Single Judge Application, Kahana v. Shinseki, 24 Vet.App. 428, 438 (2011); Buczynski v. Shinseki, 24 Vet.App. 221, 226-27 (2011)

Excerpt from decision below: "In this case, the Board discounted the appellant's lay statements that his depression started at age 20. The Board stated that "[w]hen viewed in relation to the other evidence of record, the Board finds that the [appellant]'s account of his post-service continuity of symptomatology is simply not credible." R. at 11. The Board seems to have based this conclusion on the premise that the appellant's statements conflicted with other evidence of record. R. at 11-12. For example, the Board concluded that the appellant's lay statements about continuous symptoms conflicted with his March 2004 statement that he had not received any mental health treatment in the past. R. at 11. This analysis is inaccurate. The Board erred when it stated that the appellant "conceded he had had no past mental health problems or treatment." R. at 11. The appellant himself reported that he had never received treatment for his depression, but he did not state that he had never had mental health problems. R. at 650. The Board again erred when it required corroborating evidence of treatment, rather than symptoms. See Savage, supra. Next, given that the appellant expressly stated he had never been treated for his depression, the Board erred when it considered the lack of evidence of treatment as evidence that the appellant did not experience symptoms during that time. See Buczynski and Kahana both supra. Based on this analysis, the Court cannot conclude that the Board's credibility finding is based on a permissible analysis." ======================= Skip navigation U.S. Court of Appeals for Veterans Claims View | Download | Details Previous document | Next document . 10-0215 HolmesRJ_10-215.pdf Search Terms: KAHANA CreationDate: 09/23/2011 15:12:14 Creator: PrintServer150 ModDate: 09/26/2011 12:28:33 Producer: Corel PDF Engine Version 15.0.0.505 Title: X_XMPMETA_DC_TITLE: Times New Roman X_XMPMETA_XMPRIGHTS_MARKED: True ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 10-0215 RICHARD J. HOLMES, 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, Richard J. Holmes, through counsel, appeals an October 1, 2009, Board of Veterans'Appeals (Board)decision that denied his claim for disabilitycompensation for bipolar disorder. Record (R.) at 3-15. 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 vacate the October 1, 2009, decision and remand the matter for further proceedings consistent with this decision. I. FACTS The appellant served in the U.S. Navy from May 1980 to February 1982. R. at 187. His entrance examination did not note any psychiatric problems. R. at 132-45. He was discharged early after a history of using and dealing illegal drugs and a resulting incarceration. R. at 95. The reason listed for his discharge was that he was a "burden to command due to substandard performance [and] inability to adapt to military service." R. at 187 (capitalization omitted ). His February 1982 discharge examination report of medical history noted depression and excessive worry. R. at 518. In March 2004, a VA mental health interview noted that the appellant reported no history of mental health treatment. R. at 650. During an August 2004 psychiatric history, the appellant reported that he had suffered from depression since age 20. R. at 633. In May 2005, the appellant filed an application for disability compensation for a bipolar disorder. R. at 703-04. In October 2005, he received a VA medical examination. R. at 668-77. The examiner noted that the appellant reported "a historyof emotional difficulties that started during childhood ." R. at 676. The examiner noted that the appellant identified his depression that occurred in the military as occurring when he was sent to correctional custodyfor his possession of marijuana and then his inabilityto return home for his buddy's wedding because he was incarcerated. There was no other indication of depression occurring in the United States Navy. Likewise, the [appellant]'s identification of depression has to do with the consequences of his substance abuse, including his divorce and the refusal of his wife to allow him to see his three younger children. Most likely this reflects the emotional dysregulation that occurswithaborderlinepersonalitydisorder. Individuals with borderlinepersonality disorder are less able to tolerate disappointments and disruption of relationships. R. at 676. The examiner concluded that the appellant's depressive symptoms were likely "the result of his difficulty regulating his emotions because of borderline personality disorder and the many unfortunate consequences of his behavior that have led to disrupted relationships with his children and ex-wife." R. at 676. The examiner opined that the "veteran's mental health symptoms were not caused or aggravated by his time in the United States Navy and did not begin during his time in the United States Navy." R. 676. In November 2005, VA denied the claim and the appellant appealed. R. at 510, 622-31. In July 2006, a VA clinical psychologist stated that "[r]egarding [the October 2005 opinion] that [the appellant] has borderline personalitydisorder; [b]ipolar disorder is certainlyprominent and it is typical for male adults with bipolar disorder to present with borderline personality traits with initial manifestation in childhood and early adolescence." R. 401, 510. Later that year, in an October 2006 VA mental health note, the appellant's psychiatrist stated that his assessment was "early onset bipolar disorder as a youth." R. at 201. The psychiatrist opined that the appellant's psychiatric problems did not begin in service. R. at 201. He explained: "It is clear that [the appellant] had mood disturbances and attentional disturbances as a boy; however, the stress of the United States Navy may have exacerbated them." R. 201. InDecember2007, theBoardissuedadecisiondenyingtheclaimfordisabilitycompensation for bipolar disorder. R. at 76-84. In May 2009, this Court granted a joint motion for remand that directed the Board to reconsider and more adequately address the veteran's hearing testimony as it pertained to his continuity of symptomatology since service. R. at 42. On October 1, 2009, the Board issued the decision on appeal. R. at 3-15. The Board explicitly found that the appellant's lay statements about continuity of symptomatology were not credible because they conflicted with other evidence of record. R. at 11. The Board relied on the October 2005 VA medical opinion that the appellant's mental health problems were not caused or aggravated by his military service and denied the claim. R. at 13. II. ANALYSIS The appellant states that "the thrust of [his] claim is that his pre- existing condition of borderline personality disorder was aggravated in service and developed into bi-polar depression." Appellant's Reply Brief (Br.) at 5. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in- service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in- service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet.App. 247, 253 (1999); 38 C.F.R. § 3.303 (2011). A. Adequacy of October 2005 Medical Opinion An adequate medical opinion must be "accurate and fully descriptive" and it must be based on an accurate factual premise and on a consideration of the veteran's prior medical history and examinations and must describe the disability in sufficient detail so that the Board may conduct a fullyinformed evaluation of the disability. 38 C.F.R. § 4.1 (2011); see Ardison v. Brown, 6 Vet.App. 405, 407 (1994); see also Floyd v. Brown, 9 Vet.App. 88, 93 (1996). In addition, the medical opinion "must support its conclusions with an analysis that the Board can consider and weigh against contraryopinions." Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007); seeNieves-Rodriguez v. Peake, 22 Vet.App. 295, 304 (2008); see also Hicks v. Brown, 8 Vet.App. 417, 421 ( 1995) (inadequate medical evaluation frustrates judicial review). The Board may assign more probative weight to any medical opinion as long as it provides an adequate statement of reasons or bases for that decision. Owens v. Brown, 7 Vet.App. 429, 433 (1995). Initially, the Court notes that the appellant argues that the medical opinion was based on an inaccurate factual premise solelybecause the examiner did not have access to medical evidence that postdatedtheexamination in question. Theappellantfailsto provideanysupport, legalorotherwise, for this novel and somewhat illogical proposition. Appellant's Br. at 9, Appellant's Reply Br. at 4. The Court's case law is clear that a medical opinion must be based on an accurate factual premise, but a medical examiner's failure to predict future information only renders the opinion inadequate if that future information actually changes the factual premise on which the opinion is based. In this case, the July 2006 opinion added to the record a theory that the appellant's bipolar disorder may have been misdiagnosed as borderline personality disorder. R. at 401. The October 2006 opinion added to the record a theory that the stress of military service may have aggravated a preexisting psychiatric condition. R. at 201. These opinions do not change the factual premise of the October 2005 medical opinion because theyprovide additional theories, not conflicting information. It is the responsibility of the Board, not the medical examiner, to assess and reconcile all the evidence of record. Moore v. Nicholson, 21 Vet.App. 211, 218 (2007) (Board fulfilled its role when it interpreted the medical evidence of record and determined how a disability translated into a specific disability rating pursuant to the applicable diagnostic code), rev'd on other grounds by Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009); cf. 38 C.F.R. § 4.2 (2011). In this case, the Board accepted the factual premise of the October 2005 opinion and weighed it against other opinions suggesting alternative theories. This was not error. The appellant also argues that the October 2005 medical opinion is inadequate because it is a "general statement without supporting data and without a reasoned medical explanation [and t]he examiner failed to provide anyrationale." Appellant's Br. at 5-9. The Court disagrees. The October 2005 examiner provided a lengthy and detailed medical report, followed by a nexus opinion. R. at 668-77. She reviewed the claims folder and conducted psychological tests and an interview with the appellant. R. at 668. She provided a thorough report of his prior medical history and a detailed description of his current condition, mental status at the interview, and the results of psychological testing. R. at 668-75. She diagnosed "bipolar disorder, by history, in partial remission" and "borderline personality disorder." R. at 675. Finally, she opined that neither the appellant's borderline personality disorder nor his bipolar depressive symptoms began during, were caused by, or were aggravated by his military service. R. at 676. She also provided a rationale for these conclusions: the appellant's problems did not begin in service because theystarted in childhood and pre-existed his military service; and his symptoms during service were not the result of his military experiences but rather a response to the consequences of his own behavior, such as being incarcerated for the possession and sale of illegal drugs, for which he received an early discharge. R. at 676. Accordingly, the October 2005 medical opinion was not inadequate. B. Presumption of Soundness The appellant argues that the Board misapplied the presumption of soundness when it stated that "the entry examination does not note [any psychiatric problems] and thus the presumption of soundness at entry is not rebutted." Appellant's Br. at 13-14. He argues that "the [Board]'s failure to correctly determine whether the veteran's presumption of soundness was rebutted precluded a correct adjudication of whether or not the veteran had a pre-existing condition that was aggravated in service." Appellant's Reply Br. at 5. The Court agrees. Under the statutory presumption of soundness, e]ery veteran shall be taken to have been in sound condition when [inducted], except as to defects, infirmities, or disorders noted at the time of the [induction] examination, . . . or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. "[T]he correct standard for rebutting the presumption of soundness under section 1111 requires the government to show by clear and unmistakable evidence that (1) the veteran's disabilityexisted prior to service and (2) that the pre-existing disability was not aggravated during service." Wagner v. Principi, 370 F.3d 1089, 1097 (Fed. Cir. 2004). The clear-and- unmistakable-evidence standard is an "onerous" one, and requires that the no-aggravation result be "undebatable." Laposky v. Brown, 4 Vet.App. 331, 334 (1993) (citing Akins v. Derwinski, 1 Vet.App. 228, 232 (1991)); see Vanerson v. West, 12 Vet.App. 254, 258, 261 (1999)). The determination of whether the record contained clear and unmistakable evidence of sufficient weight to rebut this presumptions of soundness and aggravation is subject to de novo review by this Court. Cotant v. Principi, 17 Vet.App. 116, 130 (2003). In this case, the Board stated that "[a]lthough some of [the] recent VA and private treatment records appear to support [the appellant's] claim of psychiatric disability existing prior to service, the entry examination does not note same [sic], and thus the presumption of soundness at entry is not rebutted." R. at 12. It is true that the appellant's entryexamination does not note any psychiatric problems; however, all three medical opinions of record expressly connect the appellant's psychiatric problems to his childhood. R. at 201, 401, 676. In fact, the October 2005 negative nexus opinion on which the Board relied expressly states that the appellant's psychiatric problems began in childhood as a rationale for her opinion that the problems did not begin in service. R. at 676. The Board cannot have it both ways. The Board totally failed to address the medical opinion evidence about the possibility of a pre-existing condition when it made its conclusory statement about the presumption of soundness. The Board's failure to adequately address the presumption of soundness precluded a correct adjudication of whether or not the appellant had a pre-existing condition that was aggravated in service. Accordingly, the Court will remand the matter so the Board may conduct an analysis of this issue in the first instance. C. Lay Statements The appellant argues the Board erred when it disregarded his laystatements about continuity of symptomatologyon the basis that theywere not credible. Appellant's Br. at 9-12, citing 38 C.F.R. § 3.303(b) (service connection may be established by showing continuity of symptomatology); see Davidson, 581 F.3d at 1313; Jandreau v. Nicholson, 492 F.3d 1372, 1377 ( Fed. Cir. 2007) (whether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board); Charles v. Principi, 16 Vet.App. 370, 374 (2002) (appellant is competent to testify where symptoms are capable of lay observation, such as ringing in the ears); Layno v. Brown, 6 Vet.App. 465, 469 (1994) (lay testimony is competent to establish the presence of an observable symptomatologyand "mayprovide sufficient support for a claim of service connection"). Under the continuity of symptomatologyprovision, "symptoms, not treatment, are the essence of anyevidence of continuity of symptomatology." Savage v. Gober, 10 Vet.App. 488, 496 ( 1997). The Board is required to assess the credibility and probative weight of all relevant evidence. McClain v. Nicholson, 21 Vet.App. 319, 325 (2007). In doing so, the Board may consider factors such as facial plausibility, bias, self interest, and consistency with other evidence of record. Caluza v. Brown, 7 Vet.App. 498, 511 (1995), aff'd per curiam 78 F.3d 604 (Fed. Cir. 1996( (table); see Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Jandreau, 492 F.3d at 1376 ("[T]he Board retains discretion to make credibility determinations and otherwise weigh the evidence submitted[.]"). Personal interest may affect the credibility of the evidence, but the Board may not disregard testimony solely because the claimant stands to gain monetary benefits. Cartright v. Derwinski, 2 Vet.App. 24, 25 (1991). Nor may the Board reject a veteran's lay testimony solely because it is not corroborated by contemporaneous medical records. Buchanan, 451 F.3d at 1337 (lack of contemporaneous medical records does not, in and of itself, render lay evidence not credible); see Previous DocumentKahanaNext Hit v. Shinseki, 24 Vet.App. 428, 438 (2011) (Lance, J., concurring) (discussing the distinction between cases in which there is a complete absence of any evidence to corroborate or contradict the testimony, as opposed to cases in which there is evidence that is relevant either because it speaks directly to the issue or allows a reasonable inference to be drawn by the Board as factfinder); cf. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (Board mayconsider "evidence of a prolonged period without medical complaint, along with other factors" when considering aggravation of a pre-existing condition). However, the Board may not consider a lack of notation of a medical condition or symptoms as evidence that the condition or symptoms did not exist when it is normal to expect that such notation would be recorded. See Buczynski v. Shinseki, 24 Vet.App. 221, 226-27 (2011). "The Court reviews factual findings" such as credibility "under the 'clearly erroneous' standard such that it will not disturb a Board finding unless, based on the record as a whole, the Court is convinced that the finding is incorrect." See Hood v. Shinseki, 23 Vet.App. 295, 299 ( 2009). In this case, the Board discounted the appellant's lay statements that his depression started at age 20. The Board stated that "[w]hen viewed in relation to the other evidence of record, the Board finds that the [appellant]'s account of his post-servicecontinuityof symptomatologyis simply not credible." R. at 11. The Board seems to have based this conclusion on the premise that the appellant's statements conflicted with other evidence of record. R. at 11- 12. For example, the Board concluded that the appellant's lay statements about continuous symptoms conflicted with his March 2004 statement that he had not received any mental health treatment in the past. R. at 11. This analysis is inaccurate. The Board erred when it stated that the appellant " conceded he had had no past mental health problems or treatment." R. at 11. The appellant himself reported that he had never received treatment for his depression, but he did not state that he had never had mental health problems. R. at 650. The Board again erred when it required corroborating evidence of treatment, rather than symptoms. See Savage, supra. Next, given that the appellant expressly stated he had never been treated for his depression, the Board erred when it considered the lack of evidence of treatment as evidence that the appellant did not experience symptoms during that time. See Buczynski and Previous HitKahanaNext Document, both supra. Based on this analysis, the Court cannot conclude that the Board's credibilityfinding is based on a permissible analysis. On remand, the Board must consider and more adequately address this issue and also provide an adequate statement of the reasons or bases for its findings and conclusions. If the Board changes its credibility determination, it will need to re- assess the other evidence, such as the August 2004 VA psychiatric history, that was based on the appellant's self-reported history of symptoms. On remand, the appellant is free to submit additional evidence and argument, including the arguments raised in his briefs to this Court, in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order), and the Board must consider any such evidence or argument submitted. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Board shall proceed expeditiously, in accordance with 38 U.S.C. §§ 5109B, 7112 (requiring Secretary to provide for "expeditious treatment" of claims remanded by Board or Court). III. CONCLUSION After consideration of the appellant's and the Secretary's briefs, and a review of the record, the Board's October 1, 2009, decision is VACATED and the matter is REMANDED to the Board for further proceedings consistent with this decision. DATED: September 23, 2011 Copies to: Virginia Girard-Brady, Esq. VA General Counsel (027)