Romanowsky: Adjustment disorder and Examination Inadequacy

Steven M. Romanowsky v. Eric K. Shinseki, Opinion Number 11-3272, decided May 9, 2103, concerns a Board decision where the Board relied on a C&P examination report whose findings were diametrically opposed to a service examination conducted just 6 months prior.

After 10 years in the service, the veteran was diagnosed with an adjustment disorder by an examination and assessment in May 2008.  The veteran was administratively discharged in October 2008 because of the adjustment disorder.  The veteran filed for veteran benefits based on the adjustment disorder in November 2008, and received a VA examination on December 2008.  The VA examiner noted the previous diagnosis of adjustment disorder but did not himself diagnose the veteran with adjustment disorder.

The veteran was denied service connection in January 2009 by RO and by the Board in July 2011.  The basis for the decision was that the veteran did not have a current disability for service connection purposes.

The Court remanded.  They found the veteran’s prior diagnosis on May 2008 could prove the current disability element.  They also took the December 2008 examination to task, saying it was inadequate because the examiner did not explain if the May 2008 diagnosis of adjustment disorder was incorrect or if it had resolved.  He also did not state whether the diagnosis was chronic or acute, which is important for rating purposes. 

The Court seemed to consider reversing and granting service connection themselves and in fact noted the clearly erroneous standard is less deferential than the substantial evidence standard applied to non-VA administrative reviews.  However, the Court ultimately reversed and remanded but seemed to speak strongly to the VA by saying the “Court expects the Board to resolve the appellant’s claim of service connection expeditiously and accurately once remanded.”

The decision is one of the first authored by the new Judge William Geenberg and based on some of the rhetoric seems to suggest he might be surprised by the VA’s errors in the adjudicatory process and open to reversing and granting service connection rather than sending a case back into the seemingly endless game of pinball that is sometimes the VA decision making process.

Decided by Judges Moorman, Schoelen, and Greenberg.