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Walch v. Shinseki

April 30, 2009


Appeal from the United States Court of Appeals for Veterans Claims in 05-3649, Judge Bruce E. Kasold.

The opinion of the court was delivered by: Plager, Circuit Judge.

Published opinion

Before RADER, PLAGER, and GAJARSA, Circuit Judges.

The veteran in this case, Richard A. Walch, appeals from a judgment of the United States Court of Appeals for Veterans Claims (Veterans Court).*fn1 The Veterans Court affirmed a decision of the Board of Veterans' Appeals (Board) that denied Mr. Walch's claim for service connection for a left knee injury.

The sole issue raised by Mr. Walch in his appeal is whether the Secretary of Veterans Affairs' (VA's) statutory duty to assist a claimant for benefits includes a sua sponte duty to forward certain medical evidence regarding Mr. Walch, available in the veteran's claims file but also in the possession of the veteran, to the veteran's private treating physician. The Veterans Court held to the contrary. Because the evidence in question was already in the veteran's possession, the VA did not have a duty to provide that evidence to the veteran's private physician. We therefore affirm the judgment of the Veterans Court.


Mr. Walch served on active duty from July 1954 to October 1957. His service medical records reflect that he was treated in February 1955 for a sprain of the joint, left knee, medial collateral ligament, due to a skiing accident. He was treated again in March 1955 after reinjuring his knee in an automobile accident. His records indicate that Mr. Walch recovered from his injuries, and his 1957 separation examination revealed no problems with his knee.

Shortly after discharge, Mr. Walch filed a claim with the VA for service connection for a left knee condition. He underwent a VA medical examination, which resulted in a diagnosis of "no orthopedic condition." After his claim for service connection was denied, Mr. Walch failed to appeal, and the decision became final.

The record indicates that some years later, in May 1966, Mr. Walch was admitted to the hospital after he suffered a serious injury to his left knee, including a fractured tibia, while playing softball. He underwent surgery, and although the prognosis was "[g]enerally good," the clinician noted that "[t]here is a possibility of long-term arthritis in the knee."

Twenty-six years after this injury, in March 1992, Mr. Walch sought to reopen his claim for service connection. Over the next several years, he submitted various pieces of additional medical evidence in support of his claim. This evidence included private medical records dated from 1988 to 1992 that diagnosed him with mild to moderate degenerative arthritis; correspondence regarding his condition from his private physician, Dr. Michael Sousa; records concerning a total knee replacement surgery that Mr. Walch underwent in 1994; and the 1966 hospital discharge report following his softball injury. The Regional Office (RO) repeatedly denied Mr. Walch's application to reopen his claim.

On the basis of a later opinion letter from Dr. Sousa in which he concluded that there was more likely than not a relationship between the two in-service injuries and Mr. Walch's osteoarthritis, the Board ordered the case reopened, and remanded Mr. Walch's claim to the RO for further development. There followed a review of the case by a VA examiner, Dr. James Burton, who reviewed Mr. Walch's entire claims file and summarized all the relevant medical evidence in a six-page report. He concluded that the fracture Mr. Walch sustained in 1966 while playing softball resulted in traumatic degenerative arthritis, which subsequently resulted in several arthroscopic surgeries and the 1994 total knee replacement. Dr. Burton opined that Mr. Walch's left knee condition was more than 50% related to the knee injury he sustained while playing softball in 1966. In response to a Board inquiry, Dr. Burton submitted an addendum to his report, concluding that there was not "a 50% or greater chance" that Mr. Walch's degenerative arthritis of the left knee was related to his 1955 in-service injuries. Dr. Burton again referred to the severe injury Mr. Walch sustained in 1966 and concluded that his present knee condition was due to circumstances that occurred after he was discharged from the military.

Subsequently the Board reviewed the records and medical opinions from Dr. Sousa, Mr. Walch's private physician, and Dr. Burton, the VA examiner, and denied Mr. Walch's claim for service connection. The Board noted that although Dr. Sousa mentioned Mr. Walch's two in-service injuries, he did not describe them. More importantly, Dr. Sousa did not consider Mr. Walch's 1966 softball injury, which resulted in fractures and required surgery. In contrast, the VA examiner's opinion was based on a complete review of all the relevant evidence, including the in-service medical records, both in-service injuries, the 1966 post-service softball injury, and Dr. Sousa's reports. The Board, noting that Dr. Sousa did not review all the relevant evidence in Mr. Walch's claims file, concluded that the probative value of his opinion was "considerably weakened." For these reasons, the Board found Dr. Burton's opinion to be more persuasive than Dr. Sousa's opinion.

Mr. Walch appealed to the Veterans Court, where one of his arguments was that as part of the duty to assist, the VA had a sua sponte duty to forward his entire claims file to his private physician, Dr. Sousa, before assigning less weight to Dr. Sousa's opinion than to the VA examiner's medical opinion. The Veterans Court concluded that there was no such duty. The court noted that if Dr. Sousa had advised that he could not render a full opinion without the entire claims file, it might be appropriate for the VA to notify Mr. Walch that the file could be forwarded upon request. However, no such assertion was made in this case. Moreover, the Veterans Court found that the Board assigned less weight to Dr. Sousa's opinion than Dr. Burton's opinion because Dr. Sousa made no reference to the 1966 post-service softball injury. Information regarding that injury was obviously ...

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