Veteranclaims’s Blog

January 11, 2019

Single Judge Application; exam versus opinion; if examination is necessary to decide the claim, must provide a statement of reasons or bases explaining why;

Filed under: Uncategorized — Tags: — veteranclaims @ 3:09 pm

Excerpt from decision below:

“The appellant argues that the Board failed to ensure compliance with its January 2015
remand because it remanded the claim to obtain a VA medical opinion only, not to conduct an inperson examination, and neither the March 2016 examiner nor the Board explained why an opinion could not be provided despite the inability to reexamine the appellant. Appellant’s Br. at 17-19; see Reply Br. at 8-9 (asserting that an examination is not necessary for an examiner to opine, based
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on a review of the records, whether he had a diagnosis at any time during the appeal period that is related to service); see also R. at 675 (Board’s 2015 remand directing VA to obtain an opinion, if no current disability exists, whether any psychiatric disorder diagnosed during the course of the appeal is related to service). The Secretary does not dispute that the Board’s remand instructions directed the RO to obtain an opinion. See Secretary’s Br. at 12-13. Rather, he argues that the RO reasonably scheduled the appellant for an examination to solicit more information and that the 2016 examiner clearly indicated why it was not possible to evaluate the appellant for a mental health disorder. Secretary’s Br. at 12-13.
Here, the Court agrees with the appellant that the Secretary’s arguments amount to post hoc
rationalizations
, which the Court cannot accept. See Martin v. Occupational Safety & Health Review Comm’n, 499 U.S. 144, 156 (1991) (“[A]gency ‘litigating 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.”); Evans v. Shinseki, 25 Vet.App. 7, 16 (2011) (“[I]t is the Board that is required to provide a complete statement of reasons or bases, and the Secretary cannot make up for its failure to do so.”). As noted above, the Board did not determine whether the March 2016 examination (or lack thereof) substantially complied with its remand instructions and, as acknowledged by the Secretary, the 2015 remand requested an opinion, not an examination. Further, although the Board stated that the examination was necessary to decide the
claim, it did not provide a statement of reasons or bases explaining why
.

====================

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 17-4075
CHARLEY L. ROGERS, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MEREDITH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
MEREDITH, Judge: The appellant, Charley L. Rogers, through counsel appeals a September 15, 2017, Board of Veterans’ Appeals (Board) decision that denied entitlement to
disability compensation for an acquired psychiatric disorder, including post-traumatic stress disorder (PTSD), and a sleep disorder, including as secondary to PTSD. Record (R.) at 1-12. The appellant does not raise any argument concerning the Board’s denial of disability compensation
for a sleep disorder. Therefore, the Court finds that he has abandoned his appeal of this issue and will dismiss the appeal as to the abandoned issue. See Pederson v. McDonald, 27 Vet.App. 276,
285 (2015) (en banc). 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 Board’s decision denying disability compensation for an acquired psychiatric disorder, including PTSD, and remand the matter for further proceedings consistent with this decision.
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I. BACKGROUND
The appellant served on active duty in the U.S. Army from February 1980 to February R. at 2110. During a February 1995 hospitalization, he underwent a psychiatric evaluation
and endorsed symptoms of sleep disturbances, trouble making decisions, crying spells, thoughts
of suicide, anxiety, and depression. R. at 1366. He reported that a friend was “blown up” on an
obstacle course and grenade range in service and that three friends died in service in non-combat situations. Id. The hospital discharge summary includes the clinician’s opinion that “[i]t appears that he has previously undiagnosed [PTSD] with a history of alcohol abuse, possibly as an attempt to self[-]medicate his anxiety.” R. at 1359.
In January 2003 and April 2004, the appellant endorsed symptoms of anxiety, irritability,
and restlessness, and in April 2005, he filed a disability compensation claim for PTSD. R. at 1866,
1911, 2077. Three months later, his primary care physician provided a provisional diagnosis of
PTSD and referred him for a mental health consultation. R. at 1206; see R. at 97. In September
2005, a VA regional office (RO) denied entitlement to disability compensation for PTSD. R. at
2057-66. The appellant perfected his appeal to the Board, R. at 1667, 1673-92, 2031, and in
January 2009 tested positive on a PTSD screening, but declined a referral to the mental health
clinic, R. at 1445-46.
An April 2011 VA examiner reportedly diagnosed the appellant with an anxiety and
depressive disorder.1 However, a March 2012 VA examiner concluded that he did not meet the
criteria for a diagnosis of PTSD or any other mental health disorder. R. at 99. In March 2013, the
Board determined that the March 2012 examiner’s opinion was based on an inaccurate account of
the medical record and remanded the claim to obtain a new opinion addressing whether the
appellant has a psychiatric disability that may be related to service. R. at 717-24. The Board noted
that the April 2011 examiner did not offer a nexus opinion and that records received from the
Social Security Administration revealed that, during the 1990s, two physicians diagnosed PTSD
and attributed PTSD to a verified in-service stressor. R. at 718-19.
VA obtained another medical opinion in May 2013. R. at 91-98. The examiner reviewed
the available records, noting that the April 2011 examination could not be located and that private
1 It is undisputed that the appellant underwent an examination in April 2011 and that the examination report, although before the Board in March 2013, was not before the Board when it issued the decision on appeal. See Appellant’s Br. at 3; Secretary’s Br. at 3, n.1; see also R. at 6 (2017 Board decision), 674 (2015 Board remand), 719
(2013 Board remand).
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treatment records were also not of record, and opined that it is less likely than not that the appellant has service-connected PTSD. R. at 96-99. The examiner further noted that, although the record included “a few positive PTSD screens[,] the medical records do not support ongoing PTSD
symptoms.” R. at 98.
In January 2015, the Board determined that the May 2013 opinion was inadequate because
the April 2011 examination report was not available for review, stating that, “[a]s the issue to be
adjudicated is whether the [appellant] has a current psychiatric disorder, this examination report is
vital to the claim, and must be obtained and associated with the . . . claims file.” R. at 674. The
Board’s remand instructions included the following: “If additional treatment records and/or the
April 2011 VA examination report are obtained and associated with the claims file, transfer the
file to a VA psychologist or psychiatrist for an opinion as to whether the [appellant] has a
psychiatric disability that is related to service.” R. at 675. The Board further instructed that, if no
disorder currently exists, the examiner should offer an opinion whether any psychiatric disorder
diagnosed during the appeal period may be related to service. Id.
On remand, VA determined that the April 2011 examination “does not exist” and scheduled
the appellant for a new examination. R. at 73, 76-78. In March 2016, the VA examiner noted that
the prior examinations (March 2012 and May 2013) did not reflect any mental health diagnoses
and that it was “not possible” to evaluate the appellant for a mental health disorder because he
appeared for the examination under the influence of cocaine. R. at 74.
In a September 2017 decision, the Board denied disability compensation for an acquired
psychiatric disorder, including PTSD, finding that the appellant does not have PTSD and that his
other psychiatric disorders have not been found related to service. R. at 3. This appeal followed.
II. ANALYSIS
The appellant argues that the Board overlooked favorable evidence, failed to address
missing service records, improperly relied on the missing April 2011 examination report and the May 2013 examination, which it previously found inadequate, and provided inadequate reasons or bases addressing lay testimony. Appellant’s Br. at 7-17, 20-25. He further argues that the Board failed to ensure compliance with its January 2015 remand. Appellant’s Br. at 17-20; Reply Br. at 6-9. The Secretary disagrees with each contention and urges the Court to affirm the Board’s decision. Secretary’s Br. at 5-14.
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A remand by the Board “confers on the [appellant] . . . , as a matter of law, the right to
compliance with the remand orders,” and the Board errs when it fails to ensure compliance with
the terms of such a remand. Stegall v. West, 11 Vet.App. 268, 271 (1998). Although the Secretary
is required to comply with remand orders, it is substantial compliance, not strict compliance, that is required. See Dyment v. West, 13 Vet.App. 141, 146-47 (1999) (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board’s remand,
because such determination “more than substantially complied with the Board’s remand order”), aff’d sub nom. Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002).
The Board’s determination of whether there was substantial compliance with a remand is a
finding of fact that the Court reviews under the “clearly erroneous” standard. See Gill v. Shinseki,
26 Vet.App. 386, 391-92 (2013) (reviewing the Board’s finding of substantial compliance for clear
error), aff’d per curiam sub nom. Gill v. McDonald, 589 F. App’x 535 (Fed. Cir. 2015). As with
any material issue of fact or law, the Board must provide a statement of the reasons or bases for
its determination “adequate to enable a claimant to understand the precise basis for the Board’s
decision, as well as to facilitate review in this Court.” Allday v. Brown, 7 Vet.App. 517, 527 (1995);
see 38 U.S.C. § 7104(d)(1); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1991).
In the decision on appeal, the Board made no findings concerning VA’s duty to assist or
whether VA substantially complied with the January 2015 remand instructions. To the extent that the Board discussed its January 2015 remand, the Board stated that it had remanded the claim to “schedule the [appellant] for a VA examination to clarify his current diagnosis(es) and to obtain a medical opinion as to whether any psychiatric disorder diagnosed during the pendency of his appeal was related to his military service, to include a verified stressor.” R. at 7 (emphasis added).
The Board stated that the “examination was necessary” to decide the claim, but found the
appellant’s presentation at the examination under the influence of mind-altering drugs akin to a failure to appear without good cause and proceeded to adjudicate the claim based on the evidence of record. R. at 6-7.
The appellant argues that the Board failed to ensure compliance with its January 2015
remand because it remanded the claim to obtain a VA medical opinion only, not to conduct an inperson examination, and neither the March 2016 examiner nor the Board explained why an opinion could not be provided despite the inability to reexamine the appellant. Appellant’s Br. at 17-19; see Reply Br. at 8-9 (asserting that an examination is not necessary for an examiner to opine, based
5
on a review of the records, whether he had a diagnosis at any time during the appeal period that is related to service); see also R. at 675 (Board’s 2015 remand directing VA to obtain an opinion, if no current disability exists, whether any psychiatric disorder diagnosed during the course of the appeal is related to service). The Secretary does not dispute that the Board’s remand instructions directed the RO to obtain an opinion. See Secretary’s Br. at 12-13. Rather, he argues that the RO reasonably scheduled the appellant for an examination to solicit more information and that the 2016 examiner clearly indicated why it was not possible to evaluate the appellant for a mental health disorder. Secretary’s Br. at 12-13.
Here, the Court agrees with the appellant that the Secretary’s arguments amount to post hoc
rationalizations, which the Court cannot accept. See Martin v. Occupational Safety & Health
Review Comm’n, 499 U.S. 144, 156 (1991) (“[A]gency ‘litigating 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.”); Evans v. Shinseki, 25 Vet.App. 7, 16 (2011) (“[I]t is the Board that is required to provide a complete statement of reasons or bases, and the Secretary cannot make up for its failure to do so.”). As noted above, the Board did not determine whether the March 2016 examination (or lack thereof) substantially complied with its remand instructions and, as acknowledged by the Secretary, the 2015 remand requested an opinion, not an examination. Further, although the Board stated that the examination was necessary to decide the
claim, it did not provide a statement of reasons or bases explaining why.

The Court’s review is frustrated by the Board’s failure to make the necessary factual
findings in the first instance and by its failure to explain why, in 2016, an examination was
necessary to decide the claim. See Hensley v. West, 212 F.3d 1255, 1263 (Fed. Cir. 2000)
(“[A]ppellate tribunals are not appropriate fora for initial fact finding.”). Accordingly, remand is
warranted. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (“[W]here 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, a remand is the appropriate remedy.”).
Given this disposition, the Court will not now address the remaining arguments and issues
raised by the appellant. See Quirin v. Shinseki, 22 Vet.App. 390, 395 (2009) (noting that “the Court
will not ordinarily consider additional allegations of error that have been rendered moot by the
Court’s opinion or that would require the Court to issue an advisory opinion”); Best v. Principi,
15 Vet.App. 18, 20 (2001) (per curiam order). On remand, the appellant is free to submit additional
6
evidence and argument on the remanded matter, including the specific arguments raised here on
appeal, 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 the benefit sought); Kutscherousky
v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). The Court reminds the Board 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), and the Board must proceed expeditiously, in
accordance with 38 U.S.C. § 7112.
III. CONCLUSION
The appeal of the Board’s September 15, 2017, decision denying disability compensation
for a sleep disorder, including as secondary to PTSD, is DISMISSED. After consideration of the
parties’ pleadings and a review of the record, the Board’s decision denying disability compensation
for an acquired psychiatric disorder, including PTSD, is VACATED and the matter is
REMANDED for further proceedings consistent with this decision.
DATED: January 9, 2019
Copies to:
Zachary M. Stolz, Esq.
VA General Counsel (027)

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