Veteranclaims’s Blog

August 26, 2014

Single Judge Application: PTSD Disability Picture; Lay Evidence; Waters v. Shinseki, 601 F.3d 1274, 1278-79

Excerpt from decision below:

“On remand, the Board must readjudicate the appellant’s PTSD claim in the manner described by the Secretary: it must “adequately address all of the evidence of record in order to determine if [the appellant] is entitled to a rating in excess of 30[%],” in light of the notion that “[t]he regulation requires an evaluation of the effects of the symptoms, and not a search for a set of particular  symptoms. . . . [T]he issue before the Board is not whether [the appellant] has all or even some of the symptoms mentioned in the disability rating, but what the overall disability picture is of the [appellant], based on his symptoms.” Secretary’s Br. at 7 (citations omitted).”

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“Ironically, the Board found the appellant’s lay testimony to be conclusory without providing any rationale for this finding. See R. at 7, 10. The Board’s reliance on Waters to deny a medical examination is also troubling. Although it has not been the intent of  Congress to “routinely and virtually automatically” provide a medical examination to all veterans claiming service connection, Congress through statute has eased the evidentiary burden for those who have set foot in Vietnam by allowing them the benefits of presumptions for both Agent Orange exposure and health conditions caused by this exposure. However, tonsil cancer’s absence from the list of presumptions does not evidence an intent on the part of Congress to deprive a veteran of a medical examination. In fact,  if a Vietnam veteran has already been diagnosed with a condition presumptively associated with Agent Orange, a medical examination would not be necessary. It is only where the appellant has presumptive exposure to Agent Orange and a condition not definitely recognized as associated with
this exposure that a medical examination would appear necessary.
Further, the appellant is not claiming he was merely exposed to Agent Orange.
See R. at 527, 529. He is claiming that he was enveloped in an Agent Orange cloud,
inhaling Agent Orange and then vomiting, and felt as if he were in a gas chamber. R. at 527, 529.
There is nothing general or conclusory about this statement. He also has stated that despite the fact that tonsil cancer is a cancer often developed by smokers, he has never smoked. R. at 392. It is therefore unclear from the Board’s analysis why these statements were entirely discounted, and why a medical examination need not be provided. Remand is required for the Board to provide an adequate statement of reasons or
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bases for his lay testimony.”

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 13-1621
RICHARD T. ROY, APPELLANT,
V.
SLOAN D. GIBSON,
ACTING SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before GREENBERG, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

GREENBERG, Judge: The appellant, Richard T. Roy, appeals through counsel a
May 1,
2013, Board of Veterans’ Appeals (Board) decision that denied entitlement to (1) benefits based on service connection for squamous cell carcinoma of the right tonsil status
post right submandibular lymphadenopathy (tonsil cancer); and (2) a disability rating in excess of 30% for post-traumatic stress disorder (PTSD). Record (R.) at 3-17. The appellant argues that the Board erred by failing to (1) provide a medical examination on the issue of tonsil cancer, or an adequate statement of reasons or bases for its determinations in the absence of an examination; and (2) account for favorable evidence indicating moderately severe PTSD. Appellant’s Brief (Br.) at 3-17. The
Secretary concedes that the Board provided an inadequate statement of
reasons or bases with regard
to its PTSD determinations, but urges the Court to affirm the Board’s denial
of entitlement to benefits
based on tonsil cancer. Secretary’s Br. at 4-16. Review by a single judge
is authorized by 38 U.S.C.
§ 7254(b) and is appropriate for this appeal. See also Frankel v.
Derwinski, 1 Vet.App. 23, 25-26
(1990). As noted by Justice Alito in the Supreme Court’s decision in
Henderson v. Shinseki, the
Court’s scope of review in this appeal is “similar to that of an Article
III court reviewing agency
action under the Administrative Procedure Act, 5 U.S.C. § 706.” 131 S. Ct.
1197, 1201 n.2 (2011);

see 38 U.S.C. § 7261. For the following reasons, the Court will vacate the Board’s May 2013 decision and remand the matters of tonsil cancer and PTSD for further development and
readjudication.
The appellant had active service in the U.S. Marine Corps from May 1968 to
May 1970 as
a motor vehicle operator (3531), including combat in Vietnam. R. at 279,
584-85. In June 2005, the
appellant was diagnosed with PTSD. R. at 552-54. In March 2005, he was
assigned a 30% disability
rating for PTSD. R. at 550.
In August 2008, the appellant filed for benefits based on service
connection for tonsil cancer
describing an incident of direct exposure to Agent Orange in his
application as follows:
I was in Chu Lai Province in [June 1969], with 7 other soldiers. Agent
Orange was
dropped on the perimeter of the jungle and the wind carried it over us.
There were
orange particles everywhere and we were vomiting, eyes were burning, it
felt like
being in a gas chamber.
R. at 529. In October 2008, the VA regional office (RO) denied his claim.
R. at 448.
Later in October 2008, the appellant requested an increased disability
rating for his PTSD.
R. at 445. In December 2008, the appellant received psychotherapy
treatment, during which it was
noted that “[h]e has developed depression and an exacerbation of his ptsd [
symptoms] following
[diagnosis] and [treatment] of tonsillar cancer,” and that he “[continues]
to have moderately severe
ptsd [symptoms].” R. at 421. Later that month, the appellant underwent a
VA medical examination
in which the examiner reported that “the veteran described chronic PTSD
symptoms, which appear
to be rather mild, with more significant symptoms of avoidance noted which
have had a moderate
effect upon his daily functioning.” R. at 426. The examiner also stated
that the appellant reported
“memory problems,” and ultimately found “mild to moderate PTSD symptoms of
long-standing
duration,” and “a history of depressive symptoms.” R. at 428. The RO
denied an increased rating
in January 2009. R. at 410.
In February2009, the appellant provided a statement to VA with regard to
his appealed tonsil
cancer claim, stating that “I never smoked or drank excessively. This is a
cancer of smokers.” R.
at 392.
In November 2009, the appellant underwent a mental evaluation in which the
examining
psychiatrist noted “[c]ognition and memory with deficits in intermediate
memory.” R. at 656.
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During psychotherapy treatment in November 2010, a staff psychologist
noted that the appellant
“cites poor memory as an issue[with] compliance”with medications,
and considered it “possible that
vet is minimizing [symptom] severity.” R. at 677. During treatment in
September 2011, the same
staff psychologist noted that the appellant “tends to minimize” the impact
of his symptoms. R. at
691. Later in September 2011, the appellant underwent a VA medical
examination in which the
examiner found that the appellant had nightmares on a nightly basis; heard
the voices of dead
friends; and had worsening memory problems. R. at 64. The examiner also “
noted [the appellant’s]
tendency to minimize symptoms.” R. at 69.
In June 2013, the Board issued the decision on appeal, denying the
appellant’s tonsil cancer
claim and finding he was not entitled to a rating in excess of 30% for
PTSD. R. at 3-19. The Board
found that the duty to assist was satisfied despite the lack of a VA
medical examination for the
appellant’s tonsil cancer because the cancer occurred decades after
service and service connection
on a presumptive basis is not available for tonsil cancer. Regarding the
appellant’s own statements,
the Board found that “the lay statements from the Veteran and others
regarding a relationship
between a current disability and service [are] conclusory generalized
statements for reasons that will
be explained below.” R. at 7 (citations omitted). Below, the Board,
without discussing the
conclusory nature of the appellant’s statements, merely found:
To the extent the Veteran suggests a link to service, the nature of the disease, cancer,
is such that only those with appropriate medical training would possess the
credentials to assert a link with service that would be probative. Neither he nor his family members are shown to possess such credentials. R. at 10. This appeal followed.
As part of VA’s duty to assist the Secretary must provide a medical opinion or examination
if the evidence of record before the Secretary
(A) contains competent evidence that the claimant has a current disability,
or persistent or recurrent symptoms of a disability; and
(B) indicates that the disability or symptoms may be associated with the
claimant’s active military, naval, or air service; but
(C) does not contain sufficient medical evidence for the Secretaryto make
a decision on the claim.
38 U.S.C. § 5103A(d)(2); see McLendon v. Nicholson, 20 Vet.App. 79, 81 (
2006) (VA will provide
3

a medical examination when there is “(1) competent evidence of a current
disability or persistent or
recurrent symptoms of a disability.”). Subsection B imposes a standard
different than “competent
evidence,” and thus “medically competent evidence is not required in every
case to ‘indicate’ that the
claimant’s disability ‘may be associated’ with the claimant’s service.”
Colantonio v. Shinseki,
606 F.3d 1378, 1382 (Fed. Cir. 2010) (quoting 38 U.S.C. § 5103A(d)(2)(B)).
On the other hand, a conclusory, general lay statement suggesting a nexus between a current disability and service would not suffice to meet this standard as such a statement would, contrary to the intent of Congress, result in medical examinations being “routinely and virtually automatically” provided to all veterans claiming service connection. Waters v. Shinseki, 601 F.3d 1274, 1278-79.
VA presumes that veterans who served in Vietnam at any time from January
1962 until May 1975 were exposed to herbicides. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(
a)(6)(iii) (2013). VA provides a presumption of service connection to veterans exposed to
herbicides for specific diseases that are positively associated with exposure to herbicides; tonsil cancer is not among those specified diseases. 38 U.S.C. § 1116(a). The fact that service connection is not available on a presumptive basis does not preclude a veteran from establishing service connection with proof of actual or direct causation. Combee v. Brown, 34 F.3d 1039, 1042-44 (Fed. Cir. 1994) (stating that presumptive service connection “does not foreclose proof of direct service connection”).
The Court agrees with the Secretary’s concession that the Board failed to provide an adequate statement of reasons or bases for its determinations concerning PTSD. See
Gilbert v. Derwinski,
1 Vet.App. 49, 56-57 (1990) (the Board is required to provide a written
statement of the reasons or
bases for its findings andconclusions,adequateto enableanappellantto
understand the precise basis
for the Board’s decision as well as to facilitate review in this Court).
Specifically, the Board failed
to account in its decision for (1) a December 2008 treatment note
indicating that the appellant
“[continues] to have moderately severe ptsd [symptoms]” (R. at 421); (2)
evidence of memory problems (R. at 64, 69, 315, 427, 656, 677) that contradicts the Board’s
determination that such problems were “not seen at either of the [v]eteran’s VA examinations or in any other VA treatment record” (R. at 14); and (3) the appellant’s tendency, noted by physicians, to minimize the severity of his symptoms when describing them (R. at 677, 689, 692). See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table) (Board  must provide reasons for
4

its rejection of any material evidence favorable to the claimant). On remand, the Board must readjudicate the appellant’s PTSD claim in the manner described by the Secretary: it must “adequately address all of the evidence of record in order to determine if [the appellant] is entitled to a rating in excess of 30[%],” in light of the notion that “[t]he regulation requires an evaluation of the effects of the symptoms, and not a search for a set of particular  symptoms. . . . [T]he issue before the Board is not whether [the appellant] has all or even some of the
symptoms mentioned in the disability rating, but what the overall disabilitypicture is of the [
appellant], based on his symptoms.” Secretary’s Br. at 7 (citations omitted).
The Court also agrees with the appellant’s contention that the Board
provided an inadequate
statement of reasons or bases for its treatment of the appellant’s lay
testimony. See Gilbert, supra.
Ironically, the Board found the appellant’s lay testimony to be conclusory
without providing any rationale for this finding. See R. at 7, 10. The Board’s reliance on Waters to deny a medical examination is also troubling. Although it has not been the intent of  Congress to “routinely and virtually automatically” provide a medical examination to all veterans claiming service connection, Congress through statute has eased the evidentiary burden for those who have set foot in Vietnam by allowing them the benefits of presumptions for both Agent Orange exposure and health conditions caused by this exposure. However, tonsil cancer’s absence from the list of presumptions does not evidence an intent on the part of Congress to deprive a veteran of a medical examination. In fact,  if a Vietnam veteran has already been diagnosed with a condition presumptively associated with Agent Orange, a medical examination would not be necessary. It is only where the appellant has presumptive exposure to Agent Orange and a condition not definitely recognized as associated with
this exposure that a medical examination would appear necessary.
Further, the appellant is not claiming he was merely exposed to Agent Orange.
See R. at 527, 529. He is claiming that he was enveloped in an Agent Orange cloud,
inhaling Agent Orange and then vomiting, and felt as if he were in a gas chamber. R. at 527, 529.
There is nothing general or conclusory about this statement. He also has stated that despite the fact that tonsil cancer is a cancer often developed by smokers, he has never smoked. R. at 392. It is therefore unclear from the Board’s analysis why these statements were entirely discounted, and why a medical examination need not be provided. Remand is required for the Board to provide an adequate statement of reasons or
5

bases for his lay testimony.
On remand, the appellant may present, and the Board must consider, any
additional evidence and arguments, including evidence of a connection between tonsil cancer and Agent Orange exposure. See Appellant’s Br. at 6; Kay v. Principi, 16 Vet.App. 529, 534 (2002). This matter is to be provided expeditious treatment on remand. See 38 U.S.C. § 7112; see also Hayburn’s Case, 2 U.S. (2 Dall.) 409, 410 n., 1 L. Ed. 436 (1792) (“[M]any unfortunate and meritorious [veterans], whom Congress have justly thought proper objects of immediate relief, may  suffer great distress, even by a short delay, and may be utterly ruined, by a long one . . . .” (internal quotation marks omitted)).
For the foregoing reasons, and on review of the record, the May 1, 2013,
Board decision is
VACATED and the matters are REMANDED for readjudication.
DATED: June 30, 2014
Copies to:
Eric Zimmerman, Esq.
VA General Counsel (027)
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