Evans v. Shinseki, No. 08-2133 (Decided January 28, 2011), Substantive Appeals; VA Form 9, box 9.A

"The box that VA's Form 9 provides for a claimant to check when he wants to inform VA of his intent "to appeal all of the issues listed on the [SOC] and any [SSOC] that my local VA office sent to me" must be read to mean what it says. Id. If the veteran checks that box on VA's Form 9, he has expressed his intention to appeal all issues. When VA selects only certain issues to decide on appeal, without directly informing the veteran that he is abandoning the remaining issues, VA creates an ambiguity that must be resolved in the veteran's favor. The Board has an obligation to read pro se filings liberally both for proceedings appealing the decision of the RO to the Board and for proceedings alleging clear and unmistakable error. Comer v. Peake, 552 F.3d 1362, 1368 (Fed. Cir. 2009); Andrews v. Nicholson, 421 F.3d 1278, 1282-84 (Fed. Cir. 2005); Roberson v. Principi,
7
251 F.3d 1378, 1380-84 (Fed. Cir. 2001). This obligation also applies to filings made by represented appellants in their direct appeals to the Board. Robinson v. Shinseki, 557 F.3d 1355, 1359 (Fed. Cir. 2009). Essentially, the Secretary offered to waive the statutory adequacy requirements for a Substantive Appeal when he included a box on the Form 9 allowing a claimant to check off that he wishes to appeal all issues listed in the SOC. R. at 309. Consequently, even if the appellant had not stated a single argument, the Board would have still been obligated to consider all the issues on appeal and to review all the issues and theories reasonably raised by the evidence of record. Robinson, supra. We, therefore, hold that if a claimant uses a VA Form 9 and checks box 9.A. stating that "I WANT TO APPEAL ALL OF THE ISSUES LISTED ON THE STATEMENT OF THE CASE AND ANY SUPPLEMENTAL STATEMENTS OF THE CASE THAT MY LOCAL VA OFFICE SENT TO ME," then all issues listed on the SOC are on appeal to the Board and it has waived its ability to dismiss any of those issues under 38 U.S.C. § 7105(d)(5)."
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UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 08-2133
JAMES I. EVANS, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals
(Decided January 28, 2011)

Kenneth L. LaVan, with whom Dianne E. Olson, both of Fort Lauderdale, Florida, was on the pleadings for the appellant.

Will A. Gunn, General Counsel; R. Randall Campbell, Assistant General Counsel; Edward V. Cassidy, Jr., Deputy Assistant General Counsel, and Christopher O. Adeloye, all of Washington, D.C., for the appellee.

Before MOORMAN, LANCE, and SCHOELEN, Judges.
MOORMAN, Judge, filed the opinion of the Court. SCHOELEN, Judge, filed a separate opinion concurring in part and dissenting in part.

MOORMAN, Judge: The appellant, James I. Evans, through counsel, appeals an April 17, 2008, Board of Veterans' Appeals (Board) decision that denied his claim of entitlement to service connection for the residuals of a collapsed lung, remanded his claims of entitlement to service connection for a back disorder and to a compensable evaluation for residuals of a fractured distal left
fibular shaft, and dismissed his claims for asbestos exposure, hepatitis B, and hepatitis C. Record (R.) at 3-4. This appeal is timely, and the Court has jurisdiction over the case pursuant to 38 U.S.C. §§ 7252(a) and 7266. The appellant does not present any argument concerning the denial of his claim for the residuals of a collapsed lung. Accordingly, that claim is deemed abandoned. See Ford
v. Gober, 10 Vet.App. 531, 535 (1997). In addition, the Court will not discuss the claims remanded by the Board, as the Court does not have jurisdiction over them and the appellant makes no argument with respect to them. See Link v. West, 12 Vet.App. 39, 47 (1998); Marlow v. West, 11 Vet.App. 53, 55 (1998). For the reasons that follow, the Court will vacate the April 17, 2008, Board decision as to its dismissal of the appellant's claims for asbestos exposure, hepatitis B, and hepatitis C and remand those matters for further proceedings consistent with this decision. However, the Court will dismiss the appellant's appeal as to his claims for memory loss, migraines, and plantar fasciitis that were not the subject of the Board decision on appeal.

I. BACKGROUND
The appellant served on active duty in the U.S. Army from August 1968 until August 1970. R. at 573.
In July 2003, the appellant filed a claim with the St. Petersburg, Florida, regional office (RO), seeking entitlement to service connection for a back condition, bilateral wrist conditions, hepatitis C, carpel tunnel syndrome, a collapsed lung, drug addiction, and a lung condition due to asbestos exposure. R. at 484-85. The appellant also sought a compensable rating for his service-connected
distal left fibular shaft fracture and the reopening of a previously denied claim for a forehead injury. R. at 484. At a later date, the appellant added claims for an eye condition, hepatitis B, a stab wound to the chest, and a heart condition. R. at 448, 450. In February 2004, the RO issued a rating decision that disposed of 16 separate claims. R. at 391. Within that decision, the RO continued the appellant's noncompensable rating for his fibular shaft fracture, denied entitlement to a non-service-connected pension, and also denied reopening of the appellant's claim for the residuals of a forehead injury. R. at 391. The decision further denied entitlement to service connection for an eye condition, the residuals of a stab wound to the chest, the residuals of a collapsed lung, asbestos exposure, heart trouble, drug and alcohol addiction, hepatitis B and C, a back disability, carpal tunnel syndrome, a scar on the left wrist, and bilateral plantar fasciitis. Id. The appellant timely filed a Notice of Disagreement (NOD) to the RO's decision with respect to his claims for asbestos exposure, a back disability, a collapsed lung, hepatitis B and C, and his distal left fibular shaft fracture. R. at 379-84. The appellant also raised new claims for a neck condition, migraines, and memory loss. Id. However, the appellant did not express any disagreement with the other ten claims decided by the RO in the February 2004 decision. Id.
In September 2004, the RO issued a Statement of the Case (SOC) with respect to the six claims referenced in the appellant's NOD. R. at 311-31. The RO also issued a rating decision with
2

respect to the appellant's newly filed claims for a neck condition, migraines, and memory loss. R. at 334-39. The record before the Court does not reflect an NOD with respect to the September 2004 rating decision; however, using a VA Form 9,1 the appellant filed a Substantive Appeal with the Board concerning the "issues" outlined in the September 2004 SOC. R. at 309-10. On his Form 9, the appellant checked the first box in section 9.A. stating that "I WANT TO APPEAL ALL OF THE ISSUES LISTED ON THE STATEMENT OF THE CASE AND ANY SUPPLEMENTAL STATEMENTS OF THE CASE THAT MY LOCAL VA OFFICE SENT TO ME." R. at 309. In the space provided below part B of section 9 on that same Form 9, the appellant specifically listed
as issues the RO's denial of his claims for fractured distal fibular shaft, back injury, and collapsed lung. Id.
In January 2008, the Board provided a hearing for the appellant. R. at 124-52. During that hearing, the hearing officer stated that: "In our prehearing conference we determined that we have three issues on appeal today, those being entitlement to service connection for a back disability, service connection for residuals of a collapsed lung, and entitlement to a compensable (increased) evaluation for residuals of a fracture of the left distal fibular tip/shaft. Is that the correctly stated issues?" R. at 125. The appellant replied, "That's correct." Id. The hearing officer concluded the hearing by asking the appellant: "Is there anything that you would like to add at this time that you don't feel that we've discussed with regard to your back, your lungs or, essentially, your left ankle?" R. at 151. The appellant declined to add anything. Id. In the decision now on appeal, the Board fully addressed the three "issues" specifically outlined in the appellant's Form 9; however, the Board dismissed the appellant's claims for asbestos exposure, hepatitis B, and hepatitis C under 38 C.F.R. § 20.202 because it reasoned that the appellant's Form 9 showed that the appellant was only appealing the "issues" related to a back disorder, the residuals of a collapsed lung, and entitlement
to a higher rating for the residuals of a fractured distal left fibular shaft. R. at 4.

1 The appellant's VA Form 9 that was submitted by the parties as part of the record of proceedings is attached to this opinion. R. at 309. Although the printed instructions for completing the VA Form 9 were not included in the
record of proceedings, the Court is attaching a copy of the full text of VA's Form 9 including those instructions. This is the same version of the form that was submitted by the appellant.
3

II. ANALYSIS
A. The Court's Jurisdiction
In his brief to the Court, the appellant argues that the Board erred by not adjudicating his claims for asbestos exposure, hepatitis B, hepatitis C, memory loss, migraines, and bilateral plantar fasciitis. Appellant's Brief (Br.) at 7. Specifically, he asserts that the Court's caselaw required the Board to liberally read his Form 9 Substantive Appeal and to address all issues possibly raised within
that appeal. Id. at 20-24. The Secretary counters that the Court lacks jurisdiction over the appellant's asbestos, hepatitis, memory loss, migraine, and plantar fasciitis claims because those claims were never properly raised before the Board. Secretary's Br. at 7. In support of this contention, the Secretary argues that, under 38 U.S.C. § 7.105(d)(5), 38 C.F.R. § 20.202, and this Court's caselaw,
the Board was free to dismiss claims where the appellant did not allege some error committed by the RO. Id. at 7-10.
The Court's appellate jurisdiction derives exclusively from the statutory grant of authority provided by Congress, and the Court may not extend its jurisdiction beyond that which is permitted by law. Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 818 (1988); Henderson v. Peake, 22 Vet.App. 217, 219 (2008), aff'd sub nom. Henderson v. Shinseki, 589 F.3d 1201 (Fed. Cir. 2009) (en banc), cert. granted, 1301 S.Ct. 3502 (2010). Congress has established that the Court "shall have power to affirm, modify, or reverse a decision of the Board or to remand the matter, as appropriate." 38 U.S.C. § 7252(a). Consequently, the Court's "jurisdiction is premised on and defined by the Board's decision concerning the matter being appealed," and when the Board has not rendered a decision on a particular issue, the Court generally has no jurisdiction under section 7252 (a) to consider the merits of the matter. Ledford v. West, 136 F.3d 776, 779 (Fed. Cir. 1998); see also Howard v. Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000). Nonetheless, the Court exercises de novo review over Board determinations that are critical to its jurisdiction. See Stokes v. Derwinski, 1 Vet.App. 201, 203-204 (1991) (finding that the Court may find facts "crucial to the proper determination of whether this Court has jurisdiction"); see also Butts v. Brown, 5 Vet.App. 532, 539 (1993) (en banc) (Court reviews "questions of law de novo without any deference to the [Board's] conclusions of law").
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1. Claims Dismissed by the Board
With respect to the Board's dismissal of the appellant's claims for asbestos exposure, hepatitis B, and hepatitis C, the Court agrees with the appellant that remand is necessary. The Court has the power to review the Board's refusal to exercise its jurisdiction. Butts, supra. In this case, the Court has jurisdiction to determine whether the Board acted properly in dismissing the appellant's claims for asbestos exposure, hepatitis B, and hepatitis C pursuant to 38 U.S.C. § 7105 and VA's implementing regulation, 38 C.F.R. § 20.202.
Pursuant to 38 U.S.C. § 7105, the filing of an NOD initiates appellate review in the VA administrative adjudication process, and the request for appellate review is completed by the claimant's filing of a Substantive Appeal, after an SOC is issued by VA. 38 U.S.C. § 7105(a), (d)(1), (d)(3); see Archbold v. Brown, 9 Vet.App. 124, 132 (1996); Rowell v. Principi, 4 Vet.App. 9, 14 (1993). The statute states in relevant part that Copies of the "statement of the case" prescribed in paragraph (1) of this subsection will be submitted to the claimant and to the claimant's representative. . . . The claimant will be afforded a period of sixty days from the date the statement of the case is mailed to file the formal appeal. This may be extended for a reasonable period on request for good cause shown. The appeal should set out specific allegations or error of fact or law, such allegations related to specific items in the statement of the case. The benefits sought on appeal must be clearly identified. 38 U.S.C. § 7105(d)(3).

Once the Board has accepted a Substantive Appeal and acquired jurisdiction, it is well established that the Board must review all issues and theories that are reasonably raised by the claimant or the evidence of record. See generally Robinson v. Peak, 21 Vet. App. 545 (2008), Jarrell v. Nicholson, 20 Vet.App. 326, 331-32 (2006); Myers v. Derwinski, 1 Vet.App. 127 (1991).
Recently, in Ortiz v. Shinseki, this Court discussed 38 U.S.C. § 7105 and the requirements it places on claimants in preparing a Substantive Appeal. 23 Vet.App. 353, 357 (2010). In Ortiz, the Court addressed whether the appellant's correspondence with VA was sufficient to satisfy the requirements of a Substantive Appeal in lieu of a VA Form 9. Id. at 354-55, 358-62. The Court interpreted the language of 38 U.S.C. § 4005(d)(3) (1980)2 and held that, in a case where there is no

2Now renumbered as 38 U.S.C. § 7105(d)(3).
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VA Form 9 filed, the claimant bears the burden of "expand[ing] upon their initial disagreement with the RO decision by setting forth, however inartfully, a particular theory of error for the Board to decide." Ortiz, 23 Vet.App. at 357. The present case, however, presents an issue not addressed in Ortiz. In this case, unlike in Ortiz, the appellant undeniably submitted a VA Form 9 following the
September 2004 SOC. R. at 309. As a consequence, the issue here is whether a claimant limits the issues before the Board when he files a VA Form 9 in which he checks the box indicating his desire to appeal all issues listed in the SOC, but also specifies on the Form 9 arguments as to some, but not all, issues listed in the SOC.
The September 2004 SOC covered the following six issues: (1) an increased rating for the appellant's service-connected residuals of a fractured distal left fibular shaft, (2) service connection or a back disability, (3) service connection for asbestos exposure, (4) service connection for hepatitis B, (5) service connection for hepatitis C, and (6) service connection for the residuals of a collapsed lung. R. at 313. In response to the SOC, the appellant submitted a Substantive Appeal in the form of a VA Form 9, on which he checked the box indicating that he wanted to appeal "all of the issues" stated in the SOC. R. at 309. However, on that same Form 9, the appellant specifically listed as issues the RO's denial of his claims for fractured distal fibular shaft, back injury, and collapsed lung. Id.
This Form 9 was accepted as a Substantive Appeal and the appellant's case went before the Board. In 3 May 2005, the appellant's representative from a veterans service organization submitted a letter listing distal fibular shaft, back injury, and collapsed lung as the "[i]ssues [p]resented for [r]eview." R. at 302. In January 2008, the appellant presented testimony at a Board hearing. R. at 124-152. At the outset of the hearing, the hearing officer stated that: "In our prehearing conference we determined that we have three issues on appeal today, those being entitlement to service connection for a back disability, service connection for residuals of a collapsed lung, and entitlement to a compensable (increased) evaluation for residuals of a fracture of the left distal fibular tip/shaft.
Is that the correctly stated issues?" The appellant replied, "That's correct." R. at 125. The hearing

3The record before the Court does not contain any evidence of whether all or only three of the six issues listed in the September 2004 SOC were certified by the RO as on appeal to the Board. See 38 C.F.R. § 19.35 (2010) (providing that a VA Form 8 "'Certification of Appeal' . . . is used for administrative purposes and does not serve to either confer or deprive the Board[ ] of jurisdiction over an issue").
6

officer then concluded the hearing by asking the appellant: "Is there anything that you would like to add at this time that you don't feel that we've discussed with regard to your back, your lungs or, essentially, your left ankle?" R. at 151. The appellant declined to add anything. Id.
In its April 2008 decision here on appeal, the Board noted that the veteran's appeal had originally included the issues of entitlement to service connection for asbestos exposure, hepatitis B, and hepatitis C. However, in his October 2004 VA Form 9, the veteran stated that he was only appealing the issues of entitlement to service connection for a back disorder and residuals of a collapsed lung and for an increased evaluat[ion] for his residuals of a fractured distal left fibular shaft. As such, the veteran has not filed a substantive appeal for the other issues. See 38 C.F.R. § 20.202. Accordingly, the issues of asbestos exposure, hepatitis B, and hepatitis C no longer remain in appellate status and no further consideration is required. R. at 4.
This Court has held that the Board may waive both the timeliness and adequacy requirements of a Substantive Appeal. Percy v. Shinseki, 23 Vet.App. 37, 47 (2009). As the Court noted in Percy, in determining the adequacy of a Substantive Appeal, "VA may waive 'any . . . pleading requirements on the part of the appellant.'" Id. (quoting Gomez v. Principi, 17 Vet.App. 369, 372-73 (2003)). The Court explained that the congressional intent of § 7105(d)(3) "is inconsistent with [] VA [] treat[ing] its procedures as a minefield that the veteran must successfully negotiate in order to obtain the benefits that Congress intended to bestow on behalf of a grateful nation. If VA treats an appeal as if it is timely filed, a veteran is entitled to expect that VA means what it says." Id.
The box that VA's Form 9 provides for a claimant to check when he wants to inform VA of his intent "to appeal all of the issues listed on the [SOC] and any [SSOC] that my local VA office sent to me" must be read to mean what it says. Id. If the veteran checks that box on VA's Form 9, he has expressed his intention to appeal all issues. When VA selects only certain issues to decide on appeal, without directly informing the veteran that he is abandoning the remaining issues, VA creates an ambiguity that must be resolved in the veteran's favor. The Board has an obligation to read pro se filings liberally both for proceedings appealing the decision of the RO to the Board and for proceedings alleging clear and unmistakable error. Comer v. Peake, 552 F.3d 1362, 1368 (Fed. Cir. 2009); Andrews v. Nicholson, 421 F.3d 1278, 1282-84 (Fed. Cir. 2005); Roberson v. Principi,
7

251 F.3d 1378, 1380-84 (Fed. Cir. 2001). This obligation also applies to filings made by represented appellants in their direct appeals to the Board. Robinson v. Shinseki, 557 F.3d 1355, 1359 (Fed. Cir. 2009). Essentially, the Secretary offered to waive the statutory adequacy requirements for a Substantive Appeal when he included a box on the Form 9 allowing a claimant to check off that he wishes to appeal all issues listed in the SOC. R. at 309. Consequently, even if the appellant had not stated a single argument, the Board would have still been obligated to consider all the issues on appeal and to review all the issues and theories reasonably raised by the evidence of record. Robinson, supra. We, therefore, hold that if a claimant uses a VA Form 9 and checks box 9.A. stating that "I WANT TO APPEAL ALL OF THE ISSUES LISTED ON THE STATEMENT OF THE CASE AND ANY SUPPLEMENTAL STATEMENTS OF THE CASE THAT MY LOCAL VA OFFICE SENT TO ME," then all issues listed on the SOC are on appeal to the Board and it has waived its ability to dismiss any of those issues under 38 U.S.C. § 7105(d)(5).
Although the Board must consider all the issues listed in the SOC when the claimant checks the box in section 9.A. of VA's Form 9, the Board and the appellant are not powerless to thereafter limit the issues on appeal. The Secretary has specifically provided procedures for a valid withdrawal of an entire appeal or issues within an appeal. 38 C.F.R. § 20.204. The issues on appeal could have been limited if the appellant's intent to do so was clear on the record. However, there is nothing in the record before the Court to make it clear that the Board hearing officer informed the appellant that he was abandoning his right to appeal certain issues and the appellant affirmatively confirmed his desire to do so. Further, the Board could not have deemed the appeal abandoned in writing, rather than at the hearing, as there is no formal writing in the record evidencing such a withdrawal. See 38 C.F.R. § 20.204(b)(1) (requiring that appeals not withdrawn on the record at a hearing must be in writing and "[i]f the appeal involves multiple issues, the withdrawal must specify that the appeal is withdrawn in its entirety, or list the issue(s) withdrawn from the appeal.").
The Secretary argues that the appellant "explicitly abandoned" the issues of asbestos exposure, hepatitis B, and hepatitis C during his January 2008 hearing before the Board. Secretary's Br. at 13-14. However, there is nothing in the record to indicate that the appellant was ever informed that only three of the six issues listed in the SOC remained on appeal following the hearing. For example, VA's Form 9 itself does not include instructions stating that if a claimant checks box 9.A.
8

and lists certain issues in box 9.B., the latter controls. Moreover, the appellant never made any affirmative statement that he intended to abandon those three issues on appeal. The hearing officer at the Board hearing steered the conversation to only three issues but never made any statement and never received an affirmative statement from the appellant that he was abandoning on appeal any of the other issues contained in the SOC by not addressing them at that time. R. at 125. In light of the well-established requirement that VA read pro se filings liberally in the context of a direct appeal to the Board, the Board must, in the absence of a clear waiver on the record, abide by the Form 9 box that the appellant checked. See Comer, supra.
The appellant's statements at the January 2008 hearing did not constitute a knowing and voluntary waiver of his right to pursue an appeal as to compensation for asbestos exposure, hepatitis B, and hepatitis C. See United States v. Olano, 507 U.S. 725, 733 (1993) (holding "waiver is the 'intentional relinquishment or abandonment of a known right'" (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938))); Janssen v. Principi, 15 Vet.App. 370, 375 (2001) ("Th[e] concept of an appellant's right to make a knowing and voluntary waiver of consideration of procedural protections is neither foreign to nor prohibited by this Court. To the contrary, this Court has long accepted the ability of appellants to waive certain procedural rights."). The Court further notes that the hearing officer did not comply with his duty to fully explain to the appellant the issues in terms of the scope of the claim for benefits. See Bryant v. Shinseki, 23 Vet.App. 488, 492-93 (2010); 38 C.F.R. § 3.103(c)(2). A Board hearing officer's statement that only certain issues are for
discussion during a hearing does not inform the appellant that other issues not discussed during the hearing no longer remain on appeal. And, the appellant's consent to limit the scope of the hearing to certain other issues does not constitute a knowing and voluntary waiver of his right to pursue all issues on appeal.
For all of the above reasons, the Board was obligated to consider the merits of all issues listed in the SOC, and it erred in failing to do so. Accordingly, the Court will reverse the Board's determination that the appellant's claims for asbestos exposure, hepatitis B, and hepatitis C were no longer in appellate status and will remand those claims for consideration by the Board on the merits. See Robinson, supra.
9

2. Claims Not Addressed by the Board
To the extent that the appellant makes arguments concerning his claims for memory loss, migraines, and fasciitis, which were not decided by the Board, the Court has no jurisdiction to consider these claims on the merits absent a Board decision addressing them. See Jarrell, 20 Vet.App. at 331 (noting that the Board does not have jurisdiction over a claim until the RO first issues a decision on it); see also 38 U.S.C. § 7104(a). The Court notes that it is not apparent from the record that the appellant ever filed an NOD as to these claims after the RO decided them. To the extent that the appellant believes he has a pending appeal as to these claims, he should raise this issue to VA. See DiCarlo v. Nicholson, 20 Vet.App. 52, 55 (2006). If the Board determines that no timely NOD was filed or if it denies the claims on the merits, the appellant can appeal by filing a Notice of Appeal with the Court within 120 days of the Board's decision. 38 U.S.C. § 7266(a).

B. Appellant's Merit Argument
The Court acknowledges the appellant's argument that VA did not meet its duty to assist with respect to his claim for service connection for a lung condition caused by asbestos exposure.
Appellant's Br. at 24. However, as this claim has not been considered on the merits by the Board, the Court will not address this issue, but will allow the Board to consider it in the first instance. See Maggitt v. West, 202 F.3d 1370, 1377 (Fed. Cir. 2000) (finding that the Court "may hear legal arguments raised for the first time with regard to a claim that is properly before the court, [but] it is not compelled to do so in every instance"). Accordingly, the Court will vacate the April 17, 2008, Board decision with respect to the appellant's claims for asbestos exposure, hepatitis B, and hepatitis C and remand those matters for further proceedings consistent with this opinion. However, the appellant's appeal for service connection for memory loss, migraines, and plantar fasciitis is dismissed for lack of jurisdiction because those conditions were not the subject of the Board decision now on appeal. On remand, the appellant is free to submit additional evidence and argument, including the arguments raised in his briefs to this Court, in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order), and the Board must consider any such evidence or argument submitted. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Board shall proceed expeditiously, in accordance with 38 U.S.C. §§ 5109B, 7112 (requiring Secretary to provide for "expeditious treatment" of claims remanded by Board or Court).
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IV. CONCLUSION
After consideration of the appellant's and the Secretary's briefs, and a review of the record, the Board's April 17, 2008, decision is REVERSED with respect to the Board's determination that the appellant's claims for asbestos exposure, hepatitis B, and hepatitis C were no longer in appellate status, and the matters are REMANDED to the Board for further proceedings consistent with this opinion. The appeal as to his claim for service connection for memory loss, migraines, and plantar fasciitis is DISMISSED for lack of jurisdiction.

SCHOELEN, Judge, joins, concurring in part and dissenting in part: I concur with the majority's decision to vacate the Board decision and remand the matter to the Board for further proceedings.
I must dissent, however, from the remainder of the majority's decision. A remand is warranted in this case because the Board failed to give an adequate statement of reasons or bases for its conclusion that Mr. Evans had not filed a Substantive Appeal on three of the six issues that were identified in his NOD and the RO's SOC.
The Board indicated that it arrived at its conclusion that three of the issues "no longer remain[ed] in an appellate status" because the appellant stated in his Substantive Appeal that "he was only appealing the issues of entitlement to service connection for a back disorder and residuals of a collapsed lung and for an increased evaluat[ion] for residuals of a fractured distal left fibular shaft." R. at 4. However, a review of Mr. Evans's Substantive Appeal indicates that he did not
actually state that he was limiting his appeal to three issues. Because it is apparent that the Board
interpreted the various statements that Mr. Evans made on the Substantive Appeal to arrive at its
conclusion, it is important for the Court to review the appellant's Substantive Appeal.
A Substantive Appeal must satisfy two criteria. It must "identify the benefits sought" and
"set out specific allegations or error of fact or law." 38 U.S.C. § 7105(d)(3); 38 C.F.R. § 20.202
(2010). To "the extent feasible, the argument should be related to specific items in the [SOC]."
38 C.F.R. § 20.202. The purpose of the Substantive Appeal specificity requirement is to give the
Board some guidance as to what error the claimant perceives occurred in his case. Ortiz v. Shinseki,
23 Vet.App. 353, 357 (2010) (holding that the Substantive Appeal procedure places "a burden on
11
claimants to expand upon their initial disagreement with the RO decision by setting forth–however
inartfully–a particular theory of error for the Board to decide"). If an SOC involves multiple issues,
the Substantive Appeal must indicate that the claimant wishes to appeal all of the issues set forth in
the SOC or "it must specifically identify the issues appealed." 38 C.F.R. § 20.202.
VA created the VA Form 9 for claimants to use to file a Substantive Appeal. The VA Form
9 contains clear instructions to claimants as to how to complete the Form 9 so that it satisfies both
statutory requirements for a Substantive Appeal. The instructions on the VA Form 9 direct a
claimant that the purpose of box 9 is to identify the issues that the claimant wishes to appeal. The
claimant is then given a choice to complete either box 9.A. or 9.B., depending upon whether or not
he is appealing all of the issues listed on the SOC or Supplemental SOC (SSOC). The directions
instruct the claimant to check box 9.A. if he is interested in appealing all of the issues listed on the
SOC. R. at 309. That box states 4 "I WANT TO APPEAL ALL OF THE ISSUES LISTED ON THE
STATEMENT OF THE CASE AND ANY SUPPLEMENTAL STATEMENTS OF THE CASE
THAT MY LOCAL VA OFFICE SENT TO ME." R. at 309.
Alternatively, the Form 9 instructs the claimant to check box 9.B. only if he is appealing
some but not all of the issues on the SOC. Id. The preprinted language in block 9.B. states: "I
4 The instructions on the back of the VA Form 9 state in pertinent part:
.
Block 9. Save what you want to tell us about why you are appealing for the next
block. This is the block where you tell us exactly what you are appealing. You do this
by identifying the "issues" you are appealing. Your local VA office has tried to
accurately identify the issues and has listed them on the SOC and any SSOC it sent
you.
If you think that your local VA office has correctly identified the issues you are
appealing and, after reading the SOC and any SSOC you received, you still want to
appeal its decisions on all those issues, check the first box in block 9. Do not check
the second box if you check the first box.
Check the second check box in block 9 if you only want to continue your appeal on
some of the issues listed on the SOC and any SSOC you received. List the specific
issues you want to appeal in the space under the second box.
Emphasis in original.
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HAVE READ THE [SOC] AND ANY [SSOC] I RECEIVED. I AM ONLY APPEALING THESE
ISSUES. (LIST BELOW)." Box 9.B. further instructs the claimant to identify the issues he wishes
to appeal in the space provided below the box. The instructions on the VA Form 9 make clear that
a claimant completes either box 9.A. or 9.B., but not both boxes.
Here, Mr. Evans checked the first preprinted box in section 9.A. indicating that he wished
to appeal all of the issues on the Statement of the Case. R. at 309. However, Mr. Evans also
partially completed block 9.B. Although he did not check Block 9.B., he identified three issues in
the space below the box: a fractured distal fibular shaft, back injury, and collapsed lung. Id. By
checking box 9.A. and partially completing box 9.B., the appellant created confusion regarding
which issues he intended to appeal.
Adding to the confusion regarding the appellant's intent is the manner in which he completed
box 10 of the form. Block 10 of VA Form 9, is entitled: "HERE IS WHY I THINK THAT VA
DECIDED MY CASE INCORRECTLY." R. at 309. The VA Form 9 states that the purpose of
block 10 is to allow the claimant to list the errors that VA committed when it denied the claims. The
VA Form 9 directs the claimant to make specific allegations of error with respect to the RO denial
of his claims in this space. 5 Id. Mr. Evans completed block 10 and made general allegations of error
regarding the three claims that he identified in Block 9B. However, he did not make any argument
regarding the other claims that were listed on the SOC.
Here, ascertaining the appellant's intent is difficult because of the manner in which he
completed the VA Form 9. Mr. Evans checked 9.A. indicating that he wished to appeal all of the
issues listed in the SOC, but he also partially completed 9.B., which is reserved for claimants who
seek to appeal some but not all of the issues listed on the SOC. By identifying only three issues on
appeal under 9.B., the appellant expressed an intent that is obviously inconsistent with the intent he
expressed by checking box 9.A. to appeal all of the issues. This confusion is compounded by the
5 The instructions on the VA Form 9 with regard to Block 10 state in pertinent part:
Use this block to tell us why you disagree with the decision made by your local VA
office. Tie your arguments to the issues you identified in block 9. Tell us what facts
you think VA got wrong and/or how you think VA misapplied the law in your case.
Try to be specific. . . . . .
13
way that the appellant completed box 10. Under that box, the appellant made arguments regarding
errors that the RO had committed regarding its denial of the same three issues that he indicated he
was appealing in box 9.B.
Faced with a Substantive Appeal that contained conflicting statements regarding the issues
that Mr. Evans intended to appeal, the Board concluded that Mr. Evans intended to limit his appeal
to only three of the issues listed in the SOC. The deficiency in the Board decision is that it does not
provide an explanation as to how it resolved the seemingly conflicting statements on Mr. Evans's
Substantive Appeal to arrive at its conclusion. See Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990)
("A bare conclusory statement, without both supporting analysis and explanation, is neither helpful
to the veteran, nor 'clear enough to permit effective judicial review,' nor in compliance with statutory
requirements.") (quoting Int'l Longshoremen's Assoc. v. Nat'l Mediation Bd., 870 F.2d 733, 735
(D.C. Cir. 1989)). Additionally, it is unclear whether the Board reached this conclusion after
sympathetically reading Mr. Evans's Substantive Appeal. See Szemraj v. Principi, 357 F.3d 1370,
1373 (Fed. Cir. 2004); Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001);
Robinson v. Peake, 21 Vet.App. 545 (2008).
The Board's only explanation for its decision is the cursory statement that the appellant
"stated" that he intended to limit his appeal. However, this summary conclusion is inadequate
because it does not provide this Court or the appellant with an explanation of how the Board
considered and weighed the conflicting information on the VA Form 9. The majority characterizes
the issue on appeal as "whether a claimant limits the issues before the Board when he files a VA
Form 9 in which he checks the box indicating his desire to appeal all issues listed in the SOC, but
also specifies on the Form 9 arguments as to some, but not all, issues listed in the SOC." However,
the Board did not give this reason for its decision. In fact, it is impossible to discern from the
cursory nature of the Board decision that the Board arrived at its conclusion because the appellant
did not make an argument as to each of the six issues listed in the SOC. There is no mention in the
Board decision that it considered Mr. Evans's Substantive Appeal inadequate because he did not
comply with the specificity requirement as to the three disputed issues. It is impossible to determine
from the Board's conclusory language that this was a basis for its decision. It is because of this
fundamental deficiency in the Board's statement of reasons or bases that I would remand this Board
14
decision.
The Board decision is also inadequate because the Board did not follow established
procedure when it sua sponte raised the issue of the adequacy of the appellant's Substantive Appeal
form. See 38 C.F.R. § 20.101(d). There is no evidence in the record that the Board followed the
requirements of § 20.101(d). Mr. Evans was not notified that the Board questioned the adequacy of
his Substantive Appeal, and he was not allowed an opportunity to present written argument and
evidence on this issue before the Board decided the issue of the adequacy of his Substantive Appeal.
This Court has repeatedly held that the Secretary must comply with his own regulations. See, e.g.,
Snyder v. Principi, 15 Vet.App. 285, 291 (2001) (citing Vitarelli v. Seaton, 359 U.S. 535, 539-40
(1959), Service v. Dulles, 354 U.S. 363, 383-89 (1957), and United States ex rel.
Accardi v. Shaughnessy, 347 U.S. 260, 265-68 (1954), for the proposition that "a federal agency is
bound to follow its own regulations as long as they are in force"); Cox v. Gober, 14 Vet.App. 148,
152 (2000) (same); Patton v. West, 12 Vet.App. 272, 283 (1999); Buzinski v. Brown, 6 Vet.App. 360,
367 (1994). On remand, I would instruct the Board to comply with the terms of 20 C.F.R. § 20.101
to clarify Mr. Evans's intent.
I respectively disagree with the majority's holding that if a claimant uses VA Form 9 and
checks box 9.A., indicating that he wishes to appeal all of the issues listed on the SOC, then all
issues listed on the SOC are on appeal to the Board. The majority holds that the Secretary waives
the statutory adequacy requirements for a Substantive Appeal when he includes a box on the VA
Form 9 allowing a claimant to check off that he wishes to appeal all issues listed in the SOC. Under
the majority's view, the Board would be obligated to consider all the issues on appeal and to review
all the issues and theories reasonably raised by the evidence of record even if the appellant had not
stated a single argument.
The rationale for their broad holding is that VA Form 9 is ambiguous because it does not
inform a claimant that certain issues will be deemed abandoned if the claimant fails to list errors in
the RO denial of his claims. Although I share the majority's concern that procedure should not be
a trap for the lay veteran, I disagree with the majority that VA Form 9 is ambiguous. The VA Form
9 is designed to enable a claimant to satisfy the statutory criteria for a Substantive Appeal. The form
is clearly written, and the instructions provide sufficient detail to enable a claimant to properly
15
complete the form to satisfy both of the statutory criteria for a Substantive Appeal. Essentially, the
majority faults the VA Form 9 not because it is unclear or confusing, but because it does not warn
a claimant that if he does not complete the form properly, he runs the risk that his Substantive
Appeal will be deemed inadequate. However, the majority points to no law that requires VA to warn
claimants of the legal consequences that arise if they fail to properly complete the VA Form 9.
Additionally, although we held in Percy v. Shinseki, 23 Vet.App. 37, 47-48 (2009), that the
Board has the power to waive the timeliness and sufficiency requirements for a Substantive Appeal, the Court did so after considering VA's conduct in handling Mr. Percy's claim. The Court held that by treating the appellant's issue of a rating increase as though it had been properly appealed for more than five years, during which time "VA engaged in substantive and procedural development,
scheduled hearings on the matter, and took testimony on the matter," VA waived any objection it might have had to the timeliness and adequacy of the appellant's Substantive Appeal. Id. at 47.
Here, the majority does not explain how the rather extraordinary facts of Percy are presented by this appeal. Under the majority's approach, the mere fact that a claimant used a VA Form 9 to file his
Substantive Appeal is a sufficient reason to find that the Secretary waived the specificity requirement of the Substantive Appeal. Thus, the majority essentially holds that the Secretary waives the
specificity requirement in every case in which a claimant uses a VA Form 9, but the majority has pointed to no evidence of such an intent by the Secretary. Thus, I must respectfully dissent.
16

APPEAL TO BOARD OF VETERANS’ APPEALS
Form Approved: OMB No. 2900-0085
Respondent Burden: 1 Hour
IMPORTANT: Read the attached instructions before you fill out this form. VA also encourages you to get assistance from your
representative in filling out this form.
1. NAME OF VETERAN (Last Name, First Name, Middle Initial) 2. CLAIM FILE NO. (Include prefix) 3. INSURANCE FILE NO., OR LOAN NO.
4. I AM THE:
VETERAN
OTHER (Specify)
VETERAN’S WIDOW/ER VETERAN’S CHILD VETERAN’S PARENT
6. MY ADDRESS IS:
(Number & Street or Post Office Box, City, State & ZIP Code)
A. HOME (Include Area Code) B. WORK (Include Area Code)
7. IF I AM NOT THE VETERAN, MY NAME IS:
(Last Name, First Name, Middle Initial)
8. HEARING
IMPORTANT: Read the information about this block in paragraph 6 of the attached instructions. This block is used to request a Board of Veterans’
Appeals hearing. DO NOT USE THIS FORM TO REQUEST A HEARING BEFORE A VA REGIONAL OFFICE HEARING OFFICER.
Check one (and only one) of the following boxes:
I DO NOT WANT A BVA HEARING.
I WANT A BVA HEARING IN WASHINGTON, DC.
I WANT A BVA HEARING AT A LOCAL VA OFFICE BEFORE A MEMBER, OR MEMBERS, OF THE BVA.
(Not available at Washington, DC, or Baltimore, MD, Regional Offices.)
9. THESE ARE THE ISSUES I WANT TO APPEAL TO THE BVA: (Be sure to read the information about this block in paragraph 6 of the attached instructions.)
I WANT TO APPEAL ALL OF THE ISSUES LISTED ON THE STATEMENT OF THE CASE AND ANY SUPPLEMENTAL STATEMENTS OF THE CASE THAT MY
LOCAL VA OFFICE SENT TO ME.
I HAVE READ THE STATEMENT OF THE CASE AND ANY SUPPLEMENTAL STATEMENT OF THE CASE I RECEIVED. I AM ONLY APPEALING THESE ISSUES: (List below.)
A.
B.
C.
(Continue on the back, or attach sheets of paper, if you need more space.)
11. SIGNATURE OF PERSON MAKING THIS APPEAL 12. DATE 13. SIGNATURE OF APPOINTED REPRESENTATIVE, IF ANY
(Not required if signed by appellant. See paragraph 6 of the
instructions.)
14. DATE
VA FORM
JAN 1998(RS) 9 JetForm
5. TELEPHONE NUMBERS
A.
B.
10. HERE IS WHY I THINK THAT VA DECIDED MY CASE INCORRECTLY: (Be sure to read the information about this block in paragraph 6 of the attached instructions.)
We are required by law to give you the information in this box. Instructions for filling out the form follow the box.
RESPONDENT BURDEN: VA may not conduct or sponsor, and the respondent is not required to respond to, this collection of
information unless it displays a valid Office of Management and Budget (OMB) Control Number. The information requested is
approved under OMB Control Number (2900-0085). Public reporting burden for this collection of information is estimated to average
one hour per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the
data needed, and completing and reviewing the collection of information. Send comments regarding this burden estimate or any
other aspects of this collection, including suggestions for reducing this burden, to VA Clearance Officer (045A4), 810 Vermont
Ave., NW, Washington, DC 20420. DO NOT send requests for benefits to this address.

PRIVACY ACT STATEMENT: Our authority for asking for the information you give to us when you fill out this form is
38 U.S.C. 7105(d)(3), a Federal statute that sets out the requirement for you to file a formal appeal to complete your appeal on a VA
benefits determination. You use this form to present your appeal to the Board of Veterans’ Appeals (BVA). It is used by VA in
processing your appeal and it is used by the BVA in deciding your appeal. Providing this information to VA is voluntary, but if you
fail to furnish this information VA will close your appeal and you may lose your right to appeal the benefit determinations you told us
you disagreed with. The Privacy Act of 1974 (5 U.S.C. 552a) and VA’s confidentiality statue (38 U.S.C. 5701), as implemented by
38 C.F.R. 1.526(a) and 1.576(b), require individuals to provide written consent before documents or information can be disclosed to
third parties not allowed to receive records or information under any other provision of law. However, the law permits VA to
disclose the information you include on this form to people outside of VA in some circumstances. Information about that is given in
notices about VA’s "systems of records" that are periodically published in the Federal Register as required by the Privacy Act of
1974. Examples of situations in which the information included in this form might be released to individuals outside of VA include
release to the United States Court of Veterans Appeals, if you later appeal the BVA’s decision in your case to that court; disclosure to
a medical expert outside of VA, should VA exercise its statutory authority under 38 U.S.C. 5109 or 7109, to ask for an expert
medical opinion to help decide your case; disclosure to law enforcement personnel and security guards in order to alert them to the presence of a dangerous person; disclosure to law enforcement agencies should the information indicate that there has been a
violation of law; disclosure to a congressional office in order to answer an inquiry from the congressional office made at your
request; and disclosure to Federal government personnel who have the duty of inspecting VA’s records to make sure that they are
being properly maintained. See the Federal Register notices described above for further details.

INSTRUCTIONS
1. CONSIDER GETTING ASSISTANCE: We have tried to give you the general information most people need to complete this
form in these instructions, but the law about veterans’ benefits can be complicated. If you have a representative, we encourage you
to work with your representative in completing this form. If you do not have a representative, we urge you to consider getting one.
Most people who appeal to the Board of Veterans’ Appeals (BVA) do get a representative. Veterans’ Service Organizations (VSOs)
will represent you at no charge and most people (more than 80 percent) are represented by VSOs. Under certain circumstances, you
may pay a lawyer or "agent" to represent you. (See the references in paragraph 9.) Your local VA office can provide you with
information about VSOs who are willing to represent you and forms that you will need to complete to appoint either a VSO or an
attorney to represent you. Your local bar association may be able to provide you with the names of attorneys who specialize in
veterans’ law. VA has an 800 number that you can call for assistance: 1-800-827-1000. There are also a few agents recognized by
VA who can represent claimants.

2. WHAT IS THIS FORM FOR? You told your local VA office that you disagreed with some decision it made on your claim for
VA benefits, called filing a "Notice of Disagreement." That office then mailed you a "Statement of the Case" (SOC) that told you
why and how it came to the decision that it did. After you have read the SOC, you must decide if you want to go ahead and complete
your appeal so that the BVA will review your case. If you do, you or your representative must fill out this form and file it with VA.
"Filing" means delivering the completed form to VA in person or by mailing it to VA. Paragraph 4 tells you how much time you
have to file this form and paragraph 7 tells you where you file it.
When we refer to "your local VA office" in these instructions, we mean the VA Regional Office that sent you the "Statement of the
Case" or, if you have moved out of the area served by that office, the VA Regional Office that now has your VA records.

3. DO I HAVE TO FILL OUT THIS FORM AND FILE IT? Fill out this form and file it with VA if you want to complete your
appeal. If you do not, VA will close your appeal without sending it to the BVA for a decision. If you decide that you no longer want
to appeal after you have read the SOC, you don’t have to do anything.

4. HOW LONG DO I HAVE TO COMPLETE THIS FORM AND FILE IT? Under current law, there are three different ways
to calculate how much time you have to complete and file this form. The one that applies to you is the one that gives you the most
time.
(a) You have one year from the day your local VA office mailed you the notice of the decision you are appealing.
(b) You have 60 days from the day that your local VA office mailed you the SOC.
(c) Your local VA office may have sent you an update to the SOC, called a "Supplemental Statement of the Case" (SSOC).
Under an opinion by VA’s General Counsel, if that SSOC discusses evidence in your case that VA received within the
one-year period described in paragraph 4(a) of these instructions, above, and if you have not already filed this form, then you
have at least 60 days from the time your local VA office mailed you the SSOC to file it even though the one-year period
has already expired.
3
4
There is one special kind of case, called a "simultaneously contested claim," where you have 30 days to file this form instead of the
longer time periods described above. A "simultaneously contested claim" is a case where two different people are asking for the
same kind of VA benefit and one will either lose, or get less, if the other wins. If you are not sure whether this special exception
applies, ask your representative or call your local VA office.
If you have any questions about the filing deadline in your case, ask your representative or your local VA office. Filing on time is
very important. Failing to file on time could result in you losing your right to appeal.

5. WHAT IF I NEED MORE TIME? If you need more time to complete this form and file it, write to your local VA office,
explaining why you need more time. You must file your request for more time with your local VA office before the normal time for
filing this form runs out. If you file by mail, VA will use the postmark date to decide whether you filed the form, or the request for
more time to file it, on time.

6. WHAT KIND OF INFORMATION DO I NEED TO INCLUDE WHEN I FILL OUT THE FORM? While most of the
form is easy to understand, we will go through the blocks where you might need some additional information.
Block 3. If your appeal involves an insurance claim or some issue related to a VA home loan, enter your VA insurance or
VA loan number here. For most kinds of cases, you will leave this block blank.
Blocks 4-7. These blocks are for information about the person who is filing this appeal. If you are a representative filling
out this form for the person filing the appeal, fill in the information about that person, not yourself. Block 7 can be left
blank if the person filing the appeal is the veteran.
Block 8. It is very important for you to check one, and only one, of the boxes in block 8. This lets us know whether or
not you want an opportunity to appear personally before one or more members of the BVA to give them information about
your case, and, if so, where you want to appear. If you do not check one of the boxes, BVA will assume that you DO NOT
want a BVA hearing.
If you ask for a hearing, you and your representative (if you have one) can tell us why you think the BVA should act
favorably on your appeal (present argument). You can also tell us about the facts behind your claim and you can bring
others (witnesses) to the hearing who have information to give the BVA about your case. At your option, you can submit
more evidence at a hearing requested on this form. If you do ask for a hearing, it can be very helpful to have a
representative assist you at the hearing.
Here is specific information about each of the check boxes in block 8.
Box A: You may feel that you have already sent VA everything the BVA will need to decide your case. It is not
necessary for you to have a hearing for BVA to decide your appeal. Check this box if you decide that you do not
want a hearing. If you check this box, do not check any of the other boxes in block 8.
Boxes B and C: Check box B or box C if you want to appear in person before a member, or members, of the BVA
to present your case. We have provided two different boxes because you can have your BVA hearing in one
of two different places. You can have your hearing at the BVA’s offices in Washington, DC, or you can ask for
a BVA hearing at your local VA office. In making your decision, you should know that VA cannot pay any expenses
you (or your representative or witnesses) incur in connection with attending a hearing. Having your BVA hearing at
your local VA office is usually less expensive for you, because you won’t have as much expense for travel for
yourself, your witnesses, and your representative. On the other hand, it sometimes takes longer to get your case
added to the calendar for BVA hearings at local VA offices because BVA members conduct hearings in the field
only during special trips. You can check with your local VA office to get an estimate of how long it may be before
your case could be scheduled for a BVA hearing there.
Note: The BVA has initiated a new program for conducting hearings electronically. This permits BVA member(s) sitting in
Washington, DC, to hold a hearing with you at your local VA office. Each hears the other through teleconferencing, or hears and sees the other through videoconferencing. We have not provided a check box for this kind of hearing, because this new kind of hearing is only available at a few VA Regional Offices. If you are interested in this kind of hearing, contact your local VA office to see if it is available in your area and inquire about procedures

HEARING OFFICER HEARINGS: A hearing before a local VA hearing officer, instead of before a member of the BVA, is
not a BVA hearing. You can request a local hearing officer hearing by writing directly to the regional office. DO NOT use
this form to request that kind of hearing. If you do, it will delay your appeal. You should also know that requesting a
hearing before a local VA hearing officer does not extend the time for filing this form.
Block 9. Save what you want to tell us about why you are appealing for the next block. This is the block where you tell
us exactly what you are appealing. You do this by identifying the "issues" you are appealing. Your local VA office has
tried to accurately identify the issues and has listed them on the SOC and any SSOC it sent you.
If you think that your local VA office has correctly identified the issues you are appealing and, after reading the SOC and
any SSOC you received, you still want to appeal its decisions on all those issues, check the first box in block 9. Do not
check the second box if you check the first box.
Check the second check box in block 9 if you only want to continue your appeal on some of the issues listed on the SOC
and any SSOC you received. List the specific issues you want to appeal in the space under the second box. While you
should not use this form to file a new claim or to appeal new issues for the first time, you can also use this space to call
the BVA’s attention to issues, if any, you told your local VA office in your Notice of Disagreement you wanted to appeal
that are not included in the SOC or a SSOC. If you want to file a new claim, or appeal new issues (file a new Notice of
Disagreement), do that in separate correspondence.
Block 10. Use this block to tell us why you disagree with the decision made by your local VA office. Tie your arguments
to the issues you identified in block 9. Tell us what facts you think VA got wrong and/or how you think VA misapplied
the law in your case. Try to be specific. If you are appealing a rating percentage your local VA office assigned for one
or more of your service-connected disabilities, tell us for each service-connected disability rating you have appealed what
rating would satisfy your appeal (The SOC, or SSOC, includes information about what disability percentages can be
assigned for each disability under VA’s "Rating Schedule.") You may want to refer to the specific items of evidence that
you feel support your appeal, but you do not have to describe all of the evidence you have submitted. The BVA will have
your complete file when it considers your case. You should not attach copies of things you have already sent to VA.
If you need more space to complete block 10, you can continue it on the back of the form and/or you can attach sheets of
paper to the form. If you want to complete this part of the form using a computer word-processor, you may do so. Just
attach the sheets from your printer to the form and write "see attachment" in block 10.
Block 11. This form can be signed and filed by either the person appealing the local VA decision, or by his or her
representative. Sign the form in block 11 if you are the person appealing, or if you are a guardian or other properly
appointed fiduciary filing this appeal for someone else. In cases where an incompetent person has no fiduciary, or the
fiduciary has not acted, that person’s "next friend," such as a family member, can sign and file this form. If the
representative is filing this form, this block can be left blank. Regardless of who signs the form, we encourage you
to have your representative check it over before it is filed. Place the date you sign in block 12.
Block 13. If you are a representative filing this form for the appellant, sign here. Otherwise, leave this block blank.
If you are an accredited representative of a veterans’ service organization (VSO), also insert the name of the VSO in this
block. Note that signing this form will not serve to appoint you as the appellant’s representative. Contact your local VA
office if you need information on appointment. Place the date you sign in block 14.

7. WHERE DO I FILE THE FORM ONCE I HAVE COMPLETED IT? When you have completed the form, signed and dated
it, send it to the VA office that has your records. Unless you have recently moved outside the area that it serves, this is the office
whose address is at the top of the letter VA sent you with the SOC.

8. OTHER SOURCES OF INFORMATION: You can get information about the VA appeal process written in informal language by asking your local VA office for a copy of a pamphlet called "Understanding the Appeal Process." For more detailed technical information about the VA appeal process, see the BVA’s Rules of Practice. You will find them in Part 20 of Title 38 of the Code of Federal Regulations (C.F.R.). Many local public libraries have the C.F.R., or the library staff may be able to tell you where you can locate a copy. If you have a representative, your representative may have a copy of the C.F.R. A great deal of information is
available on the Internet at "http://www.va.gov." (Do not include the quotation marks or the final period when typing in the Internet
address.)

9. SPECIAL NOTE FOR ATTORNEYS AND VA ACCREDITED AGENTS. There are statutory and regulatory restrictions on the payment of your fees and expenses and requirements for filing copies of your fee agreement with your client with VA. See 38 U.S.C. 5904 and 38 C.F.R. 20.609-.610.
NOTE: Please separate these instructions from the form at the perforation before you file the form with VA. We suggest that you
keep these instructions with your other papers about your appeal for future reference.

5
CONTINUATION SHEET FOR ITEM 10
(Attach additional sheets, if necessary)
2

Veteran Wins at U.S. Court of Appeals for Veterans Appeals, VA Ordered to Pay $20,000 Sanction

Full article at: VA ordered to pay claim faster after local veteran files suit

By Heather Yakin
Published: 2:00 AM - 01/29/11

Mr. Harvey, a Vietnam-era veteran, has won his case in the U.S. Court of Appeals for Veterans Claims[ full decision at Harvey v. Shinseki], which ordered "the Department of Veterans Affairs to pay out his court-ordered claim in a more timely manner." "But nothing happened for 18 months , which the court called “a parade of administrative miseries,” therefore the court "ordered the VA to pay his legal costs and a $20,000 sanction for civil contempt, noncompliance and lack of reasonable diligence. Harvey was represented by Katrina Eagle, of Finklestein & Partners law firm."

VA Publishes Final Agent Orange Rules for Veterans Exposed in Korea

Under the final regulation published today in the Federal Register, VA will presume herbicide exposure for any Veteran who served between April 1, 1968, and Aug. 31, 1971, in a unit determined by VA and the Department of Defense (DoD) to have operated in an area in or near the Korean DMZ in which herbicides were applied.

VA Publishes Final Regulation to Aid Veterans Exposed to Agent Orange in Korea
January 25, 2011

WASHINGTON – Veterans exposed to herbicides while serving along the demilitarized zone (DMZ) in Korea will have an easier path to access quality health care and benefits under a Department of Veterans Affairs (VA) final regulation that will expand the dates when illnesses caused by herbicide exposure can be presumed to be related to Agent Orange.

“VA’s primary mission is to be an advocate for Veterans,” said Secretary of Veterans Affairs Eric K. Shinseki “With this new regulation VA has cleared a path for more Veterans who served in the demilitarized zone in Korea to receive access to our quality health care and disability benefits for exposure to Agent Orange.”

Under the final regulation published today in the Federal Register, VA will presume herbicide exposure for any Veteran who served between April 1, 1968, and Aug. 31, 1971, in a unit determined by VA and the Department of Defense (DoD) to have operated in an area in or near the Korean DMZ in which herbicides were applied.

Previously, VA recognized that Agent Orange exposure could only be conceded to Veterans who served in certain units along the Korean DMZ between April 1968 and July 1969.

In practical terms, eligible Veterans who have specific illnesses VA presumes to be associated with herbicide exposure do not have to prove an association between their illness and their military service. This “presumption” simplifies and speeds up the application process for benefits and ensures that Veterans receive the benefits they deserve.

Click on these links to learn about Veterans' diseases associated with Agent Orange exposure at http://www.publichealth.va.gov/exposures/agentorange/diseases.asp and birth defects in children of Vietnam-era Veterans at http://www.publichealth.va.gov/exposures/agentorange/birth_defects.asp.

VA encourages Veterans with covered service in Korea who have medical conditions that may be related to Agent Orange to submit their applications for access to VA health care and compensation as soon as possible so the agency can begin processing their claims.

Individuals can go to website http://www.vba.va.gov/bln/21/AO/claimherbicide.htm to get a more complete understanding of how to file a claim for presumptive conditions related to herbicide exposure, as well as what evidence is needed by VA to make a decision about disability compensation or survivors benefits.

Additional information about Agent Orange and VA’s services for Veterans exposed to the chemical is available at www.publichealth.va.gov/exposures/agentorange.

The regulation is available on the Office of the Federal Register website at http://www.ofr.gov/.

VAOIG Report Finds Incomplete Compliance with Reuseable Medical Equipment

Combined Assessment Program Summary Report Re-Evaluation of Reusable Medical Equipment and Environment of Care at the Central Texas Veterans Health Care System Temple, Texas


Report Number 10-03926-76, 1/26/2011 | Full Report (PDF)

The purposes of the re-evaluation were to determine whether the facility had comprehensive, effective reprocessing of reusable medical equipment (RME) and a safe and clean health care environment. The results indicated notable improvement in the RME and environment of care (EOC) areas cited for noncompliance in the Combined Assessment Program review conducted by the OIG in March 2010. For RME, senior managers obtained a consultant to complete an organizational assessment of Supply, Processing, and Distribution and to implement improvements. Facility managers took immediate action to implement and correct many of the identified EOC deficiencies. However, further improvement is needed in both RME and EOC. We will follow up on all of the recommendations from the March CAP at the next scheduled CAP. Therefore, we made no new recommendations.

VAOIG Report No. 09-01038-77 Finds Problems with MRI Facilities

Combined Assessment Program Summary Report Evaluation of Magnetic Resonance Imaging Safety in Veterans Health Administration Facilities


Summary Report Number 09-01038-77, 1/26/2011 | Full Report (PDF) also available

The purposes of the evaluation were to determine whether facilities: (1) implemented and maintained magnetic resonance imaging (MRI) safety and infection control policies and procedures, (2) provided adequate employee training, (3) completed appropriate patient screening and informed consents, and (4) conducted risk assessments of MRI suites. We identified four areas where compliance with MRI safety requirements and guidelines needs to improve. We recommended that the Under Secretary for Health, in conjunction with VISN and facility senior managers, ensures that: All employees who may need to enter the MRI suite receive initial and annual MRI safety training. Employees screen patients prior to MRI scans, obtain necessary signatures on screening forms, retain screening forms in patient medical records, and document follow-up on potential contraindications for MRI. Informed consents specific to MRI with contrast are completed for all high-risk patients and documented in the medical records. Physical barriers are in place, call systems are tested and maintained, risk assessments are completed, and emergency drills are conducted.

Single Judge Application, Continuity of Symptomatology, lay evidence; C.F.R. 3.303, Falzone v. Brown, 8 Vet.App.

Excerpt from Decision below:
"The Secretary contends that Mr. Mayhew's lay statements are not new and
material because they cannot establish that his "pre-existing pes planus was permanently aggravated in service" because the medical evidence reveals that he was diagnosed with both pes planus and rheumatoid arthritis. Secretary's Br. at 9. The Secretary further argues that, because Mr. Mayhew's testimony could not be considered new and material evidence, the Board did not have a duty to discuss it.
Secretary's Br. at 9. However, the October 24, 2006, Board decision
only states that "lay statements, even if new, cannot serve as a predicate to reopen a previously disallowed claim." R. at 8 (internal parentheses omitted). The Board provides no further reasons or bases for this determination beyond
7


citing to Moray v. Brown, 5 Vet.App. 211 (1993). This Court has stated
that, although Moray held that "a lay assertion of medical causation will not suffice to reopen a claim. . . . where the determinative issue is not one of medical causation but of continuity of symptomatology, lay testimony may suffice to reopen a claim." Falzone v. Brown, 8 Vet.App. 398, 403 (1995); see 38 C.F.R. § 3.303(a) (VA must consider all evidence, including medical and lay evidence). Thus, the Court finds that the Board erred in failing to address Mr. Mayhew's lay statements. Id."

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UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 06-3577
CHARLES E. MAYHEW, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before HAGEL, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30 (a),
this action may not be cited as precedent.
HAGEL, Judge: Charles E. Mayhew appeals through counsel an October 24,
2006, Board
of Veterans'Appeals (Board) decision denying his request to reopen his
previouslydisallowed claim
for entitlement to VA benefits for bilateral pes planus. Record (R.) at 1-
11. The Court has
jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a) to review that
decision, and a single judge
may conduct that review. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (
1990). Because the
Board did not provide adequate reasons or bases for its determinations and
VA did not fulfill its duty
to notify, the October 24, 2006, Board decision is vacated and the matter
is remanded for
readjudication consistent with this decision.
I. FACTS
Mr. Mayhew served on active dutyin the U.S. Marine Corps from January1968
to July1969,
including service in Vietnam. R. at 53. His August 1967 service entrance
examination diagnosed
him with pes planus, but noted that he denied any history of "foot trouble
." R. at 15-17, 30. The
service medical records also note that in March and April 1969, Mr. Mayhew
was treated for foot
pain and recommended for a three-month medical profile. R. at 48-50. Mr.
Mayhew's July 1969
separation examination indicated that his feet were normal. R. at 47.


In March 1986, Mr. Mayhew applied for VA benefits for a foot condition. R.
at 61-64. An
April 1987 VA medical examination report noted that he had experienced
swelling of the hand
joints, wrists, and feet and diagnosed him with rheumatoid arthritis. R.
at 70-71, 87-88. In June
1987, a VA regional office denied Mr. Mayhew's claim. R. at 91-93. Mr.
Mayhew did not appeal
that decision and it became final.
In October 1988, Mr. Mayhew filed a claim for "flat feet," which was
construed as a request
to reopen his previously denied claim. R. at 108-11. Following a November
1988 regional office
denial of his request, Mr. Mayhew appealed to the Board, stating that he
had suffered pain in his feet
and arches during service that resulted in a medical profile that barred
him from combat until his
rotation home. R. at 153, 170. He further stated that the pain stopped
upon his return home but
returned in 1977. R. at 153, 170. The regional office continued to deny Mr.
Mayhew's claim in
December 1988 and March 1989. R. at 116-18, 145-47. He appealed these
denials and was afforded
a hearing before the regional office in November 1989. At the hearing, Mr.
Mayhew testified that
his service in Vietnam, and specifically the weight he had to carry due to
his duties as a M-60
machine gunner and as a member of the 81mm mortar team, caused severe
damage to his feet. R.
at 179-86. In July 1990 the Board denied Mr. Mayhew's claim. R. at 200-04.
In the July 1990
decision, the Board stated that:
Although there were increasing symptoms as a result of combat stress,
there has been
no showing of any increase in the basic pathology of the preexisting pes
planus
during active militaryservice. The temporaryincrease in symptoms as a
result of the
rigors of combat operations is understandable. However, the increase in
symptoms
was only a temporary exacerbation.
R. at 203. Mr. Mayhew did not appeal this decision and it became final.
In June 2002, Mr. Mayhew again sought to reopen his previously denied
claim for VA
benefits for flat feet. R. at 206-07. In October 2002, VA sent Mr. Mayhew
a letter informing him
that the previous denial of his claim was final and that to reopen his
claim, he must submit "new and
material evidence." R. at 225. The October 2002 letter stated that new
evidence could be
"documents, statements from laypersons, medical reports, or other similar
evidence," and stated that
to be material the evidence "must bear directly and substantially upon the
issue for consideration."
R. at 226.
2


In March 2003, the regional office denied Mr. Mayhew's request to reopen
his claim. R. at
258-63. Later that same month, Mr. Mayhew filed a Notice of Disagreement.
R. at 249-50. In
February2004, the regional office issued a Statement of the Case that
continued to deny his request,
which Mr. Mayhew appealed later that month. R. at 272-77, 279-80. In a
July 2004 letter, Mr.
Mayhew's representative stated that Mr. Mayhew's foot symptoms in service
were an early
manifestation of rheumatoid arthritis and that his rheumatoid arthritis
compounded his pes planus.
R. at 293.
At a July2004 hearing, Mr. Mayhew testified that his flat feet exacerbated
his problems with
rheumatoid arthritis. R. at 298-308. Mr. Mayhew also testified that the
problems with his feet
required a 4-month medical profile in 1969 and that he had been taking "
pain killers" and "over-the-
counter medications" since 1969. R. at 299-303. He stated that he did not
have symptoms until
1983 because he "went to the bottom" and took "a lot of pills." R. at 299-
300, 303. At the July
2004 hearing, the decision review officer stated that "the Board of
Veterans' Appeals in their
September 9, 1990, decision made a specific finding that your pre-existing
foot disorder did not
permanently increase in basic pathology during active military service." R.
at 302. The decision
review officer did not explain why the Board had denied Mr. Mayhew's
initial claim. In September
2004, a regional office issued a Supplemental Statement of the Case
denying Mr. Mayhew's request
to reopen his previously denied claim. R. at 311.
In October 2006, after additional development of his claim, the Board
issued the decision on
appeal,denyingMr.
Mayhew'srequesttoreopenhisclaimforentitlementtoVAbenefitsforbilateral
pes planus. R. at 1-11. The Board determined that the July 1990 decision
was final and that the
"[e]vidence received since the July 1990 Board decision does not relate to
an unestablished fact
necessary to substantiate the claim." R. at 3. The Board found that VA had
adequately discharged
its duty to notify Mr. Mayhew of the evidence necessary to substantiate
his claim through the
October 2002 letter, February 2004 Statement of the Case, and the July
2004 hearing. R. at 4. In
so finding, the Board noted that Mr. Mayhew was not given "full, adequate
notice" before the
adjudication of his claim, but found that, because the July 2004 hearing
officer notified him of the
"reasons his claim for entitlement to service connection for bilateral pes
planus were previously
denied," that he was not "prejudiced" by the lack of pre-adjudicatory
notice. R. at 4-6.
3


On appeal, Mr. Mayhew argues that the October 2002 letter did not
adequately notify him
of the evidence necessary to substantiate his claim and that that error
was prejudicial and was not
alleviated by post-decisional documents. Appellant's Br. at 5-9.
Additionally, Mr. Mayhew argues
that the Board failed to provide adequate reasons or bases for its
determination that his medical
testimony regarding post-service symptomatology was not new and material
evidence. Appellant's
Br. at 10-13.
In response, the Secretary concedes that the June 2002 letter did not
adequately notify Mr.
Mayhew. Secretary's Br. at 9. However, the Secretary argues that "the
error did not affect the
essential fairness of the adjudication" because a "reasonable person could
be expected to understand
from the notice what was needed to support his claim." Secretary's Br. at
10-11. The Secretary
argues that because Mr. Mayhew's testimony could not be considered new and
material evidence,
the Board did not have a duty to discuss it. Secretary's Br. at 9.
II. ANALYSIS
A. Duty to Notify
Pursuant to section 5103(a) of title 38, U.S. Code, VA is required to
inform the claimant of
(1) the information and evidence not of record that is necessary to
substantiate the claim, (2) which
portion of that information and evidence, if any, that the claimant is
expected to provide, and (3)
which portion of that information and evidence, if any, that VA will seek
to obtain. In a claim to
reopen a previously and finally denied claim, "VA must notify a claimant
of the evidence and
information that is necessary to reopen the claim and VA must notify the
claimant of the evidence
and information that is necessary to establish his entitlement to the
underlying claim for the benefit
sought by the claimant." Kent v. Nicholson, 20 Vet.App. 1, 9 (2006).
Further, for cases involving
a request to reopen a previously denied claim, "the [Veterans Claims
Assistance Act] requires the
Secretary to look at the bases for the denial in the prior decision and to
respond with a notice letter
that describes what evidence would be necessary to substantiate that
element or elements required
to establish service connection that were found insufficient in the
previous denial." Id. Failure to
complywith anyof these requirements mayconstitute remandable error.
Quartuccio v. Principi, 16
Vet.App. 183, 188 (2000).
4


The purpose of section 5103(a) notification "'is to ensure that the
claimant's case is presented
to the initial decisionmaker with whatever support is available, and to
ensure that the claimant
understands what evidence will be obtained by the VA and what evidence
must be provided by the
claimant' prior to the initial adjudication of his claim." Sanders v.
Nicholson, 487 F.3d 881, 886
(Fed. Cir. 2007), cert. granted sub nom. Peake v. Sanders, 128 S. Ct. 2935 (
U.S. June 16, 2008) (No.
07-1209) (quoting Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir.
2006)). Such notice may
not be satisfied by "post-decisional communications from which a claimant
might have been able
to infer what evidence the VA found lacking in the claimant's presentation
." Mayfield, 444 F.3d at
1333. Notice to be provided under the Veterans Claims Assistance Act
is required to have different contents from the post-decisional notices,
and it is
designed for different purposes–to ensure that the claimant's case is
presented to the
initial decisionmaker with whatever support is available, and to ensure
that the
claimant understands what evidence will be obtained by the VA and what
evidence
must be provided by the claimant.
Id.
Whether a claimant has received adequate notice under the Veterans Claims
Assistance Act
is a "substantially factual determination" by the Board. Mayfield, 444 F.
3d at 1335. Such a
determination is reviewed under a "clearly erroneous" standard of review.
Garrison v. Nicholson,
494 F.3d 1366, 1370 (Fed. Cir. 2007). A factual finding is clearly
erroneous "when although there
is evidence to support it, the reviewing court on the entire evidence is
left with the definite and firm
conviction that a mistake has been committed." United States v. U.S.
Gypsum Co., 333 U.S. 364,
395 (1948).
A claimant has the initial burden of demonstrating that a notice error has
occurred. Sanders,
487 F.3d at 891. Once a notice error has been established, such errors are
reviewed under the rule
of prejudicial error. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir.
2004); see 38 U.S.C.
§ 7261(b)(2) (requiring the Court to "take due account of the rule of
prejudicial error"). All "notice
errors should be presumed prejudicial, requiring reversal unless the VA
can show that the error did
not affect the essential fairness of the adjudication." Sanders, 487 F.3d
at 889. To rebut the
presumption of prejudicial error, VA has the burden of persuading the
Court that the purpose of
notice was not frustrated. Id. That burden requires that the
Secretarydemonstrate, for example, "(1)
5


that any defect was cured by actual knowledge on the part of the claimant
, (2) that a reasonable
person could be expected to understand from the notice what was needed, or (
3) that a benefit could
not have been awarded as a matter of law." Id.
In this case, the Board relied upon the October 2002 letter, February 2004
Statement of the
Case, and the July 2004 hearing to establish that VA fulfilled its duty to
notify. R. at 4. The Court
notes that there is no February 2004 Statement of the Case in the record.
In any event, a Statement
of the Case is a post-decisional document that is inadequate to establish
proper notice. Mlechick v.
Mansfield, 503 F.3d 1340, 1345 (Fed. Cir. 2007). However, neither of the
documents nor the
hearing relied upon by the Board in its October 2006 decision states why
Mr. Mayhew's previous
claim was denied. Kent, 20 Vet.App. at 10. Because, as conceded by the
Secretary, VA did not
adequately notify Mr. Mayhew why his previous claim was denied, the
Board's determination is in
error. Kent, 20 Vet.App. at 10; see 38 C.F.R. § 3.103(a), (c). Thus, the
Court must determine
whether that error was prejudicial. Mayfield, 444 F.3d at 1335; Sanders,
487 F. 3d at 891; Newhouse
v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007).
The Secretary argues that there was no prejudice because "a reasonable
person could be
expected to understand from the notice what was needed to support his
claim to reopen." Secretary's
Br. at 10. In support of this argument, the Secretary states that the
October 2002 letter informed Mr.
Mayhew of what "would be considered new and material evidence sufficient
to reopen his claim, as
well as the evidence that would be necessary to substantiate a claim for
service connection for
bilateral pes planus." Secretary's Br. at 10. However, as noted above,
this letter did not state the
reasons that Mr. Mayhew's previous claim had been denied. The Secretary
provides no further
reasons for why there was no prejudice.
The Board decision states that there was no prejudice because the July
2004 hearing notified
Mr. Mayhew of the "reasons his claim for entitlement to service connection
for bilateral pes planus
was previously denied." R. at 4-6. However, at the July 2004 hearing, the
decision review officer
only states that the September 1990 Board decision made a finding of fact
that a "pre-existing foot
disorder did not permanently increase in basic pathology during active
military service." R. at 302.
The decision review officer does not state why Mr. Mayhew's initial claim
was denied. Because, in
attempting to rebut the presumption of prejudice, the Secretary and the
Board decision rely solely
6


on evidence that does not adequately discuss the reasons for the previous
denial of Mr. Mayhew's
claim as required by Kent, the Court finds that Mr. Mayhew has not been
provided adequate notice
and that that error is prejudicial. Mlechick, 503 F.3d at 1345.
B. Reasons or Bases
In rendering its decision, the Board is required to provide a written
statement of the reasons
or bases for its "findings and conclusions[] on all material issues of
fact and law presented on the
record." 38 U.S.C. § 7104(d)(1). The statement must be adequate to enable
a claimant to understand
the precise basis for the Board's decision, as well as to facilitate
review in this Court. Gilbert v.
Derwinski, 1 Vet.App. 49, 57 (1990). To comply with this requirement, the
Board must analyze the
credibilityand probative value of the evidence, account for the evidence
that it finds to be persuasive
or unpersuasive, and provide the reasons for its rejection of any material
evidence favorable to the
claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995) aff'd, 78 F.3d 604 (
Fed. Cir. 1996) (table).
The Board may commit remandable error when it fails to provide an adequate
statement of its
reasons or bases. See Gilbert, 1 Vet.App. at 57.
Mr. Mayhew argues that the Board failed to provide adequate reasons or
bases for its
determination that his testimony regarding post-service symptomatology was
not new and material
evidence. Appellant's Br. at 10-13. He asserts that, when determining
whether evidence is
"material," the Board needs only to determine if it "relate[s] to an
unestablished fact necessary to
substantiate the claim." Appellant's Br. at 11-12 (citing 38 C.F.R. § 3.
156(a)). Mr. Mayhew argues
that his testimonyis material because he testified to the continuityof his
symptoms and his increased
foot pain while in service. Appellant's Br. at 11-12.
The Secretary contends that Mr. Mayhew's lay statements are not new and
material because they cannot establish that his "pre-existing pes planus was permanently aggravated in service" because the medical evidence reveals that he was diagnosed with both pes planus and rheumatoid arthritis. Secretary's Br. at 9. The Secretary further argues that, because Mr. Mayhew's testimony could not be considered new and material evidence, the Board did not have a duty to discuss it.
Secretary's Br. at 9. However, the October 24, 2006, Board decision
only states that "lay statements, even if new, cannot serve as a predicate to reopen a previously disallowed claim." R. at 8 (internal parentheses omitted). The Board provides no further reasons or bases for this determination beyond
7


citing to Moray v. Brown, 5 Vet.App. 211 (1993). This Court has stated
that, although Moray held that "a lay assertion of medical causation will not suffice to reopen a claim. . . . where the determinative issue is not one of medical causation but of continuity of symptomatology, lay testimony may suffice to reopen a claim." Falzone v. Brown, 8 Vet.App. 398, 403 (1995); see 38 C.F.R. § 3.303(a) (VA must consider all evidence, including medical and lay evidence). Thus, the Court finds that the Board erred in failing to address Mr. Mayhew's lay statements. Id.
Because the Board erred in finding that VA adequately notified Mr. Mayhew
under section 5103(a) and failed to provide adequate reasons or bases for its
determinations regarding new and material evidence, the Court will vacate the October 24, 2006, Board decision and remand the matter for readjudication consistent with this decision. Mlechick, 503 F.3d at 1345; Caluza, 7 Vet.App. at
506; Gilbert, 1 Vet.App. at 57; Falzone, 8 Vet.App. at 403.

III. CONCLUSION
On consideration of the foregoing, the October 24, 2006, Board decision is
VACATED and
the matter is REMANDED for readjudication consistent with this decision.
DATED: January 23, 2009
Copies to:
Glenn R. Bergmann, Esq.
VA General Counsel (027)
8

22% New York Veterans Have Mental Health Problems

Full article at: Nearly a Quarter of New York Veterans Face Mental Health Challenges; More Coordination of Resources Needed, Study Finds
Wed Jan 26 09:44:47 2011 Pacific Time

SANTA MONICA, Calif., Jan. 26 (AScribe Newswire) -- Military veterans from New York state who served in Iraq and Afghanistan are at high risk for mental health problems, according to a new study conducted by the RAND Corporation and funded by the New York State Health Foundation.

Nearly a quarter of veterans (22 percent) in New York state were found to have a probable diagnosis of post-traumatic stress disorder and/or major depression. Compared to similar individuals in the general population, the veterans studied were at an eight-fold greater risk of probable PTSD and a two- to four-fold greater risk of major depression.

While many services are available to those in need, more than 40 percent of veterans report being unaware of what help is available or uncertain about how to navigate the systems that provide assistance. Outreach to connect veterans with services and better coordination among government and community agencies is needed, according to the study, which is the first to look at the needs of returning veterans and their families in New York state.

"This study underscores that many returning veterans have mental health needs that require substantial attention from both the Department of Veterans Affairs and other service providers in New York state," said Terry Schell, the study's lead author and a senior social scientist at RAND, a nonprofit research organization. "While many services are available, more needs to be done to make sure veterans get the help they need." "

Mayhue v. Shinseki, No. 09-0014, Mischaracterization of Claim

Excerpts from Decision below:

"Because the Board misapplied a regulation when determining the effective date for Mr. Mayhue's service-connected post-traumatic stress disorder, and because the Board mischaracterized Mr. Mayhue's request for a total disability rating based on individual unemployability as a claim for an increased disability rating, the Court will vacate the September 12, 2008, Board decision on these issues and remand the
matters for further development and readjudication consistent with this decision.

++++++++++++++++++++++++++++++++++

----------------------------------------------------


UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-0014
SAMUEL L. MAYHUE, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans’ Appeals
(Decided January 18, 2011 )

Kenneth M. Carpenter, of Topeka, Kansas, was on the brief for the
appellant.
Nathan Paul Kirschner, with whom Will A. Gunn, General Counsel, R. Randall
Campbell, Assistant General Counsel, and David L. Quinn, Deputy Assistant General
Counsel, all of Washington, DC, were on the brief for the appellee.

Before HAGEL, MOORMAN, and LANCE, Judges.

HAGEL, Judge: Samuel L. Mayhue appeals through counsel a September 12,
2008, Board of Veterans' Appeals (Board) decision that denied entitlement to (1) an
earlier effective date for service-connected post-traumatic stress disorder, (2) a higher initial disability rating for post-traumatic stress disorder, and (3) an earlier effective date for a total disability rating based on
individual unemployability. Record (R.) at 3-27. The Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a) to review the September 2008 Board decision.
Because the Board misapplied a regulation when determining the effective date for Mr. Mayhue's service-connected post-traumatic stress disorder, and because the Board mischaracterized Mr. Mayhue's request for a total disability rating based on individual unemployability as a claim for an increased disability rating, the Court will vacate the September 12, 2008, Board decision on these issues and remand the
matters for further development and readjudication consistent with this decision. However, because the Board's failure to apply 38 C.F.R. § 4.3 was not "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," and because the Board provided an adequate statement of reasons or bases for denying Mr. Mayhue a 100% disability rating for post-traumatic stress disorder, the Court will affirm that portion of the Board decision.

I. FACTS
Mr. Mayhue served on active duty in the U.S. Army from April 1968 to
February 1970,
including service in Viet Nam. In November 1994, Mr. Mayhue submitted an
initial claim for VA
benefits for post-traumatic stress disorder. In February 1995, a VA
regional office denied the claim
because Mr. Mayhue failed to attend a scheduled VA medical examination and "
failed to provide
specific information concerning specific traumatic incidents in service
which produced the stress
that resulted in the claimed post-traumatic stress disorder." R. at 1675.
In May 1995, Mr. Mayhue
was provided with a VA medical examination where he described three
traumatic events from his
service in Viet Nam: (1) Mr. Mayhue let a friend sleep in his bed one
night while he was on guard
duty and that night his friend was "blown up and killed" when the area
containing his bed was
shelled (R. at 1795-96); (2) Mr. Mayhue was attacked while on "road duty"
and he fled and hid
rather than fighting with the rest of his group, many of whom were injured (
R. at 1796); and (3) Mr.
Mayhue pushed a Vietnamese child who had explosives "tied all over his
body" off of the lead truck
in a convoy and watched the child "literally disintegrate[]" in the
explosion (R. at 1796). In August
1995,the regional officeonceagain denied Mr. Mayhue's claim for benefits
forpost-traumaticstress
disorder, explaining that, "[a]lthough there is indication of possible
stressor(s) in service indicated
in the exam report, the information provided [to] the examiner is not
capable of verification[;] that
is[,] specific names, dates, and places were not provided." R. at 1664. Mr.
Mayhue did not appeal
this decision and it became final.
In September2000,Mr. Mayhuerequested to reopen his previously denied
claimforbenefits
for post-traumatic stress disorder. In September 2001, the regional office
denied Mr. Mayhue's
claim to reopen because it found that he had not submitted new and
material evidence and had failed
to complete and return a stressor questionnaire. In April 2002, Mr. Mayhue
submitted a completed
stressor questionnaire,which included his unit informationand descriptions
ofthe stressors reported
in the May 1995 VA medical examination. In August 2002, Mr. Mayhue
submitted an additional
statement that, during service, he witnessed a collision between a piece
of heavy machinery and a
taxi cab that decapitated a Vietnamese woman and that he was caught
unarmed in the middle of an
2


ensuing firefight. However, in November 2002, the regional office again
denied his claim for
benefits for post-traumatic stress disorder because "the statements [he]
recently submitted about
events in Viet[ Nam] are not specific enough to identify a particular
event that could be corroborated
or the subject of a search for corroboration." R. at 1522. In November
2003, Mr. Mayhue appealed
this decision. In March 2005, the United States Armed Services Center for
Research of Unit
Records reported that it was unable to verify the stressors identified by
Mr. Mayhue in the April
2002 stressor questionnaire or the August 2002 addendum to the
questionnaire. However, the
Center for Research of Unit Records reported that: "We were unable to
locate unit records submitted
by the 69th Engineer Battalion (69th Engr Bn) during the time period
provided. However the 369th
Signal Battalion (369th Sig Bn) identified attacks at Can Tho, the base
camp of the 69th Engr Bn
during Mr. Mayhue's Viet[ Nam] tour." R. at 322. Based on this information,
in April 2005, the
regional office granted Mr. Mayhue's claim for benefits for post-traumatic
stress disorder, awarding
him a 50% disability rating with an effective date of September 5, 2000,
the date he requested to
reopen his previously denied claim.
In September 2005, Mr. Mayhue filed a Notice of Disagreement with this
decision, asserting
that he was entitled to (1) a higher initial disability rating for his
service-connected post-traumatic
stress disorder; (2) an effective date of November 15, 1994, for that
award; and (3) a total disability
rating based on individual unemployability. In December 2005, Mr. Mayhue
submitted evidence
that demonstrated that he had not been able to maintain employment since
June 2003 and that he had
not been employed at all since April 2005. In April 2006, the regional
office denied entitlement to
a total disability rating based on individual unemployability. After
holding an informal conference
with Mr. Mayhue's representative, the regional office issued a Statement
of the Case in May 2006
that increased his initial schedular rating for post-traumatic stress
disorder to 70% and denied
entitlement to an earlier effective date. Also in May 2006, the regional
office issued a separate
decision that awarded Mr. Mayhue a total disability rating based on
individual unemployability with
an effective date of April 1, 2005, because Mr. Mayhue "specifically
indicated [he] became too
disabled to work due to symptoms of [post-traumatic stress disorder]
effective '04/05.'" R. at 129.
In July 2006, Mr. Mayhue perfected his appeal.
In the September 2008 decision on appeal, the Board denied entitlement to
an earlier
effective date for his service-connected post-traumatic stress disorder, a
higher initial disability
3


rating for that disorder, and an earlier effective date for his total
disability rating based on individual
unemployability. With regard to the earlier effective date for post-
traumatic stress disorder, the
Board applied 38 C.F.R. § 3.156(c)(2) and found that, because Mr. Mayhue
had not provided
sufficient information to VA to verify his stressor until September 5,
2000, he was precluded from
seeking an earlier effective date under 38 C.F.R. § 3.156(c)(1). In
addition, the Board found that
Mr. Mayhue's post-traumatic stress disorder "most closely satisfies the 70
[%] rating criteria." R.
at 25. Finally, the Board concluded that Mr. Mayhue was not entitled to an
effective date for his
total disability rating based on individual unemployability prior to April
1, 2005, because "the
evidence does not show that he was totally unable to secure or maintain
gainful employment as a
result of his service-connected disabilities" prior to that date. R. at 16.
On appeal, Mr. Mayhue argues that the Board misapplied 38 C.F.R. § 3.156(
c) in
determining his effective date for post-traumatic stress disorder.
Appellant's Brief (Br.) at 5-9. Mr.
Mayhue also contends that the Board failed to apply the benefit of the
doubt rule contained in
38 C.F.R. § 4.3 to his claim for a higher initial disability rating for
post-traumatic stress disorder.
Id. at 10-13. Moreover, Mr. Mayhue asserts that the Board did not provide
an adequate statement
of reasons or bases for its decision to deny him a 100% disability rating
for post-traumatic stress
disorder because the decision "fails to address why [Global Assessment of
Functioning] scores
representing serious symptoms of social and occupational impairment did
not support a 100%
rating."1
Id. at 16, 13-17. Finally, Mr. Mayhue argues that the Board failed to
apply 38 C.F.R.
§ 3.156(b) when it treated his claim for a total disability rating based
on individual unemployability
"as different from his claim for a higher initial rating" for post-
traumatic stress disorder. Id. at 17,
17-19.
In response, the Secretary argues that the Board's decision should be
affirmed because Mr.
Mayhue has not carried his burden of demonstrating prejudicial error for
any of his claims.
Secretary's Br. at 3-15. Mr. Mayhue's reply brief reiterates his arguments
and asserts that the Court
A Global Assessment of Functioning score represents "the clinician's
judgment of the individual's overall level
of functioning" and is "useful in planning treatment and measuring its
impact[ ] and in predicting outcome." DIAGNOSTIC
AND STATISTICAL MANUAL OF MENTAL DISORDERS 30 (4th ed. 1994); see Richard
v. Brown, 9 Vet.App. 266, 267
(1996).
1
4


should apply the de novo standard of review to all issues on appeal
because they are questions of
law, not fact. Appellant's Reply Br. at 2-3.
II. ANALYSIS
A. 38 C.F.R. § 3.156(c)
Mr. Mayhue argues that the Board misapplied 38 C.F.R. § 3.156(c) in
determining his
effective date for post-traumatic stress disorder. Specifically, he
asserts that the amended version
of § 3.156(c) should not apply retroactively, or alternatively, if the
amended version of § 3.156(c)
does apply, that he does not fall within the purview of § 3.156(c)(2).
1. Effective Date for a Reconsidered Claim
To address Mr. Mayhue's arguments, the Court must first examine the
history of § 3.156(c)
and other related effective date regulations. At the time that Mr. Mayhue
submitted the stressor
questionnaire and addendum to the questionnaire, § 3.156(c) provided:
Where the new and material evidence consists of a supplemental report from
the
service department, received before or after thedecisionhas becomefinal,
the former
decision will be reconsidered by the adjudicating agency of original
jurisdiction.
This comprehends official service department records which presumably have
been
misplaced and have now been located and forwarded to the Department of
Veterans
Affairs. Also included are corrections by the service department of former
errors of
commission or omission in the preparation of the prior report or reports
and
identified as such. . . . Where such records clearly support the
assignment of a
specific rating over a part or the entire period of time involved, a
retroactive
evaluation will be assigned accordingly except as it may be affected by
the filing
date of the original claim.
38 C.F.R. § 3.156(c) (2002). At that time, "§ 3.400(q)(2) govern[ed] the
effective date of benefits
awarded when VA reconsider[ed] a claim based on newly discovered service
department records."
New and Material Evidence, 70 Fed. Reg. 35,388, 35,388 (proposed June 20,
2005). Read together,
§§ 3.156(c) and 3.400(q)(2) provided that the effective date for an
award of benefits based on newly
discovered service department records that were previously unavailable "
may relate back to the date
of the original claim or date entitlement arose even though the decision
on that claim may be final
under [38 C.F.R.] § 3.104." Id.
In June 2005, the Secretary proposed to amend § 3.156(c) "to establish
clearer rules
regarding reconsideration of decisions on the basis of newly discovered
service department records"
5


and "to include the substance of current 38 C.F.R. 3.400(q)(2) in revised
§ 3.156(c)." Id.
Specifically, the Secretary proposed to clarify "VA's current practice
regarding newly received
servicedepartmentrecords" byremovingthe "new and materialevidence"
requirementin§3.156(c),
elaborating on the definition of "service department records" to include
unit records and declassified
service records, removing the apparent limitation that the service
department records be
"misplaced," and eliminating the requirement to submit a supplemental
report from the service
department as a prerequisite to reconsideration and retroactive evaluation
of disability. Id. at
35,388-89. Ofparticular importanceto this appeal, the Secretaryalso "
revised" §3.156(c) byadding
§ 3.156(c)(1), which provides:
Notwithstanding any other section in this part, at any time after VA
issues a decision
on a claim, if VA receives or associates with the claims file relevant
official service
department records that existed and had not been associated with the
claims file when
VA first decided the claim, VA will reconsider the claim, notwithstanding
paragraph
(a) of this section.
38 C.F.R. § 3.156(c)(1) (2010).2
In the proposed rule, the Secretary explained that § 3.156(c)(1)
specifically applied to "unit records, such as those obtained from the
Center for Research of Unit
Records (CRUR) that pertain to military experiences claimed by a veteran.
Such evidence may be
particularly valuable in connection with claims for benefits for post
traumatic stress disorder." 70
Fed. Reg. at 35,388. The Secretary then renumbered § 3.400(q)(2) as § 3.
156(c)(3), which provided
that the effective date for an award based on § 3.156(c)(1) is "the date
entitlement arose or the date
VA received the previously decided claim, whichever is later, or such
other date as may be
authorized by the provisions of this part applicable to the previously
decided claim." 38 C.F.R. §
3.156(c)(3) (2010); see also 70 Fed. Reg. at 35,389 ("Benefits awarded
upon reconsideration of a
claim . . .under current § 3.156(c) are effective on the dates specified
in current § 3.400(q)(2).
Because we propose to include [this rule] in § 3.156(c), we additionally
propose to remove that
effective date provision from current § 3.400(q).").
These amendments were not intended to be substantive changes to VA's well-
established
practice of reconsidering claims based on newly discovered service
department records and
2
Paragraph (a), which is not relevant here, provides that "a claimant may
reopen a finally adjudicated claim
by submitting new and material evidence" and defines "new evidence" and "
material evidence." 38 C.F.R. § 3.156(a)
(2010).
6


assigning an effective date as early as the date that the initial claim
was filed. As the Secretary
explained: "In practice, when VA receives service department records that
were unavailable at the
time of the prior decision, VA may reconsider the prior decision, and the
effective date assigned will
relate back to the date of the original claim, or the date entitlement
arose, whichever is later." Id.
In the final rule, the Secretary reiterated his intention to merely
clarify VA's current practice: "[T]he
purpose of this rule is to clarify long-standing VA rules . . . which
authorize VA to award benefits
retroactive to the date of a previously decided claim when newly
discovered service department
records are received." New and Material Evidence, 71 Fed. Reg. 52,455, 52,
455 (Sept. 6, 2006).
Moreover, in Vigil v. Peake, the Court explained that "the Secretary
revised § 3.156(c) with
a stated purpose of, inter alia, clarifying the regulation to reflect
current practices." 22 Vet.App. 63,
65 (2008). The Court also noted that, "[a]t oral argument, the Secretary
agreed that his clarifying
statements in the proposed rule should govern the interpretation of the
pre-amended § 3.156(c)
wherever relevant in this case." Id. The Court then applied the clarifying
statements in the proposed
rule and held that pre-amended § 3.156(c), like amended §§ 3.156(c)(1)
and (c)(3), "authorizes an
effective date [for a reconsidered claim based on newly discovered service
department records] as
early as the date of the original claim up to the date of the claim to
reopen." Id. Consequently, the
Court concludes that, under either pre-amendment or amended § 3.156(c), a
claimant whose claim
is reconsidered based on newly discovered service department records may
be entitled to an
effective date as early as the date of the original claim.
2. 38 C.F.R. § 3.156(c)(2)
Having determined that Mr. Mayhue may be entitled to an earlier effective
date for his claim
for benefits for post-traumatic stress disorder under either pre-amendment
or amended § 3.156(c),
theCourtnextaddresses the parties argumentsregarding the
applicabilityof38C.F.R.§3.156(c)(2).
Section 3.156(c)(1) is limited by § 3.156(c)(2), which provides:
Paragraph (c)(1) of this section does not apply to records that VA could
not have
obtained when it decided the claim because the records did not exist when
VA
decided the claim, or because the claimant failed to provide sufficient
information
for VA to identify and obtain the records from the respective service
department, the
Joint Services Records Research Center, or from any other official source.
38 C.F.R. § 3.156(c)(2) (2010) (emphasis added). As the Secretary
explained in the proposed rule
amending § 3.156(c), "[t]his limitation would allow VA to reconsider
decisions and retroactively
7


evaluate disability in a fair manner, on the basis that a claimant should
not be harmed by an
administrative deficiency of the government, but limited by the extent to
which the claimant has
cooperated with VA's efforts to obtain these records." 70 Fed. Reg. at 35,
389.
Although the parties disagree about whether § 3.156(c)(2) applies
retroactively, the Court
declines to address this argument. Even assuming the Secretary's view that
§ 3.156(c)(2) applies
retroactively or that it codified VA's long-standing practice of limiting
reconsideration of claims
based on a claimant's lack of cooperation–the view least favorable to
the veteran–the Court finds
that § 3.156(c)(2) was not for application in this case and, therefore,
the Board erred in applying it.
Specifically, the Board applied § 3.156(c)(2) and concluded that Mr.
Mayhue was not entitled to an
effective date for benefits for post-traumatic stress disorder earlier
than September 5, 2000, because
"[u]ntil that date, [he] had failed to provide sufficient information for
VA to identify and obtain the
service department records that could verify his in-service stressor,
despite being asked for this
information and repeatedly being informed that his claim had been denied
due to his failure to
submit this information." R. at 14. The Board further explained that the
information he provided
with his request to reopen his previously denied claim for post-traumatic
stress disorder, which VA
used to verify his stressor, "included his unit assignment, his dates and
locations of service in Viet[
Nam], and a detailed description of his duties and experiences while in
Viet[ Nam]." Id. The Board
then concluded that this information "allowed for corroboration of his
combat service through
service department research." Id.
The Court acknowledges that Mr. Mayhue did not comply with VA's repeated
requests to
submitadditional informationto verify his claimedstressors, including
witnessing his friend'sdeath,
fleeing from an attack while on road duty, pushing a Vietnamese child off
of a truck and watching
the child explode, and witnessing the decapitation of a Vietnamese woman
by heavy machinery.
However, VA ultimately awarded Mr. Mayhue benefits for post-traumatic
stress disorder based on
attacks on the base camp where his unit was stationed in Viet Nam, not on
any of the above-
mentioned stressors. Specifically, VA stated:
Since the [Center for Research of Unit Records] verified that the 369th
Signal
Battalion was subjected to enemy attacks at Can Tho, which was the base
camp of
the 69th Engineering Battalion during the time you were there, it is
determined that
you were indeed subjected to these attacks also. Accordingly, under these
circumstances, service connection for [post-traumatic stress disorder] is
granted.
8


R. at 318.
The information that the Center for Research of Unit Records ultimately
used to verify Mr.
Mayhue's stressor–i.e., his unit number and the dates of his duty in
Viet Nam–was always a part of
the claims file. See R. at 332 (personnel file stating that Mr. Mayhue was
stationed in Viet Nam
with the 69th Engineering Battalion from March 1, 1969, to February 17,
1970); see also R. at 1674
(December 27, 1994, internal VA request for Mr. Mayhue's personnel file).
Therefore,
notwithstanding the fact that Mr. Mayhue did not cooperate fully with VA's
requests for information
to verify other claimed stressors, VA's failure to verify his stressor was
the result of an
administrative error in locating his unit records. As the Secretary stated
in the proposed rule
amending § 3.156(c), the reason VA reconsiders decisions based on newly
discovered service
department records is "that a claimant should not be harmed by an
administrative deficiency of the
government." 70 Fed. Reg. at 35,389. Such an administrative deficiency
occurred in the instant
case and predated Mr. Mayhue's failure to cooperate with VA. Moreover, the
information contained
in the claims file at the time of the initial claim was ultimately
sufficient to verify Mr. Mayhue's
stressor. Therefore, it was VA's administrative error in failing to verify
Mr. Mayhue's stressor with
the information it had at the time of his initial claim, not Mr. Mayhue's
subsequent failure to provide
additional informationsufficient to verify other claimedstressors,
thatprevented VA fromverifying
his stressor until March 2005. Consequently, the Board erred when it
applied § 3.156(c)(2), and the
Court will therefore vacate and remand that portion of the Board's
decision for readjudication
consistent with this decision.
B. 38 C.F.R. § 3.156(b)
Mr. Mayhue next argues that the Board failed to apply 38 C.F.R. § 3.156(b)
when it treated
his request for a total disability rating based on individual
unemployability "as different from his
claim for a higher initial rating" for post-traumatic stress disorder.
Appellant's Br. at 17; see also
38 C.F.R. § 3.156(b) (2010) ("New and material evidence received prior to
the expiration of the
appeal period, or prior to the appellate decision if a timely appeal has
been filed . . . , will be
considered as having been filed in connection with the claim which was
pending at the beginning
of the appeal period.").
9


Mr. Mayhue is correct that a request for a total disability rating based
on individual
unemployability "is not a separate claim for benefits, but rather involves
an attempt to obtain an
appropriate rating for a disability." Rice v. Shinseki, 22 Vet.App. 447,
453 (2009) (per curiam). In
the instant case, Mr. Mayhue requested that his previously denied claim
for benefits for post-
traumatic stress disorder be reopened in September 2000, which was
eventually granted in April
2005 based on information received from the Center for Research of Unit
Records. In September
2005, during the one-year appeal period following the decision awarding Mr.
Mayhue an initial
disability rating for post-traumatic stress disorder, Mr. Mayhue filed a
Notice of Disagreement that
asserted for the first time that he was entitled to a total disability
rating based on individual
unemployability based on his service-connected post-traumatic stress
disorder. In December 2005,
Mr. Mayhue submitted new evidence that demonstrated that he had not been
able to maintain
employment since June 2003 and that he had not been employed at all since
April 2005. After
further development, in May 2006 the regional office awarded Mr. Mayhue a
total disability rating
based on individual unemployability with an effective date of April 1,
2005, finding that the date
he "became too disabled to work due to symptoms of [post-traumatic stress
disorder]." R. at 129.
In July 2006, Mr. Mayhue completed his appeal challenging the initial
rating and effective date for
his post-traumatic stress disorder and the effective date of his total
disability rating based on
individual unemployability for post-traumatic stress disorder. In a
September 2008 decision, now
on appeal, the Board denied these claims.
As in Rice, this procedural history demonstrates that Mr. Mayhue's request
for a total
disability rating based on individual unemployability was part of his
initial application for benefits
for post-traumatic stress disorder, not a part of a new claim for
increased compensation. See
22 Vet.App. at 453-54. Because the evidence of unemployability was
submitted to VA within one
year of the April 2005 regional office decision granting benefits for post-
traumatic stress disorder,
it is considered when determining the appropriate rating to be assigned
for his service-connected
post-traumatic stress disorder; it is not a separate claim for increased
compensation, but is evidence
that must be considered in the adjudication of the original claim when
determining the proper rate
of disability compensation. Moreover, "[n]ew evidence that shows
unemployability relating to the
underlying condition during the pendency of the original claim is material
on its face," and Mr.
10


Mayhue submitted precisely this type of evidence in December 2005. Id. at
454. Accordingly, the
Board was required to apply 38 C.F.R. § 3.156(b). As the Court stated in
Rice:
When entitlement to [a total disability rating based on individual
unemployability]
is raised during the adjudicatory process of the underlying disability or
during the
administrative appeal of the initial rating assigned for that disability,
it is part of the
claim for benefits for the underlying disability. And, when it is raised
during the
one-year appeal period following a decision on the claim, VA is required
to consider
the potential applicability of 38 C.F.R. § 3.156(b).
22 Vet.App. at 454.
Here, the Board mischaracterized Mr. Mayhue's request for a total
disability rating based on
individual unemployability as a claim for an increased rating. As a result,
the Board limited its
examination of the evidence of record pertaining to this request to the
one-year period prior to
September 1, 2005, the date that Mr. Mayhue first raised the issue of
entitlement to a total disability
rating based on individual unemployability. However, because Mr. Mayhue's
request for a total
disability rating based on individual unemployability was part of his
initial application for benefits
for post-traumatic stress disorder, the Board was required to consider
evidence of unemployability
as far back as the date of the underlying initial claim, i.e., as far back
as September 2000 when he
requested that VA reopen his previously denied claim. See Rice, 22 Vet.App.
at 456-57; see also
38 U.S.C. § 5110(a) ("[T]he effective date of an award based on an
original claim . . . shall be fixed
in accordance with the facts found, but shall not be earlier than the date
of receipt of application
therefor."); 38 C.F.R. § 3.400(b)(2)(I) (2010). Consequently, the Board's
failure to consider the
evidence of record of Mr. Mayhue's inability to maintain employment
between September 2000 and
April 2005 was prejudicial error. See R. at 152 (statement describing Mr.
Mayhue's employment
between June 2003 and April 2005); R. at 155 (VA form detailing Mr.
Mayhue's employment since
2000); see also 38 U.S.C. § 7261(b)(2) (requiring the Court to "take due
account of the rule of
prejudicial error"); Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir.
2004). The Court will
therefore vacate that portion of the Board's decision that denied
entitlement to an earlier effective
date for a total disability rating based on individual unemployability and
remand the matter for
readjudication consistent with this decision.
11


C. Reasonable Doubt
Mr. Mayhue next contends that the Board failed to apply 38 C.F.R. § 4.3
to his claim for a
higher initial disability rating for post-traumatic stress disorder.
Appellant's Br. at 10-13;
Appellant's Reply Br. at 8-10. Specifically, he argues that the Board "
render[ed] § 4.3 meaningless"
by applying "the general benefit of the doubt provisions under 38 U.S.C. §
5107(b)" instead of § 4.3.
Appellant's Reply Br. at 10. The Court disagrees.
Section § 4.3 in pertinent part provides: "When after careful
consideration of all procurable
and assembled data, a reasonable doubt arises regarding the degree of
disability such doubt will be
resolved in favor of the claimant. See § 3.102 of this chapter." 38 C.F.R.
§ 4.3 (2010). Section
3.102 defines the term "reasonable doubt" as used in § 4.3 as doubt "
which exists because of an
approximate balance of positive and negative evidence which does not
satisfactorily prove or
disprove the claim." 38 C.F.R. § 3.102 (2010); see Ortiz v. Principi, 274
F.3d 1361, 1364 (Fed. Cir.
2001) (stating that § 3.102 "restates" the provisions of 38 U.S.C. §
5107(b) (benefit of the doubt)
in terms of "reasonable doubt"). Therefore, contrary to Mr. Mayhue's
assertion, where, as here, the
Board concludes that the evidence is not in equipoise, specific
consideration of § 4.3 is not
warranted. See Schoolman v. West, 12 Vet.App. 307, 311 (1999) (explaining
that where the
preponderance of the evidence is against an appellant's claims, "the
benefit of the doubt doctrine
does not apply").
In the instant case, the Board found that "the preponderance of the
evidence is against
granting an initial rating in excess of 70 percent." R. at 19. In support
of this finding, the Board
thoroughly discussed Mr. Mayhue's disability picture and adequately
explained why his symptoms
"most closely satisf[y] the 70 percent rating criteria." R. at 25. In
light of the Board's thorough
consideration of the evidence of record and Mr. Mayhue's statement that he "
is not contesting the
Board's finding that there was a preponderance of evidence against an
initial rating in excess of 70
percent," the Board's failure to apply § 4.3 was not "arbitrary,
capricious, an abuse of discretion, or
otherwise not in accordance with law." Gilbert, 1 Vet.App. at 58.
D. Reasons or Bases
Finally, Mr. Mayhue argues that the Board failed to provide an adequate
statement ofreasons
or bases for its decision to deny him a 100% disability rating for post-
traumatic stress disorder
because the decision "fails to address why [Global Assessment of
Functioning] scores representing
12


serious symptoms of social and occupational impairment did not support a
100% rating."
Appellant's Br. at 16. However, the record does not support this
contention.
Section 4.7, title 38 of the Code of Federal Regulations provides that, "[
w]here there is a
question as to which of two evaluations shall be applied, the higher
evaluation will be assigned if
the disability picture more nearly approximates the criteria required for
that rating. Otherwise, the
lower rating will be assigned." The Board acknowledged this regulation,
then painstakingly
described Mr. Mayhue's medical history and disability picture, including
his Global Assessment of
Functioning scores. After reviewing the evidence of record, the Board
explained:
[T]heBoard finds that these symptoms reflect a level of impairment that
mostclosely
approximates a 70 percent disability rating throughout the entire period
on appeal.
As noted in the rating criteria listed above, symptoms such as suicidal
ideation,
impaired impulse control, and difficulty in adapting to stressful
circumstances are
contemplated by the 70 percent disability evaluation. In addition,
deficiencies in
work, thinking, and mood are noted throughout the period on appeal, and
serious
deficiencies in these areas are also appropriately compensated by the 70
percent
evaluation.
While these records demonstrate significant impairment, they do not show
the total
occupational and social impairment required for a 100 percent disability
evaluation.
While [Mr. Mayhue] experienced significant problems getting along with his
supervisor at work, records reflect that his main difficulties working at
the store
arose from a hand disability rather than [post-traumatic stress disorder].
The Board
also notes that [Mr. Mayhue] appeared to have been in a stable
relationship and had
a good relationship with his children. He spent time on activities with
his stepson,
and he had a good relationship with his other children.
The record reflects that [Mr. Mayhue] demonstrates symptoms of the 70
percent
rating criteria, including auditory hallucinations, difficulty in adapting
to stressful
circumstances, and suicidal ideation. However, the Board notes that [he]
does not
exhibit many symptoms of the 70 percent rating, including obsessional
rituals that interfere with routine activities;speech intermittently illogical,obscure, or irrelevant; spatial disorientation; or neglect of personal appearance and hygiene. The Board realizes that the symptoms noted in the rating criteria are not intended to be an exhaustive list, but are examples of the types and severity of symptoms that indicate a certain level of disability. However, the Board believes that the overall severity of the veteran's symptoms, when taking into account both the symptoms that satisfy the 100 percent criteria and those that do not rise to the level of the 70 percent rating, most closely satisfies the 70 percent rating criteria.
13


R. at 24-25. This discussion demonstrates that the Board, in fact,
considered the "serious symptoms of social and occupation[al] impairment" that Mr. Mayhue's Global Assessment of Functioning scores represent. Appellant's Br. at 16. Moreover, it is clear from the preceding discussion that Mr. Mayhue's contention that "there is no reference concerning why the rating criteria for a 100% rating
did not more nearly approximate Mr. Mayhue's disability picture" is simply
incorrect. Because the Board thoroughly discussed Mr. Mayhue's disability picture and explained why his symptoms more nearly approximate a 70% disability rating than a 100% disability rating, the Court concludes that the Board's statement of reasons or bases for its determination that Mr. Mayhue was not entitled to an initial disability rating for post-traumatic stress disorder in excess of 70% was adequate. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (
Fed. Cir. 1996) (table); Gilbert, 1 Vet.App. at 57.

III. CONCLUSION
On consideration of the foregoing, the portions of the September 12, 2008,
Board decision that denied entitlement to earlier effective dates for post-traumatic
stress disorder and a total disability rating based on individual unemployability are VACATED and the matters are
REMANDED for readjudication consistent with this decision. The remainder
of the Board decision
is AFFIRMED.
14