Veteranclaims’s Blog

October 10, 2018

Single Judge Application; foundation basis of credibility lay evidence; Buchanan, 451 F.3d at 1337; Fountain v. McDonald, 27 Vet.App. 258, 272 (2015;

Excerpt from decision below:

“[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.”2 Rather, the Board must “first establish a proper foundation for drawing inferences against a claimant from an absence of documentation.”3”

2 Buchanan, 451 F.3d at 1337.
3 Fountain v. McDonald, 27 Vet.App. 258, 272 (2015) (and cases cited).

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“The Board found that Mr. Tilley “was not exposed to Agent Orange through the clothing
of deceased veterans,”13 and further reasoned as follows:
The Veteran’s duties did not include exposure to combat veterans aboard a ship in
Vietnam. Moreover, even were the Board to assume the credibility of the Veteran’s
account of inventorying the clothing of deceased veterans in Camp Pendleton,
California, (which it does not) it would be a matter of speculation to ascertain the
amount of herbicide exposure in this circumstance.14
In short, the Board found that Mr. Tilley’s lay statements were not credible, but it failed to provide any foundation for that finding.”

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 17-2015
STEPHEN E. TILLEY, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before DAVIS, Chief Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

DAVIS, Chief Judge: U.S. Marine Corps veteran Stephen E. Tilley served from February
1969 to February 1971, during the Vietnam War era. He suffers from multiple heart disabilities, with diagnoses including acute, subacute, or old myocardial infarction; coronary artery disease; heart block; implanted cardiac pacemaker; and congestive heart failure. Mr. Tilley asserts that his diagnosed heart disabilities resulted from in-service exposure to herbicides, including Agent Orange, and contaminated water at Camp Lejeune. In a May 23, 2017, decision, the Board of Veterans’ Appeals denied entitlement to service connection for congestive heart failure.
Mr. Tilley argues that the Board erred by failing to (1) determine whether the lay statements of record are credible; and (2) ensure compliance with the terms of a July 2015 remand order. The Court agrees that the Board failed to provide an adequate statement of reasons or bases for rejecting lay evidence that Mr. Tilley was exposed to Agent Orange and failed to ensure compliance with its previous remand order. Therefore, the Court will set aside the Board decision and remand the matter for reconsideration of the lay statements under the proper legal standard and to obtain a new examination that substantially complies with the July 2015 remand order.
2
I. ANALYSIS
A. The Board’s statement of reasons or bases for rejecting the lay statements
pertaining to Agent Orange exposure is inadequate.
Mr. Tilley argues that the Board failed to adequately explain its reasoning for rejecting his lay statements that he was exposed to Agent Orange in service. As finder of fact, the Board has the duty to assess the weight and credibility of the evidence. In making credibility determinations, the Board may consider factors such as facial plausibility, bias, self-interest, and consistency with other evidence of record.1 “[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.”2 Rather, the Board must “first establish a proper foundation for drawing inferences against a claimant from an absence of documentation.”3
The Board must provide a statement of reasons or bases adequate to enable an appellant to understand the precise basis for the Board’s decision as well as to facilitate review in this Court.4
The statement of reasons or bases must explain the Board’s reasons for discounting favorable evidence,5 discuss all issues raised by the claimant or the evidence of record,6 and discuss all provisions of law and regulation where they are made “potentially applicable through the assertions and issues raised in the record.”7
The record includes many statements pertaining to the issue of Mr. Tilley’s exposure to
Agent Orange during his assignment at Camp Pendleton, California. Mr. Tilley stated that he worked at a warehouse processing uniforms and other items from veterans who were killed in action while in Vietnam.8 He described his job duties as including inventorying and photographing
1 Caluza v. Brown, 7 Vet.App. 498, 511 (1995); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed.
Cir. 2006).
2 Buchanan, 451 F.3d at 1337.
3 Fountain v. McDonald, 27 Vet.App. 258, 272 (2015) (and cases cited).
4 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App.
52, 56-57 (1990).
5 Thompson v. Gober, 14 Vet.App. 187, 188 (2000).
6 Robinson v. Peake, 21 Vet.App. 545, 552 (2008), aff’d sub nom. Robinson v. Shinseki, 557 F.3d 1335 (Fed.
Cir. 2009).
7 Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991).
8 See Record (R.) at 566-67 (July 2015 statement).
3
items, including uniforms with bullet or shrapnel damage.9 During the Board hearing, he testified that these items were placed in plastic-lined wooden crates and shipped directly from Vietnam to the warehouse.10 He further testified that he was not provided any protective gear.11 Mr. Tilley submitted an opinion from his physician’s assistant, who opined that, “if [Mr. Tilley] helped with combat casualties brought to his ship, it is highly likely he was exposed to Agent Orange” and that it is “very possible” this exposure contributed to his current health condition.12
The Board found that Mr. Tilley “was not exposed to Agent Orange through the clothing of deceased veterans,”13 and further reasoned as follows:
The Veteran’s duties did not include exposure to combat veterans aboard a ship in
Vietnam. Moreover, even were the Board to assume the credibility of the Veteran’s
account of inventorying the clothing of deceased veterans in Camp Pendleton,
California, (which it does not) it would be a matter of speculation to ascertain the
amount of herbicide exposure in this circumstance.14
In short, the Board found that Mr. Tilley’s lay statements were not credible, but it failed to provide any foundation for that finding.
The Secretary now argues that the Board explained that exposure to Agent Orange via clothing is not a documented, accepted or recognized exposure that triggers the presumptive service connection provisions . . . [and] rejected his lay assertions and testimony . . . as not credible because they were inconsistent with, not supported by, and far outweighed by the objective, credible evidence of record, including his service treatment and personnel records.15
This argument, however, amounts to a post hoc rationalization of the Board’s decision, and the
Court rejects this attempt to cure the Board’s failure to address the credibility and weight of the
evidence in the first instance.16 Although the Board explained that Mr. Tilley’s description of his
9 Id.
10 See R. at 583-600 (Apr. 2015 Board Hearing Transcript).
11 See R. at 588.
12 See R. at 318 (Dec. 2015 VA physician’s assistant letter)
13 R. at 8.
14 R. at 9.
15 Secretary’s Brief at 10-11 (citing R. at 7).
16 See Martin v. Occupational Safety & Health Review Comm’n, 499 U.S. 144, 156 (1991) (“‘[L]itigating
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.”).
4
exposure to Agent Orange is not a “recognized exposure that triggers presumptive service
connection,”17 the Board failed to explain why Mr. Tilley’s lay statements were not credible
evidence of actual exposure to Agent Orange. Moreover, to the extent that the Board found the
physician’s assistant’s opinion inconsistent with Mr. Tilley’s “own testimony and military
records,”18 it is not clear how those deficiencies render Mr. Tilley’s statements incredible. The
Court holds that the Board failed to provide an adequate statement of reasons or bases, and remand
is therefore required.19
B. The Board failed to ensure compliance with the terms of its prior remand by
failing to obtain an adequate examination.
Next, Mr. Tilley argues that an August 2015 VA medical opinion obtained after the Board’s
July 2015 remand is inadequate, in part, because the examiner failed to address whether any of
Mr. Tilley’s diagnosed heart disabilities are directly related to his alleged exposure to Agent
Orange or his conceded exposure to contaminated water at Camp Lejeune. Specifically, Mr. Tilley
argues that the examiner only addressed the theory of presumptive service connection, and did not
provide an opinion for each of Mr. Tilley’s diagnosed heart disabilities as instructed by the Board.
Whether a medical opinion is adequate is a finding of fact that the Court reviews under the
“clearly erroneous” standard. 20 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.'”21
Once VA undertakes to provide a medical examination, it must ensure that it obtains an
adequate medical nexus opinion or notified the claimant why one will not or cannot be provided.22
A medical examination is adequate “where it is based upon 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.'”23 The report
17 R. at 7 (emphasis added).
18 R. at 9.
19 See Allday, 7 Vet.App. at 527; see also Tucker v. West, 11 Vet.App. 369, 374 (1998).
20 See 38 U.S.C. § 7261(a)(4); D’Aries v. Peake, 22 Vet.App. 97, 103 (2008).
21 Gilbert, , 1 Vet.App. at 52 (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
22 Barr v. Nicholson, 21 Vet.App. 303, 311-12 (2007).
23 Stefl v. Nicholson, 21 Vet.App. 123, 123 (2007) (quoting Ardison v. Brown, 6 Vet.App. 405, 407 (1994))
5
must contain clear conclusions and supporting data, as well as “a reasoned medical explanation”
connecting the data and conclusions.24
Further, a Board remand confers on the claimant a legal right to compliance with the
remand order, and the Board errs when it fails to ensure such compliance. 25 Substantial
compliance, not strict or absolute compliance, is required.26
In its July 2015 remand instructions for the VA examination, the Board stated that the
examiner
must provide a diagnosis for each identified heart disability. In regard to EACH
identified disorder, namely congestive heart failure, the examiner must provide an
opinion as to whether the disability began during active service or is related to any
incident of service, to include as due to Agent Orange exposure and/or exposure to
contaminated water at Camp Lejeune.27
In the August 2015 VA examination report, the examiner addressed whether Mr. Tilley’s
heart disabilities were related to his exposure to contaminated water at Camp Lejeune and opined:
Ther[e] is no documentation that any [ischemic heart disease] or heart failure is
related in any way to this environmental exposure. The 15 documented conditions
[in a National Institute of Health VA Public Health Notice] are all cancers, kidney
failure, and a connective tissue disease. This veteran has NONE of these
conditions.28
Neither party disputes that Mr. Tilley’s diagnosed heart disabilities are not presumptively
associated with contaminated water at Camp Lejeune. However, it appears that the examiner’s
opinion merely supports VA’s decision not to include heart disabilities on the list of presumptively
service-connected conditions without considering the theory of direct service connection. The
Court has found medical examinations inadequate when they find that a condition is not related to
service solely because it is not entitled to presumptive service connection and do not consider
direct service connection.29 It is unclear from the examination report whether the examiner’s
(internal quotation marks omitted).
24 Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008).
25 Stegall v. West, 11 Vet.App. 268, 271 (1998).
26 Dyment v. West, 13 Vet.App. 141, 147 (1999).
27 R. at 577 (July 7, 2015, Board decision) (emphasis added).
28 R. at 185.
29 See Polovick v. Shinseki, 23 Vet.App. 48, 55 (2009) (recognizing that to permit the denial of service
connection “solely because the statistical analysis does not support presumptive service connection, would, in effect
6
reliance on the VA Public Health Notice precluded the examiner from adequately considering
direct service connection, and the Board failed to address this matter.
In addition, the examiner failed to discuss any heart disability besides ischemic heart
disease and heart failure. In its remand instructions, the Board specified that Mr. Tilley had
multiple current diagnoses, including myocardial infarction, coronary artery disease, heart block,
an implanted cardiac pacemaker, and congestive heart failure. The Board further mandated that
the examiner address each disability. Because the examiner did not do so, the Court holds that the
Board clearly erred when it found substantial compliance with its July 2015 remand instructions.
Remand is therefore required for the Board to obtain an opinion that addresses whether any of the
above diagnoses are directly related to his conceded exposure to contaminated water at Camp
Lejeune.
The Court acknowledges that the Board also instructed the examiner to opine as to whether
Mr. Tilley’s diagnosed heart disabilities are related to his alleged Agent Orange exposure, and that
the examiner stated that she could not do so because Agent Orange exposure has not been
confirmed. The Court notes that, because ischemic heart disease is entitled to presumptive service
connection, a medical opinion addressing this question may not be necessary if the Board finds
Mr. Tilley’s lay statements to be credible evidence that he was exposed to Agent Orange. However,
Mr. Tilley is free to raise that issue below.
Finally, because the Court is remanding Mr. Tilley’s case, it will not consider his additional
arguments as to other inadequacies in the examination report and the Board’s decision. 30 In
pursuing his claim on remand, Mr. Tilley will be free to submit these arguments, as well as any
additional argument and evidence, and the Board must consider any such evidence or argument.31
permit the denial of direct service connection simply because there is no presumptive service connection.”); see also
Combee v. Brown, 34 F.3d 1039, 1042-44 (Fed. Cir. 1994) (stating that presumptive service connection “does not
foreclose proof of direct service connection”).
30 See Mahl v. Principi, 15 Vet.App. 37, 38 (2001) (per curiam order) (“[I]f the proper remedy is a remand,
there is no need to analyze and discuss all the other claimed errors that would result in a remedy no broader than a
remand.”).
31 See Kay v. Principi, 16 Vet.App. 529, 534 (2002).
7
II. CONCLUSION
On consideration of the foregoing, the Court SETS ASIDE the Board’s May 23, 2017,
decision and REMANDS the matter for further proceedings.
DATED: October 9, 2018
Copies to:
Brendan B. Garcia, Esq.
VA General Counsel (027)

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