Veteranclaims’s Blog

August 17, 2021

Single Judge Application; 38 C.F.R. § 3.156(a) (2020); In general, evidence is “new” if it was not already submitted to agency adjudicators, and it is “material” if it “relates to an unestablished fact necessary to substantiate the claim.” 38 C.F.R. § 3.156(a); In Shade v. Shinseki, we explained that the “material evidence” requirement sets a “low threshold” that does “not require new and material evidence as to each previously unproven element of a claim.” 24 Vet.App. 110, 121 (2010); Instead, the Board must evaluate whether the “newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim.” Id. at 117;

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20-0496
BRADLEY J. DONAGHUE, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before FALVEY, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
FALVEY, Judge: Air Force veteran Bradley J. Donaghue appeals through counsel a
September 24, 2019, Board of Veterans’ Appeals decision denying his request to reopen a claim
for service connection for right and left knee conditions and denying service connection for a
psychiatric disorder, a skin disorder, and a sleep disorder.1 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).
On May 17, 2021, we issued a decision affirming part of the Board decision and setting
aside and remanding another part of the decision. Mr. Donaghue filed a timely motion for
reconsideration and, after further review, we will grant the motion for reconsideration, withdraw
our May 17, 2021, decision, and issue this decision in its stead.
We are asked to decide whether the Board erred when it found no new and material
evidence to reopen the bilateral knee condition claim; whether the Board erred by relying on
inadequate medical examinations to deny service connection for a psychiatric disorder, a sleep
disorder, and a skin disorder; and whether the Board provided an adequate statement of reasons or
1 The Board also remanded claims for service connection for brain injury residuals and service connection
for muscle and joint pain due to an undiagnosed illness. Record (R.) at 5-6. However, this Court lacks jurisdiction
over remanded matters as they are not final decisions of the Board. Breeden v. Principi, 17 Vet.App. 475, 478 (2004).
2
bases. Because the Board did not adequately address newly added evidence showing the presence
of knee symptoms, we will set aside the part of the Board decision denying reopening of right and
left knee conditions. Because the Board relied on adequate medical examinations and provided an
adequate statement of reasons and bases to deny service connection for a psychiatric disorder, a
sleep disorder, and a skin condition, we will affirm the Board’s decision on those matters.
I. BACKGROUND
Mr. Donaghue served on active duty from August 1995 to February 2000. R. at 818. In
March 1996, he underwent a psychological evaluation that identified no abnormalities. R. at 817.
In December 2016, Mr. Donaghue sought to reopen a denied bilateral knee claim and also
sought benefits for anxiety/depression, sleep problems, and a skin condition. R. at 644. He noted
that he was deployed to Saudi Arabia at the time of the June 25, 1996, Khobar Towers bombing.
R. at 648. He recalled being an eighth of a mile away from the explosion, which caused him to fall
down and hit his head on the tail cone of an F-16. Id. He reported current symptoms, including
feeling anxious when driving, having periodic nightmares, and becoming emotional when
watching or listening to something relating to the military. Id.
In a May 2017 VA mental disorders examination, the examiner opined that Mr. Donaghue
did not meet the criteria in the Diagnostic and Statistical Manual of Mental Disorders, fifth edition
(DSM-5), to be diagnosed with post-traumatic stress disorder (PTSD). R. at 299. The examiner
diagnosed unspecified anxiety disorder, opining that it was unrelated to service because it stemmed
from family problems. Id. In a May 2017 VA Gulf War general examination, the examiner noted
that Mr. Donaghue “initially complained of a skin condition in his feet, however the condition has
resolved with treatment” at a VA medical center. R. at 330.
The VA regional office (RO) denied these claims in June 2017 and Mr. Donaghue appealed
to the Board. R. at 291-97, 263-65, 61, 30. In a March 2019 VA mental disorders examination, the
examiner opined that Mr. Donaghue did not meet the DSM-5 criteria to be diagnosed with PTSD
and he had no other mental health diagnosis. R. at 187, 196.
In September 2019, the Board denied reopening of the claim for service connection for
right and left knee conditions and denied service connection for a psychiatric disorder, a skin
disorder, and a sleep disorder. R. at 5. The Board determined that, although Mr. Donaghue
submitted new evidence that pertained to his knee conditions, it was not considered material. R. at 9.
3

Additionally, the Board found that he did not have a current psychiatric condition, a current
sleep disorder, or a current skin condition. R. at 12-15. This appeal followed.
II. ANALYSIS
A. Right and Left Knee Conditions
Mr. Donaghue argues that the Board erred when it determined that the new evidence added
to the record was not material because it did not support a knee diagnosis, despite the new evidence
showing knee pain and osteoarthritis. Appellant’s Brief (Br.) at 6-7. The Secretary concedes that
remand is warranted because the Board failed to provide adequate reasons or bases to support its
decision not to reopen the knee condition claims. Secretary’s Br. at 5-8.
During the relevant period, the law required that VA reopen a finally disallowed claim
when “new and material evidence” was presented or secured. 38 U.S.C. §§ 5108, 7104(b), 7105(c);
38 C.F.R. § 3.156(a) (2020). In general, evidence is “new” if it was not already submitted to agency adjudicators, and it is “material” if it “relates to an unestablished fact necessary to substantiate the claim.” 38 C.F.R. § 3.156(a). In Shade v. Shinseki, we explained that the “material evidence” requirement sets a “low threshold” that does “not require new and material evidence as to each previously unproven element of a claim.” 24 Vet.App. 110, 121 (2010). Instead, the Board must evaluate whether the “newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim.” Id. at 117.
As with any finding on a material issue of fact and law, the Board must support its determination with an adequate statement of reasons or bases that enables the claimant to
understand the precise basis for that determination and facilitates review in this Court. See
38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995). To comply with this
requirement, the Board must analyze the credibility and probative value of evidence, account for
evidence it finds persuasive or unpersuasive, and provide reasons for rejecting material evidence
favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d
604 (Fed. Cir. 1996) (table).
Here, the Board noted that, in a newly added April 2011 VA treatment record, the veteran
complained of knee pain since 2004 and a clinician indicated a likely meniscal injury. R. at 8. The
Board also addressed September 2013 VA treatment records that showed “occasional knee pain
and an assessment of osteoarthritis with mild tolerable pain in the knees,” but concluded that “the
4
VA records indicate[] that the diagnosis of osteoarthritis pertains to the [v]eteran’s back.” R. at 9.
Ultimately, the Board determined that “the new evidence does not support a diagnosis relating to
the [v]eteran’s right or left knee” and was thus not considered material as it did not raise a
reasonable possibility of substantiating the claim. Id.
As the parties agree, Appellant’s Br. at 6-7; Secretary’s Br. at 5-8, the Board did not
adequately address the newly added evidence showing the presence of knee pain and osteoarthritis
when it concluded that the evidence was not material to whether Mr. Donaghue has current knee
disabilities. Thus, at the parties’ request, the Court will remand the left and right knee condition
claims. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that remand is the appropriate
remedy where the Board has incorrectly applied the law or failed to provide an adequate statement
of reasons or bases for its determinations, or where the record is otherwise inadequate).
The veteran is free on remand to submit additional evidence and argument about the knee
condition claims, including the arguments raised in his brief to this Court, in accordance with
Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order), and the Board must
consider any such evidence or argument submitted, see Kay v. Principi, 16 Vet.App. 529, 534
(2002). The Court reminds the Board that “[a] remand is meant to entail a critical examination of
the justification for the [Board’s] decision,” Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991),
and must be performed in an expeditious manner in accordance with 38 U.S.C. § 7112.
B. Psychiatric Condition and Sleep Disorder
Next, Mr. Donaghue argues that the Board relied on inadequate May 2017 and March 2019
VA examinations to deny service connection for a psychiatric condition. Appellant’s Br. at 12-14.
He also asserts that the Board provided inadequate reasons or bases for its assignment of probative
value to evidence, for its determination that the VA examinations were adequate, and for its
characterization of his VA treatment records. Id. at 17-18. He argues that his sleep disorder claim
is inextricably intertwined with his psychiatric condition claim. Id. at 20. The Secretary disputes
these arguments and urges the Court to affirm this part of the Board decision. Secretary’s Br. at
10-15.
A VA medical examination or opinion is adequate “where it is based upon consideration
of the veteran’s prior medical history and examinations,” Stefl v. Nicholson, 21 Vet.App. 120, 123
(2007); and “describes the disability . . . in sufficient detail so that the Board’s ‘evaluation of the
claimed disability will be a fully informed one,'” id. (quoting Ardison v. Brown, 6 Vet.App. 405,
5
407 (1994)). Put another way, “examination reports are adequate when they sufficiently inform
the Board of a medical expert’s judgment on a medical question and the essential rationale for that
opinion.” Monzingo v. Shinseki, 26 Vet.App. 97, 105 (2012). A medical examination based on an
inaccurate factual premise lacks probative value, Reonal v. Brown, 5 Vet.App. 458, 461 (1993), as
does an examination that merely lists facts and conclusions with no reasoned explanation
connecting the two, Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008) (explaining that a
medical report cannot merely draw conclusions from data; rather, it should include “a reasoned
medical explanation connecting the two”). And medical opinions are speculative and of little
probative value when a physician makes equivocal findings. Tirpak v. Derwinski, 2 Vet.App. 609,
611 (1992).
Mr. Donaghue fails to meet his burden of proving that the May 2017 VA examination is
inadequate or that the Board erred in relying on it. He suggests that the examiner relied on an
inaccurate factual premise that he did not witness or experience a traumatic event, provided no
rationale for determining that his experience was not traumatic, and failed to consider his lay
statements about nightmares and anxiety when driving long distances. Appellant’s Br. at 11-12.
However, the examiner did not conclude that the veteran did not experience the Khobar
Towers bombing but rather opined that the stressor was inadequate to support a diagnosis of PTSD.
R. at 303. Contrary to Mr. Donaghue’s assertion, this determination falls within the authority of
the VA examiner. See Allin v. Brown, 6 Vet.App. 207, 214 (1994) (holding that medical examiners
have broad discretion in making medical judgments, including whether to diagnose a particular
disability). To the extent that the May 2017 examiner failed to explain his opinion that Mr.
Donaghue’s experience of the Khobar Towers bombing was not adequate to support the diagnosis
of PTSD or did not constitute a traumatic event, any error by the examiner in that regard is
necessarily harmless, as the Board found “credible evidence that the Veteran was exposed to
traumatic events during his military service,” R. at 11, and both the May 2017 and May 2019 VA
examinations found no diagnosis of PTSD under the DSM-5 criteria. See Shinseki v. Sanders, 556
U.S. 396, 409 (2009) (finding that the Court must take due account of the rule of prejudicial error).
As for the examiner’s conclusion that the veteran does not have a diagnosis of PTSD, the
law does not impose onto medical examiners a reasons or bases requirement in the same way it
requires the Board to give adequate reasons or bases. Acevedo v. Shinseki, 25 Vet.App. 286, 293
(2012) (“[T]here is no reasons or bases requirement imposed on examiners.”). Rather, a medical
6
examiner’s report “must rest on correct facts and reasoned medical judgment so as inform the Board
on a medical question and facilitate the Board’s consideration and weighing of the report against
any contrary reports.” Id. In rendering his conclusion, the examiner adequately considered the
veteran’s medical history and lay statements, as well as administered PTSD diagnostic testing. See
R. at 300 (reflecting review of VA e-folder, computerized patient record system, and
administration of two mental health assessments). The examiner provided an adequate rationale
for concluding that the veteran had no PTSD diagnosis, explicitly discussing the veteran’s reported
symptoms and the examiner’s behavioral observations. R. at 306; see Nieves-Rodriguez,
22 Vet.App. at 301.
Mr. Donaghue also asserts that, although the May 2017 examiner concluded that his
anxiety disorder related to his marital relationship, the examiner failed to consider whether PTSD
contributed to marital strife. Appellant’s Br. at 13. But the Court agrees with the Secretary that,
because the examiner’s rationale was adequate to conclude that Mr. Donaghue did not have a PTSD
diagnosis in accordance with the DSM-5 criteria, the examiner did not have to consider whether
PTSD could have contributed to marital problems. Because the examination included enough
information to “sufficiently inform the Board of a medical expert’s judgment on a medical question
and the essential rationale for that opinion,” Monzingo, 26 Vet.App. at 105, the examination was
adequate.
The Court also finds the March 2019 VA examination adequate. Mr. Donaghue asserts that
the examination is inadequate because the examiner failed to adequately explain why his
symptoms did not satisfy the full PTSD criteria and failed to consider his full medical history.
Appellant’s Br. at 13-16.
The examiner offered sufficient rationale for concluding that Mr. Donaghue does not have
a current psychiatric condition, including PTSD. In support of her conclusion that his symptoms
only satisfied PTSD criteria A and E, the examiner explained that Mr. Donaghue denied any overt
avoidance behaviors, reported that he gets emotional at parades out of a sense of pride, and denied
any overt trauma triggers other than fireworks. R. at 191. In concluding that he did not have a
mental health diagnosis, the examiner specifically considered Mr. Donaghue’s previous treatment
and confirmed that she reviewed his VA e-folder. See R. at 191 (noting treatment with a counselor
for PTSD). The examiner’s rationale was sufficient to support her conclusion that Mr. Donaghue
does not have a current psychiatric condition. See Acevedo, 25 Vet.App. at 293; Nieves-Rodriguez,
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22 Vet.App. at 301. Because the examination included enough information to “sufficiently inform
the Board of a medical expert’s judgment on a medical question and the essential rationale for that
opinion,” Monzingo, 26 Vet.App. at 105, the examination was adequate.
Thus, and in view of the entire record, the Board did not clearly err in finding that the May
2017 and March 2019 examinations were adequate. See D’Aries v. Peake, 22 Vet.App. 97, 104
(2008) (holding that whether a medical examination is adequate is a finding of fact that the Court
reviews under the “clearly erroneous” standard). Furthermore, the Board’s explanation for relying
on the examinations is understandable and facilitates judicial review. See R. at 11 (finding that the
VA examinations were competent and probative evidence based on the examiners’ training and
education, as well as the thorough and cogent rationale with which they supported their
conclusions); see also Allday, 7 Vet.App. at 527.
Mr. Donaghue also argues that the Board’s statement of reasons or bases is inadequate
because it did not adequately explain why the March 1996 psychological evaluation was probative
when it occurred before the Khobar Towers bombing, because it did not explain why the May
2000 general examination was probative when it did not mention psychiatric symptoms, and
because it mischaracterized two years of VA treatment notes as a medical examination. Appellant ‘s
Br. at 16-18.
Contrary to Mr. Donaghue’s assertion, the Board did not suggest that it considered the
March 1996 evaluation as evidence showing that he did not have PTSD after the June 1996
bombing. Rather, the Board mentioned the assessment in the context of its finding that “service
treatment records are silent for complaints, diagnosis, or treatment relating to a psychiatric
disorder.” See R. at 10. Similarly, the Board noted that, although Mr. Donaghue reported
witnessing the Khobar Towers bombing in a May 2000 general VA medical examination, he did
not report any psychiatric symptoms and the Board made no indication that it regarded this
evidence as probative negative evidence against a finding of service connection for PTSD. Id.
Lastly, the Board adequately characterized Mr. Donaghue’s VA treatment records, noting that he
self-referred for both assessment and treatment and that the provider treated him for PTSD without
discussing the PTSD criteria. Id. The Board’s explanation for its reliance on this evidence is
understandable and facilitates judicial review. See Allday, 7 Vet.App. at 527.
Because the May 2017 and March 2019 VA examinations were adequate, and because the
Board offered an adequate statement of reasons or bases for denying service connection for a
8
psychiatric condition, the Court will affirm the Board’s decision on this matter. Further, as Mr.
Donaghue makes no additional assertions of error about the Board’s denial of service connection
for a sleep disorder, other than his argument that it is inextricably intertwined with his psychiatric
condition claim, the Court will affirm the Board’s decision on that matter as well. See Hilkert v.
West, 12 Vet.App. 145, 151 (1999) (holding that the appellant has the burden of showing error),
aff’d per curiam, 232 F.3d 908 (Fed. Cir. 2000) (table).
C. Skin Condition
Mr. Donaghue argues that the May 2017 VA examination is inadequate because the
examiner did not consider medical records that showed evidence of a skin condition with
intermittent symptoms. Appellant’s Br. at 20-21. The Secretary disputes this argument and urges
the Court to affirm this part of the Board decision. Secretary’s Br. at 16.
Here, the Board noted that “VA treatment records indicate that the [v]eteran was last treated
for a skin condition in August 2014, with a prior diagnosis of keratoplysis of the bilateral feet” but
that “VA treatment records do not contain a diagnosis of a skin disorder thereafter.” R. at 13. The
Board found that a “May 2017 VA examiner evaluated the [v]eteran and determined that, while he
previously experienced subjective symptoms of a skin disorder related to his feet, his condition
had resolved with treatment and he did not have a diagnosis of a skin condition. ” Id.
The Court finds the May 2017 VA examination adequate. As the Secretary points out, the
examiner noted that Mr. Donaghue had a previous skin condition in his feet but concluded that the
condition had resolved, and so there was no current skin condition. R. at 329-30. Although he
points to 2013 and 2014 VA medical records showing treatment for a skin condition, these records
do not contradict the examiner’s conclusion that his previous skin condition had resolved. See R.
at 370-71, 390-91, 413-14. The May 2017 VA examination sufficiently informed the Board that
Mr. Donaghue did not have a current disability. See Monzingo, 26 Vet.App. at 105.
Mr. Donaghue has not met his burden of proving error in the Board’s denial of service
connection for a skin condition. See Hilkert, 12 Vet.App. at 151. As a result, the Court will affirm
this portion of the decision.
III. CONCLUSION
On consideration of the above and our review of the record, the Court grants single-judge
reconsideration; the May 17, 2021, memorandum decision is WITHDRAWN and this decision is
9
issued in its stead. The part of the September 24, 2019, Board decision denying the request to
reopen a denied claim for service connection for right and left knee conditions is SET ASIDE and
the matters are REMANDED, and the part of the decision denying service connection for a
psychiatric disorder, a skin disorder, and a sleep disorder is AFFIRMED.
DATED: June 29, 2021
Copies to:
Max Farris, Esq.
VA General Counsel (027)

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