Deloach v. Shinseki

• Decision Date: 30 January 2013
• Docket Number: Nos. 2011–7147,2011–7166.,s. 2011–7147
• Citation: 704 F.3d 1370
• Parties: Ronald G. DELOACH, Claimant–Appellant, v. Eric K. SHINSEKI, Secretary of Veterans Affairs, Respondent–Appellee. William H. Greene, Claimant–Appellant, v. Eric K. Shinseki, Secretary of Veterans Affairs, Respondent–Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

704 F.3d 1370

Ronald G. DELOACH, Claimant–Appellant,

v.Eric K. SHINSEKI, Secretary of Veterans Affairs, Respondent–Appellee.

William H. Greene, Claimant–Appellant,

v.Eric K. Shinseki, Secretary of Veterans Affairs, Respondent–Appellee.

Nos. 2011–7147, 2011–7166.

United States Court of Appeals,Federal Circuit.

Jan. 30, 2013.

Igor V. Timofeyev, Paul Hastings LLP, of Washington, DC, argued for claimant-appellants in both appeals. With him on the briefs was Stephen B. Kinnaird. Of counsel on the brief were Barton F. Stichman; and Louis J. George, National Veterans Legal Services Program, of Washington, DC.

Martin F. Hockey, Jr., Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for the respondent-appellee in both appeals. With him on the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, and Meredyth Cohen Havasy, Trial Attorney. Of counsel on the brief were David J. Barrans, Deputy Assistant General Counsel, and Jonathan Taylor, Attorney, United States Department of Veterans Affairs, of Washington, DC in appeal no. 2011–7147.

J. William Koegel, Jr., Steptoe & Johnson, LLP, of Washington, DC, for amici curiae in both appeals, Military Order of the Purple Heart, et al.

Before NEWMAN, PROST, and REYNA, Circuit Judges.

REYNA, Circuit Judge.

In these consolidated appeals, the veterans claim that their current disabilities are connected to injuries sustained during their military service. In both cases, the veterans' medical records contained at least one physician's report opining that the claimed disabilities were service-connected and at least one ambiguous or inconclusive report declining to confirm such a nexus. The Department of Veterans Affairs (“VA”) relied upon these latter medical opinions in denying the veterans entitlement to service-connected disability benefits, and the Board of Veterans' Appeals (“Board”) affirmed. Finding that the medical examination did not comply with the Board's instructions and that the Board failed to explain its reasons and bases for denying service connection, the U.S. Court of Appeals for Veterans Claims remanded. Deloach v. Shinseki, No. 08–2532, 2011 WL 917150, at *1, 2011 U.S.App. Vet. Claims LEXIS 512, at *1 (Vet.App. March 4, 2011); Greene v. Shinseki, No. 09–3013, 2011 WL 1557760, at *1, 2011 U.S.App. Vet. Claims LEXIS 873, at *1 (Vet.App. April 26, 2011). Specifically, the Court of Appeals for Veterans Claims held that remand, rather than reversal, was the appropriate remedy where the Board's decision lacks an adequate statement for its bases, or where the evidence of the record is inadequate.

For the reasons outlined below, we agree the remand was appropriate and affirm.

I. Background

A. Ronald G. Deloach

Ronald G. Deloach served as a Neuropsychiatric Specialist in the Army from 1969 to 1971. He was tasked with restraining, treating, and counseling fellow soldiers returning from the combat zone. In 1974, Mr. Deloach was hospitalized and diagnosed with catatonic schizophrenia. In connection with several additional hospitalizations between 1974 and 1978, he was diagnosed with schizophrenic reaction of chronic, paranoid type as well as anxiety and depression.

Mr. Deloach filed a disability claim for service connection with respect to schizophrenia, depression, and PTSD in December 2001. In June 2002, the Veterans Affairs Regional Office (“VARO”) found nothing linking a mental condition to military service and, therefore, denied Mr. Deloach entitlement to service connection.

In November 2002, Mr. Deloach timely filed a Notice of Disagreement with the VARO's denial and requested that the VA review his claim. The VA issued a Statement of the Case in December 2002, which reaffirmed the denial. Mr. Deloach appealed to the Board.

In its review, the Board considered medical records from Mr. Deloach's private treating physician, Dr. Linda Jenness–McClellan. In a January 2004 letter, Dr. Jenness–McClellan concluded that Mr. Deloach had significant depression and symptoms characteristic of PTSD and that “[Mr. Deloach's] presentation and report strongly indicates that his initial schizophrenic break resulted from stress encountered as a psychiatric technician caring for maimed psychiatric veteran returnees from Vietnam.” Deloach Joint App'x at 946.

In September 2004, the Board remanded the case to the VARO with instructions that Mr. Deloach undergo further psychiatric evaluation by a VA physician for a diagnosis of all his psychiatric disabilities. Additionally, the Board requested that the examination report include an opinion on the etiology of each disability diagnosis.

In April 2005, the VA again issued a Statement of the Case denying Mr. Deloach entitlement to service connection. The VA considered new evidence provided by the VA examiner Dr. Lanette Atkins. The VA noted Dr. Atkins' diagnosis of chronic schizophrenia and that her findings of evidence of psychosis as early as 1974 were consistent with Dr. Jenness–McClellan's opinion. Finding that evidence demonstrated development of a mental disorder more than one year after Mr. Deloach's discharge from active duty in 1971, Dr. Atkins could not confirm a service connection without speculating.

Mr. Deloach again appealed the VA's decision to the Board. In April 2006, the Board declined to make a service connection decision based on the evidence of record and remanded to the VARO for further development. The Board explained that the VA examiner failed to comply with remand instructions to provide an opinion on the etiology of Mr. Deloach's disability diagnosis. Furthermore, the Board found no discussion in the examiner's report as to whether Mr. Deloach satisfied the criteria for a PTSD diagnosis.

In May 2007, in accordance with the Board's remand instructions, the VA provided another evaluation of Mr. Deloach's mental condition. Another VA examiner, Dr. Monica Wright, offered a primary diagnosis of psychosis, but found that Mr. Deloach did not meet the criteria for symptoms of PTSD. In September 2007, the VA issued a Deferred Rating Decision notifying Dr. Wright that her examination failed to discuss the etiology of Mr. Deloach's diagnosis and did not comply with the Board's instructions. Dr. Wright submitted a follow-up report addressing the question of etiology in November 2007. Her report indicated that the history of Mr. Deloach's illness during his military service is unclear due to a scarcity of available service medical records. Dr. Wright concluded that:

There is not presently a way to address the etiology of [Mr. Deloach's] disorder. According to the sixth edition of Kaplan and Sadock's Synopsis of Psychiatry post–1991, there is a direct quote that says, “The cause or etiology of schizophrenia is not known.” Therefore, I cannot address it, and to do so would result in mere speculation on my part.

Deloach Joint App'x at 1454. As a result, the VA issued a Statement of the Case in December 2007 which denied entitlement to service connection. The VA pointed to Dr. Wright's opinion that etiology was indeterminable at the time of her examination and concluded that the evidence of record does not provide sufficient connection between Mr. Deloach's schizophrenia and his military service. Mr. Deloach appealed the VA's decision to the Board for a third time.

In May 2008, the Board affirmed the VA's decision, which Mr. Deloach then appealed to the Court of Appeals for Veterans Claims. Mr. Deloach argued that the Board erred in denying his claim of entitlement to service connection for his mental disability and urged the court to reverse the Board's decision under the “clearly erroneous” standard. Specifically, Mr. Deloach asserted that reversal is appropriate because the Board's decision is “clearly erroneous in light of the uncontroverted evidence in [his] favor.”

The Court of Appeals for Veterans Claims held that reversal was not appropriate under the clearly erroneous standard because such a reversal would require the court to analyze the opinions of Dr. Jenness–McClellan and Dr. Atkins in the first instance. Instead, the court ruled that a remand was required because it was unclear whether the Board adequately considered all evidence in its evaluation, including the records of Dr. Jenness–McClellan, and provided a sufficient reason for denial of service connection. The Court of Appeals for Veterans Claims stated that “the lack of an adequate statement of reasons or bases frustrates judicial review, and the failure to provide an adequate medical examination involves factual development.” Deloach, 2011 WL 917150, at *3, 2011 U.S.App. Vet. Claims LEXIS 512, at *8. The court observed that the Board did not comply with its remand instructions to ensure that the medical examination met instructions outlined by the Board; specifically, acquiring an opinion on the etiology of Mr. Deloach's mental condition. The Court of Appeals for Veterans Claims concluded that remand was required to provide an adequate medical examination.

B. William H. Greene

Mr. Greene served on active duty from February 6, 1979 to February 5, 1983. During his station at Fort Hood in 1982, Mr. Greene injured his left foot while playing football. That year, a physician treated him for a “foot injury” and diagnosed his injury as a sprain. Mr. Greene reported ongoing pain, “swollen or painful joints,” and “foot trouble” in his separation medical examination.

In December 2002, Dr. Edward A. Carrillo, a private physician had opined that Mr. Greene's foot injuries were connected to military service. Similarly, in December 2004, Dr. Richard DiBacco, another private physician, rendered an opinion that Mr. Greene's foot disability was a causal result of the original injury at Fort Hood.

Mr. Greene filed a claim for service connection with respect to a bilateral foot condition in January 2001. The VARO denied Mr. Greene's claim for service connection,...