Angel S. Nieves-Rodriguez v. James B. Peake

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO . 06-0312

ANGEL S. NIEVES-RODRIGUEZ, APPELLANT ,

v.

JAMES B. PEAKE , M.D.,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Decided December 1, 2008)

Mark R. Lippman, of La Jolla, California, was on the brief for the appellant.

Paul J. Hutter, General Counsel; R. Randall Campbell, Assistant General Counsel; Joan E.

Moriarty, Deputy Assistant General Counsel; and Savitri D. Persaud, Appellate Attorney, all of

Washington, D.C., were on the brief for the appellee.

Before HAGEL, DAVIS, and SCHOELEN, Judges.

DAVIS, Judge: U.S. Army veteran Angel S. Nieves-Rodriguez appeals through counsel a

November 17, 2005, Board of Veterans' Appeals (Board) decision that denied entitlement to

disability compensation for major depression secondary to Guillain-Barre syndrome,1 and to a

disability rating in excess of 10% for his service-connected Guillain-Barre syndrome. This Court

has jurisdiction to review the Board's decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). For

the following reasons, the Court will vacate the Board's November 2005 decision and remand the

matter for readjudication consistent with this decision.

Preliminarily, the Court notes that the appellant does not raise any arguments regarding the

disability rating for his service-connected Guillain-Barre syndrome. Thus, the Court deems any

appeal with respect to this issue abandoned. See Ford v. Gober, 10 Vet.App. 531, 535 (1997).

1

Guillain-Barre syndrome: acute idiopathic polyneuritis; idiopathic: of unknown cause or spontaneous origin;

polyneuritis: inflammation of several peripheral nerves at once. D O RLAN D 'S I LLU STRATED M ED ICAL D ICTION ARY 803,

905, 1482 (30th ed. 2003).

The appellant's sole argument on appeal is that VA violated its duty to assist by failing to

advise him that his claims file could be forwarded to the two physicians who provided medical

opinions in support of his claim in order to assist these physicians in developing more complete

medical opinions. The appellant reasons that a claimant should be offered the opportunity to provide

the claims file to a physician furnishing a medical opinion on his or her behalf, at least where the

Board attaches more probative value to a VA medical opinion on the basis the VA examiner

reviewed the claims file. The appellant asserts that such a procedure is, or should be, inherently part

of VA's duty to assist, consistent with congressional intent that VA is to "fully and sympathetically

develop the veteran's claim to its optimum before deciding it on the merits." Appellant's Brief at 5

(citing H.R. REP. No. 100-963 (1988)). He argues that the Court should vacate and remand the

Board's decision.

The Secretary responds that he has no duty, absent a request from a claimant, to forward the

claims file to an opining private physician. He asserts that the Board gave a sufficient explanation

for assigning more weight to the VA examiner's opinion than to the opinions on which the appellant

relies, and argues for affirmance of the Board decision.

I. BACKGROUND

The appellant served on active duty in the U.S. Army from November 1954 to October 1956.

During service he was treated for Guillain-Barre syndrome. In April 1956, a service medical record

(SMR) noted that the appellant had situational maladjustment because of separation from his parents

and familiar surroundings and the fact that he disliked the kind of food prepared in the hospital. The

appellant's service separation examination noted a normal psychiatric condition. In February 1957,

a VA regional office (RO) granted service connection for Guillain-Barre syndrome and assigned a

10% disability rating.

Years later, the appellant began experiencing psychological difficulties for which he sought

service connection. At a September 1970 psychiatric examination at the VA hospital in San Juan,

Puerto Rico, the appellant complained of a nervous condition that had begun nine or ten months

earlier, although he did not know what caused it. The examiner diagnosed the appellant with anxiety

reaction but did not discuss the etiology of the condition. In November 1970, the RO denied

2

entitlement to service connection for anxiety reaction. October 1995 treatment records reflect a

diagnosis of major depression. In November 1998, the RO denied the appellant's claim for

entitlement to service connection for major depression, including as secondary to Guillain-Barre

syndrome. The appellant perfected an appeal of the November 1998 rating decision in June 2000.

The appellant obtained medical opinions from two physicians, which he adduces in support

of his claim for service connection. In April 1999, Dr. Norberto Pellot Moran submitted a letter

stating that he had treated the appellant since 1995 and that the appellant "has the condition of Severe

Major Depression, secondary to Guill[ain-] Barre condition." Record (R.) at 305. In July 2000, Dr.

Jose Arturo Juarbe Ortiz [hereinafter "Dr. Juarbe Ortiz"] completed a VA Fee Basis Interim

Summary in which he concluded that the appellant was "suffering from major depression as a result

of his physical ailment service[-]con[n]ected condition." R. at 452.

At an October 2000 RO hearing, Dr. Juarbe Ortiz testified that he had reviewed the

appellant's claims file and interviewed him on two occasions. He further testified that it was his

opinion that the appellant had developed a depressive disorder as a result of his Guillain-Barre

syndrome. The VA hearing officer asked Dr. Juarbe Ortiz whether he had read the records from a

VA hospital neurology department as they related to the appellant's Guillain-Barre syndrome, and

Dr. Juarbe Ortiz replied that he had not.

The appellant underwent VA psychiatric examinations in December 2000 and April 2004.

The same physician conducted both examinations. After reviewing the appellant's claims file and

medical records, the examiner noted that previous VA neurological evaluations showed "very little

and very mild consequences from his Guillain-Barre" syndrome. R. at 488. The examiner opined

that there was no etiological relationship between the appellant's present neuropsychiatric condition,

dysthymic disorder, and sequelae of service-connected Guillain-Barre syndrome.

In the decision here on appeal, the Board placed more probative weight on the VA psychiatric

examinations. The Board found the VA examiner's opinions "persuasive and supported by medical

evidence," and stated that the examiner had "provided a definitive opinion with rationale, which was

supported by specific examples from the veteran's medical records." R. at 8. The principal reason

the Board gave for discounting the evidence in the medical opinions from Dr. Pellot Moran and Dr.

Juarbe Ortiz, submitted by the appellant, was that "neither private psychiatrist's assessment linking

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the veteran's depressive disorder to service-connected Guillain-Barre syndrome is informed by the

in[-]depth claims file review as are the assessments of the VA psychiatrist." R. at 9.

II. ANALYSIS

A. Duty To Assist

At issue is what activities are encompassed by the statutory duty to "make reasonable efforts

to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim." 38 U.S.C.

§ 5103A(a). The duty to assist under 38 U.S.C. § 5103A is very broad, and VA has discretion to

decide how much development is necessary. See Shoffner v. Principi, 16 Vet.App. 208, 213 (2002).

Beyond requiring the Secretary to provide a medical examination or obtain 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); McLendon v. Nicholson, 20 Vet.App. 79, 81 (2006); 38 C.F.R. § 3.159(c)(4) (2008),

however, neither the statute nor its implementing regulation specifies what further evidentiary

development is required once VA has determined that the medical evidence that has been submitted

is insufficient to decide the claim.2

In this case, VA provided two medical examinations. See R. at 486-88 (December 2000 VA

examination); R. at 556-64 (April 2004 VA examination). The appellant does not argue that either

VA examination was inadequate in any respect, nor does he argue that VA's intention in ordering

the examinations was to develop negative evidence, in violation of Mariano v. Principi, 17 Vet.App.

305, 312 (2003) ("Because it would not be permissible for VA to undertake . . . additional

development if [the] purpose was to obtain evidence against an appellant's case, VA must provide

an adequate statement of reasons or bases for its decision to pursue further development where such

development reasonably could be construed as obtaining additional evidence for that purpose.").

Further, the Board stated that the VA medical examinations were persuasive for multiple reasons,

none of which have been challenged by the appellant. Accordingly, the Court holds that VA's

procurement of the VA medical examinations was an adequate effort to assist in developing the

appellant's claim. In short, VA fulfilled its duty to assist.

2

The duty to assist also includes assisting the claimant to obtain various documentary records, although that

specific duty is not at issue in this case. See 38 U.S.C. § 5103A(b), (c).

4

Nevertheless, the appellant argues that VA has the duty to advise a claimant that a copy of

the claims file can, with the appropriate authorization, be forwarded to a private physician who

intends to render an opinion on behalf of the claimant. If VA regards a private medical opinion as

deficient because it is not based on a review of the claims file, the appellant reasons, the Secretary

should offer to furnish the claims file to that physician in order to render a more complete opinion.

In the appellant's view, this offer should be made before any merits determination.

The appellant cites Watai v. Brown, 9 Vet.App. 441, 444 (1996), in support of his argument.

In Watai, a private physician submitted a nexus opinion that, while generally favorable to the

veteran's case, stated: "Since I do not have access to his medical records, I would not be able to

evaluate this aspect [nexus to service events] of his renal problem." Id. at 442. The Watai Court

held that "the Secretary was put on notice that the appellant needed to develop further the evidence

pertinent to his claim. Under these circumstances, the Secretary had a duty to inform the appellant

that the Secretary, upon proper authorization . . . would furnish copies of the relevant service medical

records to [the physician] to enable him to render a less speculative opinion." Id. at 444 (emphasis

added).3

At the outset, the Court notes that the facts of this case are distinguishable from those of

Watai in at least two important respects. First, in Watai, VA never afforded the veteran a medical

nexus examination, basing its determination solely on the inconclusiveness of the private medical

examination reports with respect to the causation issue. In this case, however, the appellant

underwent two VA psychiatric examinations. Second, unlike the private physician in Watai, neither

of the physicians who provided the appellant's medical opinions in this case expressed any sense of

limitation on their ability to render an opinion based upon lack of access to the claims file. In fact,

one of the physicians on whose opinion the appellant relies–Dr. Juarbe Ortiz–apparently had a copy

of the claims file, but incompletely reviewed it.

Watai is merely in accord with other cases establishing that the content of information and

evidence received by VA may require an appropriate response, consistent with the duty to assist.

3

The Court notes that, here, Dr. Pellot Moran concluded his letter with the statement, "For any additional

information in this matter, please communicate with us and we will happily answer you." R. at 305. The Court takes

no position on whether this invitation raised a duty of further inquiry on the part of VA, as no such argument has been

raised or briefed to the Court.

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See, e.g., Daves v. Nicholson, 21 Vet.App. 46, 51-52 (2007) (VA medical examiner's statement that

the requested opinion could not be provided without an autopsy triggered the Secretary's duty to

investigate whether autopsy could be reasonably obtained); Green v. Derwinski, 1 Vet.App. 121,

123 (1991) ("It is . . . impossible to square the Secretary's duty to assist . . . with [VA's] failure to

follow up the suggestion by the examining physician that a review of the veteran's records 'might

help clarify the diagnostic doubt.'"). All of these cases extend the Secretary's duty to assist based on

a statement by a medical professional placing VA on notice that review of the claims folder was

necessary in the particular case to render a thorough opinion.

Even the most expansive reading of Watai does not establish a general duty to point out the

availability of the claims file to every claimant who seeks or provides private medical evidence. To

find that Watai imposes such a general duty, we must assume that VA will systematically discount

private medical opinions where they are not based on review of the claims file. In such a scenario,

the absence of the claims file would be an automatic penalty against an opinion offered by a private

physician, and it would be superfluous whether the opinion expressly noted that the private physician

was hampered by its absence. For reasons set forth below, however, the Court rejects that

assumption.

B. Law and Practice of Evaluating Medical Opinions

We next turn to the question whether the Board erred in discounting the opinions of Dr.

Pellot Moran and Dr. Juarbe Ortiz, submitted by the appellant in support of his claim, merely

because they were not based on a review of his claims file. As with all types of evidence, it is the

Board's responsibility to weigh the conflicting medical evidence to reach a conclusion as to the

ultimate grant of service connection. See Wood v. Derwinski, 1 Vet.App. 190, 193 (1991). The

Board may favor the opinion of one competent medical expert over another if its statement of

reasons and bases is adequate to support that decision. See Owens v. Brown, 7 Vet.App. 429, 433

(1995). Stated another way, the Board decides, in the first instance, which of the competing medical

opinions or examination reports is more probative of the medical question at issue.

This Court has heretofore issued only the most general guidelines as to what factors

contribute to the probative value of medical opinions. See Guerrieri v. Brown, 4 Vet.App. 467, 470-

71 (1993) ("The probative value of medical opinion evidence is based on the medical expert's

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personal examination of the patient, the physician's knowledge and skill in analyzing the data, and

the medical conclusion that the physician reaches."). More recently, this Court held that a medical

examination report must contain not only clear conclusions with supporting data, but also a reasoned

medical explanation connecting the two. See Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007) ("[A]

medical opinion . . . must support its conclusion with an analysis that the Board can consider and

weigh against contrary opinions."). The question remains whether the lack of claims file review

necessarily reduces the probative value of a medical opinion submitted on behalf of a claimant.

1. Adequacy of VA Medical Examinations

The Secretary's regulations provide that it is "essential, both in the examination and in the

evaluation of disability, that each disability be viewed in relation to its history." 38 C.F.R. § 4.1

(2008). Further, "[i]f a diagnosis is not supported by the findings on the examination report or if the

report does not contain sufficient detail, it is incumbent upon the rating board to return the report as

inadequate for rating purposes." 38 C.F.R. § 4.2 (2008). It is also well established in this Court's

jurisprudence that a thorough and contemporaneous medical examination is "one which takes into

account the records of prior medical treatment, so that the evaluation of the claimed disability will

be a fully informed one." Green, 1 Vet.App. at 124. Thus, the Secretary, when he undertakes to

provide a medical examination or obtain a medical opinion, must ensure that the examiner providing

the report or opinion is fully cognizant of the claimant's past medical history.

Both the Court and VA have invoked the notion of reviewing the "claims file" as a surrogate

for obtaining an overview of the entire medical history.4 See Proscelle v. Derwinski, 2 Vet.App. 629,

632 (1992) ("The [VA] examiner should have the veteran's full claims file available for review.").

The claims file, generally speaking, contains all documents associated with a veteran's disability

claim, including not only medical examination reports and SMRs, but also correspondence, raw

medical data, financial information, rating decisions of VA regional offices, Notices of

Disagreement, such materials pertaining to claims for conditions not currently at issue and, often,

Board decisions disposing of earlier claims.

4

VA materials refer to a "claims folder," which is defined as "[t]he file containing all documents concerning

a veteran's claim or appeal." Understanding the Appeal Process (VA Pamphlet 01-95-1) at 27 (Apr. 1995).

7

This Court, however, has not required VA medical examiners to perform a complete review

of the entire claims file or state that they have done so in every instance. See Snuffer v. Gober,

10 Vet.App. 400, 403-04 (1997) (review of claims file not required where it would not change the

objective and dispositive findings made during a medical examination); see also D'Aries v. Peake,

22 Vet.App. 97, 106 (2008) (holding that it is not necessary for a VA medical examiner to specify

that he has read the entire claims file where it is clear from the report that he has done so and is

familiar with the claimant's extensive medical history).

2. Private Medical Opinions

The claimant may submit his own medical evidence from private physicians. 38 U.S.C.

§ 5125. Unlike other administrative benefits systems, however, this Court has expressly rejected a

rule that the opinions of private treating physicians are entitled to presumptively greater weight in

evaluating veterans' claims. See Guerrieri, 4 Vet.App. at 473; see also D'Aries, 22 Vet.App. at 107-

08. Therefore, VA is statutorily permitted, but not required, to accept a report provided by a private

physician as sufficient to grant a claim without confirmation by a VA examination, "if the [private

physician's] report is sufficiently complete to be adequate for the purpose of adjudicating the claim."

38 U.S.C. § 5125. This Court has noted that while this statutory language is permissive, "clearly it

would not permit the Board to act in an arbitrary and capricious manner in not crediting a claimant's

medical evidence." Kowalski v. Nicholson, 19 Vet.App. 171, 177 (2005) (citing Struck v. Brown,

9 Vet.App. 145, 155 (1996)); see also Mariano, supra. The Board may attribute less probative value

to a private opinion, however, if the Board provides an adequate statement of reasons or bases for

doing so. Owens, 7 Vet.App. at 433; Gabrielson v. Brown, 7 Vet.App. 36, 39-40 (1994) (holding

that Board must provide adequate statement of reasons or bases for rejecting any favorable

evidence); Stefl, 21 Vet.App. at 124-25 (discussing valid ways in which lay adjudicators can weigh

conflicting medical evidence); see also Kowalski, 19 Vet.App. at 179 ("[T]he Board may not

disregard a medical opinion solely on the rationale that the medical opinion was based on a history

given by the veteran.").

C. The Determinants of Probative Value in Medical Opinions

Part of the Board's consideration of how much weight to assign is the foundation upon which

the medical opinion is based. Kowalski, supra; Reonal v. Brown, 5 Vet.App. 458, 461 (1993)

8

(holding that the Board may reject a medical opinion that is based on facts provided by the veteran

that have previously been found to be inaccurate); Swann v. Brown, 5 Vet.App. 229, 233 (1993)

(same); Wilson v. Derwinski, 2 Vet.App. 614, 618 (1992) (stating that the Board must evaluate the

credibility and weight of the history upon which a medical opinion is predicated).

Both VA medical examiners and private physicians offering medical opinions in veterans

benefits cases are nothing more or less than expert witnesses. While the Federal Rules of Evidence

are not binding in this Court, nor on the Board, the rules on expert witness testimony provide useful

guidance that has been exhaustively vetted by both the Rules Advisory Committee and by the U.S.

Congress. In U.S. district courts, expert testimony may be received from a suitably qualified expert

under the following conditions: (1) The testimony is based upon sufficient facts or data; (2) the

testimony is the product of reliable principles and methods; and (3) the expert witness has applied

the principles and methods reliably to the facts of the case. See FED . R. EVID . 702. The Court agrees

that these are important, guiding factors to be used by the Board in evaluating the probative value

of medical opinion evidence, and that this Court's review of the Board's evaluation of competing

medical opinions will be enhanced by their application. Notwithstanding that medical professionals

offering medical opinions in veterans benefits cases do not typically testify subject to cross-

examination, the Court believes that these criteria are important indicators of the probity of medical

opinions. Therefore, where the Board favors one medical opinion over another, the Court will

review the Board's decision to determine whether these criteria have been met or properly applied.

1. Sufficient Facts and Data

The first inquiry is whether the medical expert is informed of sufficient facts upon which to

base an opinion relevant to the problem at hand. FED . R. EVID . 702. In this inquiry, the claims file

is not a magical or talismanic set of documents, but rather a tool to assist VA examiners to become

familiar with the facts necessary to form an expert opinion to assist the adjudicator in making a

decision on a claim. There are other means by which a private physician can become aware of

critical medical facts, not the least of which is by treating the claimant for an extended period of

time. See, e.g., Kowalski, 19 Vet.App. at 179 (holding that the Board may rely on a private medical

opinion that is based on an accurate medical history offered by the veteran). Review of pertinent

medical literature may also furnish information relevant to diagnostic and nexus issues.

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The mere statement that one physician did or did not have access to a claims file is of little

use in providing adequate reasons or bases for a decision where the Board fails to explain what

information in the claims file was important and necessary for a competent and persuasive medical

opinion, and why the absence of record review detracts from the probative value of the opinion of

a physician. It follows that review of a claims file by a VA examiner, without more, does not

automatically render the examiner's opinion competent or persuasive, see Stefl, supra. Moreover,

the absence of claims file review by a private medical expert does not categorically exclude the

possibility that he is nevertheless informed of the relevant facts, see Snuffer, supra. There are even

instances where claims file review may be irrelevant to the medical issue at hand. See, e.g.,

Francisco v. Brown, 7 Vet.App. 55, 58 (1994) (where entitlement to compensation has already been

established and an increase in the disability rating is at issue, the present level of disability, not the

medical history, is of primary concern).

In all cases, it is what an examiner learns from the claims file for use in forming the expert

opinion–and not just the reading of the file–that matters. When the Board uses facts obtained from

review of the claims file as a basis for crediting one expert opinion over another, it is incumbent

upon the Board to point out those facts and explain why they were necessary or important in forming

the appropriate medical judgment.

Accordingly, the Court holds that claims file review, as it pertains to obtaining an overview

of the claimant's medical history, is not a requirement for private medical opinions. This Court has

never imposed a burden of claims file review on all private physicians furnishing medical evidence.

But see D'Aries, 22 Vet.App. at 108 (inability to determine whether a private physician read the

claims file given by the Board as one of several factors supporting weight assigned to that opinion);

Prejean v. West, 13 Vet.App. 444, 448-49 (2000) (upholding Board determination that VA

examination reports were more probative because they were more thorough and detailed, they

discussed the conflicting opinions, and examiners had access to the claims file); Sims v. Nicholson,

19 Vet.App. 453, 458-59 (2006) (affirming Board finding that a private medical opinion was not

entitled to probative weight because the examiner did not have the veteran's claims file to review).

Imposing on a physician a requirement that he read a compilation of documents that can run to

thousands of pages (many of which, as noted above, are often irrelevant to the issue before the

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physician) in order that his or her opinion not be summarily discounted, has no inherent value to the

probity of the opinion. Furthermore, treatment of the claims file as a surrogate for awareness of

significant facts in a medical history may lead to error. The Court is reluctant to expand the duty to

assist in a direction that seems to countenance, and even institutionalize, such practices.

Therefore, a private medical opinion may not be discounted solely because the opining

physician did not review the claims file. Likewise, the Court holds that the Board may not prefer

a VA medical opinion over a private medical opinion solely because the VA examiner reviewed the

claims file.

This is not to say that particular medical information contained in a claims file might not

have significance to the process of formulating a medically valid and well-reasoned opinion. As

with any expert opinion, the factual premises of a medical opinion are certainly subject to

examination. Many times those facts can be found in the information contained in the claims file.

Critical pieces of information from a claimant's medical history can lend credence to the opinion of

the medical expert who considers them and detract from the medical opinions of experts who do not.

Therefore, a recitation of the medical information on which the opinion is based can aid the Board's

evaluation of the sufficiency of the opinion. Of course, a veteran should take care to personally

provide those medical facts of which a physician should be aware in formulating a medical opinion

on the veteran's behalf.5

2. Application of Reliable Principles and Methods

That the medical expert is suitably qualified and sufficiently informed are threshold

considerations; most of the probative value of a medical opinion comes from its reasoning. Neither

a VA medical examination report nor a private medical opinion is entitled to any weight in a service-

connection or rating context if it contains only data and conclusions. See Stefl, 21 Vet.App. at 125

(holding that "a mere conclusion by a medical doctor is insufficient to allow the Board to make an

informed decision as to what weight to assign to a doctor's opinion"); Miller v. West, 11 Vet.App.

345, 348 (1998) ("A bare conclusion, even one reached by a health care professional, is not probative

without a factual predicate in the record."); see also Dennis v. Nicholson, 21 Vet.App. 18, 22 (2007)

5

The Court notes that, although VA physicians have more ready access to a veteran's claims file, there are

regulatory provisions that enable a veteran to obtain copies of the claims file if he or she so chooses, and further provide

that the Board will defer action on an appeal pending such a request. See 38 C.F.R. §§ 1.577; 20.1200 (2008).

11

("The Court has long held that merely listing evidence before stating a conclusion does not constitute

an adequate statement of reasons and bases." (citing Abernathy v. Principi, 3 Vet.App. 461, 465

(1992))); but see McLendon, supra, (holding that a conclusory opinion may furnish enough evidence

of current disability or medical nexus so as to call for a VA medical examination).

It should now be obvious that a review of the claims file cannot compensate for lack of the

reasoned analysis required in a medical opinion. It is the factually accurate, fully articulated, sound

reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes

probative value to a medical opinion. The Board must be able to conclude that a medical expert has

applied valid medical analysis to the significant facts of the particular case in order to reach the

conclusion submitted in the medical opinion. See Stefl, supra. These significant facts may or may

not include matters evident from a review of the claims file, given the nature of the issue under

consideration.

D. Application to Present Case

In this case, the Board stressed that "[f]actors for assessing the probative value of a medical

opinion include the physician's access to the claims file and the thoroughness and detail of the

opinion." R. at 9 (citing Prejean, 13 Vet.App. at 448-49). Accordingly, the Board stated that it

assigned more probative weight to the VA opinions because the examiner

had reviewed the veteran's claims file. She provided a definitive opinion with

rationale, which was supported with specific examples from the veteran's medical

records. Her opinion is persuasive and supported by the medical evidence.

R. at 8. The Court agrees and concludes that the Board's assignment of more probative weight to

these VA opinions was based on more than just the statement that the VA examiner had reviewed

the claims file. The VA medical examiner twice interviewed and evaluated the appellant according

to Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) criteria, rendering a diagnosis

of dysthymia. She noted that his previous neurological evaluations and service medical records

revealed very little and very mild consequences of the Guillain-Barre syndrome. She further noted

that the records revealed that the appellant began experiencing symptoms of depression in 1995,

some 39 years after separation from service, and after a productive working life. See Maxon v.

Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint

after service can be considered as a factor in determining a service-connection claim).

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Further, the Court concludes that the Board provided adequate reasons for rejecting the

opinion of Dr. Juarbe Ortiz. The Board noted that, despite having a copy of the claims file to review,

Dr. Juarbe Ortiz did not completely review the medical information therein, and therefore

overlooked key documents, particularly the "reports of VA neurological examinations depicting the

nature and extent of Guillain-Barre syndrome" since the appellant's separation from service. R. at

8-9. As noted above, it is what an examiner learns from the claims file that matters, not merely the

review itself. Here, Dr. Juarbe Ortiz's failure to fully review the medical information in the claims

file resulted in his overlooking pertinent reports regarding the appellant's medical history, and the

Board adequately explained that it was his failure to review those particular reports that rendered his

opinion less probative than the opinions of the VA medical examiner. In other words, the Board's

decision to reject Dr. Juarbe Ortiz's opinion was not based solely on his failure to completely review

the appellant's claims file, but rather on the fact that his opinion lacked foundation in that the portion

of the claims file he did not review contained medical facts important to the formulation of the

opinion sought.

In contrast, the Board never explicitly addressed the thoroughness and detail of Dr. Pellot

Moran's opinion. Instead, the Board assigned less probative weight to that opinion solely because

it was not "informed by the in[-]depth claims file review as [were] the assessments of the VA

psychiatrist." R. at 9. The Board stated only that Dr. Pellot Moran "made no reference to having

reviewed the veteran's claim file" without further discussion or analysis of his opinion, and without

explaining why a review of the claims file was necessary. R. at 8. Moreover, the Board did not

consider whether, even in the absence of claims file review, Dr. Pellot Moran had any knowledge

of the appellant's medical history–which, as noted above, is necessary in many cases to render an

adequate medical opinion–in light of the fact that he had been providing psychiatric treatment to the

appellant for nearly five years at the time he rendered his opinion. Accordingly, because the Board

rejected Dr. Pellot Moran's private medical opinion solely because he did not review the appellant's

claims file (and, by extension, concluded that he was not familiar with the appellant's medical

history), the Court will remand this matter to the Board for it to assess Dr. Pellot Moran's private

opinion in accordance with the procedures set forth in this decision.

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On remand, the appellant 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). The Court reminds the Board that "[a] remand is meant to

entail a critical examination of the justification for the decision." Fletcher v. Derwinski, 1 Vet.App.

394, 397 (1991). In addition, the Board shall proceed expeditiously, in accordance with 38 U.S.C.

§ 7112 (expedited treatment of remanded claims).

IV. CONCLUSION

The Board's November 17, 2005, decision is VACATED and the matter is REMANDED for

readjudication consistent with this decision.

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