Veteranclaims’s Blog

October 14, 2021

Single Judge Application; McKinney v. McDonald, 28 Vet.App. 15, 30-31 (2016) (citing cases finding medical examinations that ignore lay evidence to be inadequate);

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 19-5098
FREDERICK D. BROUCHET, 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: Self-represented veteran Frederick D. Brouchet appeals a
July 18, 2019, Board of Veterans’ Appeals (Board) decision that denied service connection for a
low back disability. Record (R.) at 7-12. For the reasons that follow, the Court will set aside the
July 2019 Board decision and remand the matter for further development and readjudication
consistent with this decision.
I. FACTS
Mr. Brouchet served honorably in the U.S. Army from May 1978 to May 1981. R. at 637.
During service, he earned, among other commendations, the parachute badge. Id.
In April 1979, Mr. Brouchet sought treatment for low back pain, stating that he injured his
back the previous night while parachuting. R. at 850. The service clinician noted left-sided spasm
of the paraspinal musculature and diagnosed a lumbosacral strain. Id. About a week later, Mr.
Brouchet again sought treatment for continued low back pain and was again diagnosed with a low
back strain. R. at 848, 853.
On January 4, 1980, Mr. Brouchet sought treatment for recurrent low back pain “after [an]
old jump inj[ury].” R. at 851. The clinician noted tenderness to palpation along the left thoracic
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paraspinal musculature, but that Mr. Brouchet demonstrated full range of motion. Id. The clinician
diagnosed recurrent back pain due to poor posture, but noted that Mr. Brouchet presented with an
inappropriate (dull) affect. Id. Mr. Brouchet again sought treatment on January 10, R. at 845,
January 21, R. at 851, 854, January 22, R. at 846, and January 28, R. at 843, after which he was
referred for a mental health examination for consideration of a possible psychosomatic diagnosis,
see R. at 837, 846. In February 1980, he was diagnosed with a stress disorder with a
psychophysiologic reaction to stress. R. at 837. Mr. Brouchet sought additional treatment for low
back pain later in February, R. at 840, March, R. at 840-41, and July 1980, R. at 839. The March
1981 service separation examination report reflected that Mr. Brouchet reported that he “hurt [his]
back on a jump.” R. at 825-26.
In September 2007, Mr. Brouchet filed, among other things, a claim for service connection
for a back injury. R. at 995-1008. Following a January 2008 VA examination, a VA regional office
(RO) denied the claim in February 2008, R. at 925-29. In April 2008, Mr. Brouchet filed a Notice
of Disagreement (NOD). R. at 914. In August 2009, the RO issued a Statement of the Case (SOC),
R. at 886-909; however, Mr. Brouchet did not timely perfect an appeal to the Board.
In November 2011, Mr. Brouchet sought to reopen the service-connection claim. R. at 808-9. Following a March 2012 VA examination, R. at 771-90, the RO confirmed and continued its
previous denial in August 2012, R. at 711-16. In April 2013, Mr. Brouchet filed an NOD, R. at
687, and, following a May 2014 SOC, R. at 651-65, he timely perfected an appeal to the Board,
R. at 648.
During an August 2017 Board hearing, Mr. Brouchet testified that he injured his back while
parachuting during service. R. at 593. He stated that he has had back problems since service and,
although he did not seek medical treatment at a VA hospital until 2001, he self-medicated with
over-the-counter medications before that time. R. at 593-601. He further stated that, although he
was injured during a bus accident in 2005, that injury aggravated the injury sustained from
parachuting. R. at 596-98.
In February 2017, the Board reopened the previously denied service-connection claim, but
remanded the underlying claim for additional development. R. at 578-85. Specifically, the Board
requested that the RO obtain complete VA treatment records and then afford Mr. Brouchet a new
VA examination. R. at 583-84. In November 2018, RO personnel completed a deferred rating
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decision, indicating that all VA treatment records from March 2001 to the present had been
uploaded to the veteran’s electronic claims file. R. at 232.
During a March 2019 VA examination, Mr. Brouchet ascribed his back condition to over
20 parachute jumps performed during service. R. at 96. He also stated that the bus accident
“triggered an old injury” and now he experiences constant pain. Id. The examiner, however,
disclaimed a link between the veteran’s back condition—diagnosed as degenerative arthritis and a
lumbosacral strain—and his military service, stating that Mr. Brouchet’s “complaints are not
consistent” with VA medical records, which show no post-service treatment for a back condition
until 2005. R. at 104. Accordingly, the examiner stated that “[d]ue to a lack of available records
. . . , a nexus of chronic back pain since service cannot be rendered without resorting to mere
speculation.” Id.
In the July 2019 decision on appeal, the Board denied service connection for a low back
disability. In reaching its conclusion, the Board relied on the March 2019 VA examiner’s negative
linkage opinion. R. at 10-11. The Board rejected Mr. Brouchet’s statements addressing a link to
service, stating that, although he was competent to report having symptoms of back pain since
service, he was not competent to link those complaints to his current diagnosis. R. at 11. This
appeal followed.
II. JURISDICTION AND STANDARD OF REVIEW
Mr. Brouchet’s appeal is timely and the Court has jurisdiction to review the July 2019
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
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)).
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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). In addition, in rendering its decision,
the Board must consider all relevant provisions of law and regulation. See Schafrath v. Derwinski,
1 Vet.App. 589, 593 (1991); see also Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001).
III. ANALYSIS
Under a liberal construction of his brief, see De Perez v. Derwinski, 2 Vet.App. 85, 86
(1992), Mr. Brouchet argues that the Board failed to support its decision denying service
connection with adequate reasons or bases. He argues that the Board failed to appreciate that his
service medical records demonstrate chronicity of his back condition and failed to consider lay
statements of record indicating that he experienced back pain since service. Appellant’s Informal
Brief (Br.) at 3-7. The Secretary concedes that the Board did not support its decision with adequate
reasons or bases and urges the Court to remand the case for readjudication.
The Court concludes that the Board did not support its decision with adequate reasons or
bases. First, the Board failed to reconcile the lay statements of record with the March 2019 VA
examiner’s opinion in determining that the opinion was adequate. Although the examiner elicited
statements from the veteran regarding the history and course of his back condition, R. at 96, she
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found those complaints “inconsistent” with VA medical records that did not reflect treatment for
back complaints between the veteran’s service discharge in 1981 and 2005, R. at 104 (also noting
the March 2012 VA examiner’s discussion of the veteran’s magnification of his symptoms “to
impress on him how severe his back pain was”). In the decision on appeal, the Board found Mr.
Brouchet competent to report having experienced back pain since service. R. at 11. But it did not
find the veteran’s statements not credible.
It is the Board’s responsibility, not the examiner’s, to assess the credibility of lay statements.
Miller v. Wilkie, 32 Vet.App. 249, 259 (2020) (“[I]t is the Board that must make a credibility
determination, something it may not outsource to a medical examiner.”); see Delrio v. Wilkie,
32 Vet.App. 232, 242 (2019) (“It is the responsibility of VA adjudicators, not medical examiners,
to make the findings of fact and law necessary to decide a claimant’s entitlement to disability
benefits.”). This is not to say that examiners play no role in credibility determinations. In fact,
examiners can be useful in better informing the Board of the medical feasibility of the veteran’s
lay statements. Miller, 32 Vet.App. at 259-60. But even still, the examiner does not supplant the
Board as factfinder.
Yet here, the Board remained silent as to the veteran’s credibility. See id. at 260 (explaining
that “if credibility of some evidence was a relevant issue for the Board, we would expect some
discussion on the matter”). As such, we may reasonably conclude that the Board implicitly found
the veteran’s lay statements credible. Id. at 260-61.
When the Board has made its decision without finding that the veteran is not
competent to report symptoms and nothing suggests that the Board failed to review
the evidence at issue, we may reasonably conclude that it implicitly found the
veteran credible. This is particularly true when . . . the Board acknowledges the lay
evidence and finds the veteran competent to offer that evidence. At that point, we
must surely expect the Board to say something if it sees something wrong with the
veteran’s credibility.
Id. at 261.
Although the Board found Mr. Brouchet competent to report symptoms of back pain since
service and implicitly found those statements credible, R. at 11, it did not reconcile the March
2019 VA examiner’s opinion with the veteran’s lay statements, including those made during the
August 2017 Board hearing that he did not seek medical treatment for his back condition prior to
2001 but instead self-treated prior to that time with over-the-counter medications, see R. at 593.
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And the Board did not explain why it considered the March 2019 opinion adequate despite the
examiner essentially rejecting the import of the veteran’s lay statements as evidence. The lack of
reasons or bases notwithstanding, the proper remedy here is for VA to obtain a new examination
with specific instructions directing the examiner to consider the veteran’s lay statements that the
Board has expressly found competent and implicitly found credible. See Miller, 32 Vet.App. at
262 (remarking that “it would be confusing for the Board to go over the exact same record yet,
suddenly, with no new evidence, divine a reason to question the veteran’s credibility” and,
therefore, held that “where the examiner failed to address the veteran’s lay evidence and the Board
fails to find the veteran not credible or not competent to offer that lay evidence, the proper remedy
is for VA to obtain a new examination”); McKinney v. McDonald, 28 Vet.App. 15, 30-31 (2016) (citing cases finding medical examinations that ignore lay evidence to be inadequate).
Second, the Board failed to consider whether Mr. Brouchet may establish service
connection by showing continuity of symptoms since service. See 38 C.F.R. §§ 3.303(b) (2021),
3.309(a) (2021). For chronic diseases listed in § 3.309(a)—including arthritis—service connection
may be established by showing continuity of symptoms, which requires a claimant to demonstrate
(1) that a condition was “noted” during service; (2) evidence of post-service continuity of
symptoms; and (3) medical or, in certain circumstances, lay evidence of a link between the present
disability and the continuity of symptoms. 38 C.F.R. §§ 3.303(b), 3.309(a); see Walker v. Shinseki,
708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only those chronic diseases listed in § 3.309
are subject to service connection by continuity of symptoms described in § 3.303(b)); Savage v.
Gober, 10 Vet.App. 488, 496 (1997) (noting that “symptoms, not treatment, are the essence of any
evidence of continuity of symptom[s]”).
As the Secretary notes, Secretary’s Br. at 10, Mr. Brouchet has a current disability that VA
considers to be a chronic disease under § 3.309(a) and has presented evidence that collectively
recount that he has experienced back pain during service and continuously since service, including
prior to the 2005 bus accident. However, the Board erred by failing to consider the veteran’s claim
under the provisions applicable to chronic diseases and whether such evidence was sufficient to
warrant presumptive service connection. See Schafrath, 1 Vet.App. at 593. As the sufficiency of
lay evidence in a particular case is a factual issue that must be resolved by the Board, Jandreau v.
Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), the claim must be remanded for readjudication.
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Although Mr. Brouchet seeks reversal of the Board decision, see Appellant’s Brief at 22;
see also id. at 16-17 (arguing that certain medical evidence is dispositive), remand is appropriate
here because the Board has failed to appropriately consider the lay statements of record and
additional development and factfinding is needed to decide the claim, see Deloach v. Shinseki,
704 F.3d 1370, 1380 (Fed. Cir. 2013) (explaining that reversal is only appropriate where the Board
has performed the necessary factfinding and explicitly weighed the evidence and the Court is left
with the definite and firm conviction that a mistake has been committed); Patricio v. Shulkin,
29 Vet.App. 38, 46 (2017) (“This Court may not reverse a Board decision and order the award of
benefits when there are outstanding material factual matters requiring Board resolution.”).
Therefore, the Court concludes that the March 2019 VA opinion is inadequate to adjudicate
the claim and that the Board decision denying service connection for a low back disability is not
supported by adequate reasons or bases. See D’Aries, 22 Vet.App. at 104; Allday, 7 Vet.App. at
527; Caluza, 7 Vet.App. at 506. Therefore, remand of the claim is warranted. See Barr,
21 Vet.App. at 311; see also Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that remand is
the appropriate remedy “where the Board has incorrectly applied the law, failed to provide an
adequate statement of reasons or bases for its determinations, or where the record is otherwise
inadequate”).
On remand, Mr. Brouchet is free to submit additional arguments and evidence, including
the arguments raised in his brief to this Court, and the Board must consider any such evidence or
argument submitted. 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.
B. Destruction of VA Treatment Records
In his brief, Mr. Brouchet argues that VA treatment records between 2001 and 2004 have
been destroyed. Principally, he relies on 2004 and 2005 medical records as clear evidence that VA
treatment records prior to that date existed but have been destroyed. Appellant’s Br. at 7-8 (citing
R. at 555, 943-44), 16-17 (citing same). To the extent that this argument relates to readjudication
of the claim that will occur below, the Court finds this argument unpersuasive.
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Mr. Brouchet argues that a January 2004 VA x-ray report reflecting notation of a
“degenerative spine” is clear evidence that additional medical records exist because “VA doctors
do not run an X-ray on a particular body part unless there is a complaint about that body part.”
Appellant’s Br. at 8 & 16 (“The X-ray alone proves Dr. Willis was treating me for my back
condition between 2001 and Jan 22, 2004, yet there are no such treatment records.”). Although
Mr. Brouchet is correct that the January 2004 x-ray report notes a “[d]egenerative spine,” the report
is following a chest x-ray and notes that the x-ray was ordered because Mr. Brouchet reported
mold in his apartment and a prior exposure to asbestos. R. at 555; see R. at 502-03 (January 2004
VA treatment record from Dr. Willis ordering the x-ray and reflecting that the veteran wanted a
chest x-ray for past asbestos exposure and mold in his apartment).
Mr. Brouchet additionally argues that a July 2005 VA treatment record noting a history of
back pain is clear evidence that additional medical records exist because “[i]t is impossible for Dr.
Balagot to see me one month after the bus accident and make the statement ‘a history of back pain’
without medical records to prove this fact.” Appellant’s Br. at 16 (citing R. at 943-44); see id. at
10-11. However, Mr. Brouchet misreads the treatment record as Dr. Balagot was not noting a
separate history of back pain but was describing the history of the current episode of back pain.
See R. at 944 (describing “history of back pain” and “history of [motor vehicle accident]”); see
also R. at 943 (describing course of back pain since the bus accident).
Relatedly, Mr. Brouchet urges the Court, in addition to granting service connection, to
award monetary and punitive awards for the destruction of medical records and to order a criminal
investigation by the U.S. Attorney General and the Inspector General. Appellant’s Br. at 23 (citing
18 U.S.C. § 1519 and 42 U.S.C. § 1983). However, such arguments go beyond the purview of this
appeal. See, e.g., Mason v. Brown, 8 Vet.App. 44, 59 (1995).
IV. CONCLUSION
Upon consideration of the foregoing, the July 18, 2019, Board decision is SET ASIDE and
the matter is REMANDED for further development and readjudication consistent with this
decision.
DATED: September 27, 2021
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Copies to:
Frederick D. Brouchet
VA General Counsel (027)

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