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diabetes Interesting Cavc Decision On Faulty Exams
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Guest Berta
"After a review of the record, the Court holds that the Board has committed prejudicial error in its decision by relying on an examination that was inadequate with regard to assessing Mr. Hernandez-Garcia's entitlement to a higher rating for SMC and failing to provide an adequate statement of reasons or bases for its decision. Green, supra; see generally 38 U.S.C. 7261(B)(2); Conway v. Principi, 353 F.3d 1369"
http://webisys.vetapp.gov/isysquery/irl158/77/doc
They remanded this claim this past October. It is just awful what this vet went through-
Mr. Hernandez-Garcia argued in his Substantive Appeal, and again in a statement submitted to the Board in April 2002, that it was error for the RO to rely upon the 2001 VA medical examination to deny his claim because the examiner erroneously found that his hand disabilities were related to diabetes. R. at 792, 839. He advised VA that he did not suffer from diabetes and that that finding by the 2001 VA examiner was erroneous. Id. Specifically, the 2001 VA examiner stated: "There is a surgery evaluation dated [August 18, 1999,] on [VA medical records] which mentions this veteran has a history of diabetes mellitus type II"; the examiner then concluded that Mr. Hernandez-Garcia's hand disabilities were caused by his diabetes and not his service-connected arm conditions. R. at 780-81. The record on appeal contains neither an August 18, 1999, surgery evaluation noting diabetes nor any other medical evidence that was
before the examiner in 2001 that diagnosed Mr. Hernandez-Garcia as having diabetes. See R. at 1- 860. Inexplicably, the Board ignored this issue and did not address his complaints that the VA medical examination was based on an inaccurate factual premise except to simply state: " Parenthetically, the Board also notes that [Mr. Hernandez-Garcia] disputes the recent VA examiner's characterization that his symptoms were due to diabetic neuropathy . . . regardless [of] whether the neuropathy is caused by diabetes or otherwise, the Board's focus in on whether he can move his hands to achieve functional use." R. at 4. Indeed, the Court has held that medical opinions based upon inaccurate factual premises are entitled no probative weight. See Reonal v. Brown, 5 Vet.App. 458, 461 (1993) ( medical opinion based upon an inaccurate factual premise has no probative value). Accordingly, the Board's statement of reasons or bases was inadequate to justify its reliance upon the 2001 VA medical examination when that etiology opinion was possibly based on an inaccurate factual premise. See 38 U.S.C. 7104(d)(1); Reonal and Gilbert, both supra. Further, the VA examination failed to address the degree of impairment caused by pain upon movement and how that pain affected the functional use of Mr. Hernandez-Garcia's hands, wrists, and fingers. See DeLuca, 8 Vet. App. at 206; 38 C.F.R. 4.45, 4.50. The 2001 VA examination reported that an evaluation of his hands for muscle strength, grasping ability, and range of motion could not be effectuated because there was "resistance." R. at 779. However, there is no discussion by the examiner regarding whether that "resistence" to examination and movement was because of pain or instead was a refusal to cooperate with the examination. See R. at 777- 79. Therefore, the Board erred by failing to consider, or at least discuss, how these regulations apply to the facts presented in this case and on its reliance upon the 2001 VA medical examination to deny the claim . See Deluca, supra. Moreover, the VA medical examinations relied upon by the Board to deny Mr. Hernandez-Garcia's claim were performed in February 2000 and January 2001. It is unlikely that these examinations could be considered contemporaneous two years later when the claim was denied. See Caffrey v. Brown, 6 Vet.App. 377, 381 (1994) (assessing contemporaneousness of medical diagnosis in terms of date of Board decision and concluding that medical examination conducted 23 months prior was not contemporaneous with Board decision). These factors diminish the probative weight that can be given to the VA medical examinations relied upon by the Board. See Green, supra.
In its statement of reasons or bases for its decision, the Board did not address certain evidence favorable to Mr. Hernandez-Garcia. The Board failed to discuss the 1998 and 1999 medical opinions by Drs. Negron, Lopez, and Enriquez referenced in the 2000 RO decision (R. at 764) and the May 2000 private physician's reports (R. at 774-75). Specifically, the record before the Board indicates that Dr. Enriquez reported that Mr. Hernandez- Garcia did not have effective functioning of grasping and manipulation with his hands and that he would be equally served with the use of a prosthetic device. Id. at 773-75. Dr. Lopez stated in his report that Mr. Hernandez- Garcia was unable to write or feed himself. R. at 738. Further, the February 2000 VA medical examination reported that Mr. Hernandez-Garcia required assistance from his wife to "perform activities of daily living and for needs of nature" and that "he has allegedly no functional use of his upper extremities." R. at 753. In addition, the Board failed to consider whether Mr. Hernandez- Garcia was entitled to SMC at the "n rate" under 38 U.S.C. 1114(n). Indeed, he is already service connected for "loss of use of both arms" and whether that loss of use was " at levels, or with complications, preventing natural elbow action with prostheses in place" entitling him to SMC at the "n rate" should have been considered and addressed by the Board. 38 U.S.C. 1114(n). Accordingly, the Board did not consider all "potentially applicable" provisions of law and regulation, analyze the probative value of certain evidence in Mr. Hernandez-Garcia's favor, and provide an adequate statement of reasons or bases for its rejection of that evidence. See 38 U.S.C. 7104(d)(1); Gabrielson, supra; Allday, 7 Vet.App. at 527; Schafrath, 1 Vet.App. at 593; Gilbert, 1 Vet.App. at 56-57.
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