Veteranclaims’s Blog

January 3, 2022

Single Judge Application; negative inference; Spellers v. Wilkie, 30 Vet.App.; The Court reminds “‘the Board [that it] cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.’ Rather, the Board must ‘first establish a proper foundation for drawing inferences against a claimant from an absence of documentation.'” Spellers v. Wilkie, 30 Vet.App. 211, 221 (2018) (first quoting Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); and then quoting Fountain v. McDonald, 27 Vet.App. 258, 272 (2015)). Remand is therefore required for the Board to provide an adequate statement of reasons or bases for its credibility determination.

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20-6195
BEN TAYLOR BROADEN, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before JAQUITH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
JAQUITH, Judge: U.S. Army veteran Ben Taylor Broaden appeals, through counsel, a July 20, 2020, Board of Veterans’ Appeals (Board) decision that denied service connection for a bilateral knee disability and found that the veteran hadn’t submitted new and relevant evidence to reopen service connection claims for diabetes mellitus, hypertension, and a bilateral arm disability. Because the Board failed to provide adequate reasons or bases for its determinations, the Court remands.
I. BACKGROUND
Mr. Broaden served honorably in the Army on active duty for training (ACDUTRA) from October 1958 to April 1959 and then in the Army National Guard from April 1959 to April 1984. R. at 630, 1462, 1487-88. In February 2007, he applied for compensation for several disabilities, including diabetes, high blood pressure, and numbness in both arms and hands. R. at 1492. A rating decision in August 2008 denied service connection for the veteran’s claimed disabilities. R. at 515. In December 2012, the Board remanded the case for additional development, including to attempt to obtain service treatment and personnel records and, if they were unavailable, to issue a formal finding saying so and inform the veteran. R. at 516. When the attempt to obtain records failed to find any pertaining to the veteran’s ACDUTRA, but no formal finding of unavailability was made, the Board remanded again in January 2014 for the formal finding and notice to be made and the
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regional office to readjudicate the issues on appeal. R. at 517. In October 2014, the Board denied service connection for diabetes mellitus, hypertension, and numbness in both arms. R. at 6-8, 123-24. The veteran did not appeal that decision, and it became final. R. at 256-57.
In November 2018, the veteran sought to reopen his claims of service connection for diabetes mellitus, hypertension, and numbness in both arms. R. at 254. His reopening claims were denied in January 2019, when the regional office found that the evidence the veteran submitted was new but not material. R. at 254-57. The veteran submitted his Notice of Disagreement in February 2019. R. at 247. A November 2019 Statement of the Case restated the denial of the veteran’s claims. R. at 123-25. In December 2019, the veteran opted to have his claims reviewed through the direct review process established by the Veterans Appeals Improvement and Modernization Act of 2017 (AMA). R. at 81. But he did not check the box on that form requesting that his matters be withdrawn from the legacy appeals process. Id.
II. REASONS OR BASES REQUIREMENT
In rendering its decision, the Board is required to provide a written statement of the reasons or bases for its findings and conclusions on all material issues of fact and law presented on the record. 38 U.S.C. § 7104(d)(1). “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.” Smiddy v. Wilkie, 32 Vet.App. 350, 356 (2020) (citing Caluza v. Brown, 7 Vet.App. 498, 506 (1995)). A bare conclusory statement, without supporting analysis and explanation, is not helpful to the veteran, not clear enough to enable informed judicial review, and not in compliance with statutory requirements. Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). Remand is appropriate “where the Board has . . . failed to provide an adequate statement of reasons or bases for its determination.” Tucker v. West, 11 Vet.App. 369, 374 (1998). When the veteran’s service records cannot be located, “the Board’s obligation to provide well-reasoned findings and conclusions, to evaluate and discuss all of the evidence that may be favorable to the appellant, and to provide an adequate statement of the reasons or bases for its rejection of such evidence is . . . heightened.” Washington v. Nicholson, 19 Vet.App. 362, 371 (2005).
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III. NEW AND RELEVANT EVIDENCE
In order for the veteran to have a supplemental claim accepted under VA’s new claims system,1 the veteran needs to submit new and relevant evidence. Record (R.) at 8-9. Under the “new and relevant” standard, the threshold showing that veterans must make to reopen their claims is lower than the legacy “‘new and material'” evidence standard. Kisor v. McDonough, 995 F.3d 1316, 1322 n.1 (Fed. Cir. 2021). VA’s implementing regulation for this new standard states that “[n]ew evidence is evidence not previously part of the actual record before the agency adjudicators. Relevant evidence is information that tends to prove or disprove a matter at issue in a claim. Relevant evidence includes evidence that raises a theory of entitlement that was not previously addressed.” 38 C.F.R. § 3.2501(a)(1) (2021). “The comments accompanying the final rule explain that the ‘new and relevant’ standard for supplemental claims is ‘a lesser standard and reduces the claimant’s burden’ as compared to the prior ‘new and material’ standard.” Kisor, 995 F.3d at 122 n.1 (quoting VA Claims and Appeals Modernization, 84 Fed. Reg. 138, 144 (Jan. 18, 2019)).
In October 2014, the veteran was denied service connection for diabetes mellitus, hypertension, and bilateral upper extremity peripheral neuropathy because the Board determined that there was no competent and credible evidence that his conditions were incurred in or linked to his service.2 In the July 2020 decision on appeal, the Board conceded that the veteran had submitted evidence that was not a part of the record at the time of its previous decision and therefore it was “new” for purposes of reopening. However, it determined that the evidence was not relevant because it did not “tend to prove or disprove a matter [at] issue” in that it did not show that the veteran’s disabilities were “incurred in service or . . . etiologically related to service.” R. at 9-11. But the Board failed to provide any further explanation for why it found this new evidence not relevant. See id. It did not even detail which evidence it reviewed, merely stating that the veteran submitted “lay statement or arguments from the [v]eteran and his representative and medical evidence that showed a diagnosis of” the denied conditions. Id. At the very least, the Court requires the Board to better identify what records it considered—especially in light of the new
1 Veterans Appeals Improvement and Modernization Act of 2017, Pub. L. No. 115-55, 131 Stat. 1105, § 2 (codified as amended in scattered sections of 38 U.S.C.).
2 The Board in 2014 also noted a lack of a diagnosis for bilateral peripheral neuropathy and questioned the validity of his hypertension diagnosis. R. at 480-81.
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relaxed standard—to enable us to review its determinations. Without this discussion the Court is unable to assess whether the new evidence was relevant. The Court will therefore remand these matters for the Board to provide a reasons or bases for its determination. See Tucker, 11 Vet.App. at 374. Additionally, on remand, the Board should reassess whether the veteran opted out of the legacy system, as it appears that the veteran did not want his matters to be adjudicated under the AMA. See R. at 81; see also R. at 246.
The Court, however, does not find persuasive the veteran’s arguments regarding the benefit of the doubt doctrine or the duty to assist because these provisions are not applicable until after he satisfies the threshold question of whether he has submitted new and relevant evidence. See Appellant’s Brief at 6-11; see also 38 C.F.R. § 3.159(c)(4)(iv) (2021); Paralyzed Veterans of Am. v. Sec’y of Veterans Affs., 345 F.3d 1334, 1353 (Fed. Cir. 2003). If the Board determines that reopening is warranted, it will then be required to assist the veteran and apply the benefit of the doubt to his claim.
IV. CREDIBILITY AND PAIN
As with its action on the veteran’s diabetes, hypertension, and bilateral arm disability claims, the Board’s denial of service connection for the veteran’s bilateral knee disability is not supported by a statement of reasons and bases that adequately informs the veteran of the precise basis for its decision and facilitates review in this Court. See Hedgepeth v. Wilkie, 30 Vet.App. 318, 325 (2018). The Board has not fulfilled its obligation to “analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.” Id.
The shortcoming here is in the Board’s failure to adequately explain its finding that the veteran’s statements regarding continued knee pain since service were not credible. In its July 2020 decision, the Board declared that it found this testimony not credible because “the more contemporaneous medical history he gave in June 1979 and in February 1983 . . . denied any trick or locked knee, neuritis, arthritis, rheumatism, or bursitis, or bone, joint or other deformity. [And because t]he corresponding reports of medical examinations noted clinically normal extremities.” R. at 14. But it is not evident to the Court why this evidence contradicts the veteran’s statement that he had knee pain since service. Pain in the knees is not mutually exclusive of the conditions the Board used to discredit the veteran—conditions which do not appear to encompass all possible
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knee issues or injuries.3 So, it is unclear why the veteran’s ‘no’ answers disclaiming those conditions was used by the Board as compelling evidence that the veteran did not have pain in 1979 and 1983. Similarly, the Board failed to explain why a clinically normal extremity means that there was no pain in the knee. Again, it is conceivable that an individual, who has a clinically normal extremity, would still suffer from pain in the joints of that extremity. See Saunders v. Wilkie, 886 F.3d 1356, 1363 (Fed. Cir. 2018) (“[P]ain alone, without an accompanying diagnosis or identifiable condition, can[ ] constitute a ‘disability’ under [38 U.S.C.] § 1110, because pain in the absence of a presently-diagnosed condition can cause functional impairment.”). In this case, there was no Board discussion of an individualized assessment of the veteran’s pain, the degree of any functional impairment, or any connection to his later osteoarthritis. See Wait v. Wilkie, 33 Vet.App. 8, 16 (2020) (“Saunders suggests that VA must undertake an individualized assessment, which includes a preliminary evaluation of the degree of impairment.”); R. at 255, 285. Instead—in the absence of records pertaining to his active service or any but the last stretch of his time in the Army National Guard—the Board focused on forms from 1979 and 1983 and treatment records from decades later.
The Board’s actions here require remand, as it has discounted the credibility of the veteran based on records that did not ask the relevant question—whether he had pain in his knees. The Court reminds “‘the Board [that it] cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.’ Rather, the Board must ‘first establish a proper foundation for drawing inferences against a claimant from an absence of documentation.'” Spellers v. Wilkie, 30 Vet.App. 211, 221 (2018) (first quoting Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); and then quoting Fountain v. McDonald, 27 Vet.App. 258, 272 (2015)). Remand is therefore required for the Board to provide an adequate statement of reasons or bases for its credibility determination. Tucker, 11 Vet.App. at 374.
The Court will not address the veteran’s remaining arguments, including whether he is entitled to a VA medical examination, because they would not lead to a remedy greater than remand. See Mahl v. Principi, 15 Vet.App. 37, 38 (2001) (per curiam order) (“[I]f the proper
3 It is noteworthy that the veteran’s 1979 and 1983 reports of medical history ask if he had ever had eye trouble, thyroid trouble, heart trouble, or trouble with his ears, nose, throat, teeth, gums, stomach, liver, intestines, or nerves, but not if he’d had “knee trouble.” R. at 1357, 1359.
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remedy is a remand, there is no need to analyze and discuss all the other claimed errors that would result in a remedy no broader than a remand.”).
V. CONCLUSION
Accordingly, the July 20, 2020, Board decision is SET ASIDE and REMANDED.
DATED: October 29, 2021
Copies to:
Leslie P. Machado, Esq.
VA General Counsel (027)

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