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November 17, 2009

Negative Evidence, Lay Evidence Rejection, & Post Hoc Rationalization References

Filed under: Uncategorized — Tags: — veteranclaims @ 9:47 pm

This single judge decision is presented because it has a reference to a negative evidence reference, a reference to what VA must prove to reject lay evidence, and the Secretary’s practice of presenting a rationalization for the Board’s action based not upon what the Board based its decision on but a “rationalization of the evidence in lieu of an adequate statement of reasons or bases by the Board”.

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see also McLendon, 20 Vet.App. at 85 (concluding that Board’s assessment
derived from negative evidence does not constitute substantive evidence).

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A lay person is “fully competent to testify to any pain he may have suffered, and his testimony can be rejected only if found to be mistaken or otherwise deemed not credible.” Id. at 84 (citations omitted). When evaluating lay evidence, the Board, in its role as factfinder, must “determin[e] whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc.” Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). “The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.” Id. at 1336-37.
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See McLendon, 20 Vet. App. at 83 (noting that credible evidence of continuity of symptomatology could rise to the “low threshold” level of indicating a nexus between a current disability and service).
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Regardless, the Court cannot accept the Secretary’s post hoc
. Martin v. Occupational Safety & Health Review Comm’n, 499 U.S. 144, 156 (1991) (“‘[L]itigating positions’ are not entitled to deference when they are merely appellate counsel’s ‘post hoc rationalizations’ for agency action, advanced for the first time in the reviewing court.”).

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The Board’s analysis fails to account for the overwhelming unavailability of medical treatment records in the record, suggesting that the Board is relying on the absence of corroborating medical records to find the appellant not credible. See Buchanan, 451 F.3d at 1337 (although the Board may weigh the absence of contemporaneous medical evidence against the lay evidence of record, it cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence).
In addition, although the Board refers to records subsequent to the 1984 injury, the Court cannot discern from its review of the Board’s decision or the parties’ briefs what records the Board is referencing.
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U.S. Court of Appeals for Veterans Claims
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 08-1000
JOE L. HOWARD, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before SCHOELEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
SCHOELEN, Judge: The appellant, Joe L. Howard, through counsel, appeals a
January 23,
2008, Board of Veterans’ Appeals (Board) decision that denied entitlement
to service connection for
a low back disability and an initial increased rating for bilateral
hearing loss. Record (R.) at 1-20.
The Board also denied a claim for entitlement to service connection for
asbestosis; however, the
appellant raises no allegation of error as to the asbestosis claim.
Therefore, the Court will consider
the matter to have been abandoned on appeal. See Ford v. Gober, 10 Vet.App.
531, 535 (1997)
(holding claims not argued on appeal are deemed abandoned); Bucklinger v.
Brown, 5 Vet.App. 435
(1993). 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
January23, 2008, Board decision, and remand thematter for further
proceedings consistent with this
decision.
I. BACKGROUND
The appellant served on active duty in the U.S. Army from November 1954 to
November
1956. R. at 24. The majority of the appellant’s service medical records (
SMRs) are missing and

believed to have been destroyed in the 1973 fire at the National
Personnel Records Center. R. at
101. The only available SMR is the appellant’s separation examination
report. R. at 26. The
appellant reports that at the time of his separation examination he
complained of low back pain. R.
at 113. However, the separation examination report noted a normal spine
and did not reveal any
complaints of low back pain. R. at 26.
In December 2002, the appellant testified at a Board hearing that he
injured his back during
basic training when he fell from a wall and landed on his back. R. at 171.
The appellant reported
that he sought treatment for lower back problems shortly after his
separation from service; however,
records from such treatment are no longer available. R. at 5, 113. The
appellant also reported
treatment for a lower back condition in 1974, 1976, and 1978 or 1980. R.
at 230, 226, 228. These
records also are no longer available. R. at 5.
The first medicalevidenceofrecordrelatedto theappellant’s lower back is a
September 1984
physician’s report, which reveals that the appellant sustained a work-
related back injury on August
27, 1984. R. at 374. The diagnosis was “[f]racture of the coccyx, proximal
segment, with severe
pain and limitation of motion. Acute traumatic sprain of the low back with
some loss of lumba[r]
lordosis; radiating sciatica down the lower extremities.” Id. The report
states that the cause of the
injury was “patient was working at the shop.” Id. The appellant has
reported that his coccyx was
surgically removed in the mid to late 1980s and the Board found that
various clinical records appear
to corroborate that history. R. at 172, 6. Records related to the
appellant’s surgery are not available.
R. at 6. However, the appellant has reported that the physician who
performed the surgery told him
that he could not have fractured his coccyx from the fall that he
sustained at work in 1984 and that
he must have fractured it earlier. R. at 173. The record does not contain
any physician’s opinion
stating that the appellant’s current back disability is or is not related
to his military service. Medical
records in 1996, 2001, and 2004 reported the appellant’s complaints of low
back pain. R. at 341-43.
The 2004 private treatment record recorded the appellant’s history of a
back injury in 1955 and back
surgery in 1985. R. at 341.
In April 2001, the appellant filed a claim for service connection for a
low back disability.
R. at 32-41. After an extensive procedural history, including a prior
appeal to the Court, the
appellant’s claim for service connection for a low back disability was
remanded to the Board
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pursuant to a joint motion for remand. R. at 559-67. The Board was
instructed to reassess the
evidence of a possible nexus to service and, if the Board determined that
no medical examination
was required, to provide an adequate statement of reasons or bases for
such determination. R. at 563.
In May 2004, the appellant filed a claim for entitlement to service
connection for bilateral
hearing loss. R. at 202. The appellant was provided a VA examination in
June 2005, and based on
the results of that examination, the VA regional office (RO) awarded him
service connection for
bilateral hearing loss and assigned a noncompensable rating. R. at 416-18,
423-27. The appellant
filed a Notice of Disagreement with the assigned rating. R. at 429. In
March and April 2006, the
appellant reported to his doctors that he felt his hearing had worsened. R.
at 526-27. The record
indicates that on April 20, 2006, the appellant was seen by a VA doctor
for an “annual audiological
evaluation.” R. at 527-28. The appellant filed a Substantive Appeal in
November 2006. R. at 555.
On January23, 2008, the Board issued the decision on appeal. R. at 1-20.
The Board denied
entitlement to service connection for a low back disability because there
was no evidence of a nexus
between the appellant’s current low back condition and his military
service. Id. at 5-8. The Board
also found that the medical evidence of record did not warrant an initial
compensable rating for the
appellant’s bilateral hearing loss. Id. at 16-18. This appeal followed.
II. ANALYSIS
A. Low Back Claim
The appellant argues that the Board failed to provide an adequate
statement of reasons or
bases for its conclusion that VA’s duty to assist did not require a VA
medical examination to assess
whether the appellant’s current low back condition is related to his fall
in service. Appellant’s Brief
(Br.) at 4-9. Essentially, the appellant contends that the Board
improperly rejected his lay evidence as not credible because of the lack of corroborating service records. Br.
at 5. The Secretary argues that the Board appropriately found the appellant’s lay testimony not credible. Secretary’s Br. at 9-12.
The Secretary must provide a medical opinion or examination if the information and
evidence
of record does not contain sufficiently complete medical evidence to
decide the claim, but there is
(1) competent evidence of a current disability or persistent or recurrent
symptoms of a disability;
3

(2) evidence establishing that an event, injury, or disease occurred in
service or, for certain diseases
manifestation of the disease during an applicable presumptive period for
which the claimant
qualifies; and (3) an indication that the disabilityorpersistent or
recurrent symptoms of thedisability
may be associated with the veteran’s service or with another service-
connected disability. See
McLendon v. Nicholson, 20 Vet.App. 79, 81 (2006); 38 C.F.R. § 3.159(c)(4)(
i) (2009). The third
prong, requiring that the evidence of record “indicate” that “the claimed
disability or symptoms may
be associated with the established event,” establishes a “low threshold.”
Id. at 83 (emphasis added).
The Court stated in McLendon that “[t]he types of evidence that ‘indicate’
that a current disability ‘may be associated’ with military service include . . .
credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation.”Id
. A lay person is “fully competent to testify to any pain he may have suffered, and his testimony can be rejected only
if found to be mistaken or otherwise deemed not credible.” Id. at 84 (citations omitted)
. When evaluating lay evidence, the Board, in its role as factfinder, must “determin[e] whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc.” Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). “The Board cannot determine that lay evidence
lacks credibility merely because it is unaccompanied by contemporaneous
medical evidence.” Id. at 1336-37
. As always, the Board is required to include in its decision a
written statement of the
reasons or bases for its findings and conclusions on all material issues
of fact and law presented on
the record; that statement must be adequate to enable an appellant to
understand the precise basis for
the Board’s decision, as well as to facilitate informed review in this
Court. See 38 U.S.C. § 7104(a),
(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski,
1 Vet.App. 49, 56-57
(1990). In cases, where as here, the appellant’s SMRs are presumed lost or
destroyed, the Board is
“under a heightened duty to consider and discuss the evidence of record
and supply well-reasoned
bases for its decision.” Washington v. Nicholson, 19 Vet.App. 362, 371 (
2005); Cuevas v. Principi, 3 Vet.App. 542, 548 (1992).
In the decision on appeal, the Board concluded that no VA examination was
necessary to satisfy the duty to assist because there is “no evidence demonstrating a low back disability at separation from service, and no competent or credible evidence of record suggesting that the
4

veteran’s current low back disability is related to his period of service
.” R. at 7. The Board found
the appellant’s “lay testimony both as to the circumstances of the
original injury and the continuity of his symptomatology” not credible. R. at 8.
The Court agrees with the appellant that the Board failed to provide
adequate reasons or bases for its conclusion. When determining that the appellant’s lay testimony as to the continuity of his symptomatology was not credible, the Board stated:
The first clinical evidence of record of complaints or treatment of low
back pain, dated in September 1984, demonstrates that the veteran sustained an injury to his coccyx and low back while at work. Subsequent records continue to note
that the veteran had sustained a work related injury. It is not until September
2004, 20 years
later, that the clinical evidence of record reflects that the veteran
reported he had
initially sustained a low back injury in 1955, during his active service.
R. at 7. However, these statements ignore the fact that the appellant’s
SMRs were presumed
destroyed in the 1973 fireandthatmedicalrecordsrelated to the appellant’s
alleged treatment for low
back pain shortly after service, in 1974, 1976, and 1978 or 1980, are also
unavailable. R. at 5, 113,
230, 226, 228. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir.
2007) (recognizing that
it is particularly important to consider lay evidence when the veteran’s
SMRs have been destroyed);
see also McLendon, 20 Vet.App. at 85 (concluding that Board’s assessment
derived from negative evidence does not constitute substantive evidence)
. The Board’s analysis fails to account for the overwhelming unavailability of medical treatment records in the record, suggesting that the Board is relying on the absence of corroborating medical records to find the appellant not credible. See
Buchanan, 451 F.3d at 1337 (although the Board may weigh the absence of
contemporaneous medical evidence against the lay evidence of record, it cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence). In addition, although the Board refers to records subsequent to the 1984 injury, the Court cannot discern from its review of the Board’s decision or the parties’ briefs what records the Board is referencing. This failure is particularly glaring given the Board’s heightened duty in this case to discuss the evidence of record and supply well-reasoned bases for its decision. See Washington and Cuevas, both supra.
Moreover, the Court is not persuaded by the Secretary’s argument that the
Board made its
credibility determination based on the conflicting medical evidence in the
record. Secretary’s Br.
5

at 10. Specifically, the Secretary asserts that there is conflicting
medical evidence in the record
because although the appellant asserts that he injured his back during
service, the first complaint of
and treatment for a low back disability was in 1984 and the 1956
separation examination report
revealed a “normal” spine. Id. The Board did not state that it found the
appellant’s lay testimony not credible because of inconsistent or conflicting evidence, and it is unclear to the Court how the evidence cited by the Secretary is conflicting, especially given the unavailability of the appellant’s SMRs. Regardless, the Court cannot accept the Secretary’s post hoc
rationalization of the evidence in lieu of an adequate statement of reasons or bases by the Board. Martin v. Occupational Safety & Health Review Comm’n, 499 U.S. 144, 156 (1991) (“‘[L]itigating positions’ are not entitled to deference when they are merely appellate counsel’s ‘post hoc rationalizations’ for agency action, advanced for the first time in the reviewing court.”).

Accordingly, the Court will remand the appellant’s claim for service
connection for a low
back disability for the Board to provide an adequate statement of reasons
or bases for its decision.
See 38 U.S.C. § 7104 (a), (d)(1); Duenas v. Principi, 18 Vet.App. 512,
519 (2004) (remanding for
Board to provide an adequate statement of reasons and bases for its
decision that a VA medical
examination was not required). On remand, the Board must reassess the
credibilityof the appellant’s lay testimony in accordance with standard articulated in Buchanan, and provide an adequate statement of reasons or bases for its findings, including whether VA’s duty to assist requires that the
appellant be provided a medical nexus examination. See McLendon, 20 Vet.
App. at 83 (noting that credible evidence of continuity of symptomatology could rise to the “low threshold” level of indicating a nexus between a current disability and service)
.
B. Bilateral Hearing Loss
The appellant also argues that the Board failed to provide an adequate
statement of reasons
or bases for its failure to require an additional audiological examination
prior to rendering its
decision. Appellant’s Br. at 9-10. The appellant contends that it was
improper for the Board, in
2008, to rely on the results of a June 2005 audiological examination. Id.
The appellant argues that
there was evidence since the 2005 examination that his condition worsened
and the Board failed to
explain why the duty to provide a thorough and contemporaneous medical
examination did not
6

require it to provide a further examination. Id. The appellant notes that
the record contained an
April 2006audiological evaluation; however,heasserts that
the2006evaluation did not complywith
the Secretary’s regulations. See 38 C.F.R. § 4.85 (2009) (requiring that
an examination include a
controlled speech discrimination test and a puretone audiometry test).
The Secretary argues that the mere passage of time does not render the
2005 examination
report inadequate. Secretary’s Br. at 14. He asserts that the appellant
does not point to any evidence
in the record, other than his own assertions, that his condition worsened
since the 2005 examination.
Id. Indeed, the Secretary maintains that the 2006 evaluation is
essentially “identical to the diagnosis
in the June 2005 VA examination report.” Id. at 14-15. Notably, the
Secretary does not address the
appellant’s contention that the 2006 evaluation was not conducted in
accordance with 38 C.F.R.
§ 4.85.
TheSecretary’sdutytoassistrequiresathoroughandcontemporaneousmedicalexamin
when the record does not adequately reveal the current state of the
claimant’s disability. See
38 U.S.C. § 5103A(d)(1); Green v. Derwinski, 1 Vet.App. 121, 124 (1991);
see also Caffrey v.
Brown, 6 Vet.App. 377, 381 (1994). The record is inadequate and a
contemporaneous examination
is necessary when the “evidence indicates there has been a material change
in a disability or that the
current rating may be incorrect.” 38 C.F.R. § 3.327(a) (2009); see
Placzewski v. Nicholson,
21 Vet.App. 174, 182 (2007) (submission of new evidence or allegation that
disability has worsened
may require new medical examination to be provided, but “mere passage of
time between those
events does not”); Caffrey, 6 Vet.App. at 381 (finding 23-month-old
examination too remote to be
contemporaneous where appellant submitted evidence indicating disability
had since worsened);
Olson v. Principi, 3 Vet.App. 480, 482 (1992) (“Where the veteran claims a
disability is worse than
when originally rated, and the available evidence is too old to adequately
evaluate the current state
of the condition, the VA must provide a new examination.”).
Here, the Board did not address whether the duty to assist required VA to
obtain a further
medical examination. The Board reviewed the June 2005 examination, noted
that the record also
contained an April 2006 evaluation, and listed the results of that
examination. R. at 17. The Board
also noted that specific pure tone thresholds and speech recognition
ability for each ear were not
7

recorded at that time; ratherthanaddressthis deficiency,
theBoardproceededtodenya compensable
rating based on the June 2005 examination results. R. at 17-18; see
Lendermann v. Principi,
3 Vet.App. 345, 349 (1992) (assignment of disability ratings for hearing
impairment are derived by
amechanicalapplication of theratingscheduleto thenumericdesignation
assigned after audiometric
evaluations are recorded).
The Court finds that the Board did not provide adequate reasons or bases
for its decision to
rely on the results of the 2005 audiological examination given the
appellant’s assertion at the time
of his 2006 evaluation that his hearing had worsened. Appellant’s Br. at 9-
10; see R. at 527
(“Vet[eran] feels his hearing has decreased since his last evaluation.”).
Although the Secretary
attempts to establish that the appellant’s hearing had not worsened at the
time of the 2006 evaluation
by comparing the results of the 2006 examination to the 2005 examiner’s
diagnosis of “Mild to
ModerateSensorineural HearingLoss”(compareR.at527to417),
the2006evaluationalsoincludes
the following impression: “Left ear pure tone thresholds showed no
significant decrease from
previous audio, excluding a 15 [decibel (db)] decrease at 3000 [Hertz (Hz
)], left. Right ear pure tone
thresholds showed a 15 db decrease at 250 Hz and a 20 db decrease from
3000-4000 Hz.” R. at 528
(emphasis added). The Board should have addressed the appellant’s
assertions that his hearing had
worsened and whether the 2006 evidence indicated there had been a material
change in the
appellant’s disability or that the current rating may not be correct. See
38 C.F.R. § 3.327(a); see also
Snuffer v. Gober, 10 Vet.App. 400, 403 (1997) (“[W]here the appellant
complained of an increased
hearing loss two years after his last audiology examination, VA should have
scheduled the appellant
for another examination.”). The Court will not assess the April 2006
evaluation in the first instance;
particularly, where the examiner failed to report the specific pure tone
thresholds and speech
recognition ability necessary for proper application to the rating
schedule. See 38 C.F.R. § 4.85.
Accordingly, because the Board failed to provide an adequate statement of
reasons or bases, the
matter will be remanded for readjudication. See Allday and Gilbert, both
supra; see also Tucker v.
West 11 Vet.App. 369, 374 (1998) (remand is the appropriate remedy where
Board fails to provide
adequate reasons or bases for its determinations). On remand, the Board
must consider whether the
April 2006 evaluation indicates a material change in the appellant’s
condition or that the current
8

rating is incorrect such that VA’s duty to assist requires a further
medical examination in order to
properly assess the appellant’s current level of disability. See 38 C.F.R.
§ 3.327(a); see also
Placzewski, Caffrey and Green, all supra.
The appellant is free to submit additional evidence and argument on the
remanded matters,
and the Board is required to consider anysuch 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 benefit sought); Kutscherousky v.
West, 12 Vet.App. 369,
372-73 (1999) (per curiam order). The Court has held 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). The Board must proceed expeditiously, in accordance with 38 U.S.C.
§ 7112 (requiring
Secretary to provide for “expeditious treatment” of claims remanded by the
Court).
III. CONCLUSION
After consideration of the appellant’s and the Secretary’s pleadings, and
a review of the
record, the Board’s January 23, 2008, decision is VACATED and the matter
is REMANDED to the
Board for further proceedings consistent with this decision.
DATED: November 4, 2009
Copies to:
David E. Boelzner, Esq.
VA General Counsel (027)
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