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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