Veteranclaims’s Blog

January 30, 2012

Single Judge Application, Kahana, 24 Vet.App. at 435, Board Inference of Medical Determination Must be Cited

Filed under: Uncategorized — veteranclaims @ 5:03 pm

Excerpt from decision below;
“However, this Court finds “the only permissible view of the evidence” is that the daughter’s statement is a credible report supporting continuity of headaches dating back to service and rebutting the assertion that the veteran’s complaints are a recent fabrication. Gutierrez v. Principi, 19 Vet.App. 1, 10 (2004) (citing Johnson v. Brown, 9 Vet.App. 7, 10 (1996)); see FED. R. EVID. 801(d)(1), supra.
Furthermore, since the March 2010 remand, this Court has clarified the
circumstances under which the Board can properly draw an inference based on the absence of evidence. In Kahana v. Shinseki, 24 Vet.App. 428 (2011), it was noted that “when a Board inference results in a medical determination, the basis for that inference must be independent and it must be cited.” Kahana, 24 Vet.App. at 435; see also id. at 438 (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).
In this case, the Board inferred that, because the appellant did not have
documentation of seeking medical treatment for his headaches until decades after service, his lay testimony regarding a continuity of symptomatology was not credible.
However, without independent medical confirmation that the appellant’s headaches are the type for which treatment would likely have been sought, the Board’s inference was improper.”
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. 10-2827
PadillaF_10-2827.pdf
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-2827
FUNDADOR PADILLA, 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 appellant, Fundador Padilla, through counsel, appeals an
August 23,
2010, Board of Veterans’ Appeals (Board) decision that denied his claim
for entitlement to service
connection for residuals of a head injury. Record (R.) at 3-20. 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 reverse the Board’s August 23, 2010, decision and
remand for VA to assign
a disability rating and effective date.
I. FACTS
The appellant served in the U.S. Army from February 1952 to September 1957.
R. at 708.
In December 1994, the appellant filed a claim for entitlement to service
connection for headaches
as a result of a head injury suffered during basic training. R. at 681-84.
The appellant has described
the incident as a fall during basic training in which he hit the back of
his head but did not report the
injury because he believed he would be thrown out of the service if
injured. R. at 479-99, 570, 647,
681. He states that he has had headaches regularly since that incident. He
also reported seeking
treatment for these headache while stationed in Germany and Japan, but his
service medical records

(SMRs) are presumed destroyed in the 1973 National Personnel Records
Center (NPRC) fire and
are unavailable. R. at 479-99, 647, 661, 682.
II. ANALYSIS
This claim has been the subject of a lengthy adjudicative process,
including three joint
motions for remand (December 2000, April 2006, and February 2008) and a
remand from this Court
in March 2010. R. at 120-24, 277-84, 462-65; Padilla v. Shinseki, No. 08-
2785, 2010 WL 1252145
(March 20, 2010) (table). The March 2010 remand was issued for the Board
to consider the lay
statement submitted by the appellant’s daughter. Padilla, 2010 WL 1252145
at *2. The Board, in
the decision on appeal, considered the daughter’s lay statement but
determined it did “not provide
a continuity of symptomatology.” R. at 20.
The Board found the daughter’s statements not probative because: (1) the
daughter was born
several years after the incident occurred, possibly during the appellant’s
active duty service, and is
therefore relying on hearsay evidence from her mother that an in-service
incident occurred; (2) the
appellant’s daughter is not competent to diagnose the etiology of the
appellant’s headaches; (3) the
statement recalled events from 40 years’ prior and was therefore of
questionable accuracy; and (4)
the daughter may be biased by familial relationship. R. at 19-20.
The Board’s analysis is faulty. First, it is an exception to the hearsay
rule that the prior
consistent statements of the declarant may be admitted to rebut an
inference of fabrication. FED. R.
EVID. 801(d)(1). In this case, the Board found the appellant not credible
because, inter alia, nearly
40 years passed before he sought medical treatment. R. at 18. The Court
concludes that this hearsay
evidence meets the exception and rebuts the Board’s determination that the
appellant’s symptoms
were a recent development. R. at 10. Second, the daughter’s statement was
not provided to confirm etiology, but rather to provide evidence supporting a continuity of symptomatology, and she is competent to report whether her father suffered from headaches, as the Board acknowledges. Id., Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay persons are generally competent to provide evidence on observable symptoms).
Third, as the appellant’s daughter was reporting a continuity of
symptomatology, observed over the last 40 years and continuing to the present, she was not attempting to recall the specific details of a single incident that occurred 40 years ago. Thus, the Court is not persuaded that the
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length of time the appellant’s symptoms were observed is as subject to ”
the frailty of human memories” as the Board suggests. R. at 19. Fourth, while the Board may consider bias in assessing lay statements, Caluza v. Brown, 7 Vet.App. 498, 511 (1995), aff’d per curiam, 78 F.3d 604
(Fed. Cir. 1996) (table), the Board may not find lay statements incredible
merely because they are provided by family members, as this would render all familial lay statements per se not credible, an absurd result.
Because the Board did not find the daughter’s lay statement probative, it
determined that the appellant’s own lay statement was still not probative. R. at 20. However, this Court finds “the only permissible view of the evidence” is that the daughter’s statement is a credible report supporting a continuity of headaches dating back to service and rebutting the assertion
that the veteran’s complaints are a recent fabrication. Gutierrez v. Principi, 19 Vet.App. 1, 10 (2004) (citing Johnson v. Brown, 9 Vet.App. 7, 10 (1996)); see FED. R. EVID. 801(d)(1), supra.
Furthermore, since the March 2010 remand, this Court has clarified the
circumstances under which the Board can properly draw an inference based on the absence of evidence. In Kahana v. Shinseki, 24 Vet.App. 428 (2011), it was noted that “when a Board inference results in a medical determination, the basis for that inference must be independent and it must be cited.” Kahana, 24 Vet.App. at 435; see also id. at 438 (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).

In this case, the Board inferred that, because the appellant did not have
documentation of seeking medical treatment for his headaches until decades after service, his lay testimony regarding a continuity of symptomatology was not credible.
However, without independent medical confirmation that the appellant’s headaches are the type for which treatment would likely have been
sought, the Board’s inference was improper. The Court concludes that when
the daughter’s lay testimony is combined with the appellant’s, the preponderance of evidence is in the appellant’s favor that an in-service injury occurred and that it is connected to service through a theory of continuity of symptomatology.
Because the Board found the appellant’s testimony incredible, it discounted as not probative any medical examinations supporting a nexus to service. R. at 10-11.
However, as the Court
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concludes that the daughter’s and the appellant’s lay statements are
credible, this objection is no longer valid. There is a medical opinion of record from May 2006 linking the appellant’s headaches to his in-service trauma. R. at 18. Of the three remaining medical examinations of record, one
found the appellant’s headaches were not related to trauma, but did not
consider the claims file or provide a rationale, and the other two were inconclusive on the relationship between the appellant’s headaches and his in-service incident, in part because the in-service incident had not been established as fact. R. at 133, 571, 651. The Court concludes that, in the absence of any other definitive medical opinions to the contrary, the 2006 medical opinion is probative. Therefore, the evidence is at least in equipoise as to the appellant’s claim for entitlement to service connection for residuals of a head injury, and the Court will reverse the Board’s August 23, 2010, decision and remand for VA to assign a disability rating and effective date.

III. CONCLUSION
After consideration of the appellant’s and the Secretary’s briefs, and a
review of the record,
the Board’s August 23, 2010, decision is REVERSED and the matter is
REMANDED to the Board
for further proceedings consistent with this decision
DATED: January 17, 2012
Copies to:
Judy J. Donegan, Esq.
VA General Counsel (027)
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