Smith: The Board Can Change Its View on Credibility?

Smith v. Wilkie, Case Number 18-1189, decided April 27, 2020 discusses whether the Board can change its view of the credibility of a veteran’s lay statements.  The Court said yes, but that the veteran has to be given notice and an opportunity to respond.

The veteran’s service records were absent as to any discussion of a shoulder injury, but he recounted an injury and treatment.  During the course of two remands were the Board remanded for a new examination, the Board had instructed the examiner to “[p]lease accept as true and [sic] the Veteran's credible lay statements regarding injuring his left shoulder in service while lowering a hatch, resulting in several weeks in a brace or sling and having intermittent shoulder pain ever since.”  Id. at *3.  The first examiner still said their was a lack of documentation and provided a negative linkage opinion.  This resulted in another remand with similar instructions as to assume credibility and a second opinion that superficially said the in-service injury “was deemed credible,” but then noted no objective evidence of residuals within a year of separation.  The second opinion also opined the shoulder pain was likely radiating pain from a neck injury.  Id. *3.

The Board opinion before the Court on remand determined the veteran’s report of his injury and continuity of symptoms were not credible because the alleged in-service treatment was not recorded in his SMRs or other records.  Id. at *4. 

The dispute involves the credibility instructions to the examiner and the veteran’s characterization of them as favorable findings.  Id. at *4. 

The Court explained:

He asserts that he relied on these favorable findings to his detriment because, believing that the question of his credibility was decided in his favor, he "did not develop evidence or submit argument to rehabilitate his testimony."  Moreover, he observes, "[b]y the time [he] was notified of [] VA's adverse credibility determination, he was foreclosed from responding with additional evidence or argument" because 38 U.S.C. § 7252 prohibits the Court from considering evidence not on the record before the Board.

Id. at *4.  Alternatively, he argued he was denied fair process when the Board failed to provide him notice and opportunity to respond before its change in credibility findings.  Id. at *5.  The Secretary argued the instructions to the examiner were not favorable findings, but instructions for purposes of development.  Id. at *5. 

The Court determined the instructions could have reasonable and fairly be mistaken as a favorable finding:

because the Board's instructions stated that Mr. Smith's statements were credible, as opposed to requesting that the examiners assume credibility for the limited purpose of conducting the examinations and providing medical opinions, Mr. Smith was reasonably—but mistakenly—led to conclude that the Board had resolved the question of

credibility in his favor. To the extent that the Board subsequently, on de novo review of the evidence, as required, found Mr. Smith's statements not credible, fair process required that Mr. Smith be given notice of that proposed factual finding and provided the opportunity to submit evidence concerning his credibility or to support the now-unestablished element of his claim, the alleged in-service injury.

Id. at *8.

The Court also recounted how constitutional requirements of fair process impact veteran’s law.  It specifically states when the Board develops or obtains evidence “fair process requires the Board to ‘provide a claimant with reasonable notice of such evidence and of the reliance proposed to be placed on it, and a reasonable opportunity for the claimant to respond to it.’”  Id. at *6.  The Court then noted that the principle of fair process applies throughout the process of evidentiary development.  Id. at *6.  And,

even in situations where no particular procedural process is required by statute or regulation, the principle of fair process may nonetheless require additional process if it is implicitly required when "'viewed against [the] underlying concepts of procedural regularity and basic fair play'" of the VA benefits adjudicatory system.

Id. at *6.

The Court broad reading of the Board’s review suggests the Board’s review is always de novo.  This is problematic and potentially incorrect.  However, the further development of the law around the issue of ensuring a fair process in the development of evidence, which requires notice and an opportunity to respond is helpful.

The Court also discussed the adequacy of the examination.  The examiner specifically stated her opinion was based on objective evidence and did not address the veteran’s lay statements.  The examiner also wrote that the lay statements of chronic residuals were credible, but then said there were no chronic residuals within one year of separation (completely opposed to the lay statements).  The Court noted the examiner did not consider the lay statements as true despite instructions from the Board.  The Court then referenced its January 2020 decision in Miller v. Wilkie noting the requirement that an examiner address the veteran’s lay statements.

Decision by Judge Bartley and joined in by Judges Allen and Falvey.

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George: CUE and 3.156(c)

George v. Wilkie, Case Number 16-1221, decided March 26, 2020 discusses the intersection of a CUE claim and Section 3.156(c)(newly discovered service records). 

Due to the high procedural barrier created by CUE, the Court affirmed the Board’s denial of an earlier effective date. 

The story of this claim is familiar to advocates in this field.  A veteran seeks service connected for PTSD but is denied for lack of a stressor.  The veteran reapplies and they ultimately find proof of the stressor in military records, here in research by the Joint Service Records Research Center, and grant PTSD with the second or third application date as the effective date.

However, 38 C.F.R. Section 3.156(c) seems to apply and requires:

at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section.

Id. at *6.

Here, the veteran argued

the Board did not "reconsider" his PTSD claim with the new service department records under § 3.156(c)(1), but, instead, only reviewed the proper effective date under subsection (c)(3).  According to appellant, the "finality of the VA's original [(1997)] denial has been undone" by the receipt of new service treatment records, and, because the RO never engaged in a full readjudication of the matter, the Board erred when it found no CUE.  He further contends that VA's action, which he referred to at oral argument as a "partial readjudication" on the issue of effective date only, did not put him in the position he would have been in had the relevant service department records been considered part of his original (1997) claim.  Specifically, he suggests that a full readjudication would have triggered the duty to assist, requiring VA to develop his claims based on his lay testimony of certain in-service symptoms and to decide whether these symptoms showed a manifestation of PTSD before 2003.

Id. at *7.

The Court found the Board’s finding of no CUE in the 2014 Board decision concerning lay statements was not arbitrary, capricious, an abuse or discretion or otherwise not in accordance with the law.  Id. at *10.  The Court noted a duty to assist error cannot be CUE and noted the VA did seek a retrospective VA opinion that said the PTSD did not develop until later.  Id. at *10-11.  “In sum, the Court concludes that appellant has not carried his burden of demonstrating that the 2015 Board's denial of his motion to revise the 2014 Board decision on this basis of CUE as it concerns assessing his lay statements was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”  Id. at *11. 

The Court then assessed a broader argument about Section 3.156(c) and stated:

One can view this argument two ways, and this seemingly abstract issue turns out to have significant jurisdictional implications.  First, it is possible to read appellant's argument about § 3.156(c) and reconsideration generally as focused on the 2015 Board decision.  In this view, appellant essentially argues that the 2015 Board misunderstood how § 3.156(c) operates and, therefore, he calls into question the 2015 Board's assessment of whether the 2014 Board decision contained CUE.  Second, one can view appellant's argument as alleging that the 2014 Board decision contained CUE because it misapplied § 3.156(c) in terms of what type of reconsideration was necessary.  As we explain, we lack jurisdiction over this second argument.  However, we possess jurisdiction to consider the first version of appellant's argument, but we reject it on the merits.

Id. at *11.

First, as to reconsideration:  the Court notes based on Vigil v. Peake “we know

without question that § 3.156(c) speaks to more than effective date; it also speaks to development of the claim in at least some respect.” It then held:

We hold that the Board in its 2015 decision applied the correct legal principles under § 3.156(c) when it reviewed the 2014 decision concerning the three specific allegations of CUE appellant advanced in his August 2015 motion to revise the 2014 Board decision. The 2015 Board specifically explained that, given the receipt of service department records not previously associated with the claim, § 3.156(c) was applicable and reconsideration needed.  And the 2015 Board noted that the earliest entitlement to benefits would be based on the original 1997 claim.  Appellant argues that, when discussing an effective date, the Board skipped past § 3.156(c)(1), which demands reconsideration of the original claim, and went straight to § 3.156(c)(3), which deals with the effective date of a claim granted via reconsideration.  If the Board had acted as appellant suggests, it did not understand the relevant legal framework, which could cast doubt on its assessment of the specific CUE allegations before it.  However, it is clear that the 2015 Board did not fall victim to this mistake.  The 2015 Board addressed at length the various steps taken after VA received the service department records, namely obtaining a retrospective medical examination in April 2013 and considering other evidence such as Social Security Administration records and lay statements.  This type of discussion makes sense only in the context of reconsidering a claim, suggesting that the Board understood how § 3.156(c) operates.

Similarly, after acknowledging that § 3.156(c) applied, the 2015 Board explicitly stated that "it was necessary for the Board [in 2014] to determine when [appellant's] entitlement to service connection for PTSD arose."….  Therefore, the evidence, taken as a whole, shows that when assessing the 2014 decision, the 2015 Board properly understood and considered the provisions of § 3.156(c).

Id. at *13-14.

The Court also noted the veteran’s brief also seemed to argue the earlier Board decision contained CUE because it misapplied Section 3.156(c) and did not properly reconsider the claim.  The Court rejected this argument as it had not been raised by the Appellant before the Board. 

Judge Greenberg dissented arguing equity compelled a different result, “I believe that the examiner's opinion would have been different if he had reviewed the records that eventually led to the grant of service connection. The complicated procedural requirements to disturb the finality of VA decisions has gotten in the way

of compensating this worthy veteran.”  Id. at *15.

This is an interesting decision that shows the procedural difficulty in bringing a CUE claim, especially as it intersects with Section 3.156(c) and reveals how difficult such a claim is to win.  It should be pointed out this decision has been appealed to the Federal Circuit, so we shall see the result.

Decision by Judge Allen and joined in by Judge Schoelen.  Dissent by Judge Greenberg.

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Webb: Lack of a Clear Mental Health Diagnosis, Saunders and Walsh further considered.

Webb v. Wilkie, Case Number 18-0966, decided March 26, 2020 discusses an unusual situation where a veteran clearly has some type of mental health disability, but does not have a clear diagnosis.  The Court ultimately remanded without addressing the central question. 

This VA conceded a combat-related stressor but denied PTSD due to a lack of a current diagnosis.  The Board had previously remanded noting an examiner had found chronic symptoms and avoidance of activities.  A new examiner noted an unspecified cannabis related disorder.  The veteran argued a cannabis-related disorder is a common symptom of PTSD.  Another VA examiner then explained the veteran did not re-experiencing symptoms as required for a diagnosis of PTSD.  The Board denied the claim. 

The veteran principally argued “his symptoms caused functional impairment and, therefore, pursuant to Saunders, constitute a "current disability" for purposes of establishing entitlement to disability compensation.”  Id. at *4-5.

The Court recognized the Clemons and Saunders arguments, but focused instead on the adequacy of the underlying VA examinations.  It noted:

The Court cannot address whether the Board erred by relying on the 2014 and 2016 VA

examinations because the Board did not make any explicit findings regarding the adequacy of those examinations or explain which examinations it relied on to deny the appellant's claim and, to the extent that it implicitly found either or both examinations adequate, its reasons are not readily apparent.

***

For example, resolving these issues would require the Court to surmise which examination reports the Board implicitly considered adequate and probative and then, in the first instance, potentially review both medical examination reports to determine (1) whether, as argued by the appellant, they contain inconsistent findings regarding the presence of symptoms to satisfy the diagnostic criteria for PTSD or whether, as argued by the Secretary, the examination reports are adequate when read as a whole; and (2) whether the 2016 examiner provided an adequate rationale for finding no psychiatric diagnosis despite test results that showed the presence of the following symptoms: "anxious arousal, anxiety, depression, anger, intrusive experiences, defensive avoidance, dissociation, sexual disturbance[,] and tension reduction behavior."

Id. at *7.

As a result of the determination that a new medical may need to be ordered on remand, “the Court notes that the question of whether a claimant may establish entitlement to disability compensation for a psychiatric disability based on symptoms and functional impairment absent a DSM diagnosis may become a moot issue.”  Id. at *8. 

Interestingly, Judge Falvey wrote an opinion concurring and dissenting in part.  He stated

“I do not agree that a remand of the PTSD claim could moot the question of whether

service connection may be granted absent a DSM diagnosis.”  Id. at *10.  He then notes:

Mr. Webb doesn’t just want compensation for PTSD or a different condition found in the

DSM. Instead, he argues that VA must compensate him for any symptom even without a diagnosis.  Even if Mr. Webb is eventually awarded service connection for a psychiatric disability diagnosed under the DSM, his dispute, and the implications of having his question about non-DSM eligibility go undecided, will not be resolved. At their core, the two are different issues.

Id. at *10.  Judge Falvey does finally state how he would come down on this issue, but does suggest his potential future reasoning by framing the issue as jurisdictional and saying: 

If the rating schedule defines psychiatric disabilities based on the DSM, that definition may be beyond our jurisdiction.  "Congress precluded [this] Court from 'review[ing] the schedule of ratings for disabilities adopted under section 1155 . . . or any action of the Secretary in adopting or revising that schedule.'

Id. at *10.

This is an interesting decision as it aligns with the obesity decision in Walsh to capitalize on the Saunders decision and attack the VA’s focus on a diagnosed condition.

Decision by Judge Meredith and joined in by Judge Toth.  Dissent and concurrence by Judge Falvey.

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