Veteranclaims’s Blog

August 17, 2021

Single Judge Application; The Court concludes that the Board provided inadequate reasons or bases for finding that Mr. Kirven’s lay statements were unreliable. Specifically, the Court concludes that the Board failed to adequately explain how it determined that evidence of a shoulder injury would have been expected to be documented in service and, accordingly, why it considered the absence of such documentation to be more reliable than Mr. Kirven’s lay testimony. See Fountain v. McDonald, 27 Vet.App. 258, 272 (2015) (holding that the Board “must first establish the proper foundation for drawing inferences against a claimant from an absence of documentation”). Notably, the Board failed to reconcile its determination with Mr. Kirven’s February 2009 hearing testimony wherein he stated that he did not report any complaints related to his shoulders because they “were just sore at the time” and he “figured [he could] get over that.” R. at 1586. Therefore, it is unclear how the Board determined that any shoulder complaints would have been recorded or documented in light of Mr. Kirven’s testimony that he did not report any symptoms; adverse credibility determination was not fair; by rejecting three medical opinions for failure to address his testimony, did not question his credibility. See Smith v. Wilkie, 32 Vet.App. 332, 339 (2020);

Filed under: Uncategorized — veteranclaims @ 4:58 pm

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 20-1316
OTIS KIRVEN, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before BARTLEY, Chief Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
BARTLEY, Chief Judge: Veteran Otis Kirven appeals through counsel a January 16, 2020,
Board of Veterans’ Appeals (Board) decision that denied entitlement to service connection for right
and left shoulder injuries. Record (R.) at 5-13.1 For the reasons that follow, the Court will set aside
the January 2020 Board decision and remand the matters for readjudication consistent with this
decision.
I. FACTS
Mr. Kirven served honorably in the U.S. Army from May 1967 to May 1969, including
service in the Republic of Vietnam. R. at 2125. On March 1, 1969, Mr. Kirven was the unrestrained
driver involved in a motor vehicle accident (MVA), which resulted in a period of hospitalization.
1 In this same decision, the Board granted service connection for a right ankle injury. R. at 11-12. Because
this determination is favorable to Mr. Kirven, the Court will not disturb it. See Medrano v. Nicholson, 21 Vet.App.
165, 170 (2007) (“The Court is not permitted to reverse findings of fact favorable to a claimant made by the Board
pursuant to its statutory authority.”), aff’d in part, dismissed in part sub nom. Medrano v. Shinseki, 332 F. App’x 625
(Fed. Cir. 2009). In addition, the Board remanded the issue of entitlement to a total disability evaluation based on
individual unemployability prior to September 26, 2016. R. at 12-13. Because a remand is not a final decision of the
Board subject to judicial review, the Court does not have jurisdiction to consider this issue at this time. See Howard
v. Gober, 220 F.3d 1341, 1334 (Fed. Cir. 2000); Breeden v. Principi, 17 Vet.App. 475, 478 (2004) (per curiam order);
38 C.F.R. § 20.1100(b) (2020).
2
R. at 817-20, 822-25. On March 10, 1969, he was temporarily placed on restricted duty due to a
concussion and right ankle sprain. R. at 826. A March 19, 1969, line-of-duty determination noted
that Mr. Kirven incurred a forehead laceration and right ankle contusion as a result of the MVA.
R. at 827.
In June 1997, Mr. Kirven sought service connection for several disabilities claimed as
incurred during the 1969 MVA, including a right shoulder condition. R. at 2107-10. In December
1997, a VA regional office (RO) denied the shoulder claim. R. at 2078.
In March 2005, Mr. Kirven sought service connection for a bilateral shoulder condition. R.
at 2050-65. In September 2005, the RO denied service connection for a left shoulder injury and
declined to reopen the claim for service connection for a right shoulder injury. R. at 1977-81. In
October 2005, Mr. Kirven filed a Notice of Disagreement, R. at 1960, and, following a November
2005 Statement of the Case, R. at 1912-36, he timely perfected an appeal to the Board, R. at 1910-
11.
During a February 2009 Board hearing, Mr. Kirven testified regarding the in-service MVA.
R. at 1584-86. He stated that he was thrown into the windshield and was hospitalized for one week.
R. at 1584-85. He further stated that, although he reported other injuries, he did not report any
injury to his shoulders because the “shoulders were just sore at the time” and he “figured [he could]
get over that.” R. at 1586.
In July 2009, the Board remanded the claims, in part, to obtain a VA medical opinion
addressing the etiology of the bilateral shoulder condition. R. at 1502-23. Although an opinion was
obtained in February 2010, R. at 1433-40, the Board, in May 2011, found the opinion inadequate
because the examiner did not consider Mr. Kirven’s lay statements, R. at 1353-58. Accordingly,
the Board remanded the issues for a new opinion. Id.2
A second VA examiner provided the requested opinion in June 2015, R. at 733-47, but the
Board found this opinion inadequate because the examiner did not address the veteran’s statement
that he has experienced bilateral shoulder pain since the in-service MVA and, instead, based the
opinion on the absence of corroborative medical evidence. R. at 701. Accordingly, the Board
remanded the claims for a new medical opinion. R. at 699-703. The same VA examiner provided
2 In the same May 2011 decision, the Board reopened the claim for service connection for a right shoulder
injury. R. at 1330-31.
3
an addendum opinion in January 2016. R. at 671-72. In February 2018, the Board found the
addendum opinion inadequate and again remanded the claims. R. at 414-20.
During a September 2019 VA examination, Mr. Kirven attributed his bilateral shoulder
condition to the in-service MVA and being thrown into the windshield. R. at 209. Following
examination, the examiner opined that the bilateral shoulder condition was less likely than not
related to the in-service MVA. R. at 186. As rationale, the examiner stated that the veteran’s
medical records do not support finding that the claimed conditions were incurred during service
because “[t]here are no medical records documenting treatment or care for those claimed
conditions.” Id. Accordingly, the examiner concluded that the bilateral shoulder condition was
separate and unrelated to the in-service MVA. Id.
In the January 2020 decision on appeal, the Board found the September 2019 VA opinion
highly probative as to the bilateral shoulder condition. R. at 9.3 In reaching that conclusion, the
Board stated that, although the examiner did not explicitly state that he contemplated the veteran’s
lay statements, it was clear from reading the examination and opinion as a whole that the lay
statements were considered. Id. The Board also found Mr. Kirven’s statements less “reliable” than
the service records contemporaneous to the MVA, which do not reflect injury to the shoulders. R.
at 10. This appeal followed.
II. JURISDICTION AND STANDARD OF REVIEW
Mr. Kirven’s appeal is timely and the Court has jurisdiction to review the January 2020
Board decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is
appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
The Board’s determinations regarding service connection and the adequacy of a medical
examination or opinion are findings of fact subject to the “clearly erroneous” standard of review.
38 U.S.C. § 7261(a)(4); see D’Aries v. Peake, 22 Vet.App. 97, 104 (2008); Davis v. West,
13 Vet.App. 178, 184 (1999). “A factual finding ‘is “clearly erroneous” when although there is
evidence to support it, the reviewing court on the entire evidence is left with the definite and firm
3 The Board specifically found the “February 2018 opinion” highly probative. R. at 9. However, it is clear
the Board is referring to the September 2019 VA opinion, which was obtained following the February 2018 Board
remand order.
4
conviction that a mistake has been committed.'” Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992)
(quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
When VA seeks to obtain a medical opinion, the Secretary must ensure that the opinion
provided is adequate. Barr v. Nicholson, 21 Vet.App. 303, 311 (2007). A VA medical 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), “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, 407 (1994)), and “sufficiently inform[s] 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).
The Board must support its material determinations of fact and law with adequate reasons
or bases. 38 U.S.C. § 7104(d)(1); Pederson v. McDonald, 27 Vet.App. 276, 286 (2015) (en banc);
Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990).
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 its
rejection of 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).
III. ANALYSIS
Mr. Kirven argues that the Board erred when it found his lay testimony regarding the onset
and duration of shoulder pain to be less reliable than service medical records. Appellant’s Brief
(Br.) at 6-11. He additionally argues that the Board erred by relying on the September 2019 VA
examiner’s opinion, which he contends was provided without consideration of his lay statements
in contravention of the Board’s February 2018 remand directives. Id. at 11-15. The Secretary
disputes these assertions and urges the Court to affirm the Board decision. Secretary’s Br. at 5-17.
In its decision, the Board found Mr. Kirven’s lay statements regarding the onset of shoulder
pain less reliable than service records contemporaneous with the MVA that do not reflect any
injury or symptoms relating to the shoulders. R. at 10. In reaching that determination, the Board
stated: “As the [v]eteran was clearly evaluated after the MVA and injuries were noted, it is
expected that any injury or pain to the bilateral shoulders also would have been noted at that time.”
5
Id. (citing Buczynski v. Shinseki, 24 Vet.App. 221, 224 (2011), for the premise that the absence of
an entry in a record may be evidence against the existence of a fact if it would ordinarily be
recorded).
The Court concludes that the Board provided inadequate reasons or bases for finding that Mr. Kirven’s lay statements were unreliable. Specifically, the Court concludes that the Board failed to adequately explain how it determined that evidence of a shoulder injury would have been expected to be documented in service and, accordingly, why it considered the absence of such
documentation to be more reliable than Mr. Kirven’s lay testimony. See Fountain v. McDonald, 27 Vet.App. 258, 272 (2015) (holding that the Board “must first establish the proper foundation for drawing inferences against a claimant from an absence of documentation”). Notably, the Board
failed to reconcile its determination with Mr. Kirven’s February 2009 hearing testimony wherein he stated that he did not report any complaints related to his shoulders because they “were just sore at the time” and he “figured [he could] get over that.” R. at 1586. Therefore, it is unclear how the Board determined that any shoulder complaints would have been recorded or documented in light of Mr. Kirven’s testimony that he did not report any symptoms.
Relatedly, the Court has concerns regarding whether the process by which the Board
reached its adverse credibility determination was fair. The Board previously remanded the bilateral
shoulder claims three times after finding a VA medical opinion inadequate for failure to consider
Mr. Kirven’s lay testimony. R. at 1321-58 (May 2011 remand finding the February 2010
examiner’s opinion inadequate), 699-703 (November 2015 remand finding the June 2015
examiner’s opinion inadequate), 414-20 (February 2018 remand finding the January 2016
examiner’s opinion inadequate). Although the Board did not make an explicit conclusion regarding
the credibility of that testimony in those remand orders, it would be reasonable for Mr. Kirven to
conclude that the Board, by rejecting three medical opinions for failure to address his testimony,
did not question his credibility. See Smith v. Wilkie, 32 Vet.App. 332, 339 (2020)
. Yet, it was not
until the decision on appeal that the Board informed Mr. Kirven that it found his statements
unreliable, at which time it was too late for him to submit additional evidence to support his
credibility. See id.
The Court further concludes that the Board failed to provide adequate reasons or bases for
its determination that the September 2019 VA examiner’s opinion was adequate and complied with
6
the previous remand directives. In its February 2018 remand order, the Board found the January
2016 VA opinion inadequate because it was based on the absence of a shoulder injury documented
in the service medical records and failed to consider Mr. Kirven’s lay statements. R. at 417-18. As
rationale for the September 2019 opinion, the VA examiner stated that the veteran’s medical
records are not supportive of linking the shoulder condition to the in-service MVA because there
is no documentation of treatment or care for the shoulders found in the in-service medical records
or for at least 10 years after service. R. at 186. In its decision, the Board stated: “Although the
September 2019 examiner does not explicitly state that he considered [the veteran’s] complaints,
reading the examination report and the opinion as a whole indicates that he did.” R. at 9. The Board
further stated that a review of the examination and opinion revealed that the examiner was aware
that Mr. Kirven attributed his bilateral shoulder condition to the in-service MVA. Id.
The Board’s reasons or bases are deficient for three reasons. First, although the Board is
correct that the examiner did record that Mr. Kirven ascribed his bilateral shoulder injury and ongoing
pain to the in-service MVA, see R. at 209-10, the Board failed to explain how the examiner
considered Mr. Kirven’s statements when rendering the opinion. The key inquiry is not simply
whether the examiner was aware of Mr. Kirven’s statements, but whether the examiner considered
those statements as lay evidence when rendering the opinion. See Buchanan v. Nicholson, 451 F.3d
1331, 1336 (Fed. Cir. 2006) (noting that a VA examiner’s opinion, which relied on the absence of
contemporaneous medical evidence, “failed to consider whether the lay statements presented
sufficient evidence of the etiology of [the veteran’s] disability such that his claim of service
connection could be proven”); Dalton v. Nicholson, 21 Vet.App. 23, 39 (2007) (finding a VA
examiner’s opinion inadequate when the examiner “impermissibly ignored the appellant’s lay
assertions,” but instead based the opinion solely on the lack of notation or treatment in service).
Second, and relatedly, the Board failed to explain its disparate treatment of the September
2019 VA medical opinion as opposed to the three prior VA opinions that it found inadequate for
failure to address Mr. Kirven’s lay statements. In the decision on appeal, the Board found the
September 2019 VA medical opinion adequate because, although the examiner did not explicitly
state that he considered the lay evidence, he was clearly aware of Mr. Kirven’s contentions that the
shoulder condition was the result of the in-service MVA. R. at 9; see R. at 209-10 (VA examiner’s
recitation of Mr. Kirven’s contentions). However, each of the prior VA examiners was also aware
7
of Mr. Kirven’s contentions. See R. at 1434 (February 2010 examiner’s notation), 1357 (May 2011
Board remand directive), 734 (June 2015 examiner’s notation), 701-02 (November 2015 Board
remand directive), 418 (February 2018 Board remand directive).4 Yet, in each instance until now,
the Board found the examiners’ notations of Mr. Kirven’s statements insufficient because the
opinion did not consider those statements. Despite the seeming similarities to the VA opinions that
the Board found inadequate, the Board failed to adequately explain how it determined that the
September 2019 examiner’s rationale considered Mr. Kirven’s lay statements.
Third, the Board failed to adequately explain its reliance on the September 2019 VA
examiner’s opinion despite acknowledging, albeit in a different context, that it was based on the
absence of documentation in service treatment records. As noted above, see supra n.1, the Board,
in the same decision on appeal, granted service connection for a right ankle injury, R. at 11-12.
Following the October 2018 Board remand, which also remanded the ankle claim, the September
2019 VA examiner addressed both the bilateral shoulder and right ankle conditions, rendering a
single opinion and providing the same rationale for both conditions. R. at 186. However, the Board
found the VA examiner’s opinion, as it related to the right ankle claim, inadequate. R. at 12. The
Board noted that the examiner’s opinion was based, in part, on the absence of documentation of
treatment of a right ankle condition in service, which the Board found to be an inaccurate factual
premise. R. at 12. Although the Board acknowledged in the context of the right ankle claim that
the September 2019 medical opinion was based on the absence of in-service documentation, the
Board did not discuss this apparent shortcoming of the opinion in the context of the bilateral
shoulder claim.
Therefore, the Court cannot conclude that the Board decision was supported by adequate
reasons or bases. See Caluza, 7 Vet.App. at 506. Such deficiency frustrates judicial review. See
38 U.S.C. § 7104(d)(1); Allday, 7 Vet.App. at 527; Gilbert, 1 Vet.App. at 56-57. Therefore,
remand of this claim is warranted. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that
remand is the appropriate remedy “where the Board has . . . failed to provide an adequate statement
of reasons or bases for its determinations”).
4 Although the January 2016 VA opinion does not contain a recitation of Mr. Kirven’s lay statements, the
author of that opinion was the June 2015 VA examiner.
8
Given this disposition, the Court need not address Mr. Kirven’s additional arguments,
which could not result in a remedy greater than remand. On remand, he is free to submit, and the
Board must consider, those arguments, as well as additional arguments and evidence. See Kay v.
Principi, 16 Vet.App. 529, 534 (2002); Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999)
(per curiam order). 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.
IV. CONCLUSION
Upon consideration of the foregoing, the appealed portion of the January 16, 2020, Board
decision is SET ASIDE and the matter is REMANDED for readjudication consistent with this
decision. The balance of the decision is DISMISSED.
DATED: June 30, 2021
Copies to:
Zachary M. Stolz, Esq.
VA General Counsel (027)

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