Veteranclaims’s Blog

June 18, 2014

Single Judge Application, Gill v. Shinseki, 26 Vet.App. 386, 391 (2013); Flare-Ups

Filed under: Uncategorized — Tags: , , , — veteranclaims @ 12:22 pm

Excerpt from decision below:

“The record of proceedings (ROP) supports Mr. Robinson’s first argument.
Specifically, a January 2006 VA examination report notes that Mr. Robinson reported having
flare-ups, while a 2011 VA examination report notes that Mr. Robinson denied having flare-ups,
contending that his pain was constant. Although the Board noted this evidence, it summarily
concluded that the evidence that Mr. Robinson had no flare-ups outweighed the evidence that
he did have flare-ups.
It is not clear, however, why the evidence does not support a finding that Mr. Robinson had flare-ups in 2006 but was not having them in 2011, which would raise the possibility of a staged rating, subject to findings on credibility, frequency of flare-ups, and ability to obtain reliable evidence regarding the reported flare-ups in 2006 – issues not addressed by the Board. The Board’s failure to adequately explain its finding regarding the reported flare-ups or to address the related issues frustrates judicial review. See Allday v. Brown, 7 Vet.App. 517, 527 (1995) (holding that the Board’s statement “must be adequate to enable a claimant to understand the precise basis for the Board’s decision, as well as to facilitate review in this Court”).”

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

“Read as a whole, Janssen v. Principi, 15 Vet.App. 370, 379 (2001) (per curiam) (rendering a decision on the Board’s statement of reasons or bases “as a whole”), the Board statement reflects a misunderstanding by the Board that problems with the knee had to be present during a medical examination or they could not be considered when assessing the appropriate disability rating.
In fact, the Board is required to weigh all of the record evidence, including lay statements. See Gill v. Shinseki, 26 Vet.App. 386, 391 (2013) (noting requirement for Board decisions to be  based on the entire record); see also 38 U.S.C. § 7104(a) (“Decisions of the Board shall be based on the entire record in the proceeding . . . .”); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition” when, inter alia, lay testimony describes symptoms that are observed at the time they were experienced, and that later support a medical diagnosis).”

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

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 13-0373
WILLIAM ROBINSON, JR., APPELLANT,
V.
SLOAN D. GIBSON,
ACTING SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before KASOLD, Chief Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
KASOLD, Chief Judge: Veteran William Robinson, Jr., appeals through
counsel that part
of an October 10, 2012, decision of the Board of Veterans’ Appeals (Board)
that denied disability
compensation benefits in excess of 10% for his service-connected
chondromalacia of both his right
and left knees. Mr. Robinson alternatively argues that the Board (1)
failed to provide an adequate
statement of reasons or bases in finding a higher rating based on
functional loss or impact of flare-
ups was not warranted, or (2) relied on inadequate examinations that did
not address functional loss
or the impact of flare-ups. He further argues that the Board failed to
provide an adequate statement
of reasons or bases for denying separate ratings. The Secretary disputes
Mr. Robinson’s arguments.
Single-judge disposition is appropriate. Frankel v. Derwinski, 1 Vet.App.
23, 25-26 (1990). For the
reasons stated below, the Board decision on appeal will be set aside and
the matter remanded.
The record of proceedings (ROP) supports Mr. Robinson’s first argument.
Specifically, a
January 2006 VA examination report notes that Mr. Robinson reported having
flare-ups, while a
2011 VA examination report notes that Mr. Robinson denied having flare-ups,
contending that his
pain was constant. Although the Board noted this evidence, it summarily
concluded that the
evidence that Mr. Robinson had no flare-ups outweighed the evidence that
he did have flare-ups.
It is not clear, however, why the evidence does not support a finding that
Mr. Robinson had

flare-ups in 2006 but was not having them in 2011, which would raise the
possibility of a staged
rating, subject to findings on credibility, frequency of flare-ups, and
ability to obtain reliable
evidence regarding the reported flare-ups in 2006 – issues not addressed
by the Board. The Board’s
failure to adequately explain its finding regarding the reported flare-ups
or to address the related
issues frustrates judicial review. See Allday v. Brown, 7 Vet.App. 517,
527 (1995) (holding that the
Board’s statement “must be adequate to enable a claimant to understand the
precise basis for the
Board’s decision, as well as to facilitate review in this Court”). Remand
is warranted. Tucker v.
West, 11 Vet.App. 369, 374 (1998) (“[W]here 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, a remand is the appropriate remedy.”).
Mr. Robinson’s alternative argument regarding the adequacyof the medical
reports revolves
around the examiners’ discussions regarding his condition during flare-ups.
In light of the need to
remand this matter as noted above, Mr. Robinson’s alternative argument is
best addressed by the
Board in the first instance. See Dunn v. West, 11 Vet.App. 462, 467 (1998) (
remand of appellant’s
claim under one theory moots the remaining theories advanced on appeal).
TheROP alsosupports Mr.Robinson’sarguments regardingseparateratings
under38C.F.R.
§ 4.71a, Diagnostic Codes (DC) 5257 (instability of knee) and 5258 (
locking of knee). Read as a
whole, Janssen v. Principi, 15 Vet.App. 370, 379 (2001) (per curiam) (
rendering a decision on the
Board’s statement of reasons or bases “as a whole”), the Board statement
reflects a misunderstanding
by the Board that problems with the knee had to be present during a
medical examination or they could not be considered when assessing the appropriate disability rating.
In fact, the Board is required to weigh all of the record evidence, including lay statements.
See Gill v. Shinseki, 26 Vet.App. 386, 391 (2013) (noting requirement for Board decisions to be
based on the entire record); see also 38 U.S.C. § 7104(a) (“Decisions of the Board shall be
based on the entire record in the proceeding . . . .”); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (
Fed. Cir. 2007) (holding “[l]ay evidence can be competent and sufficient to establish a diagnosis
of a condition” when, inter alia, lay testimony describes symptoms that are observed at the time
they were experienced, and that later support a medical diagnosis).
Here,theBoardneverrenderedacredibilityassessmentregardingMr.
Robinson’sstatements;
2

it simply indicated it could rely only on the “objective” evidence of
instability or locking. Record
at 11. Since the medical reports did not reflect instability or locking,
the Board gave no weight to
Mr. Robinson’s reports to that effect. The Board can give no weight to his
statements if they are not
credible, but the Board never made a credibility determination or
explained the basis for such a
determination. The Board’s failure to adequately explain its weighing of
the potentially, materially
favorable evidence frustrates judicial review. Allday, supra; see also
Thompson v. Gober,
14 Vet.App. 187, 188 (2000) (per curiam order) (Board must address
material evidence potentially
favorable to the claimant).
Accordingly,theOctober10,2012,Boarddecisiondenyingdisabilitycompensation
benefits
greater than 10% for both his right and left knees is SET ASIDE and the
matter REMANDED.
DATED: June 11, 2014
Copies To:
Louis J. George, Esq.
VA General Counsel (027)
3

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