Board's "Fallacious Conclusion", Reversal at Veterans Court

This is a single Judge decision, but it is presented because of the "reversal" that is ordered, rather than a remand.

Also, of note is the attorney for the veterans in this case. If you want a favorable decision you need to present to the Judge with the arguments, reasons, and information he needs to give you that favorable decision. If you do a search you will find this attorney associated with a number of favorable decisions.

While only two items have been highlighted, the entire case should be read to fully understand what is going on here.
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This is not a case, however, in which the Board's reasoning is unclear or where the Board failed to discuss significant evidence of record. The Board's reasoning in rejecting the lay evidence and medical opinions in this case is eminently clear-it is simply erroneous in fact and fallacious in conclusion.
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Further, the Court notes the Board's willingness to find Mr. Coppock's statements about an injury at work in August 1995 to be of such great probative value when there is no objective evidence of such an injury, and yet his statements of an in-service injury are not given the same deference because there is no objective evidence.
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 08-1500
SAMMY T. COPPOCK, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before HAGEL, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
HAGEL, Judge: Sammy T. Coppock appeals through counsel an April 14, 2008,
Board of
Veterans' Appeals (Board) decision that denied entitlement to VA benefits
for the residuals of a back
injury and postoperative residuals of an L5-S1 hemilaminectomy1
and diskectomy2
with L5-S1
transverse process fusion.3
The Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a)
to review that decision, and a single judge may conduct that review. See
Frankel v. Derwinski, 1
Vet.App. 23, 25-26 (1990). Because the Board's determination that Mr.
Coppock is not entitled to
VA benefits for the residuals of a back injury is clearly erroneous, the
Court will reverse the April
14, 2008, Board decision and remand the matter to the Board with
instructions to grant Mr. Coppock
entitlement to VA benefits.
A hemilaminectomy is the excision of one side of the vertebral lamina.
DORLAND'S ILLUSTRATED MEDICAL
DICTIONARY 847 (31st
ed. 2007) [hereinafter DORLAND'S]. Lamina is a "layer: a thin flat plate
or stratum of a
composite structure. The term often is used alone to mean the lamina arcus
vertebrae." Id. at 1014.
2
1
A diskectomy is the excision of an intervertebral disk; also called a
discectomy. DORLAND'S at 553.
Transverse process [spinal] fusion is a process on either side of a
vertebra, projecting laterally from the
junction between the lamina and the pedicle. DORLAND'S at 1543.
3


I. FACTS
Mr. Coppock served on active duty in the U.S. Army from July 1977 to
December 1977 and
in the Army National Guard from April 1977 to April 1983 and from April
1986 to April 1999. He
contends that he injured his back while digging a ditch in Egypt during a
period of active duty for
training in June 1995. Record (R.) at 556. His service medical records for
that period of time were
determined to be unavailable. R. at 427. Mr. Coppock submitted a Military
Leave and Earnings
Statement showing that he was on active duty for training from June to
July 1995. R. at 562.
In August 1995, Mr. Coppock began seeking treatment for his back injury. R.
at 631. In July
1999, he filed a claim for VA benefits for this injury. In December 1999,
Mr. Coppock underwent
a VA spine examination. At that examination, he reported that when he was
with the National
Guard, he worked unloading trucks and lifting heavy equipment, that he
noticed low back pain in
August 1995, and that he was told he had a herniated disc. R. at 789. He
also underwent a VA
peripheral nerves examination in July 1999. R. at 787. Neither VA examiner
provided an opinion
as to whether Mr. Coppock's current back disorder is etiologically related
to his reported injury
during service in June 1995. In October 2001, a VA regional office denied
Mr. Coppock entitlement
to VA benefits for a back injury. R. at 595.
In April 2002, Mr. Coppock sought to reopen his claim. He submitted a
statement as well
as two lay statements from colleagues in the National Guard. The first
statement, from Anita
Yvonne Vinson-Britmon, noted that Mr. Coppock was assigned to her platoon
during the June 1995
annual training period in Egypt and that he later mentioned to her that
his back had been hurting
during that time. R. at 573. The second statement, from James Watson,
stated that he worked
overseas with Mr. Coppock in June 1995 and that Mr. Coppock complained of
experiencing lower
back and leg pain while they were working together on a project. R. at 576.
In an August 2002
decision, the regional office reopened Mr. Coppock's claim but denied it
on the merits. R. at 566.
Subsequently, Mr. Coppock submitted a private medical opinion by Dr.
Cedric E. Porter
dated September 2002. Dr. Porter stated that he was Mr. Coppock's
primarycare physician and had
been treatinghim since 1989. He continued that Mr. Coppock presented to
his officein August 1995
with substantial low back pain. Dr. Porter stated that in his opinion,
based on Mr. Coppock's
presentation and his history, the precipitating cause of Mr. Coppock's
back disease occurred prior
2


to August 1995, because Mr. Coppock had had back pain several weeks
before he came to his office.
Dr. Porter opined that Mr. Coppock's back injury was sustained prior to
August 1995 and that, based
on Mr. Coppock's history, the injury "would suitably correlate with the
heavy lifting and exertion he
had to do while on active duty overseas." R. at 559. Dr. Porter concluded
that this was a service-
connected injury that dated back to the summer of 1995. R. at 558-59.
InanOctober2002 decision,theregionalofficeagaindeniedMr.Coppock'sclaim.R.
at552-
53. Later that month, Mr. Coppock submitted an additional private medical
opinion from Dr. James
G. Lindley. Dr. Lindley stated that he had read the sworn statement by Ms.
Vinson-Britmon noting
that Mr. Coppock injured his back in Egypt and that he had a second injury
in August 1995,
apparently an aggravation of the first injury. R. at 548. In a December
2002 decision, the regional
office again denied Mr. Coppock's claim. R. at 543. Mr. Coppock then
appealed that decision to
the Board. R. at 538, 425, 413-15.
InFebruary2006,theBoardremandedMr.Coppock'sclaimtoaffordhimaVAexamination.
R. at 391. Mr. Coppock underwent that examination in September 2006. Mr.
Coppock reported to
the examiner that while in Egypt in June 1995, he was digging a trench
when he suddenly felt pain
in his lower back with associated tingling in his left leg. Mr. Coppock
continued that when he
returned home a few weeks later, his back continued to bother him and he
began to seek treatment.
After physically examining Mr. Coppock, to include x-rays and a computed
tomography scan, the
examiner opined that Mr. Coppock's current back pain was at least as
likely as not caused by or a
result of back pain or injury from June 1995. He stated that Mr.
Cooppock's injury correlated with
the time he sought treatment when he returned from deployment. R. at 94.
In an October 2006
addendum, the examiner stated that after reviewing Mr. Coppock's claims
file, there was no change
in his initial opinion. He reiterated that Mr. Coppock's current back pain
was at least as likely as not
caused by or a result of back pain or injury from June 1995. R. at 59.
After several years of additional development, the Board issued the
decision currently on
appeal in April 2008. In that decision, the Board again denied entitlement
to VA benefits for a back
injury. The Board found that the competent medical evidence of record did
not demonstrate that Mr.
Coppock's current back disability was related to his service. R. at 4. The
Board explained that Mr.
Coppock's service personnel records did not show service in Egypt or that
he sustained a back injury
3


in June 1995. R. at 9. The Board also noted that in Mr. Coppock's Social
Security Administration
records he reported the onset of back pain in August 1995. R. at 12. With
regard to the three
medical opinions of record, the Board found that the Dr. Porter's
September 2002 opinion had low
probative value because it was not based on a review of the claims file,
was not supported by a well-
reasoned rationale, and was based mostly on Mr. Coppock's history of a
June 1995 back injury in
service, which was not corroborated by any objective evidence of record. R.
at 14. Turning to Dr.
Lindley's October 2002 opinion, the Board found that this opinion was too
tenuous to warrant
entitlement to VA benefits and appeared to be based solely on Mr.
Coppock's personally reported
history. R. at 15. As to the September 2006 VA examination, the Board
found that even though the
examiner indicated that the claims file was reviewed, it was unclear if
the examiner considered the
August 1995 incident and that the opinion was not supported by any
rationale. R. at 16. The Board
continued that although Mr. Coppock claimed that he hurt his back in June
1995 in service, various
treatment records show a history of work-related back pain in August 1995.
Further, the Board
stated that while it had considered the lay statements of Ms. Vinson-
Britmon and Mr. Watson, these
statements were of little probative value because they were not made
contemporaneous with the
incident and were general in nature. R. at 16-17.
On appeal, Mr. Coppock argues that the Board's conclusion that a back
disorder is unrelated
to service is clearly erroneous and should therefore be reversed.
Appellant's Brief (Br.) at 10. He
also contends that, in the alternative, the Board provided an inadequate
statement of reasons and
bases for its determination that his back disorder is unrelated to service.
Appellant's Br. at 15.
In response, the Secretary concedes that the case should be remanded
because the Board's
statement of reasons and bases is inadequate because the Board did not
adequately address the
competency and credibility of Mr. Coppock's lay testimony and that of his
colleagues. Secretary's
Br. at 10. The Secretary also contends that the case should be remanded
because the Board failed
to afford appropriate weight to the medical opinions of record.
Secretary's Br. at 16.
II. ANALYSIS
Service connection for VA disability compensation purposes will be awarded
to a veteran
when the record before the Secretary contains (1) a medical diagnosis of a
current disability, (2)
4


medical evidence of incurrence or aggravation of a disease or injury in
service, and (3) medical
evidence of a nexus between the in-service injuryor diseaseand the current
disability. See 38 U.S.C.
§ 1110; Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); 38
C.F.R. § 3.303 (2009).
A finding of service connection generally involves findings of fact. See
Russo v. Brown, 9
Vet.App. 46, 50 (1996). The Court is required to reverse "a finding of
material fact . . . if the finding
is clearly erroneous." 38 U.S.C. § 7261(a)(4). "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 Court
may not substitute its judgment for the factual determinations of the
Board on issues of material fact
merely because the Court would have decided those issues differently in
the first instance. See id.
Vacatur and remand may be warranted where the Board has failed to provide
an adequate statement
of reasons or bases for its determinations or where the record is
inadequate. See Tucker v. West, 11
Vet.App. 369, 374 (1998).
In this case, with respect to the issue of whether Mr. Coppock's back
disability is related to
his service, the Court is left with the "definite and firm conviction that
a mistake has been
committed" in the April 2008 Board decision when it found that "[t]he
competent medical evidence
does not demonstrate that [Mr. Coppock's] current back disability is
related to his service." Hersey,
2 Vet.App. at 94; R. at 4. To the contrary, there are three competent
medical opinions of record in
this case indicating that Mr. Coppock's back disorder was, in fact,
incurred during service. R. at 88,
548, and 558. Therefore, the Court finds that there is no plausible basis
in the record for the Board's
conclusion that "[t]he competent medical evidence does not demonstrate
that [Mr. Coppock's]
current back disability is related to his service." R. at 4.
Because it is undisputed that Mr. Coppock has a current back disorder, the
ultimate
determinationofserviceconnectioninthiscaseturnsonwhetherMr.
Coppockincurredanin-service
back injury, and if so, whether there is a nexus between that in-service
injury and the currently
diagnosed back disorder. Withregardto whether therewas an in-serviceinjury,
Mr.Coppock asserts
that he hurt his back during a period of active duty for training in Egypt
in June 1995. However, as
noted above, Mr. Coppock's complete service medical records for this
period are unavailable. As
5


alternative evidence of an in-service injury, Mr. Coppock submitted a
Leave and Earnings statement
showing that he was on active duty for training in June 1995. R. at 562.
Although the Board noted
that "the statement does not show that [Mr. Coppock] served in Egypt, or
that he sustained a back
injury in June 1995" (R. at 9), the Court finds that because this
statement verifies that Mr. Coppock
was on active duty for training at that time, where he was located is not
relevant to the issue of
whether he hurt his back in-service.
In addition to his own assertions, Mr. Coppock also submitted two lay
statements in support
of his claim that he injured his back while on active duty for training in
June 1995, one that was
sworn and from his supervising officer, second lieutenant Anita Yvonne
Vinson-Britman. This
Court's case law provides that lay testimony is competent to establish
what the witness actually
observed and is in the realm of his personal knowledge. See Layno v. Brown,
6 Vet.App. 465, 469-
70 (1994). Thus, the lay statements in this case are competent evidence to
the extent that Mr.
Coppock subsequently reported suffering from back pain while on active
duty for training. With
regard to Mr. Coppock's own statements that he hurt his back during
service, he is competent to
testify to symptoms he experienced during service, as they are within his
personal knowledge and
observation. See Washington v. Nicholson, 19 Vet.App. 362, 368 (2005) (
holdingthat a veteran may
testify to matters about which he has first-hand knowledge); see also
Previous DocumentJandreauNext Document v. Nicholson, 492
F.3d 1372, 1376-77 (Fed. Cir. 2007).
Turning to the issue of whether there is a nexus between Mr. Coppock's in-
service
symptomatologyandhiscurrentbackdisorder,
theBoardrejectedthethreefavorablenexusopinions
of record, stating that each was of little probative value because they
were based largely on Mr.
Coppock's reported history and were unsupported by sufficient rationale.
The Board found that
several statements made by Mr. Coppock that he injured his back at work in
August 1995 were of
greater probative value than these three medical opinions. However, the
record simply does not
support the Board's assessment. Although the Board has full authority to
determine which evidence
or medical opinions are more probative than others, this Court "has long
cautioned the [Board]
against relying on its own unsubstantiated medical opinion rather than
basing its conclusions on
medical evidence of record." Sacks v. West, 11 Vet.App. 314, 317 (1998).
In this case, the medical
opinions of Dr. Porter and the VA examiner clearly indicate a nexus
between an in-service injury
6


and a current disability, and there are no contrary medical opinions of
record. Further, although the
opinions of Dr. Porter and the VA examiner may be more probative than the
opinion of Dr. Lindley,
which is less detailed, all three opinions are competent medical opinions.
The September 2006 VA
examiner reviewed Mr. Coppock's claims file and based his opinion on this
information as well as
his physical examination of Mr. Coppock. Although, as the Board notes, Dr.
Porter and Dr. Lindley
did not review Mr. Coppock's claims file, the Board maynot reject a
medical opinion solelybecause
the examiner did not review the claims file. Nieves-Rodriguez v. Peake, 22
Vet.App. 295, 303
(2008). In addition, although these opinions were based in part on Mr.
Coppock's self-reported
history, the Board may not reject a medical opinion solely because that
opinion was based on a
history given bythe veteran in the absence of a finding that the
historygiven is inaccurate. Kowalski
v. Nicholson, 19 Vet.App. 171, 179 (2005). In this case, there is evidence
of record which
corroborates Mr. Coppock's statements, namely the lay statements from his
National Guard
colleagues. Where as here, an uncontradicted medical opinion supported by
evidence opines that
a disability began in service, the veteran is entitled to service
connection. See Hanson v. Derwinski,
1 Vet.App. 512, 516-17 (1991).
In essence, the Board found that the only evidence of record that carries any probative value is several statements by Mr. Coppock in his medical records that he injured his back at work in August 1995. In such a scenario, the Board might well have requested more elaboration from either Dr. Porter or Dr. Lindley, or ordered an additional VA examination. See Shoffner v. Principi, 16 Vet.App. 208, 213 (2002) (holding that the Secretary has discretion over how much development
is necessary to decide a service-connection claim); but see Mariano v.
Principi, 17 Vet.App. 305, 312 (2003) ("[I]t would not be permissible for VA to undertake such additional development if a purpose was to obtain evidence against the appellant's case . . . .").
However, the Board did not order any additional development despite having the opportunity to do so. See R. at 34-39 (September
2007 Joint Motion for Remand). On this record, the three medical opinions stand as competent and uncontroverted evidence of a medical nexus. Further, the Court notes the Board's willingness to find Mr. Coppock's statements about an injuryat work in August 1995 to be of such great probative value when there is no objective evidence of such an injury, and yet his statements of an in-service injury are not given the same deference because there is no objective evidence.
7


Because there is no evidence contrary to the three medical opinions that
Mr. Coppock's back
disability is at least as likely as not related to his service, the Court
finds that the Board clearly erred
in denying Mr. Coppock entitlement to VA benefits for a back disability.
See 38 U.S.C. § 7261;
Hersey, 2 Vet.App. at 94. The Secretary argues vacatur, rather than
reversal, is appropriate so that
the Board can provide an adequate statement of reasons and bases regarding the competency of the lay evidence presented and to afford appropriate weight to the medical opinions of record. This is not a case, however, in which the Board's reasoning is unclear or where the Board failed to discuss significant evidence of record. The Board's reasoning in rejecting the lay evidence and medical opinions in this case is eminently clear–it is simply erroneous in fact and fallacious in conclusion.
See Rose v. West, 11 Vet.App. 169, 172 (1998) (reversing Board decision and remanding for Board to award serviceconnection where no evidence rebutting medical evidence of nexus existed); see also
Traut v. Brown, 6Vet.App. 495, 500 (1994) (wheremedical evidence of record addresses all elements of service connection, is uncontradicted bycompetent evidence, and definitively supports appellant's position, reversal rather than remand is appropriate); Johnson v. Brown, 9
Vet.App. 7, 10 (1996) (holding that reversal is appropriate where the only permissible view of the evidence is contrary to the Board's decision). Accordingly, the Court will reverse the Board's finding that "[t]he competent medical evidence does not demonstrate that [Mr. Coppock's] current back disability is related to his service" and remand the matter with instructions for the Board to determine an appropriate disability rating and effective date. R. at 4.
Finally, the Court notes that, pursuant to 38 U.S.C. § 7104(a), "[d]ecisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material
of record and applicable provisions of law and regulation." The Court
thanks the Secretary for candidly reviewing the record and conceding the Board's errors in this regard.
III. CONCLUSION
Upon consideration of the foregoing, the April 14, 2008 Board decision is REVERSED
and the matter is REMANDED to the Board for adjudication consistent with this decision.
DATED: November 6, 2009
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Copies to:
Kathy A. Lieberman, Esq.
VA General Counsel (027)
9

L.A. Based Law Organization Launches Program to Provide Free Legal Assistance to Veterans

We linked to a similar program from Verizon a few days ago, this appears to be a similar program being offered by another law firm.

The website for this Free Legal Help program is at Center for Veterans Advancement.

Full Article at: L.A. law group offers to help needy vets battle bureaucracy
November 11, 2009 | 1:46 pm
A Los Angeles-based law organization today launched a new program to provide free legal assistance to veterans who hit bureaucratic roadblocks when filing claims for federal medical and mental health benefits.

Public Council, a pro bono law firm, will offer the free service throughout Southern California and, in partnership with other volunteer attorneys, in more than 25 states.

“Many veterans who return home to their families are facing a system that routinely rejects their benefit claims,’’ Los Angeles Mayor Antonio Villaraigosa said at a Veterans Day news conference to announce the effort. “That’s absolutely unacceptable. We can and must do more for our nation’s heroes.”

Public Council President Hernán D. Vera said the effort would help the 1.7 million troops deployed to Afghanistan and Iran, many of whom have been denied benefits for post-traumatic stress disorder, depression, traumatic brain injury and other combat-related injuries. The program also will help the tens of thousands of homeless veterans living on the nation’s streets to collect government assistance.

“The veterans’ homeless population is skyrocketing. Nearly one out of every four homeless individuals we see on the streets of Los Angeles wore the uniform protecting our country. But only one in 10 receive the government services that they’re entitled to,” Vera said.

The legal program, called the Center for Veterans Advancement, will provide free legal representation in court as well as for administrative proceedings with the Department of Veterans Affairs, the Social Security Administration, all branches of the military and with other local and national agencies."

VA Settles Overdose Vet's Lawsuit for $218K

Full Article at: Family settles vet's VA lawsuit
Government will pay $218,500 in fatal drug overdose case
Detroit News staff and wire reports

Detroit -- The federal government has agreed to pay $218,500 to settle a lawsuit over the fatal drug overdose of a young Michigan veteran who served as a U.S. Marine in Iraq.

Randen Harvey died of an overdose in 2006 at his father's home in Farmington Hills. His family sued the Department of Veterans Affairs, accusing it of failing to keep him in a hospital or commit him to a mental health facility.

The settlement was reached just a few days before trial in federal court in Detroit. "The experience in Iraq was horrific for this young fellow," Thomas Campbell, a lawyer for Harvey's estate, said Tuesday.

Harvey, 24, was honorably discharged as a lance corporal in November 2005. Five months later, according to the lawsuit, he attempted suicide and was diagnosed with post-traumatic stress disorder.

In June 2006, Harvey was found on the roof of the VA Medical Center in Ann Arbor. The lawsuit says he was discharged from a hospital program because of alcohol use and told to wait for substance-abuse treatment. He died three days later.

"Given the costs of trial and the uncertainties of trial, the government thought this was a reasonable resolution," Assistant U.S. Attorney Steven Croley said of the settlement."