Veteranclaims’s Blog

October 23, 2019

Single Judge Application; hypertension diagnosis versus onset of symptoms; lay statement versus conveying what a medical professional has told veteran;

Filed under: Uncategorized — veteranclaims @ 6:52 pm

Excerpt from decision below:

“The examiner supported that conclusion by stating that “[hy]pertension should not be diagnosed based on one measurement alone.”24 The examiner is certainly correct that hypertension cannot be diagnosed for VA compensation purposes based on a single elevated blood pressure reading.25 But that requirement for diagnosis does not mean that an elevated blood pressure reading does not show the onset of symptoms during service.26 The Board did not consider this issue when assessing the adequacy of the February 2010 examination frustrating judicial review. On remand, the Board must consider this issue when determining whether it is appropriate to rely on this examination. If it can’t do so, it must ensure that it obtains medical evidence that is adequate for adjudication purposes.

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“Although lay persons are competent to report on some issues, he is not competent to opine as to the etiology of his hypertension as he has not been shown to possess the requisite training or credentials needed to render a competent opinion as to medical diagnosis or causation.[29] The problem with the Board’s position is that it fundamentally misunderstood the nature of appellant’s statement. He was not providing his opinion about the cause of his hypertension. That would have been improper without medical expertise.30 Rather, he was conveying what a medical professional told him. That is entirely proper because a lay person is competent to “report[] a contemporaneous medical diagnosis.”31 On remand, the Board should reconsider its decision about GWS and its connection to appellant’s hypertension with a proper understanding of the meaning of appellant’s hearing testimony.

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Designated for electronic publication only

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 18-3190

HAYDEN HOOVER,APPELLANT,

V.

ROBERT L.WILKIE, SECRETARY OF VETERANS AFFAIRS,APPELLEE.

Before ALLEN, Judge.

MEMORANDUM DECISION

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

ALLEN, Judge: Appellant Hayden Hoover served the Nation honorably in the United Army. In this appeal, which is timely and over which the Court has jurisdiction,1 he contests a March 9, 2018, decision of the Board of Veterans’ Appeals that denied him service connection for a right knee disability and hypertension.2 Because the Board did not support its decision with an adequate statement of reasons or bases, we will set aside the decision and remand this matter for further proceedings.

I. ANLAYSIS

Appellant claims that the Board erred in denying him service connection for a right knee disability and hypertension. As to his knee condition, appellant argues that the Board failed to ensure that VA fulfilled its duty to assist him in establishing his claim because it did not obtain certain service department records and otherwise did not adequately explain its reasoning. As to hypertension, he principally claims the Board relied on an inadequate VA medical examination 1See 38 U.S.C. §§ 7252(a), 7266(a). 2 Record (R.) at 2-11. The Board also granted appellant service connection for a left knee disability. This is a favorable finding that we may not disturb. See Medrano v. Nicholson, 21 Vet.App. 165, 170 (2007). 2 and failed to address an alternative theory of entitlement to service connection for this condition. The Secretary agrees that remand is appropriate for the right knee claim. However, he defends the Board’s denial of service connection for hypertension and urges that we affirm that portion of the decision on appeal. We first lay out the legal principles that frame our resolution of this appeal. Thereafter, we address the right knee and hypertension claims in turn.

A. The Legal Landscape

Establishing service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.3 The Court reviews the Board’s findings regarding service connection for clear error.4 The Court will overturn the Board’s finding only if the record offers no plausible basis for its decision and we are left with a definite conviction that the Board’s decision was in error.5The Secretary has a statutory duty to assist claimants by making “reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant’s claim for a benefit under a law administered by the Secretary.”6 This duty extends to VA medical records and service treatment records7 as well as private records that a claimant “adequately identifies.”8 As with establishing service connection, we review the Board’s factual determination that VA complied with its duty to assist a claimant for clear error.9Clear error review also extends to our review of the Board’s determinations about the adequacy of medical opinions.10 A medical opinion is adequate when it is “based upon consideration of the veteran’s . . . medical history and examinations and also describes the disability in sufficient detail” so that the Board’s “evaluation of the claimed disability will be a

3See Hickson v. West, 12 Vet.App. 247, 253 (1999); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).

4Dyment v. West, 13 Vet.App. 141, 144 (1999).

5See Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990).

6 38 U.S.C. § 5103A.

7 38 C.F.R. § 3.159(c)(3) (2019); see Sullivan v. McDonald, 815 F.3d 786, 791 (Fed. Cir. 2016).

8 38 U.S.C. § 5103A(b)(1); see Caffrey v. Brown, 6 Vet.App. 377, 383 (1994).

9See Hyatt v. Nicholson, 21 Vet.App. 390, 395 (2007); Daves v. Nicholson, 21 Vet.App. 46, 50-51 (2007).

10D’Aries v. Peake, 22 Vet.App. 97, 104 (2008); see Gilbert, 1 Vet.App. at 52.

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fully informed one.”11 “It is the factually accurate, fully articulated, sound reasoning for the conclusion . . . that contributes probative value to a medical opinion.”12 Finally, for all its findings on a material issue of fact and law, the Board must support its decision with an adequate statement of reasons or bases that enables a claimant to understand the precise bases for the Board’s decision and facilitates review in this Court.13 To comply with this requirement, the Board must analyze the credibility and probative value of evidence, account for evidence that it finds persuasive or unpersuasive, and provide reasons for its rejection of material evidence favorable to the claimant.14 If the Board failed to do so, remand is appropriate.15B.

Appellant’s Right Knee Disability

The Secretary concedes that remand is required with respect to appellant’s right knee disability claim because the Board failed to ensure that VA lived up to its duty to assist.16 The Court agrees. Appellant provided VA with the purported date of the in-service injury to his right knee (February 21, 1995) and named the place the incident occurred (Fort Clayton, Panama).17 He also identified the specific units to which he was attached (193D Support Battalion, 41st Area Support Group) and to which he was assigned at the time (15th Quartermaster Det., 920 S. Sam Houston Ave., Huntsville, TX 77340).18 Yet, there is no indication that VA attempted to contact these units to obtain relevant records. On remand, the Board must ensure that VA complies with its duty to assist appellant in terms of obtaining all service department records, including service treatment records and service personnel records.

The Court also concludes that the Board provided an insufficient statement of reasons or bases concerning the credibility of appellant’s statements about when he injured his right knee and when he had onset of symptoms of this injury.19 The Board noted appellant’s statements on these

11Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007); see Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008).

12Nieves-Rodriguez, 22 Vet.App. at 304.

13 38 U.S.C. § 7104(d)(1); Gilbert, 1 Vet.App. at 57.

14Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).

15Tucker v. West, 11 Vet.App. 369, 374 (1998).

16See Secretary’s Brief (Br.) at 6-7.

17 R. at 1941-42.

18Id.

19 The Secretary’s position on this issue is confusing. In the “Summary of the Argument” section of the brief, he concedes the Board erred in terms of its discussion (or lack thereof) of appellant’s credibility. See Secretary’s Br. at 6.

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points,20 but ultimately denied service connection for the right knee condition because there was no in-service event or injury.21 It is not clear how that could be the case if the Board accepted appellant’s testimony. But the Board never made a credibility determination. On remand, it must do so. If it concludes appellant is not credible, it must support its determination with a complete statement of its reason or bases.

C. Appellant’s Hypertension

The Board denied service connection for hypertension because that condition did not have a nexus to appellant’s service.22 The Board’s statement of reasons or bases for reaching this conclusion is not adequate.

First, the Board’s reasoning for relying on a February 2010 VA medical examination is insufficient. That examiner acknowledged that appellant had an episode of elevated blood pressure in service.23 She still rendered a negative nexus opinion, however. The examiner supported that conclusion by stating that “[hy]pertension should not be diagnosed based on one measurement alone.”24 The examiner is certainly correct that hypertension cannot be diagnosed for VA compensation purposes based on a single elevated blood pressure reading.25 But that requirement for diagnosis does not mean that an elevated blood pressure reading does not show the onset of symptoms during service.26 The Board did not consider this issue when assessing the adequacy of the February 2010 examination frustrating judicial review. On remand, the Board must consider this issue when determining whether it is appropriate to rely on this examination. If it can’t do so, it must ensure that it obtains medical evidence that is adequate for adjudication purposes.

Second, the Board’s statement of reasons or bases is inadequate with respect to its consideration of an alternative theory of service connection for hypertension, namely Gulf War Syndrome (GWS). During a 2017 Board hearing, the Board member asked appellant whether he However, in the argument section of the brief, he says that arguments about this issue are moot. Id. at 20-21. 20 R. at 6. 21Id. 22 R. at 10. 23 R. at 1349 (citing R. 2094). 24Id.25See 38 C.F.R. § 4.104, Diagnostic Code 7101 (2019). 26See 38 C.F.R. § 3.303(d) (2019);see also Cosman v. Principi, 3 Vet.App. 503, 505 (1992). 5 had ever obtained a medical opinion linking his hypertension with his service in the Gulf War.27Appellant responded that a “PA [physician’s assistant] at the Texas City clinic [had told him] that [his hypertension] could’ve been something to do with the Gulf War Syndrome.”28 In the decision on appeal, the Board addressed the GWS issue and, along the way, rejected appellant’s statement at the hearing. Specifically, the Board noted: The Board has also considered the [v]eteran’s law statements to include those . . . which a doctor had related to him. Although lay persons are competent to report on some issues, he is not competent to opine as to the etiology of his hypertension as he has not been shown to possess the requisite training or credentials needed to render a competent opinion as to medical diagnosis or causation.[29] The problem with the Board’s position is that it fundamentally misunderstood the nature of appellant’s statement. He was not providing his opinion about the cause of his hypertension. That would have been improper without medical expertise.30 Rather, he was conveying what a medical professional told him. That is entirely proper because a lay person is competent to “report[] a contemporaneous medical diagnosis.”31 On remand, the Board should reconsider its decision about GWS and its connection to appellant’s hypertension with a proper understanding of the meaning of appellant’s hearing testimony.

D. Appellant’s Rights on Remand

Because the Court is remanding this matter to the Board for readjudication, the Court need not address any remaining arguments now, and appellant can present them to the Board.32 On remand, appellant may submit additional evidence and argument and has 90 days to do so from the date of VA’s postremand notice.33 The Board must consider any such additional evidence or argument submitted.34 The Board must also proceed expeditiously.3527 R. at 35. 28 R. at 19. 29 R. at 10. 30See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 31Id.32Best v. Principi, 15 Vet.App. 18, 20 (2001). 33Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order); see also Clark v. O’Rourke, 30 Vet.App. 92 (2018). 34Kay v. Principi, 16 Vet.App. 529, 534 (2002). 35 38 U.S.C. §§ 5109B, 7112. 6

II. CONCLUSION

After consideration of the parties’ briefs, the governing law, and a review of the record, the Court SETS ASIDE the March 9, 2018, Board decision and REMANDS this matter for further proceedings consistent with this decision.

DATED: October 22, 2019 Copies to: Glenn R. Bergmann, Esq. VA General Counsel (027)

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