Buchanan v. Nicholson
| Decision Date | 14 June 2006 |
| Docket Number | No. 05-7174.,05-7174. |
| Citation | 451 F.3d 1331 |
| Parties | Donald BUCHANAN, Claimant-Appellant, v. R. James NICHOLSON, Secretary of Veterans Affairs, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Federal Circuit |
Michael J. Mooney, of Cincinnati, Ohio, argued for claimant-appellant.
Michael S. Dufault, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With him on the brief were Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director, and Kathryn A. Bleecker, Assistant Director. Of counsel on the brief were David J. Barrans, Deputy Assistant General Counsel, and Martin J. Sendek, Attorney, United States Department of Veterans Affairs, of Washington, DC.
Before SCHALL, Circuit Judge, CLEVENGER, Senior Circuit Judge, and PROST, Circuit Judge.
Donald Buchanan appeals from the decision of the Court of Appeals for Veterans Claims (the "Veterans Court") affirming a decision of the Board of Veterans' Appeals (the "Board") which denied Mr. Buchanan's claim for service connection for a psychiatric disorder. Buchanan v. Nicholson, 19 Vet.App. 465 (Vet.App. 2005). Because the Veterans Court accepted the Board's legally erroneous interpretation of the statutory and regulatory provisions pertaining to a veteran's ability to prove service connection through competent lay evidence, we vacate the Veterans Court decision and remand for reconsideration of all of the evidence of record, including the lay evidence, under the correct statutory and regulatory construction.
Mr. Buchanan served on active duty in the United States Army from January 1973 to December 1975 and also from May 1980 to June 1982. He was honorably discharged following his first period of service, but received an other than honorable discharge after his second. In 1986, he filed a claim for service connection for a psychiatric disorder. The Board denied his claim in 1987, finding that his service medical records were negative for any manifestations of psychiatric problems and that a psychiatric disability was not demonstrated until 1978, nearly three years after his first period of service had ended. Again, in June 1992, a Department of Veterans Affairs ("DVA") regional office ("RO") denied service connection for a nervous condition. Since that time, Mr. Buchanan's attempts to establish service connection have resulted in his claim being sent back and forth between the RO and the Board. Essentially, each remand or reopening of his claim by the Board was accompanied by a DVA medical examination. Thus, by the time the Board rendered its September 5, 2002 decision, which is the subject of this appeal, Mr. Buchanan had undergone three DVA medical examinations over a period of five years.
The first of such examinations occurred in July 1997 and resulted in a diagnosis of "[s]chizophrenia, chronic paranoid type, severe." (R. at 225.) The opinion of the examiner was that "[i]t appears that this disorder first began while he was in the service, although there is no record in his C-file which would substantiate his claim of receiving counsel to seek psychiatric treatment while in the service." (Id.)
The second DVA examination occurred in November 1999 and also reflects a diagnosis of "[s]chizophrenia, paranoid type, chronic, severe." (Appellant App. 57). The examiner summarized his findings and concluded by stating: "While it is at least as likely as not that the veteran's symptoms predate his first documented treatment in 1978 for psychosis, it is not possible without prior records to determine when these symptoms first occurred." (Appellant App. 57-58).
The third DVA examination in March 2002 resulted in a similar diagnosis, "[s]chizophrenia, paranoid type, chronic." (Appellant App. 51.) This examiner likewise summarized her findings, in pertinent part, as follows:
Review of the Veteran's C-file revealed numerous layperson affidavits attesting to a change in the veteran's interpersonal style and presentation while the veteran was in the military between 1973 and 1975, and after his discharge from the military. However, there is no medical documentation within the veteran's C-file to substantiate the presence of any psychotic symptoms or treatment for psychiatric conditions while the veteran was on active duty .... Thus, given the absence of any medical documentation from the veteran's period of active duty service from January 1973 to December 1975, and given the absence of any medical documentation of psychiatric symptoms or treatment within the one-year presumptive period, it is this clinician's clinical opinion that the veteran's onset of symptoms of schizophrenia did not occur during his first period of active service or during the one year presumptive period.
In support of his claim, Mr. Buchanan submitted several affidavits from lay witnesses, including his relatives, acquaintances, and a sergeant who led the unit to which Mr. Buchanan was assigned in 1973, describing their perceptions of the onset of his symptoms while in service or soon thereafter. Additionally, he submitted an August 2001 medical opinion from Dr. Kenneth Manges, who opined that Mr. Buchanan's signs and symptoms of paranoid schizophrenia first appeared in service and that his paranoid schizophrenia manifested itself to a compensable degree during the first year after his discharge from his first period of service. (R. at 448-63.)
In considering whether Mr. Buchanan established service connection, the Board focused on whether the evidence linked the veteran's psychiatric disability to a disease or injury that was incurred in, or was aggravated by, service from January 1973 to December 1975 or whether the evidence demonstrated the presence of that disability to a degree of ten percent within the first post-service year such that service connection would be presumed pursuant to 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137. The Board recognized that Mr. Buchanan's statements and testimony along with the lay statements indicate that his psychiatric disability began during his first period of service because that is when his behavior changed. The Board also noted that what it called the "objective medical evidence" did not corroborate the presence of psychiatric problems in service or within the first year after service except by medical history reported by Mr. Buchanan. The Board then stated: "Recollections of medical problems some 20 years after the veteran's separation from service have slight probative value and lack credibility absent confirmatory clinical records to substantiate such recollections." (Appellant App. 21.)
After discussing the four medical opinions, three from the DVA examiners and one from Dr. Manges, the Board found the opinion of the examiner who conducted the third DVA examination to be the most persuasive "because it relie[d] on the objective medical documents in the record rather that [sic] the slight probative recollections of the veteran, his relatives, acquaintances, and a service comrade." (Appellant App. 22.) The Board indicated that it did not find Dr. Manges's opinion persuasive because it relied on the recollections expressed in the lay statements, and that the other two DVA examiner opinions did not "unequivocally state that the veteran's psychiatric disability began in service or within one year of his separation from service in December 1975." (Id.) Thus, the Board found that the preponderance of the evidence was against Mr. Buchanan's claim for service connection for a psychiatric disability and denied his claim.
On appeal, the Veterans Court found that the Board's decision was not clearly erroneous and that it was supported by an adequate statement of reasons or bases. Specifically, the court noted that the Board considered the lay and medical evidence of record and concluded that service connection was not warranted because the credible evidence of record did not show the presence of a psychiatric disorder during service or that such disability had manifested to a compensable degree during the applicable presumptive period. The court noted that it was not error for the Board to favor the opinion of one competent medical expert over another when the Board provides an adequate statement of its reasons and bases. Further, the court did not find error in the Board's determination that the lay evidence lacked credibility. Finally, the court rejected Mr. Buchanan's request for another medical examination because it found that the third DVA examiner's opinion was sufficiently detailed and that it thoroughly reviewed the available medical records. Thus, the court affirmed the decision of the Board denying Mr. Buchanan's claim for service connection.
Mr. Buchanan timely appealed to this court. We have jurisdiction pursuant to 38 U.S.C. § 7292.
Pursuant to 38 U.S.C. § 7292(a), any party to the case may obtain review of a Veterans Court's decision upon a rule of law or the validity or interpretation of any statute or regulation relied upon by the Veterans Court in making its decision. Under 38 U.S.C. § 7292(c), this court has exclusive jurisdiction to "review and decide any challenge to the validity of any statute or regulation or any interpretation thereof brought under this section, and to interpret constitutional and statutory provisions, to the extent presented and necessary to a decision."
This court reviews decisions by the Veterans Court deferentially. Under 38 U.S.C. § 7292(d)(1), we must affirm a Veterans Court decision unless it is "(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or in violation of a statutory right; or (D) without observance of...
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