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July 12, 2011

Single Judge Application, Adequate Medical Examination, Stefl v. Nicholson, 21 Vet.App. (2007)

Filed under: Uncategorized — Tags: , , — veteranclaims @ 5:19 pm

Excerpt from decision below:
“As the appellant argues, VA’s request for the examination seems to exclude
PTSD from the examiner’s consideration, and at the very least does not ask him to
specifically discuss the disorder. R. at 313-17. In the examination report itself, the examiner mentions PTSD on only one occasion – during a recitation of information included in the appellant’s April 2004 appeal to the Board. R. at 302. The examiner did, however, note that the diagnosis he assigned the appellant’s condition “is the best explanation for all of his subsequent life difficulties.” Id. The Board found that this statement and others indicate that the examiner did consider a range of possible disorders before rendering his diagnosis, including PTSD. It appears, however, that the only conclusion that can be drawn for certain from the examination report is that the examiner was aware that PTSD is a feature
of the appellant’s past medical history when he reached his conclusions.
The examination report’s failure to convey the degree of consideration the examiner gave to the appellant’s PTSD renders the report inadequate. Even if the examiner did consider PTSD in rendering his opinion, he did not explicitly state
his conclusion about whether the appellant suffers from PTSD nor did he
explain his rationale for any conclusion he reached. Instead, he extensively explained his opinions concerning schizophrenia and alcohol dependence, the two disorders with which he diagnosed the appellant, and he extensively explained his reasons for declining to diagnose the appellant with depression and anxiety disorder. R. at 302-03. Moreover, the examiner was asked to “reconcile” the various psychiatric diagnoses the appellant had received. R. at 317. His extensive discussion of schizophrenia, alcohol dependence, depression, and anxiety disorder indicate that he attempted to fulfill this request, while his failure to discuss PTSD leaves the Court unsure whether that diagnosis was part of the attempt at reconciliation. Finally, his silence regarding PTSD does not in any way help the Board in determining why, if he did indeed consider and reject a PTSD diagnosis, he chose to do so, and thus does not aid the Board in making its ultimate determination on the appellant’s claim. See Stefl, supra; see also Nieves-Rodriguez v. Peake, 22 Vet.App. 295,301(2008)(holding that the examiner’s
6

report must contain clear conclusions and supporting data, as well as “a
reasoned medical explanation” connecting the data and the conclusions). For these reasons, the Court finds that the Board’s determination that the July 2006 medical opinion is adequate is clearly erroneous. See 38 U.S.C. § 7261(a)(4); see also Nolen, supra. As a consequence, the Board’s statement of reasons or bases is inadequate. See 38 U.S.C. § 7104(d)(1); Allday, Caluza, and Gilbert, all supra.”
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-4478
MICHAEL MCCONNELL, 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: Theappellant,Michael McConnell,
appealsthroughcounselanAugust
20, 2009, Board of Veterans’ Appeals (Board) decision that denied him
entitlement to service
connection for an acquired psychiatric disability, to include post-
traumatic stress disorder (PTSD).
Record of Proceedings (R.) at 3-26. 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. 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
A. Facts
The appellant served on active duty in the U.S. Air Force from March 1970
until March
1971. R. at 188. According to a statement by veteran Olden Chenault, Jr.,
on December 14, 1970,
the appellant was found in his room “with his eyes open, but [he] would
not respond.” R. at 245.
Later that day, the appellant underwent a psychiatric evaluation. R. at
185-86, 256-57. During the

evaluation, the appellant stated that he “couldn’t be their puppet
anymore,” that his mind wouldn’t
work, and that his subconscious prevented him from moving or talking that
morning. R. at 256.
According to the evaluator, “[w]hen [the appellant] was seen he was
somewhat grandiose and had
fashioned his Army uniform to look like Hippy attire. He intellectualized
a great deal. However,
no thought disorder, significant depression, or psychotic symptoms were
noted.” R. at 185. He was
diagnosed with immature personality, passive-aggressive type and
adolescent adjustment reaction.
Id. The reporting physician opined that the appellant was “determined to
leave the Army,” and
recommended an administrative discharge. R. at 186. The appellant
subsequently received a
discharge for unsuitability. R. at 233.
In September 2001, the appellant filed a claim for PTSD and depression. R.
at 594-98. In
a November 2001 medical document, a physician recorded that the appellant
felt stress and anxiety
throughout his service, and those feelings “culminated when [the
appellant’s girlfriend] (also in [the]
military and stationed at [the] same base) committed suicide.” R. at 544.
The physician quoted the
appellant as saying, “I had a breakdown . . . they found me comatose in my
bunk . . . I couldn’t
function . . . they put me in a psych hospital.” Id. The physician found
that, based on the appellant’s
report, he was “experiencingsignificant [symptoms] that might be
indicative of [PTSD].” R. at 546.
In a February 2002 statement, the appellant described his in-service
incident as a “mental
breakdown” resulting, in part, from witnessing a suicide. R. at 488. In
July 2002, the VA regional
office (RO) denied the appellant service connection for PTSD. R. at 538-39.
In April 2004, the
appellant appealed to the Board. R. at 339.
In June 2006, VA issued an examination request. R. at 313-17. The
examination worksheet
indicatesthatVAsoughttheexaminationfor”[m]ental disorders(exceptPTSD &
eatingdisorders).”
R. at 313. In the request, VA asked the examiner to “provide an opinion as
to whether the current
diagnosed depression/schizophrenia first manifested itself during
militaryservice.” R. at 317. Also,
the request stated that the appellant “has multiple psychiatric diagnoses
[]. Please reconcile and
provide accurate diagnosis.” Id.
In July 2006, the medical examination was conducted. R. at 298-304. During
the
examination, the appellant claimed to have no memory of his in-service
episode. R. at 298.
According to the examiner, the appellant related the following from his
time in service:
2

[The appellant] mentioned that he spent many evenings after work at a bar
drinking
and dancing. I asked about this interest in girls. He told me that he
regularlymet two
girls, also in the Air Force on base, in that bar. He considered marrying
one of them.
As he described this experience he paused and seemed distracted. I asked
what was
happening right now. He said, as if awestruck, that he had just remembered
that his
favorite girl had killed herself. In fact he had gone to her barracks room
to see her
and found her with her wrists cut. He called the medics and recalls
nothingafter that.
The girls never appeared at the bar again. He believes that she died. He
cannot place
that event in time, nor in a chronology before his coma.
R. at 300. The examiner diagnosed the appellant with schizophrenia,
paranoid type, and alcohol
dependence, in remission. R. at 303. The examiner further opined that the
appellant’s diagnosed
depression/schizophrenia “did not manifest itself during the military
service.” Id.
In decisions dated March 28, 2007, and August 26, 2008, the Board denied
the appellant
entitlement to service connection for an acquired psychiatric disability,
claimed as depression, and
for PTSD. R. at 63-73, 105-12. The parties, however, filed and the Court
granted joint motions for
remand on both decisions. R. at 51-55, 92-100. The Board, in its August 20,
2009, decision here
on appeal, denied the appellant entitlement to service connection for an
acquired psychiatric
disability to include PTSD. The Board, in finding that the July 2006 VA
examination was adequate,
determined that “the examiner was aware that the [appellant] was claiming
he had [PTSD] and
considered that diagnosis.” R. at 11. The Board also found that further
development was not needed
to allow VA to attempt to verifythat the suicide the appellant
allegedlywitnessed in service actually
occurred. R. at 15. The Board found that the examiner assumed that the
appellant’s report of the
incidentwastrue,andtherefore,
eveniffurtherdevelopmentconfirmedtheveracityoftheappellant’s
statements, “the claim would still be denied.” R. at 15.
In weighing the evidence, the Board found the appellant’s contention that
he witnessed a
suicide in service to be “questionable” and “not credible.” R. at 18-19.
The Board then, relying
heavily on the July 2006 VA examination, especially the fact that the
report included no diagnosis
for PTSD, found that the Previous DocumentpreponderanceNext Hit of the evidence weighs against a
finding that the appellant
has PTSD and therefore against his claim. R. at 21-22.
B. Arguments on Appeal
The appellant contends that the July 2006 VA medical examination report is
inadequate
3

because the examiner “did not adequately consider or discuss PTSD,” or,
alternatively, if the
examiner did discuss PTSD, his comments concerning the disorder lacked
detail and were
insufficient. Appellant’s Brief (Br.) at 8-12. In conjunction with this
argument, the appellant also
asserts that the examination request indicated to the examiner that he
should exclude PTSD from his
consideration duringthe examination, and that the Court should presume
that the examiner followed
those instructions. Id. at 9-10. Next, the appellant argues that VA failed
in its duty to assist because
it did not attempt to obtain service records related to the suicide to
which he alluded to during his
examination. Id. at 13-15. Finally, the appellant argues that the Board’s
determination that his lay
evidence is not credible was erroneous. Id. at 15-17.
The Secretary argues that the Board discussed the adequacy of the VA
examiner’s opinion
and “provided an adequate statement of reasons or bases for its
determination that [the] examination
report was adequate and [the Secretary] asserts that such statement is
facilitative of judicial review.”
Secretary’s Br. at 13. In answer to the appellant’s duty-to-assist
argument, the Secretary asserts that
the appellant’s assumption that the suicide he recollected would be found
in service records is
“founded upon pure speculation.” Id. at 16. Regarding the appellant’s
arguments about the Board’s
credibility determination, the Secretary argues that the appellant failed
to demonstrate error. Id. at
16-18.
II. ANALYSIS
Establishing service connection generally requires medical or, in certain
circumstances, lay
evidence of (1) a current disability; (2) incurrence or aggravation of a
disease or injury in service;
and (3) a nexus between the claimed in-service injury or disease and the
current disability. See
Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v.
West, 12 Vet.App. 247, 252
(1999); Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78
F.3d 604 (Fed. Cir. 1996)
(table). A finding of service connection is a finding of fact that the
Court reviews under the “clearly
erroneous” standard of review. See Dyment v. West, 13 Vet.App. 141, 144 (
1999).
When deciding a matter, the Board must include in its decision a written
statement of the
reasons or bases for its findings and conclusions, adequate to enable an
appellant to understand the
precise basis for the Board’s decision as well as to facilitate review in
this Court. See 38 U.S.C.
4

§ 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v.
Derwinski, 1 Vet.App. 49,
56-57(1990). Tocomplywith this requirement,theBoardmust analyze
thecredibilityandprobative
value of the evidence, account for the evidence that it finds persuasive
or unpersuasive, and provide
the reasons for its rejection of any material evidence favorable to the
claimant. See Caluza,7
Vet.App. at 506; Gilbert, 1 Vet.App. at 57.
A. The July 2006 Medical Opinion
The Secretary’s duty to assist includes “providing a medical examination
or obtaining a
medicalopinion whensuch an examination or opinion is necessaryto makea
decision on the claim.”
38 U.S.C. § 5103A(d)(1); see also Green v. Derwinski, 1 Vet.App. 121, 124 (
1991). This Court has
held that a medical opinion is adequate “where it is based on
consideration of the veteran’s prior
medical history and examinations and also describes the disability, if any,
in sufficient detail so that
the Board’s ‘evaluation of the claimed disability will be a fully informed
one.'” Stefl v. Nicholson,
21 Vet.App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet.App. 405, 407 (
1994)). The opinion
“must support its conclusion with an analysis that the Board can consider
and weigh against contrary
opinions.” Id. at 124-25. Whether a medical examination report is adequate
is generally a finding
of fact that the Court reviews under the “clearly erroneous” standard of
review. See 38 U.S.C.
§ 7261(a)(4); Nolen v. Gober, 14 Vet.App. 183, 184 (2000).
The appellant argues that the July 2006 medical examination report is
inadequate because
the examiner did not consider or discuss PTSD. Appellant’s Br. at 8-12.
The Board expressly
discussed this contention in its decision. It stated:
Based on the Board’s reading of the July 2006 VA examination report, the
examiner
was aware that the [appellant] was claiming he had [PTSD] and considered
that
diagnosis. . . . The examiner discussed intrusive thoughts, dissociative
flashbacks,
in-service stressors, ‘criterion B symptoms,’ and that the [appellant]
felt a preservice
injury he sustained contributed to [PTSD]. . . . [T]he examiner was
clearly aware of
the fact that the [appellant] had been diagnosed with multiple psychiatric
disorders,
but found that these two diagnoses [(schizophrenia, paranoid type and
alcohol
dependence, in remission)] were the appropriate and accurate ones at the
time he
examined the [appellant]. This would have included consideration of [PTSD
]. . . .
The examiner had a full understanding that the [appellant] had been
diagnosed with
multiple psychiatric illnesses, and that notations of [PTSD] had been made.
He
entered diagnoses under Axis I and provided a detailed rationale based on
medical
principles and evidence in the claims file. . . . Moreover, the initial
question did not
5

specifically ask the examiner about alcohol dependence, yet the examiner
was able
to enter such a diagnosis. This is further proof that the psychiatrist
diagnosed what
was present based on his examination and the evidence. He did not ignore
any
disability that was shown by the evidence.
R. at 11-12.
As the appellant argues, VA’s request for the examination seems to exclude
PTSD from the
examiner’s consideration, and at the very least does not ask him to
specifically discuss the disorder.
R. at 313-17. In the examination report itself, the examiner mentions PTSD
on only one occasion
– during a recitation of information included in the appellant’s April
2004 appeal to the Board. R.
at 302. The examiner did, however, note that the diagnosis he assigned the
appellant’s condition “is
the best explanation for all of his subsequent life difficulties.” Id. The
Board found that this
statement and others indicate that the examiner did consider a range of
possible disorders before
rendering his diagnosis, including PTSD. It appears, however, that the
only conclusion that can be
drawn for certain from the examination report is that the examiner was
aware that PTSD is a feature
of the appellant’s past medical history when he reached his conclusions.
The examination report’s
failure to convey the degree of consideration the examiner gave to the
appellant’s PTSD renders the
report inadequate.
Even if the examiner did consider PTSD in rendering his opinion, he did
not explicitly state
his conclusion about whether the appellant suffers from PTSD nor did he
explain his rationale for
anyconclusion he reached. Instead, he extensivelyexplained his opinions
concerningschizophrenia
andalcoholdependence,thetwodisorderswith whichhediagnosedtheappellant,
andheextensively
explained his reasons for declining to diagnose the appellant with
depression and anxiety disorder.
R. at 302-03. Moreover, the examiner was asked to “reconcile” the various
psychiatric diagnoses
the appellant had received. R. at 317. His extensive discussion of
schizophrenia, alcohol
dependence, depression, and anxiety disorder indicate that he attempted to
fulfill this request, while
his failure to discuss PTSD leaves the Court unsure whether that diagnosis
was part of the attempt
at reconciliation. Finally, his silence regarding PTSD does not in any way
help the Board in
determining why, if he did indeed consider and reject a PTSD diagnosis, he
chose to do so, and thus
does not aid the Board in making its ultimate determination on the
appellant’s claim. See Stefl,
supra; seealsoNieves-Rodriguezv.Peake,22Vet.App.295,301(2008)(
holdingthattheexaminer’s
6

report must contain clear conclusions and supporting data, as well as “a
reasoned medical
explanation” connecting the data and the conclusions). For these reasons,
the Court finds that the
Board’s determination that the July 2006 medical opinion is adequate is
clearly erroneous. See 38
U.S.C. § 7261(a)(4); see also Nolen, supra. As a consequence, the Board’s
statement of reasons or
bases is inadequate. See 38 U.S.C. § 7104(d)(1); Allday, Caluza, and
Gilbert, all supra.
B. VA’s Duty To Obtain Additional Records
The Secretary has a duty to assist the appellant in obtaining evidence
necessary to
substantiate his claim, including making reasonable efforts to obtain all
potentially relevant records
that the appellant adequately identifies and authorizes the Secretary to
obtain. See 38 U.S.C.
§ 5103A(a)(1), (b)(1); Moore v. Shinseki, 555 F.3d 1369, 1372-75 (Fed.
Cir. 2009). The Secretary’s
duty to obtain records extends only to relevant records. See 38 U.S.C. §
5103A(b)(1); Loving v.
Nicholson, 19 Vet.App. 96, 102 (2005) (VA’s duty to assist includes making
efforts to obtain
relevant records that the appellant has adequately identified).
The appellant argues that the Board should have sought to obtain records
from Hamilton Air
Force Base, where he was stationed, near the time of his December 1970
psychiatric episode to
determine whether a suicide he claimed to witness had indeed occurred.
Appellant’s Br. at 13-15.
Once again, the appellant apparentlyraised this argument before the Board,
and the Board answered
it directly. The Board found that the July 2006 examination report
demonstrates that the examiner
accepted the appellant’s account of witnessing a suicide as an in-service
stressor, and still did not
diagnose the appellant with PTSD. R. at 15. The Board stated:
The examiner did not diagnose [PTSD] based upon this or any other stressor
the
[appellant] argued had impacted him in service. Thus, the Board’s denial
of this
particular claim is based on a conclusion that the Previous HitpreponderanceNext Document of the
evidence is
against finding that the [appellant] has [PTSD] as opposed to either a
lack of a
verified stressor or a finding that there is no diagnosis of [PTSD].
Simply put[,]
remanding this case to attempt to verify this purported in-service
stressor would not
change the outcome of this determination. Hence, remanding the case is not
in order.
R. at 21-22.
Because the Court has found the July 2006 examination to be inadequate
based on the
examiner’s failure to provide anyrationale concerning anyconclusions
reached about the appellant’s
PTSD, the Board’s statement of reasons or bases regarding whether VA
fulfilled its duty to assist
7

despite not seeking records pertaining to a possible suicide during the
appellant’s service may be no
longer valid. On remand, the Board should, based on its further
development of the evidence,
reassess its determination on this point.
C. Other Arguments
Given this disposition, the Court will not, at this time, address the
other arguments and issues
raised by the appellant. See Best v. Principi, 15 Vet.App. 18, 20 (2001) (
per curiam order) (holding
that “[a] narrow decision preserves for the appellant an opportunity to
argue those claimed errors
before the Board at the readjudication, and, of course, before this Court
in an appeal, should the
Board rule against him”). On remand, 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 Secretary’s pleadings, and a
review of the record,
the Board’s August 20, 2009, decision is VACATED and the matter is
REMANDED to the Board
for further proceedings consistent with this decision.
DATED: June 27, 2011
Copies to:
Todd M. Wesche, Esq.
VA General Counsel (027)
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