holding that VA must pose a hypothetical question to an independent medical expert that “may not suggest an answer or limit the field of inquiry of the expert,” and reliance on an independent medical opinion where the Board constrained the scope of inquiry is improper because such constraints resulted in “limiting [the examiner’s] investigation and tainting the results”
How later courts described this case
- holding that VA must pose a hypothetical question to an independent medical expert that “may not suggest an answer or limit the field of inquiry of the expert,” and reliance on an independent medical opinion where the Board constrained the scope of inquiry is improper because such constraints resulted in “limiting [the examiner’s] investigation and tainting the results”
- finding improper the Board’s reliance on an independent medical opinion where the Board constrained the scope of inquiry in the engagement letter, thereby “limiting [the examiner’s] investigation and tainting the results”
- considering medical treatises that "provide a new basis of authority for granting service connection" as newly submitted evidence for purposes of reopening
- remanding for the Board to consider medical treatises supporting a theory that the Board rejected “as lacking support in the medical community”
Written by the judges who cited it.
The opinion
KRAMER, Judge,
concurring:
I concur to the extent indicated.
As to Part 11(A), the letters written by Dr. Gilden and Dr. Warren constitute new and material evidence. Pursuant to 38 U.S.C. § 5108 , the Secretary must reopen a previously and finally disallowed claim when “new and material” evidence is presented or secured with respect to that claim. See 38 U.S.C. § 7104 (b). “New” evidence is that which is not merely cumulative of other evidence of record. Cox v. Brown, 5 Vet.App. 95, 98 (1993). “Material” evidence is that which is relevant to and probative of the issue at hand, and which provides a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome of the case. Id. Both Dr. Gilden’s and Dr. Warren’s letters: (1) provide information which is not cumulative of other evidence of record, (2) are relevant to and probative of the issue of whether the appellant’s multiple sclerosis (MS) became manifest during the presumptive period, and (3) provide a reasonable possibility, when viewed in context of all the evidence of record, that the appellant could be entitled to presumptive service connection for MS. Both letters are therefore new and material.
As to Parts 11(B), (C), on the specific facts of this ease, whether the two independent medical opinions violated the fair process requirements of Thurber v. Brown, 5 Vet.App. 119, 120-21 (1993), and Austin v. Brown, 6 Vet.App. 547, 551-52 (1994), is not a proper subject for review by this Court. While the use of these two medical opinions may have created error in the February 1990 Board of Veterans’ Appeal decision, the Court has no jurisdiction over this decision because: (1) the Notice of Disagreement which led to that decision was filed prior to November 18, 1988 (Veterans’ Judicial Review Act, Pub.L. No. 100-687, § 402 , 102 Stat. 4105 , 4122 (1988) (found at 38 U.S.C. § 7251 note)); (2) no timely Notice of Appeal was filed as to that decision ( 38 U.S.C. § 7266 ); and (3) it cannot be the subject of review for clear and unmistakable error (CUE) (Smith (William A.) v. Brown, 35 F.3d 1516 (Fed.Cir.1994)). Thus, error in the February 1990 decision cannot be a predicate either for ordering a new medical opinion or for CUE.
Nevertheless, because new and material evidence has been submitted, the appellant’s claim is of necessity well grounded, thus triggering the duty to assist. See Gobber v. Derwinski, 2 Vet.App. 470, 472 (1992); 38 *271 U.S.C. § 5107 . On that basis, a new medical examination/opinion should be ordered.