UNITED STAT ES COURT OF AP P EALS FOR VETERANS CLAIMS

N O .10-3031

K H A D I J A H E L -A M I

N , A P P E L L

A N T ,
V

. E R I C K. S H I

N S E K I , S E C R E TA R Y O F V E TE R

A N S A F F A I R S , A P P E L L E E

.
On Appea l from the B oard of Veter ans' Appea ls (Argued Nove mber 15, 2012 De cided January 15, 2013)

Martin V. Totaro, of Washington, D.C., with whom Barbara A. Curran , of L ivingston, New J erse y , was on the br ief, for the appe llant.

Dustin P. Elias, with whom W ill A. Gunn , Gene ral Counsel; R. Randall Campbell , Assistant Gene ral Counsel; and Nisha C. W agle , Deputy Assistant Gene ral Counsel, all of Washington, D.C., wer e on the br ief, for

the appe llee.

Be fore KASOL D, Chief Judge , and HAG ELand MOORMAN, Judges

. HAGEL , Judge , filed t he opini on of t he C o u rt

. KASOL D, Chief Judge , filed a dissenting opinion.
HAGEL , Judge : O n May 17, 2012, the Court issued a memora ndum decision aff

irming an Aug ust 16, 2010, Boa

rd of Veter ans' Appea ls (B oard) decisi o n t h at denied Khadijah El-Amin entitlement to VA benefits fo r the cause of her husband' s death. On J une 6, 2012, Mrs. El-Amin, throug h counsel, filed a motion for rec onsideration or, in the alterna tive, a decision by a three -judg e panel. On Aug ust 29, 2012, the matter was submitt ed to a panel of the Court and oral arg ument was held on November 15, 2012. The Court will withdraw the May 17, 2012, memorandum decision and issue this opini on in its st ead. The prec ise question for the panel is whether a VA examiner' s statement t h at dece ased
veter an Khalil El-Amin' s alcoholism was "r elated to" fac tors other than his service -conne cted posttraumatic st re s s disorder is sufficie nt to permit the Board to conclude that Mr. El -Amin' s service

-connec ted post-traumatic stress disorder did not ag g ravate h is alcoholism. We conclude that it is not.

Fur ther, we find that the Boa rd err ed in re ly ing on a

n inadequa te medica l opinion to conclude that Mr. El-Amin' s non-ser

vice- connec ted alcoholism was not ag g ravated by his service -conne cted posttraumatic stress disorder. A ccor dingly , the Court w ill vac ate the Aug ust 2010 Boa rd decision and

rema nd the matter f

or fur ther de velopment and r eadjudication consistent with thi s decision.

I. F ACTS Mr. El-Amin serve d on active duty in the U.S. Marine Corps from September 1966 to May 1969, including service in Viet Nam. The rec ord ref lects that, during his lifetime, Mr. El-Amin was diag n o s ed with and trea

ted for drug and alcohol abuse and hepatitis C, none of which was ever deter mined to be conne cted to his milit ary service

. Mr. El-Amin died in October 2006, and his death cer tificate lists the cause of death as hepatic cirrhosis. At the t ime of hi s death, Mr. El-Amin was in rec eipt of VA disability benef its for posttraumatic stress disorder, with a 70% disability rating

. Mrs. El-Amin seeks benefits for the cause of her husband' s death, asser ting tha t M r
. E l-Amin' s service -conne cted post-traumatic stress disorder either cause d or ag g ravated his alcoholism, which in tur n led to the cirrhosis that cause d his death. I n the Aug ust 2010 decision on appea l, the Boa rd denied Mrs. El-Amin' s claim on the basis that there is no evidenc e that Mr. El-Amin' s death was a result of any service -conne cted condition. The decision was based almost exclusively on an October 2008 VA medical o p i n i o n , wh ich was based on a

rec ords re view, in which the e x aminer state d: [I ]t is this examiner' s conclusion that there is no confirma tory or supportive evidenc e that the veter an' s post-traumatic stress disorder cause d his alcohol abuse, and thus it i s NO T at least as likely as not that the veter an' s [post -trauma tic stress diso rd er ] cause d his al co h o l ab u se. Conversely , it is more likely than not that the veter an' s alcohol abuse was rela ted to fac tors other than t h e veter an' s post-traumatic stress disorder.
Record (R.) at 93. When considering the rec ord evidenc e, t h e Bo ar d adopted this opinion as the rationale for its dec ision: The Boa rd finds the Octobe r 2 0 0 8 o p inion of the VA examiner to be the most probative evidenc e of rec ord reg arding whether [Mr. El-Amin' s] cause of death was

2rela ted to se rvice . The Boa rd notes that there is no medical evidenc e of rec ord that contra dicts the opinion of the examiner.

. . . Also, the Boa

rd acknow led ges [ M rs. El-Amin' s] contention that [her husband' s] service -conne cted [post -trauma tic stress disorder] cause d him to drink, which in turn cause d or ag g ravated his cirrhosis. Certainly , [she] is competent to repor t how much and how often [her husband] was drinking d uring the marria g e. She is not co m p etent, howeve r, to opine as to the cause of [hi s] addiction to alcoho l o r h i s cirrhosis, and, even if the Bo ard found [her] competent in that reg ard, the Boa rd never theless finds the opinion of the October 2008 examiner to be the most probative evidenc e reg arding the rela tionship betwee n [Mr. El-A min's] [post -trauma tic stress disorder] and cir

rhosis. R. at 11, 12. This appea l followed.

II. ANALYSIS A. Cause of

Dea th and Ag g ravation A veter an' s death will be considere d service connec ted when a service -conne cted disability "w as either the principal or a contributory cause o f death." 38 C.F.R. § 3.312(a) (2012); see 38 U.S.C. § 1310. For a service -conne cted disability to be considere d a contributory cause of death, it must be shown that it contributed substantially or materia lly to the production of death, combined
to cause death, or

aided or lent assistance to the production of de ath. 38 C.F.R. § 3.312(c ). I n a decision ear ly in its history , the Court deter min ed t h at " any additional impairment of

ear ning capa city resulting from an alre ady service -conne cted condition, reg ardle ss of whether or not the additional impairment is itself a separ ate disease or injury cause d b y t h e s ervic e-c onnecte d condition, shall be compensa ted." Allen v. Brown , 7 Vet.App. 439, 448 (1995). More specific ally , "w hen ag g ravation of a veter an' s non-ser vice- connec ted condition is proxi mately due to or the result of a service -conne cted condition, such veter an shall be compensa ted for the deg ree of disability (but only that deg ree ) over and above t he degr ee of disability exis ting prior to the agg ravation." Id. I t fo l l o ws logic ally from this holding that the "c ompensation" for such ag g ravation by the servic econnec ted condition includes the death benef its that Mrs. El-Amin seeks here , if it can be shown that the non-service- connec ted di sability was ag g ravated t o the degr ee that it co ntributed substantially

or materia lly to the production of death, combined to cause death, or aided or lent assistance to the

3production of death. 38 C.F.R. § 3.312(c)

. Such a finding would result in an unbroken ch ain

betwee n the service -conne cted disability and the condition that cause d the veter an' s death. Her e, for example, the chain would proce ed: Mr. El-Amin' s service -conne cted post-traumatic stress disorder ag g rava ted his non-ser

vice- connec ted alco h o l ism, which cause d or contributed to his cirrhosis, which ca used his death. To be sure, the question of whether any ag g ravation of Mr. El-Amin' s non-ser vice- connec ted alcoholism contributed to his dev el o p m en t of cirrhosis is a fac tual one that has not y et been addre ssed by the Boa

rd. See Elkins v. Gober , 229 F.3d 1369, 1377 (F ed. Cir. 2000) (" Fa ct-finding in ve tera ns case s is to be done by

the expert [Board], not by the Veter ans Court.")

. The Boa rd did
not rea ch this question below beca use the inquiry ended when the Boa rd deter mined that there was

no connec tion betwee n Mr. El-Amin' s service -conne cted post-traumatic stress disorder and his nonservice -conne cted alcoholism. At oral arg u me n t, h o w e v e r , th e Se c r etar y conce ded that there is prima fac ie evidenc e that Mr. El-Amin' s alcoholism cause d or contributed to the development of cirrhosis. On rema nd, the Boa

rd will consider and weig h this evidenc e in the first instance if it deter mines that the evidenc e of ag g rava

tion of Mr. El-Amin' s alcoholism by his post-traum a ti c s tr e s s d is o r d e r w eig hs in favor of hi s claim or is in equipoise. See 38 U.S.C. § 5107(b) ("W h en t h er e i s an approx imate b al an ce o f positive and neg ative evidenc e reg arding any issue materia l to the deter mination of a matter, the Sec reta

ry shall g ive the bene fit of the doubt to the claimant." ). B. A dequac y

of Medica l Ex amination The law reg arding adequa cy of VA medical examinations is well settle d an d voluminous. The Secre tary ' s duty to assist a claimant includes, am o n g other things, "pr oviding a medical examination or obt aining a med i ca l o p i nion when such an ex amination or opi nion is nece ssary to make a decision on the claim." 38 U.S.C. § 5103A(d)( 1); 38 C.F.R. § 3.159 (c )( 4 ) (2012). The medical examination provided must be "thor oug h and contempora neous" and consider prior medical examinations and trea tment. Gree n v. Derwinski , 1 Vet.App. 12 1 , 124 (1991). A medical examination is adequa

te "where it is based upon consideration of the veter an' s prior medical history and examinations and also descr ibes the disability

. . . in sufficie nt detail so that the Boa rd' s

' evalua tion of the claimed disability will be a fully informed one.' " Stefl v. Nicholson , 21 Vet.App. 120, 123 (2007) (quoting Ardison v. Brown , 6 Vet.App. 405, 407 (1994))

. Additionally , a medical

4examiner must provide a "r easone d m ed i ca l explanation connec ting" his observa tions and his

conclusions. Nieves- Rodriguez v. Peak e , 22 Vet.App. 295, 304 (2008) (" I t is the fac tually acc urate , fully articula ted, sound rea soning for the conclusion

. . . that contributes probative value to a medical opinion."). I f an examin at i o n re p o rt does not contain sufficie nt detail, "it is incumbent upon the rating board to return the repor t as inadequa

te for evalua tion purposes." 38 C.F.R. § 4.2 (2012); see Bowling v. Principi , 15 Vet.App. 1, 12 ( 2001) (e mphasizi ng the Board' s duty to return inadequate examination report). Whether a medical opinion is adequate is a finding of fa ct, which the Court reviews under the "c lear ly err oneous" standard. See 38 U.S.C. § 7261(a) (4); D'Aries v. Peak e , 22 Vet.App. 97, 103 (2008); Gilbert v. De rwinski , 1 Vet.App. 49, 52 (1990). "A fac tual finding ' is "c lear ly err oneous" when althoug h there is evidenc e to support it, the revie wing court on the entire evidenc e is left with the definite and firm conviction that a mistake has been co m m i t t ed .' " Hersey v. Derwinski , 2 Vet.App. 91, 94 ( 1992) (quoting United States v. U.S. G ypsum Co. , 333 U.S. 364, 395 (1948)). The Boa rd deter mined that the October 2008 VA medical examination repor t was adequate beca use "the examiner revie wed the claims file, provided the reque sted opinions, and g ave adequate rationale for his conc lusions." R. at 8. The Court finds the B oard' s conclusion clea rly err oneous. The October 2008 VA examiner' s opinion focuse s solely on direc t causation, concluding that Mr. El-Amin' s post-traumatic s t re s s disorder did not cause his alcoholism. R. at 92-93 (" [T] he examiner found no mental health provider that offe red the opinion that the veter an' s alcohol depe n d en ce o r abuse was cause d by his post-traumatic stress disorder;" "[I ]t is this examiner' s conclusion that there is no confirma tory or supportive evidenc e that the veter an' s p o st-traumatic
stress disorder cause d his alcohol abuse, and thus it is NOT at least as likely as not that the veter an' s [post -trauma tic stress disorder] cause d his alcohol abuse." ). Although the examiner then stated that it was "mor e likely t h an n o t t h at the veter an' s alcohol abuse was related to fac tors other than the
veter an' s post-traumatic stress disorder," R. at 93 (empha sis added) , it is not at all clea r to the Court that this encompa sses a discussion of ag g ravati o n (t h e theory on which Mrs. El-Amin bases her claim) at all, let alone wi t h re s p ec t t o post-traumatic stress disorder. I t is likewise unclea r to the Court how t he Board could interpre t the ex aminer' s statemen t s as h av ing considere d whether Mr. El-Amin' s post-traumatic stress disorder ag g ravated his alcohol abuse. At best, it might be said that

5the ex aminer considere d and opined that Mr. El -Amin' s alcohol ab u s e was ag g ravated by (that i s,

"w as rela ted to") "f

actor s other than" post-traumatic stress disorder. R. at 93. This does not rule out the possibili ty that it wa s also ag g ravated to some deg ree by his post-traumatic stress disorder; the examiner only opined that Mr. El-Amin' s alcoholism was not "c aused" by his post-traumatic stress disorder. Id. This is the only plain statement p ro v i d ed b y the examiner with respe ct to the rela tionship betwee n Mr. El-Amin' s post-traumatic stress disorder and his alcohol abuse. Acc ording ly , on the question of ag g ravation, the Boa rd' s co n cl u s i o n that the examination was adequate was clea

rly err oneous, see D'Ari es , 22 Vet.App. at 103, and there fore the B oard erre d in finding that VA satisfied its duty to assist, see Nolen v . Gober , 14 Vet.App. 183, 184 ( 2000). To be fair to the examiner, howeve r, his focus on direc t causation appea rs to have been driven by the VA inquiry reque st for the examination. I n fac t, the examiner opened his examination repor t by stating that he had been "a sked to provide an opinion reg arding the cause of death." R. at 92. The inquiry repor

t reque sted that the examiner "indicat e i f t h e veter an' s alcohol abuse was rela ted to [hi s] [post -trauma tic stress disorder] or if the al co hol abuse was a separ ate[,] unrela ted disability ." R. at 95. This could, p er h ap s , b e interpre ted as including a request for an opinion on ag g rava tion, but the inquiry

reque st went on to require that the examiner state his conc lusion using one of the following leg ally rec og nized phrases: a) _____ is ca

used by or a r esult of _____ b) _____ is most li kely

cause d by

or a r esult of _____ c)
_____ is at least as likely as not (50/50 probability) cause d by or a result of

_____ d)
_____ is less likely as n o t (l es s t h an 50/50 probability cause d by or a result of

_____ e) is not ca

used by or a r esult of _____ f) I cannot r esolve this issue without resort to mere specula tion
Id. These options do not permit the examiner to opine on an y q u est ion other than one of direc t

causation. Cf. Bielby v. Brown , 7 Vet.App. 260, 269 (1994) (finding improper the Boa rd' s relianc e

on an independe nt medical o p i n i o n wher e the Boa rd constraine d the scope of inquiry in the eng ag ement letter , there by "limiting [the examiner' s] i nvestig ation and tainting the re sults"). I n light of the above d i s cu s s i on, the Court will vacate the Boa rd decision and rema

nd the matter for a new VA medica l opinion that considers the re levant evide nce of rec ord and expressly opines as to whether Mr. El-Amin' s service -conne cted post-traumatic stress disorder ag g ravated his

6non-ser

vice- connec ted alcohol abuse and, if so, to what deg ree
. I f ag g rava tion is found, the Boa

rd
must then deter

mine whether the deg ree of ag g ravation of alcohol abuse cause d or contributed to the d ev elopm ent of cirrhosis and deter mine whether a medical opinion is nece ssary to answe r t h at question. I n this reg ard, the Court notes that the October 20 0 8 VA ex aminer indicated t hat he, as

a psy chol o gi s t , wa s n ot equipped to rende r an opinion on that question. Acc ording ly , the Boa rd should, if it deter

mines that a medical opinio n i s nece ssary on this issue, seek the opinion of a qualified medic al profe ssional. 1 As a fina l matter, the Court notes that the B oard a lso denied entitlement to burial benefits. Although Mrs. El-Amin did not raise any arg uments relate d to that decision i n her briefs, because that denial was p r e mised on the Boa rd' s finding that Mr. El-Amin' s service -conne cted post-traumatic
stress disorder was not a contributory cause of his death, the mat ters are inext rica bly intertwined. See Henderson v. W

est , 12 Vet.App. 11, 20 (1998) ( "[W] here a decision on one is sue would have

a ' signific ant impact' upon another , and that impact in turn ' could rende r any revie w by this Court of the decision [on the other claim] meaning less and a waste of judicial resour ces,' the two claims are inext rica bly intertwined." (quoting Harris v. Derwinski , 1 Vet.App. 180, 183 (1991), overruled on other grounds by Tyrues v. Shinseki , 23 Vet.App. 166 (2009) (en banc) , aff' d , 631 F.3d 1380 (F ed. Cir. 2011); vacate d and remande d , 132 S. Ct. 75 (2011)) ; see also Sm ith v. Gober , 236 F.3d 1370, 1372 (F ed. Cir. 2001) (holding that, wher e the fac ts underly ing two claims are "intimately

connec ted," the interests of judicial economy and of avoiding piece meal litigation require the claims
to be appea led toge ther). Be cause the Court is rema nding Mrs. El-Amin' s claim for benef its for the

cause of her

husband' s death, he r cla im for burial be nefits must also be re manded. On rema nd, Mrs. El-Amin is fre e to submit additional evidenc e and arg ument in acc ordanc e with Kutscherousky v. W est , 12 Vet.App. 369, 372-73 (1999) (per curia m order ). See Kay v. Principi , 16 Vet.App. 529, 534 ( 2002). " A re mand is meant to e ntail a critica l examination of the justification for the decision" by the Boa rd. Fletche r v. Derwinski , 1 Vet.App. 394, 397 (1991). I n

T o be clear, the Court is no t dire cting the Bo ard to ob tain tw o separ ate op inions –o ne on the question of 1
w heth er Mr. El-Am in' s po st- traum atic s tress disor der ag gravated his alcohol abuse and one on the question of w heth er that agg ravation contrib uted to the develop m ent of cirrhosis–as long as the Bo ard seeks a sin gle op inion from a medica l profession al q ua lified to an swer both qu estions

. 7addition, the Boa rd shall proce ed expeditious ly , in acc ordanc e wi t h 38 U.S.C. § 7112 (expedited
trea tment of rema

nded cla ims). As a final matter, the Court f eels that it would be remiss if it did not rec og nize the superior oral advoca cy by both co unsel in this appea l. Such advoca cy , of course , ref lects well on these lawy ers. More important to the Court, how ever , is tha t it permits the Court to consider and decide the key issue or issues prese nted by the case and to decide them with some dispatch. Despite the outcome of this or ot her cases, their profe ssionalism serv es t h ei r clients well and display s respe ct for a nd honor to this Court. I t further fac ilitates the delivery

of justice in a timely

fashion.

III. CONCLUSION Upon consideration of the fore g oing, the Aug ust 16, 2010, Boa rd decision is VACATED and the matters are REMANDED for further development and rea djudication consis t en t with this decision.

KASOL D, Chief Judge , dissenting: I issued the single -judg e m em o randum decision aff irming the Boa

rd decision that denied Mrs. El-Amin entitlement to VA benef its for the cause of her husband' s death, while noting that Mrs. El-Amin had submitt ed a confusing brief. Throug h new counsel, Mrs. El-Amin filed a motion for rec onsideration and in the alternative panel revie w on the basis that the m ed i ca l opinion relied on by the Boa rd was inadequa te beca

use it did not addre ss ag g rava tion. Although piece meal litigation is not condoned, Fugere v. Derwinski , 1 Vet.App. 103, 105 (1990) (" Advanc ing differ ent arg uments at succe ssive stag es of the appellate proce ss does not

serve the interests of the parties or the Court. Such a prac tice hinders the decision-making proce ss and raises the undesirable specte r of piece meal litigation." ), the reque st for rec onsideration broug ht clar ity to the orig inal arg ument and the issue war rante d panel rev i ew b ec ause the outcome now appea red to be rea sonably debata ble. Acc ording ly , I g rante d rec onsideration and forwa rded Mrs. ElAmin's appea l to panel for decision. See Frankel v. Derwinski , 1 Vet.App. 23, 25-26 (1990) (finding that a sing le judg e may

resolve a n appea l if "the case on appea l is of relative simplicity and[, inter alia,] . . . does not a

pply an esta

blished rule of la

w to a novel f

act situation [or] the outcome is not

rea sonably

debata ble" ).

8On panel revie w, I disag ree with the conclusion rea ched by the majority

. Succinctly stated, 2 alt h o u gh the examiner' s opinion is not perf ect, I do not find it limit ed to direc t causation or so unclea r as to a g g ravation that the Boa rd was clea

rly err oneous in its (1) view of that opinion in the
context of the entire rec ord, (2) weig hing of all of the rec ord ev i d en ce , o r (3) decision that Mr. El-Amin' s death was not servic e co n n ec ted. See Gilbert v. Derwinski , 1 Vet.App. 49, 52 (1990) (" ' Where there are t wo p er m issible views of the evidenc e, the fac tfinder' s choice betwee n them
cannot be clea

rly err oneous.' " (quoting Anderson v. City of Bessem er City , 47 0 U. S

. 5 6 4, 573-74 (1985)) ; see also Thompson v. Gober , 14 Vet.App. 187, 192 (2000) (" ' Perfe ction is an aspiration, but the failure to a chieve it in the judicial proce ss, as elsewhe re in life , does not, a bsent injury , require

a repe at perf

ormanc e.' " (quoting Miles v. M/V Mississippi Quee n , 753 F.2d 1349, 1352 (5th Cir. 1985)); see also Stallw orth v. Nicholson , 20 Vet.App. 482, 491 (2006) (L ance , J ., dissenting) (noting that an "unjustified rema nd [] only ' perpe tuates the hamster- whee l reputa t i o n of veter ans law' ") (quoting Coburn v. Nicholson , 19 Vet.App. 427, 434 ( 2000) (L ance , J ., dissenting) ). Neve rtheless, I note that this case undersc ores the need for panel revie w when – prior to oral arg ument or panel discussion – the outcome of a case appea rs rea sonably debata

ble as to the fac ts. See Frankel , 1 Vet.App. at 25-26. Claimants for VA benef its g et a one-pe rson revie w at the ag ency of orig inal jurisdiction a

nd a one-pe rson revie w at the Boa rd. Although most of our case s can and should be decide d by a single judge , Frankel does not limit panel revie w to quest i o n s o f l aw and there should be littl e hesitation to send a case to panel when the result could be rea sonably debata ble. Id. ; see also W

ashington v. N

icholson , 19 Vet.App. 362, 372-75 (2005) (Ka sold, J ., concur ring in part a nd dissenting in par

t) (disag ree ing on the weig hing of the fa cts).

Alth ough

I disagree w ith th e ultim ate d ecision of the m aj or ity , I co ncu r in their reco gn ition of the su per ior 2
or al ad vocacy

of co un sel for b oth par ties. 9