Single Judge Application McNair v. Shinseki, 25 Vet.App. 98, 105 (2011); 38 U.S.C. § 7104(d)(1)

Excerpt from decision below: "The Board has a "duty to make credibility determinations and otherwise weigh all of the evidence submitted, including lay evidence, and to adequately explain the reasons or bases for its assignment of weight and ultimate determinations." McNair v. Shinseki, 25 Vet.App. 98, 105 (2011); see also 38 U.S.C. § 7104(d)(1)." =========================== ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 11-0807 WILLIAM C. MANN, 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: William C. Mann appeals through counsel a January 4, 2011, Board of Veterans' Appeals (Board) decision that denied entitlement to VA benefits for an acquired psychiatric disorder. Mr. Mann's Notice of Appeal was timely and the Court has jurisdiction to review the Board decision pursuant to 38 U.S.C. § 7252(a). Neither party requested oral argument, nor have the parties identified issues that they believe require a precedential decision of the Court. Because the Board clearly erred in concluding that VA satisfied its duty to assist and failed to provide an adequate statement of reasons or bases regarding the credibility of certain lay statements Mr. Mann offered in support of his claim, the Court will vacate the January2011 Board decision and remand the matter for further development and readjudication consistent with this decision. I. FACTS Mr. Mann served on active duty in the U.S. Navy from July 1971 to May 1972. At his entrance examination in July 1971, no psychiatric abnormalities were noted and Mr. Mann denied a history of "[n]ervous trouble of any sort." Record (R.) at 366. In an April 1972 letter, a Naval medical officer informed Mr. Mann's commanding officer that Mr. Mann had " been evaluated by psychiatry and found to have a personality disorder." R. at 128. The letter further stated that, after a short trial period following this diagnosis, Mr. Mann had not shown improvement and was "an ideal candidate for an administrative discharge." R. at 128. Accordingly, the following month Mr. Mann was discharged as unsuitable for enlistment due to a character and behavior disorder. At his separation examination in May 1972, no psychiatric problems were noted and Mr. Mann again denied "nervous trouble of any sort." R. at 369. Post-service private medical records reflect that Mr. Mann sought treatment for and was diagnosed with panic attacks and anxiety in April 1996, May 1998, and September 1998. At a February 1999 VA psychiatric outpatient evaluation, Mr. Mann reported that he experienced panic attacks since age 18 and a VA progress note from August 1999 reflects continued complaints of anxiety and panic attacks. In February2000, Mr. Mann filed a claim for VA benefits for a nervous disorder. This claim was denied by a VA regional office in a March 2001 rating decision from which Mr. Mann filed a Notice of Disagreement and appealed to the Board. In his Substantive Appeal, Mr. Mann stated that he had medical appointments and treatment for his condition at the Naval Hospital in Jacksonville, Florida, between September 1971 and December 1971 and requested that VA obtain these records. In April 2005, the Board remanded Mr. Mann's claim for further development. Specifically, the Board noted that only inpatient mental health records from the Jacksonville Naval Hospital had been requested, but that Mr. Mann appeared to "describ[e] out[]patient mental hygiene records" that had to be specifically requested from the National Personnel Records Center. R. at 243. Accordingly, the Board ordered the appeals management center to "request [ that] the National Personnel Records Center . . . conduct a search for the period of October 1971 to February 1972 for records of [Mr. Mann's] mental hygiene treatment at the Naval Hospital, Jacksonville, Florida." R. at 244. The record of proceedings indicates that, later that month, the appeals management center requested inpatient clinical records pertaining to mental hygiene treatment Mr. Mann received at the Jacksonville Naval Hospital between October 1, 1972, and February 28, 1972. The response received was that "searches of []Naval Hosp[ital]–Jacksonville, Fl[orida ][] for []1972[] were conducted, but no records were located." R. at 223 (emphasis added). 2 In May 2007 and July 2008, Mr. Mann submitted statements in support of his claim, continuing to assert that he experienced panic attacks while in service and received treatment for these episodes at the Jacksonville Naval Hospital. He also stated that this condition led to his discharge from the U.S. Navy and that he continued to have panic attacks after service. In his July 2008 statement, Mr. Mann specifically stated that he received treatment at the Jacksonville Naval Hospital "between Sept[ember] 1[,] 1971[,] through Dec[ember] 31[,] 1971." R. at 188. In July 2009, the Board issued another decision, again remanding Mr. Mann's claim to the appeals management center for further development. The Board found that, [a]lthoughtherecordsassociatedwith[Mr. Mann's] in- servicepsychiatricevaluation no longer exist, it is clear that he did undergo psychiatric evaluation in service. In addition, [Mr. Mann] has provided both competent and credible testimony regarding the incurrence of panic attacks and nervousness during service, and as to the continuation of such symptoms after his separation from service. . . . Because [Mr. Mann] is not competent to relate his in-service symptoms to his currently diagnosed psychiatric disorder, and any such relationship remains unclear to the Board, the Board finds that a VA examination is necessary in order to fairly decide [ his] claim. R. at 166-67 (internal citation omitted). Accordingly, the Board ordered the appeals management center to obtain a VA psychiatric examination and directed that [t]he examiner should specificallyoffer an opinion as to whether it is at least as likely as not . . . that any psychiatric disorder demonstrated during the pendency of the appeal, to include, but not limited to[,] anxiety, depression, and schizophrenia, is related to [Mr. Mann's] military service, or developed within one year of his discharge from service in May 1972. R. at 167. The Board further directed that, "[i]n doing so, the examiner must acknowledge and discuss any lay evidence of continuity of symptomatology." R. at 167. Subsequently, Mr. Mann was afforded a VA psychiatric examination in September 2009. The examiner diagnosed Mr. Mann with a panic disorder and opined that it was at least as likely as not related to his service. The examiner noted that this opinion was based on the reported history of Mr. Mann's panic disorder and symptoms, but that he had not yet reviewed the claims file. In November 2009, after reviewing the claims file, the examiner added an addendum, stating that Mr. Mann had been diagnosed with a personalitydisorder in serviceand opining that the diagnosed panic disorder was "less likely as not caused by or the result of his active military duty." R. at 115. 3 In December 2009, Mr. Mann submitted another statement in support of his claim, stating that, although he was diagnosed with a personality disorder in service, his symptoms had always been the same and he believedthat his in-service difficulties were related to a panic disorder that was misdiagnosed at the time. In a March 2010 decision, the Board found the September 2009 VA psychiatric examination report with November2009 addendum inadequate because, "inrenderinghis addendum opinion, the examiner did not discuss [Mr. Mann's] lay statements of in-service treatment for panic attacks and continuity of panic attacks since service." R. at 63. The Board found that it remained "unclear . . . whether [Mr. Mann's] panic and anxiety are related to his active service, including whether they are related to his in-service diagnosis of a personality disorder." R. at 64. The Board therefore remanded the claim so that a new medical opinion could be obtained and again directed that the examiner "acknowledge and discuss anylayevidence of continuityof symptomatology, such as [Mr. Mann's] contentions that his current symptomatology is the same as that shown in service." R. at 64. In June 2010, a new VA psychiatric examination was conducted. The examiner noted that, in February1999, Mr. Mann reported panic attacks since the age of 18. During the examination, Mr. Mann reported that he began to experience panic attacks in "A school" during his training as an airman apprentice and that he was then experiencing them daily. R. at 50. The examiner diagnosed Mr. Mann with a not otherwise specified anxiety disorder. He then opined that Mr. Mann's panic disorder was "less likely as not . . . caused by or a result of [his] military service." R. at 53. In support of this opinion, the examiner stated that Mr. Mann's "service medical records do not support his claim of having experienced panic attacks in the military" in that "[h] is discharge [r]eport of [m]edical [h]istoryform indicated [he] denied all psychiatricsymptoms," and "[t]here are no records to support ongoing treatment for psychiatric symptoms since his discharge." R. at 53. In January2011, the Board issued the decision now on appeal. The Board concluded that the VA satisfied its duty to assist Mr. Mann because "all relevant, identified, and available evidence ha[d] been obtained, and VA ha[d] notified [him] of any evidence that could not be obtained." R. at 6. The Board then concluded that the most probative evidence of record regarding whether Mr. Mann's currently diagnosed anxiety disorder with panic attacks was related to his service was the 4 November2009 and June 2010VAexaminers'unfavorableopinions. TheBoard stated that "it [was] apparent that the physicians from the latter VA examinations did not find [ Mr. Mann's] claim of panic attacks in service to be credible and neither does the Board." R. at 9. In particular, the Board concluded that "[i]t does not seem likely that [Mr. Mann] would have panic attacks in service but deny nervous trouble of any sort in the [r]eport of [m]edical [h]istory and have a normal psychiatric evaluation at the service separation examination." R. at 9. The Board therefore denied Mr. Mann's claim. II. ANALYSIS A. Duty to Assist Although the issue was not expressly raised by Mr. Mann, the Court sua sponte concludes that the Board clearly erred in concluding that VA satisfied its duty to assist in this case. As noted above, on two occasions Mr. Mann informed VA that he received outpatient treatment for his panic attacks and/or anxiety at the Jacksonville Naval Hospital between September 1971 and December 1971. The Board, in its April 2005 decision, recognized that no search had been conducted for outpatientrecordsfromthatfacility, andthereforedirectedtheappealsmanagementcenterto attempt to obtain these records from the National Personnel Records Center, though the Board mistakenly characterized the relevant period as October 1971 to February 1972. Despite this remand order and Mr. Mann's statements regarding the relevant time frame, the record of proceedings indicates that VA never conducted a search for outpatient records from the Jacksonville Naval Hospital dated between September 1971 and December 1971. Instead, it appears that the appeals management center, due to what was likely a typographical error, requested mental hygiene records from that facility from October 1972 to February 1972. The response from the National Personnel Records Center indicates that it conducted a search for all relevant records from 1972, likely because it was confused by the dates provided by the appeals management center. In any event, it is evident that no search for these records has ever been conducted for the time period Mr. Mann said was relevant, October 1971 through December 1971. Because VA's duty to assist requires it to make reasonable efforts to obtain all records held by a governmental entity that are relevant to the claim, pertain to the claimant's military service, and 5 areadequatelyidentified bythe claimant, 38U.S.C. §5103A(c)(1),andbecause the record presented to the Court in this appeal indicates that VA erred in its attempt to obtain the relevant outpatient treatment records for the period of time provided by Mr. Mann, the Court concludes that the Board clearlyerred in finding that VA satisfied its dutyto assist. See Nolen v. Gober, 14 Vet.App. 183, 184 (2000) (holding that the Court reviews the Board's determination that VA satisfied its duty to assist under the "clearly erroneous" standard of review). Accordingly, the Court will vacate the Board's decision and remand this matter for further development and readjudication. On remand, the Board must ensure that VA attempts to obtain records of any outpatient mental hygiene treatment Mr. Mann received at the Jacksonville Naval Hospital between September 1, 1971, and February 28, 1972.1 The Board must ensure that VA makes as many requests as necessary to obtain these records and that it only discontinues its efforts when it concludes that continued efforts would be futile. See 38 C.F.R. § 3.159(c)(2) (2012). If this occurs, VA must advise Mr. Mann of its conclusion that the records do not exist or are not in the possession of the National Personnel Records Center and must provide him with the notice outlined in 38 U.S.C. § 5103A(b)(2), which contains unique provisions mandated by Congress. Additionally, on remand, Mr. Mann is free to submit additional evidence and argument in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). See Kay v. Principi, 16 Vet.App. 529, 534 (2002). "A remand is meant to entail a critical examination of the justification for the decision" by the Board. Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991). The Board shall proceed expeditiously, in accordance with 38 U.S.C. § 7112 (expedited treatment of remanded claims). B. Other Arguments Presented by Mr. Mann Although the Court has already determined that remand is necessary, the Court will address Mr. Mann's remaining arguments. See Quirin v. Shinseki, 22 Vet.App. 390, 396 (2009) (holding It is unclear to the Court why, in its April 2005 remand order, the Board directed the appeals management center to attempt to obtain outpatient records dated throughFebruary 28, 1972, given that Mr. Mann's statements (at least those contained in the record of proceedings) identified the relevant dates as September 1971 through December 1971. However, the Board presumably had reason to order the appeals management center to include in its records request January and February 1972, so, on remand, the Board should ensure that the records search include those months. 1 6 that, to provide guidance to the Board, the Court may address an appellant's other arguments after determining that remand is warranted). First, Mr. Mann argues that the Board failed to ensure compliance with its own March 2010 remand instructions, in violation of this Court's decision in Stegall v. West, 11 Vet.App. 268, 271 (1998). Specifically, he notes that the Board ordered that a new VA psychiatric examination be conducted and directed the examiner to "acknowledge and discuss any lay evidence of a continuity of symptomatology, such as [Mr. Mann's] contentions that his current symptomatology is the same as that shown in service." R. at 64. Mr. Mann contends that the VA examiner who conducted the subsequent June 2010 psychiatric examination "at no point . . . consider[ ed] the lay evidence of record." Appellant's Brief (Br.) at 10. He also appears to contend that the examiner was required to accept his laystatements regardingthe onset of his symptoms and their continuitysince separation from service because the Board found those statements to be competent and credible in its July 2009 decision. Although the June 2010 examiner did not expressly discuss each of Mr. Mann's lay statementsthenofrecordthatpertainedto symptoms ofanxietyandpanicattacksthatheexperienced in service and continuously since that time, as outlined above, the examiner noted Mr. Mann's February1999 statement that he experienced panic attacks since the age of 18, and Mr. Mann turned 18 approximately two months after his separation from active duty service. See R. at 71 (listing Mr. Mann's date of birth as June 29, 1954, and the date of his separation from active duty as May 4, 1972). Further, the examiner noted that, during the examination itself, Mr. Mann reported that he began to experience daily panic attacks during his training as an airman apprentice, which is consistent with other lay statements Mr. Mann made prior to the June 2010 examination. Finally, in offering his opinion, the VA examiner discussed these lay statements in the context of other evidence of record, including Mr. Mann's denial of psychiatric problems at his discharge. Accordingly, the Court concludes that the VA examiner substantially complied with the Board's March 2010 directive that he "acknowledge and discuss any lay evidence of a continuity of symptomatology," including Mr. Mann's assertions that his current symptoms are the same as those he experienced in service. R. at 64; see Dyment v. West, 13 Vet.App. 141, 146–47 (1999) (holding 7 that it is substantial compliance with remand orders, not absolute compliance, that is required by Stegall). Further, there is simply nothing in the Board's March 2010 remand instructions that suggests that the examiner was required to accept the veracity of Mr. Mann's lay statements in formulating his opinion. Accordingly, the Court concludes that the Board's reliance on that opinion in the decision now on appeal was not in contravention of this Court's holding in Stegall. Nevertheless, if, on remand, the treatment records from the Jacksonville Naval Hospital are obtained, the Board will be required to provide Mr. Mann with a new VA psychiatric examination that considers these records or explain why a new examination is not required for VA to comply with its duty to assist Mr. Mann. See Duenas v. Principi, 18 Vet.App. 512, 517-18 (2004) (citing Tucker v. West, 11 Vet.App. 369, 374 (1998) and explaining that, when the Board considers whether a medical examination or opinion is necessary under 38 U.S.C. § 5103A(d) and 38 C.F. R. § 3.159(c)(4), it must provide a written statement of the reasons or bases for its conclusion, pursuant to 38 U.S.C. § 7104(d)(1)); Green v. Derwinski, 1 Vet.App. 121, 124 (1991) (describing an adequate medical examination as one that is "thorough and contemporaneous" and considers prior medical examinations and treatment). The Court does, however, find merit in Mr. Mann's second argument, which is that the Board failed to adequately explain why it found his lay statements regarding the in-service onset and continuity of his panic attacks and anxiety to be "both competent and credible" in its July 2009 decision, R. at 167, but not credible in the decision now on appeal. R. at 9. The only explanation provided by the Board for this reversal is that "[i]t does not seem likely that [Mr. Mann] would have panic attacks in service but denynervous trouble of anysort in the [r] eport of [m]edical [h]istoryand have a normal psychiatric evaluation at the service separation examination ." R. at 9-10. However, Mr.Mann's separationexaminationreport, whichincludedclinicallynormalpsychiatricfindings and Mr. Mann's denial of problems with nerves, was of record in July 2009 when the Board found Mr. Mann's lay statements to be credible. Further, although the Board, in the decision now on appeal, also noted that the examiner did not appear to find Mr. Mann's lay statements regarding the in- service onset and continuity of his symptoms to be credible, the examiner's opinion was likewise based on the separation examination report and the absence of "records to support ongoingtreatment 8 for psychiatric symptoms since [Mr. Mann's] discharge." R. at 53. In other words, it was also based on evidence that was already part of or missing from the record in July 2009, when the Board found Mr. Mann's statements credible. The Board has a "duty to make credibility determinations and otherwise weigh all of the evidence submitted, including lay evidence, and to adequately explain the reasons or bases for its assignment of weight and ultimate determinations." McNair v. Shinseki, 25 Vet.App. 98, 105 (2011); see also 38 U.S.C. § 7104(d)(1). The explanation must be adequate to enable the claimant to understand the precise basis for the Board's decision and to facilitate review in this Court. See Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). If the Board's explanation does not meet this standard, the Court must vacate the Board's decision and remand for the Board to provide an adequate statement of reasons or bases. Id. The Court concludes that the Board did not adequately explain its reasons or bases for determining that Mr. Mann's laystatements pertainingto the in-service onset of his panic attacks and nervousness and the continuity of these symptoms lacked credibility given that the Board did not (1) acknowledge that, in July 2009, it expressly found those same statements to be both competent and credible or (2) explain what evidence added to the record since that time altered its impression of the credibility of those statements. This deficiency hinders judicial review, requiring the Court to vacate the Board decision. See id. On remand, the Board must reassess the credibility of Mr. Mann's lay statements and, if it finds them to lack credibility, explain what evidence added to the record since the July 2009 Board decision undercut the credibility of these statements. III. CONCLUSION Upon consideration of the foregoing, the January4, 2011, Board decision is VACATED and the matter is REMANDED for furtherdevelopment and readjudciation consistent with this decision. DATED: July 27, 2012 Copies to: Robert V. Chisholm, Esq. VA General Counsel (027) 9