McCray: Medical Opinion Adequacy and Medical Treatises

McCray v. Wilkie, Case Number 17-1875, decided June 18, 2019 deals with the adequacy of a VA medical opinion and it’s reference to a medical treatises.

The issue was delayed onset for hearing loss.  A private examiner opined the hearing loss was related to military service whereas a VA examiner said it was not related and referenced an Institute of Medicine (IOM) report entitled Noise and Military Service: Implications of Hearing Loss and Tinnitus.

The VA examiner relied on the IOM report for his rationale to deny service connection.  Whereas the veteran pointed out to the Board that after finding that delayed-onset hearing loss after noise exposure was unlikely "based on the anatomical and physiological data available," the report went on to also find that "[t]here is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure" and that "definitive studies to address this issue have not been performed."  Id. at *4.

The Court addressed the adequacy of the medical opinion and referenced the Nieves-Rodriquez factors:

the Court has previously in various cases assembled a non-exhaustive list of factors that, depending on the case, may be relevant considerations in determining the adequacy and probative value of a medical opinion: whether there was personal examination of the patient; the expert's knowledge and skill in analyzing the data; whether the opinion contains clear conclusions with supporting data and a reasoned medical explanation connecting the two; whether the opinion is clear and susceptible of only one meaning; the expert's familiarity with pertinent medical history; whether there is any inconsistency in the expert's statements; whether the expert has provided a thorough and detailed opinion about an area within his or her expertise; whether the expert has provided factually accurate, fully articulated, and sound reasoning for his or her conclusion; whether the expert relied on sufficient facts or data; whether the opinion is the product of reliable principles and methods; and whether the opinion is the result of principles and methods reliably applied to facts. See Nieves-Rodriguez, 22 Vet.App. at 304.

Id. at *11.

It then importantly stated:

The Court now includes on this non-exhaustive list another factor: whether the medical text evidence that the medical opinion relies on contains qualifying or contradictory aspects. If the Board finds that a medical text that serves as the basis for a medical opinion contains apparent qualifiers or contradictions, or if the veteran raises the issue or it is reasonably raised from review of the evidence of record, the Board must address that issue and explain whether those aspects of the medical text diminish the probative value of the medical opinion evidence or render the opinion inadequate, and if not, why not.

This analysis is required because it is expected that qualifications or contradictions in medical evidence, including in underlying medical text evidence, may impact the probative value or adequacy of the medical opinion itself. Thus, as here, where the veteran explicitly raised the issue prior to the Board decision, the Board must respond and not ignore the veteran's argument.

Id. at *11-12 (internal citations omitted).

The Court then helpfully addressed the lesser standard applied to VA cases and noted:

The Court reminds the Board, per Quirin v. Shinseki, 22 Vet.App. 390, 395 (2009), that when evaluating medical text evidence and medical opinion evidence as to an unsettled medical question, it must bear in mind the reasonable doubt doctrine. As the Court explained in Wise, in keeping with the benefit of the doubt standard of proof, a medical principle need not reach scientific consensus to adequately support a grant of VA benefits. Instead, by virtue of 38 U.S.C. § 5107(b)'s low standard of proof, which is applicable as to all issues material to a claim for veterans benefits, Congress has authorized VA to resolve a medical question in a VA claimant's favor so long as 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 standard.

In conclusion, the Court holds that, when the Board relies on a negative medical opinion, it must, consistent with its reasons or bases responsibility, address the veteran's arguments challenging the medical text supporting that opinion and assess the existence and impact of features of the underlying medical text evidence that may affect the probative value and adequacy of the medical opinion. Because the Board erred in failing to address apparently qualifying or contradictory statements in the medical text evidence here, the Court will set aside the June 2017 Board decision and remand the matter of service connection for left ear hearing loss.

Id. at *13-14.

As a secondary issue, the Court considered the impact of JMRs on VA decisions. Carter v. Shinseki, 26 Vet. App. 534, 542-43 (2014) had determined that a JMR provides guidance on the issues to be addressed on remand.  The Secretary sought to use a prior JMR in this case to say because the IOM report issue was not raised in the JMR he should be precluded from raising the issue now.  Id. at *5.  The Court ruled against the VA for two reasons.  First, the JMR contained language saying the veteran could submit additional evidence and argument.  Id. at *5.  Second, the veteran in this case had been represented by different attorneys and service organizations.  Id. at *5-6.  This case should be a reminder to all attorneys to make sure the JMR language proposed by the Secretary contains the additional argument and evidence language.  However, the second reason is more complicated.  If continuous representation is really a factor that suggests taking a remand on one issue expecting to later argue another is somehow problematic.  If the Court or Secretary really took this issue I believe JMRs would ground to a halt and both of their workloads would explode.  This language is deeply troubling to me as a practitioner. 

The decision was by Judge Bartley and joined in by Chief Judge Davis and Judge Schoelen.  It is helpful in many aspects as a primer for attacking VA examinations and reminding examiners that the VA is using a lesser standard.  But, I still am troubled by the continuous representation factor used in the Carter analysis.  It might have unintended consequences. 

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