Veteranclaims’s Blog

February 24, 2012

Single Judge Application, Credibility of Veteran, Barr v.Nicholson, 21 Vet.App. 303, 307(2007)( citing Savage v. Gober, 10 Vet.App. 488, 495-96 (1997))

Filed under: Uncategorized — veteranclaims @ 2:28 pm

Excerpt from decision below:
“The Board listed three reasons whyit found Mr. Bohannon’s statements not
credible: (1) The earliest post servicemedical record documentingback pain was not created until 2001, over 20 years after his discharge from active duty; (2) he made inconsistent statements as to the date of the onset of his back pain; and (3) medical notations following the vehicle accident refer only to chest pain and not back pain. R. at 13. “For all these reasons, the Board [found] that the Veteran’s statements of continuity related to the spine [were] not believable.” Id.
The Board relied partially on the absence of post service medical records documenting back pain in concluding that Mr. Bohannon was not a credible witness as to his own pain. It did so by asserting that the earliest medicalrecord documentingbackpain was not created until approximately 20 years after service. The absence of medical records in this case is not necessarily indicative of
absence of pain, however. Mr. Bohannon stated that he could not afford medical care. R. at 985. Indeed, he was at various times traveling for employment, unemployed, and even homeless. R. at 985, 1060, 1123. The Board did not acknowledge these factors in its statement of reasons or bases even though they are clearly relevant to the absence of medical evidence.
The Board’s reliance on the absence of medical reports to contradict complaints of pain lacks full development.
The Board next noted that Mr. Bohannon made inconsistent statements regarding the onset of his back pain. The Board cited three specific inconsistent statements: (1) Mr. Bohannon reported that his herniated disc did not surface until 10 years after the in-service incident; (2) he stated that he had experienced chronic back pain ever since the in-service incident; and (3) he reported experiencing pain in his lower back ever since he left active duty. R. at
13. On careful review, however, these statements are not inconsistent.
The first statement appeared in a 1993 statement in support of claim (SSOC)
submitted by Mr. Bohannon. R. at 1189. In it, Mr. Bohannon stated that he believed the vehicle accident in April 1977 caused him to have a herniated disc that did not surface until 10 years later. Id. The Secretary characterized the statement as a declaration that Mr.Bohannon did not experience pain until 10 years after the incident. Such an interpretation is untenable. Mr. Bohannon did not use the word “pain” nor did he refer to pain in the SSOC. It is clear to the Court that Mr. Bohannon was asserting that he did not know about the herniated disc until 10 years after service, which is consistent with his
3

statement that he could not afford medical care during that time. It did
not state that he was not experiencing back pain during those 10 years.

The next two allegedly inconsistent statements appeared in VA medical
reports, one in May 2003, and anotherin October 2009. The May2003 medical report recounted that Mr. Bohannon was involved in the vehicle accident in 1978 and had had chronic back pain since that time. R. at 984.
The October 2009 statement stated that Mr. Bohannon “began having pain in
his lumbar spine in April of 1978 while he was on maneuvers.” R. at 118. While there is a difference in the date reported in these medical reports and Mr. Bohannon’s SSOC (April 1977), the Court is unconvinced that these statements are materially inconsistent such that Mr. Bohannon is not a reliable witness.
Given that Mr. Bohannon was providing this information over 30 years after
the actual incident, the variation in dates is relatively insignificant, especially as both dates would place the onset of pain to when Mr. Bohannon was still on active duty.
Finally, the Board noted that the SMRs do not reference back pain associated with the vehicle accident. The Board asserted that the onlynoted back pain was prior to the vehicle accident, and was reported in conjunction with a possible relapse of viral tuberculosis. R. at 10-12. The Board failed to explain, however, why the injury suffered by Mr. Bohannon in the vehicle accident is of the type requiring medical attention immediately for back pain, rather than producing pain over time.
Even collectively, all the reasons provided bythe Board are hardly a
compelling basis for the rejection of Mr. Bohannon’s entire testimony. As it is the Board’s duty to weigh the evidence, and in the case evidence is rejected based on lack of credibility, it is incumbent on the Board to provide a valid rationale for its determination. The Court concludes that the Board provided inadequate
reasons or bases for its finding that Mr. Bohannon’s statements are not
credible.”
======================
—————————————————-

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-4246
JAMES BOHANNON, APPELLANT,
v.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before DAVIS, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
DAVIS, Judge: U.S. Marine Corps veteran James Bohannon appeals through
counsel from
an August 25, 2010, Board of Veterans’ Appeals (Board) decision that
denied service connection for
degenerative disc disease. For the following reasons, the Court will set
aside the Board’s decision
and remand the matter for readjudication consistent with this decision.

I. ANALYSIS
Mr. Bohannon served on active duty from July 1974 to July 1978. He asserts
that he
currently suffers from back pain as the result of an in-service vehicle
accident in which he landed
on the ground after being ejected from the bed of a truck and thrown 50
feet (hereinafter referred to
as “the vehicle accident”). He alleges that the Board improperly rejected
his statements regarding
his ongoing back pain symptoms and relied on an inadequate VA examination
in making its
decision.
A. Lay Statements
TheBoardconsideredMr.Bohannon’s degenerativediscdiseaseclaim,
characterizedbyback
pain, under a continuity of symptomatology theory of service connection.
Continuity of
symptomatologymayestablish service connection if a claimant can
demonstrate that (1) a condition

was “noted” during service; (2) there is postservice evidence of the same
symptomatology; and (3)
there is medical or, in certain circumstances, lay evidence of a nexus
between the present disability
andthepostservicesymptomatology. Barr v.Nicholson,21Vet.App.303,307(2007)(
citingSavage
v. Gober, 10 Vet.App. 488, 495-96 (1997)). Testimony of continuity of
symptomatology can
potentially indicate that a disability may be associated with service, but
only “if ultimately deemed
credible.” McLendon v. Nicholson, 20 Vet.App. 79, 84 (2006).
The Board conceded that back pain was noted in Mr. Bohannon’s service
medical record
(SMR) while he was on active duty, satisfying the first requirement of
service connection based on
continuity of symptomatology. Record (R.) at 12. The Board also did not
dispute the in-service
vehicle accident that Mr. Bohannon claims caused his back Previous DocumentinjuryNext Hit. The
Board did find, however,
that Mr. Bohannon’s statements of continuous back pain were not credible,
thereby resulting in its
refusal to grant disability benefits.
The Court acknowledges that the Board is responsible for weighing and
assessing the
evidence of record, including the credibility of a claimant’s testimony.
See Madden v. Gober,
125 F.3d 1477, 1481 (Fed. Cir. 1997) (it is the Board’s duty “to analyze
the credibility and probative
value of evidence”). Such factual findings, unless clearly erroneous, are
not subject to alteration by
the Court. See Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990). However,
the Board must provide
adequate reasons or bases for all findings and conclusions on material
issues of fact and law
presented on the record, including a credibility determination. Id. at 56-
57.
In making credibility determinations, the Board may consider factors such
as facial
plausibility, bias, self interest, and consistency with other evidence of
record. Caluza v. Brown,
7 Vet.App. 498, 511 (1995); see Jandreau v. Nicholson, 492 F.3d 1372, 1376 (
Fed. Cir. 2007) (“The
Board retains discretion to make credibility determinations and otherwise
weigh the evidence
submitted[.]”); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006
); c.f. Maxson v. Gober,
230 F.3d 1330, 1333 (Fed. Cir. 2000) (Board mayconsider “evidence of a
prolonged period without
medical complaint, alongwith other factors” in determining a service-
connection claim). The Board
may consider the absence of contemporaneous medical evidence when
determining the credibility
of lay statements, but may not determine that lay evidence lacks
credibility solely because it is
unaccompanied by contemporaneous medical evidence. Buchanan, 451 F.3d at
1331.
2

The Board listed three reasons whyit found Mr. Bohannon’s statements not
credible: (1) The
earliest post servicemedical record documentingback pain was not created
until 2001, over 20 years
after his discharge from active duty; (2) he made inconsistent statements
as to the date of the onset
of his back pain; and (3) medical notations following the vehicle accident
refer only to chest pain
and not back pain. R. at 13. “For all these reasons, the Board [found]
that the Veteran’s statements
of continuity related to the spine [were] not believable.” Id.
The Board relied partially on the absence of post service medical records
documenting back
pain in concluding that Mr. Bohannon was not a credible witness as to his
own pain. It did so by
asserting that the earliest medicalrecord documentingbackpain was not
created until approximately
20 years after service. The absence of medical records in this case is not
necessarily indicative of
absence of pain, however. Mr. Bohannon stated that he could not afford
medical care. R. at 985.
Indeed, he was at various times traveling for employment, unemployed, and
even homeless. R. at
985, 1060, 1123. The Board did not acknowledge these factors in its
statement of reasons or bases
even though they are clearly relevant to the absence of medical evidence.
The Board’s reliance on
the absence of medical reports to contradict complaints of pain lacks full
development.
The Board next noted that Mr. Bohannon made inconsistent statements
regarding the onset
of his back pain. The Board cited three specific inconsistent statements: (
1) Mr. Bohannon reported
that his herniated disc did not surface until 10 years after the in-
service incident; (2) he stated that
he had experienced chronic back pain ever since the in-service incident;
and (3) he reported
experiencing pain in his lower back ever since he left active duty. R. at
13. On careful review,
however, these statements are not inconsistent.
The first statement appeared in a 1993 statement in support of claim (SSOC)
submitted by
Mr. Bohannon. R. at 1189. In it, Mr. Bohannon stated that he believed the
vehicle accident in April
1977 caused him to have a herniated disc that did not surface until 10
years later. Id. The Secretary
characterized the statement as a declaration that Mr.Bohannondid not
experiencepain until 10 years
after the incident. Such an interpretation is untenable. Mr. Bohannon did
not use the word “pain”
nor did he refer to pain in the SSOC. It is clear to the Court that Mr.
Bohannon was asserting that
he did not know about the herniated disc until 10 years after service,
which is consistent with his
3

statement that he could not afford medical care during that time. It did
not state that he was not
experiencing back pain during those 10 years.
The next two allegedly inconsistent statements appeared in VA medical
reports, one in May
2003, and anotherin October 2009. The May2003 medical report recounted
that Mr. Bohannon was
involved in the vehicle accident in 1978 and had had chronic back pain
since that time. R. at 984.
The October 2009 statement stated that Mr. Bohannon “began having pain in
his lumbar spine in
April of 1978 while he was on maneuvers.” R. at 118. While there is a
difference in the date
reported in these medical reports and Mr. Bohannon’s SSOC (April 1977),
the Court is unconvinced
that these statements are materially inconsistent such that Mr. Bohannon
is not a reliable witness.
Given that Mr. Bohannon was providing this information over 30 years after
the actual incident, the
variation in dates is relatively insignificant, especially as both dates
would place the onset of pain
to when Mr. Bohannon was still on active duty.
Finally, the Board noted that theSMRs donot
referencebackpainassociatedwith thevehicle
accident. The Board asserted that the onlynoted back pain was prior to the
vehicle accident, and was
reported in conjunction with a possible relapse of viral tuberculosis. R.
at 10-12. The Board failed
to explain, however, why the Previous HitinjuryNext Document suffered by Mr. Bohannon in the
vehicle accident is of the type
requiring medical attention immediately for back pain, rather than
producing pain over time.
Even collectively, all the reasons provided bythe Board are hardlya
compelling basis for the
rejection of Mr. Bohannon’s entire testimony. As it is the Board’s duty to
weigh the evidence, and
in the case evidence is rejected based on lack of credibility, it is
incumbent on the Board to provide
a valid rationale for its determination. The Court concludes that the
Board provided inadequate
reasons or bases for its finding that Mr. Bohannon’s statements are not
credible.
B. Adequacy of Medical Examination
Mr. Bohannon next alleges that the Board erred in finding that VA
satisfied its duty to assist
because the medical examination VA provided was inadequate.
VA conducted a medical
examination in October 2009, and the report is the primary evidence relied
on by the Board in
denying service connection. Mr. Bohannon argues that the October 2009
examination was
inadequate because, inter alia, it relied on the absence of medical
treatment in concluding that Mr.
Bohannon’s back pain was not related to the vehicle accident in service.
4

As a part of his duty to assist claimants, the Secretary must provide a
medical examination
or obtain a medical opinion “when such an examination or opinion is
necessary to make a decision
on the claim.” 38 U.S.C. § 5103A(d)(1). A medical opinion is adequate
when it is based on
consideration oftheveteran’s
priormedicalhistoryandexaminationsandalsodescribesthedisability
in sufficient detail so that the Board’s “‘evaluation of the claimed
disability will be a fully informed
one.'” Ardison v. Brown, 6 Vet.App. 405, 407 (1994) (quoting Green v.
Derwinski, 1 Vet. App. 121,
124 (1991)). In Barr, 21 Vet.App. at 311, this Court noted a VA examiner’s
failure to consider a
veteran’s assertions of continued symptomatology in rendering his medical
opinion. In Buchanan,
451 F.3d at 1336, the U.S. Court of Appeals for the Federal Circuit (
Federal Circuit) disapproved
of an examiner ultimately relying “not on the objective medical evidence,
but rather the absence of
such in reaching her opinion.” The Federal Circuit elaborated in footnote
1: “Indeed, the examiner’s
opinion appears to have failed to consider whether the lay statements
presented sufficient evidence
of the etiology of [the veteran’s] disability such that his claim of
service connection could be proven
without contemporaneous medical evidence.” Id.
Although the VA medical examiner noted from Mr. Bohannon’s medical history
that he
began having back pain in April 1978, she relied instead on the absence of
medical records in
rendering her opinion. She stated that there were “no medical records to
indicate evidence of lower
back pain or a lower back condition until 2001, which is over 20 years
later. Therefore, it is apparent
that there is no link between the Veteran’s service activity and his
current lower back disability.” R.
at120. Althoughtheexaminerwasaware of Mr. Bohannon’s reports of
continuingsymptomatology,
she did not consider it in rendering her opinion and instead relied on the
absence of medical
treatment instead. Moreover, she offered no medical principle or analysis
that Mr. Bohannon’s
condition would have necessitated medical treatment despite his
circumstances. See Nieves-
Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008) (“[A] medical examination
report must contain
not only clear conclusions with supporting data, but also a reasoned
medical explanation connecting
the two.”). However, absent an adequate assessment of Mr. Bohannon’s
credibility,the Court cannot
consider whether he was harmed by the examiner’s failure to take into
account his lay statements.
On remand, the Board must determine whether a new medical examination is
necessary.
5

II. CONCLUSION
Based on the foregoing, the Board’s August 25, 2010, decision is SET ASIDE
and the matter
REMANDED for readjudication consistent with this decision. On remand, Mr.
Bohannon will be
free to submit additional evidence and argument in support of his claim,
and the Board is required
to consider any such evidence and argument. See Kay v. Principi, 16 Vet.
App. 529, 534 (2002). A
final decision by the Board following the remand herein ordered will
constitute a new decision that,
if adverse, may be appealed to this Court on the filing of a new Notice of
Appeal with the Court not
later than 120 days after the date on which notice of the Board’s new
final decision is mailed to Mr.
Bohannon. See Marsh v. West, 11 Vet.App. 468, 472 (1998).
DATED: February 14, 2012
Copies to:
Virginia A. Girard-Brady, Esq.
VA General Counsel (027)
6

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