Veteranclaims’s Blog

June 3, 2020

Single Judge Application; Board cannot “evade [its] statutory responsibility [to state the reasons or bases for its conclusions] merely by adopting [a medical opinion] as its own” where the medical opinion “fails to discuss all the evidence which appears to support [the] appellant’s position.” Gabrielson v. Brown, 7 Vet.App. 36, 40 (1994); Gabrielson does not require that a medical opinion discuss all the evidence favorable to a claimant, only that the Board, in relying on an opinion that does not do so, discuss any additional favorable evidence to comply with its duty to provide an adequate statement of reasons or bases for its decision. Id.; see 38 U.S.C. § 7104(d)(1); see also Dela Cruz v. Principi, 15 Vet.App. 143, 149 (2001) (holding that, although the Board must consider all of the evidence of record, “a discussion of all evidence is not required when . . . the Board has supported its decision with thorough reasons or bases regarding the relevant evidence”);

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-2119
SAMUEL WATTS, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MEREDITH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

MEREDITH, Judge: The appellant, Samuel Watts, through counsel appeals a
November 29, 2018, Board of Veterans’ Appeals (Board) decision that denied entitlement to
benefits for an acquired psychiatric disorder, including post-traumatic stress disorder (PTSD) and
depression. Record (R.) at 3-10. This appeal is timely, and the Court has jurisdiction to review
the Board’s decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is
appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons,
the Court will vacate the Board’s decision and remand the matter for further proceedings consistent
with this decision.
I. BACKGROUND
The appellant served on active duty in the U.S. Army from March 1970 to January 1972,
including service in Vietnam. R. at 495. The record contains his 2011 reports of anxiety
and depression, R. at 310, as well as difficulty sleeping and nightmares “for probably forty years,”
R. at 264. He reported that, while he was stationed in Vietnam, there was “a lot of racial tension”
and he had difficulty working with other soldiers. Id. He stated that he had used cannabis daily
for the past 40 years to help him sleep. R. at 265. At a December 2011 mental health medication
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review session, the examiner recorded the following under the heading “Past Psychiatric History:
. . . Psychotherapy”: “Mid [19]70’s or maybe 80’s he came over here and ‘I felt like I had a problem’
and no one seemed to understand what he was trying to describe. So he didn’t really get any
treatment back then.” R. at 266.
At an October 2012 VA mental health assessment, the appellant reported experiencing a
lot of nightmares, hypervigilance, poor sleep, discomfort in crowds, and mild depression. R. at

He stated that he started using cannabis in Vietnam and continued daily use to help him sleep.
R. at 149. The examiner asked the appellant about traumatic events in service and noted that
“[m]ost of the events he described involved bad things that could have happened, but did not.” Id.
The examiner indicated that the appellant described one event that “more clearly qualifie[d] as a
traumatic stressor,” but did not identify which of five incidents the appellant reported was the
qualifying stressor. Id. Ultimately, a “multidisciplinary team” reviewed the appellant’s case and
determined:
[He] most clearly meets diagnostic criteria for Anxiety Disorder, [not otherwise
specified (NOS)], not meeting full criteria for PTSD. He described symptoms of
hyperarousal[; h]owever, it was not clear that he met avoidance symptoms, partially
due to the impact of his daily marijuana usage on his activity level. Additionally,
although he reported nightmares, these involved a general perception of threat and
were not clearly related to experiences in Vietnam. He was somewhat vague when
describing distressing thoughts, and he did not meet other B criteria. Therefore, he
primarily only met symptom cluster D, resulting in the Anxiety Disorder, NOS[,]
diagnosis, along with a diagnosis of Cannabis Abuse (rule-out Dependence). . . . If
he should more clearly exhibit evidence of B and C symptoms associated with
PTSD, he can be referred back . . . for further evaluation.
R. at 151.
The appellant sought benefits for PTSD, anxiety disorder, and depression in July 2013.
R. at 580-81. At a March 2014 VA PTSD examination, he was diagnosed with unspecified
depressive disorder with anxious distress. R. at 352. The examiner did not diagnose PTSD. See
id. The appellant denied experiencing mental health symptoms prior to or during service and stated
that “he made friends while in the military and enjoyed shooting pool, playing darts, and
socializing when time permitted.” R. at 354. He again reported being introduced to cannabis in
the military and continued to use it in the evenings to facilitate sleep. R. at 355-56. The examiner
noted a single qualifying stressor of engaging in a firefight, R. at 356, but found that the appellant
did not meet criterion D for a diagnosis of PTSD, see R. at 358. The examiner stated: “He reports
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some symptoms associated with his reported stressors, and described some mild symptoms of
anxiety and depression. Given the prolonged use of marijuana it is difficult to determine how
much anxiety or depression he would have in the absence of this substance.” R. at 359. The
examiner ultimately concluded that the appellant’s depressive disorder was not at least as likely as
not incurred in or caused by service. R. at 360. She explained that “[t]here is limited evidence to
suggest that his more recently developed mood-related symptoms have a direct nexus to his
reported military stressors. [Service treatment records] were negative of any mental health
complaints [from] entry to separation.” Id.
A VA regional office denied the appellant’s claim in March 2014. R. at 64-67. The
appellant filed a Notice of Disagreement with that decision, R. at 54, and ultimately appealed to
the Board, R. at 18-19. The Board issued the decision on appeal in November 2018, denying the
appellant’s claim for benefits for an acquired psychiatric disability, finding no diagnosis of PTSD
and “insufficient evidence . . . that a present psychiatric disorder is etiologically related to [his]
service.” R. at 7. This appeal followed.
II. ANALYSIS
The appellant first contends that the Board failed to ensure that VA satisfied its duty to
assist because the Board did not remand his claim for an adequate medical examination.
Appellant’s Brief (Br.) at 4-8. In that regard, he argues that the March 2014 VA examiner failed
to consider his lay statements and provided inadequate rationale for her conclusion. Id. at 6-7. In
the alternative, the appellant contends that the Board provided inadequate reasons or bases for
finding the March 2014 VA examination adequate. Id. at 10-11. Finally, the appellant argues that
the Board provided inadequate reasons or bases for relying on the October 2012 VA mental health
evaluation and the March 2014 VA examination to conclude that he does not have a current
diagnosis of PTSD. Id. at 9-10. The Secretary disputes these arguments and urges the Court to
affirm the Board decision. Secretary’s Br. at 4-12.
Under certain circumstances, and as part of its duty to assist claimants, VA must provide a
medical examination. See 38 U.S.C. § 5103A(d). “[O]nce the Secretary undertakes the effort to
provide an examination [or opinion,] . . . he must provide an adequate one.” Barr v. Nicholson,
21 Vet.App. 303, 311 (2007). A medical examination or opinion is adequate “where it is based
upon consideration of the veteran’s prior medical history and examinations,” Stefl v. Nicholson,
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21 Vet.App. 120, 123 (2007), “describes the disability, if any, in sufficient detail so that the Board’s
‘evaluation of the claimed disability will be a fully informed one,'” id. (quoting Ardison v. Brown,
6 Vet.App. 405, 407 (1994)) (internal quotation marks omitted), and “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) (per curiam). The law does not
impose any reasons-or-bases requirements on medical examiners and the adequacy of medical
reports must be based upon a reading of the report as a whole. Id. at 105-06.
“Whether a medical [examination or] opinion is adequate is a finding of fact, which the
Court reviews under the ‘clearly erroneous’ standard.” D’Aries v. Peake, 22 Vet.App. 97, 104
(2008) (per curiam). A finding of fact is clearly erroneous when the Court, after reviewing the
entire evidence, “is left with the definite and firm conviction that a mistake has been committed.”
United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); see Gilbert v. Derwinski, 1 Vet.App.
49, 52 (1990). As with any material issue of fact or law, the Board must provide a statement of
the reasons or bases for its determination “adequate to enable a claimant to understand the precise
basis for the Board’s decision, as well as to facilitate review in this Court.” Allday v. Brown,
7 Vet.App. 517, 527 (1995); see 38 U.S.C. § 7104(d)(1); Gilbert, 1 Vet.App. at 56-57.
In reaching its conclusion to deny the appellant’s claim, the Board stated:
The persuasive evidence of record demonstrates that the criteria for a diagnosis of
PTSD have not been met. The March 2014 VA examination and October 2012
evaluation more than adequately addressed this question. The evidence is also
against the finding that any other acquired psychiatric disorder, to include
depressive disorder and cann[a]bis use disorder, manifested during service or
within one year of the [appellant’s] discharge from service. There is likewise
insufficient evidence showing that a present psychiatric disorder is etiologically
related to [his] service, to include his stated stressors. The mental disorder
diagnoses provided in the October 2012 and March 2014 VA examination report
are supported by the reported findings. The examiner is shown to have reviewed
the evidence of record and to have adequately considered the lay statements and
reported symptom manifestations history of record. There is no competent medical
opinion refuting the October 2012 and March 2014 findings.
R. at 7 (citation omitted). The Court concludes that the Board provided inadequate reasons or
bases for its decision to deny the appellant’s claim.
The appellant argues that the March 2014 VA examiner failed to consider evidence in a
December 2011 VA mental health note that he had tried to seek psychiatric help as early as the
mid-1970s, which he contends contradicts her statement that his symptoms were “more recently
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developed.” Appellant’s Br. at 7; R. at 360. As noted above, there is no reasons or bases
requirement for examiners, Monzingo, 26 Vet.App. at 105-06, and it is the rating specialist who
has the responsibility of interpreting examination reports in light of the whole recorded history and
reconciling the various reports, not the examiner, see Moore v. Nicholson, 21 Vet.App. 211, 218
(2007) (“The medical examiner provides a disability evaluation and the rating specialist interprets
medical reports in order to match the rating with the disability.”), rev’d on other grounds sub nom.
Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009); 38 C.F.R. § 4.2 (2019).
In that regard, the Court notes that the Board did not acknowledge this evidence or explain
whether it undermined the examiner’s reliance on the notion that symptoms began many years after
service, R. at 360, as well as the Board’s conclusion that the examiner considered the lay
statements, R. at 7. This was error. The Board cannot “evade [its] statutory responsibility [to state the reasons or bases for its conclusions] merely by adopting [a medical opinion] as its own” where the medical opinion “fails to discuss all the evidence which appears to support [the] appellant’s position.” Gabrielson v. Brown, 7 Vet.App. 36, 40 (1994). Gabrielson does not require that a medical opinion discuss all the evidence favorable to a claimant, only that the Board, in relying on an opinion that does not do so, discuss any additional favorable evidence to comply with its duty to provide an adequate statement of reasons or bases for its decision. Id.; see 38 U.S.C. § 7104(d)(1); see also Dela Cruz v. Principi, 15 Vet.App. 143, 149 (2001) (holding that, although the Board must consider all of the evidence of record, “a discussion of all evidence is not required when . . . the Board has supported its decision with thorough reasons or bases regarding the relevant evidence”).
The Court is unable to find this error harmless. See 38 U.S.C. § 7261(b)(2) (requiring the
Court to “take due account of the rule of prejudicial error”); Shinseki v. Sanders, 556 U.S. 396,
409 (2009) (holding that the harmless-error analysis applies to the Court’s review of Board
decisions and that the burden is on the appellant to show that he or she suffered prejudice as a
result of VA error). The Court may not weigh the December 2011 evidence in the first instance
or evaluate its potential effect on the Board’s findings regarding the adequacy of the March 2014
examination with respect to the relationship between the appellant’s psychiatric disorder and
service. See Deloach v. Shinseki, 704 F.3d 1370, 1380 (Fed. Cir. 2013) (holding “that the
evaluation and weighing of evidence are factual determinations committed to the discretion of the
factfinder—in this case, the Board”). Remand is thus required. See Tucker v. West, 11 Vet.App.
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369, 374 (1998) (“[W]here the Board . . . failed to provide an adequate statement of reasons or
bases for its determinations, . . . a remand is the appropriate remedy.”).
Given this disposition, the Court will not now address the remaining arguments and issues
raised by the appellant, including his assertions that the Board did not adequately explain its
reliance on the March 2014 examination report as to PTSD. See Quirin v. Shinseki, 22 Vet.App.
390, 395 (2009) (noting that “the Court will not ordinarily consider additional allegations of error
that have been rendered moot by the Court’s opinion or that would require the Court to issue an
advisory opinion”); Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam order). On remand,
the appellant is free to submit additional evidence and argument on the remanded matter, including
the specific arguments raised here on appeal, 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 additional evidence and argument in assessing entitlement to
the benefit sought); Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order).
The Court reminds the Board 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), and the Board
must proceed expeditiously, in accordance with 38 U.S.C. § 7112.
III. CONCLUSION
After consideration of the parties’ pleadings and a review of the record, the Board’s
November 29, 2018, decision is VACATED and the matter is REMANDED for further
proceedings consistent with this decision.
DATED: June 2, 2020
Copies to:
Glenn R. Bergmann, Esq.
VA General Counsel (027)

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