Veteranclaims’s Blog

March 10, 2022

Single Judge Application; The en banc Federal Circuit has recently revisited in the benefit of the doubt doctrine.27 In Lynch, the Federal Circuit considered whether its decision in Ortiz v. Principi 28 had inappropriately limited the doctrine by finding it inapplicable when the preponderance of the evidence was against the claim.29 The court held that Ortiz had not been decided incorrectly, but acknowledged that its preponderance-of-the-evidence language could be read out of context.30 The court went on: “[T]o eliminate the potential for confusion going forward, we depart from Ortiz’s ‘preponderance of the evidence’ language and determine that the benefit-of-the doubt rule applies if the competing evidence is in ‘approximate balance,’ which Ortiz correctly interpreted as evidence that is ‘nearly equal.'”31 As we noted, the Board considered the benefit of the doubt doctrine in its decision.32 However, it did so under the pre-Lynch articulation of the doctrine.33 While such an analysis will not always—perhaps even not most of the time—necessitate a remand because one can assess the Board’s decision as a whole under the Lynch formulation, we think this case requires remand. The August 2016 examiner’s rationale as to speculation could affect the Board’s assessment of the evidence such that Lynch makes a difference. After all, the examiner listed an in-service event as one of the possible causes of appellant’s back condition.34 We think it is advisable to allow the Board to reconsider the evidence under Lynch, which was decided after the Board rendered the decision on appeal.35 So we will remand this claim for the Board to do so.; 27 See Lynch v. McDonough, _ F.4th _, 2021 WL 5983923 (Fed. Cir. Dec. 17, 2021) (en banc); 28 272 F.3d 1361 (Fed. Cir. 2001).; 29 Lynch, 2021 WL 5983923, at *4.; 30 Id.; 31 Id. (footnote omitted).;

Filed under: Uncategorized — veteranclaims @ 12:47 pm

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 21-1519
HERBERT HOPKINS, JR., 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 Herbert Hopkins, Jr., served the Nation honorably in the United
States Army. In this appeal, which is timely and over which the Court has jurisdiction,1 he contests
a November 18, 2020, decision of the Board of Veterans’ Appeals that denied him service
connection for (1) a low back disability; (2) a right leg disability; and (3) a psychiatric disability
other than persistent depressive disorder, including PTSD.2 Because the Board did not provide a
statement of its reasons or bases sufficient to allow meaningful judicial review with respect to its
denials for the low back and psychiatric conditions and the right leg claim is inextricably
intertwined with the claim seeking service connection for the back condition, we will set aside the
Board’s decision and remand these matters for further proceedings.
1 See 38 U.S.C. §§ 7252(a), 7266(a).
2 Record (R.) at 5-29. The Board also granted service connection for persistent depressive disorder. This is a favorable
determination we may not review. See Medrano v. Nicholson, 21 Vet.App. 165, 170 (2007). In addition, the Board
remanded appellant’s claim seeking service connection for erectile dysfunction. We lack jurisdiction over this
remanded matter. See Breeden v. Principi, 17 Vet.App. 475, 478 (2004) (per curiam order). We also note that the
Board denied service connection for left ear hearing loss. Appellant presents no argument about this denial, so he has
abandoned any appeal about that matter. See Pederson v. McDonald, 27 Vet.App. 276, 283 (2015) (en banc).
2
I. ANALYSIS
A. Legal Landscape
The legal standards relevant to the resolution of this appeal are well established.
Establishing service connection generally requires evidence of (1) a current disability; (2) inservice
incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed inservice
disease or injury and the present disability.3 The Court reviews the Board’s findings
regarding service connection for clear error,4 and the Court may overturn the Board’s finding only
if there’s no plausible basis in the record for the Board’s decision and the Court is “left with the
definite and firm conviction that” the Board’s decision was in error.5 Moreover, as the finder of
fact, the Board has a duty to assess the weight and credibility of the evidence.6
Similarly, the Court reviews Board determinations about the adequacy of medical opinions
for clear error. 7 A medical opinion is adequate when it’s “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.”8 “It is the
factually accurate, fully articulated, sound reasoning for the conclusion . . . that contributes
probative value to a medical opinion.”9
A claimant has the right to compliance with a remand from this Court or the Board.10 And
the Secretary has a duty “to ensure compliance with the terms of the remand.”11 The Secretary
fulfills this duty by substantially complying with the order because we have recognized that
absolute compliance is not necessary. 12 We have held in an analogous situation involving
substantial compliance as a standard that the “general legal concept [is] that substantial compliance
3 See Hickson v. West, 12 Vet.App. 247, 253 (1999); 38 C.F.R. § 3.303(a) (2021).
4 38 U.S.C. § 7261(a)(4); Dyment v. West, 13 Vet.App. 141, 144 (1999).
5 See Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990).
6 See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Owens v. Brown, 7 Vet.App. 429, 433 (1995).
7 D’Aries v. Peake, 22 Vet.App. 97, 104 (2008); see Gilbert, 1 Vet.App. at 52.
8 Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007); see Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008).
9 Nieves-Rodriguez, 22 Vet.App. at 304.
10 Stegall v. West, 11 Vet.App. 268, 271 (1998).
11 Id.
12 See, e.g., Dyment v. West, 13 Vet.App. 141, 146-47 (1999); Evans v. West, 12 Vet.App. 22, 31 (1998).
3
means actual compliance with . . . essential objectives.”13 The Board’s assessment of whether there
has been substantial compliance with a remand order is a question of fact this Court reviews for
clear error.14
Finally, for all its findings on a material issue of fact and law, the Board must provide “a
written statement of reasons or bases for its findings and conclusions on all material issues of fact
or law.”15 To comply with its requirement to provide an adequate statement of reasons or bases,
“the Board must 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.”16 Moreover, the Board must address evidence
favorable to appellant, which includes competent medical and lay evidence.17 If the Board fails to
do so, remand is appropriate.18
B. The Board’s statement of reasons or bases is inadequate.
The Board’s statement of reasons or bases for denying the claims on appeal is inadequate.
We address each claim in turn.

  1. Low Back Disability
    Appellant focuses his arguments about the denial of service connection for a low back
    disability on an August 2016 VA medical opinion. That opinion resulted from a March 2016 Board
    remand ordering the regional office to obtain an opinion concerning the etiology of appellant’s
    claimed back condition.19 In response to the etiology question the Board had posed, the examiner
    stated:
    This [the etiology of the condition] is not possible to determine. Even though there
    is evidence of a back issue in service, he [appellant] also had a 1999 injury falling
    in a bathroom, landing on his back. This is documented in CPRS (Lincoln facility,
    and had PT [physical therapy]). Natural progression of disease over time is also a
    likely contributor. Employment issues can be contributors over time. Therefore,
    13 Mo. Veterans Comm’n v. Peake, 22 Vet.App. 123, 127 (2008).
    14 See Gill v. Shinseki, 26 Vet.App. 386, 392 (2013).
    15 38 U.S.C. § 7104(d)(1); Gilbert, 1 Vet.App. at 56-57.
    16 Kahana v. Shinseki, 24 Vet.App. 428, 433 (2011) (citing Caluza v. Brown, 7 Vet.App. 498, 506 (1995); Gilbert, 1
    Vet.App. at 56-57)).
    17 Kahana, 24 Vet.App. at 433.
    18 Tucker v. West, 11 Vet.App. 369, 374 (1998).
    19 R. at 1358-59.
    4
    whether his current back is due to entry [sic] in service is not possible to state, as
    this would be resorting to mere speculation.[20]
    The Board acknowledged this “inclusive” response of the August 2016 examiner to the etiology
    question.21 However, it determined that it was not necessary to remand the matter for an additional
    opinion.22
    Appellant asserts that the Board erred because the August 2016 opinion did not comply
    with the March 2016 Board remand and otherwise was inadequate given the inconclusive nature
    of the examiner’s conclusion. We don’t agree. The Board’s assessment that the opinion substantially
    complied with the March 2016 remand is not plainly wrong. The remand sought an etiological
    opinion, but specifically recognized a possibility that an opinion could not be provided without
    speculation.23 The August 2016 opinion addresses etiology but also concludes that an opinion
    could not be provided without speculation. The determination that the opinion substantially
    complied with the remand is not a finding we may reverse on this record.
    Similarly, we can’t conclude the Board clearly erred in determining that the examination
    was adequate. The Board explained its reliance on the examination. In particular, the Board
    correctly noted that an examination is not inadequate merely because an examiner concludes that
    an opinion is not possible without speculation.24 And we are unpersuaded by appellant’s additional
    inadequacy arguments.
    Despite all this, we conclude that remand is required because the Board’s statement of
    reasons or bases is inadequate with respect to its assessment of the benefit of the doubt doctrine as
    it relates to consideration of the August 2016 opinion. That doctrine states that “[w]hen there is an
    approximate balance of positive and negative evidence regarding any issue . . . , the Secretary shall
    give the benefit of the doubt to the claimant.”25 The Board concluded that the doctrine did not
    assist appellant.26
    20 R. at 912.
    21 R. at 18.
    22 R. at 18-19.
    23 R. at 1358-59.
    24 R. at 19 (citing Jones v. Shinseki, 23 Vet.App. 382, 391 (2010)).
    25 38 U.S.C. § 5107(b); see 38 C.F.R. § 3.102 (2021).
    26 R. at 19.
    5
    The en banc Federal Circuit has recently revisited in the benefit of the doubt doctrine.27 In
    Lynch, the Federal Circuit considered whether its decision in Ortiz v. Principi 28 had
    inappropriately limited the doctrine by finding it inapplicable when the preponderance of the
    evidence was against the claim.29 The court held that Ortiz had not been decided incorrectly, but
    acknowledged that its preponderance-of-the-evidence language could be read out of context.30 The court went on: “[T]o eliminate the potential for confusion going forward, we depart from Ortiz’s
    ‘preponderance of the evidence’ language and determine that the benefit-of-the doubt rule applies
    if the competing evidence is in ‘approximate balance,’ which Ortiz correctly interpreted as evidence
    that is ‘nearly equal.'”31
    As we noted, the Board considered the benefit of the doubt doctrine in its decision.32
    However, it did so under the pre-Lynch articulation of the doctrine.33 While such an analysis will
    not always—perhaps even not most of the time—necessitate a remand because one can assess the
    Board’s decision as a whole under the Lynch formulation, we think this case requires remand. The
    August 2016 examiner’s rationale as to speculation could affect the Board’s assessment of the
    evidence such that Lynch makes a difference. After all, the examiner listed an in-service event as
    one of the possible causes of appellant’s back condition.34 We think it is advisable to allow the
    Board to reconsider the evidence under Lynch, which was decided after the Board rendered the
    decision on appeal.35 So we will remand this claim for the Board to do so.
  2. Right Leg Disability
    The Board recognized that appellant’s right leg disability could be related to a back
    condition.36 Appellant argues that we should remand the right leg claim as inextricably intertwined
    27 See Lynch v. McDonough, _ F.4th _, 2021 WL 5983923 (Fed. Cir. Dec. 17, 2021) (en banc).
    28 272 F.3d 1361 (Fed. Cir. 2001).
    29 Lynch, 2021 WL 5983923, at *4.
    30 Id.
    31 Id. (footnote omitted).
    32 See R. at 19.
    33 Id.
    34 R. at 912.
    35 See Davis v. McDonough, 34 Vet.App. 131, 140 (2021) (recognizing that it may be appropriate under certain
    circumstances to remand a matter for the Board to consider intervening legal developments).
    36 R. at 19-22 (discussing relevant medical evidence).
    6
    with his low back disability claim. The Secretary does not seriously dispute the connection
    between these claims. We agree that remand of this claim is appropriate.
    “[W]here a decision on one issue would have a ‘significant impact’ upon another and that
    impact in turn ‘could render any review by this Court of the issue [on the other claim] meaningless
    and a waste of judicial resources[,]’ the two claims are inextricably intertwined.”37 That is the case
    here because, as the Board and the parties recognize, adjudication of appellant’s claim concerning
    service connection for a low back disorder is likely to affect adjudication of the claim concerning
    a right leg disability. So, we will remand this claim for further proceedings.
  3. Psychiatric Condition Other Than Persistent Depressive Disorder
    We also conclude that the Board’s statement of reasons or bases for denying service
    connection for a psychiatric condition other than persistent depressive disorder is inadequate. In a
    February 2018 remand, the Board directed that appellant be afforded an additional psychiatric
    conditions examination because the examinations of record had been conducted under the
    Diagnostic and Statistical Manual of Mental Disorders, 5th edition (DSM-5).38 The problem was
    that appellant’s claim was filed before VA adopted the DSM-5 for adjudication purposes, making
    the DSM-IV applicable.39
    The July 2020 opinion VA obtained on remand did not provide an opinion under the DSMIV
    as the remand directed.40 The July 2020 opinion too was based on the DSM-5.41 The Secretary
    concedes that the Board erred when it determined there had been substantial compliance with the
    February 2018 remand.42 We agree. It is clear that the July 2020 opinion did not provide the Board
    with the information it had sought in its February 2018 decision. And we also agree with the
    Secretary’s concession that the Board inappropriately employed its own medical assessments in an
    effort to cure that deficiency.43 Once again, we agree.
    37 Henderson v. West, 12 Vet.App. 11, 20 (1998) (quoting Harris v. Derwinski, 1 Vet.App. 180, 183 (1991)).
    38 R. at 688.
    39 Id.; see 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014); see also Golden v. Shulkin, 29 Vet.App. 221, 224 (2018)
    (discussing regulatory changes concerning the conversion from the DSM-IV to the DSM-5).
    40 R. at 198-206.
    41 Id.
    42 See Secretary’s Brief (Br.) at 14.
    43 Id. at 15 (citing Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991)); see R. at 13-14 (Board’s inappropriate discussion).
    7
    However, the Secretary argues that these errors are harmless because VA is precluded from
    obtaining a medical opinion under DSM-IV criteria by 38 C.F.R. § 4.125, which requires medical
    opinions be based on the DSM-5.44 While in an appropriate case we might need to refer this issue
    for precedential consideration, we need not do so here.45 The Board said nothing remotely like the
    position the Secretary stakes out in this appeal. Indeed, the Board has proceeded in a manner that
    is directly at odds with how the Secretary views the legal landscape. After all, as we’ve explained,
    the Board directed that VA obtain an opinion under the DSM-IV and then (albeit inappropriately)
    attempted to cure the problem a lack of such an opinion presented.
    We will remand this claim because the Board clearly erred in determining that the July
    2020 medical opinion substantially complied with the February 2018 remand and, given that error
    and the Board’s inappropriate foray into the medical world, its statement of reasons or bases for
    denying this claim is inadequate. Unless the Board concludes that it is precluded from obtaining a
    compliant opinion (a determination the Board would have to support with an adequate statement
    of reasons or bases, assuming such a conclusion is defensible at all), the Board must ensure
    substantial compliance with its prior remand and readjudicate the claim.
    C. Appellant’s Rights on Remand
    Because the Court is remanding this matter to the Board for readjudication, the Court need
    not address any remaining arguments now, and appellant can present them to the Board.46 On
    remand, appellant may submit additional evidence and argument and has 90 days to do so from
    the date of VA’s postremand notice.47 The Board must consider any such additional evidence or
    argument submitted.48 The Board must also proceed expeditiously.49
    44 See Secretary’s Br. at 15-16.
    45 While we are not reaching the merits of the Secretary’s legal argument, we can’t help but note that if the Secretary
    is correct, even though VA specifically said in rulemaking that the change from the DSM-IV to DSM-5 was tied to
    the filing of a claim (or the certification of a claim to the Board) on August 4, 2014, see 79 Fed. Reg. at 45,094, VA
    could never develop evidence under the DSM-IV. That seems rather odd given that claims filed (or certified to the
    Board) before August 4, 2014, are governed by the DSM-IV. See id.
    46 Best v. Principi, 15 Vet.App. 18, 20 (2001).
    47 Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order); see also Clark v. O’Rourke, 30 Vet.App.
    92 (2018).
    48 Kay v. Principi, 16 Vet.App. 529, 534 (2002).
    49 38 U.S.C. §§ 5109B, 7112.
    8
    II. CONCLUSION
    After consideration of the parties’ briefs, the governing law, and the record, the Court SETS
    ASIDE the November 18, 2020, Board decision and REMANDS this matter for further
    proceedings consistent with this decision.
    DATED: February 14, 2022
    Copies to:
    Emily A. Weiss, Esq.
    VA General Counsel (027)

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