Miller: Remand for New Medical Examination When Lay Evidence Not Discussed

Miller v. Wilkie, Case Number 18-2796, decided January 16, 2020 discusses what happens when a medical examiner does not discuss lay evidence and the Board does not address the credibility of the lay evidence.  The Court was asked whether the remedy was remand for credibility determination by the Board or remand for a new medical examination.  The Court determined a new medical examination was the proper remand. 

This case really was a battle over the proper remedy on remand and an attempt to clarify prior decisions in McKinney v. McDonald, 28 Vet. App. 15 (2016) and Barr v. Nicholson, 21 Vet. App. 303 (2007).  The Secretary argued for a credibility determination by the Board whereas the veteran argued for a new examination. 

The Court noted

There is no question that adequately informing the Board of the veteran's disability while considering prior medical history requires addressing the veteran's lay reports of

symptomatology.39 Thus, a "VA examiner's failure to consider [the veteran's] testimony when formulating her opinion renders that opinion inadequate."  This is something that both Barr and McKinney agree on—an examination is inadequate if the medical professional fails to consider the veteran's own lay reports of symptoms.

Id. at *8.

The Court noted “it is the Board that must make a credibility determination, something it may not outsource to a medical examiner, we have held that the Board should consider whether a favorable medical opinion corroborates the veteran's assertions of an in-service injury.”  Id. at *10.  The Court explained:

The examiner can better inform the Board's understanding of the medical feasibility of the veteran's lay statements. If an examiner explains that the veteran's assertions are generally inconsistent with medical knowledge or implausible, the Board can weigh that when addressing the veteran's credibility. Or an examiner may explain that the veteran's reports about symptoms or an in-service injury align with how the disease or disability

is known to develop. Any way you look at it, the Board may benefit from this information in makings its credibility determinations. Thus, the examiner's obligation to address lay evidence cannot depend on a future finding of credibility. The examiner must address the veteran's lay statements to provide the Board with an adequate medical opinion. And absent an indication that the Board found that lay evidence not credible, or had a reason not to address its credibility—such as in Barr where it found the veteran not competent to report the symptoms—we will conclude that the Board found the lay evidence credible and order a new examination that addresses this evidence.

Id. at *11-12

In reaching its conclusion, the Court noted it is not engaging in impermissible fact finding, but simply reviewing implicit factual determinations.  Id. at *12.  It explained the Board is considered to have reviewed all evidence (in this case the lay evidence) and since it did not discuss a problem with credibility, the veteran’s lay statements were considered credible.  The Court explained:

Put another way, when the record includes the veteran's lay reports, which the Board did not find to be not credible, we may ordinarily conclude that it made an implicit credibility

determination. If something as fundamental as the veteran's credibility were an issue, we would expect the Board to say something. And because a determination about credibility is a finding of fact, we should treat it like other findings of fact.

Id. at *13.

Decision by Judge Falvey and joined in by Judges Greenberg and Toth.

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