Veteranclaims’s Blog

August 18, 2020

Single Judge Application; Sizemore v. Principi, 18 Vet.App. 264, 275 (2004); When an examiner makes factual findings or legal determinations in the first instance, a new medical examination may be warranted to “remove whatever taint there may be from [the examiner’s] overreaching.”;

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-3495
EUGENE KELLER, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before TOTH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
TOTH, Judge: Eugene Keller appeals an August 2018 Board decision that denied service
connection for an acquired psychiatric disorder, including PTSD and a personality disorder. In denying the veteran’s claim, the Board primarily relied on a 2017 VA examination report that found that the veteran’s symptoms could not be realistically assessed because he was “highly evasive and likely not credible.” R. at 39. The veteran challenges the adequacy of the 2017 examination. An examination report is inadequate when an examiner makes factual findings or legal determinations in the first instance. Sizemore v. Principi, 18 Vet.App. 264, 275 (2004). And it is the Board’s duty
as a factfinder to assess the weight and credibility of evidence. Arneson v. Shinseki, 24 Vet.App. 379, 382 (2011). Because the examiner impermissibly assessed the veteran’s credibility, the examination report is inadequate. Therefore, the Court remands.
I. BACKGROUND
Mr. Keller served in the Navy from August 1964 to December 1967, including time in
Vietnam. Much of his time in Vietnam was spent aboard the U.S.S. Galveston II conducting search
and rescue operations and providing gunfire support and air defense in the South China Sea. During
that time, Mr. Keller witnessed bombardments of offshore and onshore targets in Vietnam. He
2
reported that, after one of these events, he began experiencing nightmares, vomiting, and a loss of
appetite. There are no complaints or treatment for any mental health symptoms during service.
Six years after he was discharged, in 1973, Mr. Keller underwent a neuropsychological
evaluation because he experienced two work-related injuries to his spine and head. The
psychologist administered five different tests, finding that the veteran had normal intellectual
capacity and neurological functioning. And while his personality bordered between normal and
neurotic, the examiner found that Mr. Keller did not have a disturbed character or personality
disorder. The psychologist diagnosed hypochondrial neurosis, psychophysiological
musculoskeletal disorder, and borderline normality.1 He also noted that Mr. Keller had many
“neurotic defenses involving somatic symptoms” but that this behavior was not evidence of
malingering.2 R. at 3208.
Years passed without evidence of mental health treatment. Then, Mr. Keller reported that
he sought mental health treatment in the 1990s and was prescribed lithium. After this treatment
experience, he kept “quiet” and refrained from reporting or seeking treatment for mental health for
about two decades. R. at 2767.
In August 2008, Mr. Keller was referred to psychiatrist Mohammad Ayub Ayubi for an
assessment of poor sleep, diminished energy, and possible depression. The veteran declined to
share any relevant information at the appointment, which prevented Dr. Ayubi from properly
assessing his symptoms. Although the psychiatrist was unable to provide a diagnosis, he noted that
the veteran exhibited traits of PTSD.
Nine months later, Mr. Keller sought psychiatric treatment again. He explained to Dr.
Ayubi that he avoided talking at the previous appointment because talking about Vietnam “make[s]
it worse” and triggers his nightmares. R. at 2769. Still, the veteran “could not bring himself to talk
about events while on shore patrol during his tour in Vietnam.” Id. The psychiatrist prescribed a
“trial of Sertraline to help with [PTSD] and other mood symptoms.” Id. Mr. Keller continued
treatment with Dr. Ayubi thereafter.
1 Normality, one dictionary helpfully advises, is “the state of being normal.” DORLAND’S MEDICAL
DICTIONARY ONLINE, https://www.dorlandsonline.com/dorland/definition?id=34295&searchterm=normality.
2 Malingering is “the willful, deliberate, and fraudulent feigning or exaggeration of the symptoms of illness or injury, done for the purpose of a consciously desired end.” Malingering, DORLAND’S MEDICAL DICTIONARY
ONLINE, https://www.dorlandsonline.com/dorland/definition?id=29471&searchterm=malingering.
3
In April 2010, Mr. Keller filed a claim for service connection for PTSD and a supporting
statement from his ex-wife—Kathy Keller. In his claim, he reported that he experienced
nightmares and put a great deal of energy into avoiding things that reminded him of Vietnam.
Similarly, Mrs. Keller reported that the veteran avoided speaking about Vietnam as it caused him anguish. She said that he was barely employed throughout their marriage because he would quit a job as soon as anyone mentioned Vietnam. They lived together near a popular hunting area, and she often found him hiding under cars or the house if gunshots could be heard nearby. She also described the Fourth of July as a bad holiday in their home because fireworks would trigger his nightmares.
In 2010, VA obtained an examination. The examiner opined that, although Mr. Keller
endorsed symptoms suggestive of PTSD, he didn’t meet the full criteria. VA denied the claim.
Mr. Keller filed a Notice of Disagreement along with a 2011 medical opinion from Dr.
Ayubi, who had provided psychotherapy and medication management to Mr. Keller since 2008.
The psychiatrist reported that, in the beginning of treatment, Mr. Keller took “a stance against
offering any information and basically denied any and all symptoms (though even then [Dr. Ayubi]
detected many signs and symptoms to suggest PTSD).” R. at 3002. Dr. Ayubi said that he did not
force the veteran to speak during that initial visit and “allowed [him] to leave without a psychiatric
diagnosis.” Id. But, about one year after the first visit, his “symptoms became unbearable” and he
began discussing his Vietnam experiences. Id. He shared his fears about seeking mental health
treatment and being labeled as “crazy and then locked up.” Id. The examiner concluded that “Mr.
Keller suffer[ed] from PTSD due to his Vietnam War experiences” and that he “continue[d] to deal
with his chronic illness which waxe[d] and wane[d] due to so many triggers and stressors.” Id.
Between 2013 and 2017, the Board remanded the veteran’s claim twice and obtained three
additional medical examinations, in March 2013, June 2016, and September 2017. In the decision
on appeal, the Board relied primarily on the 2017 examination report, and thus many of the details
of the 2013 and 2016 examination reports are not relevant to resolving this appeal. What is
necessary to know is that, at his 2013 examination, Mr. Keller declined to share information about
his in-service stressors. Despite the examiner’s inability to elicit this information, the 2013
examiner opined that the veteran did not have PTSD. The 2013 examiner also made a reference to the 1973 neuropsychological evaluation, noting that Mr. Keller was tested for malingering (i.e.,
4
feigning symptoms). While the psychologist who conducted the evaluation in 1973 had found that the veteran was not malingering, the 2013 examiner opined otherwise.
Regarding the 2016 examination, Mr. Keller reported his history of trauma, including some details about his in-service stressors. But the examiner found that he had “a distorted memory of traumas and use[d] vague, catastrophic [] terms to ‘talk around the trauma.'” R. at 1056. Ultimately,
the 2016 examiner found the reliability of the veteran’s statements to be questionable. The
examiner acknowledged that Mr. Keller exhibited all of the PTSD criteria but one, but opined that
he could not say that he met the full diagnostic criteria “without resorting to speculation.” Id.
Instead, the examiner opined that the veteran had an unspecified personality disorder and substance abuse issues, which clouded the examiner’s ability to properly assess the veteran’s symptoms.
The most recent opinion was obtained in September 2017. Here too, Mr. Keller was
withdrawn and refused to discuss his Vietnam experiences. The examiner opined that she was not able to “realistically assess [the veteran’s] symptoms,” because he was “highly evasive and likely not credible as he [did] not want to discuss any trauma or specific symptoms of PTSD.” R. at 45.
Although the examiner could not “realistically assess” Mr. Keller’s symptoms, she nevertheless opined that Mr. Keller had a personality disorder and that any other mental health symptoms were not related to his military service. Id.
In August 2018, the Board issued the decision that is here on appeal. The Board conceded
that Mr. Keller experienced stressors during service—witnessing on and offshore bombardments.
The Board concluded, however, that the veteran did not have an acquired psychiatric disorder,
other than a personality disorder, that may be related to those stressors. The Board rejected Dr.
Ayubi’s 2011 medical opinion because he did not identify the veteran’s stressors or provide a
rationale for his opinion. Although the 2017 examiner stated that she was unable to realistically
assess Mr. Keller’s symptoms, the Board found the opinion to be the most probative and persuasive
in determining that the veteran did not have PTSD, noting that the “examiner conducted a detailed
history of [Mr. Keller’s] psychiatric symptomatology, thoroughly reviewed the claims file, and
explained her findings.” R. at 10. The Board also noted that the VA examiner’s findings were most
probative because she considered the credibility of the veteran’s reported symptoms. R. at 11. In
addition, the Board noted that the other VA examination reports (2010, 2013, and 2016) bolstered
and confirmed the 2017 examiner’s findings that the veteran had a consistent pattern of evasive
behavior, refusal to discuss his military experiences, and unreliable reporting of his psychiatric
5
symptoms. Finally, the Board found that, although Mr. Keller “endorsed many of the symptoms associated with PTSD, such as nightmares and flashbacks,” he was not “consistent in relaying [his] symptoms” and objective testing suggested that he exaggerated. R. at 12. On appeal, the veteran challenges the adequacy of the 2017 VA examination report and the adequacy of the Board’s statement of reasons or bases.
II. ANALYSIS
A. Adequacy of Examinations
The veteran argues that the 2017 examination report is inadequate, in part, because the
examiner relied on his distrustful and evasive behavior as an indication that he does not have
PTSD. Appellant’s Br. at 6-7, fn. 3, 4. The Secretary counters that Mr. Keller lacks “the expertise
to invalidate the medical examiner’s findings,” and his disagreement with the examiner’s
assessment of his distrustful and evasive behavior does not constitute error. Secretary’s Br. at 21.
However, the 2017 examiner did not reject the existence of a PTSD diagnosis as the veteran and
the Secretary assert. Rather, the examiner opined that she was unable to “realistically assess” Mr. Keller’s symptoms due to his “highly evasive and likely not credible” behavior. R. at 39.
Examiners and adjudicators have distinct and separate roles in the VA system. It “is the
responsibility of the Board to evaluate the medical evidence and determine the proper disability rating” and the responsibility of examiner to provide expert opinions on medical questions. Moore v. Nicholson, 21 Vet.App. 211, 218 (2007), rev’d on other grounds sub nom. Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). For instance, it is the Board’s duty to find facts and assess the weight and credibility of evidence. Arneson, 24 Vet.App. at 382. When an examiner makes factual findings or legal determinations in the first instance, a new medical examination may be warranted to “remove whatever taint there may be from [the examiner’s] overreaching.” Sizemore, 18 Vet.App. at 275. The Court reviews the Board’s factual findings, such as whether an examination
was adequate, for clear error. Sharp v. Shulkin, 29 Vet.App. 26, 31 (2017). A finding is clearly
erroneous when, even if it is supported by some evidence, the Court has a firm and definite
conviction that the Board made a mistake. Id. In every case, the Board must provide a statement
of reasons and bases that allows a veteran to understand the precise basis for its decision and
facilitates review in this Court. Hedgepeth v. Wilkie, 30 Vet.App. 318, 325 (2018).
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Here, the examiner called Mr. Keller’s credibility into question multiple times. She opined
that his reports were “highly evasive and likely not credible as he [did] not want to discuss any
trauma or specific symptoms of PTSD.” R. at 39. Later in the opinion, the examiner reiterated that
the veteran’s statements were “inconsistent and non-credible.” R. at 40. She also commented that
he made “statements that [were] likely not true.” Id. Because credibility findings are the Board’s
prerogative, the examiner engaged in unwarranted fact finding, which tainted the entirety of the
medical opinion. See Sizemore, 18 Vet.App. at 275.
Moreover, in this instance, the examiner’s credibility determination clearly informed her
medical conclusions. The examiner opined that, “due to [the veteran’s] inconsistent and noncredible
statements, [his] report of his actual [symptoms] cannot be realistically assessed.” R. at
40 (emphasis added). Yet the examiner assessed the veteran as having a personality disorder. It is
not apparent how the examiner concluded that Mr. Keller has a personality disorder if she could
not realistically assess his symptoms. It is also not apparent why the Board chose to rely on this
examination as proof that the veteran does not have PTSD where the examiner could not
realistically say that was the case.
Although the examiner’s credibility determination rendered the examination report
inadequate, the Board incredibly afforded the report more probative weight because the examiner
considered the veteran’s credibility. Physicians may sometimes provide opinions that inform the
Board on matters beyond its competence to resolve. See, e.g., Kahana v. Shinseki, 24 Vet.App.
428, 441 (2011) (Lance, J., concurring) (noting that competent medical evidence was necessary to
determine “whether the appellant’s symptoms in service would have been of such severity that he
would have likely reported them during his separation examination, particularly if they had been
inaccurately attributed to a sprain instead of a more severe ACL injury”). But that does not seem
to be the case here. And to the extent that the 2017 examiner’s credibility findings related to her
medical findings or were important to the Board’s resolution of this claim, it is not apparent from
either the examination report or the Board’s decision.
The Secretary attempts to cure these defects by arguing that the Board found that the
veteran was not credible because his reports were inconsistent and exaggerated, implying that the
examiner’s credibility assessment was appropriate. But this argument highlights the fact that the
Board’s credibility finding is unexplained. The Board found that, although Mr. Keller “endorsed
many of the symptoms associated with PTSD, such as nightmares and flashbacks,” he was not
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“consistent in relaying [his] symptoms” and “objective testing suggested that he exaggerated.” R.
at 11. The Board never explained what was inconsistent in the veteran’s reports. And, tellingly, the
Secretary does not identify any inconsistencies either. Without an explanation, the Court is left to
question what evidence or reasoning the Board relied on to support its credibility determination.
In addition, regarding symptom exaggeration, the Board cited the March 2013 VA
examination report. The 2013 examiner stated that Mr. Keller “was given a test [in 1973] to assess
possible exaggeration and malingering symptoms,” noting that his score of 21 was “above the test
publishers cutoff score of 14 but short of the conservative cut off score of 24.” R. at 2987. On the
other hand, the 1973 psychologist who originally administered that test opined that the veteran was
not malingering. It is not clear why the Board adopted the 2013 examiner’s conclusion over the
1973 psychologist’s contemporaneous conclusion in finding the veteran was not credible.
In sum, the Board relied on an examination report that is inadequate because the examiner
impermissibly assessed the veteran’s credibility—a factual finding best left to the Board. And the
Board’s own credibility determination does not cure the exam’s defects, as it is unsupported by an
adequate statement of reasons or bases.
B. Related Matters
The veteran also challenges the Board’s statement of reasons or bases, arguing that the
Board did not fully account for Dr. Ayubi’s 2011 opinion and treatment reports showing that he
has PTSD. The Secretary counters that the Board properly afforded Dr. Ayubi’s 2011 opinion less
probative weight because it was not apparent that he administered objective tests or considered the
veteran’s credibility and did not provide a rationale for his opinion. But while the Board found that
Dr. Ayubi’s opinion held less probative weight, it does not necessarily follow that his opinion has
no probative weight. See Monzingo v. Shinseki, 26 Vet.App. 97, 107 (2012) (“[E]ven if a medical
opinion is inadequate to decide a claim, it does not necessarily follow that the opinion is entitled
to absolutely no probative weight.”). Put differently, the 2011 opinion and accompanying
treatment records may not be sufficient to prove a diagnosis or entitlement to service connection,
but that does not mean this evidence is entirely useless.
The Court observes that the Dr. Ayubi provided a detailed explanation about the veteran’s
evasive and distrustful behavior—factors that the 2017 VA examiner used to discredit the veteran’s
credibility. Dr. Ayubi opined that he had difficulty getting Mr. Keller to talk about his Vietnam
experiences, and it took him at least one year of working with the veteran before he could properly
8
evaluate his condition. Dr. Ayubi explained that Mr. Keller had a distrust of mental healthcare
providers due to his history in seeking mental health treatment, quoting the veteran as fearful of
being labeled as “crazy and then locked up.” R. at 3002. However, in discrediting the veteran’s
reports as evasive and distrustful, neither the Board nor the examiner took account of the facts laid
out by Dr. Ayubi.
The veteran raises other allegations of error. But, in light of the errors outlined above, the
Court will not address the remaining arguments. See Best v. Principi, 15 Vet.App. 18, 20 (2001).
Because the Board is in a better position to address his remaining contentions on remand, the briefs
should be incorporated into the record.
III. CONCLUSION
Accordingly, the Court VACATES the Board’s August 13, 2018, decision and REMANDS
the matter for readjudication consistent with this opinion.
DATED: August 17, 2020
Copies to:
Christopher R. Debski, Esq.
VA General Counsel (027)

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