Single Judge Application, Medical Evidence Conflicts with Lay Testimony, Kahana v. Shinseki, 24 Vet.App. 428, 434-45 (2011)

Excerpt from decision below: "Here, the Board concluded that 38 C.F.R. §§ 4.40 and 4.45 were not for application to the appellant's back condition, but did not discuss why the appellant's lay observations were not persuasive evidence. R. at 11. Likewise, the Board dismissed the appellant's reports of left knee instability without explanation. R. at 15. Moreover, the Board failed to explain how the VA medical opinions contradicted the appellant's lay testimony, when all three agreed that the appellant could experience further limited function due to additional pain with repetitive use. R. at 98, 392, 513; 3 can be interpreted as conflicting with lay testimony). This lack of analysis resulted in an inadequate statement of reasons or bases, for which remand is the appropriate remedy. See Tucker v. West, 11 Vet.App. 369, 374 (1998)." ================================================ ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 10-2633 ELISHA THOMAS, JR., 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, Elisha Thomas, Jr., through counsel, appeals a June 24, 2010, Board of Veterans' Appeals (Board) decision that denied his claims for entitlement to an increased rating for lumbar strain and degenerative joint disease of the left knee, both evaluated as 10% disabling. Record (R.) at 3-18. Initially, the Court notes that it lacks jurisdiction over the appellant's entitlement to total disability based on individual unemployability (TDIU) because that issue was remanded and it will not be addressed further. See 38 U.S.C. §§ 7252(a), 7266(a); Howard v. Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000). 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 June 24, 2010, decision and remand the matter for further proceedings consistent with this decision. I. FACTS The appellant served in the U.S. Army from October 1979 to October 1982. R. at 742. In August 1983, the appellant filed a claim for entitlement to service connection for residuals of injuries to his lower back and left leg received during an Army bus accident while he was on active duty. R. at 684-85, 688-91. The appellant has received a number of private and VA examinations in the course of claim development. R. at 6-7, 12-13. While the three VA examinations addressed the appellant's objectively measurable range of motion as demonstrated during the examinations, all three noted that it is not possible to determine "with any degree of medical certainty" to what extent pain from repetitive use could further limit function. R. at 98, 392, 513. However, the VA examiners all agreed that pain could further limit function to a lesser range of motion than that which was objectively measurable. Id. In June 2010, the Board concluded that the VA examinations were more probative with respect to the appellant's back condition because they included analysis of x-rays and an MRI that were not considered in the private opinions. R. at 10-11. The Board determined that the VA examinationswere alsomore probativewithrespect totheappellant'skneeconditionbecause,unlike the private examiners, they described the specific tests done to evaluate the stability of the appellant's left knee. R. at 15. Based on the VA examinations, the Board denied the appellant's request for an increased rating greater than 10% for both conditions. R. at 3-18. This appeal followed. II. ANALYSIS The appellant argues that the Board provided inadequate reasons or bases because, inter alia, it did not provide an adequate analysis of the appellant's lay statements regarding the pain caused by his back condition and the instability of his left knee and the effect of those symptoms on his functionality. Appellant's Brief (Br.) at 8, 10. The Secretary counters that 10% ratings are appropriate because there is no "persuasive evidence of additional functional loss due to pain, weakness, fatigue, or incoordination" with respect to the appellant's back condition, Secretary's Br. at 12, and that the VA examinations of the appellant's left knee were more probative than private examinations and the appellant's testimony, id. at 13. Although pain may not be capable of definitive objective measurement by a clinician, laypersons are competent to testify to pain and other observable symptoms, such as joint stability. Falzone v. Brown, 8 Vet.App. 398, 405 (1995); see also Washington v. Nicholson, 19 Vet.App. 362, 268 (2005) (veteran is competent to provide lay evidence regarding matters that are within his personal knowledge and experience); Charles v. Principi, 16 Vet.App. 370, 374 (2002) (layperson 2 competent to testify concerning symptoms capable of observation). The appellant's statements concerning his functional limitations as a result of pain in his back and instability in his left knee from repetitive use are captured in the VA examinations and his oral testimony before the Board. R. at 25-34, 96-98, 391-92, 512-13. The Board acknowledged the appellant's lay statements regarding back pain and knee instability, but it concluded that the medical opinions more accurately described the appellant's conditions. R. at 11, 14-15. However, the Board failed to conduct any meaningful analysis regarding the competency and credibility of the appellant's lay testimony, instead providing bare conclusions that there was no "persuasive evidence" that the appellant has functional loss, beyond that contemplated by the 10% rating, due to his back pain, R. at 11, and that "the VA examination reports are more probative than the Veteran's testimony" regarding the instability of his knee, R. at 15. It is well established that lay persons are generally competent to provide evidence on observable symptoms, Jandreau v. Nicholson, 492 F.3d 1372,1377 (Fed. Cir. 2007), and "the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence." Buchananv.Nicholson,451F.3d1331,1337( Fed.Cir.2006). It is the Board's role as factfinder to weigh the evidence and make determinations on competence. Washington v. Nicholson, 19 Vet.App. 362, 267-68 (2005) (the Board has the duty to determine the credibility and probative weight of the evidence). When the Board determines probative weight without discussing the competence and credibility of favorable lay testimony in the record, it does not enable an appellant to understand the precise basis for the Board's decision and frustrates judicial review. 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). Here, the Board concluded that 38 C.F.R. §§ 4.40 and 4.45 were not for application to the appellant's back condition, but did not discuss why the appellant's lay observations were not persuasive evidence. R. at 11. Likewise, the Board dismissed the appellant's reports of left knee instability without explanation. R. at 15. Moreover, the Board failed to explain how the VA medical opinions contradicted the appellant's lay testimony, when all three agreed that the appellant could experience further limited function due to additional pain with repetitive use. R. at 98, 392, 513; cf. KahanaNext Document v. Shinseki, 24 Vet.App. 428, 434-45 (2011) (discussing when medical evidence 3 can be interpreted as conflicting with lay testimony). This lack of analysis resulted in an inadequate statement of reasons or bases, for which remand is the appropriate remedy. See Tucker v. West, 11 Vet.App. 369, 374 (1998). The appellant also argues that the Board misapplied DeLuca v, Brown, 8 Vet. App. 202, 206 (1995), and 38 C.F.R. §§ 4.40, 4.45, and 4.59 regarding the rating of pain. As this matter is already being remanded, the Board can, on remand, address the implications of this Court's recent decision in Mitchell v. Shinseki, 25 Vet.App. 32 (2011). Accordingly, the Court will vacate the June 24, 2010, Board decision. 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 June 24, 2010, decision is VACATED and the matter is REMANDED to the Board for further proceedings consistent with this decision. DATED: December 6, 2011 Copies to: Debra S. Tedeschi, Esq. VA General Counsel (027) 4