Veteranclaims’s Blog

June 11, 2014

Single Judge Application; Acevedo, 25 Vet.App. at 293(2010); Correct Facts and Reasoned Judgement; Stefl, 21 Vet.App. at 124–25; Supported Conclusion

Excerpt from decision below:

“There is no reasons-or-bases requirement on medical examiners. See Acevedo v. Shinseki, 25 Vet.App. 286, 293(2010). However, the opinion “must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.” Stefl, 21 Vet.App. at 124–25; 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”).
“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);

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

“The 2011 examiner provided no rationale why either disorder is not related to service. R. at 883-84; see Acevedo, 25 Vet.App. at 293; Nieves-Rodriguez, 22 Vet.App. at 304 (in the service-connection context, “neither a VA medical examination nor a private medical opinion is entitled to any weight . . . if it contains only data and conclusions”).
In addition, the examiner does not discuss the lay statements of record indicating, as recognized by the Board (R. at 13), that Mr. Hill experienced potentially related symptoms in service, including depression, anxiety, and suicidal ideation, and
underwent personality and behavioral changes.See R. at 2148-50, 2483, 2495-503.

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

“Although a medical examiner is not required to comment on every favorable piece of evidence in the claims file, “an adequate report must rest on correct facts and reasoned medical judgment.” Acevedo, 25 Vet.App. at 293. Here, the examiner
explicitly listed the significant information from the claims file on which she relied, but that list did not include the above-referenced lay statements. R. at 879-80.
Based on the above discussion, the Court concludes that the Board clearly erred in finding that the examiner’s report sufficiently informed the Board of the essential rationale for her opinion regarding service connection for Mr. Hill’s bipolar disorder and intermittent explosive disorder. See Monzingo, 26 Vet.App. at 105; Stefl, 21 Vet.App. at 123. On remand, the Board must ensure that the appellant is provided with an adequate medical examination in this regard.”

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

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 12-3281
VERNON B. HILL, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before PIETSCH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
PIETSCH, Judge: Vernon B. Hill appeals through counsel an October 3, 2012,
Board of
Veterans’Appeals (Board)decisionthatdeniedhim entitlementto
serviceconnectionforanacquired
psychiatric disorder, to include post-traumatic stress disorder (PTSD).
Single-judge disposition is
appropriate when the issue is of “relative simplicity” and “the outcome is
not reasonablydebatable.”
Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). This appeal is timely
and the Court has
jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). For the
reasons that follow, the Court will
vacate the October 2012 Board decision and remand the matter for
adjudication consistent with this
decision.
I. FACTS
Mr. Hill served on active duty in the U.S. Navy from February 1977 to
February 1980.
Record (R.) at 2483, 2486.
In June 2003, Mr. Hill filed a claim for entitlement to disability
benefits for bipolar disorder,
PTSD, and depression. R. at 2330-43. At a July 2003 VA mental health
examination, Mr. Hill
complained of flashbacks and nightmares related to traumatic events in the
Navy. R. at 2304-10. He
reported that during service he “witnessed two suicides and was har[]assed
by officers,” and that he

“frequently felt threatened . . . and felt he was going to be killed.” R.
at 2304. The examiner noted
that Mr. Hill “felt suicidal in the past and has wished that he had killed
himself as the two sailors had
when he was in the Navy.” Id. The examiner noted that four years prior to
the examination, Mr. Hill
“relapsed due to untreated PTSD.” Id. The examiner diagnosed Mr. Hill with
bipolar disorder, type
II, and determined that his PTSD screen was positive. R. at 2308-09.
Also in July 2003, Dr. Joseph Piszczor of the Jesse Brown VA Medical
Center (VAMC) in
Chicago, Illinois, and two other VA psychiatrists submitted a statement
regarding Mr. Hill’s
diagnosed bipolar disorder, intermittent explosive disorder, and PTSD. R.
at 2326-29. The
psychiatrists explained that Mr. Hill “has been experiencing nightmares,
waking up in sweats,
flashbacks,andintrusivethoughtsaboutsomeofhismilitaryexperiences.”R.at2328.
Thestatement
indicated that Mr. Hill reported that during service he experienced racism,
received threats of
physical harm and death, and that on one occasion, “two superior office[r]
s tried to get him into the
boatswain’s hold to do him bodily harm.” Id. The statement also explained
that Mr. Hill was
traumatized when “he found a fellow-soldier and friend of his who had
hanged himself on the
midship passage of the boat,” and witnessed another soldier throw himself
overboard. Id.
In September 2003, Mr. Hill’s longtime friend, George Smith, submitted a
letter stating that
he had “known [Mr. Hill] since well before he went into the Navy,” and
that he “was a happy go
lucky kind of guy.” R. at 2149. He explained that after Mr. Hill joined
the Navy, he received a “very
strange letter” in which
[Mr. Hill] was talking about how he had been mislead, and that he wish[ed]
that he
was dead, but that he was not going to let anyone kill him, although he [
wanted] to
die . . . . [He] also wrote and said he had made home made weapons, like
iron pipes
and that he had to sleep with them for fear of his life. I could hardly
read the letter,
[it was] so unlike [him].
Id.
Mr. Hill’s brother, David Hill, also submitted a letter in September 2003.
R. at 2150. He
stated that the appellant “was a well-grounded and pleasant individual
prior to going into the service,
however during his stay there he became more and more depressed and even
wrote me of ending his
life on several occasion[s].” Id. He stated that, following the
appellant’s discharge from service, he
2

continued to receive treatment in “mental hospitals for suicide attempts,”
and that he “has constantly
been on medication for Doctors and Psychiatrist[s] are forever treating
his condition.” Id.
Also in September 2003, Mr. Hill completed a PTSD questionnaire. R. at
2152-64. He
explained that on many occasions during service, he was threatened with
bodily harm and death by
“[First] Class (Wade) and (Diggs),” who also instructed “Third Class (
Green) and others to awake
[him] several times a week with threats of violence and death.” R. at 2159.
He stated that he was
forced to sleep with a lead pipe to “ward off any attacks.” Id.
In October 2003, Mr. Hill’s uncle, Eddie Baker, submitted a letter. R. at
2148. He stated that
he “watch[ed] and noticed the changes in [Mr. Hill] after he entered the
service.” Id. He reported that
he also received letters from Mr. Hill during service, in which the
appellant stated that “if he could
not get a discharge that he would kill himself.” Id.
At a February 2004 compensation and pension (C&P) examination for PTSD, Mr.
Hill
reported that he had anxiety, depression, and sleep problems and that he
experienced flashbacks of
the suicides of his two friends during service. R. at 1890. The examiner
diagnosed Mr. Hill with
“[a]nxietydisorder, not otherwise specified.” R. at 1891. The examiner
opined that the “[c]riteria for
PTSD was [sic] not met,” because although Mr. Hill experienced flashbacks, “
these flashbacks are
not to the point where they are frequent and intrusive and more
importantly the stressor is not action
related nor [is it] of a magnitude that will be considered out of the
excepted over the ordinary.” Id.
In October 2004, the VA regional office (RO) denied service connection for
a “mental
condition.” R. at 1881-89. In April 2005, Mr. Hill submitted a Notice of
Disagreement challenging
the RO’s decision. R. at 1870-76. He stated that he received treatment for “
psychological disorders”
in 1980 at theLorettaHospital outpatient facility, shortlyafter his
discharge from service. R. at 1872.
Healsostatedthathecontinuedto receivepsychological treatment at the
Lakeside VAHospital from
January 1992 to March 1992, and the Jesse Brown VAMC “between 1997 through
this present
period of time” for his “mental condition.” Id.
In January 2006, the RO issued a Statement of the Case that denied service
connection for
a mental condition, includingdepression, bipolardisorder,andPTSD. R.
at1745-67. In March 2006,
Mr. Hill appealed to the Board. R. at 1737. VAMC treatment records dated
May 11, 2006,
July 13, 2006, June 2, 2008, August 9, 2010, and August 24, 2011, include
diagnostic impressions
3

of bipolar disorder, PTSD, and intermittent explosive disorder. R. at 104-
05, 206-07, 498-99, 603-
04, 608-09.
In June 2006, Dr. Piszczor submitted a second statement detailing Mr.
Hill’s medical history
and treatment for PTSD and bipolar disorder. R. at 106-07. He explained
that he had treated Mr. Hill
for psychiatric issues since May 2000. R. at 106. He stated that on June
13, 2003, he diagnosed
Mr. Hill with PTSD “related to having witnessed two suicides while in the
militaryas well as feeling
constantly under threat from harassment by two of his sergeants.” R. at
106-07. Dr. Piszczor
explained that
Mr. Hill’s PTSD symptoms have included nightmares (sometimes accompanied
by
night sweats), flashbacks, intrusive thoughts, problems with sleep,
irritability and
outbursts of anger; he has had problems with coming to situations where he
is
reminded of the military (e.g., coming here to a veterans hospital,
talking about
situations connected to the military, being around other veterans) and
avoids talking
about the situation outside his groups here at Jesse Brown.
R. at 107. Dr. Piszczor also explained that on at least one occasion, Mr.
Hill’s PTSD symptoms
“worsened when the symptoms of his bipolar disorder worsened,” and that “[
h]is symptoms have
been severe enough to require inpatient psychiatric hospitalization five
times.” Id.
In February 2009, the Board remanded Mr. Hill’s claim for additional
development.
R. at 1680-91. The Board stated that, although Mr. Hill was provided a VA
examination in February
2004 and the examiner found that he did not meet the criteria for PTSD at
that time, subsequent
VAMC treatment records indicated that Mr. Hill had “a diagnosis of PTSD,
well-controlled.”
R. at 1688. The Board also noted that Mr. Hill was diagnosed with other
psychiatric disorders,
including “bipolar disorder, substance induced mood disorder, and
intermittent explosive/impulse
disorder,” but that the examiner only provided an opinion with regard to
PTSD. R. at 1688-89. The
Board instructed that, on remand, Mr. Hill “should be afforded a VA
examination to determine the
nature and etiologyof anypsychiatric disorder that maybe present, to
include PTSD.” Id. The Board
also instructed the RO to attempt to verify Mr. Hill’s stressors. R. at
1689.
At an April 2011 C&P examination, the examiner diagnosed Mr. Hill with “
Bipolar Disorder
NOS[(nototherwisespecified)]; Intermittent Explosive Disorder; [and]
polysubstancedependence,
in full remission.” R. at 883. The examiner stated that the “[b]ipolar
disorder and intermittent
4

explosive disorder cause moderate impairment presently, but historically
have caused severe
impairment,” and opined that “[t]hese disorders are not related to
military service.” R. at 884. The
examiner also found that, although Mr. Hill met the stressor criterion for
PTSD based on witnessing
the suicides of two Navy service members during service and being the
victim of strong armed
robbery after service, he did not meet the symptomatic criteria for PTSD.
R. at 883.
In its October 2012 decision here on appeal, the Board denied Mr. Hill
entitlement to service
connection for a chronic acquired psychiatric disorder, including PTSD. R.
at 3-16. Regarding
Mr. Hill’s PTSD claim, the Board noted that he claimed three stressors,
including the suicides of two
shipmates, harassment from senior shipmates, and being falsely accused of
marijuana possession
during service. R. at 9. The Board determined that the alleged suicides
during service could not be
verified. R. at 13. The Board also determined that the false accusations
of marijuana possession
during service could not be verified and, further, there was no medical
opinion of record linking this
claimed stressor to a current diagnosis of PTSD. Id. The Board also found
that, although it had no
reason to believe that Mr. Hill did not experience perceived harassment
and discrimination during
service, the preponderance of the medical evidence of record did not
reflect that he met the criteria
for PTSD based on this stressor. R. at 13-14. Lastly, in denying
entitlement to service connection for
Mr. Hill’s “remaining psychiatric disorders,” the Board relied principally
on the April 2011 VA
examination report thatconcludedthat Mr.
Hill’sbipolardisorderandintermittentexplosivedisorder
are not related to service. R. at 15.
On appeal, Mr. Hill argues that the April 2011 examination report is
inadequate because the
examiner failed to provide a rationale for her opinion that Mr. Hill’s
bipolar and intermittent
explosive disorders are not related to service. He also argues that the
Board failed to provide an
adequate statement of reasons or bases for its decision to deny service
connection for PTSD. The
Secretary responds that the Board’s decision should be affirmed because
the VA examination was
adequate. The Secretary also argues that the Board’s decision contains an
adequate statement of
reasons or bases.
5

II. ANALYSIS
A. Bipolar and Intermittent Explosive Disorders
The Secretary’s duty to assist includes “providing a medical examination
or obtaining a
medical opinion when such an examination or opinion is necessaryto make a
decision on the claim.”
38 U.S.C. § 5103A(d). “[O]nce the Secretary undertakes the effort to
provide an examination, . . .
he must provide an adequate one.” Barr v. Nicholson, 21 Vet.App. 303, 311 (
2007). An examination is 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)). There is no reasons-or-bases requirement on medical examiners. See Acevedo v. Shinseki, 25 Vet.App. 286, 293 (2010). However, the opinion “must support its conclusion with an analysis that the Board can consider and weigh against contraryopinions.” Stefl, 21 Vet.App. at 124–25; 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”).
“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); Gilbert v.Derwinski, 1 Vet.App. 49, 52 (1990) (” ‘A finding is “clearly erroneous” when although there is evidence to support it, the reviewingcourt on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ ” (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395(1948))).
The Board must provide a statement of the reasons or bases for its determinations, adequate to enable an appellant to understand the precise basis for its decision,
as well as to facilitate review in this Court. 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); 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).
6

Mr. Hill argues that the Board erred in concluding that the April 2011 VA
medical
examination was adequate with respect to his bipolar disorder and
intermittent explosive disorder.
Appellant’s Brief (Br.) at 7-10. The Court agrees. Reviewing the opinion
as a whole, the Court finds
that the Board’s determination that the 2011 examiner provided a thorough
and complete opinion
sufficient to support the Board’s decision regarding his bipolar disorder
and intermittent explosive
disorder was clearly erroneous. R. at 6. An examination report is adequate when it “sufficiently inform[s] the Board of a medical expert’s judgment on a medical question
and the essential rationale for that opinion.” Monzingo v. Shinseki, 26 Vet.App. 97, 105 (2012). The 2011 examiner provided no rationale why either disorder is not related to service. R. at 883-84; see Acevedo, 25 Vet.App. at 293; Nieves-Rodriguez, 22 Vet.App. at 304 (in the service-connection context, “neither a VA medical examination nor a private medical opinion is entitled to any weight . . . if it contains only data and conclusions”).
In addition, the examiner does not discuss the lay statements of record indicating, as recognized by the Board (R. at 13), that Mr. Hill experienced potentially related symptoms in service, including depression, anxiety, and suicidal ideation, and
underwent personality and behavioral changes.See R. at 2148-50, 2483, 2495-503.
Although a medical examiner is not required to comment on every favorable piece of evidence in the claims file, “an adequate report must rest on correct facts and reasoned medical judgment.” Acevedo, 25 Vet.App. at 293. Here, the examiner explicitly listed the significant information from the claims file on which she relied, but that list did not include the above-referenced lay statements. R. at 879-80.
Based on the above discussion, the Court concludes that the Board clearly erred in finding that the examiner’s report sufficiently informed the Board of the essential rationale for her opinion regarding service connection for Mr. Hill’s bipolar disorder and intermittent explosive disorder. See Monzingo, 26 Vet.App. at 105; Stefl, 21 Vet.App. at 123. On remand, the Board must ensure that the appellant is provided with an adequate medical examination in this regard.

B. PTSD
According to the Diagnostic and Statistical Manual of Mental Disorders (
4th ed., text
revision 2000) (DSM–IV–TR), the essential feature of PTSD is the “
development of characteristic
symptoms following exposure to an extreme traumatic stressor.”
DSM–IV–TR at 463. A medical
7

diagnosis of PTSD therefore, rests in part on the sufficiency of a
stressor, and also requires the
presence of specific symptoms, such as intense fear, helplessness, or
horror, persistent
reexperiencing of the traumatic event, persistent avoidance of stimuli
associated with the trauma,
and persistent symptoms of increased arousal, inability to sleep, or
hypervigilance. Id.
Mr. Hill argues that the Board did not provide an adequate statement of
reasons or bases for
favoring the 2004 and 2011 VA medical opinions concluding that the
appellant did not meet the
criteria for PTSD, over the June 2006 letter from his treating VA
psychiatrist, Dr. Piszczor,
indicating that the appellant did have PTSD. Appellant’s Br. at 10-14.
The Board found that, although Dr. Piszczor “did relate a diagnosis of
PTSD, at least in part,
to the Veteran’s reports of feeling constantlyunder threat from harassment
by[two] sergeants during
service,” this opinion was outweighed bythe February2004 and April 2011 VA
examination reports
that determined that Mr. Hill “did not meet the DSM-IV criteria for PTSD,
let alone PTSD related
to his alleged harassment.” R. at 14. The Board determined that the April
2011 opinion was entitled
to more probative weight because “the examiner reviewed the claims file,
interviewed the Veteran
thoroughly, considered his assertions, and discussed in detail the
criteria for a diagnosis of PTSD.”
Id. The Board further stated that the “April 2011 determination is
supported by the February 2004
VA determination on the matter.” Id.
The Court finds that the Board’s reasoning is faulty on four counts. First,
in relying on the
February 2004 VA examiner’s opinion that Mr. Hill did not meet the
stressor criteria for PTSD, the
Board failed to address an apparent disconnect between the examiner’s
opinion and the diagnostic
criteria set forth in DSM–IV. The 2004 examiner opined that Mr. Hill did
not meet the criteria for
PTSD because “the stressor is not action related nor [is it] of a
magnitude that will be considered out
of the excepted over the ordinary.” R. at 1891. However, a stressor need
not be “out of the excepted
over the ordinary” to satisfy DSM-IV. See DSM-IV at 427-28 (a stressor
occurs when “the person
experienced, witnessed, or was confronted with an event or events that
involved actual or threatened
death or serious injury, or a threat to the physical integrity of self or
others [and] the person’s
response involved intense fear, helplessness or horror”); Cohen v. Brown,
10 Vet.App. 128, 141
(1997) (“Under DSM–IV, there is no longer the requirement that the
stressor be ‘outside the range
of usual human experience’ and be ‘markedlydistressing to almost anyone'”)(
citingDSM-IIIat 247-
8

48 (3d ed., rev. 1987)). It is unclear whether the 2004 examiner
understood or considered the fact
that a stressor need not be “of a magnitude that will be considered out of
the excepted over the
ordinary” to satisfy DSM-IV, and the Board’s failure to discuss the
disconnect between the VA
examiner’s opinion and the DSM-IV criteria prevents proper review of its
decision bythe Court. See
38 U.S.C. § 7104(d)(1); Allday, 7 Vet.App. at 527; Gilbert, 1 Vet.App. at
57.
Second, to the extent that the Board viewed the 2011 examiner as opining
that Mr. Hill’s
harassment stressor was not sufficient, the Board failed to
adequatelyexplain this finding. The 2011
examiner found that Mr. Hill met the stressor criterion for PTSD based on
witnessing two suicides
during service and being the victim of strong armed robbery after service,
but was silent regarding
the sufficiency of the harassment stressor. R. at 883. In light of the
rule that there must be a proper
foundation for any negative inference the Board makes, the Board’s lack of
discussion for this
finding was inadequate. See Horn v. Shinseki, 25 Vet.App. 231, 239 n.7 (
2012) (the absence of
evidence cannot be substantive negative evidence without “a proper
foundation . . . to demonstrate
that such silence has a tendency to prove or disprove a relevant fact”);
see also
Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006).
Third, in relying on the April 2011 examiner’s opinion that Mr. Hill did
not meet the
symptomatic criteria for PTSD, the Board failed to discuss the principle
set forth in
McClain v. Nicholson, 21 Vet.App. 319, 321 (2007), that the “current
disability” requirement for
service connection may be satisfied by establishing disability either at
the time of filing or during
the pendency of the claim. The April 2011 examiner restricted her opinion
to Mr. Hill’s condition
at the time the examination was conducted as evidenced by her statements
that Mr. Hill “[does not]
meet [the] criteria for PTSD at the present time,” and the “[c]riteria for
PTSD are not met today.”
R. at 883 (emphasis added). More than seven years passed between Mr.
Hill’s initial filingfor service
connection in June 2003 and the VA medical examination and opinion in
April 2011, and diagnostic
impressions of PTSD and related treatment are repeatedly noted in VA
medical records during the
pendency of the claim.1
R. at 104-05, 206-07, 498-99, 603-04, 608-09; see also R. at 106-07, 2326-
1
The Court notes that the 2011 examiner’s statement that Mr. Hill “has
previously been diagnosed with PTSD
by [treatment] providers, but records only noted flashbacks, intrusive
thoughts and nightmares,” is not consistent with
all record evidence. R. at 883. The record indicates that the appellant’s
PTSD symptoms have also included sleep
problems, irritability, outbursts of anger, and avoidance of situations or
discussions that reminded him of the military.
9

29. The Board did not discuss this passage of time or the possibility
that Mr. Hill had PTSD at any
time between 2003 and 2011, but that it had resolved or went into
remission by April 2011.
Fourth, although the Board concluded that the VA records indicating that
Mr. Hill had PTSD
prior to the 2011 examination did not “specifically indicate that he [met]
the DSM-IV criteria for
PTSD due to his in-service harassment or discrimination,” (R. at 14), the
Board failed to properly
apply the presumption that “[m]ental health professionals are experts and
are presumed to know the
DSM requirements applicable to their practice and to have taken them into
account in providing a
PTSD diagnosis.” Cohen, 10 Vet.App. at 140. Under Cohen, the presumption
that a PTSD diagnosis
is compliant with the DSM–IV applies unless there is actual evidence
showing that the PTSD
diagnosis was not made in accordance with the DSM–IV requirements. The
Board failed to discuss
this presumption in discounting the diagnoses of VA medical professionals.
The Secretary argues that the Board did not question whether the prior
diagnoses were made
in accordance with DSM-IV, but rather that they were based upon unverified
stressors. Secretary’s
Br. at 8-11. However, the Board’s discussion is not clear in this regard
and, further, such a reading
does not cure the Board’s other errors discussed above. Moreover, the
treatment records diagnosing
PTSD on May 11, 2006, July 13, 2006, and June 2, 2008, were written by Dr.
Piszczor, who opined
in his June 2006 letter that his diagnosis was based, in part, on the
appellant “feeling constantly
under threat from harassment by two of his sergeants.” R. at 107; see R.
at 104-05, 206-07, 603-04.
Insum, althoughtheBoardmaydiscount favorableevidence if it
findsthattheevidencelacks
probative value, the Board must provide an adequate statement of reasons
or bases “for its rejection
of any material evidence favorable to the claimant.” Thompson v. Gober, 14
Vet.App. 187, 188
(2000); see Owens v. Brown, 7 Vet.App. 429, 433 (1995) (“It is the
responsibility of the [Board] .
. . to assess the credibility and weight to be given to evidence.”). Here,
the Board provided
insufficient reasons or bases for rejecting the medical opinion of Dr.
Piszczor. Instead, the Board
discounted the probative value of his June 2006 letter because the Board
found his opinion to be
“outweighed” by the February 2004 and April 2011 examination reports. R.
at 14. However, as
discussed above, the Board failed to address the disconnect between the
2004 examiner’s opinion
See R. at 107.
10

and the criteria provided by DSM-IV. Further, the Board failed to discuss
the fact that the 2011
examiner limited her opinion to Mr. Hill’s condition at the time of the
examination. Finally, the
Board failed to properly account for the confirmatory diagnoses contained
in other VA treatment
records. Therefore, the Court finds the Board’s statement of reasons or
bases inadequate to facilitate
review. See 38 U.S.C. § 7104(d)(1); see also Allday, 7 Vet.App. at 527;
Gilbert, 1 Vet.App. at 56-
57; Caluza, 7 Vet.App. at 506.
Accordingly, remand is the appropriate remedy. 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”).
Given this disposition, the Court will not, at this time, address the
other arguments and issues
raised by Mr. Hill. See Best v. Principi, 15 Vet.App. 18, 20 (2001) (per
curiam order) (holding that
“[a] narrow decision preserves for the appellant an opportunity to argue
those claimed errors before
the Board at the readjudication, and, of course, before this Court in an
appeal, should the Board rule
against him”). On remand, he 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
additionalevidenceandargumentin assessingentitlementto benefit sought);
Kutscherouskyv.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(requiringSecretaryto provide for “expeditious treatment” of claims
remanded bytheCourt).

III. CONCLUSION
Based on the foregoing analysis, the record of proceedings, and the
filings of the parties, the
October 3, 2012, Board decision is VACATED and the matter is REMANDED for
further
proceedings consistent with this decision.
DATED: May 22, 2014
11

Copies to:
Lisa M. Ioannilli, Esq.
VA General Counsel (027)
12

Advertisements

Leave a Comment »

No comments yet.

RSS feed for comments on this post. TrackBack URI

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Create a free website or blog at WordPress.com.

%d bloggers like this: