Veteranclaims’s Blog

June 11, 2014

Single Judge Application; Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010); Specific Nexus Statements; Symptomatology Rather than Etiology; McLendon, 20 Vet.App. 79, 83; Low Threshold

Excerpt from decision below:

“As to the third McLendon element, the Board determined that no competent medical evidence indicated that Mr. McCall’s psychiatric disorder is secondary to, or
aggravated by, his knee disorder.
The Board considered the lay testimony from Mr. McCall and his daughter attesting to nexus, but found that it was not competent because an etiological opinion required specialized training. R. at 10. The Secretary argues that this determination is consistent with the U. S. Court of Appeals for the Federal Circuit’s decision in Waters v. Shinseki, which held that a “conclusory generalized statement that [a veteran’s] service illness caused his present medical problems” does not automatically entitle a veteran to a medical nexus examination. 601 F.3d 1274, 1278-79 (Fed. Cir. 2010). Unlike the lay evidence in Waters, however, the lay statements here do not merely contain generalized nexus statements. Mr. McCall’s daughter, Tara S. McCall, testified that Mr. McCall “has been having severe shooting pains in his knees” and because he “does not take pain very well as it causes a lot of stress and elevates the symptoms of post-traumatic stress [disorder] and bipolar disorder.” R. at 60. She also noted that Mr. McCall often falls as a result of the pain in his knees, which is “extremely stressful . . . as he has always maintained a level of independence” and that the “pain is also causing him to become more depressed.” R. at 60. Mr. McCall also stated that his “major depressive disorder” was secondary to his medical condition with the “level of pain.” R. at 503.
Moreover, this Court has held that lay testimony is competent to establish
observable symptomatology and “may be sufficient to substantiate a claim of service
connection for an injury.” Layno v. Brown, 6 Vet.App. 465, 469 (1994). Because the Board did not discuss whether the lay testimony as to symptomatology–rather than etiology–met the “low threshold” of indicating that Mr. McCall’s psychiatric disorder was related to his knee condition, the Board’s statement of reasons or bases is inadequate. McLendon, 20 Vet.App. 79, 83 (explaining that the third element “requires only that the evidence ‘indicates’ that there ‘may’ be a nexus . . . . [which] is a low threshold“). Remand is therefore warranted. On remand the Board must fully address the McLendon elements and determine whether Mr. McCall is entitled to a medical nexus examination.

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

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 13-1010
ROOSEVELT MCCALL, APPELLANT,
V.
ERIC K. Previous DocumentSHINSEKINext Hit,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before DAVIS, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
DAVIS, Judge: U.S. Army veteran Roosevelt McCall, who served on active
duty from May
1974 to May 1978, appeals through counsel from a January 16, 2013, Board
of Veterans’ Appeals
(Board) decision that denied disability benefits for a psychiatric
disorder, claimed as secondary to
his service-connected bilateral knee disabilities. For the following
reasons, the Court will set aside
the Board’s January2013 decision and remand the matterfor further
proceedings consistent with this
decision.
I. ANALYSIS
Mr. McCall argues that the Board violated its duty to assist when it
failed to provide a VA
medical examination. Specifically, he alleges that VA was required to
provide an examination
because he and his daughter provided lay statements indicating that his
psychiatric condition is
related to his knee disability.
The Secretary’s duty to assist claimants in developing their claims
requires the Secretary to
obtain relevant evidence and make reasonable efforts to obtain records. 38
U.S.C. § 5103A. When
a medical examination is necessary to decide a claim, the Secretary must
provide such an

examination to the claimant. 38 U.S.C. § 5103A(d)(1). A medical
examination is necessary when
there is (1) “competent evidence of a current disability or persistent or
recurrent symptoms of a
disability,” (2) evidence establishing an in-service “event, injury, or
disease,” and (3) an “indication”
that the disabilityor symptoms maybe associated with service, but (4)
insufficient medical evidence
of record for the Secretary to make a decision on the claim. McLendon v.
Nicholson, 20 Vet.App.
79, 81 (2006); see 38 U.S.C. § 5103A(d)(2). The Board’s conclusion
regarding the necessity of a
medicalexaminationisreviewedunderthe”arbitrary,capricious,
anabuseofdiscretion,orotherwise
not in accordance with law” standard of review. See 38 U.S.C. § 7261(a)(3)(
A); McLendon, supra.
The Board’s decision must also include a written statement of the reasons
or bases for its findings
and conclusions of fact and law that adequately enables an appellant to
understand the basis for the
Board’s decision and facilitates review by this Court. 38 U.S.C. § 7104(d)(
1); Allday v. Brown, 7
Vet.App. 517, 527 (1995). To comply with this requirement, the Board must
analyze the credibility
and probative value of the evidence, account for evidence it finds
persuasive or unpersuasive, and
provide reasons for rejecting any material evidence favorable to the
claimant. Gilbert v. Derwinski,
1 Vet.App. 49, 56-57 (1990).
Because the Board here conceded that Mr. McCall currently suffers from a
psychiatric
disability (Record (R.) at 7), only the last three McLendon prongs are at
issue. As to the second
element, the Board noted that the record contains no evidence that Mr.
McCall suffered a psychiatric
disorder during service. The Board also explained that it accorded minimal
probative value to a
November 1978 VA examination that contained a “diagnostic impression of
anxiety reaction,”
because the examiner provided no rationale and also remarked that Mr.
McCall suffered from no
psychiatric disorders. R. at 8. Because the record contains no other
evidence documenting a mental
disability within one year of service, this determination is not clearly
erroneous. See McLendon,
supra (explaining that the second prong is a factual determination subject
to the “clearly erroneous”
standard of review); see also 38 U.S.C. § 7261(a)(4). However, Mr. McCall
claims that his
psychiatric condition is secondary to his in-service knee injury, for
which he receives disability
benefits. Because this injury is an “in-service event,” the Court finds
that the Board erred in failing
to discuss whether Mr. McCall’s knee injury satisfies the second McLendon
prong. See 38 C.F.R. §
3.310(a) (2013) (secondary service connection is awarded when a disability “
is proximately due to
2

or the result of a service-connected disease or injury”).
As to the third McLendon element, the Board determined that no competent medical evidence indicated that Mr. McCall’s psychiatric disorder is secondary to, or
aggravated by, his knee disorder.
The Board considered the lay testimony from Mr. McCall and his daughter attesting to nexus, but found that it was not competent because an etiological opinion required specialized training. R. at 10. The Secretary argues that this determination is consistent with the U. S. Court of Appeals for the Federal Circuit’s decision in Waters v. Shinseki, which held that a “conclusory generalized statement that [a veteran’s] service illness caused his present medical problems” does not automatically entitle a veteran to a medical nexus examination. 601 F.3d 1274, 1278-79 (Fed. Cir. 2010). Unlike the lay evidence in Waters, however, the lay statements here do not merely contain generalized nexus statements. Mr. McCall’s daughter, Tara S. McCall, testified that Mr. McCall “has been having severe shooting pains in his knees” and because he “does not take pain very well as it causes a lot of stress and elevates the symptoms of post-traumatic stress [disorder] and bipolar disorder.” R. at 60. She also noted that Mr. McCall often falls as a result of the pain in his knees, which is “extremely stressful . . . as he has always maintained a level of independence” and that the “pain is also causing him to become more depressed.” R. at 60. Mr. McCall also stated that his “major depressive disorder” was secondary to his medical condition with the “level of pain.” R. at 503.
Moreover, this Court has held that lay testimony is competent to establish
observable symptomatology and “may be sufficient to substantiate a claim of service connection for an injury.” Layno v. Brown, 6 Vet.App. 465, 469 (1994). Because the Board did not discuss whether the lay testimony as to symptomatology–rather than etiology–met the “low threshold” of indicating that Mr. McCall’s psychiatric disorder was related to his knee condition, the Board’s statement of reasons or bases is inadequate. McLendon, 20 Vet.App. 79, 83 (explaining that the third element “requires only that the evidence ‘indicates’ that there ‘may’ be a nexus . . . . [which] is a low threshold”). Remand is therefore warranted. On remand the Board must fully address the McLendon elements and determine whether Mr. McCall is entitled to a medical nexus examination.
Because the claim is being remanded, the Court need not address Mr.
McCall’s additional
arguments. See Mahl v. Principi, 15 Vet.App. 37, 38 (2001) (per curiam
order) (“[I]f the proper
remedy is a remand, there is no need to analyze and discuss all the other
claimed erros that would
3

result in a remedy no broader than a remand.”). However, in pursuing his
claim on remand, Mr.
McCall will be free to submit additional argument and evidence that the
Board must consider. See
Kay v. Principi,16 Vet.App. 529, 534 (2002).

II. CONCLUSION
Based on the foregoing, the Court SETS ASIDE the January 16, 2013, Board
decision and
REMANDS the matter for further proceedings consistent with this decision.
DATED: April 30, 2014
Copies to:
Kenneth L. LaVan, Esq.
VA General Counsel (027)
4

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

Blog at WordPress.com.

%d bloggers like this: