Veteranclaims’s Blog

December 24, 2011

Single Judge Application, Treatment Records More Probative Than Compensation Records, Harvey v. Brown, 6 Vet.App. 390, 394 (1994); Probative Value of Conflicting Medical Opinions

Filed under: Uncategorized — veteranclaims @ 12:17 pm

Excerpt from decision below:
In reaching its credibility determination, the Board found that the appellant’s prior statements, which were made for treatment purposes, outweighed his more recent contentions regarding an in-service onset and continuous postservice symptoms, which were made for disability compensation purposes. R. at 11-13 (citing Harvey v. Brown, 6 Vet.App. 390, 394 (1994) (Board decision properly assigned more probative value to a private hospital record that included lay history that was made for treatment purposes than to subsequent statements made for compensation purposes)).
Thus, the Board heavily relied on the appellant’s reported history in a 1979 treatment note that his hallucinations began in 1978 (R. at 593-94) and the absence of any treatment records that reported a history of symptoms in service (R. at 11-12) to find his recent assertions of an in-service
onset not credible. However, in finding the appellant not credible on this basis, the Board failed to account for a December 1984 treatment note in which the appellant reported that he “first” experienced psychiatric problems in
7

1971 while he was in the military. R. at 666-68. The Secretary attempts
to downplay the significance of this evidence because the report does not state that the appellant experienced “hallucinations” in service. Secretary’s Br. at 9-10. However, it is the Board’s duty to analyze the credibility and probative value of the evidence and, as noted above, this duty is heightened in cases such as this where the appellant’s service treatment records are
unavailable. See Washington supra; see also R. at 6. Here, the Board found the appellant not credible, in part, because no postservice treatment reports included a history of “symptoms in service.” R. at 11; see also R. at 13. This is clearly contrary to the December 1984 treatment note, which noted ”
psychiatric problems . . . in the military.” R. at 666. On remand, the Board must account for this evidence and explain its probative worth when it assesses the appellant’s credibility regarding the onset his psychiatric symptoms. See Washington, Allday, and Caluza, all supra. Additionally, because the Board relied on the appellant’s report of a postservice onset in 1978 to find his assertion of treatment soon after service not credible, on remand the Board may need to examine whether its analysis regarding the onset of symptoms impacts its finding that the appellant was not credible when he reported that he sought treatment shortly after service and that the records are no longer available because of the physician’s death. See R. at 13-14.
2. Probative Value of Conflicting Medical Opinions
The appellant argues that it was improper for the Board to discount Dr.
Smith’s favorable medical opinion because it was based on an “inaccurate history” reported by the appellant, yet find the VA examiner’s opinion probative, when both examiners reviewed the same history and the same record, but drew different conclusions. Appellant’s Br. at 9-10. The Secretary argues, contrary to the appellant’s assertions, that the Board acknowledged that the appellant provided an “incorrect history” to the VA examiner. Secretary’s Br. at 11. In support of this assertion, the Secretary relies on the following analysis:
The history given by the [v]eteran in 1979 dates the onset of symptoms to
1978, still over five years after service separation. . . . This more contemporaneous history given by the [v]eteran in 1979 for treatment purposes contradicts the [v]eteran’s later contentions in October 2007 hearing testimony and at the June 2008 VA examination,which were made for VA disability compensation purposes, that he had had auditory hallucinations or other psychotic symptoms since service. R. at 12 (emphasis added); see Secretary’s Br. at 12.
8

The appellant persuasively argues in his reply brief that the Secretary’s
position is untenable, that is, if the VA examiner also relied on an inaccurate history, as conceded by the Secretary, then the Board must explain why the inaccurate factual history impugns the bases for Dr. Smith’s opinion but does not diminish the probative worth of the VA examiner’s opinion.Reply Br. at 4-5.
The Court agrees. It is true that “[a]n opinion based upon an inaccurate factual premise has no probative value.” Reonal v. Brown, 4 Vet.App. 458, 461 (1993). The problem with the Board’s analysis is that it failed to consistently apply this rule when it evaluated the conflicting medical opinions of record.
That is, although the Board found the appellant’s recent contentions
regarding the onset and continuity of psychiatric symptoms not credible, and relied on this credibility determination to render Dr. Smith’s opinion worthy of little probative value, the Board failed to similarly discuss how its
credibility determination impacted its assessment of the VA examiner’s
opinion, which was based on the same factual premise.
Additionally, the Board failed to explain why the VA examiner’s opinion
was “more probative” given the examiner’s reliance on the appellant’s statement that he had hallucinations prior to military service, which contradicts the Board’s reliance on the appellant’s reported history of a postservice onset in 1978. For this reason, the appellant argues that the Board erred when it relied on the VA examiner’s “incomplete” opinion, which assumed a preservice onset. Appellant’s Br. at
10-11. The Secretary argues that the appellant’s report of a history to
the VA examiner that was different than the history provided in other medical reports does not result in error by the examiner in taking the history and including it in the examination report. Secretary’s Br. at 12. Although it
may have been proper for the examiner to record the appellant’s history of
having had hallucinations prior to service, as noted above, the Board should have explained its reasons for finding the VA examiner’s opinion “more probative” when it was clearly based on a history that was rejected by the Board.1 See R. at 105 (“While the day-to-day stress of military service may have exacerbated the

1. The Board’s reasons for finding the opinion probative are unclear because,
in stating that it was relying on the opinion, the Board acknowledged that the examiner considered whether the stress in the military aggravated the appellant’s preexisting psychotic symptoms (R. at 14), yet the Board proceeded to find that the appellant was not credible because postservice treatment records indicated that his symptoms began in 1978.
9

veteran’s pre-existing psychotic symptoms, there is no clear evidence
that [] his military service has served as a long-term aggravating factor.” (emphasis added)).
The Court also agrees with the appellant that the Board failed to provide
an adequate statement of reasons or bases for assigning less probative weight to Dr. Smith’s opinion because he “failed to discuss” the appellant’s service separation notation that his nervousness was treated and improved. Appellant’s Br. at 8-9; Reply Br. at 2-3.”

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-4329
RONNY D. HAGEWOOD, 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: The appellant, Ronny D. Hagewood, appeals through counsel
a
November 10, 2009, Board of Veterans’ Appeals (Board) decision that denied
disability
compensation benefits for a psychiatric disorder, to include depression
and schizophrenia. Record
of Proceedings (R.) at 3-20. The Board also dismissed the appellant’s
claim for disability
compensation benefits for a thoracolumbar spine disorder (R. at 8-9),
which the appellant has not
pursued on appeal. See Appellant’s Brief (Br.) at 1. This appeal is timely,
and the Court has
jurisdiction over the case pursuant to 38 U.S.C. §§ 7252(a) and 7266(a).
Both parties filed briefs,
and the appellant filed a reply brief. Single-judge disposition is
appropriate. See Frankel v.
Derwinski, 1 Vet.App. 23, 25-26 (1990). Because the Board failed to
provide an adequate statement
of reasons or bases for it credibility determination and the relative
probative weight it assigned to
the conflicting medical opinions of record, the Court will vacate the
November 10, 2009, decision
and remand the mater for further proceedings consistent with this decision.
I. FACTS
The appellant served honorablyin the U.S. Air Force from October 1968 to
September 1972.
R. at 4, 737. “The only service treatment records available are the [
appelant’s] enlistment and

separation examinations, as well as the accompanying reports of medical
history.” R. at 6. No
psychiatric disorders were noted on his entrance examination. R. at 721-22.
At his June 1972
separation examination, the appellant reported that had “nervous trouble” (
R. at 713), which the
examiner described as “[n]ervousness 1970 [as a result of] job tension,
treated and improved, no
comp[lications] or seq[uelae].” R. at 714; see also R. at 716.
Additionally, the examiner’s report
of medical examination indicates that the appellant’s psychiatric
evaluation was “normal” and that
he suffered from no psychiatric disorder, including a “personality
deviation.” R. at 715.
In December 1984, a VA regional office (RO) denied the appellant’s claim
for compensation
benefits for a “nervous condition” based on its finding that “[s]
chizophrenia was not incurred in or
aggravated by [his] military service.” R. at 697-99. In October 2005, the
appellant submitted
another claim for compensation benefits for “schizophrenia” and ”
depression.” R. at 486-96. In
February 2006, the RO denied entitlement to compensation benefits for
depression (R. at 473-75),
and in April 2006 the RO found that the appellant failed to submit new and
material evidence to
reopen a claim for entitlement to benefits for schizophrenia (R. at 207-10
). The appellant timely
perfected an appeal to the Board (R. at 169-70, 173-93, 198-201), and in
October 2007 testified at
a Board hearing (R. at 128-46).
The appellant testified that he was diagnosed with and treated for a ”
nervous disorder” in
1971 while he was on active duty in Korea, which he attributed to “[s]
tress.” R. at 140, 142-43. He
described his in-service “nervousness” as “feel[ing] like people were
plotting against me and doing
things against me.” R. at 143. He also stated that he was “hearing voices
and things” and that the
doctor informed him that he “was working too hard.” Id. He stated that
this was the first time he
experienced something like this and that his symptoms had continued since
service. R. at 144. He
also indicated that he was first diagnosed with schizophrenia in “1978 –
77” and that he was
currently receiving treatment at the VA hospital for “schizophrenia and
depression.” R. at 141.
In April 2008, the Board reopened the appellant’s claim, remanded the
matter to provide the
appellantaVApsychiatricexamination,
anddirectedtheexaminertoidentifyallcurrentlydiagnosed
psychiatric disorders and opine whether the appellant’s schizophrenia and
depression are at least as
likely as not related to service. R. at 112-27. On June 18, 2008, the
appellant underwent a
compensation and pension examination in which the examiner diagnosed
schizophrenia, paranoid
2

type and depression, not otherwise specified. R. at 96-106. The VA
examiner’s report indicates that
he reviewed the appellant’s claims file and conducted a clinical interview
and a psychological
examination of the appellant. Id. The examiner noted that the appellant’s
claims file contained
multipletreatmentrecordsthatconfirmedhis longhistoryoftreatment
forschizophreniaandvarying
levels of functioning over time. R. at 97. The examiner also noted that
the appellant was “often
described as being a poor historian.” Id. Although he stated that “the
appellant’s ability to provide
a history has been variable,” the examiner found him to be a “fair
historian” at present. R. at 104-05.
During the examination, the appellant reported that he experienced his ”
first hallucinations”
at the age of 18, when he frequently worked overtime and began to “‘hear
things’ when fatigued.”
R. at 98. The appellant also reported that he “‘cracked up'” while he was
stationed in Korea. Id. The
appellant described having the shakes, difficulty sleeping, and hearing
things. Id. He stated that a
treating doctor informed him that he was “working too hard.” Id. The
appellant also reported that
“in the wake of his discharge” he received mental health treatment from Dr.
Darcy Brown in
Nashville, Tennessee. R. at 100. Although the VA examiner was satisfied
that the appellant’s
presentation, self-report, and clinical history showed that the appellant
met the criteria for
schizophrenia, paranoid type and depressive disorder, not otherwise
specified, the examiner stated
that the “course of [the appellant’s] symptoms is less clear.” R. at 105.
In this regard, he noted that
the appellant reported some symptoms of schizophrenia (auditory
hallucinations) prior to military
service and that he described them as worsening during service. Id. The
examiner noted, however,
that the appellant completed his tour of duty and that his “post-military
clinical record indicate[d]
a significant post-military decline in functioning.” Id. The examined
stated, in pertinent part:
While the day-to-day stress of military service may have exacerbated the
veteran’s
pre-existing psychotic symptoms, there is no clear evidence that [] his
military
service has served as a long-term aggravating factor. One could assert
that his pre[-
]military hallucinatory experiences would have remitted or remained
circumscribed
were it not for the stress of military service. However, given the normal
patterns of
emergence for schizophrenia . . . , and given the worsening of his
presentation after
his service stress was removed, this is the weaker argument.
R. at 105-06.
With regard to the appellant’s depressive disorder, the VA examiner noted
the appellant’s
report of a limited set of depressive symptoms during service, which he
described as “mild and
3

intermittent until his divorce in 1980.” R. at 106. The examiner opined, “[
b]ased on the available
evidence,”that the appellant’s “[s]chizophrenia and [m]ood disorder [not
otherwise specified] is less
likely as not (less than 50/50) probability caused by or a result of his
military service.” Id.
In an October 2008 decision, the Board denied the appellant’s claim. R. at
62-67. The
appellant appealed to the Court and on June 5, 2009, the Court granted the
parties’ joint motion for
remand. R. at 53-60. On remand, the appellant submitted a September 2009
medical opinion byDr.
Smith, a board-certified forensic psychiatrist, and written argument in
support of favoring Dr.
Smith’s opinion over the unfavorable June 2008 VA examiner’s opinion. R.
at 31-36, 39-44.
After reviewing the “entire Record Before The Agency,” Dr. Smith opined
that “it is more
likelythan not that the veteran experienced his first psychotic break
while in Kunsan on active duty.”
R. at 35. Dr. Smith noted that the Diagnostic and Statistical Manual of
Mental Disorders, Fourth
Edition (DSM-IV) states that “‘[t]he model age of onset for[
schizophreniain] men is between 18 and
25 years'” and that the appellant “was 21 or 22 years of age in Kunsan.” R.
at 35. Dr. Smith also
stated that the DSM-IV indicates: (1) “Schizophrenia onset maybe abrupt or
insidious, with the slow
and gradual development of a variety of signs and symptoms”; and (2) ”
‘Most studies of the course
and outcome in Schizophrenia suggest that the course may be variable, with
some individuals
displaying exacerbations and remissions, whereas others remain chronically
ill.'” R. at 35 (citing
DSM-IV at 308-09). Dr. Smith stated that “[i]n reviewing the record, [he]
did not find any
inconsistencies or evidence of exaggeration, or an attempt to deceive
examiners on the part of [the
appellant].” Id. With regard to whether the appellant experienced any pre-
service symptoms, Dr.
Smith stated that “[i]f he had any symptoms prior to active duty, which is
not clear, they were not
to the degree that he needed to seek care.” Id. With regard to his
postservice symptoms, Dr. Smith
stated that “[s]ubsequent to his release from active duty he has had a
typical course of
[s]chizophrenia and continues to be treated to this day. His symptoms have
waxed and waned
through the years. This is one of the typical courses for this disorder.”
Id. Dr. Smith also opined
that the appellant’s depression is “most likely secondary to his chronic [
s]chizophrenia, [because]
comorbidity of the two is high.” Id.
In the November 10, 2009, decision here on appeal, the Board denied the
appellant’s claim
for compensation benefits for a psychiatric disorder, to include
schizophrenia and depression. R. at
4

3-20. After weighing the conflicting medical opinions of record and
finding the appellant’s lay
evidence not credible, the Board assigned less probative weight to Dr.
Smith’s opinion. R. at 13-16.
The Board determined that Dr. Smith’s opinion was less probative because (
1) Dr. Smith only
discussed the favorable evidence of record and failed to discuss the
appellant’s separation
examination, whichnotedthathisnervousness was treated and improved; (2) Dr.
Smith’s conclusion
that the appellant’s “testimony and contentions are consistent” was not
supported by the record; and
(3) the bases for Dr. Smith’s nexus opinion are an inaccurate history
reported by the appellant. R.
at 15-16. The Board foundtheVA examiner’s opinion against the claim more
probative because “the
VA opinion discussed all the evidence on file.” R. at 15. The Board
explained that its conclusion
that a psychiatric disorder was not chronic in service or continuous since
service was based on
several factors, including the absence of chronic psychiatric disability
contained in
the[v]
eteran’sJune1972serviceseparationmedicalhistoryandphysicalexamination
reports, the [v]eteran’s own reported histories, post-service medical
evidence that do
not show a chronic psychiatric disorder until several years after service
discharge,
and the nexus opinion against the claim.
R. at 16-17. After weighing all the evidence, lay and medical, the Board
concluded that the
preponderance of the evidence was against the appellant’s claim. Id. This
appeal followed.
On appeal, the appellantargues that the Board’s decision was
clearlyerroneous because there
was no plausible basis for the Board to favor the June 2008 VA examiner’s
opinion over Dr. Smith’s
opinion. Appellant’s Br. at 5-12. In the alternative, the appellant argues
that the Board failed to
provide an adequate statement of reasons or bases for the relative
probative weight assigned to the
conflicting medical opinions and for finding the appellant’s statements
concerning the onset,
chronicity and continuity of his symptoms not credible. Id. at 12-16.
The Secretary argues for affirmance of the Board’s decision. Secretary’s
Br. at 7-17. The
Secretary argues that the Board was permitted to favor one medical opinion
over another, and that
the Board provided an adequate statement of reasons or bases to support
its determination that the
VA examiner’s opinion was entitled to greater weight than Dr. Smith’s
opinion. Id. at 7-14. The
Secretaryfurther argues that the Board’s credibilitydetermination was not
clearlyerroneous and that
the Board adequately explained its reasons for finding the appellant not
credible. Id.
5

II. ANALYSIS
A. Law
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, or no service connection, is a
finding of fact that the Court
reviews under the “clearly erroneous” standard. See Swann v. Brown, 5 Vet.
App. 229, 232 (1993).
A finding of material fact is clearly erroneous when the Court, after
reviewing the entire evidence,
“is left with the definite and firm conviction that a mistake has been
committed.” United States v.
U.S. Gypsum Co., 333 U.S. 364, 395 (1948); see also Gilbert v. Derwinski,
1 Vet.App. 49, 52
(1990).
In rendering its decision, the Board must include a written statement of
the reasons or bases
for its findings and conclusions on all material issues of fact and law
presented on the record; the
statement must be adequate to enable an appellant to understand the
precise basis for the Board’s
decision, and to facilitate informed review in this Court. See 38 U.S.C. §
7104(d)(1); Allday v.
Brown, 7 Vet.App. 517, 527 (1995); Gilbert, 1 Vet.App. at 57. To comply
with this requirement,
the Board must analyze the credibility and probative value of the evidence,
account for the evidence
it finds persuasive or unpersuasive, and provide the reasons for its
rejection of anymaterial evidence
favorable to the claimant. Caluza, 7 Vet.App. at 506; see also Washington
v. Nicholson,
19 Vet.App. 362, 367-68 (2005) (stating that it is the Board’s duty, as
factfinder, to determine the
credibility and weight to be given to the evidence); Smith v. Derwinski, 1
Vet.App. 235, 237-38
(1991) (holding that “[d]etermination of credibilityof veteran’s sworn
testimonyis a function for the
Board”). When a veteran’s service medical records (SMRs) have been lost or
destroyed, the Board
is “under a heightened duty to consider and discuss the evidence of record
and supply well-reasoned
bases for its decision as a consequence of the missing SMRs.” Washington,
19 Vet.App. at 371. “It
is not error for the [Board] to favor the opinion of one competent medical
expert over another when
the Board gives an adequate statement of reasons or bases.” Owens v. Brown,
7 Vet.App. 429, 433
6

(1995). Such assessments will be overturned by this Court only if they
are “clearly erroneous.” Id.;
see also Gilbert, 1 Vet.App. at 52. “When there is an approximate balance
of positive and negative
evidence regarding any issue material to the determination of a matter,
the Secretary shall give the
benefit of the doubt to the claimant.” 38 U.S.C. § 5107(b); see also
Mariano v. Principi,
17 Vet.App. 305, 313 (2003) (also referring to benefit of the doubt rule
as “equipoise standard”); 38
C.F.R. § 3.102 (2011).
B. The Board’s Reasons and Bases
In the instant case, the Court agrees with the appellant that the Board
failed to provide an
adequate explanation for finding his contentions regarding the onset of
psychiatric symptoms not
credible and for finding the VA examiner’s opinion more probative than Dr.
Smith’s opinion. See
Owens, supra. This failure renders the Board’s statement of reasons of
reasons or bases inadequate
to facilitate review; therefore, remand, not reversal, is the appropriate
remedy. See Tucker v. West,
11 Vet.App. 369, 374 (1998) (holding that remand is the appropriate remedy ”
where the Board has
incorrectly applied the law, failed to provide an adequate statement of
reasons or bases for its
determinations, or where the record is otherwise inadequate”).
1. The Board’s Credibility Determination
The Court notes that a significant portion of the Board’s analysis and
assignment of relative
weight to the evidence hinged on its determination that the appellant was
not credible. In reaching its credibility determination, the Board found that the appellant’s prior statements, which were made for treatment purposes, outweighed his more recent contentions regarding an in-service onset and continuous postservice symptoms, which were made for disability compensation purposes. R. at 11-13 (citing Harvey v. Brown, 6 Vet.App. 390, 394 (1994) (Board decision properly assigned more probative value to a private hospital record that included lay history that was made for treatment purposes than to subsequent statements made for compensation purposes)).
Thus, the Board heavily relied on the appellant’s reported history in a 1979 treatment note that his hallucinations began in 1978 (R. at 593-94) and the absence of any treatment records that reported
a history of symptoms
in service (R. at 11-12) to find his recent assertions of an in-service
onset not credible. However,
in finding the appellant not credible on this basis, the Board failed to
account for a December 1984 treatment note in which the appellant reported that he “first” experienced psychiatric problems in
7

1971 while he was in the military. R. at 666-68. The Secretary attempts
to downplay the significance of this evidence because the report does not state that the appellant experienced “hallucinations” in service. Secretary’s Br. at 9-10. However, it is the
Board’s duty to analyze the
credibility and probative value of the evidence and, as noted above, this
duty is heightened in cases
such as this where the appellant’s service treatment records are
unavailable. See Washington supra;
see also R. at 6. Here, the Board found the appellant not credible, in
part, because no postservice
treatment reports included a history of “symptoms in service.” R. at 11;
see also R. at 13. This is
clearly contrary to the December 1984 treatment note, which noted ”
psychiatric problems . . . in the
military.” R. at 666. On remand, the Board must account for this evidence
and explain its probative
worth when it assesses the appellant’s credibility regarding the onset his
psychiatric symptoms. See
Washington, Allday, and Caluza, all supra. Additionally, because the Board
relied on the appellant’s
report of a postservice onset in 1978 to find his assertion of treatment
soon after service not credible,
on remand the Board may need to examine whether its analysis regarding the
onset of symptoms
impacts its finding that the appellant was not credible when he reported
that he sought treatment
shortly after service and that the records are no longer available because
of the physician’s death.
See R. at 13-14.
2. Probative Value of Conflicting Medical Opinions
The appellant argues that it was improper for the Board to discount Dr.
Smith’s favorable medical opinion because it was based on an “inaccurate history” reported by the appellant, yet find the VA examiner’s opinion probative, when both examiners reviewed the same history and the same record, but drew different conclusions. Appellant’s Br. at 9-10. The Secretary argues, contrary to the appellant’s assertions, that the Board acknowledged that the appellant provided an “incorrect history” to the VA examiner. Secretary’s Br. at 11. In support of this assertion, the Secretary relies on the following analysis:
The history given by the [v]eteran in 1979 dates the onset of symptoms to
1978, still over five years after service separation. . . . This more contemporaneous
history
given bythe [v]eteran in 1979 for treatment purposes contradicts the [v]
eteran’s later
contentions in October 2007 hearing testimony and at the June 2008 VA
examination,which were made for VA disabilitycompensation purposes, that
he had
had auditory hallucinations or other psychotic symptoms since service.
R. at 12 (emphasis added); see Secretary’s Br. at 12.
8

The appellant persuasivelyargues in his reply brief that the Secretary’s
position is untenable,
that is, if the VA examiner also relied on an inaccurate history, as
conceded by the Secretary, then the Board must explain why the inaccurate factual history impugns the bases for Dr. Smith’s opinion but does not diminish the probative worth of the VA examiner’s opinion.Reply Br. at 4-5. The Court agrees. It is true that “[a]n opinion based upon an inaccurate factual premise has no probative value.” Reonal v. Brown, 4 Vet.App. 458, 461 (1993). The problem with the Board’s analysis is that it failed to consistently apply this rule when it evaluated the conflicting medical opinions of record.
That is, although the Board found the appellant’s recent contentions
regarding the onset and continuity of psychiatric symptoms not credible, and relied on this
credibilitydetermination to render
Dr. Smith’s opinion worthy of little probative value, the Board failed to
similarly discuss how its
credibility determination impacted its assessment of the VA examiner’s
opinion, which was based
on the same factual premise.
Additionally, the Board failed to explain why the VA examiner’s opinion
was “more
probative” given the examiner’s reliance on the appellant’s statement that
he had hallucinations prior
to military service, which contradicts the Board’s reliance on the
appellant’s reported history of a
postservice onset in 1978. For this reason, the appellant argues that the
Board erred when it relied
on the VA examiner’s “incomplete” opinion, which assumed a preservice
onset. Appellant’s Br. at
10-11. The Secretary argues that the appellant’s report of a history to
the VA examiner that was
different than the history provided in other medical reports does not
result in error by the examiner
in taking the history and including it in the examination report.
Secretary’s Br. at 12. Although it
may have been proper for the examiner to record the appellant’s history of
having had hallucinations
prior to service, as noted above, the Board should have explained its
reasons for finding the VA
examiner’s opinion “more probative” when it was clearly based on a history
that was rejected by the
Board.1
See R. at 105 (“While the day-to-day stress of military service may have
exacerbated the
The Board’s reasons for finding the opinion probative are unclear because,
in stating that
it was relying on the opinion, the Board acknowledged that the examiner
considered whether the
stress in the military aggravated the appellant’s preexisting psychotic
symptoms (R. at 14), yet the
Board proceeded to find that the appellant was not credible because
postservice treatment records
indicated that his symptoms began in 1978.
9
1

veteran’s pre-existing psychotic symptoms, there is no clear evidence
that [] his military service has
served as a long-term aggravating factor.” (emphasis added)).
The Court also agrees with the appellant that the Board failed to provide
an adequate
statement of reasons or bases for assigning less probative weight to Dr.
Smith’s opinion because he
“failed to discuss” the appellant’s service separation notation that his
nervousness was treated and
improved. Appellant’s Br. at 8-9; ReplyBr. at 2-3. The Secretaryasserts
that the Court should reject
this argument because although Dr. Smith mentioned the separation
examination “in passing,” he
failed to explain how the service examination influenced his opinion.
Secretary’s Br. at 10-11.
However, in discounting Dr. Smith’s opinion onthisbasis,the Board did not
explain whyDr. Smith’s
discussion regarding the nature of schizophrenia and how the schizophrenia
played out in the
appellant’s case did not adequately address why the absence of a
psychiatric diagnosis at discharge
did not alter his opinion that the appellant’s schizophrenia began in
service. In this regard, the Court
notes that Dr. Smith relied on the DSM-IV, which describes the course of
schizophrenia as being
“‘variable, with some individuals displaying exacerbations and remissions,
whereas others remain
chronically ill,'” and that the appellant’s “symptoms have waxed and waned
through the years[,
which] is one of the typical courses for this disorder.” R. at 35. As
stated earlier, the Board is
permitted to favorthe opinion of one competent medical expert over another
provided that the Board
supplies an adequate statement of reasons or bases for its conclusion. See
Owens, supra. The Board
did not do so here. Accordingly, the Court will remand the matter to the
Board. See Tucker and
Owens, both supra.
C. The Appellant’s Remaining Arguments
BecausetheCourt hasdeterminedthatremandis the appropriate remedyhere, the
Court need
not address each of the appellant’s remaining arguments that would not
result in a broader remedy.
See Mahl v. Principi, 15 Vet.App. 37, 38 (2001) (per curiam order) (
holding that “if the proper
remedy is a remand, there is no need to analyze and discuss all the other
claimed errors that would
result in a remedy no broader than a remand”); see also Best v. Principi,
15 Vet.App. 18, 19 (2001)
(per curiam order) (holding that the Court generallydecides cases on the
narrowest possible grounds
and therefore is not required to rule upon other allegations of error in
effecting a remand). In
pursuing his case on remand, the appellant is free to submit additional
evidence and argument on the
10

remanded matters, and the Board is required to consider any such relevant
evidence and argument.
See Kay v. Principi, 16 Vet.App. 529, 534 (2002) (stating that, on remand,
the Board must consider
additionalevidenceandargumentinassessingentitlementto benefit sought);
Kutscherouskyv.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 Secretaryto providefor”expeditious treatment”of claims
remanded bythe Court).

III. CONCLUSION
After consideration of the appellant’s and the Secretary’s briefs, and a
review of the record,
the Board’s November 10, 2009, decision is VACATED and the matter REMANDED
for further
proceedings consistent with this decision.
DATED: December 12, 2011
Copies to:
Robin M. Webb, Esq.
VA General Counsel (027)
11

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