Friday, August 3, 2012
Single Judge Application Horn v. Shinseki, No. 10-0853, 2012 WL 2355544 (Vet. App. June 21, 2012)
Excerpts from decision below:
"These statements imply that the examiner was relying on the absence of objective evidence of aggravation, which comes close to shifting the burden to the veteran to show an increase in disability during service. See Horn v. Shinseki, No. 10-0853, 2012 WL 2355544, at *6-7 (Vet. App. June 21, 2012) (noting that "there is no requirement of a specific injury or trauma in order for the preexisting condition to have been aggravated . . . . [and that i]t is the lack of aggravation that the Secretary must prove, not lack of an injury"). Under these circumstances, the Court concludes that a remand is permissible for the Board to obtain clarification from the VA examiner. See Adams, supra; see also Horn, 2012 WL 2355544, at *11-12 (interpreting Adams, supra, as distinguishing between those cases where clarification of the medical evidence is required necessitating remand, and those cases where there is an obvious insufficiency of the evidence warranting reversal); Daves v. Nicholson, 21 Vet.App. 46, 51 (2007) (when medical examination report is susceptible to multiple fair but inconsistent meanings, the Board errs by not seeking clarification).
"Second, the January 2003 examiner did not provide any supporting rationale for opining that service" may at times have caused some temporary aggravation of his symptoms[,] but no long-term problems." R. at 850; see Horn, 2012 WL 2355544, at *7 (indicating in the context of evaluating whether the Secretary's proof is sufficient to rebut the presumption of soundness that "there is no reason that the Court should not
10
follow its caselaw that . . . an unexplained conclusory [medical] opinion
is entitled to no weight in a service-connection context (citing Nieves-Rodriguez, 22 Vet.App. at 304)).
"Instead, a plain reading of his report shows that he simply adopted the January 2003 examiner's opinion, which lacks supporting analysis. See R. at 465 (noting that the "[January 2003 examiner] stated that there was
intermittent aggravation of his left foot disorder, but that there was no
permanent damage").
Because the January 2003 and October 2004 opinions are insufficient to meet
the Secretary's burden, the Court will vacate the Board's decision and remand the matter with instructions that the Board seek clarification from the January 2010 medical examiner addressing whether the appellant's preexisting foot condition was aggravated by service. See Adams and Horn, both supra.
============================
----------------------------------------------------
Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 11-1556
BOBBY L. NEAL, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before SCHOELEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
SCHOELEN,Judge: Theproseappellant,BobbyL.Neal, appeals aJanuary12,2011,
Board
of Veterans' Appeals (BVA or Board) decision that denied VA disability
compensation benefits for
a left foot disorder. Record of Proceedings (R.) at 3-37. This appeal is
timely, and the Court has
jurisdiction to review the Board's decision pursuant to 38 U.S.C. §§
7252(a) and 7266(a). Both
parties filed briefs. Single-judge disposition is appropriate. Frankel v.
Derwinski, 1 Vet.App. 23,
25-26 (1990). For the following reasons, the Court will vacate the Board's
decision and remand the
matter for further proceedings consistent with this decision.
I. BACKGROUND
The appellant served on active duty in the U.S. Army from August 1966 to
June 1968. R.
at 1550. At his January 1966 enlistment examination, the appellant denied
any prior "foot trouble"
and a clinical evaluation indicated that his feet were "normal." R. at
1510-11, 1519. During basic
training, the appellant twice sought treatment for "sore ankles." R. at
1502. He was provided ace
bandages and instructed for seven days not to run, march, or stand for
prolonged periods. Id. His
servicemedicalrecords (SMRs) areotherwisesilent for complaints or
treatment related to his ankles
and feet. R. at 1501-38. At separation, the appellant again denied any "
foot trouble" and his feet
were evaluated as "normal." R. at 1506-09, 1512-13.
In January 1994, the appellant filed a claim for disability compensation
for "aggravation to
left foot toes that w[ere] cut prior to service." R. at 1491-94. A June
1994 neurological examination
noted that the appellant "has some localized problems in the left foot,
which has not changed. In
association with this he has occasional discomfort in the left foot and
has a small area where he
doesn't feel things normally." R. at 1456. The examiner stated that the
appellant's "sensory
examination reveal[ed] no deficits proximally or distally with the
exception of a little area mainly
on the sole of the left foot[,] which dates back to his childhood problem."
Id.
In April 1995, the appellant testified that he had trouble with his left
foot during basic
training. R. at 1420. He explained that he had problems running and
related it to an accident that
occurred when he was 14 or 15 years old and his foot slipped under a lawn
mower cutting three of
his toes. Id. The appellant stated that his toes have been stiff since the
accident and have not grown,
and described his foot as deformed. R, at 1421.
In July1999 and April 2000 statements, the appellant requested that the
regional office(RO)
obtain his treatment records from the VA hospital in Jackson, Mississippi,
and adjudicate his claim
for a foot condition. R. at 1226, 1256. In June 2000, the RO issued a
rating decision denying the
appellant's claim. R. at 1220-25. In August 2000, the appellant filed a
Notice of Disagreement in
which he asserted that his claim for a left foot condition dated back to
his "original claim,"
explaining that he had filed a claim for "aggravation to the left foot,
which was an injury before [he]
was drafted in 1966." R. at 1201-02. The appellant also indicated that he
stated that his "foot was
verytender" during his induction examination and that he went on sick call
during basic training and
in Germany. R. at 1202. After the RO issued a Statement of the Case (R. at
1166-77) that continued
to denyhis claim, the appellant submitted a Substantive Appeal in which he
asserted that "[i]t is very
clear that my foot was injured prior to service and that while in service
my foot injury was
aggravated even more, due to stress of combat." R. at 959-60; see also R.
at 1157.
The appellant submitted additional evidence and argument in August 2002,
including a July
2002 VA podiatry clinic note indicating that the appellant presented with "
a rigid deformity of the
second, third, and fourth digits as a result of a severe laceration." R.
at 890. The examining
2
podiatrist noted that the "[p]atient was told because of [A]rmy-issued
boots in training[,] area has
worsen[ed] to the point that the only option is probably surgical fusion
of the toes." Id. The
podiatrist assessed "[c]ontracted foot, neuroma secondary to trauma" and
opined that the appellant
"should be service-connected for injury because of training during active
duty stage would have
resulted [sic] a severe aggravation of this condition." Id.
The appellant underwent a compensation and pension examination of his left
foot in January
2003. R. at 849-50. The VA examiner recorded the appellant's history of
injuring his left foot prior
to military service: "At the age of 14 or 15 he got his left foot caught
in a lawn mower and sustained
a deep laceration of the plantar aspect of the left forefoot and toes." R.
at 849. The examiner
indicated that the "flexor tendons of the second, third, and fourth toes
were severed and not repaired"
resulting in a loss of motion and tenderness within the scar. Id. He
further recorded the appellant's
report that wearing military boots caused pain in his foot and that he
sometimes experienced
"swelling in the region of the first metatarsophalangeal joint." Id.
Following review of the claims
file, x-rays of the left foot, and a physical examination, the examiner's
impression was "[s]taus post
severe laceration, plantar aspect of the left forefoot and toes," "[s]
tatus post traumatic arthritis,
interphalangeal joints of the second and fourth toes," "[s]tatus post
fusion of the interphalangeal
joints of third toe," and "[n]euroma, scar of left forefoot." R. at 849.
The examiner also provided
the following comments:
Although the patient had an extensive laceration of the left forefoot, it
left him with
no deformities which would interfere with wearing of normal shoes. . . .
The injury
definitely occurred at the age of 14 or 15, prior to his entrance into
military service.
Military service may at times have caused some temporary aggravation of
his
symptoms but no long-term problems. The patient has had no injuries to his
foot
since discharge from the service.
In conclusion, I believe that it is more likely than not that the injury
sustained at the
age of 14, prior to his entry into the service, is the cause of his
current left foot
condition with low long-term aggravation resulting from his military duty.
R. at 849-50.
In May 2003, the appellant submitted another opinion by a private
physician, who noted the
appellant's allegations of significant left foot pain and swelling as a
result of wearing military boots
3
in service. R. at 841. Following a physical examination and review of x-
rayevidence, the physician
noted that the appellant had significant pain with palpation, limited
range of motion, diminished
sensation, a positive Tinel sign, lateral plantar nervelesion, secondaryto
nerve entrapment of the left
foot, and post-traumatic arthritis in the joint. Id. The physician opined:
This condition is related to service, especially with the military service
requirements
and conditions at the time, which caused aggravation of the pain and has
made the
pain into a chronic situation. In conclusion, I believe that this injury
is military
relatedsecondaryto combatboot wear,especiallywithrunningin the1960's
Vietnam
era.
Id.
In a May 2004 decision (R. at 486-94), the Board noted that although the
medical evidence
"appeared to support the veteran's contentions of in-service aggravation
of his left foot disorder, the
Board [was] not satisfied that such evidence [was] sufficient for a grant
of service connection" based
on the 2003 examiner's statement regarding "temporary aggravation" and the
fact that the medical
reports failed to discuss the lack of foot symptomatology for more than 20
years after service. R. at
488. As a result, the Board remanded the appellant's claim for additional
development, including
a VA medical examination, "to evaluate the nature, severity, and etiology"
of the appellant's foot
disorder. R. at 491-92.
In October 2004, a VA physician provided an opinion, but no medical
examination,
addressing whether the appellant's foot condition preexisted service or
was aggravated by service.
R. at 465. The report indicates that the appellant had been examined in
January 2003 and that an
additional examination "would not add any further substance or support to
the requested opinion
seeing this is based upon historical information obtained from review of
the claims folder." Id.
Regarding preexistence, the examiner noted that "[t]he veteran freely
admits that the initial injury
to his foot occurred while a teenager from a lawn mower accident." Id.
Regarding aggravation, the
examiner noted that the January 2003 examiner "stated there was
intermittent aggravation of his left
foot disorder, but that there was no permanent damage. Other than that,
that would occur as a result
of the natural process of the disease." Id. Finally, with regard to
postservice events or diseases,
4
including aging, that may have contributed to worsening of the left foot
disorder, the examiner
stated:
There is no evidence of record of anyspecific event or disease. However,
the natural
process of ageing over the 30 years following . . . service has
contributed to the
increasing symptoms of pain within the left foot. On review of the
opinions of the
. . . podiatrist of [July 2002 and May2003], it is noted that both have
opined that they
felt the shoes worn while in service permanently aggravated the condition
to the
extent that he now has more pain secondary to a neuroma than he would have
had he
not have had to wear the militaryshoes. There is no objective evidence in
the service
record of any permanent damage occurring while on active duty. Also, the
development of a neuroma, 30 years post exposure to service, intermittent
aggravation would not be consistent with the natural process of the
disease. It is far
more likely than not that the natural process of ageing has lead [to] the
development
of the neuroma which is now the primary source of the veteran's
symptomatology in
his left foot.
Id.
At a February 2005 Board hearing, the appellant testified that the doctors
who treated him
for his preservice injury to his left foot were deceased and that he did
not "know if it would be
possible if somebody would have those records." R. at 441-42. Following
the hearing, the Board
denied the appellant's claim in an April 2005 decision (R. at 418-36),
which was subsequently
vacated pursuant to a June 2006 joint motion for remand (JMR). See R. at
407-15 (remanding
because (1) the Board failed to apply the correct standard when
determining that the second prong
of the presumption of soundness had been rebutted,and (2) the Board erred
when it relied on Maxson
v. West, 12 Vet.App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000)).
The Board issued another decisionin February2007denyingtheappellant's
claim. R. at 366-
83. That decision was also appealed to the Court, and vacated and the
matter remanded pursuant to
the parties' July 2008 JMR. R. at 316-22 (remanding the case for (1) the
Board to obtain a medical
examination in compliance with its May 2004 remand order, (2) the examiner
to consider all
evidence concerning continuity of symptomatology, and (3) the Board to
consider whether the
appellant is a combat veteran pursuant to 38 U.S.C. § 1154(b)).
InJanuary2010,theappellantunderwentacompensation andpensionexamination
ofhis left
foot. R. at 42-44. The examiner noted that he reviewed the claims file,
documented the appellant's
5
reported preservice injury to his left foot, and conducted a physical
examination. Id. The examiner
also noted the appellant's assertions that (1) during high school he was
unable to run or participate
in sports as a result of pain associated with running, (2) he sought
medical attention during basic
training, (3) after discharge "his foot did about like it did [sic] before
he went in the military," and
(4) he continues to have chronic pain, which varies in severity. R. at 42.
The examiner's impression
was "[s]tatus post remote trauma of left foot with traumatic arthritis and
fusion of the proximal
interphalangeal joints of the second, third, and fourth toes," and "[n]
euroma of left foot." R. at 43.
Regarding preexistence, the examiner opined that "the claimed foot
disorder clearly and
unmistakably preexisted his active service." R. at 43-44. Regarding
aggravation, the examiner
stated:
I cannot document that the left foot disorder was permanently aggravated
or
worsened during his period in the military. As previously noted by the
examiner
from 2003, there was probablyintermittent aggravation of his left foot,
but there was
no permanent damage. For VA purposes, temporary or intermittent flare ups
of a[]
preexisting injuryor disease arenot sufficient to beconsideredaggravation
in service
unless the underlying condition, as contrasted to the symptoms, is
worsened.
R. at 44. In response to the question whether "the left foot disorder [was]
incurred during active
service or did it become manifest to a compensable degree within a 1 year
period of his discharge,"
the examiner stated that "it is far more likely than not that his left
foot disorder preexisted his entry
into the service. I am unable to document that he had a permanent
worsening of his left foot
condition based upon a review of the record." Id. Finally, with regard to
whether the left foot
condition is clearly and unmistakably related to any postservice event or
disease, including aging,
the examiner stated:
The left foot disorder is not related to any post[]service event or
disease, but again
is related to the original injury which he sustained as a teenager and it
is again noted
that I can find no evidence that his left foot condition was permanently
worsened by
any incident or occurrence in the military.
Id.
In the decision here on appeal, the Board denied VA disability
compensation benefits for a
leftfootdisorderbasedonits findingthattheappellantclearlyand
unmistakablyentered servicewith
6
a preexisting foot disorder and the evidence clearly and unmistakably
established that his condition
did not undergo an increase in severity during service. R. at 5. This
appeal followed.
II. ANALYSIS
A. Presumption of Soundness
Pursuant to 38 U.S.C. § 1111, "every veteran shall be taken to have been
in sound condition
when examined, accepted, and enrolled for service, except as to defects,
infirmities, or disorders
noted at the time of the examination." Thus, when no preexisting condition
is noted upon entry into
service, the veteran is presumed sound. See Wagner v. Principi, 370 F.3d
1089, 1096 (Fed. Cir.
2004). This presumption can only be overcome by clear and unmistakable
evidence that the injury
or disease preexisted service and was not aggravated by service. See 38 U.
S.C. § 1111; Wagner,
supra; see also Jordan v. Nicholson, 401 F.3d 1296, 1298 (Fed. Cir. 2005). "
Clear and unmistakable
evidence" means that the evidence "'cannot be misinterpreted and
misunderstood, i.e., it is
undebatable.'" Quirin v. Shinseki, 22 Vet.App. 390, 396 (2009) (quoting
Vanerson v. West,
12 Vet.App. 254, 258-59 (1999)). When an injury or disease has been shown
to have existed before
acceptance and enrollment to military service, it will be considered to
have been aggravated in
service, unless the Secretary establishes, by clear and unmistakable
evidence, either that there was
no increase in disability during service or that any increase in
disability was due to the "natural
progress" of the preexisting disease or injury. See 38 U.S.C. § 1111;
Wagner, supra; see also Joyce
v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006) ("To satisfy the second
requirement for rebutting
the presumption of soundness, the government must rebut a statutory
presumption of aggravation
by showing, by clear and unmistakable evidence, either that (1) there was
no increase in disability
during service, or (2) any increase in disability was 'due to the natural
progression' of the
condition."). The Court reviews de novo a Board decision concerning the
adequacy of the evidence
offered to rebut the presumption of soundness. Quirin, 22 Vet.App. at 396.
However, the U.S.
Court of Appeals for the Federal Circuit has stated that in reviewing the
legal sufficiency of rebuttal
evidence, this Court may employ the "arbitrary, capricious, an abuse of
discretion, or otherwise not
7
in accordance with law" standard of review because it subsumes de novo
review of questions of law.
Kent v. Principi, 389 F.3d 1380, 1383 (Fed. Cir. 2004).
It is undisputed thattheappellant's militaryentrancedocumentsdid not
noteanyfootdisorder
and therefore the presumption of soundness applies. R. at 9; see Wagner,
supra. It is also
undisputed that the first prong of the presumption of soundness was
rebutted – that the evidence
clearly and unmistakably established that the appellant's left foot
disorder preexisted service. R. at
9. In its decision, the Board noted that the appellant acknowledged that
he lacerated his left foot in
his early teens and that the various medical opinions of record related
the appellant's current foot
disorder to his preservice injury. R. at 9-10; see Doran v. Brown 6 Vet.
App. 283, 286 (1994)
(concluding, "as a matter of law, that the presumption of soundness was
rebutted by clear and
unmistakable evidence consisting of [the] appellant's own admissions . . .
of a preservice
[disability]"); see also Harris v. West, 203 F.3d 1347, 1349 (Fed. Cir.
2000). The remaining issue
is whether the Government established by clear and unmistakable evidence
that the appellant's
preexisting foot condition did not undergo an increase in severity during
service or that any increase
was due to the natural progress of the disease. Wagner, supra.
On appeal, the appellant argues that he has experienced foot pain since
the militaryand notes
that two podiatrists have stated that he should be service connected for
his foot problem. Appellant's
Informal Brief (Br.) at 1-2. The appellant is correct that both the July
2002 and May2003 examiners
related the appellant's foot condition to service. However, in addressing
the numerous medical
opinions of record, the Board found that both favorable opinions were of
minimal probative value
for various reasons, including that neither examiner provided any
supporting rationale for his
opinion. R. at 17-18; see Stefl v. Nicholson, 21 Vet.App. 120, 124-25 (
2007) (holding that the Board
may not rely on a medical examiner's conclusory statements if they lack
supporting analysis); see
also Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008) (noting that "
a medical examination
report must contain not only clear conclusions with supporting data, but
also a reasoned medical
explanation connecting the two"). Based on a review of the medical
opinions and the Board's
statement of reasons or bases, the Court cannot say that the Board's
determination was clearly
erroneous. See Owens v. Brown, 7 Vet.App. 429, 433 (1995) (holding that
the Board is responsible
8
for assessing the credibility and weight of evidence and that the Court
may overturn the Board's
decision only if it is clearly erroneous).
Nonetheless, in the context of the presumption of soundness, there is no
requirement that
the claimant submit evidence of aggravation becausetheburdenfalls on the
Government to establish
no aggravation. Wagner, supra. Relying primarilyon the January2010,
October 2004, and January
2003 VA medical opinions, the Board concluded that evidence clearlyand
unmistakablyestablished
that the appellant's foot disorder was not aggravated by service. R. at 10-
19. Regarding the January
2010 medical opinion, the Board stated that the examiner "unequivocally
concluded that the current
left foot disorder clearly and unmistakably existed prior to service, and
did not undergo any
permanent worsening. The examiner acknowledged that there may have been
temporary flare ups
during service, but unequivocally found that the [v]eteran's disability
did not permanently worsen
during service." Id. The Court cannot agree with the degree of clarity
assigned the January 2010
medical examiner's opinion.
Although the examiner stated that "the claimed foot disorder clearly and
unmistakably
preexisted service" his statements regarding aggravation contain
sufficient ambiguity that is was
error for the Board to rely on the examiner's opinion without seeking
further clarification. See
Adams v. Principi, 256 F.3d 1318, 1321-22 (Fed. Cir. 2001) (affirming this
Court's conclusion that
remand was the appropriate remedy where there was a lack of clarity in the
medical evidence and
the Board should have sought clarification to resolve the VA examiner's
intent). The examiner
stated:"Icannotdocument
thattheleftfootdisorderwaspermanentlyaggravatedorworsenedduring
his period in the military. As previously noted by the examiner from 2003,
there was probably
intermittent aggravation of his left foot, but there was no permanent
damage." R. at 44 (emphasis
added). Viewed one way, the examiner's statement could be read as opining
that the appellant's foot
did not undergo any worsening during service and together with the other
evidence of record could
support the Board's conclusion that the Secretary satisfied his burden to
overcome the presumption
of soundness. However, the examiner's statement – "I cannot document" –
could also be viewed
as an inability to opine whether the appellant's foot underwent a
permanent worsening during
service. Although the examiner referred to the 2003 examiner's conclusion
that there was "no
9
permanent damage," he twice more referred to his own inability "to
document" and "find . . .
evidence that [the appellant's] left foot was permanently worsened by an
incident or occurrence in
the military." R. at 44. These statements imply that the examiner was
relying on the absence of objective evidence of aggravation, which comes close to shifting the burden to the veteran to show an increase in disability during service. See Horn v. Shinseki, No. 10-0853, 2012 WL 2355544, at *6-7 (Vet. App. June 21, 2012) (noting that "there is no requirement of a specific injury or trauma in order for the preexisting condition to have been aggravated . . . . [and that i]t is the lack of aggravation that the Secretary must prove, not lack of an injury"). Under these circumstances, the Court concludes that a remand is permissible for the Board to obtain clarification from the VA examiner. See Adams, supra; see also Horn, 2012 WL 2355544, at *11-12 (interpreting Adams,
supra, as distinguishing between those cases where clarification of the
medical evidence is required necessitating remand, and those cases where there is an obvious insufficiency of the evidence warranting reversal); Daves v. Nicholson, 21 Vet.App. 46, 51 (2007) (when medical examination
report is susceptible to multiple fair but inconsistent meanings, the
Board errs by not seeking clarification).
The Court is cognizant thattherecordcontainstwoadditionalVAopinions,
theJanuary2003
and October 2004 reports, which also address this issue. Although the
Board relied on the three
medical reports to determine that the Secretary satisfied his burden to
rebut the presumption of
soundness, the Court finds the Secretary's proof insufficient without the
January 2010 examiner's
opinion. First, as conceded by the Board, the January 2003 opinion left
open "some room, albeit
minor, for doubt as to whether aggravation might have occurred" and the
examiner's use of the
phrase "more likely than not" is insufficient to meet the clear and
unmistakable evidence standard.
R. at 19; see also R. at 18 (noting that the examiner seemed to concede "
'low long-term aggravation'" but indicating that the examiner "likely meant 'no' instead of 'low'").
Second, the January 2003 examiner did not provide any supporting rationale for opining that service" may at times have caused some temporary aggravation of his symptoms[,] but no long-term problems."
R. at 850; see Horn, 2012 WL 2355544, at *7 (indicating in the context of evaluating whether the Secretary's proof is sufficient to rebut the presumption of soundness that "there is no reason that the Court should not
10
follow its caselaw that . . . an unexplained conclusory [medical] opinion
is entitled to no weight in
a service-connection context (citing Nieves-Rodriguez, 22 Vet.App. at 304
)). In this regard, the Court notes that the Board may not discount favorable medical evidence that is conclusory, yet favor another medical opinion that also fails to provide any rationale for its conclusion. Third, the October 2004 examiner did not provide an independent opinion regarding aggravation.
Instead, a plain reading of his report shows that he simply adopted the January 2003 examiner's opinion, which lacks supporting analysis. See R. at 465 (noting that the "[January 2003 examiner] stated that there was
intermittent aggravation of his left foot disorder, but that there was no
permanent damage").
Because the January 2003 and October 2004 opinions are insufficient to meet
the Secretary's burden, the Court will vacate the Board's decision and remand the matter with instructions that the Board seek clarification from the January 2010 medical examiner addressing whether the appellant's preexisting foot condition was aggravated by service. See Adams and Horn, both supra.
B. The Appellant's Remaining Arguments
Given this disposition, the Court will not at this time address the
remaining arguments and
issues raised by the appellant. See Best v. Principi, 15 Vet.App. 18, 20 (
2001). "A narrow decision
preserves for the appellant an opportunity to argue those claimed errors
before the Board at the
readjudication, and, of course, before this Court in an appeal, should the
Board rule against him."
Id. In pursuing the matter on remand, the appellant is free to submit
additional evidence and
argument on the remanded matters, and the Board is required to consider
anysuch relevant evidence
and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002) (stating
that, on remand, the Board
must consider additional evidence and argument in assessing entitlement to
benefit sought);
Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order).
The Court has held that
"[a] remand is meant to entail a critical examination of the justification
for the decision." Fletcher
v. Derwinski, 1 Vet.App. 394, 397 (1991). The Board must proceed
expeditiously, in accordance
with 38 U.S.C. § 7112 (requiring Secretary to provide for "expeditious
treatment" of claims
remanded by the Court).
11
III. CONCLUSION
After consideration of the appellant's and the Secretary's pleadings, and
a review of the record, the Board's January 12, 2011, decision is VACATED and the matter is REMANDED for further proceedings consistent with this decision.
DATED: July 5, 2012
Copies to:
Bobby L. Neal
VA General Counsel (027)
12
Single Judge Application McNair v. Shinseki, 25 Vet.App. 98 (2011); Informed Consent; 38 C.F.R. § 3.361(d)(1)(ii)
Excerpt from decision below:
"In response, the Secretary argues that the Board's decision should be
vacated and the matter remanded to the Board because its statement of reasons or bases is inadequate. Specifically, the Secretary argues that the Board did not analyze whether the informed consent process was adequate under 38 C.F.R. § 3.361(d)(1)(ii). The Secretary also notes that the Board decision was issued approximately six months prior to the issuance of this Court's decision in McNair, which held that the failure to advise a patient of a foreseeable risk does not defeat a finding of informed consent if a "reasonable person in similar circumstances would have proceeded with the medical treatment even if informed of the foreseeable risk." Id. at 107.
Upon review of the record, the Court is persuaded that remand to the Board
is necessary in this instance. On remand, the Board must expressly discuss, and provide an adequate statement of reasons or bases for its conclusions: (1) whether acquiring brachial neuritis due to an influenza vaccination was a reasonably foreseeable event; (2) whether Mr. Kelly gave informed consent; and (3) the application of McNair to its findings."
===========================
----------------------------------------------------
Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 11-2387
ANTHONY J. KELLY, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MOORMAN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
MOORMAN, Judge: The appellant, Anthony J. Kelly, appeals through counsel a
May 10,
2011,BoardofVeterans'Appeals (Board)
decisionthatdeniedentitlementtocompensation pursuant
to 38 U.S.C. § 1151 for additional left arm disability due to VA medical
treatment in October 1998.
Record (R.) at 3-18. Mr. Kelly and the Secretary each filed a brief. This
appeal is timely, and the
Court has jurisdiction pursuant to 38 U.S.C. § 7252(a). A single judge
may conduct this review.
See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). Based on the
following analysis, the Court
will vacate the Board's decision and remand this appeal for further
adjudication in light of this
Court's holding in McNair v. Shinseki, 25 Vet.App. 98 (2011), and the
Secretary's concessions
regarding the Board's inadequate statement of reasons or bases.
In the decision here on appeal, the Board found that Mr. Kelly, who had
served on active duty
in the U.S. Marine Corps from August 1966 to August 1968, received an
influenza vaccination at
the VA medical center (VAMC) in San Francisco, California, in October 1998.
R. at 1145, 2. The
Board also found that Mr. Kelly acquired "left brachial neuritis" as a
result of that vaccination.1
R.
Brachial neuritis, also known as neuralgic amyotrophy, is defined as "pain
across the shoulder and upper arm,
withatrophyand paralysisof the musclesof the shoulder girdle."
DORLAND'SILLUSTRATEDMEDICALDICTIONARY 1263,
70 (32d ed 2012).
1
at 4. Finally, the Board found that Mr. Kelly's disabilitydid not result
from carelessness, negligence,
lack of proper skill, error in judgment, or similar incidence of fault on
the part of VA and "the result
was the ordinary risk of the treatment provided." R. at 5; see R. at 16 (
finding that Mr. Kelly's
brachial neuritis was a reasonably foreseeable event). Therefore, the
Board denied compensation under 38 U.S.C. § 1151.
Mr. Kelly present two arguments on appeal. First, he argues that VA failed
to obtain his informed consent to the vaccination because it did not disclose the risk of acquiring brachial neuritis.
Second, in the alternative, he argues that the risk of acquiring brachial
neuritis was not a reasonably foreseeable risk within the meaning of VA regulations and that he is entitled to compensation even if he gave informed consent. He seeks reversal of the Board's decision.
In response, the Secretary argues that the Board's decision should be
vacated and the matter remanded to the Board because its statement of reasons or bases is
inadequate. Specifically, the
Secretary argues that the Board did not analyze whether the informed
consent process was adequate
under 38 C.F.R. § 3.361(d)(1)(ii). The Secretary also notes that the
Board decision was issued
approximately six months prior to the issuance of this Court's decision in
McNair, which held that the failure to advise a patient of a foreseeable risk does not defeat a finding of informed consent if
a"reasonable person in similar circumstances would have proceeded with
the medical treatment even
if informed of the foreseeable risk." Id. at 107.
Upon review of the record, the Court is persuaded that remand to the Board
is necessary in
this instance. On remand, the Board must expressly discuss, and provide an
adequate statement of
reasons or bases for its conclusions: (1) whether acquiring brachial
neuritis due to an influenza vaccination was a reasonably foreseeable event; (2) whether Mr. Kelly gave informed consent; and (3) the application of McNair to its findings.
Given this disposition, the Court will not at this time address the
remaining arguments and
issues raised by Mr. Kelly. See Best v. Principi, 15 Vet.App. 18, 20 (2001
) ("A narrow decision
preserves for the appellant an opportunity to argue those claimed errors
before the Board at the
readjudication, and, of course, before this Court in an appeal, should the
Board rule against him.").
In pursuing the matter on remand, Mr. Kelly is free to submit additional
evidence and argument on
the remanded matters, and the Board is required to consider any such
relevant evidence and
2
argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002) (stating that,
on remand, the Board
must consider additional evidence and argument in assessing entitlement to
benefit sought);
Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order).
The Court has held that
"[a] remand is meant to entail a critical examination of the justification
for the decision." Fletcher
v. Derwinski, 1 Vet.App. 394, 397 (1991). The Board must proceed
expeditiously, in accordance
with 38 U.S.C. § 7112.
Upon consideration of the foregoing, the Board's May 10, 2011, decision is
VACATED and
this matter is REMANDED to the Board for action consistent with this
decision.
DATED: July 26, 2012
Copies to:
Ronald L. Smith, Esq.
VA General Counsel (027)
3
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
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