Romanowsky v. Shinseki, docket no. 11-3272 (Vet. App. July 10, 2013)
Evidence of a recent diagnosis of a disability that was made prior to the veteran’s filing of a claim for that disability is relevant evidence that the Board must address in determining whether a current disability existed when the claim was filed or during its pendency. In this case, the veteran was diagnosed with an adjustment disorder in May 2008, which resulted in his discharge from service. He filed a claim for VA benefits for that disorder in November 2008. In December 2008, a VA examiner determined that the veteran did not have an adjustment disorder, and VA denied the claim the following month. The veteran appealed to the Board of Veterans’ Appeals – and the Board relied on the CAVC’s prior holding in McClain v. Nicholson, 21 Vet.App. 319 (2007), to determine that the May 2008 diagnosis falls outside the claim period, and that there was no current diagnosis for VA benefits purposes.
The Court held that the Board misconstrued McClain and erred by not considering whether the May 2008 diagnosis established that his disability existed at the time he filed his claim, even if the disability resolved prior to adjudication. The Court also provided a lengthy discussion of the appropriate remedy, and appeared poised to reverse, noting that “the ‘clearly erroneous’ standard applied by the Court is less deferential than the ‘substantial evidence’ standard applied by courts when reviewing non-VA administrative adjudication.” Opinion at *10 (quoting R. Pierce, Administrative Law Treatise §§ 11.2, 11.3 (5th ed. 2010)). However, the Court determined that remand was appropriate in this case because of the Board’s misinterpretation of McClain and its failure to weigh the evidence.