Veteranclaims’s Blog

August 3, 2012

Single Judge Application McNair v. Shinseki, 25 Vet.App. 98, 105 (2011); 38 U.S.C. § 7104(d)(1)

Excerpt from decision below:
“The Board has a “duty to make credibility determinations and otherwise
weigh all of the evidence submitted, including lay evidence, and to adequately explain the reasons or bases for its assignment of weight and ultimate determinations.” McNair v. Shinseki, 25 Vet.App. 98, 105 (2011); see also 38 U.S.C. § 7104(d)(1).”
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 11-0807
WILLIAM C. MANN, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before HAGEL, Judge.

MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.

HAGEL, Judge: William C. Mann appeals through counsel a January 4, 2011,
Board of
Veterans’ Appeals (Board) decision that denied entitlement to VA benefits
for an acquired
psychiatric disorder. Mr. Mann’s Notice of Appeal was timely and the Court
has jurisdiction to
review the Board decision pursuant to 38 U.S.C. § 7252(a). Neither party
requested oral argument,
nor have the parties identified issues that they believe require a
precedential decision of the Court.
Because the Board clearly erred in concluding that VA satisfied its duty
to assist and failed to
provide an adequate statement of reasons or bases regarding the
credibility of certain lay statements
Mr. Mann offered in support of his claim, the Court will vacate the
January2011 Board decision and
remand the matter for further development and readjudication consistent
with this decision.
I. FACTS
Mr. Mann served on active duty in the U.S. Navy from July 1971 to May 1972.
At his
entrance examination in July 1971, no psychiatric abnormalities were noted
and Mr. Mann denied
a history of “[n]ervous trouble of any sort.” Record (R.) at 366. In an
April 1972 letter, a Naval
medical officer informed Mr. Mann’s commanding officer that Mr. Mann had ”
been evaluated by

psychiatry and found to have a personality disorder.” R. at 128. The
letter further stated that, after
a short trial period following this diagnosis, Mr. Mann had not shown
improvement and was “an
ideal candidate for an administrative discharge.” R. at 128. Accordingly,
the following month Mr.
Mann was discharged as unsuitable for enlistment due to a character and
behavior disorder. At his
separation examination in May 1972, no psychiatric problems were noted and
Mr. Mann again
denied “nervous trouble of any sort.” R. at 369.
Post-service private medical records reflect that Mr. Mann sought
treatment for and was
diagnosed with panic attacks and anxiety in April 1996, May 1998, and
September 1998. At a
February 1999 VA psychiatric outpatient evaluation, Mr. Mann reported that
he experienced panic
attacks since age 18 and a VA progress note from August 1999 reflects
continued complaints of
anxiety and panic attacks.
In February2000, Mr. Mann filed a claim for VA benefits for a nervous
disorder. This claim
was denied by a VA regional office in a March 2001 rating decision from
which Mr. Mann filed a
Notice of Disagreement and appealed to the Board. In his Substantive
Appeal, Mr. Mann stated that
he had medical appointments and treatment for his condition at the Naval
Hospital in Jacksonville,
Florida, between September 1971 and December 1971 and requested that VA
obtain these records.
In April 2005, the Board remanded Mr. Mann’s claim for further development.
Specifically,
the Board noted that only inpatient mental health records from the
Jacksonville Naval Hospital had
been requested, but that Mr. Mann appeared to “describ[e] out[]patient
mental hygiene records” that
had to be specifically requested from the National Personnel Records
Center.
R. at 243.
Accordingly, the Board ordered the appeals management center to “request [
that] the National
Personnel Records Center . . . conduct a search for the period of October
1971 to February 1972 for
records of [Mr. Mann’s] mental hygiene treatment at the Naval Hospital,
Jacksonville, Florida.” R.
at 244.
The record of proceedings indicates that, later that month, the appeals
management center
requested inpatient clinical records pertaining to mental hygiene
treatment Mr. Mann received at the
Jacksonville Naval Hospital between October 1, 1972, and February 28, 1972.
The response
received was that “searches of []Naval Hosp[ital]–Jacksonville, Fl[orida
][] for []1972[] were
conducted, but no records were located.” R. at 223 (emphasis added).
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In May 2007 and July 2008, Mr. Mann submitted statements in support of
his claim,
continuing to assert that he experienced panic attacks while in service
and received treatment for
these episodes at the Jacksonville Naval Hospital. He also stated that
this condition led to his
discharge from the U.S. Navy and that he continued to have panic attacks
after service. In his July
2008 statement, Mr. Mann specifically stated that he received treatment at
the Jacksonville Naval
Hospital “between Sept[ember] 1[,] 1971[,] through Dec[ember] 31[,] 1971.”
R. at 188.
In July 2009, the Board issued another decision, again remanding Mr.
Mann’s claim to the
appeals management center for further development. The Board found that,
[a]lthoughtherecordsassociatedwith[Mr. Mann’s] in-
servicepsychiatricevaluation
no longer exist, it is clear that he did undergo psychiatric evaluation in
service. In
addition, [Mr. Mann] has provided both competent and credible testimony
regarding
the incurrence of panic attacks and nervousness during service, and as to
the
continuation of such symptoms after his separation from service. . . .
Because [Mr.
Mann] is not competent to relate his in-service symptoms to his currently
diagnosed
psychiatric disorder, and any such relationship remains unclear to the
Board, the
Board finds that a VA examination is necessary in order to fairly decide [
his] claim.
R. at 166-67 (internal citation omitted). Accordingly, the Board ordered
the appeals management
center to obtain a VA psychiatric examination and directed that
[t]he examiner should specificallyoffer an opinion as to whether it is at
least as likely
as not . . . that any psychiatric disorder demonstrated during the
pendency of the
appeal, to include, but not limited to[,] anxiety, depression, and
schizophrenia, is
related to [Mr. Mann’s] military service, or developed within one year of
his
discharge from service in May 1972.
R. at 167. The Board further directed that, “[i]n doing so, the examiner
must acknowledge and
discuss any lay evidence of continuity of symptomatology.” R. at 167.
Subsequently, Mr. Mann was afforded a VA psychiatric examination in
September 2009.
The examiner diagnosed Mr. Mann with a panic disorder and opined that it
was at least as likely as
not related to his service. The examiner noted that this opinion was based
on the reported history
of Mr. Mann’s panic disorder and symptoms, but that he had not yet
reviewed the claims file. In
November 2009, after reviewing the claims file, the examiner added an
addendum, stating that Mr.
Mann had been diagnosed with a personalitydisorder in serviceand opining
that the diagnosed panic
disorder was “less likely as not caused by or the result of his active
military duty.” R. at 115.
3

In December 2009, Mr. Mann submitted another statement in support of his
claim, stating
that, although he was diagnosed with a personality disorder in service,
his symptoms had always
been the same and he believedthat his in-service difficulties were related
to a panic disorder that was
misdiagnosed at the time.
In a March 2010 decision, the Board found the September 2009 VA
psychiatric examination
report with November2009 addendum inadequate because, “inrenderinghis
addendum opinion, the
examiner did not discuss [Mr. Mann’s] lay statements of in-service
treatment for panic attacks and
continuity of panic attacks since service.” R. at 63. The Board found that
it remained “unclear . . .
whether [Mr. Mann’s] panic and anxiety are related to his active service,
including whether they are
related to his in-service diagnosis of a personality disorder.” R. at 64.
The Board therefore
remanded the claim so that a new medical opinion could be obtained and
again directed that the
examiner “acknowledge and discuss anylayevidence of continuityof
symptomatology, such as [Mr.
Mann’s] contentions that his current symptomatology is the same as that
shown in service.” R. at
64.
In June 2010, a new VA psychiatric examination was conducted. The examiner
noted that,
in February1999, Mr. Mann reported panic attacks since the age of 18.
During the examination, Mr.
Mann reported that he began to experience panic attacks in “A school”
during his training as an
airman apprentice and that he was then experiencing them daily. R. at 50.
The examiner diagnosed
Mr. Mann with a not otherwise specified anxiety disorder. He then opined
that Mr. Mann’s panic
disorder was “less likely as not . . . caused by or a result of [his]
military service.” R. at 53. In
support of this opinion, the examiner stated that Mr. Mann’s “service
medical records do not support
his claim of having experienced panic attacks in the military” in that “[h]
is discharge [r]eport of
[m]edical [h]istoryform indicated [he] denied all psychiatricsymptoms,”
and “[t]here are no records
to support ongoing treatment for psychiatric symptoms since his discharge.”
R. at 53.
In January2011, the Board issued the decision now on appeal. The Board
concluded that the
VA satisfied its duty to assist Mr. Mann because “all relevant, identified,
and available evidence
ha[d] been obtained, and VA ha[d] notified [him] of any evidence that
could not be obtained.” R.
at 6. The Board then concluded that the most probative evidence of record
regarding whether Mr.
Mann’s currently diagnosed anxiety disorder with panic attacks was related
to his service was the
4

November2009 and June 2010VAexaminers’unfavorableopinions. TheBoard
stated that “it [was]
apparent that the physicians from the latter VA examinations did not find [
Mr. Mann’s] claim of
panic attacks in service to be credible and neither does the Board.” R. at
9. In particular, the Board
concluded that “[i]t does not seem likely that [Mr. Mann] would have panic
attacks in service but
deny nervous trouble of any sort in the [r]eport of [m]edical [h]istory
and have a normal psychiatric
evaluation at the service separation examination.” R. at 9. The Board
therefore denied Mr. Mann’s
claim.
II. ANALYSIS
A. Duty to Assist
Although the issue was not expressly raised by Mr. Mann, the Court sua
sponte concludes
that the Board clearly erred in concluding that VA satisfied its duty to
assist in this case. As noted
above, on two occasions Mr. Mann informed VA that he received outpatient
treatment for his panic
attacks and/or anxiety at the Jacksonville Naval Hospital between
September 1971 and December
1971. The Board, in its April 2005 decision, recognized that no search had
been conducted for
outpatientrecordsfromthatfacility,
andthereforedirectedtheappealsmanagementcenterto attempt
to obtain these records from the National Personnel Records Center, though
the Board mistakenly
characterized the relevant period as October 1971 to February 1972.
Despite this remand order and
Mr. Mann’s statements regarding the relevant time frame, the record of
proceedings indicates that
VA never conducted a search for outpatient records from the Jacksonville
Naval Hospital dated
between September 1971 and December 1971. Instead, it appears that the
appeals management
center, due to what was likely a typographical error, requested mental
hygiene records from that
facility from October 1972 to February 1972. The response from the
National Personnel Records
Center indicates that it conducted a search for all relevant records from
1972, likely because it was
confused by the dates provided by the appeals management center. In any
event, it is evident that
no search for these records has ever been conducted for the time period Mr.
Mann said was relevant,
October 1971 through December 1971.
Because VA’s duty to assist requires it to make reasonable efforts to
obtain all records held
by a governmental entity that are relevant to the claim, pertain to the
claimant’s military service, and
5

areadequatelyidentified bythe claimant, 38U.S.C. §5103A(c)(1),andbecause
the record presented
to the Court in this appeal indicates that VA erred in its attempt to
obtain the relevant outpatient
treatment records for the period of time provided by Mr. Mann, the Court
concludes that the Board
clearlyerred in finding that VA satisfied its dutyto assist. See Nolen v.
Gober, 14 Vet.App. 183, 184
(2000) (holding that the Court reviews the Board’s determination that VA
satisfied its duty to assist
under the “clearly erroneous” standard of review). Accordingly, the Court
will vacate the Board’s
decision and remand this matter for further development and readjudication.
On remand, the Board must ensure that VA attempts to obtain records of any
outpatient
mental hygiene treatment Mr. Mann received at the Jacksonville Naval
Hospital between September
1, 1971, and February 28, 1972.1
The Board must ensure that VA makes as many requests as
necessary to obtain these records and that it only discontinues its
efforts when it concludes that
continued efforts would be futile. See 38 C.F.R. § 3.159(c)(2) (2012). If
this occurs, VA must
advise Mr. Mann of its conclusion that the records do not exist or are not
in the possession of the
National Personnel Records Center and must provide him with the notice
outlined in 38 U.S.C.
§ 5103A(b)(2), which contains unique provisions mandated by Congress.
Additionally, on remand, Mr. Mann is free to submit additional evidence
and argument in
accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per
curiam order). See
Kay v. Principi, 16 Vet.App. 529, 534 (2002). “A remand is meant to entail
a critical examination
of the justification for the decision” by the Board. Fletcher v. Derwinski,
1 Vet.App. 394, 397
(1991). The Board shall proceed expeditiously, in accordance with 38 U.S.C.
§ 7112 (expedited
treatment of remanded claims).
B. Other Arguments Presented by Mr. Mann
Although the Court has already determined that remand is necessary, the
Court will address
Mr. Mann’s remaining arguments. See Quirin v. Shinseki, 22 Vet.App. 390,
396 (2009) (holding
It is unclear to the Court why, in its April 2005 remand order, the Board
directed the appeals management
center to attempt to obtain outpatient records dated throughFebruary 28,
1972, given that Mr. Mann’s statements (at least
those contained in the record of proceedings) identified the relevant
dates as September 1971 through December 1971.
However, the Board presumably had reason to order the appeals management
center to include in its records request
January and February 1972, so, on remand, the Board should ensure that the
records search include those months.
1
6

that, to provide guidance to the Board, the Court may address an
appellant’s other arguments after
determining that remand is warranted).
First, Mr. Mann argues that the Board failed to ensure compliance with its
own March 2010
remand instructions, in violation of this Court’s decision in Stegall v.
West, 11 Vet.App. 268, 271
(1998). Specifically, he notes that the Board ordered that a new VA
psychiatric examination be
conducted and directed the examiner to “acknowledge and discuss any lay
evidence of a continuity
of symptomatology, such as [Mr. Mann’s] contentions that his current
symptomatology is the same
as that shown in service.” R. at 64. Mr. Mann contends that the VA
examiner who conducted the
subsequent June 2010 psychiatric examination “at no point . . . consider[
ed] the lay evidence of
record.” Appellant’s Brief (Br.) at 10. He also appears to contend that
the examiner was required
to accept his laystatements regardingthe onset of his symptoms and their
continuitysince separation
from service because the Board found those statements to be competent and
credible in its July 2009
decision.
Although the June 2010 examiner did not expressly discuss each of Mr.
Mann’s lay
statementsthenofrecordthatpertainedto symptoms
ofanxietyandpanicattacksthatheexperienced
in service and continuously since that time, as outlined above, the
examiner noted Mr. Mann’s
February1999 statement that he experienced panic attacks since the age of
18, and Mr. Mann turned
18 approximately two months after his separation from active duty service.
See R. at 71 (listing Mr.
Mann’s date of birth as June 29, 1954, and the date of his separation from
active duty as May 4,
1972). Further, the examiner noted that, during the examination itself, Mr.
Mann reported that he
began to experience daily panic attacks during his training as an airman
apprentice, which is
consistent with other lay statements Mr. Mann made prior to the June 2010
examination. Finally,
in offering his opinion, the VA examiner discussed these lay statements in
the context of other
evidence of record, including Mr. Mann’s denial of psychiatric problems at
his discharge.
Accordingly, the Court concludes that the VA examiner substantially
complied with the Board’s
March 2010 directive that he “acknowledge and discuss any lay evidence of
a continuity of
symptomatology,” including Mr. Mann’s assertions that his current symptoms
are the same as those
he experienced in service. R. at 64; see Dyment v. West, 13 Vet.App. 141,
146–47 (1999) (holding
7

that it is substantial compliance with remand orders, not absolute
compliance, that is required by
Stegall).
Further, there is simply nothing in the Board’s March 2010 remand
instructions that suggests
that the examiner was required to accept the veracity of Mr. Mann’s lay
statements in formulating
his opinion. Accordingly, the Court concludes that the Board’s reliance on
that opinion in the
decision now on appeal was not in contravention of this Court’s holding in
Stegall. Nevertheless,
if, on remand, the treatment records from the Jacksonville Naval Hospital
are obtained, the Board
will be required to provide Mr. Mann with a new VA psychiatric examination
that considers these
records or explain why a new examination is not required for VA to comply
with its duty to assist
Mr. Mann. See Duenas v. Principi, 18 Vet.App. 512, 517-18 (2004) (citing
Tucker v. West, 11
Vet.App. 369, 374 (1998) and explaining that, when the Board considers
whether a medical
examination or opinion is necessary under 38 U.S.C. § 5103A(d) and 38 C.F.
R. § 3.159(c)(4), it
must provide a written statement of the reasons or bases for its
conclusion, pursuant to 38 U.S.C.
§ 7104(d)(1)); Green v. Derwinski, 1 Vet.App. 121, 124 (1991) (describing
an adequate medical
examination as one that is “thorough and contemporaneous” and considers
prior medical
examinations and treatment).
The Court does, however, find merit in Mr. Mann’s second argument, which
is that the Board
failed to adequately explain why it found his lay statements regarding the
in-service onset and
continuity of his panic attacks and anxiety to be “both competent and
credible” in its July 2009
decision, R. at 167, but not credible in the decision now on appeal. R. at
9. The only explanation
provided by the Board for this reversal is that “[i]t does not seem likely
that [Mr. Mann] would have
panic attacks in service but denynervous trouble of anysort in the [r]
eport of [m]edical [h]istoryand
have a normal psychiatric evaluation at the service separation examination
.” R. at 9-10. However,
Mr.Mann’s separationexaminationreport,
whichincludedclinicallynormalpsychiatricfindings and
Mr. Mann’s denial of problems with nerves, was of record in July 2009 when
the Board found Mr.
Mann’s lay statements to be credible. Further, although the Board, in the
decision now on appeal,
also noted that the examiner did not appear to find Mr. Mann’s lay
statements regarding the in-
service onset and continuity of his symptoms to be credible, the
examiner’s opinion was likewise
based on the separation examination report and the absence of “records to
support ongoingtreatment
8

for psychiatric symptoms since [Mr. Mann’s] discharge.” R. at 53. In
other words, it was also based on evidence that was already part of or missing from the record in July 2009, when the Board found Mr. Mann’s statements credible.
The Board has a “duty to make credibility determinations and otherwise
weigh all of the evidence submitted, including lay evidence, and to adequately explain the reasons or bases for its assignment of weight and ultimate determinations.” McNair v. Shinseki, 25 Vet.App. 98, 105
(2011); see also 38 U.S.C. § 7104(d)(1).
The explanation must be adequate
to enable the claimant to understand the precise basis for the Board’s decision and to facilitate review in this Court. See Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). If the Board’s explanation does not meet this standard, the Court must vacate the Board’s decision and remand for the Board to provide an adequate statement of reasons or bases. Id.
The Court concludes that the Board did not adequately explain its reasons
or bases for determining that Mr. Mann’s laystatements pertainingto the in-service onset of his panic attacks and nervousness and the continuity of these symptoms lacked credibility given that the Board did not (1)
acknowledge that, in July 2009, it expressly found those same statements
to be both competent and credible or (2) explain what evidence added to the record since that time altered its impression of the credibility of those statements. This deficiency hinders judicial review, requiring the Court to vacate the Board decision. See id. On remand, the Board must reassess the credibility of Mr. Mann’s lay statements and, if it finds them to lack credibility, explain what
evidence added to the record since the July 2009 Board decision undercut the credibility of these statements.

III. CONCLUSION
Upon consideration of the foregoing, the January4, 2011, Board decision is
VACATED and the matter is REMANDED for furtherdevelopment and readjudciation
consistent with this decision.
DATED: July 27, 2012
Copies to:
Robert V. Chisholm, Esq.
VA General Counsel (027)
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