Single Judge Application, Examiner's Report Not Supported by Adequate Rational, Nieves–Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008)

Excerpt from decision below: "The December 2005 VA examination that concluded that Mr. Barnes's current right wrist disability was not related to his in-service injury is thorough and adequate in all ways except one: the examiner's conclusion is not supported by adequate rationale. The examiner's statement that, because Mr. Barnes's medical records show no treatment for his wrist condition prior to 1996, it is less likely than not that his current condition is related to his in-service injuries, is so conclusory in nature as to be of no use to an adjudicator. See Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990) (holding that the Board's statement must be adequate to enable a claimant to understand the precise basis for the Board's decision and to facilitate review in this Court). Because the VA physician failed to explain why the lack of treatment between service and 1996 rules out the possibility that Mr. Barnes's current condition was caused by his in-service injury, the examination report is inadequate, and the Board erred in relying on it. See Nieves–Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008)(explaining that "a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two" (citing Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007))). ======================================== Mr. Barnes argues that the December 2005 examination was also inadequate as to his claim for benefits for a low back disability. The Court disagrees. The examiner first stated that the absence of continuous treatment since service led to the conclusion that his current back disability is not related to his in-service back injury. As discussed above, alone this would render the examination inadequate. The examiner went further, however, and stated that the absence of a severe trauma to the back in service makes it unlikely that Mr. Barnes's current disability is related to service. ===================================== ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 10-1945 STEVEN M. BARNES, 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: Steven M. Barnes appeals through counsel a May 25, 2010, Board of Veterans' Appeals (Board) decision that denied entitlement to VA disability benefits for a low back disability and a right wrist disability. Mr. Barnes'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 or identified issues that they believe require a precedential decision of the Court. Because the Board relied on an inadequate VA medical examination and failed to account for favorable evidence, the Court will vacate that portion of the May 2010 Board decision concerning a right wrist disability and remand the claim for further development and readjudication consistent with this decision. Because the Board's determination that benefits for a low back disability are not warranted is not clearly erroneous and is supported by adequate reasons or bases, the Court will affirm that portion of the May 2010 Board decision. I. FACTS Mr. Barnes served on active duty in the U.S. Marine Corps from January 1978 to January 1981. Service medical records show that, in November 1980, Mr. Barnes reported lower back pain after playing basketball the prior evening. An examination showed no swelling, deformities, or discoloration. Mr. Barnes was diagnosed with a muscle strain and was told to treat the pain with rest and a "hot soak." Record (R.) at 689. In December 1980, Mr. Barnes fell while playing basketball and was treated for a right wrist injuryNext Hit. The examiner noted swelling, limited range of motion, and crepitus.1 Mr. Barnes was referred to the emergency room to rule out a fracture. Approximately three weeks later, Mr. Barnes had a cast removed from his right wrist. The medical record of removal indicates that the initial Previous HitinjuryNext Hit was a sprain of the right wrist. Mr. Barnes's January 1981 separation examination contains no complaints of residual back or wrist trouble, and his upper extremities and spine were evaluated as normal. In April 1996, Mr. Barnes sought VA disability benefits. He indicated that he "rupture[d]" his back and "broke" his right wrist on night maneuvers in October 1980. R. at 679. VA obtained medical records from the Texas Department of Criminal Justice that include a May 1994 medical history in which Mr. Barnes reported a broken wrist in 1980 during his military service and a back Previous HitinjuryNext Hit in 1991. A July 1994 physical examination showed "good squats, bends, [and] stoops" with negative straight leg raises. R. at 658. A June 1996 "Nursing Sick Call Protocol" back pain assessment shows that Mr. Barnes reported "trauma" to his back in 1981 during service, but that the duration of his current complaint of lower back pain had only been two weeks. R. at 454. Clinic notes from August 1996 show repeated complaints of lower back pain. In July 1996, a VA regional office denied Mr. Barnes's claims for benefits for right wrist and low back disabilities as not well grounded.2 Mr. Barnes filed a Notice of Disagreement with that decision and requested a hearing. He asserted that his treating VA physician told him that his wrist was fractured as a result of the fall during the basketball game and that he may very well have also fractured his coccyx in the fall. He reported that he has been "in constant pain" since service as a result of his injuries and that he had been unable to work for "a long period of time." R. at 636, 637. Crepitus in this context is "the crackling sound produced by the rubbing together of fragments of fractured bone." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 429 (32d ed. 2012 [ hereinafter DORLAND'S]. At that time, VA could deny a veteran's claim if he had not established that his claim was well grounded. See 38 U.S.C. 5107(a) (1997) ("[A] person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded."). The requirement that a claim be well grounded was eliminated with the enactment of the Veterans Claims Assistance Act of 2000. See 38 U.S.C. § 5103A. 2 1 2 He ultimately appealed to the Board, asserting that his injuries, in conjunction with his service- connected residuals of a right index finger fracture, prohibited him from passing employment physicals and therefore interfered with his ability to obtain and maintain employment. In August 1997, Mr. Barnes testified at a hearing that he wore a cast on his right wrist for "about a month" during service and that he has had trouble, including pain and "locking up," since the Previous HitinjuryNext Hit. R. at 560. With respect to his back, Mr. Barnes testified that he had constant pain since service. He also reported that he pulled a muscle in his back on the job post-service and had to take 30 days off work. In February 1998, the Board denied Mr. Barnes's claims for benefits for a right wrist sprain and a low back disability. In September 1998, Mr. Barnes underwent a VA hand examination. The examiner recorded Mr. Barnes's medical history and expressly noted the fall in-service that resulted in his right wrist and hand beingcasted for threeweeks. The examiner notedMr.Barnes's complaints of trouble using his right hand, constant pain, "early fatigability," and poor grasping ability. R. at 409. An examination revealed limited flexion and poor grasping strength and coordination, "possibly due to disuse." R. at 410. The examiner stated: "As a unit, his right hand is severelycompromised in terms of function. He has definite tenderness over the right [second] metacarpal phalangeal joint. I did not find any specific tenderness over the distal phalanx where he is said to have a fracture." Id. The examiner concluded: "I think his right hand, and he is normally right[-] handed, is definitely functionallydisabled associated with his athletic injurywhich he sustained while on active dutywith the Marine Corps." R. at 412. An x-ray taken in conjunction with the VA examination showed "Separated bony density on the medial corner of distal radius, old fracture versus separate ossification. Otherwise normal wrist joint." R. at 413. The next medical evidence contained in the record of proceedings and cited in the parties' briefs are VA medical records from throughout 2005 that show degenerative disc disease of the lower back, complaints of wrist pain and stiffness, and degenerative joint disease of the wrist. In December 2005, Mr. Barnes underwent a VA medical examination. With respect to the right wrist, the examiner noted that Mr. Barnes injured his wrist in service in a fall during a basketball game and reported "continuous problems" with the wrist since that time. R. at 205. The 3 examiner stated that Mr. Barnes reported having worn a cast on his wrist for approximately eight weeks. The examiner then noted that Mr. Barnes's service medical records reveal that he was in a cast for approximately three weeks. The examiner also noted that, although the service medical records do not document a fracture of the wrist, no x-ray study appeared in those records to confirm that there was no fracture. An x-ray done in conjunction with the examination showed deformities [at the] second,third, fourth[,]andfifth metacarpalheadspresumablyold trauma.Moderatelyadvanced[degenerativejoint disease]firstandfifth[ metacarpal] joints with narrowing and articular lipping. Mild articular lipping [metacarpophalangeal] joints secondthroughfifthand[interphalangeal] jointsoffifth (little) and second (index) fingers. Mild narrowing of wrist joint noted suggesting mild [degenerative joint disease]. R. at 208. The examiner opined that Mr. Barnes's current degenerative joint diseaseof the right wrist was not at least as likely as not related to his in-service Previous HitinjuryNext Hit because of "an absence of a pattern of continuous chronic problems with the right wrist from discharge in military service in 1981 until 1996." Id. With respect to Mr. Barnes's back, the examiner stated that Mr. Barnes reported that he injured his back duringa fall in servicewhile playing basketball. The examiner conducted a physical examination and ordered x-ray and magnetic resonance imaging tests. The magnetic resonance imaging resulted in impressions of "[s]ignificant chronic degenerative disc and end-plate changes at L4-5 with first-degree anterolisthesis of L4 over L5,"3 a "[s]mall central disk protrusion at L5-S1, and "[m]ild facet degenerative changes at L4-5 and L5-S1, but no spinal stenosis.4 R. at 212. The x-ray revealed "L4 spondylolysis with grade I spondylolisthesis and severe [ degenerative joint disease] changes between L4-5 with narrowed disk." Id. The examiner opined that Mr. Barnes's degenerative disc disease of the lumbar spine was not at least as likely as not related to his in-service Previous HitinjuryNext Hit because "[t]here is a lack of evidence for a chronic problem from discharge to militaryservice Anterolisthesis is also called spondylolisthesis, which is "forward displacement of one vertebra over another, usually of the fifth lumbar over the body of the sacrum, or of the fourth lumbar over the fifth, usually due to a developmental defect." DORLAND'S at 98, 1754. Spinal stenosis is the "narrowing of the vertebral canal, nerve root canals, or intervertebral foramina of the lumbar spine caused by encroachment of bone upon the space." DORLAND'S at 1770. 4 3 4 to 1996." R. at 213. She also stated, "The lack of a major trauma during militaryservice is evidence that the current severe back condition is not related to the military service." Id. In December 2005, the regional office issued a rating decision that confirmed and continued the denial of Mr. Barnes's claims for benefits for "low back muscle strain" and a sprain of the right wrist. R. at 200. Mr. Barnes filed a Notice of Disagreement with that decision and ultimately appealed to the Board, which, in April 2009, reopened his claims but denied them on the merits. Mr. Barnes then appealed to this Court. In November 2009, this Court granted the parties' joint motion for remand. In that motion, the parties agreed that the Board provided inadequate reasons or bases for its findings regarding Mr. Barnes's credibility. Specifically, the parties agreed: "Since the Board failed to adequately address whether [Mr. Barnes's] allegations of continuity of symptomatology were credible, remand is required so that the Board can make a determination as to the credibility and probative value of the laystatements of record as theyrelate to continuityof symptomatology." R. at 35 (citations omitted). The joint motion also addressed the December 2005 VA examiner's opinions regarding the relationship between Mr. Barnes's in-service injuries and his current disabilities: It is clear that these opinions were based on a lack of evidence demonstrating treatment for back or wrist pain post-service. As previously stated, the Board must discuss the credibility of [Mr. Barnes's] statements regarding continuity of symptomatology. IftheBoardfinds[his] statements ofcontinuitycredible, theBoard should discuss whether or not a VA examination or medical opinion is needed to determine if his current back and wrist disability are related to his in- service injuries. R. at 38 (citations omitted). In May 2010, the Board issued the decision on appeal. The Board explicitly determined that the December 2005 VA examination was adequate and that no new examination was necessary. With respect to Mr. Barnes's claim for benefits for a low back disability, the Board determined that the "totality of the evidence of record" was against a finding that the current disability was related to the in-service Previous HitinjuryNext Hit. R. at 9. In reaching this conclusion, the Board relied heavily on the December 2005 VA examination report, the lack of evidence of treatment for a back disability between discharge and 1996, and a finding that Mr.Barnes's statements regardinghis condition were 5 not credible. Specifically, the Board concluded that Mr. Barnes's various statements were rife with inconsistencies, leading to the conclusion that he was not a reliable historian. With respect to Mr. Barnes's claim for benefits for a right wrist disability, the Board again found that the totality of the evidence was against the claim. Likewise, the Board relied on the December 2005 VA examination, the lack of evidence of treatment for wrist pain between discharge and 1996, and a finding that Mr. Barnes's statements were inconsistent and, therefore, not credible. II. ANALYSIS A. Right Wrist Disability 1. Secretary Concedes Remand The Secretary concedes that vacatur and remand is warranted with respect to Mr. Barnes's claim for benefits for a right wrist disability. In particular, the Secretaryasserts that the Board failed to provide adequate reasons or bases for its denial because it failed to account for the September 1998 radiology report that revealed an old fracture of the right wrist. The Secretary contends that this evidence is relevant to the Board's discussion of whether Mr. Barnes's statements that he fractured his wrist in service are credible, given that the Board based its finding of incredibility in part on inconsistencies in Mr. Barnes's statements regarding the extent of his in-service Previous HitinjuryNext Hit when compared to the service medical records. The Court agrees. Accordingly, the Court will vacate that part of the Board decision that denied entitlement to benefits for a right wrist disability and remand the matter for further development, as discussed below, and readjudication consistent with this decision. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that vacatur and remand may be warranted where the Board has failed to provide an adequate statement of reasons or bases for its determinations). 2. December 2005 VA Examination Mr. Barnes argues that the parties agreed, in the joint motion for remand granted bythe Court in November 2009, that the December 2005 VA examination was inadequate and that the Board therefore erred in relying on it instead of obtaining a new medical examination. The Secretary asserts that he did not concede the inadequacy of the examination in the joint motion and argues instead that the examination was adequate. 6 a. Joint Motion for Remand In the joint motion for remand, the parties "agree[d] that remand is necessary for the Board to provide adequate reasons or bases as to the credibility of Appellant's lay statements and, if the Board finds them credible, the Board should determine whether additional VA examinations are required." R. at 33. In expanding on this agreement, the parties stated that the Board relied on the absence of medical evidence of treatment for Mr. Barnes's right wrist and low back conditions between discharge and 1996, but that, in making these determinations the Board did not make a finding as to the credibility of [Mr. Barnes's] statements. Since the Board failed to adequately address whether [Mr. Barnes's] allegations of continuity of symptomatology were credible, remand is required so that the Board can make a determination as to the credibility and probative value of the lay statements of record as they relate to continuity of symptomatology. R. at 35 (citations omitted). This is the single concession of error contained in the joint motion for remand. The parties did go on to discuss the December 2005 VA examination, noting that the Board relied heavily on that examination and acknowledging that the examiner's opinions "were based on a lack of evidence demonstrating treatment for back or wrist pain post- service." R. at 38. The parties, however, did not then agree that the examination was inadequate; rather, they agreed that, if the Board determined on remand that Mr. Barnes's statements regarding continuity of symptoms were credible, the Board should then consider whether a new medical examination was warranted. In other words, the parties reserved the determination of the adequacy of the December 2005 VA examination for the Board on remand, but only in the event that the Board first determined that Mr. Barnes's statements regarding continuity were credible. Accordingly, Mr. Barnes's argument that the parties agreed that the December 2005 VA examination was inadequate is not supported by the record.5 b. Adequacy of Examination Nevertheless, the Board, as part of its statutory duty to assist, must consider the adequacy of the VA examination, regardless of the implication in the parties' joint motion for remand that such The Court notes that it is the parties' responsibility to "enumerate[ ] clear and specific instructions to the Board" in the drafting of a joint motion for remand. Forcier v. Nicholson, 19 Vet.App. 414, 426 (2006). 5 7 a finding is only necessary under particular circumstances. See 38 U.S.C. § 5103A(d). Here, the Board expressly did so: Given that the claims file was reviewed by the [December 2005 VA] examiner, a thorough historywas taken from [Mr. Barnes], a complete physical examination was accomplished, and the examination report sets forth detailed examination findings as well as a complete rational[e] for all opinions expressed in a manner which allows for informed appellate review under applicable VA laws and regulations, the Board finds the examination to be sufficient for appellate review and of high probative value. R. at 9. Although the Court commends the Board for its attempt to make the basis for its reliance on the VA examination clear, in compliance with its statutoryduty to provide an adequate statement of reasons or bases under 38 U.S.C. § 7104(d)(1), the Court nevertheless concludes that the Board's finding in this regard is clearly erroneous with respect to Mr. Barnes's claim for benefits for a right wrist disability. 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). The December 2005 VA examination that concluded that Mr. Barnes's current right wrist disability was not related to his in-service Previous HitinjuryNext Hit is thorough and adequate in all ways except one: the examiner's conclusion is not supported by adequate rationale. The examiner's statement that, because Mr. Barnes's medical records show no treatment for his wrist condition prior to 1996, it is less likely than not that his current condition is related to his in- service injuries, is so conclusory in nature as to be of no use to an adjudicator. See Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990) (holding that the Board's statement must be adequate to enable a claimant to understand the precise basis for the Board's decision and to facilitate review in this Court). Becausethe VA physician failed to explain why the lack of treatment between service and 1996 rules out the possibility that Mr. Barnes's current condition was caused byhis in-service Previous HitinjuryNext Hit, the examination report is inadequate, and the Board erred in relying on it. See Nieves–Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008) (explaining that "a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two" (citing Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007))). Accordingly, on remand, the Board must provide Mr. Barnes a new medical examination to consider the question of whether his current right wrist 8 condition is related to his in-service wrist Previous HitinjuryNext Hit. The resulting report of that examination must provide a clear conclusion supported byadequate rationale to permit the Board to make an informed decision about the nature and etiology of Mr. Barnes's disability. On remand, Mr. Barnes 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). In addition, the Board shall proceed expeditiously, in accordance with 38 U.S. C. § 7112 (expedited treatment of remanded claims). B. Low Back Disability 1. December 2005 VA Examination Mr. Barnes argues that the December 2005 examination was also inadequate as to his claim for benefits for a low back disability. The Court disagrees. The examiner first stated that the absence of continuous treatment since service led to the conclusion that his current back disability is not related to his in-service back injury. As discussed above, alone this would render the examination inadequate. The examiner went further, however, and stated that the absence of a severe trauma to the back in service makes it unlikely that Mr. Barnes's current disability is related to service. In other words, the examiner concluded that Mr. Barnes's in-service back injury was not severe enough to cause his current condition. Accordingly, the Board's determination that the VA examination was adequate for purposes of evaluating Mr. Barnes's claim for benefits for a low back disability is not clearly erroneous. See Nolen, 14 Vet.App. at 184. 2. New Medical Examination Mr. Barnes next contends that the Board provided inadequate reasons or bases for its determination that no additional medical examination was warranted. This argument is unpersuasive. As quoted above, the Board did, in fact, expressly state its reasoning for relying on the December 2005 VA examination. Simplybecause the Court has concluded that the examination was not adequate with respect to Mr. Barnes's claim for benefits for a right wrist disability does not render the Board's statement of reasons or bases for relying on the examination inadequate with respect to Mr. Barnes's claim for benefits for a low back disability. See 38 U.S.C. § 7104(d)(1). 9 When there is alreadyan adequate medical examination of record, no new examination is necessary. See 38 U.S.C. § 5103A(d)(2)(C) (stating that, among other conditions, a medical examination is necessary when the record "does not contain sufficient medical evidence for the Secretary to make a decision on the claim"). 3. Credibility Determination Mr. Barnes argues that the Board failed to provide adequate reasons or bases for its credibility determination. The Court disagrees. Although, as Mr. Barnes argues, "the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence," Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006), that is not the case here. Here, the Board went to great pains to explain its determination that Mr. Barnes's statements were not credible, and the lack of contemporaneous medical evidence was merely one in a list of reasons. See id. (stating that the Board can weigh "the absence of contemporaneous medical evidence against the lay evidence of record"). The Board stated: The Board acknowledges [Mr. Barnes's] statements indicating that his current low back disability was due to the incident documented in service. However, medical evidenceisgenerallyrequiredto establishamedicaldiagnosis orto address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes. . . . Nevertheless, lay assertions may serve to supportaclaimforserviceconnection bysupportingtheoccurrenceoflay- observable events or the presence of disability or symptoms of disability subject to lay observation. . . . When applying the case law discussed above, here, [Mr. Barnes] is competent to say that he experienced symptoms while in serviceandhis assertionsconcerninginjuring his low back in service are supported by the service treatment records. Further, he is also competent to report a continuity of symptoms since service. However, any current assertions in this regard by [Mr. Barnes] are inconsistent with the other evidence of record which showed no pertinent complaints over many years. For instance, the May 1994 medical report for the Department of Criminal Justice showed that the only back Previous HitinjuryNext Document [Mr. Barnes] mentioned was in 1991, 10 years after his discharge from service, and a follow up examination was normal. If [Mr. Barnes] had been experiencing back pain since service, it would be reasonable to assume that he would have mentioned it at that time. Moreover, the June 1996 treatment record also noted that [Mr. Barnes] reported that his low back pain had only been ongoing for two weeks, which is completely inconsistent with any statements that he had 10 experienced problems since service. Further, in his initial claim, [Mr. Barnes] asserted that he "ruptured" his back while on night maneuvers, which is inconsistent with theservicetreatment recordsandsubsequentstatementsthatheexperiencedlow back pain while playing basketball. He also reported to the December 2005 VA examinerthathefellwhileplaying basketball; however, the originaltreatment record showed no documentation of a fall. In sum, these inconsistencies diminish [ Mr. Barnes's] credibility and clearly show that [he] is not a reliable historian and, in turn, cannot be considered credible. Further, it is reasonable to expect that [Mr. Barnes] would have reported ongoing back problems since service if he was in fact experiencing them. His failure in this regard further diminishes his credibility regarding a continuity of symptoms since service. Accordingly, the Board finds that [Mr. Barnes] is not credible to the extent that he reports a continuity of symptoms since service. R. at 10-11 (citations omitted). In his brief, Mr. Barnes painstakingly attempts to refute each of the Board's reasons for finding his statements not credible byexplaining awayeach of the purported inconsistencies, but the Court is not permitted to reweigh the evidence and may not reverse the Board's finding regarding credibility simply because it might have reached a different conclusion in the first instance. See Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992) Mr. Barnes has not demonstrated that the Board's finding is clearly erroneous, and the Court will not disturb the Board's finding in this regard. In light of the above discussion, the Court will affirm that portion of the Board's decision that denied entitlement to benefits for a low back disability. III. CONCLUSION Upon consideration of the foregoing, that portion of the May 25, 2010, Board decision that denied entitlement to benefits for a right wrist disability is VACATED and the claim is REMANDED for further development and readjudication consistent with this decision. The remainder of the May 2010 Board decision is AFFIRMED. DATED: November 4, 2011 11 Copies to: Sandra W. Wischow, Esq. VA General Counsel (027) 12

Single Judge Application, Adequate Medical Examination, Stefl v. Nicholson, 21 Vet.App. (2007)

Excerpt from decision below:
"As the appellant argues, VA's request for the examination seems to exclude
PTSD from the examiner's consideration, and at the very least does not ask him to
specifically discuss the disorder. R. at 313-17. In the examination report itself, the examiner mentions PTSD on only one occasion – during a recitation of information included in the appellant's April 2004 appeal to the Board. R. at 302. The examiner did, however, note that the diagnosis he assigned the appellant's condition "is the best explanation for all of his subsequent life difficulties." Id. The Board found that this statement and others indicate that the examiner did consider a range of possible disorders before rendering his diagnosis, including PTSD. It appears, however, that the only conclusion that can be drawn for certain from the examination report is that the examiner was aware that PTSD is a feature
of the appellant's past medical history when he reached his conclusions.
The examination report's failure to convey the degree of consideration the examiner gave to the appellant's PTSD renders the report inadequate. Even if the examiner did consider PTSD in rendering his opinion, he did not explicitly state
his conclusion about whether the appellant suffers from PTSD nor did he
explain his rationale for any conclusion he reached. Instead, he extensively explained his opinions concerning schizophrenia and alcohol dependence, the two disorders with which he diagnosed the appellant, and he extensively explained his reasons for declining to diagnose the appellant with depression and anxiety disorder. R. at 302-03. Moreover, the examiner was asked to "reconcile" the various psychiatric diagnoses the appellant had received. R. at 317. His extensive discussion of schizophrenia, alcohol dependence, depression, and anxiety disorder indicate that he attempted to fulfill this request, while his failure to discuss PTSD leaves the Court unsure whether that diagnosis was part of the attempt at reconciliation. Finally, his silence regarding PTSD does not in any way help the Board in determining why, if he did indeed consider and reject a PTSD diagnosis, he chose to do so, and thus does not aid the Board in making its ultimate determination on the appellant's claim. See Stefl, supra; see also Nieves-Rodriguez v. Peake, 22 Vet.App. 295,301(2008)(holding that the examiner's
6


report must contain clear conclusions and supporting data, as well as "a
reasoned medical explanation" connecting the data and the conclusions). For these reasons, the Court finds that the Board's determination that the July 2006 medical opinion is adequate is clearly erroneous. See 38 U.S.C. § 7261(a)(4); see also Nolen, supra. As a consequence, the Board's statement of reasons or bases is inadequate. See 38 U.S.C. § 7104(d)(1); Allday, Caluza, and Gilbert, all supra."
===================================

----------------------------------------------------


Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-4478
MICHAEL MCCONNELL, 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: Theappellant,Michael McConnell,
appealsthroughcounselanAugust
20, 2009, Board of Veterans' Appeals (Board) decision that denied him
entitlement to service
connection for an acquired psychiatric disability, to include post-
traumatic stress disorder (PTSD).
Record of Proceedings (R.) at 3-26. 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).
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
A. Facts
The appellant served on active duty in the U.S. Air Force from March 1970
until March
1971. R. at 188. According to a statement by veteran Olden Chenault, Jr.,
on December 14, 1970,
the appellant was found in his room "with his eyes open, but [he] would
not respond." R. at 245.
Later that day, the appellant underwent a psychiatric evaluation. R. at
185-86, 256-57. During the


evaluation, the appellant stated that he "couldn't be their puppet
anymore," that his mind wouldn't
work, and that his subconscious prevented him from moving or talking that
morning. R. at 256.
According to the evaluator, "[w]hen [the appellant] was seen he was
somewhat grandiose and had
fashioned his Army uniform to look like Hippy attire. He intellectualized
a great deal. However,
no thought disorder, significant depression, or psychotic symptoms were
noted." R. at 185. He was
diagnosed with immature personality, passive-aggressive type and
adolescent adjustment reaction.
Id. The reporting physician opined that the appellant was "determined to
leave the Army," and
recommended an administrative discharge. R. at 186. The appellant
subsequently received a
discharge for unsuitability. R. at 233.
In September 2001, the appellant filed a claim for PTSD and depression. R.
at 594-98. In
a November 2001 medical document, a physician recorded that the appellant
felt stress and anxiety
throughout his service, and those feelings "culminated when [the
appellant's girlfriend] (also in [the]
military and stationed at [the] same base) committed suicide." R. at 544.
The physician quoted the
appellant as saying, "I had a breakdown . . . they found me comatose in my
bunk . . . I couldn't
function . . . they put me in a psych hospital." Id. The physician found
that, based on the appellant's
report, he was "experiencingsignificant [symptoms] that might be
indicative of [PTSD]." R. at 546.
In a February 2002 statement, the appellant described his in-service
incident as a "mental
breakdown" resulting, in part, from witnessing a suicide. R. at 488. In
July 2002, the VA regional
office (RO) denied the appellant service connection for PTSD. R. at 538-39.
In April 2004, the
appellant appealed to the Board. R. at 339.
In June 2006, VA issued an examination request. R. at 313-17. The
examination worksheet
indicatesthatVAsoughttheexaminationfor"[m]ental disorders(exceptPTSD &
eatingdisorders)."
R. at 313. In the request, VA asked the examiner to "provide an opinion as
to whether the current
diagnosed depression/schizophrenia first manifested itself during
militaryservice." R. at 317. Also,
the request stated that the appellant "has multiple psychiatric diagnoses
[]. Please reconcile and
provide accurate diagnosis." Id.
In July 2006, the medical examination was conducted. R. at 298-304. During
the
examination, the appellant claimed to have no memory of his in-service
episode. R. at 298.
According to the examiner, the appellant related the following from his
time in service:
2


[The appellant] mentioned that he spent many evenings after work at a bar
drinking
and dancing. I asked about this interest in girls. He told me that he
regularlymet two
girls, also in the Air Force on base, in that bar. He considered marrying
one of them.
As he described this experience he paused and seemed distracted. I asked
what was
happening right now. He said, as if awestruck, that he had just remembered
that his
favorite girl had killed herself. In fact he had gone to her barracks room
to see her
and found her with her wrists cut. He called the medics and recalls
nothingafter that.
The girls never appeared at the bar again. He believes that she died. He
cannot place
that event in time, nor in a chronology before his coma.
R. at 300. The examiner diagnosed the appellant with schizophrenia,
paranoid type, and alcohol
dependence, in remission. R. at 303. The examiner further opined that the
appellant's diagnosed
depression/schizophrenia "did not manifest itself during the military
service." Id.
In decisions dated March 28, 2007, and August 26, 2008, the Board denied
the appellant
entitlement to service connection for an acquired psychiatric disability,
claimed as depression, and
for PTSD. R. at 63-73, 105-12. The parties, however, filed and the Court
granted joint motions for
remand on both decisions. R. at 51-55, 92-100. The Board, in its August 20,
2009, decision here
on appeal, denied the appellant entitlement to service connection for an
acquired psychiatric
disability to include PTSD. The Board, in finding that the July 2006 VA
examination was adequate,
determined that "the examiner was aware that the [appellant] was claiming
he had [PTSD] and
considered that diagnosis." R. at 11. The Board also found that further
development was not needed
to allow VA to attempt to verifythat the suicide the appellant
allegedlywitnessed in service actually
occurred. R. at 15. The Board found that the examiner assumed that the
appellant's report of the
incidentwastrue,andtherefore,
eveniffurtherdevelopmentconfirmedtheveracityoftheappellant's
statements, "the claim would still be denied." R. at 15.
In weighing the evidence, the Board found the appellant's contention that
he witnessed a
suicide in service to be "questionable" and "not credible." R. at 18-19.
The Board then, relying
heavily on the July 2006 VA examination, especially the fact that the
report included no diagnosis
for PTSD, found that the Previous DocumentpreponderanceNext Hit of the evidence weighs against a
finding that the appellant
has PTSD and therefore against his claim. R. at 21-22.
B. Arguments on Appeal
The appellant contends that the July 2006 VA medical examination report is
inadequate
3


because the examiner "did not adequately consider or discuss PTSD," or,
alternatively, if the
examiner did discuss PTSD, his comments concerning the disorder lacked
detail and were
insufficient. Appellant's Brief (Br.) at 8-12. In conjunction with this
argument, the appellant also
asserts that the examination request indicated to the examiner that he
should exclude PTSD from his
consideration duringthe examination, and that the Court should presume
that the examiner followed
those instructions. Id. at 9-10. Next, the appellant argues that VA failed
in its duty to assist because
it did not attempt to obtain service records related to the suicide to
which he alluded to during his
examination. Id. at 13-15. Finally, the appellant argues that the Board's
determination that his lay
evidence is not credible was erroneous. Id. at 15-17.
The Secretary argues that the Board discussed the adequacy of the VA
examiner's opinion
and "provided an adequate statement of reasons or bases for its
determination that [the] examination
report was adequate and [the Secretary] asserts that such statement is
facilitative of judicial review."
Secretary's Br. at 13. In answer to the appellant's duty-to-assist
argument, the Secretary asserts that
the appellant's assumption that the suicide he recollected would be found
in service records is
"founded upon pure speculation." Id. at 16. Regarding the appellant's
arguments about the Board's
credibility determination, the Secretary argues that the appellant failed
to demonstrate error. Id. at
16-18.
II. ANALYSIS
Establishing service connection generally requires medical or, in certain
circumstances, lay
evidence of (1) a current disability; (2) incurrence or aggravation of a
disease or injury in service;
and (3) a nexus between the claimed in-service injury or disease and the
current disability. See
Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v.
West, 12 Vet.App. 247, 252
(1999); Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78
F.3d 604 (Fed. Cir. 1996)
(table). A finding of service connection is a finding of fact that the
Court reviews under the "clearly
erroneous" standard of review. See Dyment v. West, 13 Vet.App. 141, 144 (
1999).
When deciding a matter, the Board must include in its decision a written
statement of the
reasons or bases for its findings and conclusions, adequate to enable an
appellant to understand the
precise basis for the Board's decision as well as to facilitate review in
this Court. See 38 U.S.C.
4


§ 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v.
Derwinski, 1 Vet.App. 49,
56-57(1990). Tocomplywith this requirement,theBoardmust analyze
thecredibilityandprobative
value of the evidence, account for the evidence that it finds persuasive
or unpersuasive, and provide
the reasons for its rejection of any material evidence favorable to the
claimant. See Caluza,7
Vet.App. at 506; Gilbert, 1 Vet.App. at 57.
A. The July 2006 Medical Opinion
The Secretary's duty to assist includes "providing a medical examination
or obtaining a
medicalopinion whensuch an examination or opinion is necessaryto makea
decision on the claim."
38 U.S.C. § 5103A(d)(1); see also Green v. Derwinski, 1 Vet.App. 121, 124 (
1991). This Court has
held that a medical opinion is adequate "where it is based on
consideration of the veteran's prior
medical history and examinations and also describes the disability, if any,
in sufficient detail so that
the Board's 'evaluation of the claimed disability will be a fully informed
one.'" Stefl v. Nicholson,
21 Vet.App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet.App. 405, 407 (
1994)). The opinion
"must support its conclusion with an analysis that the Board can consider
and weigh against contrary
opinions." Id. at 124-25. Whether a medical examination report is adequate
is generally a finding
of fact that the Court reviews under the "clearly erroneous" standard of
review. See 38 U.S.C.
§ 7261(a)(4); Nolen v. Gober, 14 Vet.App. 183, 184 (2000).
The appellant argues that the July 2006 medical examination report is
inadequate because
the examiner did not consider or discuss PTSD. Appellant's Br. at 8-12.
The Board expressly
discussed this contention in its decision. It stated:
Based on the Board's reading of the July 2006 VA examination report, the
examiner
was aware that the [appellant] was claiming he had [PTSD] and considered
that
diagnosis. . . . The examiner discussed intrusive thoughts, dissociative
flashbacks,
in-service stressors, 'criterion B symptoms,' and that the [appellant]
felt a preservice
injury he sustained contributed to [PTSD]. . . . [T]he examiner was
clearly aware of
the fact that the [appellant] had been diagnosed with multiple psychiatric
disorders,
but found that these two diagnoses [(schizophrenia, paranoid type and
alcohol
dependence, in remission)] were the appropriate and accurate ones at the
time he
examined the [appellant]. This would have included consideration of [PTSD
]. . . .
The examiner had a full understanding that the [appellant] had been
diagnosed with
multiple psychiatric illnesses, and that notations of [PTSD] had been made.
He
entered diagnoses under Axis I and provided a detailed rationale based on
medical
principles and evidence in the claims file. . . . Moreover, the initial
question did not
5


specifically ask the examiner about alcohol dependence, yet the examiner
was able
to enter such a diagnosis. This is further proof that the psychiatrist
diagnosed what
was present based on his examination and the evidence. He did not ignore
any
disability that was shown by the evidence.
R. at 11-12.
As the appellant argues, VA's request for the examination seems to exclude
PTSD from the
examiner's consideration, and at the very least does not ask him to
specifically discuss the disorder.
R. at 313-17. In the examination report itself, the examiner mentions PTSD
on only one occasion
– during a recitation of information included in the appellant's April
2004 appeal to the Board. R.
at 302. The examiner did, however, note that the diagnosis he assigned the
appellant's condition "is
the best explanation for all of his subsequent life difficulties." Id. The
Board found that this
statement and others indicate that the examiner did consider a range of
possible disorders before
rendering his diagnosis, including PTSD. It appears, however, that the
only conclusion that can be
drawn for certain from the examination report is that the examiner was
aware that PTSD is a feature
of the appellant's past medical history when he reached his conclusions.
The examination report's
failure to convey the degree of consideration the examiner gave to the
appellant's PTSD renders the
report inadequate.
Even if the examiner did consider PTSD in rendering his opinion, he did
not explicitly state
his conclusion about whether the appellant suffers from PTSD nor did he
explain his rationale for
anyconclusion he reached. Instead, he extensivelyexplained his opinions
concerningschizophrenia
andalcoholdependence,thetwodisorderswith whichhediagnosedtheappellant,
andheextensively
explained his reasons for declining to diagnose the appellant with
depression and anxiety disorder.
R. at 302-03. Moreover, the examiner was asked to "reconcile" the various
psychiatric diagnoses
the appellant had received. R. at 317. His extensive discussion of
schizophrenia, alcohol
dependence, depression, and anxiety disorder indicate that he attempted to
fulfill this request, while
his failure to discuss PTSD leaves the Court unsure whether that diagnosis
was part of the attempt
at reconciliation. Finally, his silence regarding PTSD does not in any way
help the Board in
determining why, if he did indeed consider and reject a PTSD diagnosis, he
chose to do so, and thus
does not aid the Board in making its ultimate determination on the
appellant's claim. See Stefl,
supra; seealsoNieves-Rodriguezv.Peake,22Vet.App.295,301(2008)(
holdingthattheexaminer's
6


report must contain clear conclusions and supporting data, as well as "a
reasoned medical
explanation" connecting the data and the conclusions). For these reasons,
the Court finds that the
Board's determination that the July 2006 medical opinion is adequate is
clearly erroneous. See 38
U.S.C. § 7261(a)(4); see also Nolen, supra. As a consequence, the Board's
statement of reasons or
bases is inadequate. See 38 U.S.C. § 7104(d)(1); Allday, Caluza, and
Gilbert, all supra.
B. VA's Duty To Obtain Additional Records
The Secretary has a duty to assist the appellant in obtaining evidence
necessary to
substantiate his claim, including making reasonable efforts to obtain all
potentially relevant records
that the appellant adequately identifies and authorizes the Secretary to
obtain. See 38 U.S.C.
§ 5103A(a)(1), (b)(1); Moore v. Shinseki, 555 F.3d 1369, 1372-75 (Fed.
Cir. 2009). The Secretary's
duty to obtain records extends only to relevant records. See 38 U.S.C. §
5103A(b)(1); Loving v.
Nicholson, 19 Vet.App. 96, 102 (2005) (VA's duty to assist includes making
efforts to obtain
relevant records that the appellant has adequately identified).
The appellant argues that the Board should have sought to obtain records
from Hamilton Air
Force Base, where he was stationed, near the time of his December 1970
psychiatric episode to
determine whether a suicide he claimed to witness had indeed occurred.
Appellant's Br. at 13-15.
Once again, the appellant apparentlyraised this argument before the Board,
and the Board answered
it directly. The Board found that the July 2006 examination report
demonstrates that the examiner
accepted the appellant's account of witnessing a suicide as an in-service
stressor, and still did not
diagnose the appellant with PTSD. R. at 15. The Board stated:
The examiner did not diagnose [PTSD] based upon this or any other stressor
the
[appellant] argued had impacted him in service. Thus, the Board's denial
of this
particular claim is based on a conclusion that the Previous HitpreponderanceNext Document of the
evidence is
against finding that the [appellant] has [PTSD] as opposed to either a
lack of a
verified stressor or a finding that there is no diagnosis of [PTSD].
Simply put[,]
remanding this case to attempt to verify this purported in-service
stressor would not
change the outcome of this determination. Hence, remanding the case is not
in order.
R. at 21-22.
Because the Court has found the July 2006 examination to be inadequate
based on the
examiner's failure to provide anyrationale concerning anyconclusions
reached about the appellant's
PTSD, the Board's statement of reasons or bases regarding whether VA
fulfilled its duty to assist
7


despite not seeking records pertaining to a possible suicide during the
appellant's service may be no
longer valid. On remand, the Board should, based on its further
development of the evidence,
reassess its determination on this point.
C. Other Arguments
Given this disposition, the Court will not, at this time, address the
other arguments and issues
raised by the appellant. See Best v. Principi, 15 Vet.App. 18, 20 (2001) (
per curiam order) (holding
that "[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"). 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).

III. CONCLUSION
After consideration of the appellant's and Secretary's pleadings, and a
review of the record,
the Board's August 20, 2009, decision is VACATED and the matter is
REMANDED to the Board
for further proceedings consistent with this decision.
DATED: June 27, 2011
Copies to:
Todd M. Wesche, Esq.
VA General Counsel (027)
8