Barney O. Padgett v. R. James Nicholson , 19 Vet. App. 133 ( 2005 )

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO . 02-2259
BARNEY O. PADGETT , APPELLANT ,
V.
R. JAMES NICHOLSON ,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Decided April 19, 2005 )
Barton F. Stichman and James W. Stewart (non-attorney practitioner), both of Washington,
D.C., were on the pleadings for the appellant.
Tim S. McClain, General Counsel; R. Randall Campbell, Assistant General Counsel; John
D. McNamee, Acting Deputy Assistant General Counsel; Cristine D. Senseman; and Edward V.
Cassidy, Jr., all of Washington, D.C., were on the pleadings for the appellee.
Before IVERS, Chief Judge, and STEINBERG, GREENE, KASOLD, and HAGEL, Judges.*
KASOLD, Judge, filed the opinion of the Court. HAGEL, Judge, filed an opinion
concurring in part and dissenting in part. IVERS, Chief Judge, filed a dissenting opinion.
KASOLD, Judge: World War II veteran Barney O. Padgett appeals through counsel an
August 8, 2002, Board of Veterans' Appeals (Board) decision that denied his claim for VA disability
compensation for service-connected osteoarthritis of the right hip on direct, presumptive, and
secondary bases. Record (R.) at 1-20. In a July 9, 2004, panel decision of this Court issued after
oral argument, the Board's decision was vacated and the matter remanded for readjudication. On
September 14, the Court granted motions by both parties for a full-Court decision and withdrew the
panel decision. Padgett v. Principi, 18 Vet.App. 404 (2004) (en banc order). For the reasons stated
*
Judges Moorman, Lance, Davis, and Schoelen, all of whom began regular active service on the Court after
full-Court deliberations on this matter, did not participate in consideration of the appeal. See Court's Internal Operating
Procedures at V(b)(1)(C).
below, the Board's decision will be reversed in part and set aside in part, and the matter will be
remanded for further proceedings consistent with this opinion.
I. FACTS
Mr. Padgett served on active duty in the U.S. Army from January 1943 to July 1945. He is
a combat veteran who served in Europe, Africa, and the Middle East. R. at 22-23. In March 1943,
he injured his left knee as a result of slipping on ice in Plattsburgh, New York. R. at 43. In July
1944, he reinjured his left knee during combat when he jumped into a ditch seeking cover from shell
fire. R. at 54, 71. His service medical records indicate that he was diagnosed with having a sprained
left knee, chronic, severe, and synovitis of the left knee, chronic, severe, secondary to the left-knee
sprain. Id. In August 1945, a VA regional office (RO) awarded him service connection for residuals
of a left-knee injury, rated at 30% disabling. R. at 92. That rating was reduced later to 10%. R. at
149.
In September 1975, Mr. Padgett filed claims seeking service connection for arthritis-related
pain in his left leg, left hip, and the left side of his back. R. at 149. In a June 1976 decision, the RO
assigned a 30% rating for traumatic arthritis of his left knee and for a residual sprain of the left knee
with favorable ankylosis. R. at 185. The RO denied service connection for a lumbar-spine disorder
and further determined that the evidence did not indicate the existence of a current left-hip disorder.
R. at 185-87. Mr. Padgett appealed to the Board, claiming that all his arthritis had been caused by
his service-connected left-knee injury. R. at 189-92, 201. In an April 1977 decision, the Board
found that his multiple-joint arthritis, other than that of his left knee, was not incurred while in
service, aggravated by service, or caused by an in-service disease or injury, and the Board denied
his appeal. R. at 211-15.
In March 1993, Mr. Padgett filed a claim for service connection for a right-hip disorder on
the basis that the need for a right-hip replacement was caused by his left-knee disability. R. at 218.
The RO obtained treatment records from Dr. Charles H. Shaw, Mr. Padgett's private orthopedic
surgeon. In those records, Dr. Shaw noted that in 1982 Mr. Padgett was "morbidly obese" and
suffered from degenerative arthritis in the neck, spine, and knees. R. at 226. In 1988, Dr. Shaw
wrote that x-rays taken after an October 1988 automobile accident depicted, inter alia, severe
degenerative arthritis of the left knee with lesser changes in the right knee and severe degenerative
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arthritis of the right hip with lesser changes in the left hip. R. at 230. Mr. Padgett underwent a
right-total-hip arthroplasty in 1989. R. at 233-37. In 1991, Dr. Shaw also recommended a
left-total-knee arthroplasty. R. at 237.
In May 1993, the RO found that there was no evidence that his right-hip condition had been
caused by his left-knee disability and denied Mr. Padgett's claim. R. at 240, 242. Mr. Padgett
appealed to the Board. R. at 246, 260. In support of his appeal, he submitted the following
additional medical statements from his private physicians indicating that the degenerative disease
that he was experiencing in his right hip was related to his left-knee injury. In a December 1993
letter, Dr. Shaw stated:
Mr. Padgett historically sustained an injury to his left knee while in the [s]ervice.
This injury has resulted in severe endstage traumatic osteoarthritis of his knee. He
also states that he thinks he sustained an injury to his hip as a result of that same
incident. Over the years he has developed progressively increasing degenerative
disease of both his left knee and right hip.
It is my feeling that the gait abnormalities associated with the severity of the disease
involving his left knee ha[ve] adversely impacted the progression of the degenerative
disease of his right hip and have in fact aggravated his symptoms with it. It is my
feeling that the degenerative disease that he has experienced in his right hip is related
to his original injury.
R. at 262.
In a January 1994 letter, Dr. Robert Thoburn, a private specialist in internal medicine and
rheumatology, stated:
[Mr. Padgett] had an injury to the left knee while in the service. This has progressed
to severe osteoarthritis of the left knee secondary to trauma. He thinks he sustained
an injury to the right hip and has progressive pain and stiffness of the right hip.
He has an endstage left knee that has resulted in weight shifting to the right side. It
is likely that this has resulted in progression of osteoarthritis of the right hip. It is
consistent that the osteoarthritis of the right hip and left knee are related to the
original injury.
R. at 261.
Mr. Padgett also submitted an October 1993 letter from Dr. James A. Rawls, in which Dr.
Rawls stated that he had treated Mr. Padgett for almost 30 years and noted that "a major problem
most of this time has been osteoarthritis involving the weight-bearing joints, knees, hips, and low
back." R. at 263. Mr. Padgett also submitted a June 1979 letter from Dr. Rawls that noted Mr.
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Padgett's left-knee pain, but Dr. Rawls did not comment specifically on Mr. Padgett's gait or right-
hip disability. R. at 265-67. In March 1994, after reviewing this newly submitted evidence, the RO
continued to deny the claim. R. at 272-74.
In May 1994, Mr. Padgett filed a Notice of Disagreement with respect to the March 1994 RO
decision and, in December 1994, he was afforded a hearing before the RO. At the hearing, Mr.
Padgett testified under oath that he had injured his right hip while in service at the same time that
he had reinjured his left knee in 1944. R. at 296-97. In January 1995, after finding that the evidence
did not provide a sufficient basis for service connection on either a direct or secondary basis, the RO
again denied Mr. Padgett's claim R. at 303-04.
Mr. Padgett appealed that January 1995 RO decision to the Board (R. at 319) and submitted
additional statements from Dr. Thoburn and Dr. Shaw (R. at 325, 340). In a November 1995 letter,
Dr. Thoburn opined: "It is my feeling that a shift in weight [because of his altered gait] plus his size
and obesity contributed to accelerated osteoarthritis of his right hip," thereby leading to a total
right-hip replacement. R. at 325. In an October 1996 statement, Dr. Shaw opined that Mr. Padgett's
irregular gait pattern resulting from his left-knee injury increased symptoms in his right hip, which
ultimately required right-hip replacement. R. at 340. Dr. Shaw concluded that "[Mr. Padgett's]
war-related injury directly aggravated his symptoms with respect to his hip." Id.In April 1997, the Board remanded the case to the RO to (1) adjudicate Mr. Padgett's claim
for compensation based on direct service connection, (2) reconsider his claim for compensation
based on a secondary basis as a result of the Court's decision in Allen v. Brown, 7 Vet.App. 439(1995) (en banc) (holding that veteran may be awarded compensation for aggravation of
non-service-connected condition by service-connected disability), and (3) afford him a hearing
before a traveling section of the Board. R. at 354-57.
In June 1997, Mr. Padgett underwent a VA examination by Dr. F. Henderson. R. at 360-63.
Dr. Henderson concluded that Mr. Padgett suffered from multijoint "degenerative joint disease" that
was "a consequence of the aging process" rather than any one specific injury. Id. at 363. However,
he also stated that Mr. Padgett's left-knee injury may have "played a part in the damage that later
required a left-knee replacement, but not necessarily a hip replacement." Id. In addition, Dr.
Henderson noted that he had not reviewed the claims file and that a certified orthopedist should
review the case "for a more definitive opinion." R. at 361, 363.
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During a February 1999 Board hearing, Mr. Padgett again testified under oath that he had
injured his right hip at the same time he had reinjured his left knee in 1944. R. at 393-410. In a July
1999 letter, the Board requested an expert medical opinion from the chief of staff of the Columbia,
South Carolina, VA Medical Center (VAMC). R. at 413-15. As its authority for requesting the
opinion, the Board's letter cites Veterans Health Administration Directive 10-95-040 (April 17,
1995), 38 C.F.R. § 20.901 (1999), and 38 U.S.C. § 7109. R. at 413. Dr. John K. Blincow, a VA
employee, was tasked by the Chief of Staff of the VAMC to review Mr. Padgett's claims file and
provide to the Board the requested advisory medical opinion. See R. at 413-20. After examining
Mr. Padgett's claims file, Dr. Blincow concluded that (1) Mr. Padgett's right-hip disorder was caused
by age-related degenerative arthritis and was not related to his in-service left-knee injury or a gait
abnormality and (2) his left-knee disability did not aggravate or cause an increase in severity of his
right-hip arthritis. R. at 418-20.
On August 8, 2002, the Board issued the decision on appeal. R. at 1-19. In its decision, the
Board accorded the VA medical opinions more weight than the opinions rendered by Mr. Padgett's
private physicians. R. at 14-18. The Board found that the opinions of the private physicians were
"equivocal and apparently unsubstantiated [in] nature." R. at 16. In contrast, the Board stated that
"both of [the VA opinions] have tremendous probative value as both were based on a thorough
review of the claims file, which is essential [to] formulating a sound opinion." Id. The Board found
that the medical evidence of record did not indicate a nexus between an in-service injury to Mr.
Padgett's right hip and his current right-hip disability or that his right-hip disability manifested
within one year after his discharge, and thus denied service connection on direct and presumptive
bases. R. at 14-17. The Board also denied Mr. Padgett's claim for secondary service connection,
after finding that Mr. Padgett's right-hip injury was not related to his service-connected left-knee
disability. R. at 17-18.
On appeal, Mr. Padgett argues, inter alia, that (1) the Board erred in relying on the June 1997
VA medical opinion rendered by Dr. Henderson because he did not review Mr. Padgett's claims file,
did not discuss the positive medical evidence in the claims file, and did not consider the fact that Mr.
Padgett had injured his right hip in combat (Appellant's Brief (Br.) at 17-18); (2) the Board did not
have the authority under the then-existing regulation, 38 C.F.R. § 20.901, to secure the 1999 VA
expert medical opinion of Dr. Blincow, and even if the Board had the authority to obtain such an
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opinion, under section 7104(a), title 38, U.S. Code, and Disabled American Veterans v. Secretary
of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003) [hereinafter DAV v. Sec'y], the Board could not
consider that opinion without first remanding the matter to the agency of original jurisdiction or
obtaining Mr. Padgett's waiver (Appellant's Br. at 20-24); (3) the Board's finding that Mr. Padgett's
right-hip condition is not related to an in-service injury or his service-connected left-knee disability
is clearly erroneous because the private medical opinions of record provide the required etiological
relationship for service connection to be awarded (Appellant's Br. at 15-16); and (4) because the
Board could not properly rely on either of the VA medical opinions, the only medical opinions
properly before the Board or the Court are those that support Mr. Padgett's claim and therefore the
Court should reverse the Board's decision denying his claim (Appellant's Br. at 25). In the
alternative, Mr. Padgett argues that the Court should remand the case for the Board to correct the
errors that he identified and to ensure compliance with the notice and assistance requirements of
sections 5103(a) and 5103A, title 38, U.S. Code. Appellant's Br. at 26 n.2.
The Secretary filed an initial brief in which he argued primarily for a remand, based on his
failure to comply with notice duties under section 5103(a). Secretary's (Sec'y) Br. at 7-13.
However, Mr. Padgett "waive[d] this Court's consideration [of] the errors relating to the . . . duty to
notify discussed in . . . the Secretary's brief." Appellant's Reply Br. at 1-2. The Secretary, with
leave of the Court, then filed a sur-reply brief in order to address Mr. Padgett's other arguments.
Although the Secretary agrees with Mr. Padgett that the Board erred in relying on the 1997 VA
medical opinion of Dr. Henderson (Sec'y Br. at 10), the Secretary argues that the Board had the
authority under section 7109(a) and § 20.901 (2002) to obtain the 1999 VA medical opinion of Dr.
Blincow, and that opinions obtained pursuant thereto do not require remand to the RO for initial
consideration (Sec'y Sur-Reply Br. at 3-7).
In Mr. Padgett's response to the Secretary's sur-reply brief, he argues, inter alia, that Dr.
Blincow's medical opinion did not fit under any exception to section 7104(a) that would allow the
Board initially to consider additional evidence. Appellant's Response to Sec'y Sur-Reply Br. at 2-6.
In his motion for a full-Court decision, the Secretary argues that section 7109(a) is a clear exception
to section 7104(a) and that the United States Court of Appeals for the Federal Circuit (Federal
Circuit) found in DAV v. Sec'y that the exception exists, thereby precluding this Court from holding
otherwise. Sec'y Motion (Mot.) at 3. Mr. Padgett argues in his cross-motion for a full-Court
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decision that the Court has full authority to review the Board's factual findings for clear error.
Appellant's Mot. at 3.
II. ANALYSIS
Mr. Padgett raises two issues concerning the Board's consideration of Dr. Blincow's 1999
expert medical opinion. First, he argues that the Board failed to follow applicable regulatory
procedures in obtaining this medical opinion, thereby rendering its use invalid. Second, he argues
that even if the Board had the statutory and regulatory authority to "secure" the opinion, it did not
have the statutory authority to "consider" it in the first instance, absent a waiver from Mr. Padgett.
We will address each of these contentions in turn.
A. Regulatory Authority to Secure and Consider 1999 Expert
Medical Opinion of Dr. Blincow
Before rendering its decision, the Board requested an expert medical opinion from the Chief
of Staff of the VAMC in Columbia, South Carolina. Mr. Padgett argues that the Board lacked the
authority under the law in effect at the time to ask the Chief of Staff to provide a medical opinion
because the regulations provided only that such an opinion could be solicited from VA's Chief
Medical Director (also known as the Under Secretary for Health), and made no reference to any
other person, including a Chief of Staff of a VAMC. See Appellant's Br. at 20; see also 38 C.F.R.
§ 20.901(a).
After obtaining the expert medical opinion but during the pendency of the Board decision,
the Secretary amended § 20.901(a) to authorize the Board to obtain a medical opinion from any
appropriate health-care professional within VA, not just the Chief Medical Director. See Rules of
Practice: Medical Opinions From the Veterans Health Administration, 66 Fed. Reg. 38,158, 38,159
(July 23, 2001); compare 38 C.F.R. § 20.901(a) (1999) with 38 C.F.R. § 20.901(a) (2002). Given
this modification of the regulation, the Court cannot and does not find that Mr. Padgett was
prejudiced by the Board's solicitation in 1999 of Dr. Blincow's expert medical opinion because the
Board had clear regulatory authority to take such action and consider Dr. Blincow's opinion in 2002,
when it ultimately relied upon it and rendered the decision here on appeal. See 38 U.S.C.
§ 7261(b)(2) (Court shall take due account of rule of prejudicial error).
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B. Statutory Authority to Secure and Consider
Expert Medical Opinion
Mr. Padgett also argues that, even if obtaining or securing Dr. Blincow's opinion was
permissible by regulation, the Board could not rely upon Dr. Blincow's medical opinion in the first
instance, absent the claimant's waiver, because it would deny Mr. Padgett his right to "one review
on appeal to the Secretary" as provided for by 38 U.S.C. § 7104(a); see also DAV v. Sec'y, supra.Although Mr. Padgett focuses on the Board's authority – or lack thereof – to "consider" Dr.
Blincow's opinion in the first instance, it is essential that we first examine the statutory authority of
the Board to "secure" the opinion. For the reasons set forth below, we conclude that in section
7109(a) the United States Congress statutorily recognized and sanctioned the practice of the Board
to secure expert medical opinions from VA employees and thereby provided statutory authority for
that practice. We also find that the authority of the Board to secure a medical opinion includes the
authority for the Board to consider that opinion.
1. Board May Secure Expert Medical Opinions
At the outset, we note that the Court already has addressed on several occasions the Board's
use of medical opinions it obtained, and concluded, either directly or implicitly, that the Board had
the authority to secure medical expert opinions from both VA and non-VA employees. See, e.g.,
Winsett v. West, 11 Vet.App. 420, 426 (1998) (holding that section 7109(a) does not preclude Board
from obtaining medical opinions not rendered from outside VA); Perry v. Brown, 9 Vet.App. 2, 6
(1996) (stating that, in event that medical-nexus opinion was needed on remand, "Board may seek
to obtain that development itself through a [VA] or non-VA [medical expert] opinion"); Thurber v.
Brown, 5 Vet.App. 119, 120-21 (1993) (commenting that section 7109 assumes, although does not
specifically authorize, Board's obtaining opinions of VA medical experts, and holding that 38 C.F.R.
§ 20.901(a) authorizing such action is a valid promulgation pursuant to statutory sections 7109 and
5107(a)); see also Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-45
(1984) (Court gives deference to executive department's regulation making reasonable interpretation
of statutory scheme). In light of the subsequent issuance of the Federal Circuit's opinion in DAV v.
Sec'y, however, we feel constrained to examine this question anew and thus proceed to do so.
In DAV v. Sec'y, the Federal Circuit held that a regulation authorizing the Board to obtain
additional evidence without remand to an RO for initial consideration of that evidence violated the
8
statutory requirement in section 7104(a) that there be one appellate review of the Secretary's
decisions. See DAV v. Sec'y, 327 F.3d at 1353 (invalidating 38 C.F.R. § 19.9(a)(2) (2000)).
Although the Federal Circuit concluded that section 7104(a) generally precluded the Board from
considering new evidence in the first instance, absent waiver by the claimant, that court recognized
that Congress could make exceptions, and further noted that Congress had explicitly done so with
regard to expert medical opinions in at least two statutory provisions as implemented by regulation.
Specifically, the Federal Circuit stated:
[W]hen Congress intended to authorize the Board to obtain additional evidence
without "one review on appeal to the Secretary," it knew how to do so. Congress has
provided express statutory authority to permit the Board to obtain additional
evidence, such as expert medical opinions in specific cases. See, e.g., 38 U.S.C.
§ 5107(a) (2000) (authorizing Board to obtain medical opinions from VA's Under
Secretary for Health (formerly the Chief Medical Director)); 38 U.S.C. § 7109(2000) (authorizing Board to obtain independent medical opinions from outside the
VA); 38 C.F.R. § 20.901(a) (2002) (authorizing Board to obtain opinions from the
Veterans Health Administration); 38 C.F.R. § 20.901(b) (authorizing Board to obtain
medical opinions from the Armed Forces Institute of Pathology).
DAV v. Sec'y, 327 F.3d at 1347-48. Although we note that former section 5107(a) (now 38 U.S.C.
§ 5103A(d)) did not expressly authorize the Board to obtain or secure medical opinions, the import
of the Federal Circuit's analysis, at least as it relates to this case, is that court's recognition that
Congress may provide an exception to the one-appellate-review requirement of section 7104(a), and
that Congress did so in section 7109. We agree.
"The starting point in interpreting a statute is its language, for 'if the intent of Congress is
clear, that is the end of the matter.'" Gardner v. Brown, 5 F.3d 1456, 1456 (Fed. Cir. 1993)
[hereinafter Gardner II], aff'd, 513 U.S. 115 (1994). "Determining a statute's plain meaning requires
examining the specific language at issue and the overall structure of the statute." Gardner v.
Derwinski, 1 Vet.App. 584, 586 (1991) [hereinafter Gardner I], aff'd sub nom. Gardner II, 5 F.3d
1456 (Fed. Cir. 1993), aff'd, 513 U.S. 115 (1994); see also Splane v. West, 216 F.3d 1058, 1068-69
(Fed. Cir. 2000) ("canons of construction . . . require us to give effect to the clear language of a
statute and avoid rendering any portions meaningless or superfluous"); Gardner I, 1 Vet.App. at
587-88 ("Where a statute's language is plain, and its meaning clear, no room exists for construction.
There is nothing to construe."). Where the plain meaning of a statute is discernible, that "plain
meaning must be given effect unless a 'literal application of [the] statute will produce a result
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demonstrably at odds with the intention of its drafters.'" Gardner I, 1 Vet.App. at 587 (quoting
Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571 (1982)).
Section 7109(a) authorizes the Board to secure expert medical opinions when deemed
necessary. Although this section authorizes the Board to secure these opinions from experts who
are not employees of VA, it also recognizes and sanctions the Board's practice to secure such
opinions from medical experts employed by VA. Section 7109(a) states in relevant part:
When, in the judgment of the Board, expert medical opinion, in addition to that
available within the Department [of Veterans Affairs], is warranted by the medical
complexity or controversy involved in an appeal case, the Board may secure an
advisory medial opinion from one or more independent medical experts who are not
employees of the Department.
38 U.S.C. § 7109(a) (emphasis added).
Although section 7109(a) does not explicitly authorize the Board to secure expert medical
opinions from experts within VA, the phrase "in addition to that available within the Department
[of Veterans Affairs]" is an express sanctioning of the practice of the Board to use such experts.
The inclusion of this reference to the Board's existing practice within the statutory authority for the
Board to use experts outside VA, creates a strong implication that Congress was recognizing and
approving the existing practice of the Board to secure medical opinions from experts within VA.
Moreover, to the extent that there is any doubt, the legislative history of section 7109(a)
demonstrates that this recognition of the Board's practice of using VA medical experts in addition
to outside medical experts was a deliberate action by Congress. See Steadman v. SEC, 450 U.S. 91,
101 (1981) (Court may look to legislative history to reveal Congress' intent). The principal purpose
of the section that eventually became section 7109 was to provide the Board with the authority to
secure an advisory medical opinion from independent medical experts who were not employees of
VA. See Pub. L. No. 87-671, 76 Stat. 557 (1962); 38 U.S.C. § 4009 (1962) (redesignated as section
7109 by Pub. L. No. 12-40, § 402(b)(1), 105 Stat. 238 (1991)). The House-passed version of the bill
would have required the VA chief medical director to "render an opinion to the Board on the
medical aspects of the case" in every case in which (1) an RO had denied a service-connection
claim, (2) medical evidence had been submitted that tended to support the claim, and (3) the case
was appealed and such an opinion was requested. In such cases, the opinion would have to "be
considered by the Board." H.R. REP. NO . 87-1453, at 2 (1962) (to accompany H.R. 852); see also
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H.R. 852, 87th Cong. (2d Sess.), § 1 (adding new section 4009 to title 38, U.S. Code) (as reported
Mar. 19, 1962); 108 CONG . REC. 5519 (Apr. 2, 1962) (House passage of reported bill). In addition,
after a claim had been disallowed, reopened, and again denied, the House-passed bill also would
have required the Chief Medical Director, upon request after appeal to the Board, to refer the case
to an independent medical-expert advisory panel for review, and it would have made the opinion of
that panel "binding upon the Board." Id.
The United States Senate committee considering the bill amended it by dropping the mandate
to the Chief Medical Director and the Board, thereby leaving "the use of independent medical
experts permissive with the Board rather than mandatory as would have been required by the bill
as passed by the House of Representatives." S. REP. NO . 87-1844 (1962), reprinted in
1962 U.S.C.C.A.N. 2585, 2586. It explained its action by noting that the bill it was reporting made
"no reference to the Board of Veterans' Appeals securing an advisory opinion from the Chief
Medical Director of the Veterans' Administration since this is a matter within Agency discretion
and ample authority for this practice now exists." Id. (emphasis added); see H.R. 852, 87th Cong.
(2d Sess.), § 1 (amending proposed section 4009 in House-passed bill) (reported Aug. 6, 1962). The
Senate version of the bill authorizing the Board to seek expert medical opinions "in addition to that
available within the Department," was concurred in by the United States House of Representatives,
108 Cong. Rec. 18406 (Sept. 4, 1962), and thereafter was enacted. By adding this language, instead
of the House mandatory language, Congress recognized and approved the continuing authority of
the Board to seek expert medical opinions from medical experts employed by VA in addition to the
newly granted authority to secure such opinions from medical experts outside VA. This recognition
is demonstrated by the Explanatory Statement on Compromise Agreement on Division A,
accompanying the enactment of the Veterans Judicial Review Act, Pub. L. 100-687, § 103(a)(1),
102 Stat. 4105 (1988), which, inter alia, modified then-section 4009 and stated that "[t]he
Committees . . . note with approval the current practice of obtaining [expert medical] opinions" from
within VA. 134 Cong. Rec. S16653 (1988), reprinted in 1988 U.S.C.C.A.N. 5834, 5842. Thus, we
hold that section 7109 provides statutory authority for the Board to secure medical opinions from
both VA and other medical experts.
We now address Mr. Padgett's argument that the plain wording of section 7109(a) authorizes
the Board only to secure, not to consider in the first instance, an expert medical opinion, and that
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this means that the Board is required to return a case to the RO for initial consideration of any expert
medical opinion that the Board might secure. For the reasons stated below, we reject this
interpretation.
2. Board Initially May Consider Expert Medical Opinions It Secures
Although Mr. Padgett correctly notes that section 7109(a) authorizes the Board to "secure"
expert medical opinions and does not explicitly state that the Board may "consider" those opinions
in the first instance, his interpretation of the statute to mean that the Board is precluded from so
considering them is inconsistent with the analysis of DAV v. Sec'y, supra, as well as the discussion
in Perry and Thurber, both supra. Mr. Padgett's interpretation is also inconsistent with the statutory
scheme and the legislative purpose behind section 7109 and it would produce absurd results.
a. DAV v. Sec'y, Perry, and Thurber: In DAV v. Sec'y, the Federal Circuit stated: "[W]hen
Congress intended to authorize the Board to obtain additional evidence without 'one review on
appeal to the Secretary,' it knew how to do so." 327 F.3d at 1347-48. If the Federal Circuit was
addressing only the obtaining (or securing) of evidence in its narrowest sense, as Mr. Padgett would
have us construe those terms, then there would have been no need for the Federal Circuit to note that
Congress knew how to authorize the Board to obtain such evidence "without 'one review on appeal
to the Secretary'" because the mere obtaining of evidence by the Board (without review) could not
violate the one-appellate-review requirement of section 7104(a); only the Board's consideration of
such evidence could possibly do so. We view the Federal Circuit's conclusion in this respect as
integral to its analysis of section 7104(a) and therefore not dictum. See generally Co-Steel Raritan,
Inc. v. Int'l Trade Comm'n, 357 F.3d 1294, 1307-08 (Fed. Cir. 2004) (defining dictum as language
that is unnecessary to decision in case) (citing BLACK'S LAW DICTIONARY 1100 (7th ed. 1999)); see
also DaimlerChrysler Corp. v. United States, 361 F.3d 1378, 1385 n.3 (Fed. Cir. 2004) (noting that,
even if dictum, court "would feel obligated to follow the Supreme Court's explicit and carefully
considered statements"); Ins. Co. of the West v. United States, 243 F.3d 1367, 1372 (Fed. Cir. 2001)
(same); Stone Container Corp. v. United States, 229 F.3d 1345, 1349-50 (Fed. Cir. 2000) (same).
Moreover, consistent with DAV v. Sec'y, this Court has implicitly recognized the propriety of the
Board's consideration of medical opinions it obtains. See Perry, 9 Vet.App. at 6 (stating that on
remand the Board could develop a case itself through use of a VA medical expert opinion); Thurber,
12
5 Vet.App. at 126, (noting that notice to a claimant and opportunity to respond were required before
Board could rely on a VA medical expert opinion that it obtained).
Even if the language in DAV v. Sec'y was not binding upon us, based on the following
analysis we agree with the Federal Circuit's conclusion as to section 7109.
b. Statutory Scheme: Although the plain language of the statute – here authorizing the Board
to "secure" an expert medical opinion from both VA and non-VA medical experts – is the starting
point of an analysis of that statute, see Gardner II, Splane, and Gardner I, all supra, it is not the
totality of analysis. When interpreting the meaning of a statute, "each part or section of a statute
should be construed in connection with every other part or section so as to produce a harmonious
whole" and "it is not proper to confine interpretation to the one section to be construed." 2A N.
SINGER , SUTHERLAND ON STATUTORY CONSTRUCTION § 46:05 (6th ed. 2000) [hereinafter
SUTHERLAND ]. That is, "the court will not only consider the particular statute in question, but also
the entire legislative scheme of which it is a part." SUTHERLAND , § 46:05; see also King v. St.
Vincent's Hosp., 502 U.S. 215, 221 (1991) (when interpreting statute, court is required to look at
context and provisions of law as a whole); Imazio Nursery, Inc. v. Dania Greenhouses, 69 F.3d
1560, 1564 (Fed. Cir. 1995) (all parts of a statute must be construed together without according
undue importance to single or isolated portion). Moreover, a "statute should be construed so that
effect is given to all its provisions, so that no part will be inoperative or superfluous, void or
insignificant, and so that one section will not destroy another unless the provision is the result of
obvious mistake or error." SUTHERLAND , § 46:06; see also Splane, supra.The statutory scheme pertinent to our review in this case includes separate authorities for the
Secretary to obtain medical opinions at the RO level. See 38 U.S.C. §§ 5103A(d), 5109. Those
medical opinions are first considered by an RO, whose decisions can be appealed to the Board. See
38 U.S.C. §§ 7104(a), 7105. Section 7109(a) gives the Board separate and independent authority
to secure advisory medical opinions when, "in the judgment of the Board, expert medical opinion,
in addition to that available within the Department, is warranted by the medical complexity or
controversy involved in an appeal case". 38 U.S.C. § 7109(a). Considering these provisions in
concert, the Court concludes that it would have been incongruous for Congress to have given
discretionary authority to the Board to obtain a medical opinion but require initial review of that
opinion by the RO, which already had an opportunity to seek and review medical opinions obtained
13
under its own separate authority in 38 U.S.C. § 5109. Unlike DAV v. Sec'y, this is not a case
involving regulatory authority for the Board to consider evidence that conflicts with a statutory right
to one review on appeal. Rather, the authority issue here involves the statutory scheme itself.
Requiring the Board to send information that it is statutorily permitted to secure back to the RO for
initial consideration is inconsistent with the overall statutory scheme and the intent of Congress
(described below in part II.B.1.c) that the Board resolve conflicts in evidence.
Our conclusion that Congress intended for the Board to consider the expert opinions that it
obtained under section 7109(a) is further supported by the fact that Congress also provided due-
process protections. Subsection (c) of section 7109 requires the Board to furnish notice and a copy
of the opinion to the claimant. See Winsett, 11 Vet.App. at 426 ("subsection (c) of section
7109[, by] requir[ing] notice and provision of a copy of the [VA] opinion to a claimant (as does
section 5109[(c)]), merely restates the procedural process due a claimant under higher law before
a decision is made"); 38 C.F.R. § 20.903(a) (2004) (Board to give claimant notice and opportunity
to respond to evidence obtained under § 20.901, the regulation implementing section 7109(a)); see
also Thurber, 5 Vet.App. at 122 (concluding that 38 C.F.R. § 20.903, which requires notification
to claimant of use by Board of expert medical opinion and opportunity to respond, "applies to both
independent and VA opinions"). If an expert opinion obtained by the Board had to be sent to the
RO before it could be considered by the Board, there would be no need for the Board to provide
notice and a copy to the claimant because the RO is otherwise required to do so. See 38 U.S.C.
§ 5109(c); 38 C.F.R. § 3.328(d) (2004).
c. Legislative Purpose: The express purpose for enacting the provision that is now codified
as section 7109 was "to improve the appellate procedures applicable to veterans' claims by
authorizing the referral of such claims to independent medical experts" in order to "resolve conflicts
of evidence in questions involving service connection of disabilities or deaths." S. REP. NO . 1844
(1962), reprinted in 1962 U.S.C.C.A.N. 2585, 2585-86. The interpretation of the scheme urged by
Mr. Padgett, i.e., remanding to the RO for initial consideration of expert medical opinions requested
and obtained by the Board pursuant to section 7109(a), does nothing to improve the referenced
appellate procedures. We believe that it is difficult, if not impossible, to escape the conclusion that
Congress, by specifically referencing appellate procedures and by vesting in the Board (VA's
14
appellate body) the authority to procure such expert medical opinions, intended that the Board be
able both to procure and to review the medical opinions obtained under section 7109(a).
d. Avoiding Absurd Results: Finally, Mr. Padgett's interpretation of section 7109(a) would
lead to absurd results. See United States v. X-Citement Video, Inc., 513 U.S. 64, 68-69 (1994)
("Some applications of respondent's position would produce results that were not merely odd, but
positively absurd . . . . We do not assume that Congress, in passing laws, intended such results.");
Timex V.I., Inc. v. United States, 157 F.3d 879, 886 (Fed. Cir. 1998) ("statutory construction that
causes absurd results is to be avoided if at all possible"). It would be absurd to conclude that
Congress authorized the Board to "secure" but not "consider" VA expert medical opinions, when
the Board was already authorized to remand matters to the RO for consideration, and the RO was
authorized to obtain and consider VA expert medical opinions. See 38 U.S.C. §§ 5103A(d), 5109.
The incongruity of a conclusion that the Board is authorized to obtain, but not consider in the first
instance, an expert medical opinion is further illustrated by the application of that conclusion to
another section of the statutory scheme, section 7107, title 38, U.S. Code. Under section 7107, if
Mr. Padgett's position that the Board can do only what is explicitly authorized is correct, then the
Board could hold a hearing and record Mr. Padgett's testimony but, because section 7107 fails to
state explicitly that the Board can consider his testimony in the first instance, the hearing transcript
would have to be sent to the RO for initial consideration (where Mr. Padgett may already have had
a hearing, see, e.g., 38 U.S.C. § 7105(a) (stating that, after the filing of a Notice of Disagreement,
"[e]ach appellant will be accorded hearing . . . rights"); 38 C.F.R. §§ 3.103(a) (requiring notice of
right to hearing and citing 38 U.S.C. § 501(a) as statutory authority for this right); 3.105(i)
(affording claimant opportunity for hearing prior to severance of service connection, reduction in
compensation or pension, and other reductions and discontinuances) (2004)). This would mean that
the Board could no longer assess in the first instance the credibility of the hearing testimony of a
claimant, a well-recognized role of the Board. See Cuevas v. Principi, 3 Vet.App. 542, 547 (1992)
(noting that Board is required to "address the credibility of appellant's sworn testimony or provide
reasons for discounting that testimony"); Wilson v. Derwinski, 2 Vet.App. 16, 20 (1991) (same);
Smith v. Derwinski, 1 Vet.App. 235, 237-38 (1991) ("[d]etermination of credibility is a function for
the [Board]"). Because Mr. Padgett's interpretation would lead to the above absurd results, it should
be avoided.
15
3. Summary
In summary, we conclude that section 7109(a) gives the Board the authority to secure expert
medical opinions from both VA and non-VA medical experts, and that such authority includes the
authority to consider in the first instance the information so obtained and does not conflict with the
section 7104(a) right to one appellate review, particularly given the fact that due-process protections
are provided in the statute and regulation, 38 U.S.C. § 7109(a); 38 C.F.R. § 20.903(a). This
conclusion, in effect, reaffirms Thurber, supra, and is consistent with DAV v. Sec'y, supra.
Accordingly, the Court holds that the Board's consideration of Dr. Blincow's expert medical opinion
was fully consistent with the statutory scheme as an exception to, and not in conflict with, the "one
review on appeal to the Secretary" provision of section 7104(a).
III. REMEDY
Mr. Padgett seeks reversal of the Board decision based on his argument that the Board could
not properly rely on either VA medical opinion, leaving the opinions of Drs. Shaw and Thoburn as
the only medical opinions properly before the Board. Although the Court rejects the contention that
the Board could not consider the VA medical opinions for any purpose, we nevertheless find
reversal appropriate as to the denial of Mr. Padgett's secondary-service-connected right-hip-
disability claim. Additionally, remand is appropriate with regard to his claims for presumptive and
direct service connection for his right-hip disability.
A. Board Decision as to Secondary Service Connection for
Right-Hip Disability will be Reversed
Secondary service connection may be granted for any disability that is proximately due to
or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2004); see Allen,
7 Vet.App. at 448 (allowing secondary service connection for aggravation of non-service-connected
condition by service-connected disability). The Board's decision regarding the finding of secondary
service connection is a finding of fact that the Court reviews under the "clearly erroneous" standard
of review set forth in 38 U.S.C. § 7261(a)(4). See Harder v. Brown, 5 Vet.App. 183, 187 (1993).
In this regard, section 7261(a)(4) directs the Court to "reverse or set aside" any "finding of material
fact adverse to the claimant . . . if the finding is clearly erroneous." 38 U.S.C. 7261(a)(4). "'A
finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on
16
the entire evidence is left with the definite and firm conviction that a mistake has been
committed.'" Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) (emphasis added) (quoting United
States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). Of course, if the Board's "'account of the
evidence is plausible in light of the record viewed in its entirety, the court of appeals may not
reverse it.'" Gilbert, 1 Vet.App. at 52 (quoting Anderson v. City of Bessemer City, 470 U.S. 564,
573-74 (1985)).
Additionally, when assessing the factual determinations of the Board, the Court is required
by 38 U.S.C. § 7261(b)(1) to "take due account" of the application of 38 U.S.C. § 5107(b), the
"benefit-of-the-doubt" rule in every case. Under this rule, the Secretary is charged with the duty to
consider all information and evidence of record and, when there is an "approximate balance of
positive and negative evidence regarding any issue material to the determination of the matter, the
Secretary shall give the benefit of the doubt to the claimant." 38 U.S.C. § 5107(b); see also Mariano
v. Principi, 17 Vet.App. 305, 313 (2003) (also referring inferentially to benefit-of-the-doubt rule as
"equipoise standard"); 38 C.F.R. § 3.102 (2004). Put another way, under the benefit-of-the-doubt
rule, "the preponderance of the evidence must be against the claim for benefits to be denied."
Gilbert, 1 Vet.App. at 54; see Robinette v. Brown, 8 Vet.App. 69, 76 (1995) ("the unique evidentiary
burdens in the VA adjudication system . . . permit a merits disallowance only where the evidence
preponderates against the claim"); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001)
("benefit of the doubt rule may be viewed as shifting the 'risk of nonpersuasion' onto the VA to
prove that the veteran is not entitled to benefits"). In application, this rule creates a preponderance-
against-the-claim evidentiary standard that applies to every finding of material fact. See Mariano,
Robinette, and Gilbert, all supra. The Court cannot carry out its section 7261(b) responsibility to
"review the record of proceedings before the Secretary and the Board . . . and . . . take due account
of the Secretary's application of section 5107(b)", 38 U.S.C. § 7261(b), (b)(1), without referring to
the probativeness of the evidence that the Board weighed in finding that the evidence preponderated
against the claim. Indeed, that is exactly what the Court did three times in its opinion in Mariano,
17 Vet.App. at 313-17.
Although in Gilbert the Court indicated that a review of the Board's application of the
benefit-of-the-doubt rule would be under the "arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law" standard of review pursuant to 38 U.S.C. § 7261(a)(3)(A),
17
Gilbert, 1 Vet.App. at 58 (dictum), such a review was not carried out there because the Court
concluded that the Board's statement of reasons or bases was inadequate, thereby warranting
remand, id. at 59. More recently, the Court held that it reviews the "outcome" of the Board's
application of the benefit-of-the-doubt rule under the "clearly erroneous" standard of review set forth
in 38 U.S.C. § 7261(a)(4), and then proceeded to apply that standard of review. Mariano, supra
(quoting Roberson v. Principi, 17 Vet.App. 135, 146 (2003)). Accordingly, if the Court has "'the
definite and firm conviction that a mistake has been committed'" by the Board in finding that the
evidence preponderated against the claim on a finding of material fact, then section 7261(a)(4) and
section 7261(b)(1) require that such finding be held clearly erroneous and be reversed or set aside.
Gilbert, supra (quoting U.S. Gypsum Co., supra (reversing lower Court's finding of fact under
"clearly erroneous" standard of review)); see also Veterans Benefits Act of 2002 (VBA), Pub. L. No.
107-330, § 401, 116 Stat. 2820, 2832 (enacting section 7261(b)(1) and revising section 7261(a)(4));
Mariano, supra (noting "clearly erroneous" standard of review applies to assessment of "outcome
of the Board's application" of benefit-of-doubt rule, thrice holding Board's application of section
5107(b) clearly erroneous, and twice reversing it and once setting it aside); Roberson, 17 Vet.App.
at 147 (noting no change to "clearly erroneous" standard of review). But see Wells v. Principi,
18 Vet.App. 33, 39 (2004) (en banc order) (Steinberg, J., dissenting to denial of full-Court decision)
(opining that VBA brought "about a major expansion of the Court's responsibilities as to review of
BVA factfinding").
The Secretary argues that the Court cannot hold clearly erroneous a Board finding unless the
evidence is uncontroverted against the Board's finding; specifically, the Secretary states:
Reversal by the Court is warranted only when there is absolutely no plausible
basis for the [Board's] decision and where the [Board's] decision is clearly erroneous
in light of the uncontroverted evidence in [the a]ppellant's favor. Hicks v. Brown,
8 Vet.App. 417, 422 (1995). The medical evidence regarding nexus or aggravation
in this case is controverted, so reversal is not appropriate.
Sec'y Sur-Reply at 3. The Hicks language cited by the Secretary as authority for not finding clear
error unless the evidence is uncontroverted was derived from Hersey v. Derwinski, 2 Vet.App. 91,
95 (1992), where it was used to describe how strong the claimant's evidence was – it was
"uncontroverted". This characterization of the evidence in Hersey was not presented as a new or
different criterion for "clearly erroneous" review. See Hicks, supra; see also Wells v. Principi,
18
18 Vet.App. 33, 47-48 (en banc order) (Steinberg, J., dissenting to denial of full-Court decision)
(analyzing Hicks and Hersey in relation to Anderson, U.S. Gypsum Co., and Gilbert); id at 49-51
(Kasold, J., dissenting to denial of full-Court decision) (same).
It is clear from U.S. Gypsum Co., Mariano, and Gilbert that the existence of some
controverting evidence (that is, evidence that is not in the appellant's favor) does not preclude this
Court from carrying out the mandates in section 7261(a)(4) and (b)(1) to "review the record of
proceedings before the Secretary and the Board" and then to "take due account of the Secretary's
application of [the] section 5107(b)" benefit-of-the-doubt rule (i.e., "the preponderance of the
evidence must be against the claim for benefits to be denied," Gilbert, supra), 38 U.S.C.
§ 7261(b)(1), that governs the Board's decisionmaking as to every finding of material fact, and to
"set aside or reverse" that application when it is "clearly erroneous," 38 U.S.C. § 7261(a)(4). See
Mariano, 17 Vet.App. at 313-17 (twice holding Board's findings clearly erroneous even though
evidence was not uncontroverted); see also U.S. Gypsum Co., 333 U.S. at 395-96 (finding lower
court's finding clearly erroneous where evidence was not uncontroverted). To the extent that Hicks
and other precedent relying on Hersey can be read to support the proposition that a Board finding
cannot be clearly erroneous unless the evidence against that finding is uncontroverted, that precedent
is overruled unanimously.
In reviewing the Board's decision to deny secondary service connection for the right-hip
disability in light of the entire record in this case, we note that there are two doctors with intimate
knowledge of Mr. Padgett and his medical status who opine that his left-knee injury "directly
aggravated," "adversely impacted," or otherwise "contributed to" or "resulted in" his right-hip
problems. R. at 261-62, 325, 340. Dr. Thoburn, a rheumatologist, was aware of Mr. Padgett's knee
condition since at least 1975, when Dr. Thoburn was consulted by another doctor who believed that
Mr. Padgett had severe degenerative arthritis and a possible torn medial meniscus of the left knee.
R. at 162. In 1976, Dr. Thoburn treated Mr. Padgett for, inter alia, degenerative arthritis of the left
knee. R. at 189-91. Dr. Shaw, an orthopaedic surgeon, began treating Mr. Padgett in 1982,
performed his right-total-hip arthroplasty in 1989, and evaluated his medical condition in follow-up
medical evaluations through 1991. R. at 226-37. Dr. Shaw provided copies of his periodic
evaluations to Dr. Thoburn throughout his treatment of Mr. Padgett. R. at 226-37.
19
The Board noted Dr. Shaw's opinion that Mr. Padgett's "in service left knee injury resulted
in severe traumatic osteoarthritis of the left knee which adversely impacted the progression of
degenerative disease of the right hip and aggravated his symptoms" and that his "in service left knee
injury resulted in an irregular gait pattern which directly aggravated his right hip symptoms." R. at
17. Further, the Board noted Dr. Thoburn's opinion that Mr. Padgett's "left knee condition resulted
in his weight shifting to the right side, which resulted in the progression of osteoarthritis of the right
hip." Id.In contrast to the opinions of Drs. Shaw and Thoburn, which are based on personal
examinations and knowledge of Mr. Padgett's pertinent medical and physical history, including
direct observation of the alteration of his gait, are the opinions of Drs. Henderson and Blincow, the
VA doctors. Dr. Henderson examined Mr. Padgett but, contrary to what the Board stated in its
decision, he did not review the claims file. R. at 16, 361 (Dr. Henderson's report stating, "C file was
not available for review"). Dr. Henderson's report also made no mention of Mr. Padgett's in-service
right-hip injury. R. at 360-63. These factors render Dr. Henderson's report of "questionable
probative value." Mariano, 17 Vet.App. at 317 (flawed methodology in creating medical report
renders report of "questionable probative value"); Bielby v. Brown, 7 Vet.App. 260, 268 (1994) ("In
order for an expert's opinion to be based upon the facts or data of a case, those facts or data must be
disclosed to or perceived by the expert prior to rendering an opinion[;] otherwise the opinion is
merely conjecture and of no assistance to the trier of fact.") (emphasis in original); Green v.
Derwinski, 1 Vet.App. 121, 124 (1991) (duty to assist requires providing claimant with "thorough
and contemporaneous" medical examination that "takes into account the records of prior medical
treatment"); 38 C.F.R. § 4.1 (2004) ("It is . . . essential both in the examination and in the evaluation
of a disability, that each disability be viewed in relation to its history.").
Moreover, Dr. Henderson's diagnosis was not definitive, stating that the "fact that both hips
and knees are affected by this problem [(i.e., degenerative joint disease)] suggest[s] that it is a
consequence of the aging process," further stating that the "fact that he did injure the left knee . . .
50 years ago suggest[s] that this may have played a part in the damage that required a knee
replacement, but not necessarily a hip replacement," and further noting that "[f]or a more definitive
opinion, it is suggested that a certified orthopedist review this case." R. at 363 (emphasis added).
The latter statement diminishes further the value of this report as probative medical evidence. See
20
Espiritu v. Derwinski, 2 Vet.App. 492, 494-95 (1992) (question involving special knowledge
requires witness skilled in that area); see also Sklar v. Brown, 5 Vet.App. 140, 146 (1993)
(specialist's opinion on medical matter outside his or her specialty to be given little weight);
Guerrieri v. Brown, 4 Vet.App. 467, 470-71 (1993) ("probative value of medical opinion evidence
is based on the medical expert's personal examination of the patient, the physician's knowledge and
skill in analyzing the data, and the medical conclusion that the physician reaches"); cf. Bloom v.
West, 12 Vet.App. 185, 187 (1999) (speculative medical opinion cannot establish in-service medical
nexus to service).
Dr. Blincow's report fares not much better. Although direct examination of Mr. Padgett by
a medical expert is not necessary to make the expert's medical report competent, see Black v. Brown,
10 Vet.App. 279, 286 (1997) (Kramer, J., dissenting) ("medical opinions obtained from . . . medical
experts provide sufficient bases for awarding a claim . . . and those physicians, by definition,
examine only records, not patients" (citing 38 C.F.R. § 20.901(a), (d)), the lack of a complete and
accurate record, at least as to material and relevant facts, certainly undercuts an expert medical
opinion's probative value. See Bielby, supra.
Dr. Blincow makes no reference to the in-service incurrence of Mr. Padgett's combat-related
right-hip injury, which the Board accepted as having occurred as Mr. Padgett had asserted. R. at 16;
see 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d) (2004) ("[s]atisfactory lay or other evidence that an
injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service
connection if the evidence is consistent with the circumstances, conditions or hardships of such
service"); cf. Caluza v. Brown, 7 Vet.App. 498, 508 (1994) (lay evidence of veteran's combat-related
injury must be accepted by Board as sufficient proof of in-service incurrence or aggravation of
injury absent clear and convincing proof to contrary), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table).
Indeed, Dr. Blincow notes in his report that there "is no recorded record of any injury to the patient's
right hip at the time of the [1944 left-knee injury]" (R. at 418) and that "[t]here is no mention of any
injury to the right hip in the medical records" (R. at 419). It is not the province of the Court to
speculate on the extent to which knowledge of Mr. Padgett's right-hip injury in service would have
affected Dr. Blincow's medical conclusions; indeed, the materiality and relevance of that knowledge
is itself a medical question. It is, however, axiomatic that without knowledge of Mr. Padgett's right-
hip injury, Dr. Blincow's conclusions with regard to the etiology of Mr. Padgett's current right-hip
21
disability are necessarily based on incomplete information and rendered suspect. Accordingly, Dr.
Blincow's conclusions with regard to Mr. Padgett's right-hip disability, having been made in the
absence of a potentially material and relevant fact, are also of "questionable probative value."
Mariano, 17 Vet.App. at 317; see also Bielby, supra; Reonal v. Brown, 5 Vet.App. 458, 461 (1993)
("opinion based upon an inaccurate factual premise has no probative value").
Despite the infirmities in the reports of Drs. Henderson and Blincow, and the lack of such
infirmities regarding the opinions of Drs. Shaw and Thoburn, the Board found that the probative
value of the opinions of Drs. Henderson and Blincow "far outweighed" the value of the opinions of
Drs. Shaw and Thoburn. Based on this weighing of the evidence, the Board found that Mr. Padgett's
right-hip injury was not secondarily service connected because the preponderance of the evidence
was against that claim. R. at 18. However, given the little probative weight, if any, that can legally
and reasonably be accorded the opinions of Drs. Henderson and Blincow, as opposed to the opinions
of Drs. Shaw and Thoburn that strongly support secondary service connection for the right-hip
injury, the finding of the Board that the evidence preponderated against this claim is simply not
"plausible in light of the record viewed in its entirety," Gilbert, 1 Vet.App. at 52 (quoting Anderson,
470 U.S. at 574); see also 38 C.F.R. § 3.303(a) (2004) ("[d]eterminations as to service connection
will be based on review of the entire evidence of record"), and the Court has "'the definite and firm
conviction that a mistake has been committed.'" Gilbert, supra (quoting U.S. Gypsum Co., supra);
see Mariano, 17 Vet.App. at 314-17.
The only plausible resolution of the key factual issue on the record in this case is that Mr.
Padgett's right-hip disability was aggravated by his service-connected left-knee disability, and the
Board's decision that the evidence preponderated against this claim must therefore be, and will be,
reversed. See 38 U.S.C. § 7261(a)(4) (Court must "reverse or set aside" clearly erroneous finding
of material fact); Pullman-Standard v. Swint, 456 U.S. 273, 292 (1982) (reversal is appropriate
where "the record permits only one resolution of the factual issue"); Mariano, supra; see also Ortiz,
274 F.3d at 1365 ("benefit of the doubt rule may be viewed as shifting the 'risk of nonpersuasion'
onto the VA to prove that the veteran is not entitled to benefits"); Robinette, 8 Vet.App. at 76 ("a
merits disallowance [is permitted] only where the evidence preponderates against the claim");
Gilbert, 1 Vet.App. at 54 ("the preponderance of the evidence must be against the claim for benefits
to be denied"). Accordingly, Mr. Padgett's claim for disability benefits on the basis of a right-hip
22
disability secondary to his service-connected left-knee disability will be remanded for assignment
of a disability rating and the effective date thereof. See Fenderson v. Principi, 12 Vet.App. 119, 127
(1999) (remanding for consideration of staged ratings in connection with initial award of service
connection).
Finally, the Court notes that it would be an anomalous use of 38 U.S.C. § 7104(a), a
provision designed to provide to VA claimants the benefit and protection of an administrative appeal
process within VA, to deny meaningful judicial review in this Court. Such an aberrant shield-to-
sword transformation, which was embraced by the now-withdrawn panel opinion that this full-Court
opinion replaces, was addressed earlier in the consideration of this case, as follows:
The right to "one review on appeal to the Secretary" provided in
section 7104(a) is a process right guaranteed to VA claimants, not the
Secretary who clearly has no right of appeal to this Court. To permit
the appellant's process right to operate as a shield from the Court's
review of the Board's arguably clearly erroneous denial of a claim is
to stand the statute and common sense on their heads.
Padgett v. Principi, 18 Vet.App. 223, 226 (2004) (per curiam order) (Steinberg, J., dissenting to
denial of full-Court decision) (citations omitted).
B. Board Decision as to Direct and Presumptive Service Connection for
Right-Hip Disability will be Remanded
The Board also denied Mr. Padgett's claims for disability benefits for a right-hip disability
on direct and presumptive bases. In so doing, the Board discounted the favorable opinions of Drs.
Shaw and Thoburn because they "appear[ed] to be largely based on Mr. Padgett's self-reported
history of having sustained a right-hip injury in service." The Board relied upon, inter alia, its
finding that "the most probative medical evidence on file" – the previously discussed faulty reports
of Drs. Henderson and Blincow – failed to demonstrate that the right-hip injury was incurred in or
aggravated by service or that the injury was manifested within one year after discharge from service.
R. at 16-17.
At the outset, we note a serious incongruity in that the Board correctly accepts as true that
Mr. Padgett injured his right hip during combat in World War II, see 38 U.S.C. § 1154(b); 38 C.F.R.
§ 3.304(d) (2004); cf. Caluza, supra, but then rejects as not probative the opinions of Drs. Shaw and
Thorburn, in part, because they relied on Mr. Padgett's report that he had injured his right hip in
service. R. at 16. Having accepted as true that Mr. Padgett injured his right hip during war, it was
23
error then to reject the reports of Drs. Shaw and Thorburn because they relied on that fact. Cf.
Bailey v. Derwinski, 1 Vet.App. 441, 447 (1991) (reversing as clearly erroneous 1990 Board finding
that arthritis of shoulder was due to aging process rather than trauma when 1988 Board had found
that "almost identical evidence" as to arthritis of wrist showed arthritis to be posttraumatic in
nature); see also Otero-Castro v. Principi, 16 Vet.App. 375, 382 (2002) (relying on Bailey, supra);
Thomas v. Principi, 16 Vet.App. 197, 200 (2002) (citing Bailey, supra, for proposition that Board
"must be reversed because inconsistent VA factfinding was reached in 'arbitrary and capricious'
manner in violation of 38 U.S.C. § 7261(a)(3)(A)"). On remand, the Board may not assign
diminished probative value to these reports on the basis that they relied upon Mr. Padgett's report
of a hip injury during combat.
Moreover, as noted above, neither Dr. Blincow nor Dr. Henderson knew or understood that
Mr. Padgett had actually or presumably injured his right hip during combat in World War II, as was
accepted as true by the Board. See R. at 16. Without this information, these doctors could not (and
did not) form an opinion regarding a nexus between the in-service incurrence of that injury and his
current right-hip disability. See Caluza, 7 Vet.App. at 506 (service connection requires medical
nexus between in-service incurrence or aggravation of injury and appellant's current disability).
Accordingly, insofar as these reports relate to a direct- or presumptive-service-connection
assessment, they have no probative value. See Mariano and Reonal, both supra.
Whereas with the secondary service-connection issue the record contains substantial
evidence that Mr. Padgett's right-hip disability was secondary to his service-connected left-knee
injury and the Board's decision that the evidence preponderated against that claim was clearly
erroneous, warranting reversal, the record is silent as to a medical nexus between Mr. Padgett's
current right-hip disability and the incurrence, either on direct or presumptive bases, of his right-hip
injury in service. See Caluza, supra. Moreover, the necessary factual determinations cannot be
made by this Court in the first instance. See Hensley v. West, 212 F.3d 1255, 1263 (Fed. Cir. 2000)
(appellate tribunals are not appropriate fora for initial factfinding); see also 38 U.S.C. § 7261(c).
Accordingly, the decision of the Board as to Mr. Padgett's claim for disability benefits for
his right-hip disability on direct or presumptive bases will be set aside and the matter remanded for
readjudication and any additional development necessary. See Bucklinger v. Brown, 5 Vet.App. 435,
440 (1993) (remand is the appropriate remedy when the Board has failed to make necessary findings
24
of fact); 38 C.F.R. § 19.9 (2004) (requiring Board, when additional development is necessary, to
remand to RO for further development or to direct Board personnel to undertake appropriate action).
C. Remand Proceedings
On remand, Mr. Padgett 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, 16 Vet.App. 529, 534 (2002). The Court notes that Mr. Padgett is
a combat veteran who is now 83 years old and has already waited over twelve years to have his
claim finally decided. In light of this, judgment will be entered and mandate will issue 10 days after
the date on which this opinion is issued. See U.S. VET . APP . R. 2 (suspension of rules), 35 (motion
for reconsideration), 36 (entry of judgment), 41(a) (issuance of mandate); see also Mariano,
17 Vet.App. at 318 (same order regarding judgment and mandate). The Court expects that the
Secretary will provide expeditious treatment of this matter on remand. See 38 U.S.C. §§ 5109B,
7112; see also Vargas-Gonzalez v. Principi, 15 Vet.App. 222 (2001).
IV. CONCLUSION
On consideration of the foregoing, the August 8, 2002, decision of the Board with regard to
Mr. Padgett's secondary-service-connection right-hip disability claim is REVERSED; the decision
with regard to Mr. Padgett's presumptive and direct service-connection right-hip disability claims
is SET ASIDE; and the entire matter is REMANDED for further proceedings consistent with this
opinion.
REVERSED IN PART; SET ASIDE IN PART; and REMANDED.
HAGEL, Judge, concurring in part and dissenting in part: I join in the Court's opinion to the
extent that it overrules the Court's precedents that "can be read to support the proposition that a
Board finding [of fact] cannot be clearly erroneous unless the evidence against that finding is
uncontroverted." Ante at 18. Reversal is not limited to instances where the evidence is
uncontroverted in an appellant's favor – that limitation sets the bar prohibitively high. Rather, this
Court can reverse a Board finding of fact when the Court possesses "a 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)). It is unfortunate that the uncontroverted-
25
evidence standard has crept into our jurisprudence, and I am pleased that the Court today
emphatically eradicates that errant standard. That said, for the reasons provided below, I dissent
from the Court's conclusion that VA medical opinions ordered by the Board pursuant to VA
regulation 38 C.F.R. § 20.901(a) (2004) are exempt from an appellant's statutory right to "one
review on appeal to the Secretary" provided for in 38 U.S.C. § 7104(a).
In Disabled American Veterans v. Secretary of Veterans Affairs, the Federal Circuit
invalidated VA regulation 38 C.F.R. § 19.9(a)(2) (2002) because that regulation would have allowed
the Board, "the only appellate tribunal under the Secretary," "to gather and consider evidence that
had not been before the regional office without having to remand the case to the regional office "for
initial consideration and without having to obtain the appellant's waiver." 327 F.3d 1339, 1347 (Fed.
Cir. 2003) [hereinafter DAV v. Sec'y]. The Federal Circuit based its finding on section 7104(a),
which provides that "all questions in a matter which . . . is subject to decision by the Secretary shall
be subject to one review on appeal to the Secretary" and because, in its view, "[w]hen the Board
obtains evidence that was not considered by the [regional office] and does not obtain the appellant's
waiver, . . . an appellant has no means to obtain 'one review on appeal to the Secretary' because the
Board is the only appellate tribunal under the Secretary." Id. In reaching this decision , the Federal
Circuit then stated, in what can be characterized fairly as dicta, as follows:
Furthermore, we note that when Congress intended to authorize the Board to obtain
additional evidence without "one review on appeal to the Secretary," it knew how to
do so. Congress has provided express statutory authority to permit the Board to
obtain additional evidence, such as expert medical opinions in specific cases. See,
e.g., 38 U.S.C. § 5107(a) (2000) (authorizing Board to obtain medical opinions from
the VA's Under Secretary for Health (formerly the Chief Medical Director));
38 U.S.C. § 7109 (2000) (authorizing Board to obtain independent medical opinions
from outside the VA); 38 C.F.R. § 20.901(a) (2002) (authorizing Board to obtain
opinions from the Veterans Health Administration); 38 C.F.R. § 20.901(b)
(authorizing Board to obtain medical opinions from the Armed Forces Institute of
Pathology).
Id. at 1347-48 (emphasis added). In other words, the Federal Circuit in DAV v. Sec'y instructed us
that the Board is prohibited from considering in the first instance evidence without either obtaining
an appellant's waiver of regional office consideration of that evidence or express statutory authority
to consider such evidence in the absence of a such a waiver.
26
First, I note that 38 U.S.C. § 5107(a) (2000) did not expressly authorize the Board to obtain
medical opinions from VA's Under Secretary for Health and that the majority appears to concede
as much. See 38 U.S.C. § 5107(a) (2000) (providing, prior to the enactment of the Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096, that "[t]he Secretary shall assist such
a claimant in developing the facts pertinent to the claim"); ante at 9 ("[W]e note that section 5107(a)
does not expressly authorize the Board to obtain or secure medical opinions."). I also note that VA
is not Congress and that the regulation cited to by the Federal Circuit, 38 C.F.R. § 20.901 (a)
and (b), cannot support the proposition for which they are cited, namely that "Congress has provided
express statutory authority to permit the Board to obtain additional evidence, such as expert medical
opinions in specific cases." DAV v. Sec'y, 327 F.3d at 1347; see William Jameson & Co. v.
Morgenthau, 307 U.S. 171, 173-174(1939) (noting that an administrative regulation does not equate
to an Act of Congress).
As for section 7109, it appears that that statute is the only authority cited to by the Federal
Circuit that can even arguably support the proposition that Congress permitted the Board to obtain
expert medical opinions and to consider such evidence in the first instance without entitling an
appellant to "one review on appeal to the Secretary." 38 U.S.C. § 7104(a). Nevertheless, even
assuming for the sake of argument that Congress, in enacting section 7109, carved out an exception
to the right of an appellant to one review on appeal to the Secretary, in my view Mr. Padgett's case
does not implicate section 7109. The only way the majority can conclude that § 20.901 establishes
an exception to section 7104 is to conclude that section 7109 provides adequate congressional
authority for this regulation. Because the majority's decision is premised on the conclusion that
section 7109 provides authority for the Board to obtain and consider VA medical opinions in
addition to independent medical opinions, I cannot concur in that portion of the Court's opinion.
Further, whether section 7109 establishes an exception to the principle expounded in DAV v. Sec'y
in cases where independent medical opinions are requested and, if so, the parameters of such an
exception would be more appropriately examined in a case where those issues are squarely
presented. This is not such a case.
The majority's conclusion to the contrary turns solely on the existence in section 7109(a) of
the nonessential phrase "in addition to that available within the Department." Ante at 10. In my
view, the majority, in its rush to analyze the evidence and reach a conclusion with which I am in
27
sympathy, has adopted an interpretation of section 7109 that stretches the phrase "in addition to that
available within the Department" too far. Congress, in section 7109 itself and in the legislative
history underlying that statute, merely recognized that there existed, at the time that that statute was
enacted, preexisting authority for the Board's practice of obtaining VA medical opinions – such
authority was not vested in the Board by section 7109. The Senate committee's statement makes
clear that "ample authority" for the Board's practice of securing a medical opinion from within VA
already existed at the time of section 7109's enactment and that the Senate version of the bill, which
ultimately became what is now section 7109, was therefore making "no reference to the Board
securing an advisory opinion from the Chief Medical Director of VA." S. REP. NO . 87-1844 (1962),
reprinted in U.S.C.C.A.N. 2585, 2586. In that regard, I note the existence of 38 U.S.C. § 212(1962), which provided the Administrator (now the Secretary) with the authority "to assign
duties . . . to such . . . employees as he may find necessary." It is beyond my comprehension that
Congress would pass a statute whose purpose was to authorize that which was already authorized
and to provide authority for a practice already supported by ample authority.
Artfully casting Congress as having "approved" of a preexisting practice or as having
"sanctioned" such a practice does not transform what is in essence a recognition of then-preexisting
authority into an instrument that grants such authority. See Ante at 10. As I read section 7109 and
its legislative history, that section did one thing and one thing only; it authorized the Board to obtain
medical opinions from experts who were independent of VA. The initiation of the legislative
process that culminated in the passage of what is now section 7109 was motivated by a desire to
combat a perception of VA bias and to "inspire, in the veteran, the confidence that his claim is
receiving objective consideration." 108 CONG . REC. H5518 (Apr. 2, 1962) (statement of Rep. Lane).
For that reason, in addition to those stated above, it strikes me as improvident to cite the very statute
that authorized the Board to procure non-VA medical opinions as the authority for the Board to
obtain VA medical opinions. That said, I do not question whether the Board is permitted to obtain
VA medical opinions; I simply express my opinion that the authority vested in the Board by
§ 20.901(a) is not rooted in section 7109 but elsewhere, for instance § 20.901 cites as authority 38
U.S.C. § 5103A(d) in addition to section 7109. Because I do not believe that section 7109 is the
authority that permits the Board to obtain VA medical opinions, because I see no reason to believe
that section 5103A(d) establishes an exception to section 7104(a), and because no other statutory
28
authority has been advanced that would permit the Board to consider in the first instance Board-
ordered VA medical opinions, an exception to section 7104(a)'s grant of "one review on appeal to
the Secretary" is not implicated in the instant case. Absent such an exception, the Federal Circuit's
decision in DAV v. Sec'y compels me to conclude that before the Board can consider a VA medical
opinion that it orders pursuant to § 20.901, it must either obtain the claimant's waiver of regional
office consideration of that evidence or remand the matter for regional office adjudication. DAV v.
Sec'y, 327 F.3d at 1347.
The foregoing discussion leaves open the question of whether reversal is the appropriate
remedy in this case. Reluctantly, I am compelled to conclude that it is not. Although I would tend
to agree with the majority's evaluation of the evidence, because the Board was not permitted to
consider Dr. Blincow's report without (1) Mr. Padgett's waiver of regional office consideration of
that evidence or (2) remanding the matter for regional office adjudication, the Board's findings with
respect to that report are void. It follows then that by evaluating Dr. Blincow's opinion, the majority
is engaged in factfinding in the first instance, which it is prohibited by law from doing. See
38 U.S.C. § 7261(c); Hensley v. West, 212 F.3d 1255, 1263 (Fed. Cir. 2000) (stating that "appellate
tribunals are not appropriate fora for initial factfinding"). If Mr. Padgett had wanted us to review
the Board's factual conclusions with respect to Dr. Blincow's opinion, he could have so argued and
could have waived regional office consideration of Dr. Blincow's opinion. If he had done so before
us, it would not be inappropriate for us to review the Board's findings of fact with respect to that
piece of evidence. However, he has not advanced such an argument nor made such a request.
Specifically, he does not seek reversal based on a review of all of the evidence considered by the
Board, but only a portion thereof – his argument for reversal is premised on his contention that the
Court should exclude from consideration due to various alleged inadequacies or procedural defects
VA medical opinions, including that of Dr. Blincow. Appellant's Brief (Br.) at 16-26; Reply Br.
at 6-7. He has never argued for reversal based on a review of all the evidence of record, i.e., the
totality of the evidence relied upon by the Board in rendering its decision. Regarding waiver, he was
well aware of his ability to waive his right to a remand in order to have the Court reach the merits
of his claim. In fact, he specifically waived consideration of any potential error with respect to
deficient notice under the Veterans Claims Assistance Act (Reply Br. at 1-2) and his representative
reaffirmed the limited scope of that waiver when questioned on the subject during oral argument.
29
Accordingly, this matter should be remanded to the Board and, in turn and absent a waiver by Mr.
Padgett, by the Board to the regional office for initial adjudication based on the full record and after
appropriate regional office action the opportunity for "one review on appeal to the Secretary," if Mr.
Padgett should invoke that right in a timely fashion. 38 U.S.C. § 7104(a).
IVERS, Chief Judge, dissenting: Because Judge Hagel finds that the majority errs in its
analysis regarding the applicability of Disabled Am. Veterans v. Sec'y Veterans Affairs, 327 F.3d
1339 (Fed. Cir. 2003), to this matter, while engaging in impermissible factfinding to reach its
conclusion that reversal, rather than remand is the appropriate remedy, I join in his separate
statement. However, I write separately to address my own concerns that, in its effort to reach a
clearly sympathetic outcome, the majority ignores this Court's role as an appellate body, and parses
the medical evidence of record to arrive at that outcome.
As Judge Hagel correctly states in his dissent, this Court, as an appellate body, is prohibited
both by statute and longstanding precedent, from making initial findings of fact. See 38 U.S.C.
§ 7261(c); Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002); Elkins v. Gober, 229 F.3d 1369 (Fed.
Cir. 2000); Hensley v. West, 212 F.3d 1255 (Fed. Cir. 2000). The Federal Circuit has stated, with
uncompromising clarity, that lest this Court become a factfinder, rather than a court of appellate
review, "fact-finding is to be performed by the expert BVA", not by the judges of this Court. Elkins,
229 F.3d at 1377. Here, however, the majority determines that a mistake has been made, then goes
well beyond the bounds of appellate jurisprudence, and engages in factfinding to support the
credibility of its own findings in support of that determination. Rather than reviewing the Board's
application of the law and arriving at its decision to reverse the Board's finding that the evidence
preponderates against Mr. Padgett's claim for entitlement to service connection for osteoarthritis of
the right hip on a secondary basis, and because "[it] is left with a definite and firm conviction that
a mistake has been committed", Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990), the majority appears
not only to review the evidence de novo, but also parses the evidence, substituting its judgment for
that of the Board. Ante at 18-21. In order to reach its conclusion that reversal rather than remand
is proper here, the majority must know with certainty that, but for the flaws in the VA examinations,
the Board would have found in the appellant's favor. By weighing and discounting some of
30
evidence, the majority leaves only medical evidence favoring the appellant's claim. That evidence,
by the Court's action, then becomes uncontroverted.
While I do not disagree with the majority's statement that "the existence of some
controverting evidence . . . does not preclude this Court from carrying out the mandates in section
7261(a)(4) and (b)(1)", I must strongly disagree with the majority's treatment of our jurisprudence
in both Hersey v. Derwinski, 2 Vet.App. 91 (1992), and Hicks v. Brown, 8 Vet.App. 417 (1995). The
language in Hicks that reversal is the appropriate remedy when there is absolutely no plausible basis
for the BVA's decision and where that decision is clearly erroneous in light of the uncontroverted
evidence in the appellant's favor derives from our decision in Hersey, which had characterized the
evidence in the appellant's favor as "uncontroverted" and did not add that criterion to the standards
for a finding of "clearly erroneous." Hersey and Hicks were thereafter followed in a number of
opinions requiring that the evidence in favor of the appellant be uncontroverted for reversal, an
unanticipated result. See, e.g., Pentecost v. Principi, 16 Vet.App. 124, 129 (2002); Ardison v.
Brown, 6 Vet.App. 405, 409 (1994).
I agree with Judge Hagel that correcting the course of our jurisprudence where it appears to
veer from its intended course is a welcome outcome of this matter and I concur in that correction,
even though this is not an appropriate case in which to overrule Hersey or Hicks. The majority here
eliminates the VA evidence against the claim on the bases that one opinion was based on an
inaccurate premise and that the other was rendered without the appellant's claims file without regard
to the entirety of the evidence of record. By parsing the evidence in this manner and ignoring the
extenuating factors of the appellant's weight (described as variously as "obese" and "morbidly
obese") (R. at 226-27, 325), medical and family history of degenerative arthritis (R. at 226, 230, 325,
340, 363, 418-20), the only remaining medical evidence favors of the appellant's claim, and, unlike
both Hersey and Hicks, where the evidence was, indeed, uncontroverted, the evidence here truly
becomes uncontroverted as a result of the Court's action. Because it would decide the case
differently than the Board below, the majority, feeling that a mistake has been made, does not
merely consider and weigh all of the evidence, it discriminates among the evidence and then reaches
its result.
The majority's desire to elevate the concurrence in Gilbert, without expressly overruling
Gilbert's holding, is palpable, but this is not the case in which to do so. Even if we agree that the
31
concurrence in Gilbert should be given more weight, to do so by slighting our responsibility as an
appellate court is wrong. In Gilbert, this Court adopted the definition of "clearly erroneous" put
forward by the Supreme Court in United States v. U.S. Gypsum Co., 333 U.S. 364 (1948), and in
Anderson v. City of Bessemer City, 470 U.S. 564 (1985). Since Gilbert, the Court has continued to
apply this definition. See Duenas v. Principi, 18 Vet.App. 512, 519 (2004); Burris v. Principi,
15 Vet.App. 348, 353 (2001); Bowling v. Principi, 15 Vet.App. 1, 15-16 (2001); Pond v. West,
12 Vet.App. 341, 345 (1999); Villano v. Brown, 10 Vet.App. 248, 249-50 (1997); Slater v. Principi,
4 Vet.App. 43, 44 (1993) (per curiam order); Hersey, 2 Vet.App. at 94. While it may be appropriate
and timely to reexamine Gilbert, the facts of this case do not lend themselves to doing so. Here
again, the extenuating factors of the appellant's weight, medical and family history of degenerative
arthritis complicate the evidence confronting both the Board below and this Court on appeal.
The majority's approach throughout this matter is illustrative of the danger inherent in
applying the arguably subjective standard that, when "the reviewing court . . . is left with a definite
and firm conviction that a mistake has been made," (Gilbert, 1 Vet.App. at 52) without the
tempering effect of a review of the "entire" evidence and a recognition of the rarity of fact-finding
in the appellate process.
Lastly, I note that the majority, without addressing the Court's longstanding rejection of the
"Treating Physician Rule" (see Winsett v. West, 11 Vet.App. 420 (1998); Guerrieri v. Brown,
4 Vet.App. 467, 473 (1993); Chisem v. Brown, 4 Vet.App. 169, 176 (1993)), comes perilously close
to its adoption by its approach to the appellant's private treating physicians. By failing to address
the nonapplicability of the Treating Physician Rule, while appearing to apply it, the majority leaves
in question the status of this Court's long-held position on this matter, and may, in fact, sub silentio,
appear to overturn our previous holdings on this matter.
32