Veteranclaims’s Blog

February 16, 2018

Single Judge Application; presumption of soundness; Monroe v. Brown, 4 Vet.App. 513, 515 (1993); congenital defect; Quirin, 22 Vet.App. at 397; see 38 C.F.R. § 3.303(c) (2017); see also Terry v. Principi, 340 F.3d 1378, 1385-86 (2003);

Excerpt from decision below:

“The only prerequisite for the application of the presumption of soundness is that the veteran’s entry examination be clear of any noted diseases or disabilities. Id. at 396. The presumption of soundness applies to congenital diseases that are not noted at entry. Monroe v. Brown, 4 Vet.App. 513, 515 (1993). “The presumption of soundness does not, however, apply to congenital defects, because such defects ‘are not diseases or injuries’ within the meaning of 38 U.S.C. §§ 1110 and 1111.” Quirin, 22 Vet.App. at 397; see 38 C.F.R. § 3.303(c) (2017); see also Terry v. Principi, 340 F.3d 1378, 1385-86 (2003) (holding that the presumption of soundness does not apply to congenital defects); Winn v. Brown, 8 Vet.App. 510, 516 (1996) (holding that a
nondisease or noninjury such as a congenital defect is “not the type of disease- or injury-related defect to which the presumption of soundness can apply”).

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 16-2956
DAVID L. WILLIAMS, APPELLANT,
V.
DAVID J. SHULKIN, M.D.,
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, David L. Williams, through counsel appeals a May 16,
2016, Board of Veterans’ Appeals (Board) decision that denied service connection for a low back
disability; an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD); and
a respiratory disability manifested by shortness of breath, to include as a result of an undiagnosed
illness. Record of Proceedings (R.) at 2-21. 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 decision and remand the matters for further
proceedings consistent with this decision.
I. BACKGROUND
The appellant served on active duty for training in the Florida Army National Guard from
June 1980 to September 1980 and on active duty in the U.S. Army from November 1990 to June
1991 and from February 2003 to June 2004, to include service in Southwest Asia. R. at 52-55. In
November 2003, he sought medical treatment after several days of low back pain. R. at 190. He
denied any precipitating injury, and acute low back strain was diagnosed. Id. In his March 2004
2
postdeployment health assessment, he reported a history of back pain and denied any psychiatric
or respiratory symptoms. R. at 192-95.
The appellant’s April 2004 separation examination was negative for any spine, respiratory,
or psychiatric disability. R. at 222. In the accompanying report of medical history, the appellant
denied any psychiatric symptoms, but he reported experiencing shortness of breath, which he
described as the inability to “get enough air,” and back pain “when moving from squatting to
standing.” R. at 225-26. The examiner commented that the shortness of breath both had its onset
and last occurred 9 months prior, with no treatment sought, R. at 224, 227, and that the back pain
had “[r]esolved,” R. at 226. X-rays of the lungs were normal. R. at 343.
From January 2005 through February 2006, the appellant sought VA treatment for his
psychiatric symptoms, including depression and disturbed sleep, which were variously assessed as
PTSD related to active service, major depressive disorder, and adjustment disorder related to
marital discord. R. at 723-46. During that time, he continued to report back pain occurring as
often as three time per week. See, e.g., R. at 734, 743-44. An April 2008 treatment record for an
unrelated condition lists PTSD and chronic low back pain as ongoing conditions; at that time, the
appellant had an active prescription for ointment to treat his back pain. R. at 721-22.
The appellant filed his service-connection claims in January 2008. R. at 844-53. In June
2009, he underwent a VA psychiatric examination. R. at 651-61. The examiner opined that
although the appellant demonstrated some PTSD symptoms, the “current frequency and severity
of [those] symptoms does not meet the DSM-IV1 diagnostic criteria for the disorder.” R. at 661.
The appellant was diagnosed with depressive disorder unrelated to active service. Id. That same
month, the appellant was afforded a VA spine examination. R. at 662-72. The examiner diagnosed
lumbar strain and scoliosis, R. at 671, but opined that the current back disabilities were unrelated
to the back pain during and at separation from active service, R. at 672.
The appellant testified before the Board in February 2012. R. at 489-540. Regarding his
claimed shortness of breath, he testified that its onset followed his last deployment to Southwest
Asia, that it occurs both during exertion and at rest, and that as recently as the prior week “it was
like [he] couldn’t get enough air.” R. at 534-35.
1 DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (4th ed. 1994) (DSM-IV).
3
In May 2012, the Board remanded all three matters for VA examinations. R. at 481-86.
As regards the appellant’s back disability, the Board instructed the regional office (RO) to obtain
“[c]urrent imaging studies of the spine,” R. at 483, as well as a more developed nexus opinion
regarding the appellant’s scoliosis, R. at 484. The Board also determined that a VA respiratory
examination was warranted. R. at 482.
The appellant was reexamined in August 2012. R. at 418-46. The VA psychiatric examiner
concluded that those symptoms associated with military trauma were “subclinical” and “were not
found to be significant for a diagnosis of PTSD.” R. at 424. Furthermore, the appellant “denie[d]
experiencing any depression or anxiety,” R. at 423, and the only symptom found sufficient to
support a psychiatric diagnosis was chronic sleep impairment, determined to be caused by anxiety
disorder, R. at 418, 422. The examiner could not relate anxiety disorder to the appellant’s active
service without resort to speculation. R. at 424. On VA spine examination, the examiner opined
that the appellant’s lumbar strain had resolved with no residual, and that scoliosis was congenital.
R. at 432. The examiner further opined that the scoliosis was not caused by an injury in service,
as none was documented, and could not be caused by an episode of lumbar strain. Id. No current
imaging was obtained. See R. at 425-32. Pulmonary function testing was normal, and the
examiner stated: “There is no respiratory diagnosis.” R. at 446.
In March 2015, the Board found that addendum opinions were needed for all three
conditions. R. at 384-90. VA addendum opinions were obtained in July 2015. R. at 44-47, 856-
59. The psychiatric examiner opined that because the previously noted depression symptoms were
not present on August 2012 examination, that condition had resolved. R. at 47. The examiner
stated that “[i]t would be speculative to opine as to whether this veteran’s depressive disorder . . .
was related to military service.” Id. Regarding anxiety disorder, the examiner opined that “military
trauma[-]related symptoms were subclinical,” and that the appellant had experienced significant
postservice stressors. R. at 46. The back examiner opined that scoliosis is generally congenital,
and a defect rather than a disease process, but also stated that “[a]ny condition can become worse
over time.” R. at 857-58. The examiner could not provide a nexus opinion for lumbar strain
without resort to speculation. R. at 857. The examiner also opined that there was no clinical
evidence of shortness of breath and, consequently, “no objective evidence of an undiagnosed
illness that manifests by shortness of breath.” R. at 859.
4
On May 16, 2016, the Board issued the decision on appeal. R. at 2-21. The Board
acknowledged that “the June 2009 and August 2012 examination reports did not contain the
information necessary for the Board to make decisions on the [v]eteran’s claims,” but concluded
that any deficiencies were corrected by the July 2015 addendum opinions. R. at 21. Regarding
the claimed back disability, the Board concluded that the medical evidence showed “that a scoliosis
defect preexisted service and was not aggravated,” and that there was no probative evidence of
“nexus between the [v]eteran’s current lumbar strain and any incident of service.” R. at 19. As for
the claimed psychiatric disability, the Board noted that the appellant was not diagnosed with PTSD
during the period on appeal. R. at 13. The Board further characterized the VA opinions as
“conclud[ing] that the [v]eteran’s reported complaints, including depression and anxiety, were
subclinical, that is to say, did not meet the diagnostic criteria for the claimed disorders.” Id.
Finally, the Board discussed the appellant’s respiratory complaints as documented in the clinical
record, but did not address his testimony at the Board hearing. R. at 6-8. The Board concluded
that the “competent and probative evidence”—the August 2012 and July 2015 VA opinions—was
“against the claim for service connection for a respiratory disorder manifested by shortness of
breath.” R. at 8. This appeal followed.
II. ANALYSIS
A. Back Disability
A remand by the Board or Court confers on the claimant a legal right to compliance with
the remand order. Dyment v. West, 13 Vet.App. 141, 147 (1999), aff’d sub nom. Dyment v.
Principi, 287 F.3d 1377 (Fed. Cir. 2002); Stegall v. West, 11 Vet.App. 268, 271 (1998). When
“the remand orders of the Board or this Court are not complied with, the Board itself errs in failing
to [e]nsure compliance.” Stegall, 11 Vet.App. at 271. In determining whether a remand order was
complied with, it is substantial compliance, not absolute compliance, that is required. Dyment,
13 Vet.App. at 146-47. Where the Board fails to ensure compliance with a remand order, such an
error may constitute the basis for a remand by this Court. See Stegall, 11 Vet.App. at 271.
As with any determination, the Board is required to include in its decision a written
statement of reasons or bases that enables a claimant to understand the precise basis for its decision
and facilitates review in this Court. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517,
527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). To comply with this requirement, the
5
Board must analyze the credibility and probative value of evidence, account for evidence it finds
persuasive or unpersuasive, and provide the reasons for its rejection of material evidence favorable
to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed.
Cir. 1996) (table).
The appellant argues that the Board failed to ensure compliance with the May 2012 remand
order requiring that current spinal imaging be obtained as part of a VA spine examination.
Appellant’s Brief (Br.) at 16-20. The Secretary concedes “the Board did not ensure compliance
with its May 2012 remand because no spine imaging studies were conducted.” Secretary’s Br. at
22. Upon review of the briefs and the record, the Court accepts the Secretary’s concession. As the
appellant and Secretary both correctly point out, there is no record of spinal imaging studies
conducted after May 2012, and the Board’s statement of reasons or basis does not explain how the
failure to obtain such studies constitutes substantial compliance with the May 2012 remand orders.
R. at 20-21, 483-84; see also R. at 425-32, 856-58. Because the Board did not comply with its
May 2012 remand instruction to obtain spinal imaging, or explain why strict compliance was
unnecessary, remand is required. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that
remand is the appropriate remedy “where the Board has incorrectly applied the law, failed to
provide an adequate statement of reasons or bases for its determinations, or where the record is
otherwise inadequate”).
In addition to the argument raised by the appellant, the Secretary sua sponte “concedes that
the Board failed to provide adequate reasons or bases for its findings that [the a]ppellant’s scoliosis
was a pre-service defect and was not aggravated in-service,” Secretary’s Br. at 23. Specifically,
the Secretary notes that the Board “did not discuss the evidence in terms of the presumption-ofsoundness
clear and unmistakable [evidence] standard,” id. at 24, and misread the July 2015 VA
examiner’s comments about when the appellant’s scoliosis had its onset, id. at 25.
Pursuant to 38 U.S.C. § 1111, “every veteran shall be taken to have been in sound condition
when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders
noted at the time of the examination” or “where clear and unmistakable evidence demonstrates that
the injury or disease existed before acceptance and enrollment and was not aggravated by such
service.” “Clear and unmistakable evidence” means that the evidence “‘cannot be misinterpreted
and misunderstood, i.e., it is undebatable.'” Quirin v. Shinseki, 22 Vet.App. 390, 396 (2009)
(quoting Vanerson v. West, 12 Vet.App. 254, 258-59 (1999)).
6
The only prerequisite for the application of the presumption of soundness is that the veteran’s entry examination be clear of any noted diseases or disabilities. Id. at 396. The presumption of soundness applies to congenital diseases that are not noted at entry. Monroe v. Brown, 4 Vet.App. 513, 515 (1993). “The presumption of soundness does not, however, apply to congenital defects, because such defects ‘are not diseases or injuries’ within the meaning of 38 U.S.C. §§ 1110 and 1111.” Quirin, 22 Vet.App. at 397; see 38 C.F.R. § 3.303(c) (2017); see also Terry v. Principi, 340 F.3d 1378, 1385-86 (2003) (holding that the presumption of soundness does not apply to congenital defects); Winn v. Brown, 8 Vet.App. 510, 516 (1996) (holding that a nondisease or noninjury such as a congenital defect is “not the type of disease- or injury-related defect to which the presumption of soundness can apply”).
As the Secretary concedes, the Board’s conclusory finding that the appellant’s scoliosis was a preexisting, and not aggravated, defect was not supported by analysis under the correct legal standard. Secretary’s Br. at 23-25; R. at 19. This error is critical given the apparent discrepancy in the relied-upon July 2015 VA addendum opinion as to whether the appellant’s scoliosis was a “defect” or “disease process,” R. at 857 (reporting that the appellant’s scoliosis is a “defect,” yet “can worsen over time”), as well as the examiner’s statement that “it is impossible to state when the scoliosis onset,” R. at 858; see also Secretary’s Br. at 24-25. On remand, the Board must reevaluate the appellant’s back disability under the correct legal framework and should consider whether, in light of the discrepancies in the July 2015 VA addendum opinion, further medical development is necessary.
Finally, the Secretary concedes that the July 2015 VA addendum opinion appears based, at least in part, on an incorrect reading of the clinical record. Secretary’s Br. at 22-23. Specifically, the VA examiner reported that the appellant denied back pain in a May 2005 postservice National Guard retention physical, R. at 857; however, the Secretary states that the examination occurred in February 2005, Secretary’s Br. at 23. On remand, the Board should consider whether the VA examiner misread the record and, if so, whether it materially affected the opinion provided. If an
additional medical opinion is sought, the Board should advise the provider of the correct
examination date.
B. Psychiatric Disability
Establishing service connection generally requires medical or, in certain circumstances, lay
evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or
7
injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.
See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet.App.
247, 253 (1999); Caluza, 7 Vet.App. at 506. The Board’s determination whether the appellant has
a current disability is a finding of fact subject to the “clearly erroneous” standard of review. See
McLendon v. Nicholson, 20 Vet.App. 91, 82 (2006); see also 38 U.S.C. § 7261(a)(4). A finding
of fact is clearly erroneous when the Court, after reviewing the entire evidence, “is left with the
definite and firm conviction that a mistake has been committed.” United States v. U.S. Gypsum
Co., 333 U.S. 364, 395 (1948); see also Gilbert, 1 Vet.App. at 52.
In the decision on appeal, the Board stated that the VA examiners “concluded that the
[v]eteran’s reported complaints, including depression and anxiety, were subclinical [and] did not
meet the diagnostic criteria for the claimed disorders.” R. at 13. The appellant argues that the
Board’s statement reflects its determination that he does not have a current psychiatric disability,
a finding that is clearly erroneous. Appellant’s Br. at 23-24. The Secretary asserts that when the
Board’s decision is read as a whole, this language does not represent a finding that the appellant
did not meet the current disability requirement, but is rather “the unartful phrasing of the analysis
that the third element—nexus—was not met.” Secretary’s Br. at 15; see also Janssen v. Principi,
15 Vet.App. 370, 379 (2001) (per curiam) (stating a Board decision must be read “as a whole”).
In other words, the Secretary asks the Court to read the Board’s analysis not as finding no current
psychiatric disability, but as finding that the appellant’s “trauma-related symptoms” were not
related to any current psychiatric diagnosis. Secretary’s Br. at 15.
The Secretary’s post hoc rationalization cannot cure the Board’s error. Martin v.
Occupational Safety & Health Review Comm’n, 499 U.S. 144, 156 (1991) (“‘[L]itigation 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.”). Furthermore, in reading
the May 2016 decision as a whole, as the Secretary requests, it appears that the Board conflated
the requirements outlined in 38 C.F.R. § 3.304(f)(3) (2017), which are specific to a diagnosis of
PTSD and involve claimed stressors that are “related to the veteran’s fear of hostile military or
terrorist activity,” with the requirements to service connect a non-PTSD psychiatric disability. See,
e.g., R. at 12 (discussing whether the appellant’s anxiety disorder is “related to his claimed stressor
of hostile military or terrorist activity”). The VA examiners explained that the appellant’s PTSD
symptoms were subclinical. R. at 46, 424. However, the examiners did not find that the symptoms
8
underlying the appellant’s depression and anxiety diagnoses were subclinical. See R. at 658,
422-24. By the plain language of its analysis, the Board expressly found otherwise. R. at 13. Its
factfinding on the matter is, therefore, clearly erroneous, and remand is warranted. See U.S.
Gypsum Co., 333 U.S. at 395; McLendon, 20 Vet.App. at 82.
C. Respiratory Disability
As provided by 38 U.S.C. § 1117 and 38 C.F.R. § 3.317, service connection may be
awarded on a presumptive basis for a Persian Gulf veteran who exhibits objective indications of a
qualifying chronic disability that manifests “during service on active duty in the Armed Forces in
the Southwest Asia theater of operations during the Persian Gulf War” or to a degree of 10% or
more before December 31, 2021, and which, “[b]y history, physical examination, and laboratory
tests cannot be attributed to any known clinical diagnosis.” 38 U.S.C. § 1117; 38 C.F.R.
§ 3.317(a)(1)(i), (ii) (2017). A “qualifying chronic disability” may be one that results from “[a]n
undiagnosed illness” or a “medically unexplained chronic multisymptom illness.” 38 U.S.C.
§ 1117(a)(2)(A), (B); see 38 C.F.R. § 3.317(a)(2)(i).
The Board is required to include in its decision a written statement of the reasons or bases
for its findings of fact and conclusions of law that is understandable by the claimant and facilitates
review by this Court. See 38 U.S.C. § 7104(d)(1); Allday, 7 Vet.App. at 527. The statement of
reasons or bases must explain the Board’s reasons for discounting favorable evidence, Thompson
v. Gober, 14 Vet.App. 187, 188 (2000), and must discuss all issues raised by the claimant or the
evidence of record, Robinson v. Peake, 21 Vet.App. 545, 552 (2008), aff’d sub nom. Robinson v.
Shinseki, 557 F.3d 1355 (Fed. Cir. 2009).
In addition, the Board’s statement of reasons or bases should address the credibility and
competence of any relevant and material evidence. See Smith v. Derwinski, 1 Vet.App. 235, 237
(1991) (“Credibility is determined by the fact finder.”); see also Washington v. Nicholson,
19 Vet.App. 362, 367-68 (2005) (stating that it is the Board’s duty, as factfinder, to determine the
credibility and weight to be given to the evidence). When analyzing lay evidence, the Board should
assess the evidence and determine whether the disability claimed is of the type for which lay
evidence is competent. See Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372,
1377 (Fed. Cir. 2007).
The appellant argues that the Board failed to provide adequate reasons or bases for its
failure to address favorable evidence of record. Appellant’s Br. at 13-16. Specifically, the
9
appellant argues that the Board failed to discuss his February 2012 Board testimony regarding the
nature of his claimed respiratory disability. Id. at 15. The Secretary responds that the appellant
“has not shown that this testimony demonstrates his entitlement to service connection or is even
favorable to his claim,” and thus any failure to discuss the Board hearing testimony, or any other
lay statements, is nonprejudicial. Secretary’s Br. at 11.
The Court agrees with the appellant that the Board’s statement of reasons or bases is
inadequate for judicial review. In the decision on appeal, the Board noted that the appellant
testified before the Board, R. at 3, but did not discuss, at all, the content of that testimony, see R.
at 5-8. In fact, the Board failed to conduct any analysis of the competence, credibility, and
probative value of the appellant’s lay evidence. Rather, the Board relied solely on the absence of
clinical treatment for a respiratory disability, as well as negative August 2012 and June 2015 VA
opinions, in finding no current respiratory disability. See R. at 8; see also Buchanan v. Nicholson,
451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that the Board “cannot determine that lay evidence
lacks credibility merely because it is unaccompanied by contemporaneous medical evidence”);
Dalton v. Nicholson, 21 Vet.App. 23, 41 (2007) (holding that, when lay evidence is submitted, a
credibility determination is “necessary” and the Board acts “prematurely” when it decides a case
without assessing the credibility of the claimant’s lay statements).
Essentially, the Board made an implicit finding, unsupported by any analysis, that the
appellant’s lay testimony was neither “competent” nor “probative.” R. at 8. Despite the Secretary’s
assertions to the contrary, the appellant’s testimony before the Board that he was continuing to
experience intermittent respiratory symptoms is clearly favorable evidence that the Board was
required to discuss. See Caluza, 7 Vet.App. at 506 (the Board is required to account for all
materially favorable evidence and provide the reasons for its rejection). The Board’s failure to
discuss the appellant’s February 2012 hearing testimony, or to consider the competence and
credibility of his lay testimony in general, frustrates judicial review; therefore, the Board’s reasons
or bases are inadequate. See Thompson, 14 Vet.App. at 188; Allday, 7 Vet.App. at 527.
Accordingly, the Court will vacate the Board’s decision and remand the matter so that the Board
can adequately address this issue and provide any additional development deemed necessary. See
Tucker, 11 Vet.App. at 374.
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III. CONCLUSION
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 any such 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).
After consideration of the appellant’s and the Secretary’s pleadings, and a review of the
record, the Board’s May 16, 2016, decision is VACATED and the matters REMANDED for
proceedings consistent with this decision.
DATED: February 14, 2018
Copies to:
William McElwain, Esq.
VA General Counsel (027)

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