Hatmaker v United States II

Hatmaker v United States II 2016-08-19

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This is a very important case for several reasons:

1) The opinion criticizes and makes note of the need to consider all evidence in a case:

The Remand PDBR does not appear to have evaluated the relevant evidence of the 2010 Malagon letter, the February 2008 VA psychiatric examination, and the June 2007 MEB psychiatric examination. Instead, the Remand PDBR made, and relied on, its own finding that the transition to civilian life “may temporarily exacerbate a mental health condition,” AR1023 (emphasis added), notwithstanding the lack of record evidence that Mr. Hatmaker had suffered such transitional stress.
“Under the substantial evidence rule, all of the competent evidence must be considered, . . . whether or not it supports the challenged conclusion.” Heisig, 719 F.2d at 1157 (citing Consolo, 383 U.S. at 620; Universal Camera Corp., 340 U.S. at 483, 490).
The court cannot substitute its judgment for that of the Remand PDBR, Heisig, 719 F.2d at 1156, and the court “will uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned,” Bowman Transp., Inc., 419 U.S. at 285-86. But, here the Remand PDBR has not disclosed its reasons for relying on its own conjecture and ignoring evidence that Mr. Hatmaker’s OCD was worsening in June 2007, had become debilitating by February 2008, and had not improved by January 2010. The court is unable to discern why the Remand PDBR elected to disregard certain record evidence or elected to speculate as to the cause of Mr. Hatmaker’s condition. Thus, the court remands this matter to the United States Department of Defense Physical Disability Board of Review to consider all the relevant evidence—to include the records referenced herein—in its evaluation of the overall effect of Mr. Hatmaker’s OCD, asthma, and obstructive sleep apnea on his fitness at separation."

2) The opinion also is very important in its discussion of the use of "negative evidence" (that is, the lack of some evidence as a basis to find against a claimant...this is a very common tactic used by the military- citing the lack of evidence as a basis to support an adverse outcome):

"On remand, the PDBR is advised to consider carefully any use of negative evidence. In certain circumstances, negative evidence is admissible evidence. See, e.g., AZ v. Shinseki, 731 F.3d 1303, 1315-18 (Fed. Cir. 2013) (discussing proper use of negative evidence as the absence of an occurrence where the presence of that occurrence would be expected). The Remand PDBR relied on the absence of specified occurrences to support its decision. For example, the Remand PDBR considered the fact that 'there is no evidence from the record that at any time [Mr. Hatmaker] ever needed any ambulatory assistive device because of staggering, or ever suffered any consequence from staggering (such as injury),' as evidence that Mr. Hatmaker did not suffer from occasional staggering. AR 1021. The Remand PDBR, however, did not establish that either the use of an ambulatory assistive device or injuries would be expected in someone who suffered from occasional staggering. Such would be required for negative evidence."
Jason Perry
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