Veteranclaims’s Blog

December 14, 2011

Single Judge Application, Medical Evidence Conflicts with Lay Testimony, Kahana v. Shinseki, 24 Vet.App. 428, 434-45 (2011)

Filed under: Uncategorized — veteranclaims @ 1:57 pm

Excerpt from decision below:
“Here, the Board concluded that 38 C.F.R. §§ 4.40 and 4.45 were not for
application to the appellant’s back condition, but did not discuss why the appellant’s lay observations were not persuasive evidence. R. at 11. Likewise, the Board dismissed the appellant’s reports of left knee instability without explanation. R. at 15. Moreover, the Board failed to explain how the VA
medical opinions contradicted the appellant’s lay testimony, when all three agreed that the appellant could experience further limited function due to additional pain with repetitive use. R. at 98, 392, 513; <cf. Kahana v. Shinseki, 24 Vet.App. 428, 434-45 (2011) (discussing when medical evidence
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can be interpreted as conflicting with lay testimony). This lack of
analysis resulted in an inadequate statement of reasons or bases, for which remand is the appropriate remedy. See Tucker v. West, 11 Vet.App. 369, 374 (1998).”
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-2633
ELISHA THOMAS, JR., APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before LANCE, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
LANCE, Judge: The appellant, Elisha Thomas, Jr., through counsel, appeals
a June 24,
2010, Board of Veterans’ Appeals (Board) decision that denied his claims
for entitlement to an
increased rating for lumbar strain and degenerative joint disease of the
left knee, both evaluated as
10% disabling. Record (R.) at 3-18. Initially, the Court notes that it
lacks jurisdiction over the
appellant’s entitlement to total disability based on individual
unemployability (TDIU) because that
issue was remanded and it will not be addressed further. See 38 U.S.C. §§
7252(a), 7266(a);
Howard v. Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000). Single-judge
disposition is appropriate.
See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). This appeal is
timely and the Court has
jurisdiction over the case pursuant to 38 U.S.C. §§ 7252(a) and 7266.
For the reasons that follow,
the Court will vacate the June 24, 2010, decision and remand the matter
for further proceedings
consistent with this decision.
I. FACTS
The appellant served in the U.S. Army from October 1979 to October 1982. R.
at 742. In
August 1983, the appellant filed a claim for entitlement to service
connection for residuals of
injuries to his lower back and left leg received during an Army bus
accident while he was on active

duty. R. at 684-85, 688-91. The appellant has received a number of
private and VA examinations
in the course of claim development. R. at 6-7, 12-13. While the three VA
examinations addressed
the appellant’s objectively measurable range of motion as demonstrated
during the examinations,
all three noted that it is not possible to determine “with any degree of
medical certainty” to what
extent pain from repetitive use could further limit function. R. at 98,
392, 513. However, the VA
examiners all agreed that pain could further limit function to a lesser
range of motion than that which
was objectively measurable. Id.
In June 2010, the Board concluded that the VA examinations were more
probative with
respect to the appellant’s back condition because they included analysis
of x-rays and an MRI that
were not considered in the private opinions. R. at 10-11. The Board
determined that the VA
examinationswere alsomore probativewithrespect
totheappellant’skneeconditionbecause,unlike
the private examiners, they described the specific tests done to evaluate
the stability of the
appellant’s left knee. R. at 15. Based on the VA examinations, the Board
denied the appellant’s
request for an increased rating greater than 10% for both conditions. R.
at 3-18. This appeal
followed.
II. ANALYSIS
The appellant argues that the Board provided inadequate reasons or bases
because, inter alia,
it did not provide an adequate analysis of the appellant’s lay statements
regarding the pain caused
by his back condition and the instability of his left knee and the effect
of those symptoms on his
functionality. Appellant’s Brief (Br.) at 8, 10. The Secretary counters
that 10% ratings are
appropriate because there is no “persuasive evidence of additional
functional loss due to pain,
weakness, fatigue, or incoordination” with respect to the appellant’s back
condition, Secretary’s Br.
at 12, and that the VA examinations of the appellant’s left knee were more
probative than private
examinations and the appellant’s testimony, id. at 13.
Although pain may not be capable of definitive objective measurement by a
clinician,
laypersons are competent to testify to pain and other observable symptoms,
such as joint stability.
Falzone v. Brown, 8 Vet.App. 398, 405 (1995); see also Washington v.
Nicholson, 19 Vet.App. 362,
268 (2005) (veteran is competent to provide lay evidence regarding matters
that are within his
personal knowledge and experience); Charles v. Principi, 16 Vet.App. 370,
374 (2002) (layperson
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competent to testify concerning symptoms capable of observation). The
appellant’s statements
concerning his functional limitations as a result of pain in his back and
instability in his left knee
from repetitive use are captured in the VA examinations and his oral
testimony before the Board.
R. at 25-34, 96-98, 391-92, 512-13.
The Board acknowledged the appellant’s lay statements regarding back pain
and knee
instability, but it concluded that the medical opinions more accurately
described the appellant’s
conditions. R. at 11, 14-15. However, the Board failed to conduct any
meaningful analysis
regarding the competency and credibility of the appellant’s lay testimony,
instead providing bare
conclusions that there was no “persuasive evidence” that the appellant has
functional loss, beyond
that contemplated by the 10% rating, due to his back pain, R. at 11, and
that “the VA examination
reports are more probative than the Veteran’s testimony” regarding the
instability of his knee, R. at
15.
It is well established that lay persons are generally competent to provide
evidence on
observable symptoms, Jandreau v. Nicholson, 492 F.3d 1372,1377 (Fed. Cir.
2007), and “the Board
cannot determine that lay evidence lacks credibility merely because it is
unaccompanied by
contemporaneous medical evidence.” Buchananv.Nicholson,451F.3d1331,1337(
Fed.Cir.2006).
It is the Board’s role as factfinder to weigh the evidence and make
determinations on competence.
Washington v. Nicholson, 19 Vet.App. 362, 267-68 (2005) (the Board has the
duty to determine the
credibility and probative weight of the evidence). When the Board
determines probative weight
without discussing the competence and credibility of favorable lay
testimony in the record, it does
not enable an appellant to understand the precise basis for the Board’s
decision and frustrates judicial
review. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App 517, 527 (
1995); Gilbert v.
Derwinski, 1 Vet.App. 49, 56-57 (1990).
Here, the Board concluded that 38 C.F.R. §§ 4.40 and 4.45 were not for
application to the
appellant’s back condition, but did not discuss why the appellant’s lay
observations were not
persuasive evidence. R. at 11. Likewise, the Board dismissed the
appellant’s reports of left knee
instability without explanation. R. at 15. Moreover, the Board failed to
explain how the VA
medical opinions contradicted the appellant’s lay testimony, when all
three agreed that the appellant
could experience further limited function due to additional pain with
repetitive use. R. at 98, 392,
513; cf. KahanaNext Document v. Shinseki, 24 Vet.App. 428, 434-45 (2011) (discussing
when medical evidence
3

can be interpreted as conflicting with lay testimony). This lack of
analysis resulted in an inadequate
statement of reasons or bases, for which remand is the appropriate remedy.
See Tucker v. West,
11 Vet.App. 369, 374 (1998).
The appellant also argues that the Board misapplied DeLuca v, Brown, 8 Vet.
App. 202, 206
(1995), and 38 C.F.R. §§ 4.40, 4.45, and 4.59 regarding the rating of
pain. As this matter is already
being remanded, the Board can, on remand, address the implications of this
Court’s recent decision
in Mitchell v. Shinseki, 25 Vet.App. 32 (2011).
Accordingly, the Court will vacate the June 24, 2010, Board decision. On
remand, the
appellant is free to submit additional evidence and argument, including
the arguments raised in his
briefs to this Court, in accordance with Kutscherousky v. West, 12 Vet.App.
369, 372-73 (1999) (per
curiam order), and the Board must consider any such evidence or argument
submitted. See Kay v.
Principi, 16 Vet.App. 529, 534 (2002). The Board shall proceed
expeditiously, in accordance with
38 U.S.C. §§ 5109B, 7112 (requiring Secretary to provide for ”
expeditious treatment” of claims
remanded by Board or Court).
III. CONCLUSION
After consideration of the appellant’s and the Secretary’s briefs, and a
review of the record,
the Board’s June 24, 2010, decision is VACATED and the matter is REMANDED
to the Board for
further proceedings consistent with this decision.
DATED: December 6, 2011
Copies to:
Debra S. Tedeschi, Esq.
VA General Counsel (027)
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