Veteranclaims’s Blog

March 29, 2013

Single Judge Application, 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet.App. 1 (2011); Guidance for Noting, Evaluating, and Rating Joint Pain

Excerpt from decision below:

“The parties agree that a remand is required because the Board failed to address the relevance of 38 C.F.R. § 4.59 (2012), and evidence of pain the appellant experienced between 1992 and 1995.
Appellant’s Br. at 17-18 (citing Burton v. Shinseki, 25 Vet.App. 1 (2011)); Secretary’s Br. at 25-27. Section 4.59, which is entitled “Painful motion,” provides that “[i]t is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.” 38 C.F.R. § 4.59. Recently, in Burton, the Court held that § 4.59 “provides guidance for noting, evaluating, and rating joint pain” and that there is no “requirement that the pain be arthritis related.” 25 Vet.App. at 4.

============================
“Instead, the Board’s statement of reasons or bases suggests that the Board categorically rejected the appellant’s lay statements as not credible based solely on the absence of contemporaneous evidence. See R. at 20 (stating “in light of the absence of documentation of any knee complaints between . . . 1969 and . . . 1993, the [v]eteran’s allegations that he had continuous problems related to his left knee during . . . and after service are not credible”). The Board generally may not find that lay evidence lacks credibility “merely because it is unaccompanied by contemporaneous medical evidence.” Buchanan, 451 F.3d at 1336-37.
Moreover, “[w]hen assessing a claim, the Board may not consider the absence of evidence as substantive negative evidence.” Buczynski v. Shinseki, 24 Vet.App. 221, 224 (2011). Although this is not an absolute rule, “there must be a proper foundation . . . to demonstrate that such silence has a tendency to prove or disprove a relevant fact.” Horn v. Shinseki, 25 Vet.App. 231, 240 n.7 (2012).
Here, the Board’s summary reliance on the absence of evidence renders its statement of reasons or bases inadequate.
Accordingly, on remand, the Board must reassess the weight and credibility of the appellant’s statements concerning his postservice symptoms and adequately explain any negative credibility determination. See Tucker, Caluza, and Owens, all supra.”

============================

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 11-782
MARSHALL E. WILLIAMS, 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, Marshall E. Williams, appeals through counsel a
March 2, 2011, Board of Veterans’ Appeals (Board) decision that denied (1) entitlement to disability compensation benefits for asthma; a chronic psychiatric disorder, claimed as schizophrenia; and a left knee disorder; (2) a compensable disability rating for residuals of a fracture of the left fifth metatarsal head prior to October 17, 1995; and (3) a disability rating greater than 10% for residuals of a fracture of the left fifth metatarsal head beginning October 17, 1995. Record of Proceedings(R.) at 3-30. The appellant does not address the Board’s denial of a disability rating greater than 10% for residuals of a fracture of the left fifth metatarsal head beginning October 17, 1995. Accordingly, he has abandoned any challenge to the Board’s decision regarding the matter and the Court need not address the Board decision with respect to the matter. See Ford v. Gober, 10 Vet.App. 531, 535(1997) (claims not addressed in appellant’s pleadings are considered abandoned).
This appeal is timely, and the Court has jurisdiction to review the Board’s decision 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). For the following reasons, the Court will vacate the Board’s March 2, 2011, decision, and remand the matters addressed by the Court for further proceedings consistent with this decision.

I. SERVICE RECORDS
The appellant served on active duty in the U.S. Army from April 1968 to April 1970. R. at
825. On his pre-induction report of medical history, the appellant stated that he had a history of
asthma. R. at 768-69. The examining physician commented: “Asthma 1967. RX 1966 [with]
wheezing [illegible].” R. at 769. The appellant’s pre-induction medical examination report states
that his lungs and chest were “normal” upon clinical evaluation. R. at 766-67. Under the section
entitled “NOTES (Continued) AND SIGNIFICANT OR INTERVAL HISTORY,” the examining
physician wrote: “Asthma – dates of RX – no verif.” R. at 767.
The appellant’s service medical records (SMRs) reveal that he was treated on December 12,
1968, for an upper respiratory infection. R. at 780. He had presented to the dispensary with a 102.6
degree temperature, dry cough, sore throat, and weakness. Id. In addition, an October 1969
treatment note documented “complaints and treatment for a knee sprain playing football . . . without
identifying which knee was injured.” R. at 18; see also R. at 1669 (February 2004 VA compensation
and pension examination noting that the claims file documented a “‘sprained knee'” in October 1969).
On his February 1970 separation report of medical history, the appellant again noted that he
had a history of “[a]sthma.” R. at 774-75. Under the section entitled, “PHYSICIAN’S SUMMARY
AND ELABORATION OF ALL PERTINENT DATA,” the examining physician wrote: “Asthma
as a child, no sequela.” R. at 775. The appellant’s separation medical examination did not diagnose
him with any lower extremity condition, asthma, or a psychiatric abnormality. R. at 767-77.

II. ASTHMA
A. Background
In June 2009, VA received an informal claim for disability compensation for asthma. R. at
187. In December 2009, the regional office (RO) denied the claim. R. at 101-07. The appellant
filed a timely Notice of Disagreement (NOD), and subsequently perfected his appeal to the Board.
R. at 46, 96. In his NOD, the appellant asserted that although the “evidence shows that my [a]sthma
condition started prior to service . . . there is no ‘clear and unmistakable evidence’ that [it] was not
aggravated” during service. R. at 96.
2

In March 2011, the Board issued the decision currently on appeal denying entitlement to disability compensation for asthma. R. at 3-30.

B. Analysis
The appellant argues that the Board clearly erred and failed to properly apply the presumption of soundness, when it found that the appellant’s asthma “was ‘noted’ at the time of [his] entrance into service,” and that “clear and unmistakable evidence shows that his asthma pre-existed his active duty
service.” R. at 14; see Appellant’s Brief (Br.) at 7-10. The Secretary asserts that the Board’s decision should be vacated and the matter remanded because the Board failed to provided an adequate statement of reasons or bases for its decision. Secretary’s Br. at 21-24.
Pursuant to 38 U.S.C. § 1111, “every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination.” Thus, when no preexisting condition is noted upon entry into service, the veteran is presumed sound. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). This presumption can only be overcome by clear and unmistakable evidence that the injury or disease preexisted service and was not aggravated by service. See 38 U.S.C. § 1111; Wagner, supra; see also Jordan v. Nicholson, 401 F.3d 1296, 1298 (Fed. Cir. 2005). “Clear and unmistakable evidence” means that the evidence “‘cannot be misinterpreted and misunderstood, i.e., it is undebatable.'” Quirin v. Shinseki, 22 Vet.App. 390, 396 (2009) (quoting Vanerson v. West, 12 Vet.App. 254, 258-59 (1999)). When an injury or disease has been shown to have existed before acceptance and enrollment to military service, it will be considered to have been aggravated in service, unless the Secretary establishes, by clear and unmistakable evidence, either that there was no increase in disability during service or that any increase in disability was due to the “natural progress” of the preexisting disease or injury. See 38 U.S.C. § 1111; Wagner, supra; see also Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). The aggravation prong of the presumption of soundness requires VA to rely on affirmative evidence that there was no aggravation. Horn v. Shinseki, 25 Vet.App. 231, 235 (2012) (stating that “VA may not rest on the notion that the record contains insufficient evidence of aggravation,” and the Secretary’s failure “to produce clear and
unmistakable evidence of lack of aggravation” entitles a claimant to a finding of in-service aggravation of the preexisting condition).
3

The Board found that the appellant’s asthma was “‘noted'” at the time the appellant entered
military service, stating that the appellant’s “March 1968 pre-induction examination report
documented that the claimant was an asthmatic albeit not verified.” R. at 14. Relying on the same
evidence, the Board also stated that the record contained “clear and unmistakable evidence” that the
appellant’s asthma preexisted service. Id.
The Court agrees with the Secretary that the Board’s statement of reasons and bases is
inadequate to facilitate review. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet.App. 517, 527
(1995) (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 adequate to enable an
appellant to understand the precise basis for the Board’s decision, and to facilitate informed review
in this Court). Although the Board appears to have found that the presumption of soundness was
triggered, by undertaking an examination whether the record contained clear and unmistakable
evidence that the appellant’s asthma preexisted service and was not aggravated by service (see
38 U.S.C. § 1111), the Board, at the same time, found that the appellant’s asthma was “‘noted'” upon
entry into service. The presumption of soundness, however, does not apply when a preexisting
condition is “noted” at entry. See Wagner, 370 F.3d at 1096 (explaining, when a preexisting disorder
is noted at entry, the veteran may bring a claim for aggravation of that disorder, and the burden falls
upon the veteran to establish aggravation).
Moreover, the Board failed to address relevant precedent when it relied on the appellant’s preinduction
examination report to find that the appellant’s condition was “noted” at entry. It is well
established that merely noting a history of preservice medical problems does not suffice to “note”
a medical condition that is present at induction. See Crowe v. Brown, 7 Vet.App. 238, 245 (1994)
(childhood history of asthma did not “note” the condition at induction); see also 38 C.F.R.
§ 3.304(b)(1) (2012) (“History of preservice existence of conditions recorded at the time of
examinations does not constitute a notation of such conditions but will be considered together with
all other material evidence in determinations as to inception.”). The Board cited the appellant’s preinduction
examination, but failed to consider that the appellant’s clinical evaluation did not show any
abnormalities of his lungs or state that he had asthma at the time of induction. R. at 766-67. In
addition, although the Board acknowledged that the appellant’s reported history of asthma had not
4

been verified, the Board did not address what significance, if any, to assign to the fact that the
examining physician failed to record this history under the section “SUMMARY OF DEFECTS
AND DIAGNOSIS.” See R. at 767. Lastly, as noted by the Secretary, the appellant’s pre-induction
examination report (R. at 766-67) is not the only evidence of record that addresses the inception of
the appellant’s asthma. See R. at 96 (NOD), 561 (preservice medical record stating that the appellant
had asthma since he was three or four years old), 774-75 (separation examination).
Based on the foregoing, the Court agrees that the Board’s statement of reasons or bases is
inadequate; therefore, the Court will vacate the Board’s decision and remand the matter for further
adjudication. 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”).
On remand, the Board must determine whether the presumption of soundness applies in this case.
If the presumption applies, the Board must determine whether the record contains clear and
unmistakable evidence that the condition existed prior to service and was aggravated by service. If,
however, the presumption of soundness does not apply, then the Board must determine whether the
record establishes in-service aggravation.

III. FRACTURE OF THE LEFT FIFTH METATARSAL
A. Background
In September 1975, VA determined that the appellant had residuals of an incomplete fracture
of the left fifth metatarsal head that was related to service, but assigned a noncompensable disability
rating, effective March 24, 1975. R. at 2652-53.
An August 1992 VA treatment record indicates that the appellant complained of left foot pain
and swelling. R. at 2525. However, the examiner noted no swelling or tenderness, and stated that
“his foot injury should in no way limit his capacity for work.” Id. The following month, the
appellant requested an increased disability rating for his left toe condition. R. at 2527. At a March
1993 compensation and pension examination, the appellant complained of “almost daily achy and
sharp pain in the left foot” since his fracture in service. R. at 2499. Objective findings revealed
“tenderness to palpation on the dorsum of the left foot from the base of the great toe to the lateral
5

malleolar area,” but no deformity or obvious swelling of the foot. Id. The examiner stated that the
appellant had “no disability” related to the in-service fracture. Id.
In August 1993, the RO denied an increased disability rating. R. at 2497. The appellant filed
a timely NOD, and subsequently perfected his appeal to the Board. R. at 22, 2486-87. The appellant
also testified at an RO hearing in December 1993 that he had pain, tenderness, throbbing, and
swelling in his left foot. R. at 2472, 2475-76, 2477. After a lengthy history, in February 2003, the
RO granted a 10% disability evaluation, effective December 17, 2001. R. at 1908-12. The Board
subsequently determined that a 10% disability rating was warranted prior to December 17, 2001 (R.
at 1247-59), and in March 2007, the RO assigned a 10% disability rating effective from October 17,
1995, the date the RO identified as the date of receipt of the appellant’s claim for an increased rating
(R. at 22).
In the decision on appeal, the Board determined that the appellant’s claim for a compensable
disability rating had been pending from September 1992 (R. at 22), but continued to deny a
compensable disability rating prior to October 17, 1995 (R. at 20-26). The Board stated that a
compensable disability rating was not warranted because the appellant’s manifestations prior to
November 1998 constituted no more than mild impairment. R. at 25-26. In rendering its decision,
the Board noted that “examiners recorded no pertinent abnormal clinical findings regarding the left
fifth metatarsal disability,” and that “the [v]eteran’s only complaints were of recurrent left foot pain
and swelling.” R. at 25-26. However, the Board also stated that the “examiners . . . attributed his
pain more to gout and to the great toe than to the fifth metatarsal.” R. at 26.

B. Analysis
The parties agree that a remand is required because the Board failed to address the relevance of 38 C.F.R. § 4.59 (2012), and evidence of pain the appellant experienced between 1992 and 1995.
Appellant’s Br. at 17-18 (citing Burton v. Shinseki, 25 Vet.App. 1 (2011)); Secretary’s Br. at 25-27. Section 4.59, which is entitled “Painful motion,” provides that “[i]t is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.” 38 C.F.R. § 4.59. Recently, in Burton, the Court held that § 4.59 “provides guidance for noting, evaluating, and rating joint pain” and that there is no “requirement that the pain be arthritis related.” 25 Vet.App. at 4.
6

In its decision, the Board noted the appellant’s complaints of pain related to his left fifth
metatarsal fracture, but failed to consider whether a compensable rating was warranted pursuant to
§ 4.59. R. at 25-26. To the extent that the Board stated that “examiners . . . attributed [the
appellant’s] pain more to gout and to the great toe than to the fifth metatarsal” (R. at 26), the
Secretary concedes that the record contains conflicting evidence regarding the cause of the
appellant’s foot pain between September 1992 and October 1995 (see Secretary’s Br. at 26
(comparing R. at 2411 to R. at 2499). Because the Board failed to adequately discuss the conflicting
medical evidence, the Secretary asserts, as the Court found in Burton, that remand is warranted.
Secretary’s Br. at 26.
Based on the foregoing, the Court will accept the Secretary’s concession of Board error and
remand the matter. The Board’s failure to consider § 4.59 renders its statement of reasons or bases
denying a compensable rating prior to October 17, 1995, inadequate to facilitate review. See 38
U.S.C. § 7104(a); see also Burton, supra; Schafrath v. Derwinski, 1 Vet.App. 589, 592-93 (1991)
(Board is required to consider all evidence of record and to discuss in its decision all “potentially
applicable” provisions of law and regulation.).
IV. LEFT KNEE CONDITION
A. Background
In July 1996, the appellant filed a claim for disability compensation for a left knee condition.
R. at 2368. His claim was denied in January 1997. R. at 2298-300. In December 2001, the
appellant sought to reopen his previously disallowed claim. R. at 2035. The appellant has stated that
he injured his left knee on October 7, 1969, while playing football, and that it has since then
continued to give him problems. R. at 646, 649-50, 1563, 1809, 1965, 2356, 2359. The RO refused
to reopen the claim in February 2003. R. at 1908-12.
In February 2004, the appellant underwent a compensation and pension examination of his
left knee. R. at 1669-71. The VA examiner stated that review of the claims file indicated that the
appellant sprained a knee in October 1969, although which knee was not specified. R. at 1669. The
examiner also stated that “the earliest [postservice] mention I can find of a problem with the left knee
is in November of 1993, when there is a note from the Durham VA that the veteran was seen there
7
for a problem with the left knee and the left ankle.” Id. The examiner reported that “the veteran
state[d] that he had twisted the knee one week prior to his visit to the emergency room . . . and that
his knee was noted to be swollen.” Id. The examiner also noted that the appellant had been
diagnosed with “questionable arthritis versus bursitis,” and that a November 1993 x-ray did not show
any evidence of degenerative disease. Id.
The appellant reported to the examiner that he had developed problems with gout, and that
he had experienced constant pain in the left knee for the past year, which was aggravated by weight
bearing, standing, or walking. Id. The examiner diagnosed the appellant with degenerative joint
disease (DJD) and gout of the left knee, but concluded that his left knee condition was not related
to service. R. at 1670-71. The examiner provided the following etiology opinion:
I have reviewed the request for medical opinion dated 5th January, 2004. Question
is asked whether the DJD of the left knee is related to his sprain of the left knee
shown in October of 1969. I can find no evidence of problems in the left knee until
1993, at which time there is good documentation of a knee injury resulting in the
sprain and effusion of the left knee. In the absence of any symptomatology on the
examinations from 1969 until 1993, I can only come to the conclusion that the
problems with the left knee are not related to the sprain in 1969.
R. at 1671.
In December 2005, the Board denied entitlement to disability compensation for a left knee
condition. R. at 1247-59. However, in November 2007, the Court vacated the Board’s decision,
holding that the Board failed to address favorable evidence of record. R. at 955-61.
B. The Board’s March 2, 2011, Decision
In the decision on appeal, the Board found that the preponderance of evidence was against
finding that the appellant’s left knee condition manifested itself to a compensable degree during the
first postservice year, or that any current left knee disorder was related to his military service. R. at
5, 18-20. Significantly, the Board found the appellant’s allegations that he had continued problems
with his left knee during and after service not credible “in light of the absence of documentation of
any left knee complaints between the sprain in 1969 and the left knee sprain that was treated in
1993.” R. at 20 (citing Maxson v. West, 12 Vet.App. 453 (1999), aff’d, 230 F.3d 133 (Fed. Cir.
2000). The Board denied the appellant’s claim, stating that the February 2004 VA medical examiner
8
opined that his DJD was not related to the in-service injury, and that the record was void of any
competent medical evidence attributing the appellant’s current left knee condition to service. Id.

C. Analysis
The appellant argues that the February 2004 VA opinion, relied on by the Board, was inadequate because the examiner failed to consider the appellant’s statements regarding postservice symptoms. Appellant’s Br. at 19. The appellant also argues that the Board erred when it relied on Maxson, supra, to reject his lay evidence as not credible. Id.
The Secretary argues that the examiner’s opinion was not based solely on the lack of treatment records, noting that the examiner considered documentation of an injury to the left knee in 1993 and a November 1993 x-ray report, which did not show DJD. Secretary’s Br. at 18. The Secretary also asserts that the Board did not improperly discount the appellant’s lay testimony based upon the absence of contemporaneous medical evidence, but instead weighed the appellant’s
testimony against evidence that conflicted with the appellant’s claim of continuous symptoms. Id. at 19. The Court disagrees.
“It is the responsibility of the [Board], not this Court, to assess the credibility and weight to be given to evidence.” Owens v. Brown, 7 Vet.App. 429, 433 (1995). The Board is free to favor one medical opinion over another as long as the Board provides adequate reasons or bases for doing so.Id. at 435. However, a medical opinion that the Board relies upon must be adequate. Moreover, although VA need not provide a medical examination in all cases, “once the Secretary undertakes the effort to provide an examination when developing a service-connection claim, he must provide an adequate one.” Barr v. Nicholson, 21 Vet.App. 303, 311 (2007). A medical examination is considered adequate “where it is based upon consideration of the veteran’s prior medical history and
examinations and also describes the disability, if any, in sufficient detail so that the Board’s ‘”evaluation of the claimed disability will be a fully informed one.”‘” Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet.App. 405, 407 (1994) (quoting Green v. Derwinski, 1 Vet.App. 121, 124 (1991))). Additionally, the opinion “must support its conclusion
with an analysis that the Board can consider and weigh against contrary opinions.” Id. at 124-25.
“If a diagnosis is not supported by the findings on the examination report or if the report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for
9

evaluation purposes,” 38 C.F.R. § 4.2 (2012). See Stegall v. West, 11 Vet.App. 268, 270-71 (1998)(remanding matter where VA examination was inadequate under § 4.2); Hicks v. Brown, 8 Vet.App. 417, 422 (1995) (concluding that an inadequate medical examination frustrates judicial review).
“Whether a medical opinion is adequate is a finding of fact, which this Court reviews under the ‘clearly erroneous’ standard.” D’Aries v. Peake, 22 Vet.App. 97, 104 (2008); see also Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990). A finding of 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, 1 Vet.App. at 52. As always, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board’s decision as well as to facilitate review in this Court. 38 U.S.C. § 7104(d)(1); see Allday, 7 Vet.App. at 527; Gilbert, 1 Vet.App. at 56-57. 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 any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).

1. Adequacy of VA Medical Opinion
Here, the Board explained that the February 2004 VA examiner’s opinion that the appellant’s
condition was not related to service was adequate to adjudicate the claim because “after a review of
the record on appeal and examination of the claimant[,] the examiner provided an opinion as to the
origins of his current left knee disorder, including adequate rationale.” R. at 11. The Board
concluded that the preponderence of the evidence was against the claim because the February 2004
VA examiner’s opinion was “uncontradicted.” R. at 20.
Although the VA medical examiner reviewed the appellant’s prior medical history, including
the in-service injury, and the appellant’s complaints that he has had continuous left knee symptoms,
it is clear that the examiner relied on the absence of corroborating evidence of left knee symptoms
to conclude that the appellant’s left knee condition was unrelated to service. See R. at 1671 (“In the
absence of any symptomatology on the examinations from 1969 until 1993, I can only come to the
conclusion that the problems with the left knee are not related to the sprain in 1969.”). In
10

considering the nature of an appellant’s disability, a VA examiner should consider the appellant’s description of his symptomatology. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (noting that VA’s examiner’s opinion, which relied on the absence of contemporaneous medical evidence, “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”); Dalton v. Nicholson, 21 Vet.App. 23, 39 (2007) (finding a medical examination inadequate where the examiner “impermissibly ignored the appellant’s lay assertions that he had sustained a back injury during service”). The only rationale provided by the examiner for his negative nexus opinion is the
absence of postservice treatment records recording the appellant’s symptomatology. Therefore, although the examiner may have been aware of the appellant’s postservice symptoms, he failed to explain why they did not present sufficient evidence linking the appellant’s current condition to service. See Stefl, supra. Although an examiner does not have a reasons-or-bases requirement, he must provide support for his decision. Accordingly, because the Secretary undertook to provide a medical examination, and the only etiology opinion of record is inadequate, a remand is necessary to obtain an adequate medical opinion with supporting rationale. See Buchanan and Stefl, both supra; see also Bowling v. Principi, 15 Vet.App. 1, 12 (2001) (citing 38 C.F.R. § 19.9(a) (2000) when holding that the Board has a duty to remand a case “[i]f further evidence or clarification of the evidence or correction of a procedural defect is essential for a proper appellate decision”).

2. Appellant’s Lay Evidence
The Court further agrees that the Board erred when it relied on the absence of corroborating evidence to find the appellant not credible. See R. at 20 (citing Maxson, supra). In Maxson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) explained that “a prolonged period without medical complaint can be considered, along with other factors concerning the veteran’s health and
medical treatment during and after military service,” when deciding a claim. 230 F.3d at 1333. The Federal Circuit cautioned, however, that the “trier of fact should consider all of the evidence including the availability of medical records, the nature and course of the disease or disability, the amount of time that elapsed since military service, and any other relevant facts.” Id. The Board noted these factors when reciting the evidence of record (see R. at 19), but failed to explain how it weighed the evidence against the appellant’s claim (see R. at 20). See Dennis v. Nicholson,
11

21 Vet.App. 18, 22 (2007) (“The Court has long held that merely listing evidence before stating a conclusion does not constitute an adequate statement of reasons and bases.” (citing Abernathy v. Principi, 3 Vet.App. 461, 465 (1992))). Instead, the Board’s statement of reasons or bases suggests that the Board categorically rejected the appellant’s lay statements as not credible based solely on the
absence of contemporaneous evidence. See R. at 20 (stating “in light of the absence of documentation of any knee complaints between . . . 1969 and . . . 1993, the [v]eteran’s allegations that he had continuous problems related to his left knee during . . . and after service are not credible”). The Board generally may not find that lay evidence lacks credibility “merely because it is unaccompanied by contemporaneous medical evidence.” Buchanan, 451 F.3d at 1336-37.
Moreover, “[w]hen assessing a claim, the Board may not consider the absence of evidence as substantive negative evidence.” Buczynski v. Shinseki, 24 Vet.App. 221, 224 (2011). Although this is not an absolute rule, “there must be a proper foundation . . . to demonstrate that such silence has a tendency to prove or disprove a relevant fact.” Horn v. Shinseki, 25 Vet.App. 231, 240 n.7 (2012).
Here, the Board’s summary reliance on the absence of evidence renders its statement of reasons or bases inadequate.
Accordingly, on remand, the Board must reassess the weight and credibility of the appellant’s statements concerning his postservice symptoms and adequately explain any negative credibility determination. See Tucker, Caluza, and Owens, all supra.

V. ACQUIRED PSYCHIATRIC DISORDER – SCHIZOPHRENIA
A. Background
In January 1980, the appellant was diagnosed with schizophrenia. R. at 2174. Additional
VA medical records dated from November 2004 to April 2005 also include diagnoses of
schizophrenia. R. at 1329-30, 1336-37, 1349-50, 1410-11, 1420-21.
In January 2005, the appellant filed an informal claim for disability compensation for a
psychiatric condition. R. at 1475. His claim was denied in May 2005. R. at 1373-77, 1379-80. The
appellant filed a timely NOD, and subsequently perfected his appeal to the Board. R. at 1266, 1372.
The appellant underwent a VA psychiatry health consultation in May 2008 after which he
was diagnosed with a “mood disorder [not otherwise specified (NOS)].” R. at 483. An October
12

2008 mental health assessment listed an Axis I diagnosis of “[rule out] psychosis NOS,” and an Axis
II diagnosis of “[h]istory of cluster A [p]ersonality [d]isorders; [rule out] [p]aranoid personality
disorder.” R. at 343-46.
The appellant also underwent a VA compensation and pension mental disorders examination
in July 2008. R. at 1095-1102. The examiner found no Axis I diagnosis, but listed an Axis II
diagnosis of “[p]aranoid personality traits, cluster A.” R. at 1101. In September 2008, the RO
requested clarification from the VA examiner (R. at 1074-75), who provided an addendum to his
original opinion:
It was . . . noted that my opinion was that I saw no evidence of a diagnosis of
schizophrenia from the veteran’s military record, or from his post military record. I
was asked to clarify this opinion, as it was noted in Mr. William[s]’s medical record
that in 1980, 2004, and 2005, the diagnosis of paranoid schizophrenia was mentioned
in medical records from the Durham VAMC.
First, it would have been more detailed for me to have said in my evaluation that I saw no evidence for the JUSTIFICATION of the diagnosis of paranoid schizophrenia
from Mr. William[s]’s military records and post military medical records. In my
original evaluation, I do note in the first section that he was diagnosed as
schizophrenic at the Durham VAMC. However, in reading the narratives which
accompanied these diagnoses, I did not believe that there was adequate justification for the diagnosis of schizophrenia, according to [the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)]. Certainly[,] he had paranoid personality traits, such as indicated, according to the DSM-IV, as “A pervasive distrust and suspiciousness of others such that their motives are interpreted as malevolent, beginning in early adulthood…” Thus, I did not feel a diagnosis of schizophrenia was justified, but did believe that paranoid personality traits were present.
I have reread the medical record and the claims folder again, particularly those
sections from the Durham VAMC, and I continue to believe that a diagnosis of
schizophrenia is not justified. I do believe that paranoid traits are present. Regarding the question of whether or not these traits existed during the veteran’s service or within one year following his discharge, I think it is more likely than not that these traits were present.
R. at 1064. Another VA psychologist, in December 2008, stated that her impression “from the clinical interview and test data would be consistent with a [p]ersonality [d]isorder, NOS v[ersus].
13

[m]alingering,” not “schizophrenia, [post-traumatic stress disorder], or delusional disorder.” R. at
306.

B. The Board’s March 2, 2011, Decision
In the decision on appeal, the Board concluded that the appellant does not have a chronic acquired psychiatric disorder that is related to his military service. R. at 16-18. The Board further concluded, as did the compensation and pension examiner in July and October 2008, that the appellant “does not now have schizophrenia and that the diagnoses of schizophrenia noted in the record did not meet the DSM-IV[] criteria for that diagnosis.” R. at 18. Relying on the VA
examiner’s opinion, the Board stated that “although the [v]eteran’s paranoid personality traits may have been present during service, . . . the VA examiner indicated in October 2008, [that] those traits were manifestations of a personality disorder,” which is not a disease for which service connection
may be granted. R. at 17; see 38 C.F.R. § 3.303(c) (2012).

C. Analysis
The appellant argues that the Board provided an inadequate statement of reasons or bases for its rejection of several diagnoses of schizophrenia in the record and that the 2008 VA medical opinion, relied on by the Board to deny his claim, was inadequate. Appellant’s Br. at 10-17; Reply Br. at 2-11; see R. at 1064-78. The Secretary takes issue with the appellant’s characterization of his
earlier diagnoses, arguing that “the medical records upon which [the] [a]ppellant relies as establishing a diagnosis of schizophrenia list schizophrenia as a possible diagnosis, or one that is provisional upon ruling out another condition.” Secretary’s Br. at 11-13. The Secretary also asserts that the VA examiner provided an adequate rationale to support his opinion. Id. at 10-11, 15-17.
In its decision, the Board did not reject the various diagnoses of schizophrenia because they were listed as “possible” or “provisional” diagnoses. See R. at 16. Instead, the Board relied exclusively on the 2008 VA examiner’s opinion that “there was not adequate justification for a diagnosis of schizophrenia, according to the diagnostic criteria . . . in the DSM-IV[].” R. at 17.
Therefore, the Secretary’s post hoc rationalizations regarding the earlier diagnoses are entitled to no weight. See Martin v. Occupational Safety & Health Review Comm’n, 499 U.S. 144, 156 (1991)(“‘[L]itigation 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.”).
14
The Court further finds that the Board clearly erred when it found that the VA examiner provided adequate rationale for his opinion. See D’Aries and Stefl, both supra. Both the Board and the VA examiner acknowledged that the appellant had been diagnosed with schizophrenia in 1980, 2004, and 2005. R. at 16, 1064. As noted above, the sole rationale provided by the examiner to discount the earlier diagnoses is his statement that, although the appellant had paranoid personality
traits, “there was not adequate justification for the diagnosis of schizophrenia, according to the DSMIV[].”
R. at 1064. This statement, however, is not a sufficient basis for the Board to favor one medical opinion over another, as it amounts to nothing more than the examiner’s assertion that he is right and the others were wrong. See Stefl, 21 Vet.App. at 124 (a medical opinion must “support its conclusions with an analysis that the Board can consider and weigh against contrary opinions”).
Given the conflicting diagnoses of record, the Court agrees with the appellant that the mere assertion that the diagnostic criteria were not met does not provide the necessary reasoned explanation linking the medical data to the examiner’s conclusion. See Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301(2008) (noting that “a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two”). The examiner did not provide any explanation which DSM-IV criteria were not met or what information in the medical narratives caused him to conclude that the diagnoses were not justified. R. at 1064. Moreover, given
that the DSM-IV did not exist during the appellant’s period of active service or in 1980, it is unclear why a diagnosis of schizophrenia that did not meet the DSM-IV criteria was defective. See R. at 18.
The examiner found that “paranoid traits are present” and were more likely than not present during the appellant’s service or within one year following his discharge, but failed to provide an adequate explanation for his opinion that a diagnosis of schizophrenia was not justified. See Nieves-Rodriguez and Stefl, both supra. Accordingly, because the Board based its decision on an inadequate medical opinion, the Court will remand the matter to the Board for further development. See Bowling, Stegall, and Hicks, all supra.
15

VI. CONCLUSION
After consideration of the appellant’s and the Secretary’s pleadings, and a review of the record, the Board’s March 2, 2011, decision is VACATED and the matters addressed by the Court are REMANDED for further proceedings consistent with this decision.
In pursuing the matters on remand, the appellant is free to submit additional evidence and argument on the 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 additional evidence and argument in assessing entitlement to benefit sought); Kutscherousky v. 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 Secretary to provide for “expeditious treatment” of claims remanded by the Court).
DATED: March 28, 2013
Copies to:
David E. Boelzner, Esq.
VA General Counsel (027)
16

Advertisements
Older Posts »

Blog at WordPress.com.