Friday, February 24, 2012

Single Judge Application, Credibility of Veteran, Barr v.Nicholson, 21 Vet.App. 303, 307(2007)( citing Savage v. Gober, 10 Vet.App. 488, 495-96 (1997))

Excerpt from decision below: "The Board listed three reasons whyit found Mr. Bohannon's statements not credible: (1) The earliest post servicemedical record documentingback pain was not created until 2001, over 20 years after his discharge from active duty; (2) he made inconsistent statements as to the date of the onset of his back pain; and (3) medical notations following the vehicle accident refer only to chest pain and not back pain. R. at 13. "For all these reasons, the Board [found] that the Veteran's statements of continuity related to the spine [were] not believable." Id. The Board relied partially on the absence of post service medical records documenting back pain in concluding that Mr. Bohannon was not a credible witness as to his own pain. It did so by asserting that the earliest medicalrecord documentingbackpain was not created until approximately 20 years after service. The absence of medical records in this case is not necessarily indicative of absence of pain, however. Mr. Bohannon stated that he could not afford medical care. R. at 985. Indeed, he was at various times traveling for employment, unemployed, and even homeless. R. at 985, 1060, 1123. The Board did not acknowledge these factors in its statement of reasons or bases even though they are clearly relevant to the absence of medical evidence. The Board's reliance on the absence of medical reports to contradict complaints of pain lacks full development. The Board next noted that Mr. Bohannon made inconsistent statements regarding the onset of his back pain. The Board cited three specific inconsistent statements: (1) Mr. Bohannon reported that his herniated disc did not surface until 10 years after the in-service incident; (2) he stated that he had experienced chronic back pain ever since the in-service incident; and (3) he reported experiencing pain in his lower back ever since he left active duty. R. at 13. On careful review, however, these statements are not inconsistent. The first statement appeared in a 1993 statement in support of claim (SSOC) submitted by Mr. Bohannon. R. at 1189. In it, Mr. Bohannon stated that he believed the vehicle accident in April 1977 caused him to have a herniated disc that did not surface until 10 years later. Id. The Secretary characterized the statement as a declaration that Mr.Bohannon did not experience pain until 10 years after the incident. Such an interpretation is untenable. Mr. Bohannon did not use the word "pain" nor did he refer to pain in the SSOC. It is clear to the Court that Mr. Bohannon was asserting that he did not know about the herniated disc until 10 years after service, which is consistent with his 3 statement that he could not afford medical care during that time. It did not state that he was not experiencing back pain during those 10 years. The next two allegedly inconsistent statements appeared in VA medical reports, one in May 2003, and anotherin October 2009. The May2003 medical report recounted that Mr. Bohannon was involved in the vehicle accident in 1978 and had had chronic back pain since that time. R. at 984. The October 2009 statement stated that Mr. Bohannon "began having pain in his lumbar spine in April of 1978 while he was on maneuvers." R. at 118. While there is a difference in the date reported in these medical reports and Mr. Bohannon's SSOC (April 1977), the Court is unconvinced that these statements are materially inconsistent such that Mr. Bohannon is not a reliable witness. Given that Mr. Bohannon was providing this information over 30 years after the actual incident, the variation in dates is relatively insignificant, especially as both dates would place the onset of pain to when Mr. Bohannon was still on active duty. Finally, the Board noted that the SMRs do not reference back pain associated with the vehicle accident. The Board asserted that the onlynoted back pain was prior to the vehicle accident, and was reported in conjunction with a possible relapse of viral tuberculosis. R. at 10-12. The Board failed to explain, however, why the injury suffered by Mr. Bohannon in the vehicle accident is of the type requiring medical attention immediately for back pain, rather than producing pain over time. Even collectively, all the reasons provided bythe Board are hardly a compelling basis for the rejection of Mr. Bohannon's entire testimony. As it is the Board's duty to weigh the evidence, and in the case evidence is rejected based on lack of credibility, it is incumbent on the Board to provide a valid rationale for its determination. The Court concludes that the Board provided inadequate reasons or bases for its finding that Mr. Bohannon's statements are not credible." ====================== ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 10-4246 JAMES BOHANNON, APPELLANT, v. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before DAVIS, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. DAVIS, Judge: U.S. Marine Corps veteran James Bohannon appeals through counsel from an August 25, 2010, Board of Veterans' Appeals (Board) decision that denied service connection for degenerative disc disease. For the following reasons, the Court will set aside the Board's decision and remand the matter for readjudication consistent with this decision. I. ANALYSIS Mr. Bohannon served on active duty from July 1974 to July 1978. He asserts that he currently suffers from back pain as the result of an in-service vehicle accident in which he landed on the ground after being ejected from the bed of a truck and thrown 50 feet (hereinafter referred to as "the vehicle accident"). He alleges that the Board improperly rejected his statements regarding his ongoing back pain symptoms and relied on an inadequate VA examination in making its decision. A. Lay Statements TheBoardconsideredMr.Bohannon's degenerativediscdiseaseclaim, characterizedbyback pain, under a continuity of symptomatology theory of service connection. Continuity of symptomatologymayestablish service connection if a claimant can demonstrate that (1) a condition was "noted" during service; (2) there is postservice evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability andthepostservicesymptomatology. Barr v.Nicholson,21Vet.App.303,307(2007)( citingSavage v. Gober, 10 Vet.App. 488, 495-96 (1997)). Testimony of continuity of symptomatology can potentially indicate that a disability may be associated with service, but only "if ultimately deemed credible." McLendon v. Nicholson, 20 Vet.App. 79, 84 (2006). The Board conceded that back pain was noted in Mr. Bohannon's service medical record (SMR) while he was on active duty, satisfying the first requirement of service connection based on continuity of symptomatology. Record (R.) at 12. The Board also did not dispute the in-service vehicle accident that Mr. Bohannon claims caused his back Previous DocumentinjuryNext Hit. The Board did find, however, that Mr. Bohannon's statements of continuous back pain were not credible, thereby resulting in its refusal to grant disability benefits. The Court acknowledges that the Board is responsible for weighing and assessing the evidence of record, including the credibility of a claimant's testimony. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (it is the Board's duty "to analyze the credibility and probative value of evidence"). Such factual findings, unless clearly erroneous, are not subject to alteration by the Court. See Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990). However, the Board must provide adequate reasons or bases for all findings and conclusions on material issues of fact and law presented on the record, including a credibility determination. Id. at 56- 57. In making credibility determinations, 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); see Jandreau v. Nicholson, 492 F.3d 1372, 1376 ( Fed. Cir. 2007) ("The Board retains discretion to make credibility determinations and otherwise weigh the evidence submitted[.]"); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006 ); c.f. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (Board mayconsider "evidence of a prolonged period without medical complaint, alongwith other factors" in determining a service- connection claim). The Board may consider the absence of contemporaneous medical evidence when determining the credibility of lay statements, but may not determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence. Buchanan, 451 F.3d at 1331. 2 The Board listed three reasons whyit found Mr. Bohannon's statements not credible: (1) The earliest post servicemedical record documentingback pain was not created until 2001, over 20 years after his discharge from active duty; (2) he made inconsistent statements as to the date of the onset of his back pain; and (3) medical notations following the vehicle accident refer only to chest pain and not back pain. R. at 13. "For all these reasons, the Board [found] that the Veteran's statements of continuity related to the spine [were] not believable." Id. The Board relied partially on the absence of post service medical records documenting back pain in concluding that Mr. Bohannon was not a credible witness as to his own pain. It did so by asserting that the earliest medicalrecord documentingbackpain was not created until approximately 20 years after service. The absence of medical records in this case is not necessarily indicative of absence of pain, however. Mr. Bohannon stated that he could not afford medical care. R. at 985. Indeed, he was at various times traveling for employment, unemployed, and even homeless. R. at 985, 1060, 1123. The Board did not acknowledge these factors in its statement of reasons or bases even though they are clearly relevant to the absence of medical evidence. The Board's reliance on the absence of medical reports to contradict complaints of pain lacks full development. The Board next noted that Mr. Bohannon made inconsistent statements regarding the onset of his back pain. The Board cited three specific inconsistent statements: ( 1) Mr. Bohannon reported that his herniated disc did not surface until 10 years after the in- service incident; (2) he stated that he had experienced chronic back pain ever since the in-service incident; and (3) he reported experiencing pain in his lower back ever since he left active duty. R. at 13. On careful review, however, these statements are not inconsistent. The first statement appeared in a 1993 statement in support of claim (SSOC) submitted by Mr. Bohannon. R. at 1189. In it, Mr. Bohannon stated that he believed the vehicle accident in April 1977 caused him to have a herniated disc that did not surface until 10 years later. Id. The Secretary characterized the statement as a declaration that Mr.Bohannondid not experiencepain until 10 years after the incident. Such an interpretation is untenable. Mr. Bohannon did not use the word "pain" nor did he refer to pain in the SSOC. It is clear to the Court that Mr. Bohannon was asserting that he did not know about the herniated disc until 10 years after service, which is consistent with his 3 statement that he could not afford medical care during that time. It did not state that he was not experiencing back pain during those 10 years. The next two allegedly inconsistent statements appeared in VA medical reports, one in May 2003, and anotherin October 2009. The May2003 medical report recounted that Mr. Bohannon was involved in the vehicle accident in 1978 and had had chronic back pain since that time. R. at 984. The October 2009 statement stated that Mr. Bohannon "began having pain in his lumbar spine in April of 1978 while he was on maneuvers." R. at 118. While there is a difference in the date reported in these medical reports and Mr. Bohannon's SSOC (April 1977), the Court is unconvinced that these statements are materially inconsistent such that Mr. Bohannon is not a reliable witness. Given that Mr. Bohannon was providing this information over 30 years after the actual incident, the variation in dates is relatively insignificant, especially as both dates would place the onset of pain to when Mr. Bohannon was still on active duty. Finally, the Board noted that theSMRs donot referencebackpainassociatedwith thevehicle accident. The Board asserted that the onlynoted back pain was prior to the vehicle accident, and was reported in conjunction with a possible relapse of viral tuberculosis. R. at 10-12. The Board failed to explain, however, why the Previous HitinjuryNext Document suffered by Mr. Bohannon in the vehicle accident is of the type requiring medical attention immediately for back pain, rather than producing pain over time. Even collectively, all the reasons provided bythe Board are hardlya compelling basis for the rejection of Mr. Bohannon's entire testimony. As it is the Board's duty to weigh the evidence, and in the case evidence is rejected based on lack of credibility, it is incumbent on the Board to provide a valid rationale for its determination. The Court concludes that the Board provided inadequate reasons or bases for its finding that Mr. Bohannon's statements are not credible. B. Adequacy of Medical Examination Mr. Bohannon next alleges that the Board erred in finding that VA satisfied its duty to assist because the medical examination VA provided was inadequate. VA conducted a medical examination in October 2009, and the report is the primary evidence relied on by the Board in denying service connection. Mr. Bohannon argues that the October 2009 examination was inadequate because, inter alia, it relied on the absence of medical treatment in concluding that Mr. Bohannon's back pain was not related to the vehicle accident in service. 4 As a part of his duty to assist claimants, the Secretary must provide a medical examination or obtain a medical opinion "when such an examination or opinion is necessary to make a decision on the claim." 38 U.S.C. § 5103A(d)(1). A medical opinion is adequate when it is based on consideration oftheveteran's priormedicalhistoryandexaminationsandalsodescribesthedisability in sufficient detail so that the Board's "'evaluation of the claimed disability will be a fully informed one.'" Ardison v. Brown, 6 Vet.App. 405, 407 (1994) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). In Barr, 21 Vet.App. at 311, this Court noted a VA examiner's failure to consider a veteran's assertions of continued symptomatology in rendering his medical opinion. In Buchanan, 451 F.3d at 1336, the U.S. Court of Appeals for the Federal Circuit ( Federal Circuit) disapproved of an examiner ultimately relying "not on the objective medical evidence, but rather the absence of such in reaching her opinion." The Federal Circuit elaborated in footnote 1: "Indeed, the examiner's opinion appears to have failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim of service connection could be proven without contemporaneous medical evidence." Id. Although the VA medical examiner noted from Mr. Bohannon's medical history that he began having back pain in April 1978, she relied instead on the absence of medical records in rendering her opinion. She stated that there were "no medical records to indicate evidence of lower back pain or a lower back condition until 2001, which is over 20 years later. Therefore, it is apparent that there is no link between the Veteran's service activity and his current lower back disability." R. at120. Althoughtheexaminerwasaware of Mr. Bohannon's reports of continuingsymptomatology, she did not consider it in rendering her opinion and instead relied on the absence of medical treatment instead. Moreover, she offered no medical principle or analysis that Mr. Bohannon's condition would have necessitated medical treatment despite his circumstances. See Nieves- Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008) ("[A] medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two."). However, absent an adequate assessment of Mr. Bohannon's credibility,the Court cannot consider whether he was harmed by the examiner's failure to take into account his lay statements. On remand, the Board must determine whether a new medical examination is necessary. 5 II. CONCLUSION Based on the foregoing, the Board's August 25, 2010, decision is SET ASIDE and the matter REMANDED for readjudication consistent with this decision. On remand, Mr. Bohannon will be free to submit additional evidence and argument in support of his claim, and the Board is required to consider any such evidence and argument. See Kay v. Principi, 16 Vet. App. 529, 534 (2002). A final decision by the Board following the remand herein ordered will constitute a new decision that, if adverse, may be appealed to this Court on the filing of a new Notice of Appeal with the Court not later than 120 days after the date on which notice of the Board's new final decision is mailed to Mr. Bohannon. See Marsh v. West, 11 Vet.App. 468, 472 (1998). DATED: February 14, 2012 Copies to: Virginia A. Girard-Brady, Esq. VA General Counsel (027) 6