Veteranclaims’s Blog

October 3, 2020

Single Judge; reason and bases argument; As with any finding on a material issue of fact or law, the Board must support its determination with an adequate statement of reasons or bases that enables a claimant to understand the precise basis for its decision and facilitates review in this Court.[38 U.S.C. § 7104(d)(1); Gilbert, 1 Vet.App. at 57] The statement of reasons or bases must explain the Board’s reasons for discounting favorable evidence,[Thompson v. Gober, 14 Vet.App. 187, 188 (2000)] discuss all issues raised by the claimant or the evidence of record,[Robinson v. Peake, 21 Vet.App. 545, 552 (2008), aff’d sub nom. Robinson v. Shinseki, 557 F.3d 1355 (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, 593 (1991)];

Filed under: Uncategorized — Tags: — veteranclaims @ 12:34 pm

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-3686
KYLE A. KRIEGER, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before DAVIS, Senior Judge.1
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
DAVIS, Senior Judge: U.S. Marine Corps veteran Kyle A. Krieger appeals through counsel an April 2, 2019, Board of Veterans’ Appeals (Board) decision that denied an effective date earlier than October 14, 2015, for service connection for post-traumatic stress disorder (PTSD).2 Because the Board failed to provide an adequate statement of reasons or bases for denying an earlier effective date, the Court will set aside the April 2019 decision and remand the matter for further development.
I. ANALYSIS
In April 2019, the Board found that Mr. Krieger was not entitled to an earlier effective date for service connection for PTSD. Specifically, the Board found that Mr. Krieger filed his claim on September 16, 2014, but that an August 2015 VA examination did not diagnose a mental health condition.3 The Board found that the earliest date that Mr. Krieger had a PTSD diagnosis was
1 Judge Davis is a Senior Judge acting in recall status. In re Recall of Retired Judge, U.S. VET. APP. MISC. ORDER 03-20 (Jan. 2, 2020).
2 Record (R.) at 5–9.
3 R. at 6-7.
2
October 14, 2015.4 Thus, the Board concluded that the date entitlement arose for service connection for PTSD was October 14, 2015.5
Mr. Krieger argues that the Board failed to weigh competing medical diagnoses concerning the onset of his PTSD and apply the benefit of the doubt in assigning the appropriate effective date.6 Alternatively, he argues that the Board failed to provide a retrospective medical opinion addressing the first manifestation of his PTSD.7 The Secretary responds that the Board properly weighed the evidence, finding that the preponderance of the evidence was against the claim, and that the Board was not required to obtain a retrospective medical opinion.8
Generally, the effective date of an original claim or a reopened claim is the date of the claim or the date entitlement arose, whichever is later.9 The Board’s determination of the effective date for an award of VA benefits is a finding of fact reviewed by the Court under the “clearly erroneous” standard of review.10 A finding of fact is clearly erroneous when the Court, after reviewing the entire evidence, “‘is left with the definite and firm conviction that a mistake has been committed.'”11
As with any finding on a material issue of fact or law, the Board must support its determination with an adequate statement of reasons or bases that enables a claimant to understand the precise basis for its decision and facilitates review in this Court.12 The statement of reasons or bases must explain the Board’s reasons for discounting favorable evidence,13 discuss all issues raised by the claimant or the evidence of record,14 and discuss all provisions of law and regulation
4 R. at 6–8.
5 Id.
6 Appellant’s Brief (Br.) at 5.
7 Id. at 6.
8 Secretary’s Br. at 5–11.
9 38 U.S.C. § 5110(a).
10 See Link v. West, 12 Vet.App. 39, 46 (1998); Hanson v. Brown, 9 Vet.App. 29, 32 (1996).
11 Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
12 38 U.S.C. § 7104(d)(1); Gilbert, 1 Vet.App. at 57.
13 Thompson v. Gober, 14 Vet.App. 187, 188 (2000).
14 Robinson v. Peake, 21 Vet.App. 545, 552 (2008), aff’d sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009)
.
3
where they are made “potentially applicable through the assertions and issues raised in the record.”15
The Court concludes that the Board failed to provide an adequate statement of reasons or bases for its effective date determination. Specifically, it is unclear what rationale the Board relied upon to determine that the onset of Mr. Krieger’s PTSD was in October 2015. A review of the medical evidence, including Mr. Krieger’s treatment records from October 2015 through March 2016, and a June 2016 VA examination, indicates that the veteran’s PTSD symptomatology predated the assigned effective date. Both the October 2015 and March 2016 examiners suggest that Mr. Krieger has been suffering from PTSD symptoms since 2003 or 2004.16 Neither of these examiners, however, opined as to the onset date of PTSD.
The Court is aware that the Board used the lack of a diagnosis of PTSD within the August 2015 examination as rationale for its effective date determination.17 It is, however, unclear why the Board relied upon this examination given the examiner’s failure to adequately explain his rationale.18 Particularly concerning is the examiner’s failure to reconcile his observations that the veteran suffers from nightmares, anger, and inability to interact socially with others, with his assessment that the veteran did not have a mental health condition.19 Simply put, it is unclear why the examiner did not record these symptoms in the corresponding diagnostic criteria for PTSD in his assessment of the veteran’s condition according to the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (5th ed.) (DSM-5).20 The Board’s failure to adequately consider favorable evidence concerning an earlier onset of PTSD, coupled with its reliance on an unclear August 2015 examination, frustrates judicial review. Remand is therefore warranted for the Board to provide an adequate statement of reasons or bases for its finding regarding the onset of Mr. Krieger’s PTSD.21
15 Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991).
16 In the October 2015 examination that the Board relied on in setting the effective date, the examiner noted that Mr. Krieger had reported adjustment issues since discharging from the military in 2004. R. at 482. Also, during a March 2016 medical appointment, the physician noted that Mr. Krieger’s PTSD symptoms manifested as early as 2003. R. at 290; Appellant’s Br. at 3.
17 R. at 7.
18 R. at 628-35.
19 Id.
20 R. at 632-35.
21 Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that remand is the appropriate remedy where the Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its
4
Given that the Court is remanding the claim, it will not address Mr. Krieger’s other arguments, which would result in a remedy no greater than remand.22
II. CONCLUSION
On consideration of the foregoing, the Court SETS ASIDE the April 2, 2019, Board decision denying an effective date earlier than October 14, 2015 for service connection for PTSD and REMANDS the matter for further proceedings consistent with this decision.
DATED: October 1, 2020
Copies to:
Zachary M. Stolz, Esq.
VA General Counsel (027)
determinations, or where the record is otherwise inadequate).
22 See Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam order) (“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.”)

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