Veteranclaims’s Blog

April 26, 2019

Single Judge Application; examiner rendered a credibility determination; Sizemore v. Principi, 18 Vet.App. 264, 275 (2004);

Excerpt from decision below:

“However, the examiner rendered a credibility determination, which he was not permitted to do. See Sizemore v. Principi, 18 Vet.App. 264, 275 (2004) (“To the extent that the examining psychiatrist is
expressing an opinion on whether the appellant’s claimed in-service stressors have been substantiated, that is a matter for determination by the Board and not a medical matter.”); Owens v. Brown, 7 Vet.App. 429, 433 (1995) (It is the responsibility of the Board, not the examiner, “to
assess the credibility and weight to be given to evidence.”). Further, the Board relied on that medical opinion to support its decision. The credibility assessment is the only rationale provided by the examiner in the November 2016 opinion, rendering that opinion inadequate.”

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 18-0377
DAVID D. KRAMER, JR., APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before PIETSCH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
PIETSCH, Judge: David D. Kramer, Jr. appeals through counsel a September 25, 2017,
Board of Veterans’ Appeals (Board) decision that denied entitlement to VA benefits for a back
disorder. 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 as the issue
is of “relative simplicity” and “the outcome is not reasonably debatable.” Frankel v. Derwinski,
1 Vet.App. 23, 25-26 (1990). For the reasons that follow, the Court will vacate the September 25,
2017, Board decision on appeal and remand the claim for readjudication consistent with this
decision.
I. FACTS
Mr. Kramer served on active duty in the U.S. Navy from December 1976 to November
1985 and from October 1986 to May 1991. He reported that, during the late 1980s while in service,
he received treatment at the Naval Air Station (NAS) Oceana for back pain that was radiating
down his arm. R. at 3920. Medical records from service reflect that he was treated for a left
rhomboid muscle strain. R. at 4562.
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In July 2010, Mr. Kramer sought VA benefits for a back condition. R. at 3920-21. In
support, he stated that he began experiencing back pain in the late 1980s and was diagnosed with
spinal stenosis in 2005. Id. At a June 2014 VA examination, Mr. Kramer was diagnosed with spinal
stenosis. R. at 1340. The examiner stated that Mr. Kramer reported experiencing chronic back pain
following an injury in 1992 after leaving the service. R. at 1333. The examiner noted that Mr.
Kramer’s back condition was probably worsened by a stroke he suffered in 2005. R. at 1341. In a
March 2015 addendum, the same examiner who conducted the June 2014 examination opined that
Mr. Kramer’s back condition was less likely than not incurred in or caused by his service. R. at
1250-51. The examiner stated that Mr. Kramer’s current spinal stenosis was related to his herniated
lumbar disc injury in 1992. Id.
Following a remand by this Court, the Board also remanded Mr. Kramer’s claim in July
2016, seeking additional development, to include requesting records from NAS Oceana and
obtaining a new VA examination and medical opinion that addressed Mr. Kramer’s lay statements
that he has had back pain continuously since service. R. at 1159-64. At a September 2016 VA
examination, the examiner diagnosed Mr. Kramer with spinal stenosis at L4-L5, noting that the
condition was first diagnosed in December 2005. R. at 869-70. The examiner opined that Mr.
Kramer’s current condition was less likely than not related to service and did not have its onset
during service. R. at 875. The examiner explained that Mr. Kramer did not complain of back pain
when he separated from service and that a post-service October 1994 lumbar spine examination
was negative for a back condition. Id. In a November 2016 addendum opinion, the examiner noted
Mr. Kramer’s lay statements that he has had continuous back pain since service, but found the
statements were not credible as they were not supported by the record. R. at 858.
The Board issued the decision on appeal in September 2017, finding that Mr. Kramer was
not entitled to VA benefits for spinal stenosis. The Board relied on Mr. Kramer’s medical history
as well as the September 2016 examination report and November 2016 addendum opinion for its
finding that his back condition did not have its onset during service and was not otherwise related
to his service. The Board also found that VA complied with its duty to assist and that all relevant
records, including records from NAS Oceana, were part of the claims file.
On appeal, Mr. Kramer argues that the Board erred by finding that VA fulfilled its duty to
assist because the September 2016 examination report and November 2016 addendum were
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inadequate. He also argues that the Board erred in finding that his service treatment records were
complete because NAS Oceana treatment records still have not been obtained. He also contends
that the Board’s reasons or bases are inadequate.
In response, the Secretary argues that the Board’s decision should be affirmed because the
Board properly found that the duty to assist had been satisfied. The Secretary states that the
September 2016 VA examination and November 2016 addendum opinion were adequate to decide
the claim. The Secretary also states that the Board did not err in finding that VA complied with its
duty to assist by obtaining records from NAS Oceana. The Secretary notes the Board’s discussion
that NAS Oceana record was included in the claims file. The Secretary also argues that the Board
provided adequate reasons or bases for its decision.
II. ANALYSIS
“Once the Secretary undertakes the effort to provide an examination when developing a
service-connection claim, . . . he must provide an adequate one.” Barr v. Nicholson, 21 Vet.App.
303, 311 (2007). 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.'” Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet.App. 405,
407 (1994)). Thus, “[a] medical examination report must contain not only clear conclusions with
supporting data, but also a reasoned medical explanation connecting the two.” Nieves-Rodriguez
v. Peake, 22 Vet. App. 295, 301 (2008).
The Board’s determination of whether a medical opinion is adequate is a finding of fact
that the Court reviews under the “clearly erroneous” standard. See 38 U.S.C. § 7261(a)(4); D’Aries
v. Peake, 22 Vet.App. 97, 104 (2008). “A factual finding ‘is “clearly erroneous” when although
there is evidence to support it, the reviewing court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed.'” Hersey v. Derwinski, 2 Vet.App. 91, 94
(1992) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
As always, the Board must provide a statement of the reasons or bases for its determination,
adequate to enable an appellant to understand the precise basis for the Board’s decision as well as
to facilitate review in this Court. 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527
4
(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
it finds 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, 506 (1995), aff’d per curiam,
78 F.3d 604 (Fed. Cir. 1996) (table).
The Board relied in part on the September 2016 examination report and the November
2016 addendum opinion. Mr. Kramer argues that these opinions were inadequate because they
failed to consider his lay statements, as required by the July 2016 remand order. In the September
2016 medical opinion, the examiner stated that it was less likely than not that Mr. Kramer’s spinal
stenosis had its onset during service because there was no report of back problems at his separation
examinations and x-rays of his back performed in 1994 were normal. Because the examiner failed
to address Mr. Kramer’s lay statements regarding injuring his back during service, VA sought an
addendum to that opinion. In the November 2016 addendum, the examiner stated that “it is less
likely than not that the lay statements are credible” because there was no corroboration of any back
injury in Mr. Kramer’s service records or separation examinations. R. at 858.
In denying Mr. Kramer’s claim, the Board noted the examiner’s credibility finding, but
stated that it did not rely on that assessment in the opinion. The Secretary focuses on this statement
in the Board’s decision to assert that the November 2016 opinion was adequate. However, the examiner rendered a credibility determination, which he was not permitted to do. See Sizemore v. Principi, 18 Vet.App. 264, 275 (2004) (“To the extent that the examining psychiatrist is
expressing an opinion on whether the appellant’s claimed in-service stressors have been substantiated, that is a matter for determination by the Board and not a medical matter.”); Owens v. Brown, 7 Vet.App. 429, 433 (1995) (It is the responsibility of the Board, not the examiner, “to
assess the credibility and weight to be given to evidence.”). Further, the Board relied on that medical opinion to support its decision. The credibility assessment is the only rationale provided by the examiner in the November 2016 opinion, rendering that opinion inadequate.
The Board’s July 2016 remand order noted that the prior examinations were inadequate
because they did not consider Mr. Kramer’s lay statements. The Board ordered VA to provide Mr.
Kramer with a new examination, stating that the examiner must address his lay statements
regarding experiencing back pain continuously since his service. The September 2016 opinion
5
failed to consider those lay statements and the Court has found the November 2016 opinion
addressing them inadequate. Accordingly, there is still no VA medical opinion of record that
adequately assesses Mr. Kramer’s lay statements concerning his back condition. “[A] remand by
this Court or the Board confers on the veteran or other claimant, as a matter of law, the right to
compliance with the remand orders.” Stegall v. West, 11 Vet.App. 268, 271 (1998). A remand
“imposes upon the Secretary . . . a concomitant duty to ensure compliance with the terms of the
remand.” Id. In cases where “the remand orders of the Board or this Court are not complied with,
the Board itself errs in failing to insure compliance.” Id. Because the Board’s remand order remains
unfulfilled, the Court finds that the Board erred in finding that VA satisfied its duty to assist and
complied with the July 2016 remand order. See Stegall, 11 Vet.App. at 271.
Although the Court finds remand is appropriate, it will also address Mr. Kramer’s
remaining duty to assist argument. The Secretary has a duty to assist an appellant in obtaining
evidence necessary to substantiate his claim, including making reasonable efforts to obtain all
relevant records that the appellant adequately identifies and authorizes the Secretary to obtain.
38 U.S.C. § 5103A(a)(1), (b)(1); Moore v. Shinseki, 555 F.3d 1369, 1372-75 (Fed. Cir. 2009). The
Court reviews the Board’s determination that VA satisfied its duty to assist under the “clearly
erroneous” standard of review. See Nolen v. Gober, 14 Vet.App. 183, 184 (2000).
The Board stated that the service treatment records from Mr. Kramer’s first period of
service “appear to be complete.” R. at 5. The Board noted that the NAS Oceana records, referred
to by the Board as the NASO records, were part of the claims file. Specifically, the Board found
that the March 1989 treatment record, which indicated that Mr. Kramer was treated for pain in his
left arm that radiated into his neck and scapula at “NASO” was the record at issue. R. at 9. Mr.
Kramer did not challenge this finding by the Board. He ignored the Board’s discussion of that
matter entirely in his brief. He also failed to file a reply brief addressing this matter and thus did
not dispute the Secretary’s arguments concerning the adequacy of the Board’s determination
regarding the NAS Oceana records. Consequently, the Court finds that he has failed to demonstrate
error with the Board’s determination that all records, including his treatment record from NAS
Oceana, have been obtained. See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (“An
appellant bears the burden of persuasion on appeals to this Court.”), aff’d per curiam, 232 F.3d
908 (Fed. Cir. 2000) (table).
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Given that the Court is remanding this claim for readjudication, the Court will not at this
time address Mr. Kramer’s remaining arguments, which concern the Board’s reasons and bases.
See Best v. Principi, 15 Vet.App. 18, 20 (2001) (“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, he is free to submit
additional evidence and argument on the remanded matter 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 the Secretary to provide
for “expeditious treatment” of claims remanded by the Court).
III. CONCLUSION
Upon consideration of the foregoing analysis, the record of proceedings before the Court,
and the parties’ pleadings, the September 25, 2017, Board decision on appeal is VACATED and
the matter is REMANDED for readjudication consistent with this decision.
DATED: April 24, 2019
Copies to:
Joseph J. Donnelly, Esq.
VA General Counsel (027)

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