Veteranclaims’s Blog

August 13, 2021

Single Judge Application; Tadlock v. McDonough, F.4th, 2021 WL 2964328 at *7 (Fed. Cir. July 15, 2021)(holding that the Court’s statutory duty to consider prejudicial error “does not give it the right to make de novo findings of fact or otherwise resolve matters that are open to debate”); Hensley v. West, 212 F.3d 1255, 1263 (Fed. Cir. 2000) (“[A]ppellate tribunals are not appropriate fora for initial fact finding.”);

Designated for electronic publication only
No. 20-3581
Before BARTLEY, Chief Judge.
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
BARTLEY, Chief Judge: Veteran Henry L. Shatteen appeals through counsel an April 21,
2020, Board of Veterans’ Appeals (Board) decision denying entitlement to service connection for
an acquired psychiatric disorder. Record (R.) at 5-9. For the reasons that follow, the Court will
set aside the April 2020 Board decision and remand the matter for further development, if
necessary, and readjudication consistent with this decision.
Mr. Shatteen served on active duty in the U.S. Army from November 1972 to November

  1. R. at 704.
    In February 2012, Mr. Shatteen filed a claim seeking service connection for, among other
    things, post-traumatic stress disorder (PTSD). R. at 433. He included with his claim a February
    2012 report from Dr. Paul J. Yocom, a chiropractor. R. at 428-31. Dr. Yocom identified the
    injury-causing incident as an in-service bus accident resulting in several orthopedic injuries and
    headaches. Id. Dr. Yocom further opined that “Mr. Shatteen has symptoms of PTSD which
    include, but are not limited to[,] insomnia, sleep deprivation, anxiety, anger, rage, isolation,
    memory loss, hyper[]vigilance, [and] depression.” R. at 431. Dr. Yocom acknowledged that Mr.
    Shatteen was being evaluated by “the appropriate mental health professionals” and stated that he
    “would most probably defer to the specialty practitioner’s judgment in this regard.” Id. He
    explained, however, that he had recognized similar symptoms in other patients who were then
    referred to appropriate specialists and diagnosed with PTSD. Id. He opined that “[g]iven the
    history and elements of Mr. Shatteen’s PTSD, it is far more likely than not that same is directly
    and causally related to his military service.” Id.
    That same month, Mr. Shatteen was evaluated by Wende J. Anderson, a licensed
    psychologist. R. at 416-423. Ms. Anderson noted Mr. Shatteen’s report that he was injured in an
    in-service bus accident, R. at 419, and was involved in a traumatic live-fire training event during
    which another soldier “froze” while holding an armed grenade but ultimately threw it properly, R.
    at 420. She also noted the Mr. Shatteen reported heavy alcohol and marijuana use during service
    and convictions for misdemeanors such as drinking in public. R. at 419-20. As for Mr. Shatteen’s
    psychiatric symptoms, he “reported that he experienced ‘discouraged’ mood most of the day, nearly
    every day, which he attributed to his frustration with his economic concerns.” R. at 420. Ms.
    Anderson also noted symptoms of anhedonia, psychomotor retardation, fatigue and loss of energy,
    concentration problems, and recurrent thoughts of death, id., and opined that his “[s]peech was
    unusually slow,” that she had to use simplified language to communicate with him, that his
    processing speed was slow, and that he demonstrated circumstantial thinking, R. at 421. She
    hypothesized that he might have “difficulties with aphasia.” Id. Mr. Shatteen reported that his
    depression symptoms “became apparent ‘off and on’ beginning approximately nine to ten years
    prior to [the] assessment.” R. at 421. Ms. Anderson ruled out generalized anxiety disorder, manic
    episode, and panic disorder as diagnoses, R. at 421, opined that Mr. Shatteen’s symptoms were
    consistent with major depressive disorder, R. at 422, and “strongly recommended that Mr. Shatteen
    undergo neurological and/or neuropsychological assessment in order to determine the basis for”
    several of his symptoms, R. at 423. As for whether the condition was related to service, Ms.
    Anderson opined that, although “a history of cognitive and physiological responses to trauma cues
    was reported to have been apparent secondary to his military service, current difficulties on that
    arena were not apparent.” R. at 421.
    In April 2012, VA requested from the Personnel Information Exchange System (PIES) the
    pages from Mr. Shateen’s personnel file “showing unit of assignment, dates of assignment,
    participation in combat operations, wounds in action, awards and decorations[,] and official travel
    outside the [United States]” R. at 306 (capitalization altered). The records received include a
    February 1973 Army order documenting a January 1973 forfeiture of pay as punishment under
    Article 15 for “misconduct.” R. at 308.
    In an April 2012 statement in support of his claim for service connection for PTSD, Mr.
    Shatteen stated that, while stationed in Germany during the Vietnam War, they were on “high
    alert” and he “was constantly in fear of [his] life.” R. at 394. He also stated that, when another
    solder froze while holding a live grenade, he thought that he “would be blown up.” Id. In June
    2012, a VA regional office (RO) denied his claim for PTSD, explaining that, although the reported
    stressors “may be true, they are not researchable and cannot be verified by the service department.”
    R. at 379. The RO also found that there was no evidence of a current diagnosed disability. Id.
    Mr. Shatteen filed a Notice of Disagreement in July 2012. See R. at 331. In March 2014,
    the RO issued a Statement of the Case (SOC) continuing its denial of his PTSD claim. R. at 330-
  2. Mr. Shatteen filed his Substantive Appeal that same month, asserting that Ms. Anderson
    “clearly established [his] PTSD” diagnosis and that Dr. Yocom “clearly established the nexus of
    [his] disabilities to service.” R. at 368. In April 2018, the Board recharacterized the PTSD claim
    to include any acquired psychiatric disability, in accordance with Clemons v. Shinseki, 23 Vet.App.
    1, 5-6, 8 (2009), R. at 244, and remanded the matter for VA to obtain a new VA examination, R.
    at 253-55.
    Mr. Shatteen underwent a VA psychiatric examination in December 2019. R. at 87-114.
    The examiner indicated that Mr. Shatteen did not have any mental disorder that conformed with
    the Diagnostic and Statistical Manual of Mental Disorders [DSM], Fifth Edition, criteria. R. at
  3. Mr. Shatteen “denied ever receiving” mental health treatment and “denied current mental
    health complaints.” R. at 104. He reported that he started drinking alcohol during military service,
    but “denied receiving any alcohol[-]related disciplinary action” and denied any “drug use
    throughout [his] lifetime.” Id. He denied that he was ever worried about his health or experienced
    depression. R. at 109. He stated that he had forgotten most details of the hand grenade incident,
    R. at 105, although the examiner indicated that the reports of the incident in the record qualified
    as a stressor, R. at 106. The examiner opined that Dr. Yocom was not qualified to diagnose mental
    health conditions and that Mr. Shatteen had never been diagnosed with PTSD by a qualified mental
    health professional. R. at 87. She further noted that, in diagnosing major depressive disorder, Ms.
    Anderson “determined that the condition did not develop until many years after the claimed
    traumatic event” and was “associated with significant economic concerns.” R. at 89. The examiner
    explained that, since Mr. Shatteen now denied having ever experienced symptoms of a psychiatric
    disorder, it was “difficult to offer an opinion, per the order request, as to whether the diagnosis of
    [m]ajor [d]epressive [d]isorder is considered to be resolved,” and she questioned whether Dr.
    Anderson’s diagnosis was accurate and complied with the then-current fourth edition of the DSM.
    R. at 90. The examiner ultimately opined that Mr. Shatteen did not have a psychiatric disorder
    related to service because he did not have a current psychiatric disorder. R. at 88. In January
    2020, the RO issued a Supplemental SOC continuing its denial of the claim. R. at 77-79.
    In the April 2020 decision on appeal, the Board acknowledged Dr. Yocom’s positive nexus
    opinion but assigned it no weight because he was “not a licensed mental health professional[,] . . .
    did not note any of the DSM criteria, and further provided that he would defer to the specialty
    practitioner’s judgment on that regard.” R. at 7. As for Ms. Anderson’s evaluation, the Board
    acknowledged that she provided a diagnosis of major depressive disorder, but noted that it was
    associated with “economic concerns” and that there was no apparent nexus to service. Id.
    However, the Board found “the December 2019 VA opinion to be of significant probative value
    in determining that [Mr. Shatteen’s] psychiatric condition is not related to his active service.” R.
    at 8. And because the December 2019 VA examiner opined that Mr. Shatteen did not have a
    current mental disorder diagnosis related to service, the Board concluded that service connection
    was not warranted. See id. at 7-8. This appeal followed.
    Mr. Shatteen’s appeal is timely, and the Court has jurisdiction to review the April 2020
    Board decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is
    appropriate in this case. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
    Establishing service connection generally requires medical or, in certain circumstances, lay
    evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury;
    and (3) a link between the claimed in-service disease or injury and the present disability.
    Romanowsky v. Shinseki, 26 Vet.App. 289, 293 (2013).
    The Secretary has a duty to assist claimants in developing their claims. 38 U.S.C. § 5103A.
    This duty entails making reasonable efforts to help a claimant obtain evidence necessary to
    substantiate the claim, including military records in the custody of a Federal department or agency.
    38 U.S.C. § 5103A(a), (c)(1)(A); 38 C.F.R. § 3.159(c), (c)(2) (2021). “VA will end its efforts to
    obtain [such] records . . . only if VA concludes that the records sought do not exist or that further
    efforts to obtain those records would be futile,” such as when “the Federal department or agency
    advises VA that the requested records do not exist or the custodian does not have them.” 38 C.F.R.
    § 3.159(c)(2).
    The Board’s determinations regarding service connection and whether the duty to assist has
    been satisfied are findings of fact subject to the “clearly erroneous” standard of review set forth in
    38 U.S.C. § 7261(a)(4). See Nolen v. Gober, 14 Vet.App. 183, 184 (2000); Davis v. West,
    13 Vet.App. 178, 184 (1999). “A factual finding ‘is “clearly erroneous” when although there is
    evidence to support it, the reviewing court on the entire evidence is left with the definite and firm
    conviction that a mistake has been committed.'” Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992)
    (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
    With any finding on a material issue of fact and law presented on the record, the Board
    must support its duty-to-assist determination with an adequate statement of reasons or bases that
    enables the claimant to understand the precise basis for that determination and facilitates review
    in this Court. 38 U.S.C. § 7104(d)(1); Pederson v. McDonald, 27 Vet.App. 276, 286 (2015) (en
    banc); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57
    (1990). To comply with this requirement, the Board must analyze the credibility and probative
    value of evidence, account for evidence that it finds persuasive or unpersuasive, and provide
    reasons for its rejection of 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). Additionally,
    a remand by the Board or Court confers on the claimant a legal right to substantial compliance
    with the remand order. Donnellan v. Shinseki, 24 Vet.App. 167, 176 (2010); Dyment v. West,
    13 Vet.App. 141, 147 (1999); Stegall v. West, 11 Vet.App. 268, 271 (1998).
    Mr. Shatteen argues that, among other things, the Board failed to obtain his complete
    service personnel record. Appellant’s Brief (Br.) at 7. He asserts that records related to his Article
    15 punishment for misconduct are relevant to determining whether he had psychiatric symptoms
    during service that may be related to an acquired psychiatric disorder present at any time during
    the appeal period. Id. at 7-8. The Secretary disputes this argument, asserting that “[t]here is no
    indication that any additional service record would be relevant,” in part because Mr. Shatteen could
    not remember the events surrounding his Article 15 punishment or provide any details about past
    legal difficulties. Secretary’s Br. at 13-14. The Court agrees with Mr. Shatteen.
    VA’s April 2012 PIES request did not solicit Mr. Shatteen’s entire personnel records. See
    R. at 306. Rather, it requested documents that fit into several enumerated categories, none of
    which specifically relate to disciplinary actions. Accordingly, it is not clear whether the absence
    of any additional records regarding Mr. Shatteen’s January 1973 Article 15 punishment indicates
    that no additional records are available or that additional records are available, but were not
    submitted in response to the PIES request because they were not among the types of records
    As for whether any potentially outstanding personnel records are relevant to Mr. Shatteen’s
    appeal, the Court cannot find, in the first instance, that there is no reasonable possibility that Article
    15 records would not be relevant to the claim and would have no bearing on Ms. Anderson’s
    opinion that Mr. Shatteen’s major depressive disorder was unrelated to his active service. See
    Tadlock v. McDonough, _ F.4th , 2021 WL 2964328 at *7 (Fed. Cir. July 15, 2021)
    (holding that the Court’s statutory duty to consider prejudicial error “does not give it the right to
    make de novo findings of fact or otherwise resolve matters that are open to debate”); Hensley v.
    West, 212 F.3d 1255, 1263 (Fed. Cir. 2000) (“[A]ppellate tribunals are not appropriate fora for
    initial fact finding.”); see also Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010) (holding
    that, in close or uncertain cases, “[a]s long as a reasonable possibility exists that the records are
    relevant to the veteran’s claim, VA is required to assist the veteran in obtaining the identified
    records”); McGee v. Peake, 511 F.3d 1352, 1357 (Fed. Cir. 2008) (discussing VA’s obligation, in
    fulfilling its duty to assist, to “fully and sympathetically develop the veteran’s claim to its optimum
    before deciding it on the merits”).

    Because the Board offered no discussion regarding VA’s duty to assist, the Secretary’s
    arguments that additional assistance was unnecessary are nothing more than post-hoc
    rationalizations that the Court cannot consider. See In re Lee, 277 F.3d 1338, 1345-46 (Fed. Cir.
    2002) (“‘[C]ourts may not accept appellate counsel’s post-hoc rationalizations for agency action.'”);
    Evans v. Shinseki, 25 Vet.App. 7, 16 (2011) (“[I]t is the Board that is required to provide a complete
    statement of reasons or bases, and the Secretary cannot make up for its failure to do so.”). And
    even if the Court were to consider those arguments, the Secretary did not explain why or offer any
    support for his asasertion that Mr. Shatteen’s difficulty remembering now, nearly 50 years later,
    the circumstances surrounding his Article 15 punishment is probative evidence that no psychiatric
    disability present during the appeal period is related to active service. See McClain v. Nicholson,
    21 Vet.App. 319, 321 (2007) (holding that the current disability requirement is satisfied when a
    claimant “has a disability at the time a claim for VA disability compensation is filed or during the
    pendency of that claim”); see also Hyder v. Derwinski, 1 Vet.App. 221, 225 (1991) (“Lay
    hypothesizing, particularly in the absence of any supporting medical authority, serves no
    constructive purpose and cannot be considered by this Court.”).
    Accordingly, the Court concludes that the Board decision is not supported by adequate
    reasons or bases, specifically as it relates to VA’s duty to assist. See 38 U.S.C. § 7104(d)(1);
    Pederson, 27 Vet.App. at 286; Allday, 7 Vet.App. at 527; Gilbert, 1 Vet.App. at 56-57. Therefore,
    remand is warranted. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that remand is
    warranted “where the Board has . . . failed to provide an adequate statement of reasons or bases
    for its determinations”).
    Given this disposition, the Court need not address Mr. Shatteen’s additional arguments,
    which could not result in a remedy greater than remand. On remand, he is free to submit those
    arguments, as well as any additional arguments and evidence, in accordance with Kutscherousky
    v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). The Board must consider any such
    evidence or argument submitted. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Court
    reminds the Board that “[a] remand is meant to entail a critical examination of the justification for
    the [Board’s] decision,” Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991), and must be performed
    in an expeditious manner in accordance with 38 U.S.C. § 7112.
    Upon consideration of the foregoing, the April 21, 2020, Board is SET ASIDE, and the
    matter is REMANDED for further development, if necessary, and readjudication consistent with
    this decision.
    DATED: July 29, 2021
    Copies to:
    Megan M. Ellis, Esq.
    VA General Counsel (027)

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