Smith: Board must notify claimant when it reverses its prior favorable credibility determination

Smith v. Wilkie, docket no. 18-1189 (April 27, 2020)

HELD: “[T]he principles of fair process require the Board to provide claimants notice and an opportunity to respond when it purports to reverse prior assertions that evidence is credible or otherwise satisfactory to establish a fact necessary to the claim or when the Board’s order would leave the impression that it had determined that the evidence was credible.”

SUMMARY: Veteran filed a claim for disability benefits for a left shoulder condition, asserting that he injured the shoulder and received treatment for it in service. VA denied service connection and he appealed to the Board. At his hearing, he described the in-service injury and treatment. The Board remanded the claim for a medical opinion, directing the examiner to accept the veteran’s lay statements regarding the in-service injury and ongoing post-service pain as “true” and “credible.”

The VA examiner provided a negative opinion based on the lack of in-service evidence of the injury or treatment, and the RO continued to deny the claim.

The Board remanded the matter again because it was not clear if the examiner “complied with the Board’s instruction to accept as credible Mr. Smith’s lay testimony regarding a left shoulder injury.” The same examiner provided a supplemental opinion, stating that the veteran’s testimony was “deemed credible,” but noting that “there was no objective evidence of residuals within one year after separation.” The

RO again denied the claim based on the lack of evidence linking the shoulder to his service. The RO did not address Mr. Smith’s lay testimony or credibility.  

The Board denied service connection, finding that the veteran’s statements “were not credible” based on the absence of evidence in the SMRs and post-service medical records. The Board stated that even if the alleged injury had occurred, Mr. Smith’s statements regarding “chronic and recurring symptoms during and after service was not credible.”  

On appeal to the Court, the veteran argued that he relied on the Board’s prior favorable credibility determinations “to his detriment” and that by the time he was notified of the Board’s adverse credibility determination, it was too late to respond with additional evidence because the Court cannot consider evidence that was not before the Board. Mr. Smith argued that this violated both fair process and due process. The Court agreed “that the Board violated his right to a fair process,” and so declined to address the Constitutional due process question.  

The Court discussed the “nonadversarial claims system” and the case law establishing “that the principle of fair process applies throughout the process of evidentiary development.” The Court framed the issue in this appeal as “whether fair process requires notice and an opportunity to respond when the Board, in its role as de novo fact finder, purports to reverse its prior characterization, in non-final Board remand decisions, that evidence is credible or otherwise satisfactory…”  

The Court held that “fair process requires that VA not give claimants … the impression that it has made factual determinations upon which they can rely,” adding that “when VA’s actions reasonably—but mistakenly—lead a claimant to conclude that a factual matter has been resolved favorably, the claimant has not properly received notification concerning the information or evidence necessary to substantiate the claim, lacks a meaningful opportunity to respond, and is denied fair process.” Because the Board in this case previously found Mr. Smith’s statements credible, fair process required the Board to give him notice of its proposed adverse credibility determination and to give him an opportunity to respond.

The Court also addressed the adequacy of the VA medical opinions, noting the examiner stated that Mr. Smith’s statements were credible, but added that there was “no evidence of residuals within one year” of his separation from service. The Court stated that “contrary to the Bard’s express instructions, the medical examiner did not consider Mr. Smith’s lay statements as true.” The Court remanded the appeal to allow Mr. Smith an opportunity to respond to the Board’s credibility determination and for the Board to consider the need for a new medical opinion that could possibly inform its “credibility findings.”  

Miller: Appropriate remedy when examiner fails to address lay evidence & Board does not make credibility determination

Miller v. Wilkie, docket no. 18-2796 (January 16, 2020)

HELD: “[W]hen the examiner fails 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 appropriate remedy is for VA to obtain a new examination.”   

SUMMARY: Veteran sought service connection for multiple conditions and submitted statements regarding details about his ongoing symptoms. VA denied his claims and the veteran appealed. He submitted additional statements regarding his symptoms and the Board remanded for another medical opinion. The medical examiner provided negative opinions, but did not acknowledge any of the veteran’s statements. The Board found that VA satisfied its duty to assist because the examinations were adequate and denied the claims. The veteran appealed to the CAVC. 

The issue before the Court was to determine “the proper remedy when a VA medical examiner fails to address the veteran’s reports of his medical history and symptoms and the Board does not address the credibility of those statements or otherwise find the veteran not credible.” The Court first reviewed the law regarding what makes a medical examination adequate, which “includes addressing a veteran’s reports of symptoms and medical history.” In Barr v. Nicholson, 21 Vet.App. 303 (2007), the Court remanded for the Board to make a credibility determination – even though it had found the medical examination that the Board relied on to be inadequate. In McKinney v. McDonald, 28 Vet.App. 15 (2016), the Court remanded for a new medical examination because the examiner did not address the veteran’s testimony – even though the Court also noted that the Board did not made a credibility determination. 

The parties agreed that the Board decision should be remanded – but did not agree about why. The Secretary wanted the decision to be remanded because the Board failed to make a credibility determination and address the veteran’s lay statements. Mr. Miller wanted the Court to reverse the Board’s duty-to-assist determination and order the Board on remand to obtain a new medical examination. The Court noted that the Secretary’s argument for remand was supported by Barr – whereas the veteran’s argument was supported by McKinney. 

The Court distinguished these two cases. The central issue in Barr was whether the veteran was competent to report his claimed condition (varicose veins) – and because the Board found that he was not competent, it did not even reach the credibility issue. In McKinney, the Court stated that “nothing stopped the Board from reaching credibility” – so the Court ordered the Board to obtain a new examination because “[t]here was nothing for the Board to do about the veteran’s reports.” The Court concluded, in McKinney, that “because the examiner did not provide a clear rationale for her opinion or consider relevant evidence in formulating her opinion, the Court holds that the Board erred in relying on that opinion to deny Mr. McKinney’s claim.” 

The Court synthesized these two cases “to say that an examiner must address the veteran’s relevant statements and, if the examiner fails to address the veteran’s reports of his or her medical history and the Board is silent about the credibility of the veteran’s lay statements, the Court will order a new examination absent an indication that the Board did not reach credibility.” In other words, when reviewing a Board decision that relies “on a medical opinion that does not address the veteran’s own report of symptoms,” the Court “will order a new examination if the Board never impugned the veteran’s credibility.” 

The Court agreed with the veteran that “the Board’s credibility determination can benefit from information obtained in a medical opinion,” noting its prior holding that “the Board should consider whether a favorable medical opinion corroborates the veteran’s assertions of an in-service injury.” (citing Washington v. Nicholson, 19 Vet.App. 362, 369 (2005). The Court also discussed Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), in which the Court “suggested questions to the Board that would have led to a medical opinion that could help the Board determine whether the veteran’s reports were plausible.” Although credibility determinations must be made by the Board, the Court recognized “the useful role that a medical examiner can play in helping the Board evaluate the credibility of the veteran’s reports.” The Court thus held: 

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 … we will conclude that the Board found the lay evidence credible and order a new examination that addresses this evidence.  

The Court further determined that “[w]hen 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.” 

The Court 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.” 

Molitor: DUTY TO OBTAIN ANOTHER’S RECORDS TO CORROBORATE ASSAULT; CREDIBILITY; EVIDENCE OF BEHAVIOR CHANGES

Molitor v. Shulkin, docket no. 15-2585 (June 1, 2017)

HELD: "[w]hen a claimant adequately identifies relevant records of fellow servicemembers that may aid in corroborating a claimed personal assault, the duty to assist requires VA to attempt to obtain such records or, at a minimum, to notify the claimant why it will not undertake such efforts.” In addition, the Court held that “a claimant’s credibility does not abrogate or extinguish VA’s duty to assist a claimant in developing her claim” and that “a lack of evidence of behavior changes in service does not constitute negative evidence against a claim for service connection for PTSD based on an in-service personal assault.”

SUMMARY: In 2003, veteran Jaclyn Molitor filed a claim for service connection for PTSD due to military sexual trauma (MST). A 2004 VA examiner diagnosed PTSD due to childhood trauma, and the VA regional office (RO) denied the claim. Ms. Molitor appealed that decision.

Her Vet Center treatment records noted that she was sexually assaulted in service as part of a military police (MP) hazing. She did not report the incident for fear of retribution. Her Vet Center counselor, Cindy Macaulay, wrote a letter stating that Ms. Molitor had repressed memories of the incident and that those memories were coming back with therapy. Ms. Macauley acknowledged the veteran’s other diagnoses, childhood sexual abuse, and post-service events that “complicated the case,” but opined that it was “at least as likely as not” that her PTSD was related to her in-service assaults. Attached to the letter was a sexual trauma markers worksheet that included the approximate date of the assault, location, unit, and names of several witnesses. Ms. Molitor also submitted a statement providing additional details about the assault.

The RO continued to deny the claim in a Statement of the Case (SOC) that Ms. Molitor appealed. In September 2006, she was afforded a Board hearing, during which she testified that she was raped by four or five soldiers during an MP hazing and that she “beat the hell out of the sergeant” in the group.

In July 2007, the Board remanded for additional development. In January 2010, Ms. Macauley submitted another letter in support of the claim. The next month, Ms. Molitor underwent another VA PTSD examination. The examiner questioned her credibility because she denied prior drug and alcohol abuse and mental illness on her service entrance examination report. The examiner noted that there was no evidence of behavior changes in her file and therefore determined that it was less likely that her PTSD was related to service. Later that month, the RO continued to deny the claim in a Supplemental SOC.

In June 2011, the Board remanded again for additional development. In April 2012, the Appeals Management Center determined that Ms. Molitor’s claimed in-service assaults could not be verified.

Her subsequent Vet Center treatment records showed that Ms. Molitor had “cut back on her meds” and was remembering more about the military assaults. Ms. Molitor submitted statements with additional details, including names of the other MPs who raped her, as well as the name of another female MP, Private Lutz, who she believed had also been raped. Ms. Molitor indicated that Private Lutz committed suicide in service. She asked VA to check her file, as well as the files of other women she served with, whom she also identified, for evidence of in-service assault or post-service claims for service connection for PTSD due to MST.

In December 2012, the Board remanded the claim again for another hearing. Ms. Molitor again described the hazing rape and stated that she was subsequently transferred without explanation. Ms. Macauley, her Vet Center therapist, also testified at the hearing, and stated that she believed Ms. Molitor had been raped in service because she consistently reported the details of the assaults. Ms. Macauley explained that the “inconsistencies” perceived by VA were the result of her remembering more details, rather than changing her story.

The Board remanded the case three more times for additional VA medical opinions, including “a medical expert opinion to resolve the conflicting diagnoses.” In January 2015, a VA psychologist diagnosed borderline personality disorder and PTSD due to childhood abuse, and determined that both diagnoses preexisted service. She rejected Ms. Macauley’s diagnosis of PTSD due to MST as “not supported by the record.”

In its May 2015 decision, the Board denied the claim. The Board determined that VA satisfied its duty to assist, but did not discuss Ms. Molitor’s requests to obtain other servicemembers’ records. The Board found Ms. Molitor’s statements not credible because they were “internally inconsistent and contradicted by other evidence of record.” The Board rejected Ms. Macauley’s opinions because they were based on Ms. Molitor’s non-credible statements, and afforded “great probative weight to the negative VA examiners’ opinions.”

On appeal, Ms. Molitor argued that VA did not satisfy its duty to assist because it did not attempt to obtain records from her fellow servicemembers that she had identified, as required by VA’s own G.C. Precedent Opinion 05-14. The Secretary argued that Ms. Molitor had not adequately identified records that could aid in corroborating the claimed assaults, and that VA would not be able to disclose those records without written consent from the servicemembers or a court order. The Secretary further argued that “there is an ‘umbrella of credibility’ that hangs over all of the prongs of the duty to assist” and that the Board’s adverse credibility determination was adequate to explain why no further assistance was provided in this case.

The Court agreed with the veteran. The Court explained that this case involves VA’s “interpretation of intertwining and sometimes conflicting” statutory duties to (1) assist claimants and (2) protect the privacy of all servicemembers. The Court noted that in claims for service connection for PTSD based on personal assault, 38 C.F.R. § 3.304(f)(5) “lowers the evidentiary burden for corroborating the occurrence of an in-service personal assault stressor.” This regulation codified VA’s “existing internal policies that provided for additional development assistance in claims for PTSD based on personal assault.”

Under 38 U.S.C. § 5103A, VA’s duty to assist “includes making reasonable efforts to obtain relevant records from VA or other Federal departments or agencies that have been adequately identified by the claimant.” Once this duty is triggered, VA must make as many requests as necessary unless “it is reasonably certain that such records do not exist” or that “further efforts to obtain those records would be futile” or there is “no reasonable possibility” that any additional assistance would help substantiate the claim. This latter category applies to claims that are “inherently incredible or clearly lack merit.” 38 C.F.R. § 3.159(d)(2).

The Court summarized G.C. Precedent Opinion 05-14 as requiring VA to make reasonable efforts to obtain another individual’s records “if (a) those records were adequately identified, would be relevant to the [v]eteran’s claim, and would aid in substantiating the claim; and (b) VA would be authorized to disclose the relevant portions of such records to the [v]eteran under the Privacy Act and 38 U.S.C. §§ 5701 and 7332.” The latter requirement cites three statutes that limit VA’s disclosure of another individual’s records, but the Precedent Opinion also identified three exceptions in the Privacy Act – (1) written consent from the individual, (2) a court order, or (3) disclosure for “‘routine use’ compatible with the purpose for which the record was collected.”

The Precedent Opinion further concluded that neither the duty to assist (§ 5103A) nor 38 C.F.R. § 3.304(f)(5) “requires VA to solicit written statements from fellow servicemembers” to corroborate a claimed assault. However, the Court noted that it had previously addressed this issue in Forcier v. Nicholson, 19 Vet.App. 414, 422 (2006), which held that VA’s duty to assist may require VA to obtain such written statements if the claimant provides the names of the perpetrator(s) and/or witnesses.

The Court determined that during the course of this appeal Ms. Molitor had adequately identified several individuals whose records could help corroborate her claimed assaults and that these records were relevant to her claim. The Court thus determined that the Board erred by not considering the applicability of G.C. Precedent Opinion 05-14 when it found that VA had satisfied its duty to assist.

With respect to the Secretary’s “umbrella of credibility” argument, the Court held that “a claimant’s credibility does not abrogate or extinguish VA’s duty to assist a claimant in developing her claim because such development may produce evidence that substantiates the claim or otherwise bolsters or rehabilitates a claimant’s credibility.”

The Court thus held that when a claimant for service connection for PTSD based on personal assault “adequately identifies relevant records of fellow servicemembers that may aid in corroborating the claimed assault, G.C. Precedent Opinion 05-14 is applicable to the claim and VA must either attempt to obtain such records or notify the claimant why it will not undertake such efforts.”

The Court further noted that “a lack of evidence of behavior changes in service does not constitute negative evidence against a claim for service connection for PTSD based on an in-service personal assault.” The Court added: “Because behavior changes do not necessarily manifest immediately after a personal assault, it cannot be expected that they would appear in service in every instance of an assault; therefore, a lack of behavior changes in service cannot act as evidence against the occurrence of the assault.” 

FULL DECISION

Southall-Norman: RATING MUSCULOSKELETAL DISABILITIES; 38 C.F.R. § 4.59

Southall-Norman v. McDonald, docket no. 15-1357 (Dec. 15, 2016)

HELD: VA regulations require the award of a minimum compensable disability rating where there is “evidence of an actually painful, unstable, or malaligned joint or periarticular region and the presence of a compensable evaluation in the applicable DC [Diagnostic Code],” regardless of whether that DC is “predicated on range of motion measurements.” 

SUMMARY: Veteran Crystal D. Southall-Norman was granted service connection for bilateral hallux valgus and hemorrhoids, rated 0% for both conditions. She appealed for compensable ratings, and the Board granted 10% for the hemorrhoid condition and remanded the bilateral foot issue for another examination. She appealed the issue of the 10% hemorrhoid rating to the Court, and the parties entered into a Joint Motion for Remand stipulating that the Board failed to consider whether she was entitled to a separate compensable rating based on loss of sphincter control. The JMR directed the Board to address Ms. Southall-Norman’s reports of fecal leakage and consider the credibility and probative value of those reports in light of the fact that the relevant Diagnostic Code (38 C.F.R. § 4.114, DC 7332) does not require that such leakage “be confirmed by objective findings.”

Meanwhile, Ms. Southall-Norman was afforded another C&P examination for her feet. The examiner diagnosed bilateral pes planus and opined that this condition was related to her service-connected bilateral hallux valgus. The RO granted service connection for bilateral pes planus, rated 50% disabling under 38 C.F.R. § 4.71a, DC 5276 (flatfoot, acquired), effective June 2, 2014, the date of the C&P examination.

The appeal returned to the Board, which denied a compensable rating for her foot condition prior to the date of the C&P examination, under either DC 5276 (flatfoot) or 5280 (hallux valgus), because her symptoms were only mild or moderate symptoms during that time. The Board did not mention 38 C.F.R. § 4.59 (“painful motion”) in evaluating her foot condition. The Board also determined that she was not entitled to a separate rating for sphincter impairment because her reports of fecal leakage were “inconsistent” and “contradicted by the medical evidence of record.” The Board found that she “did not always differentiate between fecal leakage and other types of leakage,” and determined that her reports of fecal leakage “were insufficient to demonstrate constant slight or occasional moderate fecal leakage required for a compensable evaluation under DC 7332.”

In this present decision, the Court first addressed the foot condition and the appellant’s argument that the Board failed to discuss 38 C.F.R. § 4.59. The Secretary argued that the Board was not required to discuss § 4.59 because this regulation only applies when evaluating a joint disability under a DC based on range of motion. Because the relevant DCs in this case - DCs 5276 and 5280 - do not mention range of motion, the Secretary asserted that the Board need not discuss § 4.59. In her reply brief, Ms. Southall-Norman argued that the Secretary’s interpretation was inconsistent with the plain language of the regulation, which did not expressly limit itself to conditions based on range of motion. Alternatively, she argued that the Court should not defer to the Secretary’s interpretation because the Secretary had taken contrary positions in other cases.

The Court examined the language of the regulation and held that the “plain language of § 4.59 indicates that the regulation is not limited to the evaluation of musculoskeletal disabilities under DCs predicated on range of motion measurements.” The Court added:

§ 4.59 does not, as the Secretary contends, condition the award of a minimum compensable evaluation for a musculoskeletal disability on the presence of range of motion measurements in that DC; rather, it conditions that award on evidence of an actually painful, unstable, or malaligned joint or periarticular region and the presence of a compensable evaluation in the applicable DC.

The Court further determined that even if § 4.59 was ambiguous, the Court would not defer to the Secretary’s interpretation “because it does not reflect the agency’s considered view on the matter, as he has not consistently adhered to that interpretation.” To support this conclusion, the Court pointed to the Secretary's contrary position taken during oral argument on another case, as well as a number of single judge (i.e., nonprecendential) decisions.

Advocacy Note: The Court’s Rules allow for citation to nonprecedential authority “for the persuasive value of their logic and reasoning” and only if “no clear precedent exists on point and the party includes a discussion of the reasoning as applied to the instant case.” U.S.C.A.V.C. Rule 30(a).

With respect to a separate compensable rating for sphincter control, the Court determined that the Board did not adequately explain its rejection of Ms. Southall-Norman’s lay statements. More specifically, the Court rejected the Board’s credibility determination. The Court identified one of the “putative inconsistencies” noted by the Board and determined that it was consistent with her prior statement. The Court also found that the Board improperly questioned the credibility of Ms. Southall-Norman’s lay statements as inconsistent with a C&P examiner’s finding because the Board failed to acknowledge other evidence that was consistent with her statement. The Court held that “[a]lthough the Board is allowed to find a veteran not credible based on inconsistencies between medical evidence and lay evidence, . .. it must account for the potentially favorable material evidence of record when doing so.” The Court remanded both issues to the Board.

Advocacy Note: Although the primary holding of this case is that § 4.59 must be considered in evaluating all musculoskeletal disabilities – not just those predicated on range of motion – I found the Court’s review of the Board’s credibility determination to be refreshing. Instead of simply deferring to the Board’s “fact finding,” the Court carefully examined the evidence and rejected the Board’s determination that it was inconsistent with the appellant’s statements. The Court's language regarding the Board's duty to "account for potentially favorable material evidence of record" in making a credibility determination will be useful to advocates in cases where the Board appears to cherry-pick and/or mischaracterize the evidence of record.

FULL DECISION