Single Judge Application, FED. R. EVID. 803(4), Statements Made to Physicians are Exceptionally Trustworthy

Excerpt from decision below: "The submitted lay statements are also inconsistent with the numerous postservice treatment reports, cited above, for treatment provided both prior to and after the appellant's initial claim for VA benefits, in which the appellant states that his headaches began in August 1980, 12 years after the appellant left active duty service. See FED. R. EVID. 803(4) (noting that statements made to physicians for the purposes of diagnosis and treatment are exceptionally trustworthy and not excluded by the hearsay rule because the declarant has a strong motive to tell the truth in order to receive proper care)." ======================================= ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 10-1242 DANNY R. KEATON, 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 pro se appellant, Danny R. Keaton, appeals a December 29, 2009, Board of Veterans' Appeals (Board) decision that denied his claims for entitlement to service connection for memory loss, headaches, and a depressive disorder (claimed as nerves). Record (R.) at 3-14. 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 December 29, 2009, decision as to the appellant's claim for entitlement to service connection for a depressive disorder and remand that matter for further proceedings consistent with this decision. The decision will otherwise be affirmed. I. FACTS The appellant served in the U.S. Army from April 1966 to April 1968. R. at 589. His service included duty overseas, R. at 606, and he was awarded the National Defense Service Medal. R. at 589. The appellant's entrance examination did not reflect any complaints or diagnoses of memory loss, headaches, or depression. R. at 1068-71. Although they are not available in the record before the Court, the appellant's service medical records (SMRs) apparently do not reflect any treatment for those conditions. Secretary's Brief (Br.) at 2. The appellant's April 1968 separation examination likewise does not indicate symptoms of, or treatment for, memory loss, headaches, or depression, and specifically denies any history of headaches, memory loss, periods of unconsciousness, or nervous disorders. R. at 1087-90. According to the record before the Court, the appellant first sought treatment for his headaches in August 1980, 12 years after service. R. at 70. For over 20 years he consistently reported that these symptoms started in 1980 and that he had no prior history of headaches. R. at 86, 124, 129, 328, 443, 457, 468, 967-80, 1020. In March 1985, the appellant received a VA examinationfornon-service-connectedpensionbenefitpurposes, duringwhichtheappellantclaimed that he was first treated for his nerves while stationed in Korea, but that his headaches did not begin until 1980. R. at 949-50. At that time, he successfully completed tests of memory function. R. at 950. The VA examiner diagnosed a somatization disorder1 with depression and a mixed character disorder with histrionic features. Id. In July 2003, the appellant filed a claim for entitlement to service connection for severe headaches, memory loss, and a nervous condition. R. at 821. The appellant stated that while stationed in Korea he had been treated for "severe headaches" that led to unconsciousness. Id. He also asserted that he had been hospitalized for his nerves immediately after discharge. Id. In March 2004, the appellant received a VA neurological examination, during which he claimed his headaches started in the 1980s, R. at 763-65, and a VA psychological examination, during which he reported that his headaches started in service. R. at 759- 62. The VA neurological examiner determined that his neurological examination was "unremarkable," R. at 764, and diagnosed chronic migraine headaches, a generalized anxiety disorder, and depression. R. at 765. The neurological examiner did not review the claims file or the appellant's medical record, R. at 763, and did not offer an opinion on whether the appellant's conditions were connected to service. The VA psychological examiner focused largely on evaluating the appellant for post-traumatic stress disorder and ultimately diagnosed a depressive disorder, secondary to the appellant's physical "[T]he conversion of mental experiences or states into bodily symptoms." DORLAND'SILLUSTRATEDMEDICAL DICTIONARY 1734 (32d ed. 2012). 1 2 ailments and not connected to service, and chronic pain. R. at 762. Remote memory was determined to be intact and short-term recall fair. R. at 761. The psychological examiner stated that "the veteran does not have any psychiatric diagnoses related to or incurred in active duty service," R. at 762, and attributed the appellant's difficulties to his chronic pain condition. R. at 761. The appellant's claims file was not available to the VA psychological examiner, but the records provided by the appellant were. R. at 759. The regional office (RO) considered the appellant's lay statements, additional lay statements submitted on the appellant's behalf, SMRs, and postservice treatment records, but denied the appellant's claims in August 2004. R. at 755-58. The appellant continued to seek treatment for his conditions and received several additional diagnoses over the course of his treatment for headaches, including tension headaches, R. at 71, 103, 338; a personality disorder, R. at 97, 450, 950; a somatization disorder,2 R. at 97, 331, 333, 439, 444, 969, 972, 974, 976, 980; a dysthymic disorder, R. at 331, 333, 444, 450, 972, 1020; depression, R. at 333, 439, 976, 980; an anxiety disorder, R. at 450; schizophrenia, R. at 460; and migraine headaches, R. at 747, 765. In an additional statement in support of claim, and in his appeal to the Board, the appellant stated that he was hospitalized in a coma-like state while stationed in Korea. R. at 722, 745. At the Board hearing in June 2006, the appellant asserted that his memory loss and headaches were the result of an explosion while in Korea. R. at 683-84. The appellant's sister stated that she had contacted a Mr. Stiffler, who allegedly confirmed that an explosion had taken place, and that Mr. Stiffler had also required hospitalization. R. at 684. Following the hearing, the appellant submitted a July 2006 buddy statement from Edward Stiffler, who stated that he visited the appellant in the hospital in Korea while the appellant was unconscious. R. at 679. Mr. Stiffler said that soon after he was hospitalized unconscious himself with the "same illness." Id. As a result of this additional information, in December 2006, the Board remanded the appellant's claims for further development. R. at 574-77. The RO was instructed to conduct an exhaustive records search for the appellant's alleged in-service hospitalization, obtain additional 2 In 1985 the appellant began receiving Social Security disability benefits retroactive to April of 1982 on the basis of the many separate examinations diagnosing somatization disorder severe enough to prohibit employment. R. at 326. 3 private treatment records, and obtain medical records pertaining to the appellant's award of Social Security disability benefits. R. at 576. In response to the records requests, VA received some additional private treatment records, the appellant's Social Security Administration records, and the appellant's personnel records from the National Personnel Records Center ( NPRC). R. at 51, 65-66. The personnel records did not reflect "any disabilities or injuries during service or that caused [the appellant's] discharge from service." R. at 66. The December 2009 Board decision upheld the denial of the appellant's claims for entitlement to service connection, finding that there was no diagnosis of memory loss and no nexus to service for the appellant's headaches or depression. R. at 3-14. This appeal followed. II. ANALYSIS Establishing service connection generally requires medical evidence 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, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Hickson v. West, 12 Vet.App. 247, 253 (1999); Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303 (2011). Service connection may also be established by showing continuity of symptomatology, which requires a claimant to demonstrate (1) that a condition was "noted" during service; (2) evidence of postservice continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. 38 C.F.R. § 3.303(b); see Barr v. Nicholson, 21 Vet.App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1377 (whether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board). A finding of service connection is a factual determination by the Board that the Court reviews under the "clearly erroneous" standard. See 38 U.S.C. § 7261(a)(4); Rose v. West, 11 Vet.App. 169, 171 (1998). "A factual finding 'is "clearly erroneous" when . . . the reviewing court . . . 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 4 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. Id. A. Memory Loss The Board determined that the appellant does not have a current disability of memory loss. R. at 11. The Board noted that the appellant's SMRs do not reflect a diagnosis of, or treatment for, memory loss and that VA examinations in 1985 and 2004 demonstrated that the appellant does not suffer from memory loss, a condition that can be objectively measured. Id. The Board did consider the appellant's lay statements that he suffers from memory loss, but found them to be outweighed by other evidence in the record. Id. As the Court holds that the Board's decision is not clearly erroneous, the Court will affirm the Board's decision regarding the appellant's claim for entitlement to service connection for memory loss. See Mayfield v. Nicholson, 19 Vet. App. 103, 111 (2005) (noting that "every appellant must carry the general burden of persuasion regarding contentions of error"); Coker v. Nicholson, 19 Vet.App. 439, 442 (2006), rev'd on other grounds sub nom. Coker v. Peake, 310 F. App'x 371 (Fed. Cir. 2008) (stating that an appellant must "plead with some particularity the allegation of error so that the Court is able to review and assess the validity of the appellant's arguments");Hilkertv.West,12Vet.App.145,151(1999)(enbanc)(" Anappellantbears the burden of persuasion on appeals to this Court."). B. Headaches The Board did not dispute that the appellant "currently has chronic headaches. . . ." R. at 11. However,theBoarddeterminedthat there was no evidence that the appellant's headaches manifested during service or that there was any continuity of symptomatology linking the headaches to service. Id. In his informal brief, the appellant asserts that the Board erred by failing to consider medical records from Indian Path Hospital and Mountain Home VA Medical Center ( VAMC) and that, in the absence of medical records confirming his alleged hospitalization in Korea, he is entitled to service connection under the "benefit of the doubt" doctrine. Appellant's Br. at 3. The Secretary correctly notes that the Board did discuss the appellant's August 1980 to January 1981 treatment reports from Mountain Home VAMC, as well as the available records from Indian Path Hospital, covering a hospitalization from July to August 1983. Secretary's Br. at 9-10, citing R. at 7-8. Therefore, the appellant's first argument is without merit as its factual basis is 5 contradicted by the record. See Cromer v. Nicholson, 19 Vet.App. 215, 219 ( 2005) (holding that an argument with an inaccurate factual predicate need not be addressed further). The Secretary also points out that the "benefit of the doubt" doctrine only applies when the evidence is in equipoise. Secretary's Br. at 10. As discussed below, the Board found that the preponderance of the evidence was against the appellant's claim. R. at 14. Therefore, the "benefit of the doubt" rule was not applicable to the appellant's lay statements. See Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). In response to the appellant's assertion that he was hospitalized while on active duty in Korea, VA requested "an exhaustive search for the appellant's alleged treatment at the base hospital at Camp Intercept in Inchon, Korea, in 1967 . . . encompass[ing] all alternate sources of information, including . . . base hospital records and unit diaries." R. at 578 ( capitalization omitted). The military provided the appellant's personnel file, but indicated that the search for hospital records was negative. Id. The Board may not reject the appellant's lay statements that he was hospitalized while in service solely because they are not corroborated by contemporaneous medical records. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not, in and of itself, render lay evidence not credible); see also KahanaNext Document 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, and cases in which there is evidence that is relevant either because it speaks directly to the issue or allows the Board as factfinder to draw a reasonable inference). However, 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 records. Caluza, 7 Vet. App. at 511; see Buchanan, supra; Jandreau, 492 F.3d at 1376 ("[T]he Board retains discretion to make credibility determinations and otherwise weigh the evidence submitted[.]"). Here, the Board did consider the appellant's lay statements, and those submitted by others on his behalf, but, as discussed above, the statements provided conflicting reports of the in-service incident the appellant alleges led to his present condition, including an explosion; a serious illness that affected the appellant before affecting others in his unit; and headaches affecting only the 6 appellant, which resulted in the appellant's loss of consciousness. The submitted lay statements are also inconsistent with the numerous postservice treatment reports, cited above, for treatment provided both prior to and after the appellant's initial claim for VA benefits, in which the appellant states that his headaches began in August 1980, 12 years after the appellant left active duty service. See FED. R. EVID. 803(4) (noting that statements made to physicians for the purposes of diagnosis and treatment are exceptionally trustworthy and not excluded by the hearsay rule because the declarant has a strong motive to tell the truth in order to receive proper care). The Board weighed the available evidence and determined that the appellant's statements during 20 years of receiving medical care for headaches that the headaches began in 1980, and thus did not have a nexus to the appellant's military service, were more credible than the submitted lay statements alleging that the headaches began while the appellant was in service. R. at 13. The Board likewise found that the evidence weighed against a finding that the appellant was hospitalized in Korea. Id. These findings are supported by the record, and thus the Board's weighing of the evidence is not clearly erroneous. Therefore, the Court will affirm the Board's decision regarding the appellant's entitlement to service connection for headaches. C. Depression The Secretary concedes that the claim for entitlement to service connection for a depressive disordershouldberemandedbecausetheBoard'snexusdiscussion lacked adequate reasons or bases. Secretary's Br. at 11. The Board found that the appellant had a current diagnosis of depression, but denied service connection due to a lack of evidence indicating a nexus with service. R. at 11-12. However, the Board relied on a March 2004 VA examiner's report opining that the appellant's depression was not related to service. R. at 12, 762. The Board gave greater weight to this opinion than to the private opinions in the record because the VA report "was based on an independent and thorough review of [the appellant's] entire medical history." R. at 12. However, as noted by the Secretary, the VA report indicates that the examiner did not have access to the appellant's claim's file. R. at 762. Therefore, the Board's statement of reasons or bases is inadequate and the matter should be remanded. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990). 7 III. CONCLUSION After consideration of the appellant's and the Secretary's briefs, and a review of the record, the Board's December 29, 2009, decision is VACATED as to the appellant's claim for entitlement to service connection for a depressive disorder and that matter is REMANDED to the Board for further proceedings consistent with this decision. The Board decision is otherwise AFFIRMED. DATED: November 8, 2011 Copies to: Danny R. Keaton VA General Counsel (027) 8