Veteranclaims’s Blog

February 23, 2020

Single Judge Application; Miller v. Wilkie, __ Vet.App. , , No. 18- 2796, 2020 U.S. Vet. App. Vet. Claims LEXIS 64, at *20 (Jan. 16, 2020); Board must discuss relevant evidence and provide an explanation for its rejection of any material evidence favorable to the claimant;

Designated for electronic publication only
No. 18-5868
Before FALVEY, Judge.
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
FALVEY, Judge: Marine Corps veteran Joseph V. Seymour appeals through counsel a July 6, 2018, Board of Veterans’ Appeals decision denying service connection for right knee patellofemoral syndrome. The appeal is timely; the Court has jurisdiction to review the Board decision; and single-judge disposition is appropriate. See 38 U.S.C. §§ 7252(a), 7266(a); Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
We are asked to review the Board’s reasons or bases for finding substantial compliance
with prior remand directives, discounting appellant’s lay evidence, and finding his hearing request untimely. Because the Board failed to adequately address the veteran’s reports of in-service knee problems when discounting his lay evidence, we will set aside the Board decision on appeal.
The veteran served from July 1995 to July 2001. Record (R.). at 183. On March 11, 2000,
he was in a motorcycle accident that resulted in an injury and treatment for his right knee. R. at
590-92. He argues that this accident, along with his years of service as an aircraft mechanic—an
occupation that reportedly put significant strain on his knees—resulted in his current knee
Mr. Seymour started his claim process in August 2009. R. at 677. In 2010, two VA medical
examinations explored whether the veteran’s right knee disorder was related to service. R. at 304-

  1. Based on these examinations, VA denied his right knee claim in an April 2010 rating decision.
    R. 292-302. The veteran appealed this decision and, in his Notice of Disagreement, argued that his
    in-service injury and duties as a mechanic caused his current knee disability. R. at 231. He
    requested a Board hearing, but he ended up missing that hearing and the Board found his request
    for a new hearing untimely when it remanded his claim in November 2016. R. at 137-41. In that
    same remand, the Board found that the 2010 medical opinions did not have an adequate rationale,
    thus it ordered a new examination that would “provide a robust rationale for all opinions.” Id.
    Pursuant to the remand, VA obtained a new medical opinion in March 2017. R. 75-79. The
    appeal then returned to the Board resulting in the July 2018 decision on appeal. The veteran’s
    arguments come down to three main points. He argues that the Board failed to ensure substantial
    compliance with its 2016 remand. Appellant’s Brief (Br.) at 12-15. He takes issue with how it
    discounted his lay evidence. Id. at 16-19. And he argues that it did not adequately address his
    request for a second hearing. Id. at 20-22. As we explain, we begin and end our analysis with his
    second issue—how the Board discounted his lay evidence.
    In denying his claim, the Board discounted the veteran’s reports that his knee continued to
    bother him after the accident based on his normal separation examination. R at 8. But, on its face,
    this determination can’t be reconciled with the veteran’s report on his June 2001 separation
    examination that his “knee still give[s him] problems.” R. at 536. It is unclear how the Board could
    discount the veteran’s reports of ongoing knee problems as less credible because contemporaneous
    records showed that he denied knee problems, when, in reality, at separation the veteran told the
    medical examiner that his knee continued to bother him.
    The Board is required to support its decision with a written statement of the reasons or
    bases that is understandable by the claimant and facilitates review by this Court. See 38 U.S.C.
    § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995). The statement of reasons or bases
    must explain the Board’s reasons for discounting favorable evidence, see Thompson v. Gober,
    14 Vet.App. 187, 188 (2000), discuss all issues raised by the claimant or the record, see Robinson
    v. Peake, 21 Vet.App. 545, 552 (2008), aff’d sub nom. Robinson v. Shinseki, 557 F.3d 1335 (Fed.
    Cir. 2009), and discuss all provisions of law and regulation where they are made “potentially
    applicable through the assertions and issues raised in the record,” Schafrath v. Derwinski,
    1 Vet.App. 589, 592 (1991).
    Although it is true that “the Board does not have to discuss all the evidence, [ ] it must discuss the relevant evidence. And in so doing, it must provide an explanation for its rejection of any material evidence favorable to the claimant.” Miller v. Wilkie, __ Vet.App. , , No. 18- 2796, 2020 U.S. Vet. App. Vet. Claims LEXIS 64, at *20 (Jan. 16, 2020) (emphasis in original).
    Here, the Board failed to discuss the veteran’s contemporaneous reports of in-service knee
    problems, yet it found him less credible and that service connection was not warranted, in part
    because of a lack of contemporaneous reports of knee problems. The Board’s failure to discuss this
    evidence or explain why it would be discounted frustrates our review and requires remand. See
    Allday, 7 Vet.App. at 527.
    Because the claim is being remanded, the Court need not address the veteran’s additional
    arguments that would result in no broader remedy than a remand. 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.”). Moreover, the Board’s determination about the veteran’s credibility could moot much
    of his arguments about whether the examiner and the Board adequately reconciled his reports of
    in-service knee pain stemming from his service as an aircraft mechanic. The Court has recognized
    the judicial efficiency of not addressing issues where a decision on one issue could have a
    significant impact upon another, and that impact in turn could render any review by this Court of
    the decision meaningless and a waste of judicial resources. Harris v. Derwinski, 1 Vet.App. 180,
    183 (1991).
    In any case, in pursuing his claim on remand, the veteran will be free to submit additional
    argument and evidence as to the remanded matter, and he has 90 days to do so from the date of the
    postremand notice VA provides. Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per
    curiam order); see also Clark v. O’Rourke, 30 Vet.App. 92, 97 (2018). The Board must consider
    any such evidence or argument submitted. See Kay v. Principi, 16 Vet.App. 529, 534 (2002); see
    also Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991) (“A remand is meant to entail a critical
    examination of the justification for the decision.”). As for the veteran’s concerns about his missed
    hearing, the Federal Circuit’s decision in Cook v. Wilkie, 908 F.3d 813, 814 (Fed. Cir. 2018)
    clarifies that the Board must afford him another hearing if he now desires one.1
    Accordingly, the Board’s July 6, 2018, decision is SET ASIDE and the matter is
    REMANDED for further proceedings.
    DATED: February 19, 2020
    Copies to:
    Glenn R. Bergmann, Esq.
    VA General Counsel (027)
    1 We note that the veteran’s concerns about his hearing appear similar to that of the appellant in Scott v.
    McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Like the appellant in Scott, Mr. Seymour did not raise his concern about
    his hearing to the Board. In fact, Mr. Seymour’s VSO representative submitted a “Written Brief Presentation” in lieu
    of a hearing. Nothing in this written presentation hints at the veteran’s desire for a hearing. Nonetheless, Counsel
    represents that Mr. Seymour continued to want a hearing and argues that the Board’s failure to explain why it did not
    provide him one leaves him unable to understand the Board’s decision. At best, it looks as though Mr. Seymour
    continued to want a hearing after the Board’s remand but kept this desire hidden or that his representative ignored his
    wishes and Mr. Seymour did nothing about this. Otherwise, it appears that his continued desire for a hearing or his
    confusion about the Board decision materialized only after Counsel had opportunity to review the record. Regardless,
    it is hard to see how he escapes the fate of the claimant in Scott. Fortunately, on remand, the veteran may request
    another hearing and we need not resolve this question. But in the future, it would be helpful not to leave the Court
    speculating about why such issues were not pressed by the appellant, his representative, or his counsel.

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