Ray A. Mc Clain v. R. James Nicholson

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO . 05-0468

RAY A. MC CLAIN , APPELLANT ,

V.

R. JAMES NICHOLSON ,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Argued April 24, 2007 Decided June 21, 2007 )

Richard V. Spataro, with whom Barton F. Stichman and Louis J. George, all of Washington,

D.C., were on the brief for the appellant.

Kerry J. Loring, with whom Tim S. McClain, General Counsel; R. Randall Campbell,

Assistant General Counsel; and Brian B. Rippel, Deputy Assistant General Counsel, all of

Washington, D.C., were on the brief for the appellee.

Before GREENE, Chief Judge, and KASOLD and MOORMAN, Judges.

KASOLD, Judge, filed the opinion of the Court. GREENE, Chief Judge, filed an opinion

concurring in part and dissenting in part.

KASOLD, Judge: Veteran Ray A. McClain appeals through counsel that part of a November

30, 2004, decision of the Board of Veterans' Appeals (Board) that denied his claim for disability

compensation for a psychiatric disability, to include major depression, because it found that Mr.

McClain no longer manifested a psychiatric disability at the time the Board rendered its decision and

therefore found that the preponderance of the evidence weighed against the claim. For the reasons

set forth below, the Board's decision will be reversed and the matter remanded to the Board for the

assignment of an effective date and a disability rating, staged as appropriate.

I. ARGUMENTS

The parties differ on their view of key findings by the Board and why Mr. McClain's claim

was denied. On appeal, Mr. McClain argues that the Board found that he had suffered from

service-connected depression during the adjudication of his claim, but further found that as of at

least September 2003 he no longer suffered from depression but rather had developed a personality

disorder. Record (R.) at 20-21. He also argues that the Board denied his claim because, at the time

of its decision, he did not suffer from a disease or injury for VA disability compensation purposes.

The Secretary argues that the Board never found that Mr. McClain's psychiatric disability was

service connected and that the Board had found that a preponderance of the evidence was against

his claim. He further argues that when the Board found that Mr. McClain suffered from a

personality disorder it also rejected the earlier diagnosis that he had suffered from depression.

Based on his view of the facts, Mr. McClain argues that, because he suffered from a

service-connected disability at the time of his claim and during the adjudication of his claim, the

Board could and should have awarded him service connection and assigned a disability rating for

the period he had this disability. In addition to arguing that the Board never found that Mr. McClain

suffered from a service-connected disability and that the Board rejected the earlier diagnosis of

depression, the Secretary initially argued in his brief that the Board's decision should be affirmed

because "at the time the Board rendered its decision, Appellant had no currently diagnosed

psychiatric disability that was subject to service connection as either an undiagnosed illness or on

a direct basis as linked to service." Secretary's Brief at 13-14. However, at oral argument the

Secretary clarified his position and agreed with Mr. McClain that if he suffered from a

service-connected disability at the time of or during the processing of his claim, he could be awarded

service connection even if his disability resolved before the claim was finally adjudicated and that

staged ratings were available.

II. DISCUSSION

For direct service connection to be awarded, there generally must be (1) medical evidence

of a current disability; (2) medical evidence, or in certain circumstances, lay evidence of an

in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus

between the claimed in-service disease or injury and the present disease or injury. See 38 U.S.C.

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§ 1110; Duenas v. Principi, 18 Vet.App. 512, 519 (2004); Hickson v. West, 12 Vet.App. 247, 253

(1999); see also Caluza v. Brown, 7 Vet.App. 498, 506 (1998) (holding that claim required

"competent evidence of current disability (a medical diagnosis)[,] . . . of incurrence or aggravation

of a disease or injury in service (lay or medical evidence)[,] . . . and of a nexus between the

in-service injury or disease and the current disability (medical evidence)"), aff'd per curiam, 78 F.3d

604 (Fed. Cir. 1996) (table). As noted above, the parties agreed at oral argument that a disability

was current if it had resolved by the time the Secretary adjudicated a claim and that staged ratings

would be appropriate in such a case; however, they dispute the findings of the Board with regard to

whether Mr. McClain had a disability that was recognized for purposes of VA benefits and whether

any such disability was found to be service connected.

A. Current Disability and Staged Ratings

With regard to the requirement that a claimant have a current disability before service

connection may be awarded for that disability, we agree with the parties' position as stated at oral

argument that this requirement is satisfied when a claimant has a disability at the time a claim for

VA disability compensation is filed or during the pendency of that claim and that a claimant may

be granted service connection even though the disability resolves prior to the Secretary's

adjudication of the claim. The U.S. Court of Appeals for the Federal Circuit has upheld the

Secretary's interpretation of applicable statutes that a disability must not only be service connected

to be awarded VA disability compensation, it must also be current at the time a claim is filed. See

Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir.

1997). Moreover, the law contemplates that entitlement to service-connected disability

compensation benefits may arise after the receipt of a claim. See 38 U.S.C. § 5110(a) (effective date

for compensation or pension claims "shall be fixed in accordance with the facts found, but shall be

no earlier than the date of receipt of application therefor"); 38 C.F.R. § 3.400 (2006) (generally,

effective date of a compensation or pension claim "will be the date of receipt of the claim or the date

entitlement arose, whichever is later"). We further agree with the parties that under such

circumstances a claimant would be entitled to consideration of "staged ratings." See Fenderson v.

West, 12 Vet.App. 119, 126 (1999).

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B. Board's Findings of Fact

The Secretary's argument that service connection is not warranted in this case because the

Board never found that there was a nexus between Mr. McClain's service and his current disability

is not supported by the record. Although we agree with the Secretary that the Board's statement of

reasons or bases is not a model of clarity with regard to its finding of whether there was a nexus,

such a degree of clarity, although certainly preferred, is not and cannot be demanded in every

instance or finality would forever be delayed pending perfection in draftsmanship. What is required

is that the Board's statement of reasons or bases be sufficiently clear to be understandable and to

facilitate review. See Simmons v. Principi, 17 Vet.App. 104, 115 (2003); see also 38 U.S.C.

§ 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49,

56-57 (1990). The Board decision meets this requirement.

Mr. McClain filed his claim in September 1994. Based on an October 1995 examination

report that stated that Mr. McClain's depression "was due to multiple somatic problems, probably

due to Gulf War Syndrome" and an August 1997 examination report that contained a diagnosis that

Mr. McClain suffered from "possible Gulf War Syndrome as manifested by memory loss, joint pain,

and headaches," the Board found that the evidence of record reflected that Mr. McClain had been

"diagnosed with major depression[,] which two physicians found to be, at least in part, causally

related to his service in Southwest Asia during the Persian Gulf War." R. at 20. Despite this

evidence, however, the Board went on to state: "Notwithstanding, in this case, service connection

for major depression cannot be granted. This is so because the veteran is no longer currently

diagnosed with major depression." R. at 21.

We recognize that the Board's discussion of the two medical examination reports noted above

reflects the Board's specific findings with regard to each of these reports, as opposed to the Board's

weighing of the collective evidence. We further note that the Board might have avoided altogether

any specific finding of its own with regard to whether Mr. McClain's depression was caused by

service and rested on its erroneous conclusion that service connection could not be granted because,

as the Board also stated, "[e]ssentially, the medical evidence shows that the veteran's depression has

resolved." R. at 21. However, this is not what the Board did.

The Board could have summarized the evidence by stating two medical examination reports

attributed Mr. McClain's depression, at least in part, to his service, as it had done when describing

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its view of those reports, but it did not. Rather, the Board went on to summarize its overall view of

the collective evidence and explicitly stated that Mr. McClain's "major depression, although

attributed at least in part to his service in the Persian Gulf, has been shown by the medical evidence

to have resolved." R. at 22. The Board also stated as part of its overall assessment of the evidence

that Mr. McClain had a current diagnosis of a personality disorder and concluded: "There is

therefore no current psychiatric disability manifested which may be service connected." We see no

ambiguity here.

The Board's finding that Mr. McClain suffered from major depression in part due to his

service is favorable to Mr. McClain and may not be overturned by the Court. See 38 U.S.C.

§ 7261(a)(4) (only a "finding of material fact adverse to the claimant" may be overturned if clearly

erroneous); Medrano v. Nicholson, __ Vet.App. __, __, 2007 WL 1201524, at *4 (Apr. 23, 2007)

(noting that Court is not permitted to reverse Board's favorable findings of fact); see also Snyder v.

Principi, 15 Vet.App. 285, 299 (2001) (holding that, except where the Board lacked jurisdiction in

the first instance, "there is no case or controversy as to a [Board] determination that was favorable

to an appellant").

Although the Board's assessment of the overall evidence does not explicitly state that Mr.

McClain suffered from depression at the time he filed his claim or during the processing of that

claim or that his depression resolved itself only after his claim was filed, it is clear from the Board's

earlier findings that the Board relied on medical opinions from 1995 and 1997 with regard to its

conclusion that Mr. McClain suffered from depression related to his service, and relied on a 2003

medical examination for its conclusion that his depression had "resolved." Each of these medical

examination reports postdated the filing of Mr. McClain's claim, thus permitting the only

interpretation of the Board's decision as finding that his depression had resolved itself during the

processing of his claim. See Stankevich v. Nicholson, 19 Vet.App. 470, 472 (2006) (reviewing

Board's implicit findings of fact). Because the Board implicitly found that Mr. McClain had

depression at some point during the processing of his claim, Mr. McClain had a current psychiatric

disability manifested that may be service connected. See Hickson and Caluza, both supra; see also

Gilpin and Degmetich, both supra. Accordingly, the Board erred in its determination that service

connection must be denied because Mr. McClain "no longer manifest[ed] a psychiatric disability"

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at the time that the Board rendered its decision. R. at 21; see also R. at 22 ("There is therefore no

current psychiatric disability manifested which may be service connected.").

Further, based on the explicit finding of the Board that Mr. McClain's depression was

attributable in part to his service and its implicit finding that his depression had resolved during the

processing of the claim, and based on the record as a whole, the Court is left with the definite and

firm conviction that the Board erred in its determination that the evidence preponderated against the

claim. See Padgett v. Nicholson, 19 Vet.App. 133, 146-47 (2004) (en banc) ("if the Court has '"the

definite and firm conviction that a mistake has been committed"' by the Board in finding that the

evidence preponderated against the claim on a finding of material fact, then [38 U.S.C. §] 7261(a)(4)

and [38 U.S.C. §] 7261(b)(1) require that such finding be held clearly erroneous and be reversed or

set aside"); see also Mariano v. Principi, 17 Vet.App. 305, 314 (2003) (concluding that there was

no plausible basis in the record for the Board's factual determination that the evidence preponderated

in support of a finding that the appellant's arthritis was not a residual of his service-connected

gunshot wound).

C. Remand

On remand, Mr. McClain may present any additional evidence and argument in support of

the matter remanded, and the Board must consider any evidence and argument so presented. See

Kay v. Principi, 16 Vet.App. 529, 534 (2002). This matter is to be provided expeditious treatment

on remand. See 38 U.S.C. § 7112.

III. CONCLUSION

Upon consideration of the foregoing, that part of the November 30, 2004, decision of the

Board denying Mr. McClain service connection for a psychiatric disability, to include major

depression, is REVERSED, and the matter is REMANDED to the Board for further adjudication and

the assignment of an effective date and a disability rating, to include "staged ratings" as appropriate.

REVERSED and REMANDED.

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GREENE, Chief Judge, concurring in part and dissenting in part: I concur with the majority's

holding that, where there is a finding of (1) an in-service event, (2) the existence of a disability at

the time a claim for VA disability compensation is filed or during the pendency of that claim, and

(3) a nexus between the two, a claimant may be granted service connection even though the

disability had resolved prior to the Secretary's adjudication of the claim. I thus agree with the

reversal of the Board's finding that Mr. McClain could not be awarded service connection because

he did not manifest current symptoms of a psychiatric disability.

I do not agree, however, with the majority's interpretation of the Board's decision regarding

the cause of Mr. McClain's depression. The majority holds: "Based on an October 1995 examination

report . . . and an August 1997 examination report . . . the Board found that the evidence of record

reflected that Mr. McClain had been 'diagnosed with major depression[,] which two physicians

found to be, at least in part, causally related to his service in Southwest Asia during the Persian Gulf

War.'" Ante at 4 (quoting R. at 20) (emphasis added). This statement by the Board was not a

finding, however, but merely a recitation of the facts. The majority overlooks that, as part of that

same paragraph, the Board also discussed the September 2003 VA examination report and stated:

The [2003] examiner noted that he reviewed the veteran's claims file. That he

reviewed the claims file in its entirety is reflected in the examiner's recitation of the

veteran's history–both the history that was reported to the examiner by the veteran,

and also that which the examiner gleaned from his review of the record. Finally, in

finding that the veteran does not exhibit major depression as a diagnosis, the

examiner explains that the veteran's previous depressive episode occurred in

conjunction with alcohol abuse and at the time he was experiencing his wife leaving,

loss of his job, and health problems. These problems have since resolved.

R. at 21 (emphasis added). A review of the record reveals that the September 2003 examination

concluded:

The major depression episode that is reflected in [Mr. McClain's] history occurred

in conjunction with alcohol abuse and when his behaviors had resulted in his wife

leaving him, and when he was refused employment because of the results of blood

tests for drug screening, and when he was having pulmonary problems.

R. at 641. Nothing in the record indicates that Mr. McClain is service connected for pulmonary

problems. See R. at 1-771. Although the Board found that the September 2003 examination report

was "the most current medical evidence of record" and "highly probative" (R. at 21), its discussion

of reasons or bases focused on the matter of current disability and the incorrect conclusion that,

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regardless of nexus, service connection could not be awarded because Mr. McClain's depression had

resolved. The Board's statement of reasons or bases was thus insufficient for the Court's informed

review. See Allday v. Brown, 7 Vet.App. 517, 527 (1995).

The majority also relies on the Board's statement that Mr. McClain's major depression was

"attributed at least in part to his service in the Persian Gulf" to hold that the Board found that Mr.

McClain's depression was related to service. Ante at 5. Read in context, however, the Board's

statement is not a finding. R. at 22. The Board stated:

The veteran asserts that he suffers from a psychiatric disability, claimed as due to an

undiagnosed illness as a result of service in the . . . Persian Gulf War. . . . He avers,

in the alternative that these symptoms are the result of his active service.

However, . . . the medical evidence simply does not support this position. Firstly,

his psychiatric symptoms have been diagnosed as major depression and personality

disorder, not otherwise specified. Thus, there is no undiagnosed illness to warrant

grant of service connection. Secondly, his major depression, although attributed at

least in part to his service in the Persian Gulf, has been shown by the medical

evidence to have resolved. His current diagnosis is of a personality disorder, not

otherwise specified. There is therefore no current psychiatric disability manifested

which may be service connected.

Id. The Board did not state that it was attributing Mr. McClain's depression to his service. See id.

The Board only referenced, as part of its discussion, that the depression had since resolved and was

therefore no longer service connectable, that the depression had previously been attributed to his

service in the Persian Gulf. Id. Although the statement is factually correct, the Board still has the

duty to assess the credibility and probative weight of evidence. See Washington v. Nicholson,

19 Vet.App. 362, 367-68 (2005); Wood v. Derwinski, 1 Vet.App. 190, 192 (1991).

"The Court is generally precluded from finding facts in the first instance." Medrano

v. Nicholson, __ Vet.App. __, __, No. 04-1009, slip op. at 7 n.1 (Apr. 23, 2007). I disagree with the

majority's determination that the Board's statement of reasons or bases was sufficiently clear to be

understandable and to facilitate review. See Simmons v. Principi, 17 Vet.App. 104, 115 (2003);

Allday, 7 Vet.App. at 527; Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990). The Board did not

specifically discuss or make any findings concerning the nexus element of Mr. McClain's claim, and

as such the Court should remand the matter for the Board to make that factual determination in the

first instance. See Medrano, supra; see also Daves v. Nicholson, 21 Vet.App. 46 (2007) (remand

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of matter for further adjudication generally is appropriate when statement of reasons or bases is

inadequate); Tucker v. West, 11 Vet.App. 369, 374 (1998). Therefore, I respectfully dissent.

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