Excerpt from decision below:
“The Secretary’s contention, however, was not one of the bases the Board articulated for finding the veteran’s assertions not credible. A post hoc rationalization is not a substitute for an adequate statement of reasons or bases.
See Breniser v. Shinseki, 25 Vet.App. 64, 79 (2011) (noting that
litigation positions “are not entitled to deference when they are merely appellate counsel’s ‘post hoc rationalizations’ for agency action advanced for the first time in the reviewing court” (internal quotation marks omitted)). Besides, Mr. Bowers’s argument is that his gallstones began to form approximately 6 to 12 years before his November 2007 surgery, that is, between 1995 and 2001. All the reports the Secretary cites, dated from 1976 to 1992, predate this period. See R. at 867, 893, 915, 917. Thus, it is not immediately clear that Mr. Bowers’s claims of unreported, in-service symptoms are even inconsistent with his SMRs.
===========================
—————————————————-
Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 11-3022
JOHN M. BOWERS, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before BARTLEY, Judge. MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
BARTLEY, Judge: Veteran John M. Bowers, who is self-represented, appeals
from a May
25, 2011, decision of the Board of Veterans’ Appeals (Board), denying
entitlement to service
connection forcholecystitisandpostoperativeresidualsofgallbladderremoval.1
Record(R.)at4-16.
This appeal is timely, and the Court has jurisdiction pursuant to 38 U.S.C.
§§ 7252(a) and 7266(a).
Single-judgedisposition is appropriate. See Frankel v. Derwinski, 1 Vet.
App. 23, 25-26 (1990). For
the reasons set forth below, the Court will set aside that portion of the
May 2011 Board decision that
is on appeal, and remand the matter for readjudication consistent with
this decision.
I. FACTS
Mr. Bowers served on active duty in the U.S. Air Force from June 1981 to
January 2005. R.
at 486. His service medical records (SMRs) do not contain any diagnoses of,
or complaints related
to, gallbladder problems. R. at 674-1007. In medical history reports dated
July 1976 (R. at 915),
The Board remanded for additional development claims for increased
disability evaluations for degenerative
arthritis of the right knee, status-post arthroscopic surgery, currently
evaluated as 10% disabling, and chondromalacia
of the left patella, currently evaluated as 10% disabling. Record at 14-16.
These issues are not before the Court. See
Adams v. West, 13 Vet.App. 453, 454 (2000) (noting that the Court lacks
jurisdiction over a claim remanded by the
Board).
1
October 1980 (R. at 917), October 1985 (R. at 893), and April 1992 (R. at
867), he specifically
denied frequent indigestion, gallbladder problems, or gallstones. After
discharge in January 2005,
Mr. Bowers applied for veterans disability benefits for several conditions
but did not mention
problems relating to his gallbladder. R. at 659-68.
Then, in January2007, Mr. Bowers presented at the Air Force
AcademyHospital emergency
room with severe upper abdominal and bilateral mid-back pain. R. at 286,
344. Ultrasound
confirmed the presence of stones in the gallbladder. R. at 287; see also R.
at 234-39. The diagnosis
was cholelithiasis with bile duct calculi and cholecystitis.2
Id. At a followup visit three weeks later
in February 2007, Mr. Bowers advised the attending physician that he
wished to postpone any
surgery. R. at 282-83. After experiencing additional episodes of severe
upper abdominal pain,
however, he underwent a cholecystectomy, or surgical removal of the
gallbladder, in October 2007.3
R. at 225-27; see also R. at 35.
November 2007 postoperative notes indicate that “numerous” gallstones were
present and
measured up to 1.2 centimeters in diameter. R. at 261, 269. The walls of
the gallbladder showed
scar tissue, measuring up to .5 centimeters in thickness. R. at 223, 261.
The final diagnosis was
“acute and chronic cholecystitis with cholelithiasis.” R. at 261. That
same month, Mr. Bowers filed
a claim for service connection of cholecystitis and partial removal of the
gallbladder and recounted
the foregoing medical history. R. at 344-45. Heelaborated in a December
2007 statement in support
of claim that, between 1999 and 2007, he experienced “[u]sually mild, but
occasionally moderate,
upper abdominal pain after eating a large/heavy meal,” between eight and
ten times per year. R. at
205. However, the veteran assumed it was indigestion and treated these
incidents with over-the-
counter medications. Id.
In a March 2008 rating decision, the VA regional office (RO) denied his
claims for service
connection for cholecystitis and gallbladder removal because there was no
evidence demonstrating
a “plausible relationship” between these conditions and his military
service. R. at 190-95. Mr.
“Cholelithiasis” means “the presence of or formation of gallstones,” which
are also known as calculi.
DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 349 (32d ed. 2012) [hereinafter
DORLAND’S]; see also id. at 271
(defining “calculi” as “abnormal concretions . . . of mineral salts”). ”
Cholecystitis” is an “inflammation of the
gallbladder.” Id. at 348.
3
2
See DORLAND’S at 348.
2
Bowers filed a Notice of Disagreement (NOD) in April 2008 and attached
numerous relevant
treatment records. R. at 134-37, 142-61. In the NOD, he argued that the RO
failed to consider his
report of self-medicating during service, and the size of the recovered
gallstones and the thickness
of the gallbladder wall caused by long-term scarring. R. at 136. According
to the veteran, these
facts, takentogether,”indicate[d] along-termcondition
thatbeganduringmilitaryservice,but which
did not become severe enough to seek medical treatment until after
retirement.” Id. More
specifically, in the NOD Mr. Bowers cited numerous medical treatises that
state that gallstones grow
at a rate of 1 to 2 millimeters per year. R. at 136-37. Based on this
growth rate and given that the
largest stones removed from his gallbladder in October 2007 were 1.2
centimeters (or 12
millimeters), he argued that the stones must have been developing before
his active duty terminated
in January 2005. Id. He also cited medical texts that said gallstones
could be developing for years
before they caused symptoms or observable problems. R. at 136.
The RO issued a Statement of the Case (SOC) in November 2008, and
continued to deny
service connection for cholecystitis and removal of gallbladder, stating
there was no evidence of a
nexus between these conditions and service. R. at 111-27. With respect to
the evidence Mr. Bowers
submitted regarding the growth rate of gallstones, the SOC noted only that,
although the presence
of gallstones is a condition entitled to presumptive serviceconnection,
thedisabilitydid not manifest
to a compensable degree within one year of discharge from service, so
service connection could not
be granted. R. at 127. The veteran appealed to the Board. R. at 82-83.
Testifying at a hearing before the Board in April 2011, Mr. Bowers
reiterated that during
service he treated what he thought at the time was indigestion with over-
the-counter medicine. R.
at 33; see also R. at 42. He once again shared his research about the rate
at which gallstones develop
and contended, based upon the size of the stones removed from this
gallbladder, that they must have
developed during service. R. at 33-36.
The Board issued the decision currently on appeal on May 25, 2011. R. at 4-
16. First, the
Board determined that VA had satisfied its duty to assist and that the
veteran was not entitled to a
medical nexus examination because “there [was] no credible evidence that [
the] pertinent disability
had its onset in service or is otherwise associated with active duty.” R.
at 8. Next, although
acknowledging Mr. Bowers’s claims of indigestion-like symptoms and back
pain during and after
3
service, the Board said his statements were not credible because there
was no mention of gallbladder
disease, gallstones, or cholecystitis in SMRs or postservice medical
records within a year of
discharge. R. at 11-12. Further, the Board stated: “It is not conceivable
that the [v]eteran had
unreported symptoms of cholelithiasis in service and continuously
following active duty. When
those symptoms were first reported in January 2007, the [v]eteran was in
the emergency room due
to their severity.” R. at 12. Finally, with respect to Mr. Bowers’s
argument, based on the medical
treatise evidence he cited, that his gallstones were developing during
service but did not cause
problems until after service, the Boardstatedsimplythathewas “not
competent to render a probative
opinion on a medical matter, such as the onset of gallstones, or of a
medical diagnosis or causation.”
R. at 12. Moreover, the Board found that no competent evidence linked
postoperative residuals of
gallbladder removal to service; Mr. Bowers needed to present, the Board
concluded,
“contemporaneous service treatment records reflecting treatment or
diagnosis of abdominal pain or
gallbladder disease during service.” R. at 13. This timely appeal followed.
II. ANALYSIS
Before this Court, Mr. Bowers argues that the Board failed to consider
properly the medical
treatise evidence that he offered. Appellant’s Informal Brief (Br.) at 2.
He acknowledges that he
never sought treatment for a gallbladder condition during service or
within the year immediately
following servicebut contends that this does not mean that his
gallstoneswerenotdevelopingduring
service. Id., Attachment at 3. Indeed, he contends that the treatise
evidence he offered, in
conjunction with the evidence showing the size of the gallstones removed
during the 2007 surgery,
“clearly show that gallstones must have been growing while [he] was on
active duty.” Id. The
Board, he asserts, misapplied 38 C.F.R. § 3.303 (2012) and used the
absence of any manifestation
of a gallbladder disorder within one year of service so as to avoid
considering the implications of the
evidence he submitted. Id. at 5-6. He asks that the Board be directed to
consider the size of his
gallstones at the time of his 2007 surgery and the medical treatise
evidence on the growth rate of
gallstones in general. Id. at 9.
The Secretaryargues in response that the Board’s decision had a plausible
basis in the record.
Secretary’s Br.at7-10. Further,theSecretarycontendsthattheBoard”
appropriatelyquestioned[Mr.
4
Bowers’s] credibility.” Id. at 10-11. Finally, despite acknowledging that ”
the Board did not directly
address the medical treatise information in its decision by referring to
the actual articles,” the
Secretarymaintains that Mr. Bowers was not prejudiced because the Board
did address his argument
that his gallstones must have formed while he was in service. Id. at 12.
But, according to the
Secretary, the Board rightly found that the veteran was not competent to
make such an argument.
Id. In any event, the Secretary argues, the medical treatises at issue ”
only discuss the general
characteristics of gallstones and do not state with any certainty that [
the veteran’s] gallstones would
have existed as [he] maintains.” Id. at 13.
Mr. Bowers replies that, notwithstanding the Secretary’s characterization
of the decision, the
Board did not address the treatise evidence he submitted. Reply Br. at 6-9.
He also takes issue with
how the Board determined he was not credible. Id. at 2-5.
The Court agrees with Mr. Bowers on every argument he presents.
Establishing service connection generally requires medical or, in certain
circumstances, lay
evidence of (1) a current disability; (2) an 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
McClain v. Nicholson, 21 Vet.App. 319, 320-21 (2007); see also Davidson v.
Shinseki, 581 F.3d
1313 (Fed. Cir. 2009). A finding of service connection, or no service
connection, is a finding of fact
reviewed under the “clearly erroneous” standard in 38 U.S.C. § 7261(a)(4).
See Swann v. Brown,
5 Vet.App. 229, 232 (1993). “A factual 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.'” Hersey v. Derwinski, 2 Vet.
App. 91, 94 (1992)
(quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
Additionally, the Board is required to include in its decision 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; that statement must be adequate to enable an appellant to
understand the precise basis for
the Board’s decision, as well as to facilitate informed review in this
Court. See 38 U.S.C.
§ 7104(d)(l); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990). To
comply with this requirement,
the Board must analyze the credibility and probative value of the evidence,
account for the evidence
that it finds persuasive or unpersuasive, and provide the reasons for its
rejection of any material
5
evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 507 (
1995); Gabrielson v.
Brown, 7 Vet.App. 36, 39-40 (1994). Cholecystitis and removal of
gallbladder are evaluated under
38 C.F.R. § 4.114, Diagnostic Codes 7314 and 7318 (2012), respectively.
A. Medical Treatise Evidence Regarding Growth Rate of Gallstones
First, the Court agrees with the veteran and the Secretary, see
Secretary’s Br. at 12, that the
Board failed to discuss the medical treatise evidence offered by Mr.
Bowers. This Court has stated
that medical treatise evidence may be sufficient to establish nexus in
instances where “standing
alone, [it] discusses generic relationships with a degree of certainty
such that, under the facts of a
specific case, there is at least plausible causality based upon objective
facts rather than on an
unsubstantiated lay medical opinion.” Wallin v. West, 11 Vet.App. 509, 514 (
1998) (quoting Sacks
v. West, 11 Vet.App. 314, 317 (1998)). The U.S. Court of Appeals for the
Federal Circuit has
likewise held that “in an appropriate case,” medical treatises can
establish the nexus element of
service connection. Hensley v. West, 212 F.3d 1255, 1265 (Fed. Cir. 2000) (”
A veteran with a
competent medical diagnosis of a current disorder may invoke an accepted
medical treatise in order
to establish the required nexus; in an appropriate case it should not be
necessary to obtain the
services of medical personnel to show how the treatise applies to his case
.”).
In this case, Mr. Bowers offered medical treatise evidence that placed the
growth rate of
gallstones at 1 to 2 millimeters per year, along with postoperative
records from November 2007
showing that he had gallstones as large as 1.2 centimeters. Certainly,
this is evidence that, if
credited,isfavorabletoMr.Bowers’sclaimforserviceconnection becauseit
woulddemonstratethat
stones began to form in his gallbladder while he was on active duty and
existed during service.4
As
such, the medical treatise evidence should have been discussed. Without
this discussion, the Board’s
statement of reasons or bases for its decision is inadequate. See Caluza,
supra; see also Daves v.
Nicholson, 21 Vet.App. 46, 51 (2007).
Contraryto the Secretary’s contentions, the Court is not persuaded that
the Board’s failure to
discuss this evidence is harmless. See Shinseki v. Sanders, 556 U.S. 396,
406-07 (2009) (noting that
4
There are 10 millimeters in 1 centimeter, so the 1.2 centimeter gallstone
removed from Mr. Bowers’s
gallbladder measures 12 millimeters. If the growth rate of gallstones is 1
to 2 millimeters per year, then at least one of
the veteran’s gallstones began developing 6 to 12 years before its removal
in October 2007, that is, between 1995 and
2001, when Mr. Bowers was serving in the Air Force (R. at 486).
6
38 U.S.C. § 7261(b) requires this Court to take due account of the rule
of prejudicial error). The
Secretary asserts that the treatise evidence “do[es] not provide the
requisite specificity to relate that
[Mr. Bowers’s] gallstones existed during service” because “they only
discuss the general
characteristics of gallstones.” Secretary’s Br. at 13. Therefore, the
Secretary maintains, the Board’s
failure to discuss the treatise evidence is harmless error. If the Board
were permitted to dismiss
summarily treatise evidence on the basis that it is too general, however,
there would be no value in
ever submitting treatise evidence because most such evidence is
necessarily generic in that sense.
See 38 C.F.R. § 3.159(a)(1) (2012) (“Competent medical evidence means
evidence provided by a
person who is qualified through education, training, or experience to
offer medical diagnoses,
statements, or opinions. . . . [and] may also mean statements conveying
sound medical principles
found in medical treatises. . . . [and] statements contained in
authoritative writings such as medical
and scientific articles and research reports or analyses.”). If credited,
the treatise evidence Mr.
Bowers submitted establishes that, as a general rule, gallstones grow at a
rate of 1 to 2 millimeters
per year. Applied specifically in Mr. Bowers’s case, the treatise evidence
would show that his
gallstones developed while he was in service. Moreover, there is no
evidence to suggest that the
veteran’s gallstones grew at a different rate or otherwise fell outside
the standard development time
line established in the medical treatises. The Board should have
considered and discussed the
treatise evidence that, if accepted, would seem to require little more
than the application of
arithmetic principles to establish service connection for the residuals of
gallstones. See Hensley,
supra.
Furthermore, even when medical articles or treatises are not, alone,
sufficient to establish
service connection, they “can provide important support when combined with
an opinion of a
medical professional.” Sacks, 11 Vet.App. at 317. The Secretary has a
statutory duty to “make
reasonable efforts to assist a claimant in obtaining evidence necessary to
substantiate the claimant’s
claim for a benefit.” 38 U.S.C. § 5103A(a)(1). This duty includes the
obligation to obtain a medical
opinion or provide a medical examination “when such an examination or
opinion is necessary to
make a decision on the claim.” 38 U.S.C. § 5103A(d)(1). VA must provide a
medical opinion or
examination if the evidence of record does not contain sufficient,
competent medical evidence to
decide the claim, but the following factors are present:
7
(1) [C]ompetent evidence of a current disability or persistent or
recurrent symptoms
of a disability, and (2) evidence establishing that an event, injury, or
disease occurred
in service or establishing certain diseases manifesting during an
applicable
presumptive period for which the claimant qualifies, and (3) an indication
that the
disability or persistent or recurrent symptoms of a disability may be
associated with
the veteran’s service or with another service-connected disability.
McLendon v. Nicholson, 20 Vet.App. 79, 81 (2006); see also 38 C.F.R. § 3.
159(c)(4)(i).
The third requirement—that the evidence indicate that a condition “may
be associated” with
service—establishes a “low threshold.” McLendon, 20 Vet.App. at 83. In
deciding whether a
medical opinion is necessary, the Secretary must consider the evidence of
record, “taking into
consideration all information and lay or medical evidence (including
statements of the claimant).”
38 U.S.C. § 5103A(d)(2). This Court reviews the Board’s ultimate
conclusion that a medical opinion
is or is not necessary pursuant to section 5103A(d)(2) under the ”
arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law” standard of review.
McLendon, 20 Vet.App.
at 81 (citing 38 U.S.C. § 7261(a)(3)(A)).
The Board stated in the decision on appeal that “there is no credible
evidence that [the]
pertinent disability had its onset in service or is otherwise associated
with active duty” and thus
determined that a medical opinion or examination was not warranted. R. at
8. As discussed above,
the Board failed to acknowledge or discuss the medical treatise evidence
that Mr. Bowers submitted
to and highlighted before the Board. Without such discussion, there is no
indication that the Board
took “into consideration all information” in the record. 38 U.S.C. §
5103A(d)(2). In the Court’s
view, the Board’s decision not to seek a medical opinion in connection
with the medical treatise
evidence submitted in this case was an abuse of discretion and not in
accordance with the law.
McLendon, 20 Vet.App. at 81; see also Colvin v. Derwinski, 1 Vet.App. 171,
175 (1991) (“If the
medical evidence of record is insufficient, or . . . of doubtful weight or
credibility, the [Board] is
always free to supplement the record by seeking an advisory opinion,
ordering a medical
examination[,] or citing recognized medical treatises in its decisions
that clearly support its ultimate
conclusions.”). If not sufficient on its face to establish service
connection, the medical treatise
evidence, coupled with the November 2007 postoperative findings in this
case, at least appears to
meet McLendon’s low threshold for seeking a medical opinion on the
likelihood that Mr. Bowers’s
gallstones and residual complaints are related to service. See McLendon,
supra.
8
TheSecretaryalsoasserts thattheBoard’sfailuretoaddressthemedicaltreatise
evidencewas
harmless because the Board addressed the substance of the medical treatise
evidence when it
considered Mr. Bowers’s arguments that his gallstones must have formed
while he was in service.
Secretary’s Br. at 12. This is not so. Although the Board acknowledged the
theorythat the veteran’s
gallstones began to form during service, the Board said this contention
was “without merit” because
“[a]s a layperson, the [v]eteran is not competent generallyto render a
probative opinion on a medical
matter.” R. at 12. Mr. Bowers, however, was not offering his own
subjective opinion as to the
growth rate of gallstones; he was repeating the data reported in
professional medical treatises he
submitted. Certainly, a layperson is competent to report information
provided by a medical
professional. Cf. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir.
2007) (holding that a
veteran is competent to repeat a medical diagnosis and report observable
symptoms). In labeling the
veteran’s report of the growth rate of gallstones as incompetent lay
opinion, the Board avoided
addressing the substance of the medical treatise evidence Mr. Bowers
submitted, just as the Board
failed to address those treatises directly.
Thus, the Board’s failure to address the medical treatise evidence that
was favorable to Mr.
Bowers was not harmless. See Sanders and Caluza, both supra. As such,
remand is warranted for
the Board to address this evidence initially, or after seeking a medical
opinion, if the Board
determines that one is necessary. See Tucker v. West, 11 Vet.App. 369, 374 (
1998) (holding that
remand is the appropriate remedy”where the Board has incorrectlyapplied
the law, failed to provide
an adequate statement of reasons or bases for its determinations, or where
the record is otherwise
inadequate”). And while the Board, rather than this Court, must address
the probative value of the
medical treatise evidence Mr. Bowers provided, the Court
cannotimagineunderwhat circumstances
such evidence would not be relevant and supportive of his claim for
service connection for
cholecystitis.
On remand, Mr. Bowers is free to submit additional evidence and argument
on his claims.
See Kay v. Principi, 16 Vet.App. 529, 534 (2002) (stating that, on remand,
the Board must consider
additional evidence and argument in assessing entitlement to benefit
sought). The Court has held
that “[a] remand is meant to entail a critical examination of the
justification for the decision.”
9
Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991). In accordance with 38
U.S.C. § 7112 , the Board
must proceed expeditiously with this case on remand.
B. Lay Statements Regarding In-Service Symptoms
Although the Court need not address additional allegations of error once
it has determined
that a remand to the Board is warranted, the Court may address other
issues to provide further
guidance on remand. See Quirin v. Shinseki, 22 Vet.App. 390, 396 (2009).
The Board found that
Mr. Bowers’s statements—that he suffered, both during and after service,
indigestion and episodes
ofupperabdominalpainradiatingtohis back—werenot credible. This
credibilitydetermination had
two bases. First, the Board found the absence of contemporaneous medical
records suggesting a
gallbladder disability probative. “The first evidence of pertinent
disability is in January 2007, after
discharge,”theBoardobserved,”with nomentionofahistoryofunreportedsymptoms
priorto then.”
R. at 12. Second, the Board stated: “It is not conceivable that the [v]
eteran had unreported symptoms
of cholelithiasis in serviceand continuouslyfollowing active duty. When
those symptoms were first
reported in January 2007, the [v]eteran was in the emergency room due to
their severity.” Mr.
Bowers challenges these credibility findings. Reply Br. at 2-6. Neither of
the Board’s observations
is a permissible basis for rejecting Mr. Bowers’s credibility.
First, the absence of contemporaneous medical records “does not, in and of
itself, render lay
evidence not credible.” Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed.
Cir. 2006).
Moreover, Mr. Bowers stated that he did not report upper abdominal
pain—which he thought was
indigestion—during service because he treated the problem with over-the-
counter products and his
symptoms were not that severe. See, e.g., R. at 205; see also R. at 35 (“I
didn’t have real[ly] bad
symptoms until after my retirement.”). The Board cannot find that the
veteran lacks credibility
simply because his SMRs do not document complaints or symptoms related to
a gallbladder
condition. See Buchanan, supra.
Second, the Board apparently found it incredible that Mr. Bowers could
experience mild or
no symptoms during service, where the symptoms, when first reported in
January 2007, were so
severe that he sought emergency treatment. It is not clear why the Board
was so dubious of the
notion that gallstones could generate little or no symptoms in the
beginning of their development but
severe symptoms later on. The Board may not rely on its own
unsubstantiated medical conclusions
10
but must rely on the medical evidence of record. See Colvin v. Derwinski,
1 Vet.App. 171, 172
(1991), overruled on other grounds by Hodge v. West, 155 F.3d 1356 (Fed.
Cir. 1998); see also
Kahana v. Shinseki, 24 Vet.App. 428, 434-35 (2011) (holding that the Board
erred in “making a
medical determination as to the relative severity, common symptomatology,
and usual treatment of
an . . . injury without citing to any independent medical evidence to
corroborate its finding”). Mr.
Bowers asserts that “gallstones are commonly asymptomatic for years.”
Reply Br. at 5. And as he
did on the issue of gallstone growth rates, Mr. Bowers cited in his April
2008 NOD medical treatises
that support this contention. R. at 136 (quoting a medical text that reads
: “Their (gallstones)
development is insidious, and they may remain asymptomatic for decades.”).
The Board also failed
to acknowledge and discuss this medical evidence, which would appear to
corroborate the veteran’s
laystatements regarding the course of his condition. But even if Mr.
Bowers had not submitted such
medical evidence, the Board would not have been permitted to supply its
own medical opinion as
to how gallstones develop or when they might begin producing noticeable
symptoms. See Colvin,
supra.
The Secretarycontends that the Board permissiblydoubted Mr. Bowers’s
credibilitybecause
his assertion that he experienced indigestion-like symptoms in service and
treated them with over-
the-counter products is inconsistent with medical history reports in which
he denied frequent
indigestion, gallbladder problems, or gallstones. Secretary’s Br. at 9.
The Secretary’s contention, however, was not one of the bases the Board articulated for finding the veteran’s assertions not credible. A post hoc rationalization is not a substitute for an adequate statement of reasons or bases.
See Breniser v. Shinseki, 25 Vet.App. 64, 79 (2011) (noting that
litigation positions “are not entitled to deference when they are merely appellate counsel’s ‘post hoc rationalizations’ for agency action
advanced for the first time in the reviewing court” (internal quotation
marks omitted)). Besides, Mr. Bowers’s argument is that his gallstones began to form approximately 6 to 12 years before his November 2007 surgery, that is, between 1995 and 2001. All the reports the Secretary cites, dated
from 1976 to 1992, predate this period. See R. at 867, 893, 915, 917. Thus,
it is not immediately clear that Mr. Bowers’s claims of unreported, in-service symptoms are even inconsistent with his SMRs.
11
Based on the nature of the medical evidence regarding gallstone growth
rates, the Board may
not need to evaluate the credibility of Mr. Bowers’s lay statements
regarding the course of his
gallbladder condition. If, however, the Board does find it necessary to do
so, it must refrain from
discounting his credibility on erroneous bases such as those discussed
above.
III. CONCLUSION
Upon consideration of the foregoing, that portion of the May 25, 2011,
Board decision on
appeal is SET ASIDE and REMANDED for readjudication consistent with this
decision.
DATED: December 11, 2012
Copies to:
John M. Bowers
VA General Counsel (027)
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