Sickels v. Shinseki
| Decision Date | 22 July 2011 |
| Docket Number | No. 2010–7140.,2010–7140. |
| Citation | 643 F.3d 1362 |
| Parties | Homer D. SICKELS, Claimant–Appellant,v.Eric K. SHINSEKI, Secretary of Veterans Affairs, Respondent–Appellee. |
| Court | U.S. Court of Appeals — Federal Circuit |
OPINION TEXT STARTS HERE
Peter J. Sebekos, of Niagara Falls, NY, argued for claimant-appellant.Michael P. Goodman, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With him on the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, and Martin F. Hockey, Jr., Assistant Director. Of counsel were David J. Barrans, Deputy Assistant General Counsel, and Amanda R. Blackmon, Attorney, United States Department of Veterans Affairs, of Washington, DC.Before RADER, Chief Judge, CLEVENGER, and LINN, Circuit Judges.CLEVENGER, Circuit Judge.
Appellant, Homer D. Sickels, appeals from a decision of the United States Court of Appeals for Veterans Claims (“Veterans Court”) affirming a Board of Veterans' Appeals (“Board”) decision denying compensation for a right knee disability. Sickels v. Shinseki, No. 08–1963, 2010 WL 1972899 . For the following reasons we affirm the Veterans Court's decision.
Mr. Sickels served on active duty in the United States Army from August 1948 until August 1950. The available service medical records show that he suffered a right knee injury in September 1949 and was evaluated and treated for lesions at a field hospital in Stuttgart, Germany. An x-ray revealed no bone or joint pathology. Mr. Sickels suffered his knee injury while playing football with a military team.
In September 1999, Mr. Sickels filed an application for disability compensation with the Cleveland Regional Office (the “RO”) of the Department of Veterans Affairs (“VA”) claiming a service-related right knee disability. Mr. Sickels notified the RO that he had not received any treatment for his knee since his time in the military, but that he had recently suffered from pain and a trick knee. In April 2001, the RO informed Mr. Sickels that it had requested his service medical records from the military and that it would review his claim. In response, Mr. Sickels notified the RO that he had been twice examined at the Cincinnati VA Medical Center in 2000 and that x-rays were taken of his knee. The orthopedic department of the VA clinic had found no major pathology or instability, but noted that if Mr. Sickels' symptoms continued then a Magnetic Resonance Imaging (“MRI”) should be obtained to look for meniscal pathology. The x-rays revealed minimal degenerative change consistent with osteoarthritis.
The RO denied Mr. Sickels' claim for disability compensation in February 2002 for failure to demonstrate service connection between Mr. Sickels' football injury and his arthritic knee. Mr. Sickels appealed this denial to the Board and argued that the VA failed to comply with its statutory duty to assist him in developing his claim. The Board agreed and remanded the claim back to the RO to obtain a medical opinion as to whether Mr. Sickels' right-knee disability was related to his service. The remand order specifically required that the opinion be based on a review of the record and noted that Mr. Sickels should undergo a VA examination and/or diagnostic testing if the medical specialist deemed it necessary.
In May 2005, the VA Appeals Management Resource Center (“AMC”), upon receipt of the remand order from the Board, sent instructions to the Cincinnati VA Medical Center requesting that a medical examiner review the record and provide a nexus opinion “as to whether any current right knee disability currently found is as likely as not related to the in-service injury of the right knee.” The front page of the instructions read:
General Remarks:
CLAIMS FILE BEING SENT FOR REVIEW BY THE EXAMINER.
NO EXAM AT THIS TIME
NO EXAM AT THIS TIME
NO EXAM AT THIS TIME
The more detailed instructions on the second page specified that “[i]f the medical specialist deems it to be necessary, the veteran should undergo a VA examination and/or diagnostic testing.” A VA medical examiner reviewed Mr. Sickels' records in August 2005 and concluded that “it is LESS likely than not that the veteran's injury in 1949 resulted in his current symptomatology in the right knee.” The examiner noted that “[t]his is a file review only and there was no examination.”
Additional records were obtained from the Office of the Surgeon General in May 2007, and the AMC sent another request to the Cincinnati VA Medical Center for a review of Mr. Sickels' records. The instructions noted on the front page:
General Remarks:
NO EXAM!!! NO EXAM!!! NO EXAM!!! REVIEW/OPINION ONLY!!!
It was again noted in the detailed instructions that “[i]f the medical specialist deems it to be necessary, the veteran should undergo a VA examination and/or diagnostic testing.” In July 2007, another medical examiner reviewed Mr. Sickels' records and filed a report stating that “it is less likely than not that the veteran's current right knee osteoarthritis is secondary to his right knee in-service injury.”
In October 2007, the AMC issued a supplemental statement of the case which continued to deny Mr. Sickels' claim for lack of service connection. Mr. Sickels again appealed to the Board and argued that the VA should have performed additional diagnostic testing on his knee as a result of the remand order. The Board reviewed the actions taken pursuant to its initial remand and found the additional record searches and medical specialist reviews were sufficient to comply with its instructions. The Board also found that the VA satisfied its duties to notify and assist Mr. Sickels with developing his claim.
Mr. Sickels appealed to the Veterans Court and argued, inter alia, that the Board failed to provide adequate reasons or bases to support its findings and conclusions as required by 38 U.S.C. § 7104(d)(1). Mr. Sickels alleged that the Board failed to address whether the June 2005 and July 2007 opinions were thorough and informed. He specifically faulted the VA for not obtaining an MRI of his right knee before issuing its nexus opinion and argued that the instructions sent to the medical examiners were confusing and did not provide them with clear discretion to perform additional diagnostic testing if needed. The Veterans Court rejected Mr. Sickels' argument and noted that he presented no testimony or other evidence to demonstrate that the absence of an MRI rendered the examiners' opinions uninformed or inadequate. The Veterans Court also rejected the argument that the instructions to the examiners were confusing because Mr. Sickels failed to make the argument to the Board and because examiners' opinions are presumed competent. Mr. Sickels renews these arguments on appeal. We have jurisdiction under 38 U.S.C. § 7292.
Mr. Sickels' appeal focuses on whether 38 U.S.C. § 7104(d)(1) requires the Board to provide written reasons and bases to support an implicit conclusion that a VA medical opinion is sufficiently informed by physical examination or other diagnostic procedures. Section 7104(d) requires that “[e]ach decision of the Board shall include—(1) a written statement of the Board's findings and conclusions, and the reasons or bases for those findings and conclusions, on all material issues of fact and law presented on the record; and (2) an order granting appropriate relief or denying relief.” 38 U.S.C. § 7104(d).
The scope of our review authority over a final decision of the Veterans Court is limited by statute. We review “all relevant questions of law, including interpreting constitutional and statutory provisions.” Id. § 7292(d)(1). Absent a constitutional issue, we...
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