Veteranclaims’s Blog

January 18, 2012

Single Judge Application, Competence Determination Before Probability, Kahana v. Shinseki, 34 Vet.App. 428, 435 (2011)

Filed under: Uncategorized — veteranclaims @ 4:58 pm

Excerpt from decision below:
“The Board stated that the lay statements, “made many years after service,
are outweighed by the more contemporaneous service treatment records showing no signs of a right shoulder condition, normal clinical evaluations of the upper extremities, and the Veteran’s denial of having any shoulder problems.” R. at 10. However, the Board did not make any specific findings as to the competence or credibility of the lay statements, which is required before determining which evidence is most probative. Kahana v. Shinseki, 34 Vet.App. 428, 435 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (stating that lay persons are generally competent to provide evidence on observable symptoms); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006)(noting that “the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence”).
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-3169
LLOYD CLAYTON, 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, Lloyd Clayton, through counsel, appeals an
August 27,
2010, Board of Veterans’ Appeals (Board) decision that denied his claim
for entitlement to service
connection for a right shoulder condition. Record (R.) at 3-11. The
appellant does not present any
argument concerning the denial of his request for a total disability
rating based on individual
unemployability. Accordingly, that request is deemed abandoned. See Ford v.
Gober, 10 Vet.App.
531, 535 (1997). 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 August 27,
2010, decision and remand the matter for further proceedings consistent
with this decision.
I. FACTS
The appellant served in the U.S. Army from July 1959 to July 1961, with
prior service in the
U.S. Army Reserves. R. at 472, 1101-20. His service medical records (SMRs)
do not reflect a
shoulder injury, and in his separation examination he denied ever having a ”
painful or ‘trick’
shoulder.” R. at 1089 (capitalization omitted); see generally 1088-1149 (
in-service medical
examinations). However, at medical appointments in February 1997 and July
1998 the appellant

sought treatment for a painful right shoulder and told the treating
physicians that he injured his right
shoulder while in the military. R. at 103, 124.
In October 1999, the appellant filed a claim for entitlement to service
connection for a right
shoulder condition. R. at 1068-71. In personal statements to VA, provided
during the development
of his claim, the appellant stated that he hurt his shoulder in the
service while playing football; that
the shoulder has continued to bother him since the initial injury such
that he has lost jobs due to
limitations of movement resulting from his injury; and that he did not
previously submit a claim
because he did not know that he was eligible to receive benefits for this
type of injury. See, e.g., R.
at 22, 534-58, 569-72, 677-84. The appellant also submitted statements
from his wife and brother
supporting his assertion that he had trouble with his right shoulder
dating back to service. R. at 702-
03. After further development, which did not include a VA medical opinion,
the Board ultimately
denied the appellant’s claim for service connection for a right shoulder
disability. This appeal
followed.
II. ANALYSIS
The appellant argues that the Board’s reasons or bases are flawed because
the Board failed
to conduct a proper competency and credibility analysis of the appellant’s
lay statements and those
submitted by his family members and that, absent a determination that the
lay statements of record
were not credible or not competent, there is evidence of record that his
right shoulder disability may
be related to service such that the low threshold of McLendon is met and a
medical nexus opinion
is required. Appellant’s Brief (Br.) at 3-4; see 38 U.S.C. § 5013A(d)(2);
McLendon v. Nicholson,
20 Vet.App. 79, 81-86 (2006); 38 C.F.R. § 3.159(c)(4) (2011). The Court
agrees.
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. 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). To comply
with this requirement, the Board must analyze the credibility and
probative value of the evidence,
account for the evidence that it finds to be persuasive or unpersuasive,
and provide the reasons for
its rejection of any material evidence favorable to the claimant. Caluza v.
Brown, 7 Vet.App. 498,
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506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table);
Gabrielson v. Brown, 7 Vet.App.
36, 39-40 (1994); Gilbert, supra.
The Board stated that the lay statements, “made many years after service,
are outweighed by
the more contemporaneous service treatment records showing no signs of a
right shoulder condition,
normal clinical evaluations of the upper extremities, and the Veteran’s
denial of having any shoulder
problems.” R. at 10. However, the Board did not make any specific findings
as to the competence
or credibility of the lay statements, which is required before determining
which evidence is most
probative. Previous DocumentKahanaNext Document v. Shinseki, 34 Vet.App. 428, 435 (2011); see also
Jandreau v. Nicholson,
492 F.3d 1372, 1377 (Fed. Cir. 2007) (stating that lay persons are
generally competent to provide
evidence on observable symptoms); Buchanan v. Nicholson, 451 F.3d 1331,
1337 (Fed. Cir. 2006)
(noting that “the Board cannot determine that lay evidence lacks
credibility merely because it is
unaccompanied by contemporaneous medical evidence”).
The Board has not provided any indication that it finds the lay testimony
of record to be
incompetent. Furthermore, in finding against the establishment of a
continuity of symptomatology,
the Board stated that it found the appellant’s February 1997 and July 1998
statements to treatment
providers, which the Board agrees contained assertions ofanin-service
injury,particularlyprobative
because they were “provided during medical treatment,” which suggests that
the Board found the
lay statements credible. R. at 10. This cursory discussion of the lay
statements does not facilitate
this Court’s review. It is not clear from the analysis provided why,
absent an explicit finding that
the lay statements are not credible, the statements asserting a history of
injury dating back to service
are “of great probative value,” but do not meet the low McLendon threshold
indicating that a medical
nexus examination is warranted. R. at 10; see McLendon, 20 Vet.App. at 83.
Therefore, remand
is required for an adequate reasons or bases discussion that includes a
full analysis of the
competence and credibility of the lay testimony of record.
On remand, the Board must explicitly discuss the competence and
credibility of the
appellant’s lay statements and those provided by his family members. The
Board should consider
the appellant’s testimony that he did seek treatment in-service for his
football injury. See, e.g., R.
at 668. The Board should also discuss whether the appellant’s 1998
statement that he had shoulder
pain for the previous year related to work might be consistent with an in-
service injury that only
manifests under strenuous use, particularly in light of the appellant’s
testimony that he frequently
3

quit or was let go from manual labor employment that required the use of
his shoulder, but did not
have pain with other tasks that did not involve his shoulder. See, e.g., R.
at 534-557, 688-89.
Finally, the Board should address the statements bythe appellant’s family
including both their ability
to observe symptomatology and the extent that they are reporting past
statements by the veteran that
would rebut an inference that his history of complaints is a recent
fabrication. See FED. R. EVID.
801(d)(1) (prior consistent statements of declarant may be admitted to
rebut inference of
fabrication).
If the Board determines that the appellant’s lay statements are competent
and credible, a
medical nexus opinion is required to determine whether the appellant’s
current shoulder disability
is related to his in-service football injury. As mentioned above, the
McLendon standard provides
a low threshold for determining whether there is an indication that the
disability or persistent or
recurrent symptoms of a disability may be associated with the veteran’s
service. McLendon,
20 Vet.App. at 83. This threshold encompasses a report of continuity of
symptomatology that by
itself is not strong enough to meet the requirements of 38 C.F.R. § 3.303(
b), such as the reports
provided by the appellant and his family, but nonetheless provides some
indication of a link between
the current disability and the in-service event.
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 August 27, 2010, decision is VACATED and the matter is REMANDED to the Board for further proceedings consistent with this decision.
DATED: January 12, 2012
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Copies to:
Michael R. Viterna, Esq.
VA General Counsel (027)
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