Single Judge Application, Clemons, 23 Vet.App., Retroactive Disability Evaluation

Excerpt from decision below:
"As the Board itself noted, Clemons requires an examination of the claimant's
description of the claim, reported symptoms, and other information of record. 23 Vet.App. at 5. The only information of record the Board continues to cite to is the diagnosis of post-traumatic stress disorder in 1992. The Board failed to discuss the similarity in Mr. Sinopoly's psychiatric symptoms when he was treated for various psychiatric ailments in the 1970's and 1980's, and ignored Mr. Sinopoly's statements that he has been afflicted with the same psychiatric symptoms since service. See, e.g., R. at 666 ("[Mr. Sinopoly] states that he has suffered symptoms of [post-traumatic stress disorder] since he left Viet Nam. He has had psych[iatric] treatment since 1978.")."
=========================

"Again noting the lengthy procedural history of this case, and reiterating
the futility of obtaining an adequate statement of reasons or bases from the Board in this appeal, the Court concludes that, pursuant to Clemons, Mr. Sinopoli's 1982 claim fora nervous disorder may very well encompass his subsequent diagnosis of post-traumatic stress disorder. Cf. Cogburn v. Shinseki, 24 Vet.App. 205 (2010) (Secretary arguing that, in the context of the implicit denial doctrine, a claim
6


for benefits for a nervous disorder was encompassed by, and therefore
implicitly denied by, a subsequent claim for benefits for post-traumatic stress disorder). Thus, the Board erred by violating the terms of the joint motion for remand order. Accordingly, to fully determine whether the psychiatric symptoms exhibited by Mr. Sinopoli in 1982 were the same as his subsequently diagnosed post-traumatic stress disorder, the Court will order a retroactive disability evaluation examination, as discussed in part II. C below."

----------------------------------------------------


Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-3273
DOUGLAS SINOPOLI, 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: Douglas Sinopoli appeals through counsel an August 24, 2009,
Board of
Veterans' Appeals (Board) decision that denied entitlement to an effective
date prior to December
27, 1991, for the award of VA benefits for post-traumatic stress disorder.
The Court has jurisdiction
pursuant to 38 U.S.C. §§ 7252(a) and 7266(a) to review the August 2009
Board decision. Because
the Board's finding that Mr. Sinopoli is not entitled to an effective date
prior to December 27, 1991,
for post-traumatic stress disorder is clearlyerroneous, the Court will
reverse the August 2009 Board
decision and remand the matter for further development and readjudication
consistent with this
decision.
I. FACTS
Mr. Sinopoli served on active duty in the U.S. Army from August 1964 to
August 1967,
including service in Viet Nam. Mr. Sinopoli's service treatment records
reflect that in April 1965,
he reported that he would be unable to function in stressful situations in
Viet Nam. A psychiatric
evaluation revealed that Mr. Sinopoli was a "rather immature [and]
inexperienced young man."
Record (R.) at 1462.


In June 1977, Mr. Sinopoli was hospitalized for "agitated depression." R.
at 1306-07. In
December 1977, Mr. Sinopoli was hospitalized and diagnosed with acute
psychotic reaction. In the
hospital summary, it was noted that he had two previous psychiatric
admissions and had been
receiving outpatient treatment.
In September 1982, Mr. Sinopoli filed a claim forVA benefits for an "
emotional and nervous
disorder." R. at 1324-25. In an April 1983 rating decision, a VA regional
office denied that claim.
Mr. Sinopoli did not appeal that decision and it became final.
In December 1991, Mr. Sinopoli filed a claim for benefits for "post-
traumatic stress
disorder." R. at 1264. In support of his claim, Mr. Sinopoli submitted
post-service VA medical
center treatment records that reflected a diagnosis of post-traumatic
stress disorder. In addition, in
January 1993, VA obtained service personnel records that had not been
previously associated with
Mr. Sinopoli's claims file, indicating that he experienced combat-related
stressors during his time
in Viet Nam.
Afterfurtherdevelopment,1
in a January2002 ratingdecision,Mr.Sinopoli was awarded VA
benefits for post-traumatic stress disorder, effective December 27, 1991,
the date he filed his claim
for post-traumatic stress disorder. Mr. Sinopoli appealed the effective
date assigned.
After still further development,2
the Board issued the August 2009 decision currently on
appeal. Pursuant to the April 2009 joint motion for remand, the Board was
instructed to discuss the
applicability of (1) 38 C.F.R. § 3.156(c); (2) this Court's decision in
Clemons v. Shinseki,
23 Vet.App. 1 (2009); and (3) whether a retroactive VA examination was
warranted pursuant to this
Court's decision in Chotta v. Peake, 22 Vet.App. 80 (2008). The Board
discussed the procedural
history of the case and noted this Court's holding in Clemons, but found
that 38 C.F.R. § 3.156(c)
The procedural history in this case is significant. After Mr. Sinopoli's
1991 claim for VA benefits for post-
traumatic stress disorder was originally denied by both the regional
office and the Board, in June 2000, this Court vacated
and remanded the case for further development and readjudication. In a
July 2001 Board decision, the Board found that
Mr. Sinopoli was entitled to VA benefits for post-traumatic stress
disorder and that decision was implemented by a
January 2002 regional office decision; thus, because Mr. Sinopoli's claim
has been continuously pending, he is eligible
for an earlier effective date. Cf. Rudd v. Nicholson, 20 Vet.App. 296, 300 (
2006) (noting that there is no such thing as
a freestanding claim for an earlier effective date).
This development included an April 2005 Board decision that was vacated by
a September 2007 joint motion
for remand and a July 2008 Board decision that was vacated by an April
2009 joint motion for remand.
2
1
2


was not for application because Mr. Sinopoli's 1982 claim for a nervous
disorder was a separately
diagnosed condition from post-traumatic stress disorder. The Board also
found that Mr. Sinopoli
was not entitled to a retroactive VA examination because his case was
distinguishable from Chotta
and because entitlement to an earlier effective date was being denied.
On appeal, Mr. Sinopoli argues that the Board failed to provide an
adequate statement of
reasons or bases for its decision and its findings are not in accordance
with the law. Specifically, Mr.
Sinopoli argues that the Board treated his 1992 diagnosis of post-
traumatic stress disorder as
dispositive rather than discussing his symptoms and determining whether he
was entitled to a VA
examination. The Secretary disputes these contentions.
II. ANALYSIS
A. Preliminary Considerations
Initially, the Court points out the lengthy procedural history in this
case, which spans nearly
20 years and includes five Board decisions and four adjudications before
this Court. On each
occasion, the Court has reminded the Board that a remand from this Court "
is meant to entail a
critical examination ofthejustification forthedecision." Fletcher v.
Derwinski,1Vet.App.394,397
(1991). It is not "merelyfor the purposes of rewriting the opinion so that
it will superficiallycomply
with the 'reasons or bases' requirement." Id. Indeed, the August 2009
Board decision at issue in this
case reads as a defensive document that goes out of its way to deny the
veteran benefits. Such
defensiveness flies in the face of a nonadversarial adjudication system.
See Henderson v. Shinseki,
131 S. Ct. 1197, 1201 (2011) (stating that "VA's process for adjudicating [
a claim] at the regional
office and the Board is ex parte and nonadversarial").
Thus, although the Court does not agree with the precise arguments
advanced by Mr.
Sinopoli's counsel, for the reasons outlined below, the Court will
nonetheless decide this appeal in
his favor because to continue to engage in such repetitive efforts to
ensure an adequate Board
decision would be Sisyphean. Whether the allusion is to the eternal labors
of Sisyphus, the endless
"hamster wheel," or to the infinite up-and-down travel of a yo-yo, the
Court cannot countenance
continued unproductive efforts, especially when the system designed to
determine eligibility for
veterans benefits has been repeatedly touted as nonadversarial and pro-
claimant. See NLRB v.
3


Wyman-Gordan, 394 U.S. 759, 766 n.6 (1969) (stating that judicial review
of an agency's action
should not be converted into a "ping-pong game" where remand is "an idle
and useless formality");
Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010) (noting that "[i]n
close or uncertain cases,
the VA should be guided bythe principles underlying this uniquelypro-
claimant system"); Disabled
American Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339, 1349 (Fed.
Cir. 2003) (noting the
"uniquely pro-claimant character of the veterans' benefits system" created
by Congress); Coburn v.
Nicholson, 19 Vet.App. 427, 434 (2006) (Lance, J., dissenting) (noting
that an unnecessary remand
"perpetuates the hamster-wheel reputation of veterans law").
B. 38 C.F.R. § 3.156(c)
Section 3.156(c) provides that "if VA receives or associates with the
claims file relevant
official servicedepartment records thatexistedandhadnot beenassociatedwith
theclaimsfile when
VA first decided the claim, VA will reconsider the claim." 38 C.F.R. § 3.
156(c)(1) (2010). This
Court recently held in Mayhue v. Shinseki that "a claimant whose claim is
reconsidered based on
newly discovered service department records may be entitled to an
effective date as early as the date
of the original claim." __ Vet.App.__, ___ 2011 WL 135200 at *5 (Jan. 18,
2011).
Mr. Sinopoli argues that, in substance, his 1982 claim for benefits for a
nervous condition
andhis 1991claimfor benefits for post-traumaticstress disorder arethe same
and therefore,his 1991
claim should have been treated as a claim to reopen rather than a new
claim for VA benefits.
Regardless of whether Mr. Sinopoli's claim is characterized as a new claim
or a claim to reopen,
§ 3.156(c) requires VA to reconsider Mr. Sinopoli's claim because new
service records were
obtained. Although the Board found that these newly acquired service
personnel records were not
relevant to Mr. Sinopoli's claim, the truth is that Mr. Sinopoli's 1991
submission of service
department records that existed during the time that his 1982 claim was
adjudicated triggered a
reconsideration of Mr. Sinopoli's 1982 claim. Accordingly, the Court
disagrees with the Board's
finding and concludes that it is clearlyerroneous. See Herseyv. Derwinski,
2 Vet.App. 91, 94 (1992)
("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.'" (quoting United States v. U.S. Gypsum Co., 333 U.S. 364,
395 (1948))).
4


Mr. Sinopoli's 1982 claim was for a nervous condition and his service
medical records
indicate that he was treated for nervousness and a perceived inability to
handle stressful situations
in Viet Nam. The service personnel records obtained in September 1993 deal
with precisely that
subject–stressful combat situations that Mr. Sinopoli encountered while
in Viet Nam. Accordingly,
the Court concludes that it is undebatable that these records are relevant
to Mr. Sinopoli's claim and
as such, the Board was required to reconsider the 1982 claim.
C. Applicability of Clemons v. Shinseki
In the April 2009 joint motion for remand, the parties stated:
Remand is required for the Board to address whether consideration in light
of
Clemons would affect its determination that the 1982 claim did not
encompass a
claim for service connection for [post-traumatic stress disorder]. The
Clemons court
required consideration of "alternative current conditions within the scope
of the filed
claim." The Board, however, did not determine if [Mr. Sinopoli]'s 1982
claim
encompassed a claim for [post-traumatic stress disorder] and denied an
earlier
effective dateon this basis because [he] did not explicitlyseek service
connection for
[post-traumatic stress disorder]. In light of Clemons, remand is required
for the
[Board] to determine if [post-traumatic stress disorder] was "reasonably
encompassed" in his claim for "emotional and nervous disorder."
R. at 65-66 (internal citations omitted).
In response to this instruction in the April 2009 joint motion for remand,
the Board stated as
follows:
In Clemons v. Shinseki, 23 Vet.App. 1 (2009), the [Court]
essentiallydetermined that
the scope of a mental health disability claim includes any mental
disability that may
reasonably be encompassed by the claimant's description of the claim,
reported
symptoms, and the other information of record. The parties [j]oint [m]
otion [for
remand] concluded that, according to Clemons, the Board must consider the
[v]eteran's December 1991 claim for service connection for [post-traumatic
stress
disorder] to encompass a claim of service connection for any acquired
psychiatric
disorder, to include [post-traumatic stress disorder].
...
Regardless of whether [Mr. Sinopoli]'s symptoms in service and shortly
thereafter
were actually [post-traumatic stress disorder] symptoms, the fact remains
that [post-
traumatic stress disorder] was not diagnosed until 1992. Nor do service
treatment
records indicate that [he] developed any psychiatric disorder during
service.
Although the service treatment records paint a picture of a young man who
was
5


immatureandinexperienced,andwhoexperiencedanepisodeofconversion reaction
in February 1965, there was no indication that he had, or acquired, a
psychiatric
disorderin service. He was simplylabeled with an
apparentunstablepersonality,and
his ability to function in the stressful situations in Viet[ Nam] was
questioned, given
his level of maturity.
R. at 12-13.
Given this analysis, the Court concludes that the Board did not adequately
comply with the
joint motion for remand's requirement that it consider the applicability
of Clemons. Although the
Board acknowledged the Court's holding in that case, the Board did not
apply that holding to the
facts of Mr. Sinopoli's appeal and continues to treat the fact that Mr.
Sinopoli was not diagnosed
with post-traumatic stress disorder until 1992 as dispositive. Not only is
the Board's logic circular
at best, but it also fails to comply with the April 2009 joint motion for
remand order. See Forcier
v. Nicholson, 19 Vet.App. 414, 426 (2006) (holding that the Board has a
duty to ensure compliance
with the terms stated in a joint motion for remand or must explain why the
terms could not be
fulfilled).
The Board's description of the Court's holding in Clemons is hardly a
discussion of whether
post-traumatic stress disorder was "reasonablyencompassed in his claim for
'emotional and nervous
disorder.'" R. at 66. As the Board itself noted, Clemons requires an
examination of the claimant's
description of the claim, reported symptoms, and other information of
record. 23 Vet.App. at 5. The
only information of record the Board continues to cite to is the diagnosis
of post-traumatic stress
disorder in 1992. The Board failed to discuss the similarityin Mr.
Sinopoly's psychiatric symptoms
when he was treated for various psychiatric ailments in the 1970's and
1980's, and ignored Mr.
Sinopoly's statements that he has been afflicted with the same psychiatric
symptoms since service.
See, e.g., R. at 666 ("[Mr. Sinopoly] states that he has suffered symptoms
of [post-traumatic stress
disorder] since he left Viet Nam. He has had psych[iatric] treatment since
1978.").
Again noting the lengthy procedural history of this case, and reiterating
the futility of
obtaining an adequate statement of reasons or bases from the Board in this
appeal, the Court
concludes that, pursuant to Clemons, Mr. Sinopoli's 1982 claim fora
nervous disorder mayverywell
encompass his subsequent diagnosis of post-traumatic stress disorder. Cf.
Previous DocumentCogburn v. Shinseki, 24
Vet.App. 205 (2010) (Secretary arguing that, in the context of the
implicit denial doctrine, a claim
6


for benefits for a nervous disorder was encompassed by, and therefore
implicitly denied by, a
subsequent claim for benefits for post-traumatic stress disorder). Thus,
the Board erred by violating
the terms of the joint motion for remand order. Accordingly, to fully determine whether the psychiatric symptoms exhibited by Mr. Sinopoli in 1982 were the same as his subsequently diagnosed post-traumatic stress disorder, the Court will order a retroactive disability evaluation examination, as discussed in part II. C below.

C. Applicability of Chotta v. Peake
The April 2009 joint motion for remand also instructed:
If the Board determines that [post-traumatic stress disorder] was "
reasonably encompassed" in [Mr. Sinopoly]'s 1982 claim, the Board should also
determine with support by an adequate statement of reasons or bases whether the Secretary is required to provide a retrospective medical examination as part of his
duty to assist to determine whether [his] record indicates a diagnosis of [post-traumatic stress disorder] at the time of the September 1982 claim.
R. at 66 (citing Chotta, 22 Vet.App. 80 (2008)).
In response, the Board found that:
In the April 2009 [j]oint [m]otion [for remand], the parties suggested that a "retrospective medical examination might be necessary to determine whether [
Mr. Sinopoli]'s record indicates a diagnosis of [post-traumatic stress
disorder] at the time of the September 1982 claim." In support of this theory the [j]oint [m]otion [for remand] relies on the holding in Chotta v. Peake, 22 Vet.App. 80 (2008), noting that it is appropriate in proper circumstances to seek a medical opinion that is retrospective. In Chotta, however, the Court addressed the scope of the duty to assist in the context of assigning a disability rating where a previous decision is revised based on a finding of clear and unmistakable error [ ]. This case is distinguishable from Chotta because there is no retroactive disability rating being assigned, as the claim for an earlier effective date is denied. In other words, the issue here is not the determination of a retroactive disability rating (i.e., the severity of the disability during a retroactive period for which service connection has been established); but, rather whether the disability for which service connection was ultimately granted actually existed years earlier, but was misdiagnosed. As these issues are entirely different, there is no duty to obtain a retrospective opinion in this case, based on Chotta. Moreover, even if a competent medical professional opined that [Mr. Sinopoli]'s in-service symptoms were as likelyas not [post-traumatic stress disorder] symptoms, the effective date of the award of service connection may not be established prior to the date entitlement arose, and in this case, entitlement does not
7


arise until 1992. A current opinion regarding the possible onset of a
disability based on speculation may not serve to establish a date prior to 1992 as the date entitlement arose because an opinion in 2009 does not establish a current diagnosis of disability sometime prior to 1992 for purposes of establishing an earlier effective date for an award of service connection. R. at 15-16.
Again, the Board's logic is circular at best. According to the reasoning
applied by the Board, a retrospective VA examination would never be appropriate, and the Board's distinction between Chotta and this case is purely superficial. Further, the Board fails to
take into account the fact that,
at the time Mr. Sinopoly filed his claim in 1982, post-traumatic stress
disorder had only recently
been recognized by the American Psychiatric Association and VA.
See DIAGNOSTIC
AND
STATISTICALMANUALOF MENTALDISORDERS236(3d ed. 1980); Cohen v. Brown, 10
Vet.App.128,
140 (1997) (tracing the evolution of post-traumatic stress disorder
throughout the VA adjudication
process and the applicability of the diagnostic criteria set forth in the
various editions of the
DIAGNOSTICAND STATISTICALMANUALOF MENTALDISORDERS; Fletcher v. Derwinski,
1 Vet.App.
394, 395 (1991) ("In 1980, [VA] changed its regulations to incorporate [
post-traumatic stress
disorder] for the first time.").
Accordingly, having concluded above that there is a likely possibility
that Mr. Sinopoly's
nervous disorder in 1982 and his post-traumatic stress disorder, diagnosed
in 1992, are overlapping, the Court now instructs the Board to afford Mr. Sinopoly a retrospective medical opinion. See Chotta, 22 Vet.App. at 85 (stating that "a medical expert is the only person competent to opine whether the appellant's observable symptoms are medically related to his current [post-traumatic stress disorder] condition or some other condition if there is uncertainty."). The retrospective VA examination should provide a medical opinion, supported by adequate rationale, as to whether it is at least as likely as not that the psychiatric symptoms exhibited by Mr. Sinopoly prior to his diagnosis of post-traumatic stress disorder in 1992 are likely manifestations of that disorder. The Court also reminds VA of its duty to ensure that any such examination is adequate for rating purposes. See Barr v. Nicholson, 21 Vet.App. 303, 311 (2007) (noting that an adequate medical opinion should be based upon consideration of the veteran's prior medical history and examinations); 38 C.F.R. § 4.2 (2010).
8


In conclusion, the Court again expresses its frustration with the Board's
resistance to adequately adjudicating Mr. Sinopoly's appeal, complying with the prior joint motion for remand, and remembering the "nonadversarial, uniquely pro-veteran claims process within VA." Hunt v. Nicholson, 20 Vet.App. 519, 524 (2006). To be clear, on remand, the Board will provide Mr. Sinopoli with a retroactive medical examination and based on these findings, will consider his entitlement to an earlier effective date. The Court also trusts that the Board will adjudicate future remanded claims with the full attention that they deserve.

III. CONCLUSION
Upon consideration of the foregoing, the August 24, 2009, Board decision
is REVERSED
and the matter is REMANDED WITH INSTRUCTIONS to the Board for further
development and readjudication consistent with this decision.

DATED: April 8, 2011
Copies to:
David E. Boelzner, Esq.
VA General Counsel (027)
9