the majority of
the paperwork is psychiatry related, as well as including substantial quantities of
[bureaucratic] paperwork. What true "medical" records there are contained in the
files are for the most part not cardiac related, and certainly incomplete. I say this, as
there is evidence of several [c]ardiology appointments listed for the patient dating
from 2002 until the patient's death in 2008. However there is no actual
documentation provided, i.e., history, physical exams, medical testing, progress
notes[,] to lend further insight as to what cardiac issues these appointments were
meant to address towards the end of the patient's life.
R. at 46.
Dr. Calkins reviewed the psychiatric records and, after acknowledging that Mr. Wise was
"felt to be 100% disabled" from PTSD at the time of his death, she stated: "I feel the medical records
did not support that [the veteran's] PTSD was particular[l]y severe or active later in his life, but
rather that he suffered from many other psychiatric comor[b]idities." Id. She continued: "From a
relative lay person's perspective of psychiatry, the notes struck me as p[or]traying a fairly well
compensated case of PTSD and that the patient was dealing with several other psychiatric issues at
the time as well." R. at 47 (emphasis added). She also criticized Dr. Bleiden's medical opinion,
accusing him of "not actually read[ing the] mental hygiene clinic notes," which she described as "not
support[ing] the diagnosis of severe PTSD, but rather other [psychiatric] issues." Id.
Dr. Calkins then outlined Mr. Wise's "conventional" cardiac risk factors, including
hypertension, family history of premature vascular disease, obesity, and sedentary lifestyle. R. at 48.
She acknowledged the 2010 ScienceDaily article submitted by Mrs. Wise, but stated that it was
"probably just an abstract that was presented at the annual heart meetings in 2010, not a reliable peer
reviewed piece in the literature." R. at 49. Dr. Calkins noted that Dr. Robert Eckles, former
president of the AHA, had called for "much more study" to confirm the findings of the research cited
in the ScienceDaily article. Id. Dr. Calkins also pointed out that the underlying study "establishes
only a possible correlation between PTSD and coronary artery disease, not a causal relationship" and
emphasized that "psychosocial factors generally and PTSD specifically[] haven't made it into
common clinical practice and are not widely accepted as cardiac risk factors." Id. She attached a
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November 2000 article from the New England Journal of Medicine (NEJM) finding a "[l]ack of
correlation between psychological factors and subclinical coronary artery disease" (R. at 53-60) and
concluded that, although "the jury is still out on this one," PTSD is "by no means . . . considered a
conventional cardiovascular risk factor" (R. at 49).
Next, Dr. Calkins chronicled the veteran's cardiovascular history. R. at 49-51. She lamented
the "incomplete records regarding the patient[']s care from the year 2000 until his death in 2008,"
noting that the claims file contained only the appointment list provided by Dr. Bleiden and no
corresponding cardiology notes or test results. R. at 51. Nevertheless, Dr. Calkins "assume[d]" that
Mr. Wise had sinus node dysfunction requiring implantation of a pacemaker in April 2004, which
she described as "not an uncommon clinical scenario for someone of the patient's age." Id. She
explained that there was "no need or logical reason to invoke PTSD as a contributing factor" to that
cardiac condition because Mr. Wise "was in his 80's and had hypertensive heart disease – enough
said." Id.
Based on the foregoing, Dr. Calkins opined that it was "not at all likely" that PTSD
aggravated the veteran's heart disease or hastened his death. R. at 52. She stated that the veteran's
PTSD "was not particularly severe, active[,] or troublesome in his later years," but "even if it were,
PTSD is not a widely accepted, recognized risk factor for coronary artery disease." Id. She
explained that, contrary to Mrs. Wise's contentions, the veteran's "inadequately treated hypertension,
family history, obesity[,] physical inactivity[,] age[,] and sex are more than plenty to explain any
coronary disease he may have developed late in life and would account for his not untimely demise
at age 84." Id. Dr. Calkins also stated that the veteran "did not have documented coronary artery
disease" and that "[h]is death certificate is the first mention of coronary disease." Id.
Later in July 2012, Mrs. Wise submitted argument and evidence in response to Dr. Calkins's
opinion. R. at 28-42. The evidence included a 2011 article published in The Open Cardiovascular
Medicine Journal (OCMJ) demonstrating a link between PTSD and an increased risk of
hypertension, hyperlipidemia, obesity, cardiovascular disease, and coronary heart disease. R. at 33-
39. Notably, the article contained a chart summarizing the "growing number of studies" finding
"[p]ositive associations between PTSD and cardiovascular disease (particularly coronary heart
disease)." R. at 34; see R. at 35-37 (chart).
5
In September 2012, the Board issued the decision currently on appeal, which denied DIC
under 38 U.S.C. § 1310 based on service connection for the cause of the veteran's death. R. at 3-25.
The Board found that the scientific articles submitted by Mrs. Wise were "of limited probative value"
because "a causal relationship [between PTSD and cardiovascular disease] has not been established
to the point of being generally accepted in the scientific community" and "the articles cited refer to
the early stages of science on the matter." R. at 20. The Board then weighed the competing medical
opinions and found that Dr. Calkins's negative linkage opinion was more probative than Dr.
Bleiden's positive linkage opinion because the former was based on "the known risk factors for heart
disease," whereas the latter was based on "the not yet accepted notion that PTSD causes heart
disease." R. at 21. This appeal followed.
II. ANALYSIS
Mrs. Wise argues that the Board provided an inadequate statement of reasons or bases for
denying her DIC claim. Specifically, she contends that the Board failed to (1) consider and discuss
Dr. Calkins's competence to offer the requested opinion despite her "admission" that she had no
formal training or experience in psychiatry; (2) address other deficiencies in Dr. Calkins's opinion;
(3) properly account for the favorable medical treatise evidence of record; and (4) discuss whether
the duty to assist obligated VA to attempt to obtain the outstanding records of the veteran's
cardiovascular treatment from 2000 to 2008. Appellant's Br. at 12-19. These arguments are
persuasive.
The Secretary responds that, with regard to Dr. Calkins's competence, Mrs. Wise's argument
must fail because the Board noted that the "expert opinion was obtained to address whether the
[v]eteran's fatal artheriosclerotic heart disease was caused by or aggravated by the service-connected
PTSD, not about the nature or type of his psychiatric conditions, including PTSD." Secretary's Br.
at 12. Further, the Secretary argues that Mrs. Wise should not be permitted to second-guess the
expert medical examiner's conclusions, which were based on "her review of the prior medical record
and history, and her expertise and judgment" because VA has a presumption of selecting a competent
examiner to perform examinations. Id. at 13. The Secretary also argues that both Dr. Calkins and
the Board addressed the favorable medical treatise evidence of record. See R. at 21-22. Finally, the
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Secretary, in response to Mrs. Wise's argument concerning the veteran's outstanding medical records,
states that any error in not attempting to obtain the records is harmless because the veteran's heart
treatment prior to 2008 "does not undermine the validity of the examiner's opinion regarding PTSD
and it not impacting the heart disease." Id. at 22.
Pursuant to 38 U.S.C. § 1310, DIC is paid to a surviving spouse of a qualifying veteran who
died from a service-connected disability. A death will be considered service connected where a
service-connected disability was either the principal or a contributory cause of death. 38 C.F.R.
§ 3.312(a) (2013). A disability is the principal cause of death when that disability, "singly or jointly
with some other condition, was the immediate or underlying cause of death or was etiologically
related thereto." 38 C.F.R. § 3.312(b). To be a contributory cause of death, the disability must have
"contributed substantially or materially" to death, "combined to cause death," or "aided or lent
assistance to the production of death." 38 C.F.R. § 3.312(c).
In rendering its decision, the Board is required to provide a written statement of reasons or
bases for its "findings and conclusions[] on all material issues of fact and law presented on the
record." 38 U.S.C. § 7104(d)(1). The statement must be adequate to enable a claimant to understand
the precise basis for the Board's decision and to facilitate review in this Court. Gilbert v. Derwinski,
1 Vet. App. 49, 57 (1990). To comply with this requirement, the Board must analyze the credibility
and probative value of the evidence, account for the evidence that it finds persuasive or
unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the
claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir.
1996) (table).
A. Dr. Calkins's Competence
Mrs. Wise first argues that the Board provided inadequate reasons or bases for its decision
because it failed to consider and discuss whether Dr. Calkins was competent to opine on matters
requiring psychiatric training and expertise despite her overt "admission" in the text of the medical
opinion that she was not qualified to do so. Appellant's Br. at 13-16. The Secretary responds that
the Board was entitled to presume that Dr. Calkins was competent to provide the requested opinion
and was therefore not obligated to explain its reliance on her opinion. Secretary's Br. at 12-13.
7
The presumption of regularity allows courts, in certain situations and "in the absence of clear
evidence to the contrary," to "presume that public officers have properly discharged their duties."
Miley v. Principi, 366 F.3d 1343, 1347 (Fed. Cir. 2004). Relevant to this appeal, "[i]n the case of
competent medical evidence, . . . VA benefits from a presumption that it has properly chosen a
person who is qualified to provide a medical opinion in a particular case." Parks v. Shinseki,
716 F.3d 581, 585 (Fed. Cir. 2013) (citing Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011)).
It is presumed that VA followed a regular process that ordinarily results in the selection of a
competent medical professional. Id. ("Viewed correctly, the presumption [of competence] is not
about the person or a job title; it is about the process."). In addition, "one part of the presumption
of regularity is that the person selected by . . . VA is qualified by training, education, or experience
in the particular field." Id. (emphasis added).
The purpose of the presumption is "to eliminate the burden [on VA] to produce evidence"
of a medical professional's competence to answer the medical questions necessary to decide the
claim. Id. However, that presumption does not attach when VA's process of selecting a medical
professional appears irregular. See Butler v. Principi, 244 F.3d 1337, 1340 (Fed. Cir. 2001)
(explaining that the presumption of regularity "allows courts to presume that what appears regular
is regular"); Van Valkenburg v. Shinseki, 23 Vet. App. 113, 116 (2009) (citing Ashley v. Derwinski,
2 Vet. App. 307, 309, 1992), for the proposition that, if the facts before the Court do not appear
regular, then the presumption does not attach); cf. United States v. Roses Inc.,706 F.2d 1563, 1567
(Fed. Cir. 1983) (the presumption of regularity "does not help to sustain an action that on its face
appears irregular. . . . [In such a case, t]he presumption operates in reverse. If it appears irregular,
it is irregular, and the burden shifts to the proponent to show the contrary.").
Here, the Board sought an expert medical opinion to resolve the issue of whether Mr. Wise's
PTSD contributed to the cardiovascular conditions that caused his death. This required the expert
to discern the severity of the veteran's PTSD and whether it may have contributed to his demise from
cardiovascular disease. R. at 46. Yet Dr. Calkins, whom the Board selected to provide that opinion,
expressly disclaimed any expertise in psychiatry, stating that she had "no formal training or
background in [p]sychiatry other than the rudimentary month[-]long [p]sychiatry rotation in medical
school more that 25 years ago" and calling her view of the psychiatric matters "a relative
8
lay[]person's perspective." R. at 46-47. These statements suggest irregularity in the Board's process
of selecting Dr. Calkins to provide the expert medical opinion because, by Dr. Calkins's own
admission, she lacks the necessary expertise to provide that opinion. See Parks, 716 F.3d at 585
("[C]ompetency requires some nexus between qualification and opinion.").
In other words, Dr. Calkins's disclaimer of expertise on psychiatric matters, suggesting
irregularity in the Board's selection process, raised the issue of her competence. See id. ("In the case
of competent medical evidence, . . . VA benefits from a presumption that it has properly chosen a
person who is qualified to provide a medical opinion in a particular case.") (emphasis added); Rizzo
v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir. 2009) (noting that the presumption of competence
attached in that case because "the record contains no evidence to call into question the competence"
of the medical examiner chosen by the Board); Cox v. Nicholson, 20 Vet. App. 563, 569 (2007)
(searching the record for evidence "that would cast doubt on [the examiner's] competence and
qualifications" and, upon finding none, concluding that the Board did not err in relying on the
"implicit presumption of competence"); see also Robinson v. Peake, 21 Vet. App. 545, 552-56 (2008)
(holding that the Board has a duty to address all issues reasonably raised either by the appellant or
the contents of the record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). The
Board's failure to do so renders inadequate its statement of reasons or bases for relying on her
opinion. See Caluza, 7 Vet. App. at 506; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed.
Cir. 2006) (noting that the Board, as factfinder, is responsible for assessing the credibility,
competence, and probative value of evidence).
The Court recognizes that Mrs. Wise did not challenge Dr. Calkins's competence before VA
and that, absent such a challenge, the Board is ordinarily not obligated to discuss an examiner's
competence. See Sickels, 643 F.3d at 1365 (holding that the Board is not required to "give reasons
and bases for concluding that a medical examiner is competent unless the issue is raised by the
veteran" before VA because such a requirement "would fault the Board for failing to explain its
reasoning on unraised issues"); see also Parks, 716 F.3d at 585-86 (explaining that "[t]he first step
to overcoming the presumption [of competence] is to object, even where . . . the veteran is acting pro
se"); Rizzo, 580 F.3d at 1291 (holding that, "where . . . the veteran does not challenge a VA medical
expert's competence or qualifications before the Board, . . . VA need not affirmatively establish that
9
expert's competency"); Cox, 20 Vet. App. at 568-69 (noting that the record before VA contained no
"argument or evidence" regarding a nurse practitioner's competence).
However, the medical opinion showed some irregularity that prevented the presumption of
competence from attaching and raised the issue of Dr. Calkins's competence, and therefore the facts
of this case provide circumstances distinguished from Parks, Sickels, Rizzo, and Cox. In those cases,
there was no evidence of record creating the appearance of irregularity. See Parks, 716 F.3d at 586
(explaining that the record, even when construed sympathetically, did not contain a suggestion "that
there was anything improper with the VA's selection of an [advanced registered nurse practitioner]");
Sickels, 643 F.3d at 1366 (noting an "absence of clear evidence" of irregularity in a VA medical
examination request and rejecting the veteran's belated challenge to the examiner's competence on
that basis) (internal quotation marks omitted); Rizzo, 580 F.3d at 1291 (acknowledging that the
record did not contain any evidence "'that would cast doubt on [the examiner's] competence and
qualifications'" (quoting Cox, 20 Vet. App. at 569)).
Dr. Calkins, unlike the medical professionals who provided the disputed opinions in those
cases, expressly called her own competence into question. R. at 46-47 (characterizing her opinion
as "a relative lay person's perspective of psychiatry" and admitting that she had "no formal training
or background in [p]sychiatry other than the rudimentary month[-]long [p]sychiatry rotation in
medical school more than 25 years ago"). Therefore, the record in this case, unlike the records in
Parks, Sickels, Rizzo, and Cox, demonstrated irregularity that expressly raised the issue of Dr.
Calkins's competence, and it would be unreasonable to allow the Board to ignore this explicit denial
of expertise. The Board was thus required to discuss Dr. Calkins's competence before relying on her
opinion.
Because neither this Court nor the U.S. Court of Appeals for the Federal Circuit (Federal
Circuit) has had the occasion to address the situation presented here–i.e., a medical professional
expressly impugning her own competence to answer the questions posed by the Board–the Court
concludes that the cases requiring a claimant to raise a competence challenge before VA to trigger
the Board's duty to discuss the medical professional's competence are inapposite. Indeed, the reason
that the Federal Circuit gave for imposing that requirement–notifying the Board of the perceived
shortcoming in the medical professional's competence so that it may "evaluate and determine the
10
validity of the challenge to expert's qualifications," Bastien v. Shinseki, 599 F.3d 1301, 1307 (Fed.
Cir. 2010)–is not present here because the medical opinion itself alerts the Board as to that
shortcoming.
Accordingly, the Court holds that where, as here, a medical professional admits that he or
she lacks the expertise necessary to provide the opinion requested by the Board–in this case,
expressly deeming her view of the matter as that of a non-expert layperson–the opinion itself creates
the appearance of irregularity in the process resulting in the selection of that medical professional
that prevents the presumption of competence from attaching, and the Board must therefore address
the medical professional's competence before relying on his or her opinion. See Butler, Roses Inc.,
and Van Valkenburg, all supra. The Board's failure to do so here renders inadequate its statement
of reasons or bases for its decision. See Caluza and Gilbert, both supra.
This reasons-or-bases error was prejudicial because, despite Dr. Calkins's self-confessed
relative lay perspective on psychiatry and lack of expertise (see R. at 46-47), she nevertheless made
psychiatric findings that appear to require expertise and that were unfavorable to Mrs. Wise's claim.
See 38 U.S.C. § 7261(b)(2) (requiring the Court to "take due account of the rule of prejudicial
error"). For example, Dr. Calkins reviewed the veteran's psychiatric treatment records and
determined that (1) Mr. Wise's PTSD symptoms were not as severe as various VA and private
physicians had diagnosed; (2) Mr. Wise's PTSD was not consistent with the 100% evaluation he had
been receiving at the time of his death; and (3) his more severe psychiatric symptoms were
attributable to non-service-connected mental disorders such as dementia. See R. at 46-48.
However, as Dr. Calkins freely admitted, her assessments of the veteran's PTSD and other
psychiatric conditions were little more than lay hypotheses on medical matters. See, e.g., R. at 47
("From a relative lay person's perspective of psychiatry, the notes struck me as p[or]traying a fairly
well compensated case of PTSD and that the patient was dealing with several other psychiatric issues
at the time as well."). Given Dr. Calkins's admitted lack of expertise in psychiatry, she appears not
competent to opine on the complex matter the Board asked her to review. See Jandreau v.
Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (outlining the situations where "[l]ay evidence can
be competent and sufficient to establish a diagnosis of a condition," including diagnosing a medically
"simple" condition such as a broken leg as opposed to a medically complex condition such as
11
cancer); see also Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J., concurring) ("[A]ny
given medical issue is either simple enough to be within the realm of common knowledge for lay
claimants and adjudicators or complex enough to require an expert opinion."); Layno v. Brown,
6 Vet. App. 465, 469-70 (1994) (explaining that, "[a]s a general matter, in order for any testimony
to be probative of any fact, the witness must be competent to testify as to the facts under
consideration," which includes possessing personal knowledge of the disputed fact and the expertise
necessary to testify as to that fact); 38 C.F.R. § 3.159(a)(1) (2013) (defining "competent medical
evidence" as "evidence provided by a person who is qualified through education, training, or
experience to offer medical diagnoses, statements, or opinions"). Remand is therefore warranted.
See Tucker v. West, 11 Vet. App. 369, 374 (1998) (holding that remand is the appropriate remedy
"where the Board has incorrectly applied the law, failed to provide an adequate statement of reasons
or bases for its determinations, or where the record is otherwise inadequate").
B. Deficiencies in Dr. Calkins's Opinion
Mrs. Wise next argues that the Board's statement of reasons or bases for its decision was
inadequate because the Board failed to account for various deficiencies in Dr. Calkins's reasoning
for her negative linkage opinion. Appellant's Br. at 14, 17. The Court agrees.
The record contains a list of Mr. Wise's VA medical appointments, including cardiology
appointments, between June 1986 and November 2008. R. at 70-95. However, as Dr. Calkins
pointed out, the record does not contain any cardiovascular treatment records between 2000 and
2008. See R. at 46 (noting that "there is no actual documentation provided[–]i.e., history, physical
exams, medical testing, progress notes[–]to lend further insight as to what cardiac issues the[ listed
VA cardiology appointments] were meant to address towards the end of the patient's life"), 49
(stating that she "cannot support the contention that the patient even had significant coronary disease
during his lifetime" based on the "admittedly incomplete" cardiology records in the claims file), 51
(explaining that she was "faced with the problem of incomplete records regarding the patient[']s
cardiac care from the year 2000 until his death in 2008," including a lack of "cardiology consultants'
notes and test results" from that period).
Despite the lack of cardiovascular treatment records, Dr. Calkins repeatedly stated, based on
a negative cardiac catheterization study in 1993, that Mr. Wise did not have coronary artery disease
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(CAD). R. at 49, 51-52. Not only was that study conducted 15 years before the veteran's death, but
his death certificate found that he suffered from arteriosclerotic cardiovascular disease, a type of
coronary artery disease,2 during his lifetime. R. at 247 (listing that condition as a contributing cause
of death). The relevant question becomes, to the extent that Mr. Wise developed coronary artery
disease later in life, was it aggravated by his PTSD? However, neither Dr. Calkins, nor–more
importantly–the Board, acknowledged or addressed that question. Instead, Dr. Calkins offered a
negative linkage opinion based on medical records that significantly predated the veteran's death and
showed a clean bill of cardiovascular health (see R. at 51-52 (twice stating in her negative linkage
opinion that the veteran did not have coronary artery disease as of 1993 and questioning whether the
notation of coronary artery disease on the death certification had "any basis in history, autopsy")),
and the Board implicitly approved this approach without discussing its deficiencies.
In addition, Dr. Calkins's conclusion that PTSD is "not widely accepted" as a cardiac risk
factor was based, in part, on a 2000 NEJM article that she attached "to refute" the 2007 JAMA article
referenced by Dr. Bleiden in his positive linkage opinion. R. at 49. However, the 2000 NEJM
article was published seven years before the 2007 JAMA article and eight years before the veteran's
death. Compare R. at 54-59 (2000 NEJM article), with R. at 208 (abstract of the 2007 JAMA
article). Yet, neither Dr. Calkins nor the Board discussed the 2007 JAMA article or explained why
a 12-year-old article was more representative of the current state of medical science on this issue
than the 2007 article referenced by Dr. Bleiden.
These apparent shortcomings and discrepancies raise questions as to the adequacy of Dr.
Calkins's opinion, and the Board was required to discuss them before relying on that opinion to
decide Mrs. Wise's DIC claim. See Owens v. Brown, 7 Vet. App. 429, 433 (1995) (Board must
provide an adequate statement of reasons or bases for relying on a medical opinion). The Board's
failure to do so further justifies remand. See Tucker, supra.
C. Outstanding Medical Records
Mrs. Wise next argues that the Board provided inadequate reasons or bases for its decision
because the Board, in concluding that VA satisfied its duty to assist, did not address whether VA was
2
"Coronary artery disease" is "atherosclerosis of the coronary arteries." DORLAND'S ILLUSTRATED MEDICAL
DICTIONARY 531 (32d ed. 2012). "Atherosclerosis" is "a common form of arteriosclerosis." Id. at 172.
13
required to attempt to obtain the veteran's outstanding records of cardiovascular treatment from 2000
to 2008. Appellant's Br. at 18-19. This argument is also persuasive.
The Secretary has a duty to assist claimants in developing their claims. 38 U.S.C. § 5103A.
The duty to assist in a DIC claim includes the duty to make "reasonable efforts to assist a claimant
in obtaining evidence necessary to substantiate the claimant's claim." 38 U.S.C. § 5103A(a)(1); see
DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008) (holding that section 5103A(a) imposes
on VA a general assistance requirement "in all cases" for VA benefits). "[W]here . . . VA is on
notice that records supporting an appellant's claim may exist, . . . VA has a duty to assist the
appellant to locate and obtain these records." Solomon v. Brown, 6 Vet. App. 396, 401 (1994); see
Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992) (holding that evidence of record before VA may
"raise[] enough notice of pertinent private medical records to trigger the duty to assist"). The Board
must support its determination that VA satisfied its duty to assist with an adequate statement of
reasons or bases. See Trafter v. Shinseki, 26 Vet. App. 267, 282-83 (2013); Daves v. Nicholson,
21 Vet. App. 46, 51 (2007).
The record contains a list of Mr. Wise's VA medical appointments, including cardiology
appointments, between June 1986 and November 2008, but, as noted by Dr. Calkins and discussed
above, it does not contain any cardiovascular treatment records between 2000 and 2008. R. at 70-95.
Dr. Calkins's opinion put the Board on notice that VA medical records relevant to the veteran's cause
of death were outstanding, thereby triggering VA's duty to assist Mrs. Wise in obtaining those
records. See Soloman and Ivey, supra. Yet, the record does not reflect that the Board made any
effort to attempt to obtain those records, and the Board's discussion of the duty to assist in this regard
is so terse and vague as to be essentially meaningless. See R. at 8 (noting that the RO has obtained
postservice VA medial records "to the extent possible"). Accordingly, the Court concludes that the
Board provided an inadequate statement of reasons or bases for concluding that VA had satisfied its
duty to assist. See Gilbert, supra.
D. "General Acceptance in the Medical Community" and the Benefit of the Doubt
Although the Court has already determined that remand is necessary, the Court will
nevertheless address Mrs. Wise's additional reasons-or-bases argument to ensure a proper decision
by the Board on remand. See Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009) (holding that, to
14
provide guidance to the Board, the Court may address an appellant's other arguments after
determining that remand is warranted). Specifically, Mrs. Wise argues that the Board failed to
adequately account for the potentially favorable medical literature of record. Appellant's Br. at 17-
18. The record contains various articles and studies indicating a link between PTSD and increased
risk of cardiovascular disease. R. at 33-39, 129-33, 208. The Board considered "the scientific
studies and articles in this case" and found them to be "of limited probative value" because "a causal
relationship [between PTSD and cardiovascular disease] has not been established to the point of
being generally accepted in the scientific community" and the studies submitted by Mrs. Wise "refer
to the early stages of science on the matter, rather than a generally accepted medical principle." R.
at 20. The foregoing raises the issue of whether the Board, in rejecting the potentially favorable
medical literature of record because it espoused a medical principle that was not yet "generally
accepted" in the scientific community, ran afoul of the benefit of the doubt rule.
The general standard of proof in veterans benefits cases–the "benefit of the doubt"
rule–provides that, "[w]hen 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." 38 U.S.C. § 5107(b). The statute's implementing regulation restates this
rule in terms of "reasonable doubt" and provides further detail on the mechanics of that rule:
When, after careful consideration of all procurable and assembled data, a reasonable
doubt arises regarding service origin, the degree of disability, or any other point, such
doubt will be resolved in favor of the claimant. By reasonable doubt is meant one
which exists because of an approximate balance of positive and negative evidence
which does not satisfactorily prove or disprove the claim. It is a substantial doubt
and one within the range of probability as distinguished from pure speculation or
remote possibility.
38 C.F.R. § 3.102 (2013). Evidence on an issue is in "approximate balance" when the evidence for
and against a finding on that issue is "almost exactly or nearly equal" or "too close to call." Ortiz
v. Principi, 274 F.3d 1361, 1364-65 (Fed. Cir. 2001); see Gilbert, 1 Vet. App. at 55-56 (analogizing
the benefit of the doubt rule to "the rule deeply embedded in sandlot baseball that 'the tie goes to the
runner'").
This "unique" standard of proof is lower than any other in contemporary American
jurisprudence and reflects "the high esteem in which our nation holds those who have served in the
15
Armed Services." Gilbert, 1 Vet. App. at 54; see Henderson v. Shinseki, 131 S. Ct. 1197, 1205-06
(2011) (noting that "[t]he contrast between ordinary civil litigation . . . and the system that Congress
created for the adjudication of veterans' benefits claims could hardly be more dramatic"). By
requiring only an "approximate balance of positive and negative evidence" to prove any issue
material to a claim for veterans benefits, 38 U.S.C. § 5107(b), the nation, "in recognition of our debt
to our veterans," has "taken upon itself the risk of error" in awarding such benefits. Id. (citing
Santosky v. Kramer, 455 U.S. 745, 755 (1982) ("[I]n any given proceeding, the minimum standard
of proof tolerated by the due process requirement reflects not only the weight of the private and
public interests affected, but also a societal judgment about how the risk of error should be
distributed between the litigants."). Thus, "[b]y tradition and by statute, the benefit of the doubt
belongs to the veteran." Gilbert, 1 Vet. App. at 54.
In keeping with the benefit of the doubt rule, Congress has not mandated that a medical
principle have reached the level of scientific consensus to support a claim for VA benefits. Instead,
Congress, through the enactment of section 5107(b)'s low standard of proof for all issues material
to a claim for veterans benefits, has authorized VA to resolve a scientific or medical question in the
claimant's favor so long as the evidence for and against that question is in "approximate balance."
Imposing a higher standard of proof would be counter to the benefit of the doubt rule. See Jones v.
Shinseki, 23 Vet. App. 382, 388 n.1 (2010) (differentiating between legal and medical standards of
proof, but declining to address that issue further except to "note that in the veterans benefits system
the benefit of the doubt as to any issue material to resolution of the claim goes to the veteran if the
evidence is in equipoise and the burden of nonpersuasion is with VA" (internal citations and
quotation marks omitted)); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (noting that the extent to
which a theory is accepted in the scientific community is a factor the Board may use in evaluating
scientific evidence, but reminding the Board that, "in a merits adjudication, the evidence need only
reach equipoise"); Bielby v. Brown, 7 Vet. App. 260, 267 (1994) (remanding for the Board to
consider medical treatises supporting a theory that the Board rejected "as lacking support in the
medical community"); 38 C.F.R. § 3.328(c) (2013) (authorizing VA to seek an independent medical
opinion when, inter alia, "the issue under consideration . . . has generated such controversy in the
medical community at large[] as to justify solicitation of [such] medical opinion"); cf. Hodges v.
16
Sec'y of Dep't of Health & Human Servs., 9 F.3d 958, 961-62 (Fed. Cir. 1993) (acknowledging that
special masters evaluating claims filed under the National Childhood Vaccine Injury Act, 42 U.S.C.
§§ 300aa-10 to 300aa-34, were bound by the "preponderance of the evidence" standard of proof set
forth in the Act and could not demand greater proof with respect to causation).
Thus, even if Dr. Calkins were correct that PTSD is not "generally accepted" in the medical
community as a risk factor for cardiovascular disease, this did not relieve the Board of its obligation
to consider and discuss the potentially favorable medical literature of record that supported Mrs.
Wise's theory of entitlement to DIC and to apply the correct standard of proof for determining that
issue. See Caluza, 7 Vet. App. at 506; 38 C.F.R. § 3.159(a)(1) (characterizing "statements conveying
sound medical principles found in medical treatises" as competent medical evidence that the Board
is required to address); see also Sacks v. West, 11 Vet. App. 314, 317 (1998) (explaining that treatise
evidence "can provide important support when combined with an opinion of a medical
professional"); cf. Hodges, 9 F.3d at 971 (Newman, J., dissenting) (explaining that, when a factfinder
must decide a scientific question on an issue that has not yet obtained scientific consensus, "the
correct legal response is to recognize the uncertain state of present diagnostic knowledge, to take
cognizance of the range of epidemiologic results that have been reported, and to decide each case
on its specific facts, in accordance with the burden of proof set in the statute"). This is not to say that
the Board is precluded from considering the extent to which a scientific theory is accepted in the
scientific community when evaluating the evidence of record, see Rucker, supra; this is simply to
make clear that the Board, when evaluating that evidence, cannot demand a level of acceptance in
the scientific community greater than the level of proof required by the benefit of the doubt rule.
As noted above, the record contains a 2000 NEJM article used by Dr. Calkins to reject a
causal connection between PTSD and cardiovascular disease (R. at 54-59), as well as several articles
linking PTSD to an increased risk of cardiovascular disease (R. at 33-39, 129-33, 208). These
contradicting articles indicate that the evidence on that issue may be in approximate balance,
triggering the Board's statutory duty to accord Mrs. Wise the benefit of the doubt.3 See 38 U.S.C.
3
Of course, evidence on an issue material to a claim "must be at least in equipoise" and, if an issue "cannot be
determined without resort to speculation, then it has not been proven to the level of equipoise" and the benefit of the
doubt rule does not apply. Chotta v. Peake, 22 Vet. App. 80, 86 (2008); see 38 C.F.R. § 3.102 (reasonable doubt is "a
substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility").
17
§ 5107(b); Ortiz, supra. However, the Board did not describe its weighing of the record evidence
for and against a causal connection between PTSD and cardiovascular disease, nor did it address
whether Mrs. Wise was entitled to the benefit of the doubt on that issue. Instead, the Board
conclusorily placed greater weight on Dr. Calkins's opinion because the "notion" that "PTSD causes
heart disease" was not generally accepted in the medical community. R. at 20-21. The Board then
found that, because the preponderance of the evidence was against the claim, the benefit of the doubt
did not apply. R. at 22. The Board's failure to give adequate reasons or bases for its weighing of the
conflicting articles and consideration of the benefit of the doubt rule as it pertains to the issue of
causation frustrates judicial review and provides a further basis for remand. See Tucker and Gilbert,
both supra.
III. CONCLUSION
Upon consideration of the foregoing, the appealed portion of the September 12, 2012, Board
decision is SET ASIDE, and that matter is REMANDED for further development and readjudication
consistent with this decision.
Mrs. Wise is free on remand to present any additional argument and evidence pertaining to
this matter 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). The Court reminds the Board that "[a]
remand is meant to entail a critical examination of the justification for [the Board's] decision,"
Fletcher v. Derwinski, 1 Vet. App. 394, 397 (1991), and must be performed in an expeditious manner
in accordance with 38 U.S.C. § 7112.
18