Veteranclaims’s Blog

November 10, 2011

Single Judge Application, FED. R. EVID. 803(4), Statements Made to Physicians are Exceptionally Trustworthy

Filed under: Uncategorized — veteranclaims @ 2:24 pm

Excerpt from decision below:
“The submitted lay statements are also inconsistent with the numerous postservice treatment reports, cited above, for treatment provided both prior to and after the appellant’s initial claim for VA benefits, in which the appellant states that his headaches began in August 1980, 12 years after the appellant left active duty service. See FED. R. EVID. 803(4) (noting that statements made to physicians for the purposes of diagnosis and treatment are exceptionally trustworthy and not excluded by the hearsay rule because the declarant has a strong motive to tell the truth in order to receive proper care).”
=======================================
—————————————————-

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-1242
DANNY R. KEATON, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before LANCE, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.

LANCE, Judge: The pro se appellant, Danny R. Keaton, appeals a December 29, 2009, Board of Veterans’ Appeals (Board) decision that denied his claims for entitlement to service connection for memory loss, headaches, and a depressive disorder (claimed as nerves). Record (R.) at 3-14. Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). This appeal is timely, and the Court has jurisdiction over the case pursuant to 38 U.S.C. §§ 7252(a) and 7266. For the reasons that follow, the Court will vacate the December 29, 2009, decision as to the appellant’s claim for entitlement to service connection
for a depressive disorder
and remand that matter for further proceedings consistent with this
decision. The decision will
otherwise be affirmed.
I. FACTS
The appellant served in the U.S. Army from April 1966 to April 1968. R. at
589. His service
included duty overseas, R. at 606, and he was awarded the National Defense
Service Medal. R. at
589.
The appellant’s entrance examination did not reflect any complaints or
diagnoses of memory
loss, headaches, or depression. R. at 1068-71. Although they are not
available in the record before

the Court, the appellant’s service medical records (SMRs) apparently do
not reflect any treatment
for those conditions. Secretary’s Brief (Br.) at 2. The appellant’s April
1968 separation examination
likewise does not indicate symptoms of, or treatment for, memory loss,
headaches, or depression,
and specifically denies any history of headaches, memory loss, periods of
unconsciousness, or
nervous disorders. R. at 1087-90.
According to the record before the Court, the appellant first sought
treatment for his
headaches in August 1980, 12 years after service. R. at 70. For over 20
years he consistently
reported that these symptoms started in 1980 and that he had no prior
history of headaches. R. at
86, 124, 129, 328, 443, 457, 468, 967-80, 1020. In March 1985, the
appellant received a VA
examinationfornon-service-connectedpensionbenefitpurposes,
duringwhichtheappellantclaimed
that he was first treated for his nerves while stationed in Korea, but
that his headaches did not begin
until 1980. R. at 949-50. At that time, he successfully completed tests of
memory function. R. at
950. The VA examiner diagnosed a somatization disorder1
with depression and a mixed character
disorder with histrionic features. Id.
In July 2003, the appellant filed a claim for entitlement to service
connection for severe
headaches, memory loss, and a nervous condition. R. at 821. The appellant
stated that while
stationed in Korea he had been treated for “severe headaches” that led to
unconsciousness. Id. He
also asserted that he had been hospitalized for his nerves immediately
after discharge. Id.
In March 2004, the appellant received a VA neurological examination,
during which he
claimed his headaches started in the 1980s, R. at 763-65, and a VA
psychological examination,
during which he reported that his headaches started in service. R. at 759-
62. The VA neurological
examiner determined that his neurological examination was “unremarkable,”
R. at 764, and
diagnosed chronic migraine headaches, a generalized anxiety disorder, and
depression. R. at 765.
The neurological examiner did not review the claims file or the
appellant’s medical record, R. at 763,
and did not offer an opinion on whether the appellant’s conditions were
connected to service. The
VA psychological examiner focused largely on evaluating the appellant for
post-traumatic stress
disorder and ultimately diagnosed a depressive disorder, secondary to the
appellant’s physical
“[T]he conversion of mental experiences or states into bodily symptoms.”
DORLAND’SILLUSTRATEDMEDICAL
DICTIONARY 1734 (32d ed. 2012).
1
2

ailments and not connected to service, and chronic pain. R. at 762.
Remote memory was
determined to be intact and short-term recall fair. R. at 761. The
psychological examiner stated that
“the veteran does not have any psychiatric diagnoses related to or
incurred in active duty service,”
R. at 762, and attributed the appellant’s difficulties to his chronic pain
condition. R. at 761. The
appellant’s claims file was not available to the VA psychological examiner,
but the records provided
by the appellant were. R. at 759.
The regional office (RO) considered the appellant’s lay statements,
additional lay statements
submitted on the appellant’s behalf, SMRs, and postservice treatment
records, but denied the
appellant’s claims in August 2004. R. at 755-58.
The appellant continued to seek treatment for his conditions and received
several additional
diagnoses over the course of his treatment for headaches, including
tension headaches, R. at 71, 103,
338; a personality disorder, R. at 97, 450, 950; a somatization disorder,2
R. at 97, 331, 333, 439, 444,
969, 972, 974, 976, 980; a dysthymic disorder, R. at 331, 333, 444, 450,
972, 1020; depression, R.
at 333, 439, 976, 980; an anxiety disorder, R. at 450; schizophrenia, R.
at 460; and migraine
headaches, R. at 747, 765.
In an additional statement in support of claim, and in his appeal to the
Board, the appellant
stated that he was hospitalized in a coma-like state while stationed in
Korea. R. at 722, 745. At the
Board hearing in June 2006, the appellant asserted that his memory loss
and headaches were the
result of an explosion while in Korea. R. at 683-84. The appellant’s
sister stated that she had
contacted a Mr. Stiffler, who allegedly confirmed that an explosion had
taken place, and that Mr.
Stiffler had also required hospitalization. R. at 684. Following the
hearing, the appellant submitted
a July 2006 buddy statement from Edward Stiffler, who stated that he
visited the appellant in the
hospital in Korea while the appellant was unconscious. R. at 679. Mr.
Stiffler said that soon after
he was hospitalized unconscious himself with the “same illness.” Id.
As a result of this additional information, in December 2006, the Board
remanded the
appellant’s claims for further development. R. at 574-77. The RO was
instructed to conduct an
exhaustive records search for the appellant’s alleged in-service
hospitalization, obtain additional
2
In 1985 the appellant began receiving Social Security disability benefits
retroactive to April of 1982 on the
basis of the many separate examinations diagnosing somatization disorder
severe enough to prohibit employment. R.
at 326.
3

private treatment records, and obtain medical records pertaining to the
appellant’s award of Social
Security disability benefits. R. at 576. In response to the records
requests, VA received some
additional private treatment records, the appellant’s Social Security
Administration records, and the
appellant’s personnel records from the National Personnel Records Center (
NPRC). R. at 51, 65-66.
The personnel records did not reflect “any disabilities or injuries during
service or that caused [the
appellant’s] discharge from service.” R. at 66. The December 2009 Board
decision upheld the
denial of the appellant’s claims for entitlement to service connection,
finding that there was no
diagnosis of memory loss and no nexus to service for the appellant’s
headaches or depression. R.
at 3-14. This appeal followed.
II. ANALYSIS
Establishing service connection generally requires medical evidence or, in
certain
circumstances, lay evidence of (1) a current disability; (2) 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 Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009);
Jandreau v. Nicholson,
492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Hickson v. West, 12 Vet.App. 247,
253 (1999); Caluza v.
Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir.
1996) (table); 38 C.F.R.
§ 3.303 (2011).
Service connection may also be established by showing continuity of
symptomatology,
which requires a claimant to demonstrate (1) that a condition was “noted”
during service; (2)
evidence of postservice continuity of the same symptomatology; and (3)
medical or, in certain
circumstances, lay evidence of a nexus between the present disability and
the postservice
symptomatology. 38 C.F.R. § 3.303(b); see Barr v. Nicholson, 21 Vet.App.
303, 307 (2007); see
also Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1377 (whether lay
evidence is competent
and sufficient in a particular case is a factual issue to be addressed by
the Board). A finding of
service connection is a factual determination by the Board that the Court
reviews under the “clearly
erroneous” standard. See 38 U.S.C. § 7261(a)(4); Rose v. West, 11 Vet.App.
169, 171 (1998). “A
factual finding ‘is “clearly erroneous” when . . . the reviewing court
. . . 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)). The
Court may not
4

substitute its judgment for the factual determinations of the Board on
issues of material fact merely
because the Court would have decided those issues differently in the first
instance. Id.
A. Memory Loss
The Board determined that the appellant does not have a current disability
of memory loss.
R. at 11. The Board noted that the appellant’s SMRs do not reflect a
diagnosis of, or treatment for,
memory loss and that VA examinations in 1985 and 2004 demonstrated that
the appellant does not
suffer from memory loss, a condition that can be objectively measured. Id.
The Board did consider
the appellant’s lay statements that he suffers from memory loss, but found
them to be outweighed
by other evidence in the record. Id. As the Court holds that the Board’s
decision is not clearly
erroneous, the Court will affirm the Board’s decision regarding the
appellant’s claim for entitlement
to service connection for memory loss. See Mayfield v. Nicholson, 19 Vet.
App. 103, 111 (2005)
(noting that “every appellant must carry the general burden of persuasion
regarding contentions of
error”); Coker v. Nicholson, 19 Vet.App. 439, 442 (2006), rev’d on other
grounds sub nom. Coker
v. Peake, 310 F. App’x 371 (Fed. Cir. 2008) (stating that an appellant
must “plead with some
particularity the allegation of error so that the Court is able to review
and assess the validity of the
appellant’s arguments”);Hilkertv.West,12Vet.App.145,151(1999)(enbanc)(”
Anappellantbears
the burden of persuasion on appeals to this Court.”).
B. Headaches
The Board did not dispute that the appellant “currently has chronic
headaches. . . .” R. at 11.
However,theBoarddeterminedthat there was no evidence that the appellant’s
headaches manifested
during service or that there was any continuity of symptomatology linking
the headaches to service.
Id. In his informal brief, the appellant asserts that the Board erred by
failing to consider medical
records from Indian Path Hospital and Mountain Home VA Medical Center (
VAMC) and that, in
the absence of medical records confirming his alleged hospitalization in
Korea, he is entitled to
service connection under the “benefit of the doubt” doctrine. Appellant’s
Br. at 3.
The Secretary correctly notes that the Board did discuss the appellant’s
August 1980 to
January 1981 treatment reports from Mountain Home VAMC, as well as the
available records from
Indian Path Hospital, covering a hospitalization from July to August 1983.
Secretary’s Br. at 9-10,
citing R. at 7-8. Therefore, the appellant’s first argument is without
merit as its factual basis is
5

contradicted by the record. See Cromer v. Nicholson, 19 Vet.App. 215, 219 (
2005) (holding that an
argument with an inaccurate factual predicate need not be addressed
further).
The Secretary also points out that the “benefit of the doubt” doctrine
only applies when the
evidence is in equipoise. Secretary’s Br. at 10. As discussed below, the
Board found that the
preponderance of the evidence was against the appellant’s claim. R. at 14.
Therefore, the “benefit
of the doubt” rule was not applicable to the appellant’s lay statements.
See Ortiz v. Principi,
274 F.3d 1361, 1364 (Fed. Cir. 2001).
In response to the appellant’s assertion that he was hospitalized while on
active duty in
Korea, VA requested “an exhaustive search for the appellant’s alleged
treatment at the base hospital
at Camp Intercept in Inchon, Korea, in 1967 . . . encompass[ing] all
alternate sources of information,
including . . . base hospital records and unit diaries.” R. at 578 (
capitalization omitted). The
military provided the appellant’s personnel file, but indicated that the
search for hospital records was
negative. Id.
The Board may not reject the appellant’s lay statements that he was
hospitalized while in
service solely because they are not corroborated by contemporaneous
medical records. Buchanan
v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of
contemporaneous medical records does
not, in and of itself, render lay evidence not credible); see also KahanaNext Document
v. Shinseki, 24 Vet.App. 428,
438 (2011) (Lance, J., concurring) (discussing the distinction between
cases in which there is a
complete absence of any evidence to corroborate or contradict the
testimony, and cases in which
there is evidence that is relevant either because it speaks directly to
the issue or allows the Board
as factfinder to draw a reasonable inference). However, the Board is
required to assess the
credibility and probative weight of all relevant evidence. McClain v.
Nicholson, 21 Vet.App. 319,
325 (2007). In doing so, the Board may consider factors such as facial
plausibility, bias, self-
interest, and consistency with other evidence of records. Caluza, 7 Vet.
App. at 511; see Buchanan,
supra; Jandreau, 492 F.3d at 1376 (“[T]he Board retains discretion to make
credibility
determinations and otherwise weigh the evidence submitted[.]”).
Here, the Board did consider the appellant’s lay statements, and those
submitted by others
on his behalf, but, as discussed above, the statements provided
conflicting reports of the in-service
incident the appellant alleges led to his present condition, including an
explosion; a serious illness
that affected the appellant before affecting others in his unit; and
headaches affecting only the
6

appellant, which resulted in the appellant’s loss of consciousness. The
submitted lay statements are
also inconsistent with the numerous postservice treatment reports, cited
above, for treatment
provided both prior to and after the appellant’s initial claim for VA
benefits, in which the appellant
states that his headaches began in August 1980, 12 years after the
appellant left active duty service.
See FED. R. EVID. 803(4) (noting that statements made to physicians for
the purposes of diagnosis
and treatment are exceptionally trustworthy and not excluded by the
hearsay rule because the
declarant has a strong motive to tell the truth in order to receive proper
care).
The Board weighed the available evidence and determined that the
appellant’s statements
during 20 years of receiving medical care for headaches that the headaches
began in 1980, and thus
did not have a nexus to the appellant’s military service, were more
credible than the submitted lay
statements alleging that the headaches began while the appellant was in
service. R. at 13. The
Board likewise found that the evidence weighed against a finding that the
appellant was hospitalized
in Korea. Id. These findings are supported by the record, and thus the
Board’s weighing of the
evidence is not clearly erroneous. Therefore, the Court will affirm the
Board’s decision regarding
the appellant’s entitlement to service connection for headaches.
C. Depression
The Secretary concedes that the claim for entitlement to service
connection for a depressive
disordershouldberemandedbecausetheBoard’snexusdiscussion lacked adequate
reasons or bases.
Secretary’s Br. at 11.
The Board found that the appellant had a current diagnosis of depression,
but denied service
connection due to a lack of evidence indicating a nexus with service. R.
at 11-12. However, the
Board relied on a March 2004 VA examiner’s report opining that the
appellant’s depression was not
related to service. R. at 12, 762. The Board gave greater weight to this
opinion than to the private
opinions in the record because the VA report “was based on an independent
and thorough review
of [the appellant’s] entire medical history.” R. at 12. However, as noted
by the Secretary, the VA
report indicates that the examiner did not have access to the appellant’s
claim’s file. R. at 762.
Therefore, the Board’s statement of reasons or bases is inadequate and the
matter should be
remanded. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517,
527 (1995); Gilbert v.
Derwinski, 1 Vet.App. 49, 56-57 (1990).
7

III. CONCLUSION
After consideration of the appellant’s and the Secretary’s briefs, and a review of the record, the Board’s December 29, 2009, decision is VACATED as to the appellant’s claim for entitlement to service connection for a depressive disorder and that matter is REMANDED to the Board for further proceedings consistent with this decision. The Board decision is otherwise AFFIRMED.
DATED: November 8, 2011
Copies to:
Danny R. Keaton
VA General Counsel (027)
8

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: