Veteranclaims’s Blog

March 22, 2012

Single Judge Application, Parrish v. Shinseki, 24 Vet.App. 391, 401(2011); Fed.R. Evid. 803(4)

Excerpt from decision below:

cf. FED. R. EVID. 803(4) (recognizing that statements made for the purpose of medical treatment generally are reliable).
=======================

“With regard to the lack of discussion by the 2008 VA examiner about
military service and whether or not a major depressive disorder might have been a likely diagnosis in the period immediately after WWII, there is no per se requirement that a medical examiner restate any particular facts in his report. See Parrish v. Shinseki, 24 Vet.App. 391, 401 (2011) (“[I]t is the Board, not medical examiners, that has the duty to . . . [provide] a statement of reasons or bases.”(citing Gabrielson v. Brown, 7 Vet.App. 36, 40 (1994))); see also D’Aries v. Peake, 22 Vet.App. 97, 103-04 (2008) (holding that a medical opinion is adequate where it is based upon the veteran’s medical history, examinations, and also describes the disability in sufficient detail, and holding that
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whether a medical opinion is adequate is a finding of fact, which the
Court reviews for clear error).
======================
—————————————————-

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 10-3627
THOMAS W. GOODALL, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before KASOLD, Chief Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.

KASOLD, Chief Judge: Veteran Thomas W. Goodall appeals through counsel a
November 30, 2009, decision of the Board of Veterans’ Appeals (Board) that denied disability compensation for depression, to include as secondary to headaches, because the depression was not service connected. Mr. Goodall seeks reversal arguing that the Board erred
by (1) failing to address an in-service head injury, (2) relying on his lay testimony to diagnose the onset of his depression, (3) providing and relying on an inadequate medical examination, and (4) failing to address whether his depression is related to his service-connected migraine headaches. The Secretary disputes these arguments. Single-judge disposition is appropriate. Frankel v. Derwinski, 1 Vet.App. 23, 25-26
(1990). For the reasons set forth below, the Board’s decision will be
affirmed.
The record of proceedings does not support Mr. Goodall’s arguments. As to
his first argument, although the Board did not address an in-service head injury from the 1940s and any connection between that event and his current depression, Mr. Goodall fails to note any evidence of record indicating or suggesting any such nexus and he fails to demonstrate
that the Board erred by not addressing such a nexus. See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (appellant bears burden of demonstrating error on appeal); see also Robinson v. Peake, 21 Vet.App. 545, 522 (2008) (Board errs when it fails to address issues reasonably raised by the record), aff’d sub nom.

Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). Contrary to his
second argument, the record is replete with medical evidence supporting the Board’s finding that Mr. Goodall’s depression began many years after service and was not related to service. To the extent Mr. Goodall contends that medical examiners cannot rely on the history of symptoms provided by a patient in support of an opinion on etiologyof a mental condition, he cites no support for such a proposition; indeed, the law
is to the contrary, see Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.
Cir. 2007) (noting general competence of laypersons to testify as to symptoms but not medical diagnosis); Espiritu v. Derwinski, 2 Vet.App. 492, 494-95 (1992) (stating that a layperson generally can provide an account of symptoms but not a diagnosis that requires medical knowledge); cf. FED. R. EVID. 803(4) (recognizing that statements made for the purpose of medical treatment generally are reliable).
In support of his third argument, Mr. Goodall notes that the January 2008
VA examination
report relied on by the Board did not address his military service in 1946
and 1947 or the likelihood
of a World War II diagnosis of major depressive order. He also contests
the competency of the
medical examiner. As to competency, Mr. Goodall did not raise this issue
below and he points to
nothing in the record that might have raised the issue below; he also
otherwise fails to establish any
basis for questioning the competencyof the examiner. See Bastien v.
Shinseki, 599 F.3d 1301, 1307
(Fed. Cir. 2010) (Board not required to present affirmative evidence of
competency in absence of
specific reasons for challenging competency); Rizzo v. Shinseki, 580 F.3d
1288, 1291 (Fed. Cir.
2009) (applying the presumption of regularity to VA examiner competency);
Hilkert v. West, 12
Vet.App. 145, 151 (1999) (en banc) (stating that Board is entitled to
assume competency of VA
examiner and appellant bears the burden of persuasion otherwise).
With regard to the lack of discussion by the 2008 VA examiner about
military service and whether or not a major depressive disorder might have been a likely diagnosis in the period immediately after WWII, there is no per se requirement that a medical examiner restate any particular facts in his report. See Parrish v. Shinseki, 24 Vet.App. 391, 401 (2011) (“[I]t is the Board, not medical examiners, that has the duty to . . . [provide] a statement of reasons or bases.”(citing Gabrielson v. Brown, 7 Vet.App. 36, 40 (1994))); see also D’Aries v. Peake, 22 Vet.App. 97, 103-04 (2008) (holding that a medical opinion is adequate where it is based upon the veteran’s medical history, examinations, and also describes the disability in sufficient detail, and holding that
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whether a medical opinion is adequate is a finding of fact, which the
Court reviews for clear error).
Here, the Board found that the VA examiner reviewed Mr. Goodall’s claims
file, which included service sick and morning call reports, as well as private medical records. However, as also found by the Board, the examiner noted that Mr. Goodall reported that his feelings of depression
began 8 to 10 years prior to the VA examination – which is some 40 or so
years after service.
Overall, the examiner opined that Mr. Goodall’s depression was not related to service. As noted above, nothing prevents an examiner from weighing the reported symptoms of a patient when rendering an opinion. See Jandreau and Espiritu, both supra. Moreover, Mr. Goodall fails to
demonstrate that the 2008 VA examiner’s opinion was predicated on
incomplete or erroneous facts.
Indeed, the Board found that there was no evidence of depression prior to
the time stated by Mr. Goodall, and based on the record of proceedings, that finding is plausible and not clearly erroneous. See Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) (“‘A finding is “clearly erroneous” when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and
firm conviction that a mistake has been committed.'”(quoting United States v. U.S.GypsumCo., 333 U.S. 364, 395 (1948))); see also Hilkert, supra.
Contrary to Mr. Goodall’s final argument, the Board discussed whether his
migraine headaches were the cause of his depression. Indeed, the record medical
reports generally addressed whether Mr. Goodall’s current depression might be related to his service-connected headaches. The Board discussed several private medical opinions, but noted that none reflected an opinion that Mr. Goodall’s depression was due to his headaches; the Board also noted some internal inconsistencies in some of the private reports. Moreover, the Board noted that the 2008 VA examiner also did not
attribute Mr. Goodall’s depression to his headaches; rather, he opined
that Mr. Goodall’s depression was due to his loneliness and feelings of uselessness.
Overall, the Board’s statement is understandable and faciliative of judicial review. See Allday v. Brown, 7 Vet.App. 517, 527 (1995)
(holding that the Board’s statement “must be adequate to enable claimant
to understand the precise basis for the Board’s decision, as well as to facilitate review in this Court”).
Upon consideration of the foregoing, November 30, 2009, decision of the
Board is
AFFIRMED.
DATED:
March 8, 2012
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Copies to:
Gregory Chandler, Esq.
VA General Counsel

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