Veteranclaims’s Blog

September 20, 2010

Federal Circuit, Gardin v. Shinseki, No. 2009-7120, USC 5125, Diagnosis of PTSD Stressor

This would seem to be a relevant citation for anyone seeking to support NOVA’s motion before the Federal Circuit in regard to oppose VA’s requirement that only their people can decide when a stressor is sufficient enough to cause PTSD.

Congress expressly permits veterans seeking service-
connected disability benefits to submit reports from
private physicians:
For purposes of establishing any claim for benefits
. . . , a report of a medical examination adminis-
tered by a private physician . . . may be accepted

Page 8
GARDIN v. DVA
8
without a requirement for confirmation by an examination by a physician employed by the Veterans Health Administration if the report is sufficiently complete to be adequate for the purpose of adjudicating such claim.
38 U.S.C. ง 5125.
In addition, the Secretary has defined
“competent medical evidence” to mean, among other things, “evidence provided by a person who is qualified through education, training, or experience to offer medical
diagnoses, statements, or opinions.” 38 C.F.R. 3.159(a)(1) (2009). Accordingly, neither the statute nor the regulation requires that a private physician review
the veteran’s medical service record before his or her opinion may qualify as competent medical evidence.
====================================================

Google automatically generates html versions of documents as we crawl the web.
Page 1
United States Court of Appeals
for the Federal Circuit
__________________________
WAYNE J. GARDIN,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2009-7120
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in 07-1812, Judge Bruce E. Kasold.
______________________
Decided: July 16, 2010
______________________
JANET A. PIOLI, Brinks Hofer Gilson & Lione, of Chi-
cago, Illinois, argued for claimant-appellant. With her on
the brief were MEREDITH MARTIN ADDY and JOHN E.
HAUGEN.
TARA K. HOGAN, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, argued for respondent-
appellee. With her on the brief were TONY WEST, Assis-
tant Attorney General, JEANNE E. DAVIDSON, Director,
and KIRK T. MANHARDT, Assistant Director. Of counsel
Page 2
GARDIN v. DVA
2
on the brief were MICHAEL J. TIMINSKI, Deputy Assistant
General Counsel, and CHRISTA A. CHILDERS, Attorney,
Office of the General Counsel, United States Department
of Veterans Affairs, of Washington, DC.
__________________________
Before MAYER, GAJARSA, and MOORE, Circuit Judges.
GAJARSA, Circuit Judge.
This is an appeal by a veteran seeking to obtain dis-
ability compensation benefits from the Veterans Admini-
stration. Wayne J. Gardin appeals from a decision of the
United States Court of Appeals for Veterans Claims
(“Veterans Court”) affirming the Board of Veterans Ap-
peals’ (“Board”) denial of Mr. Gardin’s claim for disability
compensation for diabetes because the disease was not
service-connected. See Gardin v. Shinseki, No. 07-1812,
2009 WL 1006160 (Vet. App. April 14, 2009). In affirming
the Board, the Veterans Court approved the Board’s
decision to discount a medical opinion merely because the
opining physician did not review Mr. Gardin’s medical
service records. Because the Veterans Court approved an
erroneous legal analysis, we vacate and remand.
BACKGROUND
Mr. Gardin served on active duty in the United States
Air Force from August 1959 to August 1963. When Mr.
Gardin enlisted in the Air Force, he reported no family
history of diabetes and made no complaints of symptoms
related to diabetes. Mr. Gardin sought medical care,
however, several times during his service for various
conditions. The service records from Mr. Gardin’s medical
visits indicate symptoms that could be associated with
diabetes. For example, on September 8, 1961, one physi-
cian who treated Mr. Gardin noted that he had “concen-
trated urine.” J.A. 240 (emphasis in original). On August
Page 3
GARDIN v. DVA
3
14, 1962, when Mr. Gardin was treated for tension head-
aches, the physician noted that he “has fine macules on
dorsum of hands.” J.A. 222. Both symptoms of concen-
trated urine and fine macules may indicate diabetes.
When Mr. Gardin underwent his discharge examina-
tion on July 16, 1963, however, he reported no common
symptoms of diabetes, such as dizziness, fainting spells,
eye trouble, sugar or albumin in his urine, or recent
weight gain or weight loss. Mr. Gardin also indicated
that he had never worn glasses, another common symp-
tom of diabetes.
After Mr. Gardin’s honorable discharge, his medical
records show that he was diagnosed with diabetes. Mr.
Gardin’s first documented diagnosis occurred in August
1971 when he was hospitalized “with complaints of mal-
aise, weight loss[,] and increased dietary intake.” J.A.
212 (alteration added). While Mr. Gardin was hospital-
ized, he stated that he had no family history of diabetes
and that he had only been hospitalized previously for
pneumonia. The treating physician, however, diagnosed
Mr. Gardin with diabetes and recommended that he take
insulin. Mr. Gardin declined the insulin treatment and
chose instead to follow a restricted diet. Mr. Gardin’s
restricted diet did not prove effective. In December 1977,
he was again hospitalized due to uncontrolled diabetes.
After this hospitalization, Mr. Gardin’s medical records
indicate for the first time that he started taking insulin.
In March 1994, Mr. Gardin filed a claim for disability
compensation for his diabetes. The Regional Office (“RO”)
denied the claim on June 22, 1994, because Mr. Gardin’s
service records did not indicate any in-service treatment
for diabetes and his first diagnosis of diabetes did not
occur until more than one year after his discharge. Mr.
Gardin filed a Notice of Disagreement (“NOD”) on July 7,
Page 4
GARDIN v. DVA
4
1994, and a Statement of the Case issued on August 3,
1994, sustaining the RO’s initial denial of the claim. Mr.
Gardin appealed to the Board, which denied his claim in
August 1998 because he failed to establish a nexus be-
tween his military service and his diabetes.
In April 2003, Mr. Gardin applied to reopen his claim.
In conjunction with his application, Mr. Gardin submitted
new evidence to establish a nexus between his military
service and his diabetes. This new evidence consisted of
lay testimony from family and friends who stated that Mr.
Gardin had diabetes around the time of his discharge
from military service and medical reports from three
physicians recounting Mr. Gardin’s history with the
disease. The RO again denied his claim and Mr. Gardin
filed another NOD. A Statement of the Case issued on
July 29, 2004, sustaining the RO’s initial decision.
Mr. Gardin then appealed to the Board, which denied
his claim on January 9, 2006. Following the Board’s
decision, Mr. Gardin appealed to the Veterans Court, and
both he and the Secretary of Veterans Affairs (the “Secre-
tary”) requested that the Veterans Court remand the case
back to the Board because the Board failed, inter alia, to
provide an adequate discussion of its reasons for rejecting
Mr. Gardin’s new evidence of a nexus between his mili-
tary service and his diabetes. The Veterans Court
granted the motion.
On remand, the Board again denied Mr. Gardin’s
claim but provided a more detailed analysis. First, the
Board found Mr. Gardin’s statements and those state-
ments from his family and friends not credible “because
they are in direct contradiction to the medical evidence.”
J.A. 215. Specifically, the lay statements contended that
Mr. Gardin used insulin during his military service, yet
Mr. Gardin’s December 1977 medical records note that it
Page 5
GARDIN v. DVA
5
was not until 1977 that he began using insulin. The
Board also indicated that Mr. Gardin’s own testimony
regarding the onset of his diabetes was contradictory.
Given these inconsistencies, the Board held the lay evi-
dence was “too vague and inconsistent with the clearly-
documented medical evidence to be deemed more credible,
competent or reliable than the medical evidence.” J.A.
216.
Next, the Board addressed the three physicians’ re-
ports. In Dr. Montgomery’s report, he stated that Mr.
Gardin had a forty-year history of diabetes. The Board
noted, however, that in an earlier report, Dr. Montgomery
stated that Mr. Gardin’s diabetes began in the 1970s.
Accordingly, the Board discredited Dr. Montgomery’s later
statement as conflicting with his earlier records and other
objective medical evidence from the record.
As for the remaining physicians, Dr. Michael Kelber-
man and Dr. Andrew Sexton, the Board found Dr. Kel-
berman’s report not credible because his diagnosis was
based entirely on Mr. Gardin’s statements, which the
Board had already concluded were unreliable. As for Dr.
Sexton, the Board found his report not credible because
“[t]he report does not suggest that actual service medical
records were reviewed in determining that diabetes was
present during service.” J.A. 214.
Mr. Gardin subsequently appealed to the Veterans
Court. The Veterans Court affirmed the Board’s decision.
According to the Veterans Court, Mr. Gardin failed to
demonstrate that the Board’s credibility determinations
were clearly erroneous. Gardin, 2009 WL 1006160, at *1.
The Veterans Court explained that the Board found
“Mr. Gardin’s own statements regarding the onset of his
diabetes were not credible because they were inconsistent
over time.” Id. The Veterans Court further explained
Page 6
GARDIN v. DVA
6
that the Board discounted “the lay testimony of Mr.
Gardin’s friends and family because they were based on
his statements, were vague, and were not consistent with
the evidence as a whole.” Id.
As for the medical evidence, the Veterans Court noted
three bases on which the Board discredited the evidence.
First, the Board discounted Dr. Montgomery’s opinion
“because it was inconsistent with the medical examiner’s
own prior statements.” Id. Second, the Board discounted
Dr. Sexton’s report because he “did not review the claims
file when reaching his determination that Mr. Gardin had
had diabetes during service.” Id. Third, the Board dis-
counted Dr. Kelberman’s report because it was “either
based on Mr. Gardin’s statements or [was] inconsistent
with the evidence as a whole.” Id. (alteration added). The
Veterans Court then held that these bases for rejecting
Mr. Gardin’s lay and medical evidence were sufficient and
deferred to the Board’s role as the finder-of-fact. Id. Mr.
Gardin appeals the Veterans Court’s decision.
DISCUSSION
We have jurisdiction to review decisions of the Veter-
ans Court “with respect to the validity of a decision of the
Court on a rule of law or of any statute or regulation . . .
or any interpretation thereof (other than a determination
as to a factual matter) that was relied on by the Court in
making the decision.” 38 U.S.C. ง 7292(a) (2006). In such
instances, we afford the Veterans Court’s legal determi-
nations no deference. See Szemraj v. Principi, 357 F.3d
1370, 1372 (Fed. Cir. 2004). However, except for constitu-
tional issues, we may not review any “challenge to a
factual determination” or any “challenge to a law or
regulation as applied to the facts of a particular case.”
38 U.S.C. ง 7292(d)(2).
Page 7
GARDIN v. DVA
7
Mr. Gardin invokes our jurisdiction by raising two
questions of law. First, he argues that the Veterans
Court “improperly created a new rule of law that permits
the Board to reject medical evidence solely on the as-
sumption that the physician did not review the veteran’s
service medical records.” Appellant Br. 22. Second, he
argues that the Veterans Court erroneously interpreted
38 U.S.C. งง 1154(a), 5107(b) and 38 C.F.R. งง 3.159(a)(2),
3.303(a), 3.307(b) to require contemporaneous medical
evidence before considering lay evidence credible. Both
arguments are strictly legal, do not depend upon the
application of facts to law, and refer to specific portions of
the Veterans Court’s opinion that implicitly interpret 38
U.S.C. ง 1154(a) and other statutes. “Because this appeal
presents purely legal questions . . . [,] we have jurisdiction
pursuant to 38 U.S.C. ง 7292(a).” Prillaman v. Principi,
346 F.3d 1362, 1364 (Fed. Cir. 2003).
We address first Mr. Gardin’s argument that the Vet-
erans Court created a new rule of law that permits the
Board to discount medical evidence solely because the
physician providing the medical evidence did not review
the veteran’s service medical records. The Veterans Court
approvingly noted that the Board discounted Dr. Sexton’s
medical report because he “did not review the claims file
when reaching his determination that Mr. Gardin had
had diabetes during service.” Gardin, 2009 WL 1006160,
at *1. The Veterans Court’s analysis is contrary to law
and statute.
Congress expressly permits veterans seeking service-
connected disability benefits to submit reports from
private physicians:
For purposes of establishing any claim for benefits
. . . , a report of a medical examination adminis-
tered by a private physician . . . may be accepted

Page 8
GARDIN v. DVA
8
without a requirement for confirmation by an ex-
amination by a physician employed by the Veter-
ans Health Administration if the report is
sufficiently complete to be adequate for the pur-
pose of adjudicating such claim.
38 U.S.C. ง 5125.
In addition, the Secretary has defined
“competent medical evidence” to mean, among other
things, “evidence provided by a person who is qualified
through education, training, or experience to offer medical
diagnoses, statements, or opinions.” 38 C.F.R. ง
3.159(a)(1) (2009). Accordingly, neither the statute nor
the regulation requires that a private physician review
the veteran’s medical service record before his or her
opinion may qualify as competent medical evidence.
The Veterans Court’s own precedent similarly prohib-
its discounting a private physician’s report simply be-
cause the opining physician did not review the veteran’s
medical service record. In Nieves-Rodriguez v. Peake, the
Veterans Court explicitly held that “a private medical
opinion may not be discounted solely because the opining
physician did not review the claims file.” 22 Vet. App.
295, 304 (2008). The Veterans Court noted that a review
of the veteran’s service medical records may have “signifi-
cance to the process of formulating a medically valid and
well-reasoned opinion,” but refused to adopt a categorical
rule excluding all private medical reports that did not
include a review of the veteran’s service medical records.
Id. In this case, the Board discounted Dr. Sexton’s report
simply because there was no evidence that he reviewed
Mr. Gardin’s service medical records. The Veterans
Court’s approval of the Board’s analysis is contrary to its
decision in Nieves-Rodriguez.
On appeal, the Secretary argues that Mr. Gardin mis-
reads the Board’s and Veterans Court’s decisions. Accord-
Page 9
GARDIN v. DVA
9
ing to the Secretary, the Board discounted Dr. Sexton’s
opinion because it relied solely on Mr. Gardin’s state-
ments, which the Board found unreliable. While the
Board did note that Dr. Sexton had not reviewed the
medical service records, the Secretary argues it did so
only to support its conclusion that Dr. Sexton relied solely
on Mr. Gardin’s statements. The Secretary further con-
tends that this distinction was recognized by the Veterans
Court and its decision to affirm the Board’s analysis
rested upon the distinction. We disagree.
The Veterans Court expressly stated that Dr. Sexton’s
opinion was discounted because he “did not review the
claims file when reaching his determination that
Mr. Gardin had had diabetes during service.” Gardin,
2009 WL 1006160, at *1. The Veterans Court discounted
other medical reports because they were “based on
Mr. Gardin’s statements or were inconsistent with the
evidence as a whole,” but it never faulted Dr. Sexton’s
report for relying on Mr. Gardin’s statements. Id.
An objective reading of the Veteran Court’s opinion
reveals that, contrary to law and statute, the Veterans
Court discounted Dr. Sexton’s opinion merely because
there was no evidence that he reviewed Mr. Gardin’s
medical service record. See Gardin, 2009 WL 1006160, at
*1. The Veterans Court engaged in no “further discussion
or analysis of [Dr. Sexton’s] opinion” and did not “ex-
plain[] why a review of the claims file was necessary.”
Nieves-Rodriguez, 22 Vet. App. at 305 (alterations added).
Such a per se rule of law is contrary to 38 U.S.C. ง 5125,
38 C.F.R. ง 3.159(a)(1), and the Veterans Court’s own
precedent in Nieves-Rodriguez. Therefore, the Veterans
Court committed legal error by discounting Dr. Sexton’s
opinion merely because there was no evidence that he
reviewed Mr. Gardin’s medical service record.
Page 10
GARDIN v. DVA
10
We next address Mr. Gardin’s argument that the Vet-
erans Court erroneously interpreted 38 U.S.C. งง 1154(a),
5107(b) and 38 C.F.R. งง 3.159(a)(2), 3.303(a), 3.307(b) to
require contemporaneous medical evidence before consid-
ering lay evidence credible. The Veterans Court approved
the Board’s decision to discount Mr. Gardin’s lay evidence
because “they were based on [Mr. Gardin’s] statements,
were vague, and were not consistent with the evidence as
a whole.” Gardin, 2009 WL 1006160, at *1. The Veterans
Court correctly affirmed the Board’s decision regarding
this issue.
Congress requires the Secretary to promulgate “provi-
sions in effect requiring that in each case where a veteran
is seeking service-connection for any disability due con-
sideration shall be given to . . . all pertinent medical and
lay evidence.” 38 U.S.C. ง 1154(a). Moreover, Congress
has instructed that “[t]he Secretary shall consider all
information and lay and medical evidence of record in a
case before the Secretary with respect to benefits under
laws administered by the Secretary.” Id. ง 5107(b).
Pursuant to this authority, the Secretary has issued
regulations governing lay and medical evidence. Under
38 C.F.R. ง 3.307(b), “[t]he factual basis [for establishing a
chronic disease] may be established by medical evidence,
competent lay evidence or both. . . . Lay evidence should
describe the material and relevant facts as to the vet-
eran’s disability observed within such period, not merely
conclusions based upon opinion.” Moreover, each dis-
abling condition for which a veteran seeks service connec-
tion “must be considered on the basis of . . . all pertinent
medical and lay evidence.” Id. ง 3.303(a); see also id. ง
3.159(a)(2) (“Lay evidence is competent if it is provided by
a person who has knowledge of facts or circumstances and
conveys matters that can be observed and described by a
lay person.”).
Page 11
GARDIN v. DVA
11
This court has interpreted the above statutes and
regulations to mean that “[l]ay evidence can be competent
and sufficient to establish a diagnosis of a condition when
(1) a layperson is competent to identify the medical condi-
tion, (2) the layperson is reporting a contemporaneous
medical diagnosis, or (3) lay testimony describing symp-
toms at the time supports a later diagnosis by a medical
professional.” Jandreau v. Nicholson, 492 F.3d 1372,
1377 (Fed. Cir. 2007). In short, Mr. Gardin is correct that
the Board may not require contemporaneous medical
evidence as a prerequisite to considering lay evidence
credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1336
(Fed. Cir. 2006) (“[T]he Board improperly determined that
the lay statements lacked credibility merely because they
were not corroborated by contemporaneous medical
records.”). Nevertheless, “the Board, as a fact finder, is
obligated to, and fully justified in, determining whether
lay evidence is credible in and of itself, i.e., because of
possible bias, conflicting statements, etc.” Id. at 1337.
Here, the Board did not require contemporaneous
medical evidence as a prerequisite to considering Mr.
Gardin’s lay evidence credible. Rather, the Board found
the lay statements not credible “because they are in direct
contradiction to the medical evidence.” J.A. 215. The
Board opined that “[t]he statements from [Mr. Gardin’s]
friends and family are too vague and inconsistent with
the clearly-documented medical evidence to be deemed
more credible, competent[,] or reliable than the medical
evidence.” J.A. 216 (alterations added). In turn, the
Veterans Court simply reiterated the Board’s basis for
discrediting the lay testimony from Mr. Gardin’s friends
and family. Specifically, the Veterans Court explained
that the Board discounted “the lay testimony of Mr.
Gardin’s friends and family because they were based on
his statements, were vague, and were not consistent with
Page 12
GARDIN v. DVA
12
the evidence as a whole.” Gardin, 2009 WL 1006160, at
*1.
Neither the Board nor the Veterans Court required
contemporaneous medical evidence as a prerequisite to
considering Mr. Gardin’s lay evidence credible. Instead,
they acted within their proper roles. The Board, as fact-
finder, had the obligation to determine whether Mr.
Gardin’s lay evidence was credible; the Board concluded it
was not. The Veterans Court then reviewed this fact-
finding and found it was not clearly erroneous. Id. At no
point did either body interpret 38 U.S.C. ง 1154(a) or any
other related statutes and regulations to require contem-
poraneous medical evidence as a prerequisite to consider-
ing lay evidence credible. Whether the Veterans Court
was correct in affirming the Board’s credibility determina-
tion is a question of fact beyond this court’s jurisdiction.
See 38 U.S.C. ง 7292(d)(2). Accordingly, we conclude that
the Veterans Court did not commit legal error when it
affirmed the Board’s determination that Mr. Gardin’s lay
evidence was not credible.
CONCLUSION
For the foregoing reasons, we vacate the judgment of
the Veterans Court and remand to the Veterans Court for
further proceedings consistent with this opinion.
VACATED and REMANDED

Advertisements

Leave a Comment »

No comments yet.

RSS feed for comments on this post. TrackBack URI

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Create a free website or blog at WordPress.com.

%d bloggers like this: