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.”
