Steven M. Romanowsky v. Eric K. Shinseki
2013 U.S. Vet. App. LEXIS 1123
| Vet. App. | 2013Background
- Veteran served Navy (1995–1999) and Air Force (2002–2008); in May 2008 an Air Force psychologist diagnosed Adjustment Disorder (mixed disturbance) and recommended administrative discharge.
- Follow‑up in May 2008 reaffirmed diagnosis; appellant was administratively discharged in Oct 2008 for the mental disorder.
- Appellant filed for VA service connection for an adjustment disorder in Nov 2008. A December 2008 VA examiner found no formal mental disorder and did not diagnose adjustment disorder.
- VA Regional Office denied service connection (Jan 2009) for lack of a current diagnosis; Board (July 2011) affirmed, relying on the December 2008 VA exam and concluding the May 2008 diagnosis fell outside the claim period.
- Court vacated the Board decision and remanded: Board had erred by (1) refusing to consider the May 2008 diagnosis as evidence of a current disability at filing, and (2) relying solely on the December 2008 exam without obtaining a clarifying/medical opinion to reconcile the close‑in‑time conflicting exams.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Board could ignore a pre‑filing diagnosis as evidence of a "current disability" at the time of claim filing | Romanowsky: May 2008 diagnosis is relevant evidence that a disability existed at filing and must be considered | Secretary/Board: Diagnosis predates claim and thus is not evidence of a current disability during the claim period | Court: Board erred — a recent pre‑filing diagnosis can show a current disability at filing and must be considered (McClain interpreted correctly) |
| Whether the Board permissibly relied on the December 2008 VA exam that found no diagnosis | Romanowsky: December 2008 exam is inadequate alone and conflicts with May 2008 diagnosis; Board must obtain clarification | Board: December 2008 exam supported finding of no current diagnosis | Court: Board erred — must obtain additional medical opinion/clarification to reconcile conflicting, temporally proximate exams before adjudication |
| Whether the Board applied McClain correctly | Romanowsky: McClain supports considering disabilities present at filing even if they resolve before adjudication | Board: applied McClain to exclude May 2008 diagnosis | Court: Board misapplied McClain; cannot categorically exclude pre‑filing diagnoses |
| Remedy — vacatur vs. remand | Romanowsky: errors require vacatur and remand for proper development and readjudication | Secretary implicitly sought reconsideration of panel opinion | Court: Vacated Board decision and remanded for further development and medical opinion; directed expeditious action |
Key Cases Cited
- McClain v. Nicholson, 21 Vet.App. 319 (Court held a disability during filing/pendency—though resolved later—can satisfy current‑disability requirement)
- Stefl v. Nicholson, 21 Vet.App. 120 (medical opinion must consider prior history and provide sufficient detail and analysis)
- Nolen v. Gober, 14 Vet.App. 183 (standard for reviewing Secretary's duty to assist is clearly erroneous)
- Fenderson v. West, 12 Vet.App. 119 (staged ratings discussion applicable when condition changes over time)
- Tucker v. West, 11 Vet.App. 369 (remand is appropriate where Board applied law incorrectly or record is inadequate)
- Degmetich v. Brown, 104 F.3d 1328 (discusses current disability requirement for claims)