Veteranclaims’s Blog

November 15, 2021

Single Judge Application; Bailey v. Derwinski, 1 Vet.App. 441, 446 (1991); double standard; Specifically, it appears the Board used a double standard when evaluating these opinions. For example, the Board discounted the private 2007 opinion’s conclusion because it was “based solely on a single examination.”32 But that critique applies equally to the June 2014 VA opinion.33; Similarly, the Board gave greater weight to the June 2014 VA opinion because it was rendered “for the specific purpose of [rendering] a diagnosis and etiology.”34 But there is no indication that this was not the same purpose that prompted the 2007 private opinion.35 Applying such a double standard for evaluating evidence is inappropriate. See Bailey v. Derwinski, 1 Vet.App. 441, 446 (1991).;

Filed under: Uncategorized — Tags: — veteranclaims @ 10:11 pm

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-7888
HELENA M. EAVES, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before ALLEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
ALLEN, Judge: Appellant Helena M. Eaves served the Nation honorably in the United
States Army. In this appeal, which is timely and over which the Court has jurisdiction,1 she
contests an August 15, 2019, Board of Veterans’ Appeals decision that reopened her serviceconnection
claim concerning a psychiatric disability, including PTSD, and then denied that claim
on the merits.2 Because the Board did not support its decision with an adequate statement of
reasons or bases, we will set aside the decision and remand this matter for further proceedings.
I. ANALYSIS
The Board denied appellant’s claim because it determined that her condition was a
personality disorder and, therefore, not subject to service connection. 3 Among other things,
1 See 38 U.S.C. §§ 7266(a), 7252(a).
2 Record (R.) at 5-26. The Board’s decision to reopen the claim is a favorable determination we may not review. See
Medrano v. Nicholson, 21 Vet.App. 165, 170 (2007). The Board also remanded appellant’s claims seeking (a) an initial
disability rating greater than 10% for a right knee condition and (b) service connection for (1) a left knee disability;
(2) a right ankle disability; (3) a right hip condition; (4) a right elbow disability; (5) a left ankle disability; and (6) a
left elbow disability. We lack jurisdiction over these nonfinal matters. See Breeden v. Principi, 17 Vet.App. 475, 478
(2004) (per curiam order).
3 R. at 13.
2
appellant argues that the Board erred by rejecting various other, non-personality-disorder
diagnoses in the record and by relying on an inadequate June 2014 VA medical opinion. The
Secretary defends the Board’s decision in full. He urges us to affirm.
We will first set out the legal principles that frame our resolution of this appeal. We will
then explain why we will set aside the Board’s decision and remand this matter.
A. The Legal Landscape
Establishing service connection for a psychiatric disability, including PTSD, generally
requires (1) evidence of a current diagnosis of PTSD or another psychiatric condition; (2) credible
supporting evidence that a claimed in-service stressor occurred; and (3) competent evidence of a
causal nexus between the current condition and the in-service stressor.4 The Court reviews the
Board’s findings regarding service connection for clear error.5 We may overturn the Board’s
findings only if there’s no plausible basis in the record for the Board’s decision and we are “left
with the definite and firm conviction” that the Board’s decision was in error.6
When VA provides a medical examination, it must make sure that examination is adequate.
A medical opinion is adequate when it is “based upon consideration of the veteran’s . . . medical
history and examinations and also describes the disability in sufficient detail” so that the Board’s
“evaluation of the claimed disability will be a fully informed one.”7 “It is the factually accurate,
fully articulated, sound reasoning for the conclusion . . . that contributes probative value to a
medical opinion.”8 We also review Board determinations about the adequacy of medical opinions
for clear error.9
Finally, for all material issues of fact and law, the Board must support its decision with an
adequate statement of reasons or bases that allows the claimant to understand the precise reasons
4 38 C.F.R. § 3.304(f) (2020).
5 Dyment v. West, 13 Vet.App. 141, 144 (1999).
6 See Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990).
7 Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007); see Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008).
8 Nieves-Rodriguez, 22 Vet.App. at 304; see Miller v. Wilkie, 32 Vet.App. 249, 254-55 (2020).
9 D’Aries v. Peake, 22 Vet.App. 97, 104 (2008); see Miller, 32 Vet.App. at 254; Gilbert, 1 Vet.App. at 52.
3
for the Board’s decision and facilitates review in this Court.10 If the Board fails to provide an
adequate statement of reasons or bases for its decision, remand is appropriate.11
B. The Board’s statement of reasons or bases is inadequate.
The Board’s statement of reasons or bases for denying appellant’s claim is inadequate in
numerous respects.12 First, the Board did not adequately explain its reliance on a June 2014 VA
medical opinion to deny appellant’s claim, given an apparent factual inaccuracy in that opinion.13
The June 2014 examiner stated that appellant’s “providers still cannot confirm a PTSD
diagnosis.”14 That simply is not true. In November 2011, a VA physician provided an unequivocal
diagnosis of “PTSD (complex with mood/psychotic symptoms).”15 The Board did not address this
glaring mismatch between the evidence and the examiner’s opinion. This is critically important
because a medical opinion based on an incorrect factual premise is entitled to no weight.16 The
Secretary responds to this issue, in part, by noting that a medical examiner need not comment on
every piece of evidence.17 That is certainly true.18 However, there is certainly an issue when the
piece of evidence the examiner did not address appears to directly undermine a factual premise on
which the examiner based his or her opinion. And this error is amplified because the Board itself
never addresses the November 2011 PTSD diagnosis.
Second, the Board did not consider that the June 2014 examiner based his opinion in part
on a factual determination that was at odds with the Board’s view of the evidence. The Board stated
twice in its decision that it found appellant’s statements concerning the circumstances of her
alleged assault to have been “consistent” over time.19 In contrast, the June 2014 examiner stated
that appellant’s “description of events around the timeframe of her alleged assault is somewhat
10 38 U.S.C. § 7104(d)(1); Gilbert, 1 Vet.App. at 57.
11 Tucker v. West, 11 Vet.App. 369, 374 (1998).
12 The Court found the parties’ briefs in this appeal to be particularly helpful. In order to assist the Board, we will order
that the briefs be associated with appellant’s claims file on remand.
13 See R. at 12.
14 R. at 852.
15 R. at 615.
16 See Reonal v. Brown, 5 Vet.App. 458, 461 (1993).
17 See Secretary’s Brief (Br.) at 15-16.
18 Monzingo v. Shinseki, 26 Vet.App. 97, 106 (2012) (per curiam).
19 R. at 10, 12.
4
inconsistent and/or implausible.”20 The Board did not explain how it could rely on an opinion that
proceeded from a factual premise at odds with the Board’s findings.
Third, the Board did not address aspects of the June 2014 examiner’s opinion that appeared
to constitute inappropriate credibility determinations. For example, the examiner cast doubt about
whether appellant’s pregnancy resulted from a consensual encounter instead of a sexual assault.21
The examiner also questioned whether appellant had had an abortion or rather had suffered a
miscarriage.22 The Board did not appear to question either matter. The Board’s failure to discuss
this aspect of the June 2014 examiner’s opinion is troubling. As the Court recently held: “[I]t is the
Board that must make a credibility determination, something it may not outsource to a medical
examiner.”23
Fourth, putting aside any apparent outsourcing of the Board’s adjudicative responsibilities,
the June 2014 examiner expressly stated that appellant’s inconsistencies in recounting her history,
with respect to “dates/events” and other associated difficulties, could be “due to memory difficulty
or other variables.”24 But the examiner did not further explore appellant’s “memory difficulty.”
Nor did he explain what the “other variables” were. Yet, he used appellant’s purported
inconsistencies as a basis to impugn her credibility.25 The Board did not discuss this oddity in the
June 2014 examiner’s reasoning.
Fifth, as we noted above, the Board never discussed the VA medical record from November
2011 diagnosing appellant with PTSD. The Board did, however, discuss several other VA medical records containing diagnoses for other mental health conditions, including, among others, depression and anxiety.26 The Board discounted the probative value of these records because they were for the purpose of “treatment.”27 This is problematic because the Board’s treatment of these records does not account for our decision in Cohen v. Brown.28 There, we held that “diagnoses by
20 R. at 833.
21 R. at 849-50.
22 Id.
23 Miller, 32 Vet.App. at 259.
24 R. at 853.
25 R. at 832-33.
26 R. at 12.
27 Id.
28 10 Vet.App. 128 (1997).
5
a mental health professional must be presumed (unless evidence shows to the contrary) to have
been made in accordance with the applicable DSM criteria as to both the adequacy of the
symptomatology and the sufficiency of the stressor.”29 We concluded that this was so because
“mental health professionals are experts and are presumed to know the DSM requirements
applicable to their practice and to have taken them into account in providing” a diagnosis.”30
The Board does not cite Cohen and its discussion does not reflect that it understood that
the rule we adopted in that case was relevant to appellant’s situation. That omission is highly
significant because it affects the way in which evidence is weighed. It is certainly true that the
Board has the responsibility to assess the evidence.31 But the Court can’t review the Board’s
weighing of the evidence here because it’s not clear that the Board understood that the VA mental
health treatment providers were entitled under Cohen to a presumption that when rendering their
opinions they applied the correct standards.
Sixth, the Board did not adequately explain why it afforded the June 2014 VA medical opinion more probative weight than a favorable 2007 private medical opinion appellant submitted.
Specifically, it appears the Board used a double standard when evaluating these opinions. For example, the Board discounted the private 2007 opinion’s conclusion because it was “based solely on a single examination.”32 But that critique applies equally to the June 2014 VA opinion.33
Similarly, the Board gave greater weight to the June 2014 VA opinion because it was rendered “for the specific purpose of [rendering] a diagnosis and etiology.”34 But there is no indication that this was not the same purpose that prompted the 2007 private opinion.35 Applying such a double standard for evaluating evidence is inappropriate.36
Finally, the Board stated (twice) that “the [v]eteran’s accounts regarding the events on the
night of her claimed sexual assault have been consistent.”37 And the Board never questioned
29 Id. at 140.
30 Id.
31 See Washington v. Nicholson, 19 Vet.App. 362, 366-67 (2005); Owens v. Brown, 7 Vet.App. 429, 433 (1995).
32 R. at 12.
33 R. at 832-54.
34 R. at 12.
35 R. at 1266-67.
36 See Bailey v. Derwinski, 1 Vet.App. 441, 446 (1991).
37 R. at 10, 12.

6
appellant’s credibility. Yet, it also stated that it was “neither confirming [n]or denying the
verification of the [v]eteran’s claimed stressor.” 38 The Board’s refusal to make this factual
determination may have been justified if one assumes that the June 2014 examiner’s opinion was
adequate and that the Board otherwise appropriately evaluated the evidence. However, as we have
explained, the Board’s reasoning is infected with numerous errors, errors that call into serious
doubt the Board’s failure to make such an important finding. This further renders its statement of
reasons or bases inadequate.
We recognize that the Secretary advances several arguments to try to “fill in the gaps” in
the Board’s analysis. However, it ultimately is not his prerogative to explain what the Board did
not. As we have often commented, the Secretary cannot make up for the Board’s deficient
statement of reasons or bases.39 We will remand this claim for the Board to comply with that
responsibility.
C. Appellant’s Rights on Remand
Because the Court is remanding appellant’s claim to the Board for readjudication, the Court
need not address any remaining arguments as to these matters now and appellant can present them
to the Board.40 On remand, appellant may submit additional evidence and argument and has 90
days to do so from the date of VA’s postremand notice.41 The Board must consider any such
additional evidence or argument submitted.42 The Board must also proceed expeditiously.43
38 R. at 12.
39 See In re Lee, 277 F.3d 1338, 1345-46 (Fed. Cir. 2002) (“[C]ourts may not accept appellate counsel’s post hoc
rationalization for agency action.” (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)));
McCray v. Wilkie, 31 Vet.App. 243, 258 (2019) (“[T]he Secretary’s impermissible post-hoc rationalization cannot
make up for shortcomings in the Board’s assessment.”); Simmons v. Wilkie, 30 Vet.App. 267, 277 (2018) (holding that
the “Court cannot accept the Secretary’s post-hoc rationalizations” to cure the Board’s reasons-or-bases errors), aff’d,
964 F.3d 1381 (Fed. Cir. 2020); Smith v. Nicholson, 19 Vet.App. 63, 73 (2015) (“[I]t is not the task of the Secretary
to rewrite the Board’s decision through his pleadings filed in this Court.”).
40 Best v. Principi, 15 Vet.App. 18, 20 (2001).
41 Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order); see also Clark v. O’Rourke, 30 Vet.App.
92 (2018).
42 Kay v. Principi, 16 Vet.App. 529, 534 (2002).
43 38 U.S.C. §§ 5109B, 7112.
7
II. CONCLUSION
After consideration of the parties’ briefs, the governing law, and the record, the Court SETS
ASIDE the August 15, 2019, Board decision and REMANDS this matter for further proceedings
consistent with this decision. The parties’ briefs in this appeal shall be associated with appellant’s
claims file on remand.
DATED: March 26, 2021
Copies to:
Zachary M. Stolz, Esq.
VA General Counsel (027)

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