Quintanilla V. Nicholson

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UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 04-2277

Martin Quintanilla, Jr., Appellant,

v.

R. James Nicholson,

Secretary of Veterans Affairs, Appellee.

Before GREENE, Chief Judge.

MEMORANDUM DECISION

Note: Pursuant to U.S. Vet. App. R. 30(a),

this action may not be cited as precedent.

GREENE, Chief Judge: Veteran Martin Quintanilla, Jr., appeals,

through counsel, that part of a September 3, 2004, Board of Veterans'

Appeals (Board) decision that denied VA service connection for a right-

knee disability. Record (R.) at 1-10. Mr. Quintanilla argues that (1)

the Secretary failed to provide him with adequate statutory and regulatory

notice under 38 U.S.C. 5103(a) because he was not informed of the

provisions of 38 U.S.C. 1154(b), nor was he told to submit all evidence

that pertains to his claim; (2) the Secretary failed to provide assistance,

under 38 U.S.C. 5103A(b), by not obtaining relevant employment and

worker's compensation records, and (3) Mr. Quintanilla was not provided

an adequate medical examination as required under 38 U.S.C. 5103A(d).

On September 2, 2005, Mr. Quintanilla filed a motion for oral

argument. Because oral argument would not "materially assist in the

disposition of this appeal," that motion will be denied. See Janssen v.

Principi, 15 Vet.App. 370, 379 (2001) (per curiam). Single-judge

disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23,

25-26 (1990). Based on the reasons set forth below, the Court will vacate

that portion of the 2004 Board decision that denied service connection for

Mr. Quintanilla's right-knee disability and remand that matter for

further adjudication.

I. FACTS

Mr. Quintanilla served honorably in the U.S. Army from June

1968 to June 1971. R. at 19. His service medical records reflect that in

March 1969 he complained of pain under his right knee cap after suffering

a probable ligamentous strain. R. at 47. In July 1969, Mr. Quintanilla

again complained of right knee pain from a minor knee strain. R. at 48.

During his separation from service examination, he reported having a "

trick or locked knee," but the examiner concluded that Mr. Quintanilla's

lower extremities were normal. R. at 59-61. A July 1971 VA medical

examination revealed no evidence of bone or joint pathology. R. at 71.

In September 1990, while working as a U.S. postal worker, Mr. Quintanilla

ruptured his right-knee quadriceps tendon. He underwent a surgical repair

and subsequent treatment to strengthen his right knee. R. at 111-25, 128-

34.

In March 2000, Mr. Quintanilla claimed VA service connection for

residuals of a right-knee injury. R. at 231. In October 2001, a VA

regional office (RO) sent him a letter regarding the evidence required to

substantiate a claim for service connection. R. at 287-88. In response

to that letter, Mr. Quintanilla stated: "[N]ot all my military health

records are intact, I have only what was given to me, and they were

incomplete, with many records missing." R. at 300. In January 2002, the

RO denied Mr. Quintanilla's claim. R. at 302-08. He disagreed with that

decision, and in July 2002, he received a VA examination conducted by a

certified physician's assistant. R. at 312-16. The physician's assistant

noted that Mr. Quintanilla's "temporary service file" was available for

review and that Mr. Quintanilla had complained of some pain to the right

knee, but he had not mentioned any instability and none was noted during

the physical examination. R. at 313. The physician's assistant also

discussed the acute knee injury sustained by Mr. Quintanilla in 1990, and

stated: "Also noted is the letter from [Mr. Quintanilla's] outside

physician that the quadriceps rupture was an acute injury and not

something that occurred gradually over time and it is less likely than not

that this injury was related to the patient's time in the service." R. at

316. A July 2002 x-ray report revealed an "unremarkable radiographic exam

of the right knee with no significant degenerative changes or post-

traumatic sequelae demonstrated in association with history of quadriceps

rupture." R. at 317.

In August 2002, the RO issued a Statement of the Case (SOC) that

continued the denial of the claim and stated: "The evidence in its

entirety suggests that the veteran had an isolated, self[-] limiting knee

sprain in service that resolved by the time of service separation and then

suffered post service a new injury that led to tendon rupture." R. at 330

. Mr. Quintanilla appealed and argued to

the Board that the VA medical examination provided to him was inadequate

because he was not examined by a physician. R. at 352-53. In September

2002, the Board remanded the matter for compliance with procedural

requirements that the RO issue an SOC in response to Mr. Quintanilla's

timely filed Notice of Disagreement (R. at 332-48), and in January 2004,

the RO issued a Supplemental SOC again denying the claim (R. at 365-66).

In its September 2004 decision, the Board found that VA had fulfilled its

duties to notify and assist Mr. Quintanilla. R. at 3-5. Relying on the

July 2002 VA medical examination, the Board determined that the

preponderance of the evidence was against service connection for Mr.

Quintanilla's right-knee disability. This appeal followed.

II. ANALYSIS

Section 5103A(a)(1) of title 38 of the U.S. Code provides that the

Secretary "shall make reasonable efforts to assist a claimant in obtaining

evidence necessary to substantiate the claimant's claim." That duty

includes "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); see McLendon v. Nicholson, 20 Vet.App.

79 (2006). Where a VA examination provided to an appellant is inadequate

for evaluation purposes, the matter may be remanded with directions that

the Secretary order an additional medical examination that complies with

all pertinent statutory and regulatory requirements. Stegall v. West, 11

Vet.App. 268, 270-71 (1998); see also Hicks v. Brown, 8 Vet.App. 417, 422 (

1995) (concluding that inadequate medical evaluation frustrates judicial

review).

The Board is required to provide a written statement of the reasons

or bases for its findings and conclusions on all material issues of fact

and law presented on the record and the statement must be adequate to

enable an appellant to understand the precise basis for the Board's

decision, as well as to facilitate review in this Court. See 38 U.S.C.

7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v.

Derwinski, 1 Vet.App. 49, 56-57 (1990). An adequate statement of reasons

or bases must analyze the credibility and probative value of the evidence,

account for the evidence that it finds persuasive or unpersuasive, and

provide reasons for its rejection of any material evidence favorable to

the veteran. See 38 U.S.C. 7104(d)(1); Gabrielson v. Brown, 7 Vet.App.

36, 39-40 (1994); Gilbert, supra.

Mr. Quintanilla argues that VA did not satisfy its duty to assist him

because the July 2002 examination provided to him was conducted by a

physician's assistant, not a physician. The July 2002 VA examination

lists the physician's assistant as the examination provider (R. at 312),

and only her signature is found next to "Provider signature" (R. at 316).

Medical examinations under section 5103A need not be conducted by

physicians. Cox v. Nicholson, 20 Vet.App. 563 (2007). Rather, medical

examinations may be conducted by licensed healthcare professionals

competent to provide diagnoses, statements, or opinions. Id. at 569; see

38 C.F.R. 3.159(a)(1) (2006) (noting that "competent medical evidence

means evidence provided by a person who is qualified through education,

training, or experience to offer medical diagnoses, statements, or

opinions"). A physician's assistant is defined as "one who has been

trained in an accredited program and certified by an appropriate board to

perform certain of a physician's duties, including . . . physical

examination, diagnostic tests, treatment, certain minor surgical

procedures, etc., all under the responsible supervision of a licensed

physician." Dorland's Illustrated Medical Dictionary 1434 (30th ed. 2003

) (emphasis added); see American Academy of Physician's Assistants, http:

//www.aapa.org/geninfo1.html (last visited Mar. 19, 2007). Thus, by

definition a physician's assistant is qualified through training to

provide examinations; however, those examinations must be conducted under

the supervision of a licensed physician who is indisputably competent to

provide medical opinions. Id.

The Secretary contends that VA's use of physician's assistants is

consistent with the implementing statutes and congressional intent. By

statute, "[t]o be appointed as a physician assistant . . . a person must

have such medical, dental, scientific, or technical qualifications as the

Secretary shall prescribe." 38 U.S.C. 7402(b)(11). Thus, the Secretary

has the authority to dictate the conditions of employment for a

physician's assistant, which the Secretary argues that he has done in VA

Handbook 5005, Part II, Appendix G8 and a Veteran's Health Administrative

Directive 2004- 029 (July 2, 2004) (hereinafter VHA Directive). The VHA

Directive identifies the routine duties that may be performed by

physician's assistants, which include performing initial histories and

physical examinations. VHA Directive 2004-029 at A-1; see Secretary's

Brief (Br.) at Appendix 2. The VHA Directive, however, also requires that

a physician's assistant be supervised by a physician. See VHA Directive

2004-029 at A-2 ("The [Chief of Staff], or the chief of the clinical

service, must appoint a member of the regular physician staff to be the

official supervisor . . . of each [physician's

assistant]."). Thus, by VA's own directive a physician's assistant may

only practice under the supervision of a physician. VHA Directive 2004-

029 at A-4, A-5; see Br. at Appendix 2.

Moreover, although the Secretary is technically correct that the use

of physician's assistants is consistent with implementing statutes and

congressional intent, by VA's own procedures all VA medical examination

reports must be signed by a physician. Specifically, VA Adjudication

Procedure Manual M21-1 (M21-1) provides:

VA medical facilities are responsible for ensuring that examiners are

adequately qualified. Although Adjudication employees are not

expected to review the credentials of clinical personnel to determine

the acceptability of their reports, all examination reports must be

signed by physicians or clinical or counseling psychologists. Copies

transmitted by [Compensation and Pension Record Interchange (CAPRI),]

without signatures are acceptable, since signed copies will be

maintained by the VHA examining facility. If an unsigned examination

report is otherwise received, return the report as insufficient for

rating purposes.

M21-1, pt. VI, para. 1.07(d), change 107 (Dec. 5, 2003) (rescinded by M21-

1MR, pt. III, subpt. iii, dated Dec. 13, 2005) (now found in VA

Adjudication Procedure Manual M21-1MR, pt. III, subpt. iv, ch. 3, sec. D (

2007)) (emphasis added); see Haas v. Nicholson, 20 Vet.App. 257, 277 (2006

) (M21-1 provisions have the force and effect of Department regulations);

Hamilton v. Derwinski, 2 Vet.App. 671, 675 (1992) (same).

The Board erred by failing to consider and discuss the VHA Directive

and M21-1 provisions in its determination that VA had fulfilled its duty

to assist by providing an adequate medical examination. See Gabrielson

and Gilbert, both supra. Under the M21-1, the only way an examination

report can be sufficient when it is not signed by a physician is if that

report was transmitted by CAPRI. See M21-1, pt. VI, para. 1.07(d), change

107 (Dec. 5, 2003); see also Haas and Hamilton, both supra. The Court

cannot ascertain from the record before it if the July 2002 examination

report was transmitted by CAPRI, and as such, the Court cannot determine

if the Board's error was nonprejudicial.

Furthermore, the Board found: "A VA examiner in July 2002 reviewed

the claims file and concluded that it was less likely than not that this

injury was related to the veteran's time in the service." R. at 8. The

Board then stated that it "place[d] significant probative value on this

opinion." Id. The record on appeal reveals that the examiner actually

stated: "Also noted is the letter from [Mr. Quintanilla's] outside

physician that the quadriceps rupture was an acute injury and

not something that occurred gradually over time and it is less likely

than not that this injury was related to the patient's time in the service

." R. at 316. It is unclear from this statement whether the opinion,

that "it is less likely than not that [Mr. Quintanilla's] injury was

related to [his] time in the service," should be attributed to the July

2002 examiner or to the letter from the outside physician to which the

July 2002 examiner was referring. A clarification is essential to the

determination of whether an adequate examination was provided to Mr.

Quintanilla. Because the Board's statement of reasons or bases is

insufficient to facilitate review in this Court, the decision will be

vacated and the matter remanded for further adjudication. See Tucker v.

West, 11 Vet.App. 369, 374 ( 1998) (where Board failed to provide

adequate statement of reasons or bases for its determinations remand,

rather than reversal, is appropriate remedy); Hicks v. Brown, 8 Vet.App.

417, 422 (1995). Finally, concerning Mr. Quintanilla's argument

that the Board failed to obtain relevant employment and worker's

compensation records, the Court notes that the record on appeal does

contain such evidence. See, e.g., R. at 130-59, 160-88, 206-25, 244-84.

On remand, however, the Board should ensure that all relevant records have

been obtained. See Loving v. Nicholson, 19 Vet.App. 96, 102-103 (2005) (

duty to assist extends to obtaining relevant records that appellant

adequately identifies); Littke v. Derwinski, 1 Vet.App. 90, 92 (1990

) (Secretary is required to assist claimant in "developing pertinent

evidence, from whatever source"). The Court will not at this time address

the other arguments raised by Mr. Quintanilla. See Best v. Principi,

15 Vet.App. 18, 20 (2001) ("A narrow decision preserves for the

appellant an opportunity to argue those claimed errors before the Board at

the readjudication, and, of course, before this Court in an appeal,

should the Board rule against him."). On remand, he is free to submit

additional evidence and raise his arguments to the Board and the Board

must address them. See Kay v. Principi, 16 Vet.App. 529, 535 (2002).

III. CONCLUSION

Mr. Quintanilla's September 2, 2005, motion for oral argument is

denied. Further, upon consideration of the foregoing, that portion of the

Board's September 3, 2004, decision that denied service connection for Mr.

Quintanilla's right-knee disability is VACATED and that matter is

REMANDED to the Board for compliance with this decision.

DATED: March 26, 2007

Copies to:

Robert V. Chisholm, Esq.

VA General Counsel (027)