Khadijah El-Amin v. Eric K. Shinseki

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO.10-3031

KHADIJAH EL-AMIN, APPELLANT,

V.

ERIC K. SHINSEKI,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Argued November 15, 2012 Decided January 15, 2013)

Martin V. Totaro, of Washington, D.C., with whom Barbara A. Curran, of Livingston, New

Jersey, was on the brief, for the appellant.

Dustin P. Elias, with whom Will A. Gunn, General Counsel; R. Randall Campbell, Assistant

General Counsel; and Nisha C. Wagle, Deputy Assistant General Counsel, all of Washington, D.C.,

were on the brief, for the appellee.

Before KASOLD, Chief Judge, and HAGEL and MOORMAN, Judges.

HAGEL, Judge, filed the opinion of the Court. KASOLD, Chief Judge, filed a dissenting

opinion.

HAGEL, Judge: On May 17, 2012, the Court issued a memorandum decision affirming an

August 16, 2010, Board of Veterans' Appeals (Board) decision that denied Khadijah El-Amin

entitlement to VA benefits for the cause of her husband's death. On June 6, 2012, Mrs. El-Amin,

through counsel, filed a motion for reconsideration or, in the alternative, a decision by a three-judge

panel. On August 29, 2012, the matter was submitted to a panel of the Court and oral argument was

held on November 15, 2012. The Court will withdraw the May 17, 2012, memorandum decision and

issue this opinion in its stead.

The precise question for the panel is whether a VA examiner's statement that deceased

veteran Khalil El-Amin's alcoholism was "related to" factors other than his service-connected post-

traumatic stress disorder is sufficient to permit the Board to conclude that Mr. El-Amin's service-

connected post-traumatic stress disorder did not aggravate his alcoholism. We conclude that it is not.

Further, we find that the Board erred in relying on an inadequate medical opinion to conclude that

Mr. El-Amin's non-service-connected alcoholism was not aggravated by his service-connected post-

traumatic stress disorder. Accordingly, the Court will vacate the August 2010 Board decision and

remand the matter for further development and readjudication consistent with this decision.

I. FACTS

Mr. El-Amin served on active duty in the U.S. Marine Corps from September 1966 to May

1969, including service in Viet Nam. The record reflects that, during his lifetime, Mr. El-Amin was

diagnosed with and treated for drug and alcohol abuse and hepatitis C, none of which was ever

determined to be connected to his military service.

Mr. El-Amin died in October 2006, and his death certificate lists the cause of death as hepatic

cirrhosis. At the time of his death, Mr. El-Amin was in receipt of VA disability benefits for post-

traumatic stress disorder, with a 70% disability rating. Mrs. El-Amin seeks benefits for the cause

of her husband's death, asserting that Mr. El-Amin's service-connected post-traumatic stress disorder

either caused or aggravated his alcoholism, which in turn led to the cirrhosis that caused his death.

In the August 2010 decision on appeal, the Board denied Mrs. El-Amin's claim on the basis

that there is no evidence that Mr. El-Amin's death was a result of any service-connected condition.

The decision was based almost exclusively on an October 2008 VA medical opinion, which was

based on a records review, in which the examiner stated:

[I]t is this examiner's conclusion that there is no confirmatory or supportive evidence

that the veteran's post-traumatic stress disorder caused his alcohol abuse, and thus it

is NOT at least as likely as not that the veteran's [post-traumatic stress disorder]

caused his alcohol abuse. Conversely, it is more likely than not that the veteran's

alcohol abuse was related to factors other than the veteran's post-traumatic stress

disorder.

Record (R.) at 93. When considering the record evidence, the Board adopted this opinion as the

rationale for its decision:

The Board finds the October 2008 opinion of the VA examiner to be the most

probative evidence of record regarding whether [Mr. El-Amin's] cause of death was

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related to service. The Board notes that there is no medical evidence of record that

contradicts the opinion of the examiner.

...

Also, the Board acknowledges [Mrs. El-Amin's] contention that [her husband's]

service-connected [post-traumatic stress disorder] caused him to drink, which in turn

caused or aggravated his cirrhosis. Certainly, [she] is competent to report how much

and how often [her husband] was drinking during the marriage. She is not

competent, however, to opine as to the cause of [his] addiction to alcohol or his

cirrhosis, and, even if the Board found [her] competent in that regard, the Board

nevertheless finds the opinion of the October 2008 examiner to be the most probative

evidence regarding the relationship between [Mr. El-Amin's] [post-traumatic stress

disorder] and cirrhosis.

R. at 11, 12. This appeal followed.

II. ANALYSIS

A. Cause of Death and Aggravation

A veteran's death will be considered service connected when a service-connected disability

"was either the principal or a contributory cause of death." 38 C.F.R. § 3.312(a) (2012); see

38 U.S.C. § 1310. For a service-connected disability to be considered a contributory cause of death,

it must be shown that it contributed substantially or materially to the production of death, combined

to cause death, or aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c).

In a decision early in its history, the Court determined that "any additional impairment of

earning capacity resulting from an already service-connected condition, regardless of whether or not

the additional impairment is itself a separate disease or injury caused by the service-connected

condition, shall be compensated." Allen v. Brown, 7 Vet.App. 439, 448 (1995). More specifically,

"when aggravation of a veteran's non-service-connected condition is proximately due to or the result

of a service-connected condition, such veteran shall be compensated for the degree of disability (but

only that degree) over and above the degree of disability existing prior to the aggravation." Id. It

follows logically from this holding that the "compensation" for such aggravation by the service-

connected condition includes the death benefits that Mrs. El-Amin seeks here, if it can be shown that

the non-service-connected disability was aggravated to the degree that it contributed substantially

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

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production of death. 38 C.F.R. § 3.312(c). Such a finding would result in an unbroken chain

between the service-connected disability and the condition that caused the veteran's death. Here, for

example, the chain would proceed: Mr. El-Amin's service-connected post-traumatic stress disorder

aggravated his non-service-connected alcoholism, which caused or contributed to his cirrhosis,

which caused his death.

To be sure, the question of whether any aggravation of Mr. El-Amin's non-service-connected

alcoholism contributed to his development of cirrhosis is a factual one that has not yet been

addressed by the Board. See Elkins v. Gober, 229 F.3d 1369, 1377 (Fed. Cir. 2000) ("Fact-finding

in veterans cases is to be done by the expert [Board], not by the Veterans Court."). The Board did

not reach this question below because the inquiry ended when the Board determined that there was

no connection between Mr. El-Amin's service-connected post-traumatic stress disorder and his non-

service-connected alcoholism. At oral argument, however, the Secretary conceded that there is prima

facie evidence that Mr. El-Amin's alcoholism caused or contributed to the development of cirrhosis.

On remand, the Board will consider and weigh this evidence in the first instance if it determines that

the evidence of aggravation of Mr. El-Amin's alcoholism by his post-traumatic stress disorder weighs

in favor of his claim or is in equipoise. See 38 U.S.C. § 5107(b) ("When there is an approximate

balance of positive and negative evidence regarding any issue material to the determination of a

matter, the Secretary shall give the benefit of the doubt to the claimant.").

B. Adequacy of Medical Examination

The law regarding adequacy of VA medical examinations is well settled and voluminous.

The Secretary's duty to assist a claimant includes, among other things, "providing a medical

examination or obtaining a medical opinion when such an examination or opinion is necessary 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 "thorough and contemporaneous" and consider prior medical

examinations and treatment. Green v. Derwinski, 1 Vet.App. 121, 124 (1991). A medical

examination is adequate "where it is based upon consideration of the veteran's prior medical history

and examinations and also describes the disability . . . in sufficient detail so that the Board's

'evaluation 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

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examiner must provide a "reasoned medical explanation connecting" his observations and his

conclusions. Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 304 (2008) ("It is the factually accurate,

fully articulated, sound reasoning for the conclusion . . . that contributes probative value to a medical

opinion."). If an examination report does not contain sufficient detail, "it is incumbent upon the

rating board to return the report as inadequate for evaluation purposes." 38 C.F.R. § 4.2 (2012); see

Bowling v. Principi, 15 Vet.App. 1, 12 (2001) (emphasizing the Board's duty to return inadequate

examination report).

Whether a medical opinion is adequate is a finding of fact, which the Court reviews under

the "clearly erroneous" standard. See 38 U.S.C. § 7261(a)(4); D'Aries v. Peake, 22 Vet.App. 97, 103

(2008); Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990). "A factual finding 'is "clearly erroneous"

when although there is evidence to support it, the reviewing court on the entire evidence is left with

the 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)).

The Board determined that the October 2008 VA medical examination report was adequate

because "the examiner reviewed the claims file, provided the requested opinions, and gave adequate

rationale for his conclusions." R. at 8. The Court finds the Board's conclusion clearly erroneous.

The October 2008 VA examiner's opinion focuses solely on direct causation, concluding that

Mr. El-Amin's post-traumatic stress disorder did not cause his alcoholism. R. at 92-93 ("[T]he

examiner found no mental health provider that offered the opinion that the veteran's alcohol

dependence or abuse was caused by his post-traumatic stress disorder;" "[I]t is this examiner's

conclusion that there is no confirmatory or supportive evidence that the veteran's post-traumatic

stress disorder caused his alcohol abuse, and thus it is NOT at least as likely as not that the veteran's

[post-traumatic stress disorder] caused his alcohol abuse."). Although the examiner then stated that

it was "more likely than not that the veteran's alcohol abuse was related to factors other than the

veteran's post-traumatic stress disorder," R. at 93 (emphasis added), it is not at all clear to the Court

that this encompasses a discussion of aggravation (the theory on which Mrs. El-Amin bases her

claim) at all, let alone with respect to post-traumatic stress disorder. It is likewise unclear to the

Court how the Board could interpret the examiner's statements as having considered whether Mr.

El-Amin's post-traumatic stress disorder aggravated his alcohol abuse. At best, it might be said that

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the examiner considered and opined that Mr. El-Amin's alcohol abuse was aggravated by (that is,

"was related to") "factors other than" post-traumatic stress disorder. R. at 93. This does not rule out

the possibility that it was also aggravated to some degree by his post-traumatic stress disorder; the

examiner only opined that Mr. El-Amin's alcoholism was not "caused" by his post-traumatic stress

disorder. Id. This is the only plain statement provided by the examiner with respect to the

relationship between Mr. El-Amin's post-traumatic stress disorder and his alcohol abuse.

Accordingly, on the question of aggravation, the Board's conclusion that the examination was

adequate was clearly erroneous, see D'Aries, 22 Vet.App. at 103, and therefore the Board erred 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, however, his focus on direct causation appears to have been

driven by the VA inquiry request for the examination. In fact, the examiner opened his examination

report by stating that he had been "asked to provide an opinion regarding the cause of death." R. at

92. The inquiry report requested that the examiner "indicate if the veteran's alcohol abuse was

related to [his] [post-traumatic stress disorder] or if the alcohol abuse was a separate[,] unrelated

disability." R. at 95. This could, perhaps, be interpreted as including a request for an opinion on

aggravation, but the inquiry request went on to require that the examiner state his conclusion

using one of the following legally recognized phrases:

a) _____ is caused by or a result of _____

b) _____ is most likely caused by or a result of _____

c) _____ is at least as likely as not (50/50 probability) caused by or a result of _____

d) _____ is less likely as not (less than 50/50 probability caused by or a result of

_____

e) is not caused by or a result of _____

f) I cannot resolve this issue without resort to mere speculation

Id. These options do not permit the examiner to opine on any question other than one of direct

causation. Cf. Bielby v. Brown, 7 Vet.App. 260, 269 (1994) (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").

In light of the above discussion, the Court will vacate the Board decision and remand the

matter for a new VA medical opinion that considers the relevant evidence of record and expressly

opines as to whether Mr. El-Amin's service-connected post-traumatic stress disorder aggravated his

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non-service-connected alcohol abuse and, if so, to what degree. If aggravation is found, the Board

must then determine whether the degree of aggravation of alcohol abuse caused or contributed to the

development of cirrhosis and determine whether a medical opinion is necessary to answer that

question. In this regard, the Court notes that the October 2008 VA examiner indicated that he, as

a psychologist, was not equipped to render an opinion on that question. Accordingly, the Board

should, if it determines that a medical opinion is necessary on this issue, seek the opinion of a

qualified medical professional.1

As a final matter, the Court notes that the Board also denied entitlement to burial benefits.

Although Mrs. El-Amin did not raise any arguments related to that decision in her briefs, because

that denial was premised on the Board's finding that Mr. El-Amin's service-connected post-traumatic

stress disorder was not a contributory cause of his death, the matters are inextricably intertwined.

See Henderson v. West, 12 Vet.App. 11, 20 (1998) ("[W]here a decision on one issue would have

a 'significant impact' upon another, and that impact in turn 'could render any review by this Court of

the decision [on the other claim] meaningless and a waste of judicial resources,' the two claims are

inextricably 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 (Fed.

Cir. 2011); vacated and remanded, 132 S. Ct. 75 (2011)); see also Smith v. Gober, 236 F.3d 1370,

1372 (Fed. Cir. 2001) (holding that, where the facts underlying two claims are "intimately

connected," the interests of judicial economy and of avoiding piecemeal litigation require the claims

to be appealed together). Because the Court is remanding Mrs. El-Amin's claim for benefits for the

cause of her husband's death, her claim for burial benefits must also be remanded.

On remand, Mrs. El-Amin is free to submit additional evidence and argument in accordance

with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). See Kay v.

Principi, 16 Vet.App. 529, 534 (2002). "A remand is meant to entail a critical examination of the

justification for the decision" by the Board. Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991). In

1

To be clear, the Court is not directing the Board to obtain two separate opinions–one on the question of

whether Mr. El-Amin's post-traumatic stress disorder aggravated his alcohol abuse and one on the question of whether

that aggravation contributed to the development of cirrhosis–as long as the Board seeks a single opinion from a medical

professional qualified to answer both questions.

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addition, the Board shall proceed expeditiously, in accordance with 38 U.S.C. § 7112 (expedited

treatment of remanded claims).

As a final matter, the Court feels that it would be remiss if it did not recognize the superior

oral advocacy by both counsel in this appeal. Such advocacy, of course, reflects well on these

lawyers. More important to the Court, however, is that it permits the Court to consider and decide

the key issue or issues presented by the case and to decide them with some dispatch. Despite the

outcome of this or other cases, their professionalism serves their clients well and displays respect

for and honor to this Court. It further facilitates the delivery of justice in a timely fashion.

III. CONCLUSION

Upon consideration of the foregoing, the August 16, 2010, Board decision is VACATED and

the matters are REMANDED for further development and readjudication consistent with this

decision.

KASOLD, Chief Judge, dissenting: I issued the single-judge memorandum decision

affirming the Board decision that denied Mrs. El-Amin entitlement to VA benefits for the cause of

her husband's death, while noting that Mrs. El-Amin had submitted a confusing brief. Through new

counsel, Mrs. El-Amin filed a motion for reconsideration and in the alternative panel review on the

basis that the medical opinion relied on by the Board was inadequate because it did not address

aggravation. Although piecemeal litigation is not condoned, Fugere v. Derwinski, 1 Vet.App. 103,

105 (1990) ("Advancing different arguments at successive stages of the appellate process does not

serve the interests of the parties or the Court. Such a practice hinders the decision-making process

and raises the undesirable specter of piecemeal litigation."), the request for reconsideration brought

clarity to the original argument and the issue warranted panel review because the outcome now

appeared to be reasonably debatable. Accordingly, I granted reconsideration and forwarded Mrs. El-

Amin's appeal to panel for decision. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990) (finding

that a single judge may resolve an appeal if "the case on appeal is of relative simplicity and[, inter

alia,] . . . does not apply an established rule of law to a novel fact situation [or] the outcome is not

reasonably debatable").

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On panel review, I disagree with the conclusion reached by the majority.2 Succinctly stated,

although the examiner's opinion is not perfect, I do not find it limited to direct causation or so

unclear as to aggravation that the Board was clearly erroneous in its (1) view of that opinion in the

context of the entire record, (2) weighing of all of the record evidence, or (3) decision that Mr.

El-Amin's death was not service connected. See Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990)

("'Where there are two permissible views of the evidence, the factfinder's choice between them

cannot be clearly erroneous.'" (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573-74

(1985)); see also Thompson v. Gober, 14 Vet.App. 187, 192 (2000) ("'Perfection is an aspiration, but

the failure to achieve it in the judicial process, as elsewhere in life, does not, absent injury, require

a repeat performance.'" (quoting Miles v. M/V Mississippi Queen, 753 F.2d 1349, 1352 (5th Cir.

1985)); see also Stallworth v. Nicholson, 20 Vet.App. 482, 491 (2006) (Lance, J., dissenting) (noting

that an "unjustified remand [] only 'perpetuates the hamster-wheel reputation of veterans law'")

(quoting Coburn v. Nicholson, 19 Vet.App. 427, 434 (2000) (Lance, J., dissenting)).

Nevertheless, I note that this case underscores the need for panel review when – prior to oral

argument or panel discussion – the outcome of a case appears reasonably debatable as to the facts.

See Frankel, 1 Vet.App. at 25-26. Claimants for VA benefits get a one-person review at the agency

of original jurisdiction and a one-person review at the Board. Although most of our cases can and

should be decided by a single judge, Frankel does not limit panel review to questions of law and

there should be little hesitation to send a case to panel when the result could be reasonably debatable.

Id.; see also Washington v. Nicholson, 19 Vet.App. 362, 372-75 (2005) (Kasold, J., concurring in

part and dissenting in part) (disagreeing on the weighing of the facts).

2

Although I disagree with the ultimate decision of the majority, I concur in their recognition of the superior

oral advocacy of counsel for both parties.

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