Veteranclaims’s Blog

September 11, 2020

Single Judge; must “provide the reasons for its rejection of any material evidence favorable to the claimant.” Hedgepeth, 30 Vet.App. at 325; whether the Board considered all evidence of in-service occurrence should be evident from its statement of reasons and bases. See Fears v. Wilkie, 31 Vet.App. 308, 314 (2019);

Designated for electronic publication only
No. 19-0333
Before TOTH, Judge.
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
TOTH, Judge: The Board has a duty to explain its “rejection of any material evidence
favorable to the claimant.” Hedgepeth v. Wilkie, 30 Vet.App. 318, 325 (2018). Without that
explanation, neither the Court nor the veteran can “understand the precise basis for the Board’s
decision.” Id. In this case, two VA medical examiners suggested that veteran Alphonsa Brown’s
psychiatric disorder was related to his divorce. The record also indicates that his divorce occurred
while he was in service. These pieces of evidence bear on critical elements of service connection
and are thus material and favorable. But because the Board failed to discuss this evidence, it’s
unclear why the Board decided that Mr. Brown’s psychiatric disorder wasn’t related to service,
specifically his divorce. The veteran’s claim for service connection for a psychiatric disorder is
therefore remanded, along with his inextricably intertwined claim for sleep apnea, secondary to
the psychiatric disorder.
Mr. Brown served in the Army from May 1972 to June 1992, including service in Desert
Storm from November 1990 to April 1991. His separation examinations were normal for any psychiatric or sleep problems. But, important to this case, the veteran’s wife divorced him just
before he left service. See, e.g., R. at 2785 (1992 claim for diabetes listing divorce on June 26,
1991, in Coryell County, Texas); R. at 1464 (reporting his divorce in 1991).
In August 2009, he sought treatment for PTSD. The private examiner diagnosed adjustment
disorder and depressed mood and noted a history of sleep problems since 1991, when the veteran
returned from Desert Storm. R. at 2147. The veteran filed a claim shortly thereafter for PTSD and
sleep apnea, secondary to his PTSD. VA denied the claim in March 2010, and Mr. Brown appealed.
Throughout the course of his appeal, Mr. Brown underwent several medical examinations
for his psychiatric disorder. During the first, in October 2010, he reported that, when he “returned
from Iraq, his wife told him that she wanted a divorce.” R. at 1765. He told the examiner that this
event “was devastating” and “unexpected,” id., and that he “first noticed himself withdrawing
following his divorce.” R. at 1763. He also reported sleep problems beginning around 2008.
The VA examiner diagnosed depression but opined that, rather than service, “it appears
that his depress[ed] mood is related to his unexpected and unwanted divorce from his wife after
[he] returned from deployment to Iraq in the early 1990s.” R. at 1770.
In 2011, Mr. Brown underwent a compensation and pension evaluation for PTSD. He
reported that “he continue[d] to ‘try’ to move on from divorce, which he describe[d] as ‘unexpected’
and ‘devastating.'” R. at 1671. The examiner diagnosed sleep impairment, R. at 1673, noting that
the veteran had experienced sleep difficulties “since his divorce in 1991,” R. at 1678. And although
the veteran had a current diagnosis from another doctor of adjustment disorder with mixed anxiety
and depression, R. at 1670, the VA examiner found that he did not meet the criteria for a PTSD
diagnosis, R. at 1677.
VA again denied his claim, and he appealed to the Board. Further examinations ensued. A
March 2012 examiner declined to provide a PTSD diagnosis but found it more likely than not that
his disorder was related to his divorce. R. at 1470. The examiner also opined that the veteran’s
sleep apnea was more likely than not associated with his depression. Id.
A 2014 examiner echoed the suggestion that Mr. Brown’s “sleep disturbances” were
“secondary to mental health conditions diagnosed as unspecified sleep-wake disorder with a
history of mental depression and anxiety.” R. at 1184.1
1 At this point in the appeal, the Board “separated the PTSD claim into . . . two distinct issues,” denied service
connection for PTSD, and “remanded the issue of entitlement to service connection for an acquired psychiatric
disorder other than PTSD.” R. at 5. Service connection for PTSD is not at issue here, but the evidence developed in
support of Mr. Brown’s PTSD claim prior to the bifurcation remained relevant to the Board and is treated as such here.
The Board found the examinations discussed above inadequate to assess the etiology of the
veteran’s psychiatric disorder, so yet another opinion was obtained. That examiner opined in 2017
that Mr. Brown’s mental disorder was less likely than not related to service because his symptoms
were not reported and thus “did not manifest until well after his retirement from the Army.” R. at

  1. The examiner noted twice, among other things, that the veteran’s symptoms were previously
    associated with his divorce.
    In the September 2018 decision appealed here, the Board denied service connection for the
    psychiatric condition because there was no objective evidence of a psychiatric disorder during
    service and because the delay in reporting symptoms for so many years after service weighed
    against the assertion that the disorder had an earlier onset, namely just after he returned from the
    Persian Gulf. The Board added that “[a]ll of the medical opinion evidence” also weighed against
    the claim. R. at 8. In support of that declaration, the Board referred only to the 2017 examiner’s opinion.
    As a consequence of that decision, the Board also denied secondary service connection for sleep apnea because that claim was predicated on a favorable finding of service connection for the
    psychiatric disorder. See 38 C.F.R. § 3.310(a) (2020) (“[D]isability which is proximately due to or the result of a service-connected disease or injury shall be service connected.”). Mr. Brown appealed.
    Mr. Brown contends, among other things, that the Board failed to acknowledge, let alone
    consider, the fact that more than one examiner attributed his psychiatric disorder to his divorce, which he states occurred during his service. That is, the Board banked its entire decision on delayed reporting of symptoms and, in so doing, erroneously failed to consider medical evidence of a nexus between his current condition and an in-service event. His argument is persuasive.
    Service connection requires evidence of a current disability, an in-service incurrence or
    aggravation of an injury or a disease, and a link between the two. Marcelino v. Shulkin, 29 Vet.App. 155, 157 (2018). That determination “must be considered on the basis of . . . all pertinent medical and lay evidence.” 38 C.F.R. § 3.303(a) (2020). And whether the Board considered all evidence of in-service occurrence should be evident from its statement of reasons and bases. See Fears v. Wilkie, 31 Vet.App. 308, 314 (2019). To provide an adequate statement,
    the Board must support its conclusions of law and fact in a manner that enables a claimant to
    understand the precise basis for the decision and facilitates review in this Court. Id. And it must “provide the reasons for its rejection of any material evidence favorable to the claimant.” Hedgepeth, 30 Vet.App. at 325.
    The Board’s statement of reasons and bases is inadequate to support its decision. First, the
    veteran stated repeatedly and unwaveringly throughout the claims process that his wife divorced
    him unexpectedly upon his return from his 1991 deployment to Iraq. The record suggests that the
    specific date of the divorce was June 26, 1991. R. at 2785. If true, this would constitute an inservice
    event—a necessary component of service connection. See Marcelino, 29 Vet.App. at 157.
    That fact remains to be found (or rejected) by the Board.
    And second, more than one examiner attributed his current psychiatric condition to that
    event. See R. at 1770 (2010 examiner); R. at 1470 (2012 examiner). If the veteran’s divorce
    occurred during service, this would constitute evidence of a nexus between his current disability
    and an in-service event—also a necessary component of service connection. See Marcelino,
    29 Vet.App. at 157.
    The Board acknowledged both medical opinions, yet failed to explore the possibility that
    service connection for Mr. Brown’s psychiatric condition could be based on its connection to his
    divorce. In short, the Board made no findings as to when the divorce occurred and thus erroneously
    rejected favorable, material evidence without explanation. The claim must be remanded for the
    Board to consider service connection “on the basis of . . . all pertinent medical and lay evidence.”
    38 C.F.R. § 3.303(a).
    As a separate matter, several medical examiners attributed Mr. Brown’s sleep apnea to his
    psychiatric disorder. Thus, because any disposition regarding his psychiatric disorder will have a
    “significant impact,” Parseeya-Picchione v. McDonald, 28 Vet.App. 171, 177 (2016), on his claim
    for sleep apnea, these claims are inextricably intertwined. Because the two claims “are so closely
    connected that it is necessary that they be adjudicated together,” Roebuck v. Nicholson, 20
    Vet.App. 307, 313 (2006), the sleep apnea claim is remanded as well.
    Accordingly, the Court VACATES the September 20, 2018, Board decision and
    REMANDS the claims for readjudication consistent with this opinion.
    DATED: September 9, 2020
    Copies to:
    Byron M. Moore, Esq.
    VA General Counsel (027)

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