Thursday, December 27, 2012

Single Judge Application, Breniser v. Shinseki, 25 Vet.App. 64, 79 (2011); Post Hoc Rationalizations

Excerpt from decision below: "The Secretary's contention, however, was not one of the bases the Board articulated for finding the veteran's assertions not credible. A post hoc rationalization is not a substitute for an adequate statement of reasons or bases. See Breniser v. Shinseki, 25 Vet.App. 64, 79 (2011) (noting that litigation positions "are not entitled to deference when they are merely appellate counsel's 'post hoc rationalizations' for agency action advanced for the first time in the reviewing court" (internal quotation marks omitted)). Besides, Mr. Bowers's argument is that his gallstones began to form approximately 6 to 12 years before his November 2007 surgery, that is, between 1995 and 2001. All the reports the Secretary cites, dated from 1976 to 1992, predate this period. See R. at 867, 893, 915, 917. Thus, it is not immediately clear that Mr. Bowers's claims of unreported, in-service symptoms are even inconsistent with his SMRs. =========================== ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 11-3022 JOHN M. BOWERS, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before BARTLEY, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. BARTLEY, Judge: Veteran John M. Bowers, who is self-represented, appeals from a May 25, 2011, decision of the Board of Veterans' Appeals (Board), denying entitlement to service connection forcholecystitisandpostoperativeresidualsofgallbladderremoval.1 Record(R.)at4-16. This appeal is timely, and the Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judgedisposition is appropriate. See Frankel v. Derwinski, 1 Vet. App. 23, 25-26 (1990). For the reasons set forth below, the Court will set aside that portion of the May 2011 Board decision that is on appeal, and remand the matter for readjudication consistent with this decision. I. FACTS Mr. Bowers served on active duty in the U.S. Air Force from June 1981 to January 2005. R. at 486. His service medical records (SMRs) do not contain any diagnoses of, or complaints related to, gallbladder problems. R. at 674-1007. In medical history reports dated July 1976 (R. at 915), The Board remanded for additional development claims for increased disability evaluations for degenerative arthritis of the right knee, status-post arthroscopic surgery, currently evaluated as 10% disabling, and chondromalacia of the left patella, currently evaluated as 10% disabling. Record at 14-16. These issues are not before the Court. See Adams v. West, 13 Vet.App. 453, 454 (2000) (noting that the Court lacks jurisdiction over a claim remanded by the Board). 1 October 1980 (R. at 917), October 1985 (R. at 893), and April 1992 (R. at 867), he specifically denied frequent indigestion, gallbladder problems, or gallstones. After discharge in January 2005, Mr. Bowers applied for veterans disability benefits for several conditions but did not mention problems relating to his gallbladder. R. at 659-68. Then, in January2007, Mr. Bowers presented at the Air Force AcademyHospital emergency room with severe upper abdominal and bilateral mid-back pain. R. at 286, 344. Ultrasound confirmed the presence of stones in the gallbladder. R. at 287; see also R. at 234-39. The diagnosis was cholelithiasis with bile duct calculi and cholecystitis.2 Id. At a followup visit three weeks later in February 2007, Mr. Bowers advised the attending physician that he wished to postpone any surgery. R. at 282-83. After experiencing additional episodes of severe upper abdominal pain, however, he underwent a cholecystectomy, or surgical removal of the gallbladder, in October 2007.3 R. at 225-27; see also R. at 35. November 2007 postoperative notes indicate that "numerous" gallstones were present and measured up to 1.2 centimeters in diameter. R. at 261, 269. The walls of the gallbladder showed scar tissue, measuring up to .5 centimeters in thickness. R. at 223, 261. The final diagnosis was "acute and chronic cholecystitis with cholelithiasis." R. at 261. That same month, Mr. Bowers filed a claim for service connection of cholecystitis and partial removal of the gallbladder and recounted the foregoing medical history. R. at 344-45. Heelaborated in a December 2007 statement in support of claim that, between 1999 and 2007, he experienced "[u]sually mild, but occasionally moderate, upper abdominal pain after eating a large/heavy meal," between eight and ten times per year. R. at 205. However, the veteran assumed it was indigestion and treated these incidents with over-the- counter medications. Id. In a March 2008 rating decision, the VA regional office (RO) denied his claims for service connection for cholecystitis and gallbladder removal because there was no evidence demonstrating a "plausible relationship" between these conditions and his military service. R. at 190-95. Mr. "Cholelithiasis" means "the presence of or formation of gallstones," which are also known as calculi. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 349 (32d ed. 2012) [hereinafter DORLAND'S]; see also id. at 271 (defining "calculi" as "abnormal concretions . . . of mineral salts"). " Cholecystitis" is an "inflammation of the gallbladder." Id. at 348. 3 2 See DORLAND'S at 348. 2 Bowers filed a Notice of Disagreement (NOD) in April 2008 and attached numerous relevant treatment records. R. at 134-37, 142-61. In the NOD, he argued that the RO failed to consider his report of self-medicating during service, and the size of the recovered gallstones and the thickness of the gallbladder wall caused by long-term scarring. R. at 136. According to the veteran, these facts, takentogether,"indicate[d] along-termcondition thatbeganduringmilitaryservice,but which did not become severe enough to seek medical treatment until after retirement." Id. More specifically, in the NOD Mr. Bowers cited numerous medical treatises that state that gallstones grow at a rate of 1 to 2 millimeters per year. R. at 136-37. Based on this growth rate and given that the largest stones removed from his gallbladder in October 2007 were 1.2 centimeters (or 12 millimeters), he argued that the stones must have been developing before his active duty terminated in January 2005. Id. He also cited medical texts that said gallstones could be developing for years before they caused symptoms or observable problems. R. at 136. The RO issued a Statement of the Case (SOC) in November 2008, and continued to deny service connection for cholecystitis and removal of gallbladder, stating there was no evidence of a nexus between these conditions and service. R. at 111-27. With respect to the evidence Mr. Bowers submitted regarding the growth rate of gallstones, the SOC noted only that, although the presence of gallstones is a condition entitled to presumptive serviceconnection, thedisabilitydid not manifest to a compensable degree within one year of discharge from service, so service connection could not be granted. R. at 127. The veteran appealed to the Board. R. at 82-83. Testifying at a hearing before the Board in April 2011, Mr. Bowers reiterated that during service he treated what he thought at the time was indigestion with over- the-counter medicine. R. at 33; see also R. at 42. He once again shared his research about the rate at which gallstones develop and contended, based upon the size of the stones removed from this gallbladder, that they must have developed during service. R. at 33-36. The Board issued the decision currently on appeal on May 25, 2011. R. at 4- 16. First, the Board determined that VA had satisfied its duty to assist and that the veteran was not entitled to a medical nexus examination because "there [was] no credible evidence that [ the] pertinent disability had its onset in service or is otherwise associated with active duty." R. at 8. Next, although acknowledging Mr. Bowers's claims of indigestion-like symptoms and back pain during and after 3 service, the Board said his statements were not credible because there was no mention of gallbladder disease, gallstones, or cholecystitis in SMRs or postservice medical records within a year of discharge. R. at 11-12. Further, the Board stated: "It is not conceivable that the [v]eteran had unreported symptoms of cholelithiasis in service and continuously following active duty. When those symptoms were first reported in January 2007, the [v]eteran was in the emergency room due to their severity." R. at 12. Finally, with respect to Mr. Bowers's argument, based on the medical treatise evidence he cited, that his gallstones were developing during service but did not cause problems until after service, the Boardstatedsimplythathewas "not competent to render a probative opinion on a medical matter, such as the onset of gallstones, or of a medical diagnosis or causation." R. at 12. Moreover, the Board found that no competent evidence linked postoperative residuals of gallbladder removal to service; Mr. Bowers needed to present, the Board concluded, "contemporaneous service treatment records reflecting treatment or diagnosis of abdominal pain or gallbladder disease during service." R. at 13. This timely appeal followed. II. ANALYSIS Before this Court, Mr. Bowers argues that the Board failed to consider properly the medical treatise evidence that he offered. Appellant's Informal Brief (Br.) at 2. He acknowledges that he never sought treatment for a gallbladder condition during service or within the year immediately following servicebut contends that this does not mean that his gallstoneswerenotdevelopingduring service. Id., Attachment at 3. Indeed, he contends that the treatise evidence he offered, in conjunction with the evidence showing the size of the gallstones removed during the 2007 surgery, "clearly show that gallstones must have been growing while [he] was on active duty." Id. The Board, he asserts, misapplied 38 C.F.R. § 3.303 (2012) and used the absence of any manifestation of a gallbladder disorder within one year of service so as to avoid considering the implications of the evidence he submitted. Id. at 5-6. He asks that the Board be directed to consider the size of his gallstones at the time of his 2007 surgery and the medical treatise evidence on the growth rate of gallstones in general. Id. at 9. The Secretaryargues in response that the Board's decision had a plausible basis in the record. Secretary's Br.at7-10. Further,theSecretarycontendsthattheBoard" appropriatelyquestioned[Mr. 4 Bowers's] credibility." Id. at 10-11. Finally, despite acknowledging that " the Board did not directly address the medical treatise information in its decision by referring to the actual articles," the Secretarymaintains that Mr. Bowers was not prejudiced because the Board did address his argument that his gallstones must have formed while he was in service. Id. at 12. But, according to the Secretary, the Board rightly found that the veteran was not competent to make such an argument. Id. In any event, the Secretary argues, the medical treatises at issue " only discuss the general characteristics of gallstones and do not state with any certainty that [ the veteran's] gallstones would have existed as [he] maintains." Id. at 13. Mr. Bowers replies that, notwithstanding the Secretary's characterization of the decision, the Board did not address the treatise evidence he submitted. Reply Br. at 6-9. He also takes issue with how the Board determined he was not credible. Id. at 2-5. The Court agrees with Mr. Bowers on every argument he presents. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See McClain v. Nicholson, 21 Vet.App. 319, 320-21 (2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A finding of service connection, or no service connection, is a finding of fact reviewed under the "clearly erroneous" standard in 38 U.S.C. § 7261(a)(4). See Swann v. Brown, 5 Vet.App. 229, 232 (1993). "A factual finding 'is "clearly erroneous" when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). Additionally, 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. See 38 U.S.C. § 7104(d)(l); 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 persuasive or unpersuasive, and provide the reasons for its rejection of any material 5 evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 507 ( 1995); Gabrielson v. Brown, 7 Vet.App. 36, 39-40 (1994). Cholecystitis and removal of gallbladder are evaluated under 38 C.F.R. § 4.114, Diagnostic Codes 7314 and 7318 (2012), respectively. A. Medical Treatise Evidence Regarding Growth Rate of Gallstones First, the Court agrees with the veteran and the Secretary, see Secretary's Br. at 12, that the Board failed to discuss the medical treatise evidence offered by Mr. Bowers. This Court has stated that medical treatise evidence may be sufficient to establish nexus in instances where "standing alone, [it] discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion." Wallin v. West, 11 Vet.App. 509, 514 ( 1998) (quoting Sacks v. West, 11 Vet.App. 314, 317 (1998)). The U.S. Court of Appeals for the Federal Circuit has likewise held that "in an appropriate case," medical treatises can establish the nexus element of service connection. Hensley v. West, 212 F.3d 1255, 1265 (Fed. Cir. 2000) (" A veteran with a competent medical diagnosis of a current disorder may invoke an accepted medical treatise in order to establish the required nexus; in an appropriate case it should not be necessary to obtain the services of medical personnel to show how the treatise applies to his case ."). In this case, Mr. Bowers offered medical treatise evidence that placed the growth rate of gallstones at 1 to 2 millimeters per year, along with postoperative records from November 2007 showing that he had gallstones as large as 1.2 centimeters. Certainly, this is evidence that, if credited,isfavorabletoMr.Bowers'sclaimforserviceconnection becauseit woulddemonstratethat stones began to form in his gallbladder while he was on active duty and existed during service.4 As such, the medical treatise evidence should have been discussed. Without this discussion, the Board's statement of reasons or bases for its decision is inadequate. See Caluza, supra; see also Daves v. Nicholson, 21 Vet.App. 46, 51 (2007). Contraryto the Secretary's contentions, the Court is not persuaded that the Board's failure to discuss this evidence is harmless. See Shinseki v. Sanders, 556 U.S. 396, 406-07 (2009) (noting that 4 There are 10 millimeters in 1 centimeter, so the 1.2 centimeter gallstone removed from Mr. Bowers's gallbladder measures 12 millimeters. If the growth rate of gallstones is 1 to 2 millimeters per year, then at least one of the veteran's gallstones began developing 6 to 12 years before its removal in October 2007, that is, between 1995 and 2001, when Mr. Bowers was serving in the Air Force (R. at 486). 6 38 U.S.C. § 7261(b) requires this Court to take due account of the rule of prejudicial error). The Secretary asserts that the treatise evidence "do[es] not provide the requisite specificity to relate that [Mr. Bowers's] gallstones existed during service" because "they only discuss the general characteristics of gallstones." Secretary's Br. at 13. Therefore, the Secretary maintains, the Board's failure to discuss the treatise evidence is harmless error. If the Board were permitted to dismiss summarily treatise evidence on the basis that it is too general, however, there would be no value in ever submitting treatise evidence because most such evidence is necessarily generic in that sense. See 38 C.F.R. § 3.159(a)(1) (2012) ("Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. . . . [and] may also mean statements conveying sound medical principles found in medical treatises. . . . [and] statements contained in authoritative writings such as medical and scientific articles and research reports or analyses."). If credited, the treatise evidence Mr. Bowers submitted establishes that, as a general rule, gallstones grow at a rate of 1 to 2 millimeters per year. Applied specifically in Mr. Bowers's case, the treatise evidence would show that his gallstones developed while he was in service. Moreover, there is no evidence to suggest that the veteran's gallstones grew at a different rate or otherwise fell outside the standard development time line established in the medical treatises. The Board should have considered and discussed the treatise evidence that, if accepted, would seem to require little more than the application of arithmetic principles to establish service connection for the residuals of gallstones. See Hensley, supra. Furthermore, even when medical articles or treatises are not, alone, sufficient to establish service connection, they "can provide important support when combined with an opinion of a medical professional." Sacks, 11 Vet.App. at 317. The Secretary has a statutory duty to "make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit." 38 U.S.C. § 5103A(a)(1). This duty includes the obligation to obtain a medical opinion or provide a medical examination "when such an examination or opinion is necessary to make a decision on the claim." 38 U.S.C. § 5103A(d)(1). VA must provide a medical opinion or examination if the evidence of record does not contain sufficient, competent medical evidence to decide the claim, but the following factors are present: 7 (1) [C]ompetent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability. McLendon v. Nicholson, 20 Vet.App. 79, 81 (2006); see also 38 C.F.R. § 3. 159(c)(4)(i). The third requirement—that the evidence indicate that a condition "may be associated" with service—establishes a "low threshold." McLendon, 20 Vet.App. at 83. In deciding whether a medical opinion is necessary, the Secretary must consider the evidence of record, "taking into consideration all information and lay or medical evidence (including statements of the claimant)." 38 U.S.C. § 5103A(d)(2). This Court reviews the Board's ultimate conclusion that a medical opinion is or is not necessary pursuant to section 5103A(d)(2) under the " arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" standard of review. McLendon, 20 Vet.App. at 81 (citing 38 U.S.C. § 7261(a)(3)(A)). The Board stated in the decision on appeal that "there is no credible evidence that [the] pertinent disability had its onset in service or is otherwise associated with active duty" and thus determined that a medical opinion or examination was not warranted. R. at 8. As discussed above, the Board failed to acknowledge or discuss the medical treatise evidence that Mr. Bowers submitted to and highlighted before the Board. Without such discussion, there is no indication that the Board took "into consideration all information" in the record. 38 U.S.C. § 5103A(d)(2). In the Court's view, the Board's decision not to seek a medical opinion in connection with the medical treatise evidence submitted in this case was an abuse of discretion and not in accordance with the law. McLendon, 20 Vet.App. at 81; see also Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991) ("If the medical evidence of record is insufficient, or . . . of doubtful weight or credibility, the [Board] is always free to supplement the record by seeking an advisory opinion, ordering a medical examination[,] or citing recognized medical treatises in its decisions that clearly support its ultimate conclusions."). If not sufficient on its face to establish service connection, the medical treatise evidence, coupled with the November 2007 postoperative findings in this case, at least appears to meet McLendon's low threshold for seeking a medical opinion on the likelihood that Mr. Bowers's gallstones and residual complaints are related to service. See McLendon, supra. 8 TheSecretaryalsoasserts thattheBoard'sfailuretoaddressthemedicaltreatise evidencewas harmless because the Board addressed the substance of the medical treatise evidence when it considered Mr. Bowers's arguments that his gallstones must have formed while he was in service. Secretary's Br. at 12. This is not so. Although the Board acknowledged the theorythat the veteran's gallstones began to form during service, the Board said this contention was "without merit" because "[a]s a layperson, the [v]eteran is not competent generallyto render a probative opinion on a medical matter." R. at 12. Mr. Bowers, however, was not offering his own subjective opinion as to the growth rate of gallstones; he was repeating the data reported in professional medical treatises he submitted. Certainly, a layperson is competent to report information provided by a medical professional. Cf. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that a veteran is competent to repeat a medical diagnosis and report observable symptoms). In labeling the veteran's report of the growth rate of gallstones as incompetent lay opinion, the Board avoided addressing the substance of the medical treatise evidence Mr. Bowers submitted, just as the Board failed to address those treatises directly. Thus, the Board's failure to address the medical treatise evidence that was favorable to Mr. Bowers was not harmless. See Sanders and Caluza, both supra. As such, remand is warranted for the Board to address this evidence initially, or after seeking a medical opinion, if the Board determines that one is necessary. See Tucker v. West, 11 Vet.App. 369, 374 ( 1998) (holding that remand is the appropriate remedy"where the Board has incorrectlyapplied the law, failed to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate"). And while the Board, rather than this Court, must address the probative value of the medical treatise evidence Mr. Bowers provided, the Court cannotimagineunderwhat circumstances such evidence would not be relevant and supportive of his claim for service connection for cholecystitis. On remand, Mr. Bowers is free to submit additional evidence and argument on his claims. 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). The Court has held that "[a] remand is meant to entail a critical examination of the justification for the decision." 9 Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991). In accordance with 38 U.S.C. § 7112 , the Board must proceed expeditiously with this case on remand. B. Lay Statements Regarding In-Service Symptoms Although the Court need not address additional allegations of error once it has determined that a remand to the Board is warranted, the Court may address other issues to provide further guidance on remand. See Quirin v. Shinseki, 22 Vet.App. 390, 396 (2009). The Board found that Mr. Bowers's statements—that he suffered, both during and after service, indigestion and episodes ofupperabdominalpainradiatingtohis back—werenot credible. This credibilitydetermination had two bases. First, the Board found the absence of contemporaneous medical records suggesting a gallbladder disability probative. "The first evidence of pertinent disability is in January 2007, after discharge,"theBoardobserved,"with nomentionofahistoryofunreportedsymptoms priorto then." R. at 12. Second, the Board stated: "It is not conceivable that the [v] eteran had unreported symptoms of cholelithiasis in serviceand continuouslyfollowing active duty. When those symptoms were first reported in January 2007, the [v]eteran was in the emergency room due to their severity." Mr. Bowers challenges these credibility findings. Reply Br. at 2-6. Neither of the Board's observations is a permissible basis for rejecting Mr. Bowers's credibility. First, the absence of contemporaneous medical records "does not, in and of itself, render lay evidence not credible." Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Moreover, Mr. Bowers stated that he did not report upper abdominal pain—which he thought was indigestion—during service because he treated the problem with over-the- counter products and his symptoms were not that severe. See, e.g., R. at 205; see also R. at 35 ("I didn't have real[ly] bad symptoms until after my retirement."). The Board cannot find that the veteran lacks credibility simply because his SMRs do not document complaints or symptoms related to a gallbladder condition. See Buchanan, supra. Second, the Board apparently found it incredible that Mr. Bowers could experience mild or no symptoms during service, where the symptoms, when first reported in January 2007, were so severe that he sought emergency treatment. It is not clear why the Board was so dubious of the notion that gallstones could generate little or no symptoms in the beginning of their development but severe symptoms later on. The Board may not rely on its own unsubstantiated medical conclusions 10 but must rely on the medical evidence of record. See Colvin v. Derwinski, 1 Vet.App. 171, 172 (1991), overruled on other grounds by Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998); see also Kahana v. Shinseki, 24 Vet.App. 428, 434-35 (2011) (holding that the Board erred in "making a medical determination as to the relative severity, common symptomatology, and usual treatment of an . . . injury without citing to any independent medical evidence to corroborate its finding"). Mr. Bowers asserts that "gallstones are commonly asymptomatic for years." Reply Br. at 5. And as he did on the issue of gallstone growth rates, Mr. Bowers cited in his April 2008 NOD medical treatises that support this contention. R. at 136 (quoting a medical text that reads : "Their (gallstones) development is insidious, and they may remain asymptomatic for decades."). The Board also failed to acknowledge and discuss this medical evidence, which would appear to corroborate the veteran's laystatements regarding the course of his condition. But even if Mr. Bowers had not submitted such medical evidence, the Board would not have been permitted to supply its own medical opinion as to how gallstones develop or when they might begin producing noticeable symptoms. See Colvin, supra. The Secretarycontends that the Board permissiblydoubted Mr. Bowers's credibilitybecause his assertion that he experienced indigestion-like symptoms in service and treated them with over- the-counter products is inconsistent with medical history reports in which he denied frequent indigestion, gallbladder problems, or gallstones. Secretary's Br. at 9. The Secretary's contention, however, was not one of the bases the Board articulated for finding the veteran's assertions not credible. A post hoc rationalization is not a substitute for an adequate statement of reasons or bases. See Breniser v. Shinseki, 25 Vet.App. 64, 79 (2011) (noting that litigation positions "are not entitled to deference when they are merely appellate counsel's 'post hoc rationalizations' for agency action advanced for the first time in the reviewing court" (internal quotation marks omitted)). Besides, Mr. Bowers's argument is that his gallstones began to form approximately 6 to 12 years before his November 2007 surgery, that is, between 1995 and 2001. All the reports the Secretary cites, dated from 1976 to 1992, predate this period. See R. at 867, 893, 915, 917. Thus, it is not immediately clear that Mr. Bowers's claims of unreported, in-service symptoms are even inconsistent with his SMRs. 11 Based on the nature of the medical evidence regarding gallstone growth rates, the Board may not need to evaluate the credibility of Mr. Bowers's lay statements regarding the course of his gallbladder condition. If, however, the Board does find it necessary to do so, it must refrain from discounting his credibility on erroneous bases such as those discussed above. III. CONCLUSION Upon consideration of the foregoing, that portion of the May 25, 2011, Board decision on appeal is SET ASIDE and REMANDED for readjudication consistent with this decision. DATED: December 11, 2012 Copies to: John M. Bowers VA General Counsel (027) 12