Single Judge Application, Buczynski v. Shinseki, No. 08-3000; Silence in Medical Record

Excerpt from Decision below;
"Prior to his current claim for benefits, the appellant never mentioned an in-service injury to his back and repeatedly reported to physicians that he had a severe childhood injury instead. See Buczynski v. Shinseki, 08-3000, __ Vet.App. __, __, 2011 WL 37846 at *3, slip op. at 5 (Jan. 6, 2011) (silence in a medical record may be relevant if the record would normally have recorded the fact at issue); cf. Fed. R. Evid. 803(4) (statements of relevant medical history are an exception to the hearsay rule); 803(7) (the absence of an entry in a record may be taken as evidence that the event did not occur if the matter is of the kind that ordinarily would have been recorded in that record). Accordingly, the Board could reasonably conclude that the appellant's prior statements rendered his current statements not credible."
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-4108
GERALD O'DANIELS, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before LANCE, Judge.

MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.

LANCE, Judge: The appellant, Gerald O'Daniels, through counsel, appeals a
September 15, 2009,Board of Veterans' Appeals(Board)
decision denying his claims for compensation for a lumbar spine disability and a disability characterized by loss of concentration. Record (R.) at 3-10.
Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.
App. 23, 25-26 (1990).
This appeal is timely, and the Court has jurisdiction over the case
pursuant to 38 U.S.C. §§ 7252(a) and 7266. For the reasons that follow, the Court will affirm the September 15, 2009, decision.
The appellant's claims are based upon the assertion that he suffered two
in-service injuries to his back and an overdose of the pain medication prescribed for those injuries, notwithstanding the fact that there are no records of either the injuries or the treatment. Appellant's Brief (Br.) at 1.
The Board rejected the appellant's claims based upon its conclusion that the claims "have no support other than his history, which is neither consistent nor credible." R. at 8. The Court concludes that the Board's credibility finding is not clearly erroneous.See 38 U.S.C. § 7104(d)(1)); Gutierrez v. Nicholson, 19 Vet.App. 1, 9-10 (2005) (noting that a Board 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.'" (quoting Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) (internal citations omitted))).


There is ample evidence that contradicts the appellant's factual
assertions. An April 1988 Social Security Administration (SSA) decision found that the appellant became unable to work after service in 1977 when he suffered an injury to his back while working in the construction industry. R. at 28. There is no indication that the appellant asserted at that time that he had been injured in service. Moreover,the SSA decision also referred to a June 1984 evaluation by an orthopedist where the appellant stated his back pain was due to a childhood injury. Id. In a
December 1995 private hospital record, the appellant reported that he had two ruptured discs and two cracked vertebrae when he was five years old. R. at 322. In a July 1997 private clinical note, the appellant attributed his back pain to an accident that occurred when he was five years old that involved being run over by a vehicle and that since the accident, he had chronic low back pain. R. at 371. At a March 2002 private psychiatric evaluation, the appellant gave a history of being run over by a tractor as the cause of his back pain. R. at 366-67.
The appellant filed a claim for service connection for a back disability in November 2004. R. at 392-95. Despite his repeated statements to physicians about a severe childhood injury, during a May 2006 hearing the appellant stated that before he went into service, he did not have any back problems and had never injured his back. R. at 188. In a May 2006 hearing, the appellant again asserted that he had no problems with his back prior to service. R. at 188.
At a February 2009 hearing before the Board, the appellant indicated that he had an
occupational injury to his back in 1977 and that he received workers' compensation for it. R. at 473-76.
Based upon the above evidence, the Court firmly agrees with the Board that
the appellant's assertions of a back injury in service are simply not credible. Prior to his current claim for benefits, the appellant never mentioned an in-service injury to his back and repeatedly reported to physicians that he had a severe childhood injury instead. See Buczynski v. Shinseki, 08-3000, __ Vet.App. __, __, 2011 WL 37846 at *3, slip op. at 5 (Jan. 6, 2011) (silence in a medical record may be relevant if the record would normally have recorded the fact at issue); cf. Fed. R.Evid. 803(4) (statements
of relevant medical history are an exception to the hearsay rule); 803(7) (the absence of an entry in a record may be taken as evidence that the event did not occur if the matter is of the kind that ordinarily would have been recorded in that record). Accordingly, the Board could reasonably conclude that the appellant's prior statements rendered his current statements not credible.
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The appellant argues that, despite the inconsistencies, "[i]t is well within the realm of possibility" that he had an in-service back injury even if he also had a childhood injury and a post-service injury. Appellant's Br. at 6. The appellant further argues that he is entitled to a medical examination and to explicit consideration of all the theories of entitlement raised by his testimony.
The Court disagrees. Simply put, once the appellant's testimony was found not credible, there was no factual basis to require further development of his claim or further discussion by the Board.
While that will not be true in every case, the appellant admits that in
this case there is no evidence to corroborate his testimony and, therefore, nothing that would require VA to expend further effort on this claim once that testimony was found not credible. Cf. Reonal v. Brown, 5 Vet.App. 458, 460-61 (1993) (medical opinion based on inaccurate factual premise has no probative value). The appellant remains free to seek to reopen his claims should he obtain some evidence to corroborate his testimony.
After consideration of the appellant's and the Secretary's briefs, and a
review of the record,
the Board's September 15, 2009, decision is AFFIRMED.
DATED: Feb. 9, 2011
Copies to:
Daniel G. Krasnegor, Esq.
VA General Counsel (027)
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