Single Judge Application, Competence Determination Before Probability, Kahana v. Shinseki, 34 Vet.App. 428, 435 (2011)

Excerpt from decision below: "The Board stated that the lay statements, "made many years after service, are outweighed by the more contemporaneous service treatment records showing no signs of a right shoulder condition, normal clinical evaluations of the upper extremities, and the Veteran's denial of having any shoulder problems." R. at 10. However, the Board did not make any specific findings as to the competence or credibility of the lay statements, which is required before determining which evidence is most probative. Kahana v. Shinseki, 34 Vet.App. 428, 435 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (stating that lay persons are generally competent to provide evidence on observable symptoms); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006)(noting that "the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). ========================================= Skip navigation U.S. Court of Appeals for Veterans Claims View | Download | Details Previous document | Next document . 10-3169 ClaytonL_10-3169.pdf Search Terms: KAHANA Author: lzobrist CreationDate: 01/12/2012 09:59:29 Creator: PScript5.dll Version 5.2.2 ModDate: 01/17/2012 15:07:13 Producer: Acrobat Distiller 9.4.6 (Windows) Title: C:\Users\lzobrist\Desktop\Yohan\Clayton 10-3169 MemDec Remand.wpd X_XMPTK: Adobe XMP Core 4.2.1-c043 52.372728, 2009/01/18-15:08:04 X_XMPMETA_XMP_CREATORTOOL: PScript5.dll Version 5.2.2 X_XMPMETA_XMP_MODIFYDATE: 01/17/2012 15:07:13 X_XMPMETA_XMP_CREATEDATE: 01/12/2012 09:59:29 X_XMPMETA_XMP_METADATADATE: 01/17/2012 15:07:13 X_XMPMETA_DC_FORMAT: application/pdf X_XMPMETA_DC_TITLE: C:\Users\lzobrist\Desktop\Yohan\Clayton 10-3169 MemDec Remand.wpd X_XMPMETA_DC_CREATOR: lzobrist X_XMPMETA_PDF_PRODUCER: Acrobat Distiller 9.4.6 (Windows) X_XMPMETA_XMPMM_DOCUMENTID: uuid:c966eb6b-4d6e-4bdd-82d1-a5a11e131c95 X_XMPMETA_XMPMM_INSTANCEID: uuid:cdaacb3b-b9ab-43af-b88d-195bd8ffeb46 ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 10-3169 LLOYD CLAYTON, 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, Lloyd Clayton, through counsel, appeals an August 27, 2010, Board of Veterans' Appeals (Board) decision that denied his claim for entitlement to service connection for a right shoulder condition. Record (R.) at 3-11. The appellant does not present any argument concerning the denial of his request for a total disability rating based on individual unemployability. Accordingly, that request is deemed abandoned. See Ford v. Gober, 10 Vet.App. 531, 535 (1997). 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 August 27, 2010, decision and remand the matter for further proceedings consistent with this decision. I. FACTS The appellant served in the U.S. Army from July 1959 to July 1961, with prior service in the U.S. Army Reserves. R. at 472, 1101-20. His service medical records (SMRs) do not reflect a shoulder injury, and in his separation examination he denied ever having a " painful or 'trick' shoulder." R. at 1089 (capitalization omitted); see generally 1088-1149 ( in-service medical examinations). However, at medical appointments in February 1997 and July 1998 the appellant sought treatment for a painful right shoulder and told the treating physicians that he injured his right shoulder while in the military. R. at 103, 124. In October 1999, the appellant filed a claim for entitlement to service connection for a right shoulder condition. R. at 1068-71. In personal statements to VA, provided during the development of his claim, the appellant stated that he hurt his shoulder in the service while playing football; that the shoulder has continued to bother him since the initial injury such that he has lost jobs due to limitations of movement resulting from his injury; and that he did not previously submit a claim because he did not know that he was eligible to receive benefits for this type of injury. See, e.g., R. at 22, 534-58, 569-72, 677-84. The appellant also submitted statements from his wife and brother supporting his assertion that he had trouble with his right shoulder dating back to service. R. at 702- 03. After further development, which did not include a VA medical opinion, the Board ultimately denied the appellant's claim for service connection for a right shoulder disability. This appeal followed. II. ANALYSIS The appellant argues that the Board's reasons or bases are flawed because the Board failed to conduct a proper competency and credibility analysis of the appellant's lay statements and those submitted by his family members and that, absent a determination that the lay statements of record were not credible or not competent, there is evidence of record that his right shoulder disability may be related to service such that the low threshold of McLendon is met and a medical nexus opinion is required. Appellant's Brief (Br.) at 3-4; see 38 U.S.C. § 5013A(d)(2); McLendon v. Nicholson, 20 Vet.App. 79, 81-86 (2006); 38 C.F.R. § 3.159(c)(4) (2011). The Court agrees. The Board is required to include in its decision a written statement of the reasons or bases for its findings and conclusions on all material issues of fact and law presented on the record; that statement must be adequate to enable an appellant to understand the precise basis for the Board's decision, as well as to facilitate informed review in this Court. 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). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 2 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Gabrielson v. Brown, 7 Vet.App. 36, 39-40 (1994); Gilbert, supra. The Board stated that the lay statements, "made many years after service, are outweighed by the more contemporaneous service treatment records showing no signs of a right shoulder condition, normal clinical evaluations of the upper extremities, and the Veteran's denial of having any shoulder problems." R. at 10. However, the Board did not make any specific findings as to the competence or credibility of the lay statements, which is required before determining which evidence is most probative. Previous DocumentKahanaNext Document v. Shinseki, 34 Vet.App. 428, 435 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (stating that lay persons are generally competent to provide evidence on observable symptoms); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (noting that "the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). The Board has not provided any indication that it finds the lay testimony of record to be incompetent. Furthermore, in finding against the establishment of a continuity of symptomatology, the Board stated that it found the appellant's February 1997 and July 1998 statements to treatment providers, which the Board agrees contained assertions ofanin-service injury,particularlyprobative because they were "provided during medical treatment," which suggests that the Board found the lay statements credible. R. at 10. This cursory discussion of the lay statements does not facilitate this Court's review. It is not clear from the analysis provided why, absent an explicit finding that the lay statements are not credible, the statements asserting a history of injury dating back to service are "of great probative value," but do not meet the low McLendon threshold indicating that a medical nexus examination is warranted. R. at 10; see McLendon, 20 Vet.App. at 83. Therefore, remand is required for an adequate reasons or bases discussion that includes a full analysis of the competence and credibility of the lay testimony of record. On remand, the Board must explicitly discuss the competence and credibility of the appellant's lay statements and those provided by his family members. The Board should consider the appellant's testimony that he did seek treatment in-service for his football injury. See, e.g., R. at 668. The Board should also discuss whether the appellant's 1998 statement that he had shoulder pain for the previous year related to work might be consistent with an in- service injury that only manifests under strenuous use, particularly in light of the appellant's testimony that he frequently 3 quit or was let go from manual labor employment that required the use of his shoulder, but did not have pain with other tasks that did not involve his shoulder. See, e.g., R. at 534-557, 688-89. Finally, the Board should address the statements bythe appellant's family including both their ability to observe symptomatology and the extent that they are reporting past statements by the veteran that would rebut an inference that his history of complaints is a recent fabrication. See FED. R. EVID. 801(d)(1) (prior consistent statements of declarant may be admitted to rebut inference of fabrication). If the Board determines that the appellant's lay statements are competent and credible, a medical nexus opinion is required to determine whether the appellant's current shoulder disability is related to his in-service football injury. As mentioned above, the McLendon standard provides a low threshold for determining whether there is an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service. McLendon, 20 Vet.App. at 83. This threshold encompasses a report of continuity of symptomatology that by itself is not strong enough to meet the requirements of 38 C.F.R. § 3.303( b), such as the reports provided by the appellant and his family, but nonetheless provides some indication of a link between the current disability and the in-service event. 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 August 27, 2010, decision is VACATED and the matter is REMANDED to the Board for further proceedings consistent with this decision. DATED: January 12, 2012 4 Copies to: Michael R. Viterna, Esq. VA General Counsel (027) 5