Single Judge Application, Court Discerns Clear Error in Board Factual Finding, 38 U.S.C. § 7261(a)(4)

Excerpt from decision below:
"The Court discerns clear error in this factual determination by the Board.
See 38 U.S.C. § 7261(a)(4) (the Court reviews findings of fact under the "
clearly erroneous" standard)."
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-0973
JOSEPH WHACK, APPELLANT,
v.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before DAVIS, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.

DAVIS, Judge: U.S. Army veteran Joseph Whack appeals through counsel from a
December
10, 2009, Board of Veterans' Appeals (Board) decision that (1) denied
entitlement to service
connection for degenerative joint disease of the cervical spine, to
include on a secondary basis; and
(2) granted an increased disability rating of 20% but no higher for Mr.
Whack's service-connected
right ankle disability.1
For the reasons set forth below, the Court will affirm in part and set
aside in
part the Board's December 2009 decision, and remand a matter for
readjudication as set forth in this
decision.
I. ANALYSIS
A. Compliance With 2006 Board Remand
Mr. Whack first argues that the Board erred in failing to ensure
compliance with a December
2006 remand order. He asserts that the examiner considered onlywhether his
cervical spine arthritis
was related to his motor vehicle accident in service and did not consider
whether it was related to
his service-connected burn injuries.
1
The Board also remanded a service-connection claim for hepatitis C. That
claim is currently not before the
Court. See Breeden v. Principi, 17 Vet.App. 475, 478 (2004).


This Court has held that "a remand by. . . the Board confers on the
veteran or other claimant,
as a matter of law, the right to compliance with the remand orders."
Stegall v. West, 11 Vet.App.
269, 271 (1998). Where "the remand orders of the Board . . . are not
complied with, the Board itself
errs in failing to insure compliance." Id. However, it is substantial
compliance, not absolute
compliance that is required. See Dyment v. West, 13 Vet.App. 141, 146-47 (
1999).
The remand orderstated that Mr. Whack should be afforded a VA examination "
todetermine
the nature and etiology of his claimed cervical spine arthritis." Record (
R.) at 179. The order
continued:
Based upon the examination results and the review of the claims folders,
the
examiner should state an opinion as to whether the veteran's cervical
arthritis is at
least as likely as not . . . related to his military service, or to any
service-connected
disability. The rationale for the opinion should be expressed.
Id.
Mr. Whack underwent the ordered VA examination in August 2009. The
examiner, nurse
practitioner Lizabeth Ann Cornwell, restated that the purpose of the
examination was to "state an
opinion as to whether the veteran's cervical arthritis is at least as
likely as not . . . related to his
military service, or to any service-connected disability." R. at 54. Ms.
Cornwell then stated that she
had reviewed private medical records, VA records, and the claims file. She
specifically referred to
one record related to Mr. Whack's service-connected burns in which "
residual tightness secondary
to burns was noted." Id. Ms. Cornwell then stated her opinion that "
cervical arthritis is less likely
as not . . . related to his military service or any service-connected
disability" and followed this with
a statement explaining the rationale for her opinion. Id.
Contrary to Mr. Whack's assertion, the examiner not only substantially
complied, but
specifically complied with the Board's December 2006 remand order. Further,
despite Mr. Whack's
allegation to the contrary, the examiner did consider evidence of the
effects of Mr. Whack's service-
connected burn injuries; this is evidenced by the examiner's reference to
a specific item from the
claims file, which she also stated she reviewed. Consequently, the Court
concludes the Board did
not fail to ensure compliance with the December 2006 remand order.
2


B. Reasons or Bases: Lay Statements
Mr. Whack next argues that the Board provided an inadequate statement of
its reasons or
bases for rejecting his lay statements regarding continuity of neck and
back pain since service. He
asserts that the Board erroneously required that his statements be
corroborated with medical
treatment evidence.
A claimant may obtain service connection by continuity of symptomatology,
which may be
established if a claimant can demonstrate (1) that a condition was "noted"
during service; (2) there
is postservice evidence of the same symptomatology; and (3) there is
medical or, in certain
circumstances, lay evidence of a nexus between the present disability and
the postservice
symptomatology. Barr v. Nicholson, 21 Vet.App. 303, 307 (2007); see also
Savage v. Gober, 10
Vet.App. 488, 495-96 (1997).
In its role as factfinder, the Board must first "determin[e] whether lay
evidence is credible
in and of itself, i.e., because of possible bias, conflicting statements,
etc." Buchanan v. Nicholson,
451 F.3d 1331, 1336-37 (Fed. Cir. 2006). "[T]he Board cannot determine
that lay evidence lacks
credibility because it is unaccompanied by contemporaneous medical
evidence." Id. at 1337.
As with all decisions, the Board is required to include a written
statement of the reasons or
bases for its findings and conclusions on all material issues of fact and
law; that statement must be
adequate to enable an appellant to understand the precise basis for the
Board's decision, and to
facilitate informed review in this Court. See 38 U.S.C. § 7104(d)(1);
Allday v. Brown, 7 Vet.App.
517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990). 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. See Caluza v. Brown, 7
Vet.App. 498, 506
(1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Gabrielson
v. Brown, 7 Vet.App. 36,
39-40 (1994); Gilbert, supra.
Here, the Board stated that "there is no record of complaints or treatment
of a neck or cervical
spine disability until many years after the Veteran's discharge." R. at 11.
The Board noted that,
while Mr. Whack may "believe that he has arthritis of the cervical spine
that is etiologically related
to his service or service-connected disability, his lay opinion concerning
this matter requiring
3


medical expertise is of no probative value." Id. That Board also
explained that the VA examiner
found "no evidence of chronicity of complaints or treatment related to the
injuryuntil about 15 years
following the Previous DocumentinjuryNext Document." Id.
Consequently, contrary to Mr. Whack's assertion, the Board determined
there was no
continuity of symptomatology not because the lay statements were not
corroborated by medical
records, but because they were not supported by statements concerning
complaints or symptoms for
many years after service. The Court discerns clear error in this factual
determination by the Board.
See 38 U.S.C. § 7261(a)(4) (the Court reviews findings of fact under the "
clearly erroneous"
standard).
C. Extraschedular Rating
Finally, Mr. Whack argues that the Board failed to address the lay
evidence indicating that
entitlement to an extraschedular rating under 38 C.F.R. § 3.321(b) may be
appropriate. He asserts
that the Board failed to consider evidence, including testimony from his
August 2006 hearing, that
his service-connected right ankle disability markedly interferes with his
employment.
The Board stated that "the manifestations of the disability are not in
excess of those
contemplated by the schedular criteria" and that "there is no indication
that the average industrial
impairment from the disabilitywould be in excess ofthosecontemplated bythe
20[%] ratinggranted
herein." R. at 15.
A20%disabilityratingis warrantedwhenlimitationofanklemotion is"marked,"
asopposed
to "moderate," which warrants a 10% disability rating. 38 C.F.R. § 4.71,
Diagnostic Code 5271
(2011). This rating criteria does not on its face explain how it
contemplates symptomatology such
as Mr. Whack's inability to stand while holding than 10 pounds (R. at 190),
drive himself to work
(R. at 189), perform any job other than door greeter at his employer (R.
at 523), and perform a job
that requires him to be on his feet (R. at 556)–and the Board did not
explain how the criteria
contemplates this symptomatology. Consequently, the Board's statement of
reasons or bases for its
determination that referral for extraschedular consideration is not
warranted is inadequate.
Therefore, remand is required for the Board to provide a more adequate
statement of its reasons or
bases concerning referral for extraschedular consideration.
4


II. CONCLUSION
On consideration of the foregoing, the Court SETS ASIDE IN PART the
Board's December 10, 2009, decision with regard to the service-connected right ankle
disability and REMANDS for readjudication the matter of referral for extraschedular consideration.
The Court AFFIRMS the Board's decision with regard to the claim for degenerative joint disease of the cervical spine, to include on a secondary basis.
In pursuing his claim on remand, Mr. Whack will be free to submit additional evidence and argument in support of his claim, and the Board is required to consider
any such evidence and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). A final decision by the Board following the remand herein ordered will constitute a new decision that, if adverse, maybe appealed to this Court upon the filing of a new Notice of Appeal with the Court not
later than 120 days after
the date on which notice of the Board's new final decision is mailed to Mr.
Cameron. See Marsh v.
West, 11 Vet.App. 468, 472 (1998).
DATED: July 22, 2011
Copies to:
Virginia A. Girard-Brady, Esq.
VA General Counsel (027)
5

Single Judge Application, Continual/Ongoing Pain, McLendon, 20 Vet.App. at 84

Excerpt from decision below:
"McLendon, 20 Vet.App. at 84 (stating that a veteran is competent to testify that he has experienced an injury and that he has endured ongoing pain, and such
"testimony can be rejected only if found to be mistaken or otherwise deemed not credible")."
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 09-4736
KENNETH L. JONES, JR., APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before SCHOELEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),this action may not be cited as precedent.

SCHOELEN, Judge: The appellant, Kenneth L. Jones, Jr., through counsel, appeals a September 1, 2009, Board of Veterans' Appeals (Board) decision in which the Board deniedentitlement to serviceconnection for the residuals of a right clavicle fracture. Record of Proceedings(R.) at 3-13. The Board remanded consideration of the appellant's claim of entitlement to serviceconnection for the residuals of a suboccipital craniectomy; therefore, that issue is not before theCourt. See Hampton v. Gober, 10 Vet.App. 481, 483 (1997). Both parties filed briefs. This appealis timely, and the Court has jurisdiction to review the Board's decisions pursuant to 38 U.S.C.§§ 7252(a) and 7266(a). Single-judge disposition is appropriate. See Frankel v. Derwinski,1 Vet.App.23, 25-26 (1990). For the following reasons, the Court will affirm the Board's September1, 2009, decision.I. BACKGROUNDThe appellant served on active duty in the U.S. Armyfrom August 14, 1981, through August13, 1985. R. at 1106, 1115. At his separation examination, the appellant reported a prior history ofa right clavicle fracture. R. at 1124. The separation examination does not, however, indicate whenthe injury occurred. Id. Upon clinical evaluation, the medical examiner noted that the appellant's"upper extremities ([s]trength, range of motion)" were normal. R. at 1125. The appellant alsoreported that he was in "good health" and "not taking medications." R. at 1126.A July 1997 VA medical examination, which was provided in connection with an unrelatedclaim for entitlement to service connection for a hand disability, included an evaluation of theappellant's musculoskeletal system. R. at 1086. The examination report indicates that the appellanthad "full range of motion throughout, no crepitus[,] swelling[,] or tenderness of his joints." Id.The appellant filed a claim of entitlement to service connection for a "fractured rightcollarbone" in April 2000. R. at 1057. In a July 2000 rating decision, the regional office (RO)denied the claim because the appellant's service medical records (SMRs) were "negative fortreatment of a fractured clavicle." R. at 1044-48. The appellant filed a timely Notice ofDisagreement (R. at 1040); the RO issued a Statement of the Case (R. at 1034-39); and the appellantperfected his appeal to the Board (R. at 1008-09).In February 2002, the appellant informed the RO that he was injured in 1982 while he wasstationed at Fort Ord and requested that the RO obtain his medical records from Fort Ord. R. at 997-99. In April 2002, the RO requested the appellant's SMRs from the National Personnel RecordsCenter (NPRC), which responded that all of his SMRs had been sent to the RO in July 1997. R. at994. The RO sent additional requests in October 2003 (R. at 974) and December 2003 (R. at 971)and received negative responses to both requests (R. at 971-73). In January 2004, the RO made afinding of unavailability of additional SMRs. R. at 967-70. That same month, the RO issued a Supplemental Statement of the Case, which noted that "responses from the service department,[NPRC] were negative for any additional [SMRs]." R. at 964-66. The appellant testified at a Board hearing in May 2004 that he broke his right clavicle twicewhile he was in the military. R. at 944. He reported that the first incident occurred in December 1981 or January 1982, while he was playing football. Id. He stated that he was treated with a slingat the Silas B. Hays Army Community Hospital in Fort Ord. Id. The appellant reported that he broke his right clavicle a second time under the pressure of a rucksack while he was on a road march.Id. The appellant stated that his clavicle hurts when he raises his hand above his head. Id.The appellant's claim was remanded by the Board in September 2004 (R. at 932-40) and 2 April 2007 (R. at 488-93) for further procedural and evidentiary development, including anadditional search for the appellant's SMRs and records from the Silas B. Hays Army CommunityHospital. The Appeals Management Center received negative responses from the NPRC and the Madigan Army Medical Center(formally Silas B. Hays Army Community Hospital). R. at105, 109-16.In its September 1, 2009, decision, the Board denied the appellant's claim of entitlement toservice connection for residuals of a right clavicle fracture because the record was devoid of any"credible, competent evidence tending to show that the [v]eteran's current complaints 'may be associated' with a clavicle fracture in service." R. at 9. This appeal followed.The appellant seeks a remand for the Secretary to provide him a VA medical examinationand to "use greater efforts" to locate his SMRs relating to his right clavicle injury . Appellant's Brief(Br.) at 4-7. The appellant also argues that the Board erred (1) in finding that VA satisfied its duty to notify him of the information and evidence necessary to substantiate his claim, and (2) by failing to provide an adequate statement of reasons or bases for denying his claim. Id. at 8-9. The Secretary refutes each of these contentions and argues for affirmance. Secretary's Br. at 5-19.

II. ANALYSIS
A. Medical Nexus Examination

The Secretary has a duty to "make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit." 38 U.S.C. § 5103A(a)(1). As part of his duty, the Secretary must provide a medical examination or obtain a medical opinion "when such an examination or opinion is necessary to make a decision on the claim." 38 U.S.C.§ 5103A(d). A medical examination or opinion is considered necessary if the evidence of record(A) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and(B) indicates that the disability or symptoms may be associated with the claimant's active military, naval, or air service; but(C) does not contain sufficient medical evidence for the Secretary to make a decision on the claim.38 U.S.C. § 5103A(d)(2) (emphasis added). The subsections of 38 U.S.C. § 5103A(d)(2) articulate three different evidentiary standards. See Waters v. Shinseki, 601 F.3d 1274, 1277 (Fed. Cir. 2010)3(discussing the statute's evidentiary standards). This Court has held that the requirement that the evidence indicate that a condition "may be associated" with service establishes a "low threshold."See McLendon v. Nicholson, 20 Vet.App. 79, 83 (2006). When deciding whether an examinationis necessary, the Secretary shall consider the evidence of record, "taking into consideration all information and lay or medical evidence (including statements of the claimant)." 38 U.S.C.§ 5103A(d)(2). "The Board's ultimate conclusion that a medical examination is not necessary pursuant to section 5103A(d)(2) is reviewed under the 'arbitrary, capricious, an abuse of discretion,or otherwise not in accordance with law' standard of review." McLendon, 20 Vet.App. at 81.The Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for its decision, as well as to facilitate review in this Court. 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence,account for the evidence it finds 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 per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).The Board determined that a medical examination was not necessary because the record was "devoid of any credible, competent evidence to show that any of his current complaints may in anyway be associated with an in-service right clavicle fracture." R. at 7 (emphasis added). The appellant argues that the Board applied an incorrect evidentiary standard because its use of the word "show" instead of the word "indicates" "suggests that in order to receive a medical examination, [he]needed to somehow prove that his complaint may be in any way associated with an in-service injury." Appellant's Br. at 5 (emphasis added). This argument lacks merit. The Secretary persuasively argues that "there is no meaningful distinction between the words 'show' and 'indicate’, when used in the context of determining whether an examination is necessary." Secretary's Br. At 7-8. Indeed, in discussing VA's duty to provide a medical examination, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has similarly used the word "show" when stating that the requirement that the evidence "indicate[] that the disability or symptoms may be associated with. . . service" requires "the veteran . . . to show some casual connection between his disability and his military service." Wells v. Principi, 326 F.3d 1381, 1884 (Fed. Cir. 2003) (emphasis added). The4Court therefore concludes that the appellant has not identified any error based solely on the Board's use of "show."The appellant also argues that the Board "ignore[d] longstanding [case]law that a claimant's sworn testimony is evidence, which the Board must consider." Appellant's Br. at 5. In this regard he asserts that his lay testimony that he "broke his clavicle while on active duty"; "his clavicle hurts when he raises [his hand] above his head"; and "he has had chronic shoulder problems because he broke his shoulder" satisfies the requirement that the record indicate that his symptoms "may be associated" with service. Id. at 6. This argument is not persuasive because it wholly ignores the Board's credibility determination in this matter. That is, the Board found that "the normal findings contained in the report of his separation examination and post-service medical records belie any implicit allegations of continuity of symptomatology." R. at 9; see also R. at 8-9 (noting that July 1997, March 1988, and February 2001 records showed "full range of motion in all joints," "normal strength throughout the right upper extremity," and "normal muscular bulk, tone, and strength" in upper extremities). Hence, the Board did not ignore the appellant's lay evidence – it found him not credible. See Owens v. Brown, 7 Vet.App. 429, 433 (1995) (holding that the Board is responsible for assessing the credibility and weight of evidence and that the Court may overturn the Board's decision only if it is clearly erroneous); see also McLendon, 20 Vet.App. at 83 (noting that credible evidence of continuity of symptompatology is a type of evidence that may "indicate" that a current disability "may be associated" with service); cf. Waters, 601 F.3d at 1278 (rejecting the veteran's contention that his "conclusory generalized statement that his service illness caused his presentmedical problems was enough to entitle him to a medical examination"). Because the appellant doesnot raise any argument challenging the Board's credibility finding, he has not satisfied his burden ofestablishing error. See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (holding that theappellant bears the burden of demonstrating error on appeal).Finally, the appellant argues that the Board "could not legally conclude that the evidence ofrecord does not 'indicate there may be a connection to military service', because [it] did not make afinding that 'no possibility existed that a medical examination or opinion would aid in substantiating the claim.'" Appellant's Br. at 6-7 (relying on Duenas v. Principi, 18 Vet. App. 512 (2004)). The Secretary's duty to provide a medical examination is triggered when the requirements of 38 U.S.C.5§ 5013A(d)(2) are met. Once the Board determined that the evidence failed to indicate that the appellant's disability may be associated with service, the Board was not obligated to provide further explanation. The appellant has not demonstrated that the Board's ultimate determination that a medical examination was not necessary to decide the claim is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. McLendon, 20 Vet.App. at 81.

B. The Appellant's Missing SMRs
The appellant argues that the Board erred by failing to remand the matter to the RO "to use greater efforts" to locate his SMRs relating to his clavicle injury. Appellant's Br. at 7. The appellant generally refers to established caselaw holding that VA is under a "heightened duty" to assist whena veteran's records are known to be lost or destroyed, Washington v. Nicholson, 19 Vet.App. 362,370 (2005), and that VA's duty to assist includes "advising the veteran that he could submit 'buddystatements' or other alternative sources of evidence to corroborate his claim of in-service injury."Appellant's Br. at 7 (citing Washington, 19 Vet.App. at 370-71).Obtaining relevant records on behalf of the veteran is part of the Secretary's statutory dutyto assist. 38 U.S.C. § 5103A(a)(1), (b)(1). The Secretary must pursue efforts to obtain such records until "it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile." 38 U.S.C. § 5103A(b)(3). After noting the RO's multiple attempts to obtain the appellant's SMRs, the Board concluded that any further efforts to obtain the records would be futile. R. at 7. Here, the Court finds that the appellant's blanket request that the matter be remanded for the RO to use "greater efforts" to obtain the missing records, without offering any cogent reasonwhy the Board erred in failing to order an additional search, is too terse to warrant consideration. It is well settled that an appellant must provide support for arguments raised on appeal. See Coker v. Nicholson, 19 Vet.App. 439, 442 (2006) ("The Court requires that an appellant plead with some particularity the allegation of error so that the Court is able to review and assess the validity of the appellant's arguments."), rev'd on other grounds sub nom. Coker v. Peake, 310 F. App'x 371 (Fed. Cir. 2008) (per curiam order); see also Locklear v. Nicholson, 20 Vet.App. 410, 416 (2006) (holding that the Court will not entertain underdeveloped arguments); Hilkert, supra. Moreover, even assuming the Board erred by failing to order an additional search for themissing records, the Board assumed for purposes of its decision that the appellant sustained a right 6 clavicle fracture in service. R. at 9. The Board denied the claim because there was no credible,competent evidence relating the appellant's current symptoms of a disability to the in-servicefracture. Id. Given the complete absence of any evidence establishing a nexus between the appellant's condition and the purported in-service injury , the Court finds that the appellant has not demonstrated how he is prejudiced by the missing records. See 38 U.S.C. § 7261(b)(2) (stating that the Court shall take due account of the rule of prejudicial error); see also Shinseki v. Sanders,129 S. Ct. 1696, 1704 (2009) (noting that the statute requiring this Court to "take due account ofprejudicial error [] requires the Veterans Court to apply the same kind of 'harmless error' rule thatcourts ordinarily apply in civil cases"). To the extent that the appellant argues VA should have advised him of alternative sourcesof evidence to submit, a review of the November 2004 and May 2007 letters shows that VAinformed him that "[s]tatements from persons who knew you when you were in service and knowof any disability you had while on active duty" (R. at 925) and "letters written during service, orphotographs taken during service, that relate to [the] in-service . . . right shoulder injury , may aid insubstantiating your claim" (R. at 465).

The appellant has not explained why this notice is insufficient and therefore further consideration of this argument is not warranted. See Coker, Locklear, and Hilkert, all supra. Finally, the Court acknowledges the appellant's suggestion that the Board failed to fulfill its heightened obligation to explain its findings and conclusions and to carefully consider the benefitof the doubt in cases where military records are missing. Appellant's Br. at 7. However, because the appellant does not offer any support for this argument, other than to state that "[t]he Board did not do this," the Court will not entertain it. See Coker, Locklear, and Hilkert, all supra.C. VA's Duty To Notify The appellant also argues that the Secretary failed to satisfy his duty to inform him of theinformation and evidence necessary to substantiate his claim. Appellant's Br. at 8. In particular, heasserts that the notice letters, relied on by the Board as satisfying the duty to notify, did not "inform[him] that unless he submitted medical evidence, his claim would be denied" and that "unless hesubmitted a medical opinion to show that his current complaint is associated with a right claviclefracture during service, his claim would be denied." Id. The appellant's argument is unavailing7because it misunderstands the breadth of the Secretary's obligations pursuant to his duty to notify.Under section 5103(a), VA is required to inform a claimant of (1) the information andevidence not of record that is necessary to substantiate the claim, (2) which portion of thatinformation and evidence, if any, that the claimant is expected to provide, and (3) which portion ofthat information and evidence, if any, that VA will seek to obtain. 38 U.S.C. § 5103(a). Contraryto the appellant's suggestion, VA is not required to preadjudicate the claim and detail exactly whatevidence is missing and necessary to substantiate the claim. See Locklear, 20 Vet.App. at 415; see also Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009) ("generic notice in response to the 'particular type of claim' . . . is all that is required" and need not be "veteran-specific"); Wilson v. Mansfield, 506 F.3d 1055, 1062 (Fed. Cir. 2007) ("[N]otice may be generic in the sense that itneed not identify evidence specific to the individual claimant's case. . . . [and i]t need not describe. . . VA's evaluation of the particular veteran's claim.").Here, the Board found that VA provided adequate notice in August 2003, November 2004,and May 2007 letters. R. at 6. These letters informed the appellant that in order to establish entitlement to service connection, the evidence must show (1) an injury or disease that began in or was made worse by his military service, (2) that he has a current disability, and (3) that there is "arelationship between [his] current disability and an injury , disease, or event in military service.Medical records or medical opinions usually show this relationship." R. at 929, 989; see also R. at469 (May 2007 letter stating that "[m]edical records or medical opinions are required to establishthis relationship"). The letters also informed him that VA would assist him "by providing a medicalexamination or getting a medical opinion if we decide it's necessary to make a decision on yourappeal." R. at 469, 929, 989 (emphasis added). Because generic notice is all that is required, the Court holds that the Board's determination that VA satisfied its duty to notify is not clearly erroneous. See Garrison v. Nicholson, 494 F.3d 1366, 1370 (Fed. Cir. 2007) (holding that the Boarddetermination that VA satisfied the duty to notify is a factual determination reviewed under the "clearly erroneous" standard of review).8

D. Merits Determination
The appellant's final argument is twofold. First, he argues that the Board denied his claim because the record was devoid of medical evidence establishing a link between his current symptoms and his in-service injury and that the absence of this evidence was the result of VA's failure to provide him the benefit of a VA medical examination. Appellant's Br. at 8. However, because the appellant has not demonstrated error in the Board's determination that no medical examination was necessary, this argument must fail. The appellant's second argument is that the Board failed to provide an adequate statement of reasons or bases for rejecting his lay evidence. Id. at 8-9. Here, he states that the "only reason advanced by the [Board] for rejecting [his] testimony was that the record does not establish that he had the medical training necessary to offer competent opinions on matters of medical etiology." Id.at9. However, rather than present any argument to challenge the Board's competency determination, the appellant states that "determinations as to service connection must be based on a review of the entire record, with due consideration to the policy of the Department of Veterans Affairs to administer the law under broad and liberal interpretation consistent with the facts in each individual case." Id. at 9. This statement does not support a finding of remandable error. Moreover, the Board did not reject the appellant's lay evidence solely because he does not have medical training. See R. at 9. Rather, as noted above, the Board found the appellant's testimony that he has had chronic shoulder problems because of his in-service clavicle injury not credible – a finding that the appellant has not challenged here on appeal. See McLendon, 20 Vet.App. at 84 (stating that a veteran is competent to testify that he has experienced an injury and that he has endured ongoing pain, and such "testimony can be rejected only if found to be mistaken or otherwise deemed not credible"). To the extent that the Board also found the appellant not competent regarding matters of medical etiology,the Secretary urges the Court to affirm the Board's decision because "the appellant presents no argument, and identifies no error, with the Board's competency determination." Secretary's Br. At 18; see Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) ("[W]hether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board."); see also Waters, 601 F.3d at 1278 (noting that VA "must consider lay evidence, but may give it whatever weight it concludes the evidence is entitled to receive"). On this point, the Court must agree that the 9 appellant has failed to plead with any specificity why the Board's determination was erroneous and this Court "'is not required to manufacture the appellant's argument.'" Coker, 19 Vet.App. at 442 (quoting Hernandez v.Starbuck,69 F.3d 1089, 1093 (10th Cir. 1995)). Ultimately, the Board denied the appellant's claim of entitlement to service connection because the record was devoid of any credible, competent evidence tending to show that the appellant's current complaints may be associated with service. The appellant's arguments on appeal have not demonstrated that finding to be clearly erroneous. See Dyment v. West, 13 Vet.App. 141, 144 (1999) (a finding of service connection, or lack thereof, is a finding of fact reviewed under the "clearly erroneous" standard ofreview); Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) (a finding of fact is clearly erroneous when the Court, after reviewing the entire evidence, "'is left with the definite and firm conviction that a mistake has been committed.'" (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395(1948))).

III. CONCLUSION
After consideration of the appellant's and the Secretary's pleadings, and a review of therecord, the Board's September 1, 2009, decision is AFFIRMED.
DATED: July 22, 2011
Copies to:Walter C. Spiegel, Esq.VA General Counsel (027)
10

Veterans Court Starts Addressing Reconsideration/Appeal Issues in Initial Decisions

Excerpt from decision below:
"Neither party requested oral argument or identified issues they believe require a precedential decision of the Court."
=========================

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


Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-1157
JOYCE A. STUTENKEMPER, 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: Joyce A. Stutenkemper appeals through counsel a March 12,
2010, Board of Veterans' Appeals (Board) decision denying entitlement to service
connection for the cause of her husband's death.1 Record (R.) at 3-21. The Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a) to review the March 2010 Board decision. Neither party requested oral argument or identified issues they believe require a precedential decision of the Court. Because the November 2009 VA medical opinion upon which the Board relied was adequate, and because the Board's reliance on other inadequate VA medical opinions did not constitute prejudicial error, the Court will affirm the March 12, 2010, Board decision.

I. FACTS
Mrs.Stutenkemperis thewidowofveteranJohnH.Stutenkemper,
whoservedonactiveduty
in the U.S. Army from May 1966 to April 1968, including service in Viet
Nam. In June 1998, a VA
1
The Board also denied entitlement to dependency and indemnity compensation
pursuant to 38 U.S.C. § 1318.
However, because Mrs. Stutenkemper limits her arguments to the issue of
entitlement to service connection for the cause
of her husband's death, the Court deems abandoned any appeal as to the
section 1318 claim that was the subject of the
decision on appeal. See Grivois v. Brown, 6 Vet.App. 136, 138 (1994) (
holding that issues or claims not argued on
appeal are considered abandoned).


physician, Dr. James Bell, diagnosed Mr. Stutenkemper with chronic
obstructive pulmonarydisease
and opined that "[t]obacco is 100% responsible for [his] end-stage [
chronic obstructive pulmonary
disease]."2
R. at 715. In March 1999, a VA regional office awarded Mr. Stutenkemper VA
benefits
for chronic obstructive pulmonary disease secondary to nicotine dependence
acquired in service.
Mr. Stutenkemper died in August 2003, and his death certificate listed his
cause of death as
medullary failure due to respiratory arrest due to acute bronchial asthma
due to multiple allergies.3
One month later, Mrs. Stutenkemper filed a claim for VA benefits for the
cause of her husband's
death and, in October 2003, the regional office denied her claim. Mrs.
Stutenkemper subsequently
submitted two letters from private physicians, Dr. Monte R. Kahler and Dr.
Kenneth A. Miller,
stating that "[s]moking andexposureto AgentOrange[inservice]
causedirreparable damage to [Mr.
Stutenkemper's] respiratorysystem"andthat"exposure [to Agent Orange in
service] is likelyto have
contributed to his lung disease and death." R. at 215, 265.
In May 2007, the Board sought an expert medical opinion regarding the
etiology of Mr.
Stutenkemper's chronic obstructive pulmonary disease. In September 2007, a
VA physician, Dr.
Nauman A. Chaudary, opined that it was "not possible to determine with any
degree of medical
certainty that [Mr. Stutenkemper's chronic obstructive pulmonary disease]
was causally related to
his presumed exposure to Agent Orange" and that it was "possible that [his
chronic obstructive
pulmonary disease] for which service connection was granted . . . causally
related to his decades[-
]long smoking of cigarettes." R. at 151. Based on this expert opinion, the
Board issued a November
2007 decision denying Mrs. Stutenkemper's claim.
Mrs. Stutenkemper subsequently appealed that decision to the Court and the
parties entered
into a joint motion for remand that stated that the June 1998 VA medical
opinion byDr. Bell and the
September 2007 VA medical opinion byDr. Chaudarywere inadequate because
theydid not address
whether Mr. Stutenkemper's chronic obstructive pulmonary disease was
related to his exposure to
herbicides in service. The Court granted that motion in August 2009.
2
Chronic obstructive pulmonary disease is "any disorder characterized by
persistent or recurring obstruction
of the bronchial air flow." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 538 (
31st ed. 2007) [hereinafter
DORLAND'S]..
Medullary means "pertaining to a medulla," which is the "anatomic
nomenclature for the most interior portion
of an organ or structure." DORLAND'S at 1137.
3
2


Pursuant to the agreement of the parties expressed in the joint motion
for remand, the Board
requested another expert medical opinion as to the etiology of Mr.
Stutenkemper's chronic
obstructive pulmonary disease. In November 2009, a VA physician, Dr.
Andrew Robbins, opined:
I believe that it is HIGHLY LIKELY (more than 50% likely) that [Mr.
Stutenkemper's chronic obstructive pulmonary disease] was caused by
cigarette
smoking and HIGHLY LIKELY that the Agent Orange did NOT contribute in any
medically significant way to the development of [chronic obstructive
pulmonary
disease] and the subsequent death from [chronic obstructive pulmonary
disease].
R. at 27. In support of these conclusions, Dr. Robbins cited a study that
concluded that chronic
obstructivepulmonarydiseasewasprevalentin 4%ofnon-smokersand39%
ofcontinuous smokers.
He also added that the National Academy of Sciences reviewed at least 46
studies regarding chronic
obstructive pulmonary disease and exposure to herbicides and concluded
that "'there is inadequate
or insufficient evidence of an association between exposure to the
compounds of interest and
mortalityfrom all nonmalignant respiratorydiseases or the prevalence of
wheeze or asthma, chronic
obstructive pulmonary disease, and farmer's lung.'" Id. (quoting COMMITTEE
TO
REVIEW
THE
HEALTH EFFECTS IN VIETNAM VETERANS OF EXPOSURE TO HERBICIDES, VETERANS AND
AGENT
ORANGE 566 (2009), available at http://www.nap.edu/catalog/12662.html [
hereinafter VETERANS
AND
AGENT ORANGE]).
With respect to the other medical opinions in Mr. Stutenkemper's claims
file, Dr. Robbins
concluded that the June 1998 opinion by Dr. Bell was "substantially true"
because it was "very
unlikelythat[Mr.Stutenkemper] wouldhavehadend-stage[
chronicobstructivepulmonarydisease]
at that time if he had not been a chronic smoker, and that cigarette
smoking alone can readily result
in end-stage [chronic obstructive pulmonary disease] without the addition
of any other external
factor." R. at 28. Finally, Dr. Robbins stated that private medical
opinions submitted by Mrs.
Stutenkemper that were favorable to her claim were "speculative" and "
contrary to the current
consensus" in the scientific community. Id.
In March 2010, the Board issued the decision currently on appeal, which
denied Mrs.
Stutenkemper entitlement to service connection for the cause of her
husband's death. Specifically,
the Board determined that the private medical opinions that related Mr.
Stutenkemper's chronic
obstructive pulmonarydisease to his exposure to herbicides in servicewere
of "no probative weight"
3


because the opinions were "unclear" and "speculative." R. at 14-15. The
Board then reviewed the
VA medical opinions of record, including the June 1998 opinion by Dr. Bell,
the September 2007
opinion byDr. Chaudary, and the November 2009 opinion byDr. Robbins, and
afforded them "great
probative weight" because they were "based upon a review of all evidence
of record in the claims
file at the time of the opinion" and "identifie[d] specific facts and
findings in the record that were
of import to the opinion[s], as well as medical research and literature
that supports the conclusions
reached." R. at 15.
II. ANALYSIS
On appeal, Mrs. Stutenkemper argues that the Board erred by relying on
inadequate VA
medical opinions. Specifically, she contends that the November 2009
opinion by Dr. Robbins was
inadequate because it contained "conclusions that [were] not supported
bythe clinical evidence" and
that it failed to address "whether herbicide exposure and continuous
smoking combined to make it
as likely as not that [her husband] would develop [chronic obstructive
pulmonary disease]."4
Appellant's Brief (Br.) at 7. Mrs. Stutenkemper also asserts that the June
1998 opinion by Dr. Bell
was inadequate because it contains "only data . . . and a conclusion . . .
without any reasoned
explanation connecting the conclusion with the facts." Id. at 10. Finally,
she argues that the
September 2007 opinion byDr. Chaudary was also inadequate because the
parties agreed that it was
When a veteran dies "from a service-connected disability," that veteran's
surviving spouse, children, and
parents are eligible for dependency and indemnity compensation. 38 U.S.C. §
1310(a); 38 C.F.R. § 3.5(a) (2011). A
veteran's death is considered service connected under section 1310 where a
service-connected disability "was either the
principal or a contributory cause of death." 38 C.F.R. § 3.312(a) (2011).
To constitute a contributory cause of death,
the disability must have "contributed substantially or materially" to
death, "combined to cause death," or "aided or lent
assistance to the production of death." 38 C.F.R. § 3.312(c). "For claims
received by VA after June 9, 1998, a disability
or death will not be considered service-connected on the basis that it
resulted from injuryNext Document or disease attributable to the
veteran's use of tobacco products during service." 38 C.F.R. § 3.300(a) (
2011); see also 38 U.S.C. § 1103(a). Because
VA received Mrs. Stutenkemper's claim for VA benefits for the cause of her
husband's death in September 2003, well
after the effective date of § 3.300, she must demonstrate that her
husband's chronic obstructive pulmonary disease, which
she asserts was a principal or contributory cause of his death, was
attributable to something other than his tobacco
use–e.g., his presumed exposure to herbicides in service. See Stoll v.
Nicholson, 401 F.3d 1375, 1380 (Fed. Cir. 2005)
(holding that 38 U.S.C. § 1103(a) "applies to [dependency and indemnity
compensation] claims of surviving spouses
of veterans, even if the veterans have previously established service
connection for their disabilities"); Kane v. Principi,
17 Vet.App. 97, 102 (2003) (acknowledging that a claim for dependency and
indemnity compensation is "a new claim,
regardless of the outcome of previous [regional office] decisions
regarding service connection").
4
4


inadequate in the July 2009 joint motion for remand and the Board was
therefore precluded from
subsequently relying on it.
A VA medical examination must be "thorough and contemporaneous" and
consider prior
medical examinations and treatment. Green v. Derwinski, 1 Vet.App. 121,
124 (1991). A medical
examination is adequate "where it is based upon consideration of the
veteran's prior medical history
and examinations and also describes the disability . . . in sufficient
detail so that the Board's
'evaluation of the claimed disability will be a fully informed one.'"
Stefl v. Nicholson, 21 Vet.App.
120, 123 (2007) (quoting Ardison v. Brown, 6 Vet.App. 405, 407 (1994).
Further, 38 C.F.R. § 4.2
requires that if an examination report does not contain sufficient detail, "
it is incumbent upon the
rating board to return the report as inadequate for evaluation purposes."
38 C.F.R. § 4.2 (2011); see
Bowling v. Principi, 15 Vet.App. 1, 12 (2001) (emphasizing Board's duty to
return inadequate
examination report). The Board maycommit error requiring remand when it
relies on an inadequate
medical examination. See Ardison, 6 Vet.App. at 407 (holding that an
inadequate medical
examination frustrates judicial review).
A. Dr. Robbins's November 2009 Opinion
Mrs.StutenkemperarguesthatDr.Robbins'sopinionwasinadequateforthreereasons.
First,
she contends that Dr. Robbins's conclusion that exposure to Agent Orange "
did NOT contribute in
any medically significant way" to her husband's chronic obstructive
pulmonary disease, which was
expressly based on his review of the National Academy of Sciences study, "
does not flow from the
premise" that "'there is inadequate or insufficient evidence of an
association between exposure to
[herbicides] and mortality from all nonmalignant respiratory diseases or
the prevalence of . . .
chronic obstructive pulmonary disease.'" Appellant's Br. at 7 (quoting R.
at 27). In other words,
Mrs. Stutenkemper admits that the National Academy of Sciences study "did
not establish an
association" between exposure to herbicides and chronic obstructive
pulmonary disease, but also
asserts that it "did not preclude the association and, indeed, did not
suggest that such an association
was unlikely." Id.
Mrs. Stutenkemper is correct that the National Academy of Sciences study
did not establish
or rule out a connection between exposure to herbicides and the
development of chronic obstructive
pulmonary disease. Rather, the study concluded that "[t]he available
epidemiologic studies are of
5


insufficient quality, consistency, or statistical power to permit a
conclusion regarding the presence
or absenceofanassociation."5
VETERANSAND AGENT ORANGE at 652 (emphasis added). However,
Mrs. Stutenkemper misunderstands Dr. Robbins's reliance on the study.
The Court acknowledges that Dr. Robbins'sstatementthatthestudysupportshis
opinion that
Mr. Stutenkemper's chronic obstructive pulmonary disease was not related
to exposure to Agent
Orange is misleading. However, when viewed in the context of the preceding
paragraph, it is clear
that Dr. Robbins opined that chronic cigarette smoking, which is a major
risk factor for developing
chronic obstructive pulmonarydisease, is likelythe causeof Mr.
Stutenkemper's chronic obstructive
pulmonary disease, particularly in light of the fact that no study has
ever found an association
between exposureto AgentOrangeandchronicobstructivepulmonarydisease.
Therefore,the Court
concludes that Dr. Robbins's medical opinion was not rendered inadequate
merely because he
implied that the National Academy of Sciences study concluded that there
was no evidence of an
association between exposure to Agent Orange and chronic obstructive
pulmonary disease. See
Jones v. Shinseki, 23 Vet.App. 382, 391 (2010) ("While VA has a duty to
assist the veteran by
providing a medical examination in certain situations, that duty does not
extend to requiring a VA
physician to render an opinion beyond what may reasonably be concluded
from the procurable
medical evidence.").
In addition, the Court notes that Mrs. Stutenkemper offers no evidence of
a connection
between exposure to herbicides and chronic obstructive pulmonary disease.
Rather, she merely
attacks Dr. Robbins's medical opinion for failing to discuss such evidence,
which the National
Academy of Sciences study concluded did not exist. The Court reminds Mrs.
Stutenkemper that "a
claimant has the responsibility to present and support a claim for
benefits," and her failure to submit
evidenceofaconnection betweenMr.Stutenkemper'sserviceandhis
chronicobstructivepulmonary
The Court notes that the record of proceedings does not contain the
National Academy of Sciences study and
that, despite her reliance on it, Mrs. Stutenkemper did not append it to
her brief. However, Dr. Robbins cited and quoted
the study in his medical opinion and provided a web address where it could
be accessed. Generally, the Court is
precluded by statute from considering any material that was not contained
in the record of proceedings before the
Secretary and the Board. 38 U.S.C. § 7252(b); Rogozinski v. Derwinski, 1
Vet.App. 19, 20 (1990). However, the Court
may take judicial notice of the National Academy of Sciences study to the
extent that it is being used to acknowledge
undebatable historic facts–i.e., quoting, but not interpreting, the
conclusions drawn from the study. See Smith v.
Derwinski, 1 Vet.App. 235, 238 (1991) ("Courts may take judicial notice of
facts not subject to reasonable dispute."
(citing FED. R. EVID. 201(b))); see also Brannon v. Derwinski, 1 Vet.App
314, 316-17 (1991).
5
6


disease is fatal to her argument that Dr. Robbins's opinion was
inadequate in this regard. 38 U.S.C.
§ 5107(a); see also Jones, 23 Vet.App. at 391 ("Notwithstanding the duty
to assist, it remains the
claimant's responsibility to submit evidence to support his claim."); Wood
v. Derwinski, 1 Vet.App.
190, 193 (1991) ("The duty to assist is not always a one-way street.").
Second, Mrs. Stutenkemper asserts that Dr. Robbins's opinion was
inadequate because he
relied on another study concluding that 39% of continuous smokers
developed chronic obstructive
pulmonary disease, but ignored the inverse of this conclusion: that 61% of
continuous smokers did
not develop chronic obstructive pulmonary disease. In other words, Mrs.
Stutenkemper argues that
Dr. Robbins's reliance on this study was erroneous because it "places the
odds against a finding that
[Mr. Stutenkemper] developed [chronic obstructive pulmonary disease] from
smoking alone."
Appellant's Br. at 8 (emphasis in original). However, the Court discerns
no error in Dr. Robbins's
statement that chronic obstructive pulmonary disease "is a very common
result of smoking" as
demonstrated by a scientific study showing significantly higher rates of
occurrence of chronic
obstructive pulmonary disease in smokers than in non-smokers and his
conclusion, based on this
evidence, that Mr. Stutenkemper's chronic obstructive pulmonary disease
was likely caused by his
"long history of cigarette smoking." R. at 27. Therefore, the Court
concludes that Dr. Robbins's
medical opinion was not inadequate in this regard. See Stefl, 21 Vet.App.
at 123.
Third,Mrs.StutenkempercontendsthatDr.Robbins'sopinion wasinadequatebecause"
none
of the clinical studies or research upon which he relied correlated
herbicide exposure with
continuous smoking to ascertain the likelihood of the combined assaults in
developing [chronic
obstructive pulmonary disease]." Appellant's Br. at 8. However, she does
not point to any medical
study that has addressed that particular question and, as described above,
failed to demonstrate that
Dr. Robbins's opinion is inadequate for any other reason. A medical
examiner is not required to
exceed the limits of current medical knowledge, and the Court will not, as
Mrs. Stutenkemper seems
to suggest, commission VA to conduct such a study. See Jones, 23 Vet.App.
at 390. Consequently,
the Court concludes that Mrs. Stutenkemper has failed to carry her burden
of demonstrating error
in that regard. See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (holding
that appellant has the
burden of demonstrating error), aff'd, 232 F.3d 908 (Fed. Cir. 2000) (
table).
7


B. Dr. Bell's June 1998 and Dr. Chaudary's September 2007 Opinions
Mrs. Stutenkemper next argues that the September 2007 VA medical opinion
by Dr.
Chaudarywas inadequate because the parties agreed in a July 2009 joint
motion for remand that was
adopted bythe Court that it wasinadequate for ratingpurposes. Although Mrs.
Stutenkemper argues
only that Dr. Chaudary's opinion was inadequate for this reason, the Court
notes that the parties
agreed in the motion that Dr. Bell's and Dr. Chaudary's opinions were
inadequate. Specifically, the
joint motion for remand stated:
The parties agree that VA erred when it did not provide John Stutenkemper
. . . with
an adequate medical examination and did not provide Joyce Stutenkemper
. . . with
an adequate medical opinion that addressed whether [Mr. Stutenkemper's
chronic
obstructive pulmonary disease] was related to his presumed exposure to
Agent
Orange during service. . . Neither the June 1998 VA medical examination [
by Dr.
Bell] nor the September 2007 VA medical opinion [by Dr. Chaudary]
addressed
whether [Mr. Stutenkemper's chronic obstructive pulmonary disease] was
related to
his presumed exposure to Agent Orange during service.
R. at 54. Consequently, the Court will consider whether the foregoing
language in the July 2009
joint motion for remand precluded the Board from later relying on both Dr.
Bell's and Dr. Chaudary's
medical opinions.
A remand by the Court "confers on the veteran or other claimant, as a
matter of law, the right
to compliance with the remand orders," and "the Board itself errs in
failing to insure compliance"
with a Court remand. Stegall v. West, 11 Vet.App. 268, 271. Further,
absent a specific Court order,
the terms of a joint motion for remand are similarly enforceable. Forcier
v. Nicholson, 19 Vet.App.
414, 425-26 (2006). On August 3, 2009, the Court granted the parties'
joint motion for remand and
specifically incorporated its substance into the Court's remand order,
including the findings that Dr.
Bell's and Dr. Chaudary's medical opinions were inadequate and the
instructions to obtain a new VA
medical examination to determine whether Mr. Stutenkemper's chronic
obstructive pulmonary
disease was related to his presumed in-service exposure to Agent Orange in
the absence of an
adequatemedicalopinion addressingthatquestion. SeeStutenkemperv.Shinseki,
No.08-0696(Vet.
App. Aug. 3, 2009) (unpublished order).
Despite this conceded fact, in the decision currently on appeal, the Board
explicitly
"afford[ed] great probative weight" to Dr. Bell's and Dr. Chaudary's
medical opinions, along with
8


Dr. Robbins's medical opinion, and impermissibly relied on those two
inadequate medical opinions
to deny Mrs. Stutenkemper's claim for benefits for the cause of her
husband's death. R. at 15.
Accordingly, the Court concludes that the Board erred in relying on the
June 1998 opinion by Dr.
Bell and the September 2007 opinion by Dr. Chaudary, which the parties
agreed were inadequate in
the joint motion for remand that was incorporated into the Court's remand
order.6
See Ardison,
6 Vet.App. at 407.
C. Prejudicial Error
The Court's analysis does not end with the determination that the Board
committed error;
rather,theCourt isrequiredbystatuteto
considerwhethersucherrorprejudicedtheclaimant'sclaim.
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
concludes that the Board's
reliance on the inadequate medical opinions by Dr. Bell and Dr. Chaudary
was harmless error.
As stated above, for Mrs. Stutenkemper to prevail on her claim for
benefits for the cause of
her husband's death, she was required to demonstrate that her husband's
chronic obstructive
pulmonary disease was attributable to his presumed in-service exposure to
herbicides. See n.4,
above. The evidence Mrs. Stutenkemper submitted for this purpose included
two private medical
opinions; her own laystatements and the laystatements of friends and
relatives; and the VA medical
opinions of Drs. Bell, Chaudary, and Robbins.
With respect to the evidence favorable to Mrs. Stutenkemper's claim, the
Board considered
the private medical opinions, but accordedthem "no probative weight"
because theycontained "only
data and conclusions" and were "speculative." R. at 14-15. Mrs.
Stutenkemper does not assert that
the Board's evaluation of the weight to be assigned to the private medical
opinions was clearly
erroneous, and the Court will not conclude otherwise. See 38 U.S.C. §
7261(a)(4); Washington v.
Nicholson, 19 Vet.App. 362, 369 (2006) (holding that it is the Board's
responsibility to determine
the appropriate weight to be given to evidence); Wood, 1 Vet.App. at 193;
Gilbert v. Derwinski,
1 Vet.App.49, 52 (1990). The Board also considered the laystatements made
byMrs. Stutenkemper
6
Although Mrs. Stutenkemper also argues that the June 1998 opinion by Dr.
Bell is inadequate because it
contains "only data . . . and a conclusion . . . without any reasoned
explanation connecting the conclusion with the facts,"
Appellant's Br. at 10, the Court need not address this argument because it
concluded that Dr. Bell's medical opinion is
inadequate on other grounds.
9


and her friends and relatives, "the only [other] evidence of record that [
Mr. Stutenkemper]'s cause
of death was related to his service in any way other than through his
nicotine dependence." R. at 17.
The Board rejected those laystatements because it found that Mrs.
Stutenkemper and her friends and
relatives, as laypeople, did not possess the requisite "specialized
medical knowledge, training, or
experience" to provide a competent opinion as to a connection between Mr.
Stutenkemper's
presumed in-service exposure to Agent Orange and his chronic obstructive
pulmonary disease. Id.
Again, Mrs. Stutenkemper does not challenge this determination, and the
Court will not disturb it.
See Hilkert, 12 Vet.App. at 151.
The Board then considered the evidence against Mrs. Stutenkemper's claim,
including Dr.
Bell's June 1998 medical opinion, Dr. Chaudary's September 2007 medical
opinion, and Dr.
Robbins's November 2009 medical opinion. The Board "afford[ed] them great
probative weight"
because they were "based upon a review of all evidence of record in the
claims file at the time of the
opinion" and "identifie[d] specific facts and findings in the record that
were of import to the
opinion[s], as well as medical research and literature that supports the
conclusions reached." R. at
15. As explained in Part II.B, above, the Board erred in relying on Dr.
Bell's and Dr. Chaudary's
opinions because they were inadequate. See Ardison, 6 Vet.App. at 407.
However, as the Court
concluded in Part II.A, above, Dr. Robbins's opinion was adequate and,
therefore, the Board did not
err in relying on it. Thus, Dr. Robbins's opinion was the only probative
evidence of record on the
issue of whether Mr. Stutenkemper's chronic obstructive pulmonary disease
was related to his
presumed in-service exposure to herbicides, and the Board determined that
Dr. Robbins's opinion
was against Mrs. Stutenkemper's claim. Therefore, even though the Board
erred in relying on the
inadequate medical opinions of Dr. Bell and Dr. Chaudary, that error was
harmless because the only
remaining probative evidence was against her claim. See 38 U.S.C. § 7261(
b)(2); Conway, 353 F.3d
at 1374.
10


III. CONCLUSION
Upon consideration of the foregoing, the March 12, 2010, Board decision is
AFFIRMED.
DATED: July 12, 2011
Copies to:
Todd M. Wesche, Esq.
VA General Counsel (027)
11

New Understanding of Bomb Blast Brain Injuries

Full article at: Bomb-blast brain injuries explained

Researchers identify protein pathway involved in traumatic brain injury.
Published online 22 July 2011 | Nature | doi:10.1038/news.2011.434

"Kit Parker doesn't just study traumatic brain injury in the lab, he's also seen it at close range while serving in Afghanistan. After the initial impact, the connections between nerve cells in the brain retract and sometimes the blood vessels constrict (vasospasm). Research by Parker, a bioengineer at Harvard University in Cambridge, Massachusetts, and his colleagues suggests that a signalling pathway involved in cell contraction — the Rho–ROCK pathway — is responsible for both of these effects.

Their findings are reported in two papers, one published today by PLoS ONE1 and the other last week in Proceedings of the National Academy of Sciences2.

West Virginia-RO, 38% Error Rate in Claim Processing, VAOIG Report #11-00522-231

"Overall, the staff did not accurately process 36 of the 95 disability claims reviewed."

Inspection of the VA Regional Office Huntington, West Virginia


Summary Report Number 11-00522-231, 7/20/2011

We found Huntington VARO management ensured staff followed VBA’s policy for establishing dates of claim, processing incoming mail, and completing Systematic Analyses of Operations. The average time to complete claims was 146 days, 29 days better than the national target of 175 days. The VARO was generally effective in processing post traumatic stress disorder claims, handling mail, and correcting errors identified through the Systematic Technical Accuracy Reviews. However, management lacked effective controls and accuracy in processing temporary 100 percent disability evaluations, traumatic brain injury claims, and herbicide exposure-related claims. Overall, the staff did not accurately process 36 of the 95 disability claims reviewed. The recent implementation of the Quality Review and Training Team is a step toward addressing these deficiencies. Although they were not timely in recording Notices of Disagreement for appealed claims, it was better than the national average regarding appeals processing timeliness. Further, processing of competency determinations was not fully effective, resulting in unnecessary delays in making final decisions and improper benefits payments. We recommended management monitor the effectiveness of its quality review process and provide refresher training on traumatic brain injury and herbicide exposure-related claims processing. VARO management also needs to ensure accurate processing of final competency determinations.

Single Judge Application, Shade v. Shinseki, 24 Vet.App. (2010)

Excerpt from decision below:
"Further, the Court observes that, subsequent to the Board's decision in this case, this Court issued its decision is Shade v. Shinseki, 24 Vet.App. 110, 116 (2010) (holding that the issue of reopening must be confined to the subject of the existence of new and material evidence alone and does not include a separate outcome-based element). In Shade, the Court emphasized that the phrase "raise a reasonable possibility of substantiating the claim" does not create a third element for new and material evidence, but was intended to provide guidance for VA adjudicators in determining whether submitted evidence meets the new and material requirements. Id. at 117."
===============================================

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


Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-878
RONALD WILLIAMSON, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MOORMAN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
MOORMAN, Judge: The appellant, Ronald Williamson, appeals pro se a
February4, 2010,
Board of Veterans' Appeals (Board) decision that denied his claim to
reopen his previously denied
claimforentitlementtoserviceconnection foraneyedisorder,to
includeexotropiaandheterotropia.
Record (R.) at 3-22. The appellant filed an informal brief and
Secretaryfiled a brief. The Court has
jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a) to review the
denial of the appellant's
claim to reopen. The February2010 decision remanded claims for entitlement
to service connection
for bilateral hearing loss, tinnitus, and ulcerative colitis. R. at 18-20.
The appellant raises arguments
regarding his bilateral hearing loss claim and a loss of blood. As the
bilateral hearing loss claim has
been remanded and no issue of a loss of blood was addressed in the
February 2010 Board decision,
the Court does not have jurisdiction over these issues. See 38 U.S.C. §§
7252(a), 7266(a). A single
judge mayconduct the review of the claim to reopen because the outcome in
this matter is controlled
by the Court's precedents and "is not reasonably debatable." Frankel v.
Derwinski, 1 Vet.App. 23,
25-26 (1990). For the following reasons, the Court will vacate that
portion of the Board's February
4, 2010, decision that pertains to the appellant's claim to reopen and
remand the matter.


I. FACTS
The appellant served on active duty in the U.S. Army from December 1963 to
June 1964.
R. at 542, 544. The appellant's service medical records indicate that he
was diagnosed with various
eye conditions beginning in 1963. R. at 451-52, 486, 491-92, 499-502. A
May 1964 medical Board
report found that the appellant was unfit for duty due to exotropia,
alternating type, but also found
that the condition had existed prior to service and was not aggravated by
service. R. at 491-92.
In February 1983, the appellant filed a claim for service connection for
an eye disorder. R.
at 413-17. That claim was denied in an April 1983 rating decision because
the "evidence does not
show that the vet.'s preexisting eye disorder was aggravated by military
service." R. at 404. The
appellant did not appeal that decision, and it became final.
In September 2004, the appellant filed a statement in support of claim
seeking to reopen his
claim for service connection for an eye disability. R. at 396. A December
2004 rating decision
denied the appellant's claim to reopen. R. at 365. The appellant filed a
Notice of Disagreement
(NOD) in February 2005. R. at 343-44. A November 2005 Statement of the
Case (SOC) continued
the denial of the appellant's claim to reopen. R. at 352-61.
The appellant filed a lay statement from Roy Lewis, dated January 2007, in
support of his
appeal to the Board. R. at 337-339. Mr. Lewis's statement indicated that
he had witnessed the
appellant being "shot over" with a large mortar gun and taken to the
hospital while in service. Id.
Mr. Lewis further indicated that he recalled that the appellant had
medical problems subsequent to
this incident. Id. Following the submission of this laystatement, a
Supplemental SOC (SSOC) was
issued continuing the denial of the appellant's claim to reopen. R. at 119-
130. The appellant also
offered his testimony at a Board hearing regarding an in-service event
that he asserts affected his eye
sight. R. at 24-35, 28-30. The Board informed the appellant in December
2009 that his two eye
disorder claims, one for exotropia and one for heterotropia, were
considered one and the same for
appellant purposes. R. at 39-40, 41. The Board then issued its February
2010 decision, here on
appeal, that denied the appellant's claim to reopen his eye disorder claim.
R. at 3-22.
2


II. ANALYSIS
As noted above, the appellant's brief asserted that he wished to appeal
the issues of hearing
loss and loss of blood. These issues were not the subject of a final
decision by the Board, and the
Court does not have jurisdiction over them. The appellant's claim for
hearing loss was remanded
bythe Board's February2010 decision and is thus still pending before VA.
The appellant's assertion
regarding a loss of blood was not addressed by the Board and may
constitute a new claim. To the
extent that the appellant may have a pending unadjudicated claim at VA,
the appellant is free to
pursue such a claim with VA.
The Secretary concedes that it is necessary to remand the claim to reopen
the appellant's
claim for service connection for an eye disability. The Secretary notes
that the Board failed to
provide adequate reasons and bases for its decision. The Court agrees with
the Secretary and will
vacate the relevant portion of the Board decision and remand the matter
for readjudication.
Specifically, the Court notes that the Board determined that the lay
statements submitted by the
appellant, both his own and the statement from Mr. Lewis, were inherently
incredible. R. at 16.
However, when considering claims to reopen, the Board is required to
presume the credibility of lay
evidence. Justus v. Prinicipi, 3 Vet.App. 510, 512 (1992) ("The error that
the [Board] committed
was in assessing the credibility of the evidence prior to reopening the
claim."). The failure to do so
in this case constitutes an error necessitating remand.
Upon remand, the Board must adhere to the precedent articulated by the
Court in Justus as
well as the Court's other caselaw concerning the subject of lay evidence.
In its role as factfinder, the
Board must first "determin[e] whether lay evidence is credible in and of
itself, i.e., because of
possible bias, conflicting statements, etc." Buchanan v. Nicholson, 451 F.
3d 1331, 1334-37 (Fed.
Cir. 2006); see also Miller v. Derwinski, 3 Vet.App. 201, 204 (1992). In
certain situations, lay
evidence may be used to diagnose a veteran's medical condition. Jandreau v.
Nicholson, 492 F.3d
1372, 1377 (Fed. Cir. 2007) (holding that lay evidence may be used to
diagnose a condition when
"(1) a layperson is competent to identify the medical condition, (2) the
layperson is reporting a
contemporaneous medical diagnosis, or (3) lay testimony describing
symptoms at the time supports
a later diagnosis by a medical professional"); Barr v. Nicholson, 21 Vet.
App. 303, 307 (2007)
3


(stating that "[l]ay testimony is competent . . . to establish the
presence of observable
symptomatology and 'may provide sufficient support for a claim of service
connection'" (quoting
Layno v. Brown, 6 Vet.App. 465, 469 (1994))); Washington v. Nicholson, 21
Vet.App. 191, 195
(2007) (holding that, "[a]s a layperson, an appellant is competent to
provide information regarding
visible, or otherwise observable, symptoms of disability").
Further, lay evidence may be competent to show continuity of
symptomatology under
38 C.F.R. § 3.303(b). Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed.
Cir. 2009) (rejecting the
view that "competent medical evidence is required . . . [when]
thedeterminativeissueinvolves either
medical etiologyor a medical diagnosis") (citing Jandreau, 492 F.3d at
1376-77); Savage v. Gober,
10 Vet.App. 488, 497 (1997). When considering lay evidence, the Board
should determine whether
the veteran's disability is the type of disability for which lay evidence
is competent. See Jandreau,
492 F.3d at 1377. If the disability is of the type for which lay evidence
is competent, the Board must
weigh that evidence against the other evidence of record in making its
determination regarding the
existence of a service connection. See Buchanan, 451 F.3d at1334-37.
Further, the Court observes that, subsequent to the Board's decision in
this case, this Court
issued its decision is ShadeNext Hit v. Shinseki, 24 Vet.App. 110, 116 (2010) (
holding that the issue of
reopening must be confined to the subject of the existence of new and
material evidence alone and
does not include a separate outcome-based element). In Previous HitShadeNext Hit, the Court
emphasized that the phrase
"raise a reasonable possibility of substantiating the claim" does not
create a third element for new
and material evidence, but was intended to provide guidance for VA
adjudicators in determining
whether submitted evidence meets the new and material requirements. Id. at
117. The Board should
take due account of both Justus and Previous HitShadeNext Document in its reconsideration of this
matter.
4


III. CONCLUSION
Upon consideration of the foregoing analysis and of the appellant's and
the Secretary's briefs,
and a review of the record, that portion of the February4, 2010, Board
decision that denied his claim
to reopen his preciously denied claim for an eye disability, to include
exotropia and heterotropia, is
VACATED and the matter is REMANDED.
DATED: July 11, 2011
Copies to:
Ronald Williamson
VA General Counsel (027)
5

Why Veterans Need a Lawyer!

Excerpt from decision below:
"With respect to in-service incurrence, the Board wrote:
The Board concludes an examination is not needed here because the only evidence indicating [that Mr. Pederson] "suffered an event, injury or disease in service" is his own lay statement that he underwent counseling for his behavioral problems.
Although service personnel records show that [he] was punished for misconduct on numerous occasions, there is no evidence of mental health counseling or treatment for any psychiatric problems. [Mr. Pederson's] lay statement is insufficient to trigger VA's duty to provide an examination. There is no reasonable possibility that a medical opinion would aid in substantiating [his] claim since it could not provide evidence of a past event. R. at 7-8 (citations omitted). The Board is incorrect that "the only evidence" of in-service incurrence is Mr. Pederson's statements that he received counseling. Mr. Pederson's personnel records are replete with instances of drastic, unexplained changes in behavior, disciplinary infractions, and, ultimately, treatment (and, presumably, counseling) in the Base Alcohol Rehabilitation Program.
The Board's failure to consider and discuss whether this evidence suggests
that his bipolar disorder began in service means that its determination that a medical examination is not warranted is unsupported by adequate reasons or bases. Accordingly, remand is required. See Duenas, 18 Vet.App. at 517-18 (citing Tucker, 11 Vet.App. at 374)."
===========================================================
----------------------------------------------------

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-3823
DANIEL R. PEDERSON, 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: Daniel R. Pederson appeals through counsel a July 31, 2009,
Board of
Veterans' Appeals (Board) decision that denied entitlement to VA benefits
for bipolar disorder. The
Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a) to
review the Board decision.
Neither party requested oral argument or identified issues that they
believe require a precedential
decision of the Court. Because the Board's determination that VA satisfied
its dutyto assist is clearly
erroneous and unsupported by adequate reasons or bases, the Court will
vacate the July 2009 Board
decision and remand the matter for further development and readjudication
consistent with this
decision.
I. FACTS
Mr. Pederson served on active duty in the U.S. Air Force from March 1974
to January 1976.
His service entrance examination revealed no psychiatric disabilities. His
service personnel records
reveal various disciplinary problems, including failure to report for duty,
a traffic violation, and
alcohol use on base. In October 1975, Mr. Pederson entered the Base
Alcohol Rehabilitation
Program. In January 1976, the Air Force proposed to discharge Mr. Pederson
from service due to


his "inability to adjust to the demands of military life." Record (R.) at
16. He was honorably
discharged later that month.
In May 1998, a VA regional office granted Mr. Pederson non-service-
connected pension on
the basis of bipolar disorder with chronic severe depression.
In September 2004, Mr. Pederson sought VA disability benefits for bipolar
disorder. In
support of his claim, Mr. Pederson explained that he had been an air
traffic controller while in
service, which he reported was "a very stressful job." R. at 380. He
stated that he had undergone
counseling while in service because he "got in trouble so much." Id. He
also stated that bipolar
disorder had "destroyed" his life since service. Id. In an October 2004
information release consent
form, Mr. Pederson wrote: "My bipolar [disorder] in active duty [in] 1974[]
was shown by
counseling I had to take, and all the trouble I got into in the service.
My whole adult life after the
service was terrible [and] tra[g]ic until I found out I had bipolar [
disorder]." R. at 317. In a
December 2004 statement, Mr. Pederson's sister advised VA that Mr.
Pederson began to drink
heavily during service and "became very belligerent with his officers." R.
at 315. She wrote:
When he returned to civilian life, he had changed considerably. He
wasmature,bold,
and very angry. Probably his anger had a lot to do with his increased use
of alcohol.
For the next 25-27 years of his life, he battled with an alcohol addiction
[] and fell on
terrible times. He was either very sweet and brotherly, or he was
monstrously angry
and confrontati[onal]. He had great difficulty balancing his extreme mood
swings,
and sadly, destroyed his relationships with the women he loved, and
created poor
relations with his daughter . . . . I myself never knew which Dan I would
be seeing.
I became unwilling to risk his anger and destructive, demanding behaviors,
and saw
him infrequently. He is my only sibling, and I experienced a great loss of
a brother
once he came home from the military.
Id.
In February2005, the regional office denied Mr. Pederson's claim, finding
no evidence of in-
service incurrence of bipolar disorder and no evidence of a link between
his current condition and
service. Mr. Pederson filed a Notice of Disagreement with that decision.
In February 2006, VA requested Mr. Pederson's "entire personnel file" from
Rickenbacker
Air Force Base. R. at 218. In April 2006, VA received a response that VA
had been given all of Mr.
Pederson's medical and dental records in May 1998, and that "searches for
mental health records
2


from 10/1/75 to 1/1/76 were conducted for Rickenbacker [Air Force Base],
but no mental health
records were located." R. at 218-19.
In July 2009, after several years of additional development, Mr.
Pederson's representative
submitted a written argument to the Board:
[Mr. Pederson's] military personnel records show worsening in his behavior
over
time. He began to lose focus and frequently did not report for duty. He
was arrested
near the end of his enlistment for disobeying traffic signs and making a
rude gesture
to the gate guard on base. His annual performance evaluation notes very
low
markings bearing, behavior, and ability to adjust to military life. His
commander
remanded him on several occasions, reduced his pay, and enrolled him in
the base
alcohol assistance program. After no improvement in his condition was
noticed, he
was recommended for discharge.
[Mr. Pederson] has provided a credible statement in support of his claim.
He had no
noticeable behavioral defects prior to service and was found fit for duty.
He noticed
the changes in behavior began while in service and felt his problems came
from the
extreme stress from his occupation. After being discharged he reports a
history of
jail time and treatments in institutions.
R. at 290-91.
In July 2009, the Board issued the decision on appeal. Relevant to the
issues on appeal, the
Board determined that VA satisfied its duty to assist, specifically noting
the February 2006 request
andApril2006responseregardingrecords from Rickenbacker Air ForceBase. The
Boardnotedthat
Mr. Pederson had not identified any missing or outstanding records and had,
in fact, asserted that he
had no additional evidence to submit. The Board also determined that
remand to obtain a VA
medical examination was not warranted in the absence of evidence of in-
service incurrence of Mr.
Pederson's condition.1
II. ANALYSIS
On appeal, Mr. Pederson makes two arguments, both related to the Board's
finding that VA
satisfied its duty to assist. First, he contends that the Board erred in
finding that remand to obtain
a VA medical examination was not warranted. Second, he asserts that VA
failed to obtain records
The Board stated that it was relying both on the absence of in-service
incurrence and the absence of evidence
regarding nexus, but its discussion of the evidence in this respect
focused only on in-service incurrence. See R. at 7-8.
1
3


from the Base Alcohol Rehabilitation Program in which he participated
while stationed at
Rickenbacker Air Force Base.
Pursuant to 38 C.F.R. § 3.159(c)(4)(i) (2011), VA must provide a claimant
a medical opinion
or examination
if the information and evidence of record does not contain sufficient
competent
medical evidence to decide the claim, but
(A) Contains competent lay or medical evidence of a current diagnosed
disability or persistent or recurrent symptoms of disability;
(B) Establishes that the veteran suffered an event, injuryor disease in
service,
or has a disease or symptoms of a disease listed in [38 C.F.R.] § 3.309,
§ 3.313, § 3.316, and § 3.317 manifesting during an applicable
presumptive
period provided the claimant has the required service or triggering event
to
qualify for that presumption; and
(C) Indicates that the claimed disability or symptoms may be associated
with
the established event, Previous DocumentinjuryNext Hit, or disease in service or with another
service-connected disability.
See also 38 U.S.C. § 5103A(d)(2). When the Board considers whether a
medical examination or
opinion is necessary under section 5103A(d) and § 3.159(c)(4), it must
provide a written statement
of the reasons or bases for its conclusion, pursuant to 38 U.S.C. § 7104(
d)(1), and, absent a finding
of nonprejudicial error, vacatur and remand is warranted where it fails to
do so. Duenas v. Principi,
18 Vet.App. 512, 517-18 (2004) (citing Tucker v. West, 11 Vet.App. 369,
374 (1998)).
There is no dispute that Mr. Pederson has a current diagnosis of bipolar
disorder, thereby
meeting the first requirement outlined above. The Board determined that no
medical examination
was warranted because of a lack of evidence that Mr. Pederson "suffered an
event, Previous HitinjuryNext Hit or disease
in service." 38 C.F.R. § 3.159(c)(4)(i)(B). In light of that finding, the
Board never analyzed whether
Mr. Pederson met the third and final requirement regarding evidence that
may indicate that the
current disability is related to service.
Mr. Pederson argues that the Board's finding with respect to the second
element is erroneous
becauseit ignoreshis in-serviceexperiences,particularly"actions
indicativeofdepressiveandmanic
episodes, including loss of interest, distractability, changes in levels
of goal-directed activity, and
4


indulgence in pleasurable high-risk activities–specifically excessive
drinking." Appellant's Brief at
9. In support of his argument, Mr. Pederson summarizes the Diagnostic and
Statistical Manual of
Mental Disorder's entry on bipolar disorder and includes examples of manic
and depressive
behaviors, some of which Mr. Pederson purportedly demonstrated during
service.
With respect to in-service incurrence, the Board wrote:
The Board concludes an examination is not needed here because the only
evidence
indicating [that Mr. Pederson] "suffered an event, Previous HitinjuryNext Document or disease in
service" is his
own lay statement that he underwent counseling for his behavioral problems.
Although service personnel records show that [he] was punished for
misconduct on
numerous occasions, there is no evidence of mental health counseling or
treatment
for any psychiatric problems. [Mr. Pederson's] lay statement is
insufficient to trigger
VA's duty to provide an examination. There is no reasonable possibility
that a
medical opinion would aid in substantiating [his] claim since it could not
provide
evidence of a past event.
R. at 7-8 (citations omitted). The Board is incorrect that "the
onlyevidence" of in-service incurrence
is Mr. Pederson's statements that he received counseling. Mr. Pederson's
personnel records are
replete with instances of drastic, unexplained changes in behavior,
disciplinary infractions, and,
ultimately, treatment (and, presumably, counseling) in the Base Alcohol
Rehabilitation Program.
The Board's failure to consider and discuss whether this evidence suggests
that his bipolar disorder
began in service means that its determination that a medical examination
is not warranted is
unsupported by adequate reasons or bases. Accordingly, remand is required.
See Duenas,
18 Vet.App. at 517-18 (citing Tucker, 11 Vet.App. at 374).
On remand, the Board will expressly consider this evidence in conjunction
with Mr.
Pederson's statements, which the Court notes the Board did not find
incredible, and any other
evidence Mr. Pederson opts to submit in support of his claim. Should the
Board find the second
requirement met, it must then consider whether the evidence of record,
including Mr. Pederson's lay
statements as well as those of his sister regarding his symptoms since
service, meets the "low
threshold" of the third prong of § 3.159(c)(4)(i), such that a medical
examination is warranted.
McLendon v. Nicholson, 20 Vet.App. 79, 83 (2006).
With respect to Mr. Pederson's second argument, it is not clear to the
Court, as the Secretary
presumes, that Base Alcohol Rehabilitation Program records would have been
included in "mental
5


health"records. Without furtherclarificationfromtheservicedepartment,
theBoard's determination
that VA satisfied its duty to assist in this regard is clearly erroneous.
See Nolen v. Gober,
14 Vet.App. 183, 184 (2000) (holding that the Court reviews the Board's
determination that VA
satisfied its duty to assist under the "clearly erroneous" standard of
review); 38 C.F.R. § 3.159(c)(2)
(2011) (permitting VA to discontinue its efforts to obtain records from a
Federal department or
agencyonlywhen it concludes that continued efforts would be futile, which
requires that the Federal
department or agency advise VA that either the requested documents do not
exist or that the
custodian does not have them).
On remand, Mr. Pederson is free to submit additional evidence and argument
in accordance
with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam
order). See Kay v.
Principi, 16 Vet.App. 529, 534 (2002). The Court reminds the Board that "[
a] remand is meant to
entail a critical examination of the justification for the decision."
Fletcher v. Derwinski, 1 Vet.App.
394, 397 (1991). In addition, the Board shall proceed expeditiously, in
accordance with 38 U.S.C.
§ 7112 (expedited treatment of remanded claims).

III. CONCLUSION
Upon consideration of the foregoing, the July 31, 2009, Board decision is
VACATED and
the matter is REMANDED for further development and readjudication consistent
with this decision.
DATED: July 13, 2011
Copies to:
Glenn R. Bergmann, Esq.
VA General Counsel (027)
6

Single Judge Application, Adequate Medical Examination, Stefl v. Nicholson, 21 Vet.App. (2007)

Excerpt from decision below:
"As the appellant argues, VA's request for the examination seems to exclude
PTSD from the examiner's consideration, and at the very least does not ask him to
specifically discuss the disorder. R. at 313-17. In the examination report itself, the examiner mentions PTSD on only one occasion – during a recitation of information included in the appellant's April 2004 appeal to the Board. R. at 302. The examiner did, however, note that the diagnosis he assigned the appellant's condition "is the best explanation for all of his subsequent life difficulties." Id. The Board found that this statement and others indicate that the examiner did consider a range of possible disorders before rendering his diagnosis, including PTSD. It appears, however, that the only conclusion that can be drawn for certain from the examination report is that the examiner was aware that PTSD is a feature
of the appellant's past medical history when he reached his conclusions.
The examination report's failure to convey the degree of consideration the examiner gave to the appellant's PTSD renders the report inadequate. Even if the examiner did consider PTSD in rendering his opinion, he did not explicitly state
his conclusion about whether the appellant suffers from PTSD nor did he
explain his rationale for any conclusion he reached. Instead, he extensively explained his opinions concerning schizophrenia and alcohol dependence, the two disorders with which he diagnosed the appellant, and he extensively explained his reasons for declining to diagnose the appellant with depression and anxiety disorder. R. at 302-03. Moreover, the examiner was asked to "reconcile" the various psychiatric diagnoses the appellant had received. R. at 317. His extensive discussion of schizophrenia, alcohol dependence, depression, and anxiety disorder indicate that he attempted to fulfill this request, while his failure to discuss PTSD leaves the Court unsure whether that diagnosis was part of the attempt at reconciliation. Finally, his silence regarding PTSD does not in any way help the Board in determining why, if he did indeed consider and reject a PTSD diagnosis, he chose to do so, and thus does not aid the Board in making its ultimate determination on the appellant's claim. See Stefl, supra; see also Nieves-Rodriguez v. Peake, 22 Vet.App. 295,301(2008)(holding that the examiner's
6


report must contain clear conclusions and supporting data, as well as "a
reasoned medical explanation" connecting the data and the conclusions). For these reasons, the Court finds that the Board's determination that the July 2006 medical opinion is adequate is clearly erroneous. See 38 U.S.C. § 7261(a)(4); see also Nolen, supra. As a consequence, the Board's statement of reasons or bases is inadequate. See 38 U.S.C. § 7104(d)(1); Allday, Caluza, and Gilbert, all supra."
===================================

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


Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-4478
MICHAEL MCCONNELL, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before SCHOELEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
SCHOELEN,Judge: Theappellant,Michael McConnell,
appealsthroughcounselanAugust
20, 2009, Board of Veterans' Appeals (Board) decision that denied him
entitlement to service
connection for an acquired psychiatric disability, to include post-
traumatic stress disorder (PTSD).
Record of Proceedings (R.) at 3-26. This appeal is timely, and the Court
has jurisdiction to review
the Board's decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a).
Single-judge disposition is
appropriate. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the
following reasons, the
Court will vacate the Board's decision and remand the matter for further
proceedings consistent with
this decision.
I. BACKGROUND
A. Facts
The appellant served on active duty in the U.S. Air Force from March 1970
until March
1971. R. at 188. According to a statement by veteran Olden Chenault, Jr.,
on December 14, 1970,
the appellant was found in his room "with his eyes open, but [he] would
not respond." R. at 245.
Later that day, the appellant underwent a psychiatric evaluation. R. at
185-86, 256-57. During the


evaluation, the appellant stated that he "couldn't be their puppet
anymore," that his mind wouldn't
work, and that his subconscious prevented him from moving or talking that
morning. R. at 256.
According to the evaluator, "[w]hen [the appellant] was seen he was
somewhat grandiose and had
fashioned his Army uniform to look like Hippy attire. He intellectualized
a great deal. However,
no thought disorder, significant depression, or psychotic symptoms were
noted." R. at 185. He was
diagnosed with immature personality, passive-aggressive type and
adolescent adjustment reaction.
Id. The reporting physician opined that the appellant was "determined to
leave the Army," and
recommended an administrative discharge. R. at 186. The appellant
subsequently received a
discharge for unsuitability. R. at 233.
In September 2001, the appellant filed a claim for PTSD and depression. R.
at 594-98. In
a November 2001 medical document, a physician recorded that the appellant
felt stress and anxiety
throughout his service, and those feelings "culminated when [the
appellant's girlfriend] (also in [the]
military and stationed at [the] same base) committed suicide." R. at 544.
The physician quoted the
appellant as saying, "I had a breakdown . . . they found me comatose in my
bunk . . . I couldn't
function . . . they put me in a psych hospital." Id. The physician found
that, based on the appellant's
report, he was "experiencingsignificant [symptoms] that might be
indicative of [PTSD]." R. at 546.
In a February 2002 statement, the appellant described his in-service
incident as a "mental
breakdown" resulting, in part, from witnessing a suicide. R. at 488. In
July 2002, the VA regional
office (RO) denied the appellant service connection for PTSD. R. at 538-39.
In April 2004, the
appellant appealed to the Board. R. at 339.
In June 2006, VA issued an examination request. R. at 313-17. The
examination worksheet
indicatesthatVAsoughttheexaminationfor"[m]ental disorders(exceptPTSD &
eatingdisorders)."
R. at 313. In the request, VA asked the examiner to "provide an opinion as
to whether the current
diagnosed depression/schizophrenia first manifested itself during
militaryservice." R. at 317. Also,
the request stated that the appellant "has multiple psychiatric diagnoses
[]. Please reconcile and
provide accurate diagnosis." Id.
In July 2006, the medical examination was conducted. R. at 298-304. During
the
examination, the appellant claimed to have no memory of his in-service
episode. R. at 298.
According to the examiner, the appellant related the following from his
time in service:
2


[The appellant] mentioned that he spent many evenings after work at a bar
drinking
and dancing. I asked about this interest in girls. He told me that he
regularlymet two
girls, also in the Air Force on base, in that bar. He considered marrying
one of them.
As he described this experience he paused and seemed distracted. I asked
what was
happening right now. He said, as if awestruck, that he had just remembered
that his
favorite girl had killed herself. In fact he had gone to her barracks room
to see her
and found her with her wrists cut. He called the medics and recalls
nothingafter that.
The girls never appeared at the bar again. He believes that she died. He
cannot place
that event in time, nor in a chronology before his coma.
R. at 300. The examiner diagnosed the appellant with schizophrenia,
paranoid type, and alcohol
dependence, in remission. R. at 303. The examiner further opined that the
appellant's diagnosed
depression/schizophrenia "did not manifest itself during the military
service." Id.
In decisions dated March 28, 2007, and August 26, 2008, the Board denied
the appellant
entitlement to service connection for an acquired psychiatric disability,
claimed as depression, and
for PTSD. R. at 63-73, 105-12. The parties, however, filed and the Court
granted joint motions for
remand on both decisions. R. at 51-55, 92-100. The Board, in its August 20,
2009, decision here
on appeal, denied the appellant entitlement to service connection for an
acquired psychiatric
disability to include PTSD. The Board, in finding that the July 2006 VA
examination was adequate,
determined that "the examiner was aware that the [appellant] was claiming
he had [PTSD] and
considered that diagnosis." R. at 11. The Board also found that further
development was not needed
to allow VA to attempt to verifythat the suicide the appellant
allegedlywitnessed in service actually
occurred. R. at 15. The Board found that the examiner assumed that the
appellant's report of the
incidentwastrue,andtherefore,
eveniffurtherdevelopmentconfirmedtheveracityoftheappellant's
statements, "the claim would still be denied." R. at 15.
In weighing the evidence, the Board found the appellant's contention that
he witnessed a
suicide in service to be "questionable" and "not credible." R. at 18-19.
The Board then, relying
heavily on the July 2006 VA examination, especially the fact that the
report included no diagnosis
for PTSD, found that the Previous DocumentpreponderanceNext Hit of the evidence weighs against a
finding that the appellant
has PTSD and therefore against his claim. R. at 21-22.
B. Arguments on Appeal
The appellant contends that the July 2006 VA medical examination report is
inadequate
3


because the examiner "did not adequately consider or discuss PTSD," or,
alternatively, if the
examiner did discuss PTSD, his comments concerning the disorder lacked
detail and were
insufficient. Appellant's Brief (Br.) at 8-12. In conjunction with this
argument, the appellant also
asserts that the examination request indicated to the examiner that he
should exclude PTSD from his
consideration duringthe examination, and that the Court should presume
that the examiner followed
those instructions. Id. at 9-10. Next, the appellant argues that VA failed
in its duty to assist because
it did not attempt to obtain service records related to the suicide to
which he alluded to during his
examination. Id. at 13-15. Finally, the appellant argues that the Board's
determination that his lay
evidence is not credible was erroneous. Id. at 15-17.
The Secretary argues that the Board discussed the adequacy of the VA
examiner's opinion
and "provided an adequate statement of reasons or bases for its
determination that [the] examination
report was adequate and [the Secretary] asserts that such statement is
facilitative of judicial review."
Secretary's Br. at 13. In answer to the appellant's duty-to-assist
argument, the Secretary asserts that
the appellant's assumption that the suicide he recollected would be found
in service records is
"founded upon pure speculation." Id. at 16. Regarding the appellant's
arguments about the Board's
credibility determination, the Secretary argues that the appellant failed
to demonstrate error. Id. at
16-18.
II. ANALYSIS
Establishing service connection generally requires medical or, in certain
circumstances, lay
evidence of (1) a current disability; (2) incurrence or aggravation of a
disease or injury in service;
and (3) a nexus between the claimed in-service injury or disease and the
current disability. See
Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v.
West, 12 Vet.App. 247, 252
(1999); Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78
F.3d 604 (Fed. Cir. 1996)
(table). A finding of service connection is a finding of fact that the
Court reviews under the "clearly
erroneous" standard of review. See Dyment v. West, 13 Vet.App. 141, 144 (
1999).
When deciding a matter, the Board must include in its decision a written
statement of the
reasons or bases for its findings and conclusions, adequate to enable an
appellant to understand the
precise basis for the Board's decision as well as to facilitate review in
this Court. See 38 U.S.C.
4


§ 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v.
Derwinski, 1 Vet.App. 49,
56-57(1990). Tocomplywith this requirement,theBoardmust analyze
thecredibilityandprobative
value of the evidence, account for the evidence that it finds persuasive
or unpersuasive, and provide
the reasons for its rejection of any material evidence favorable to the
claimant. See Caluza,7
Vet.App. at 506; Gilbert, 1 Vet.App. at 57.
A. The July 2006 Medical Opinion
The Secretary's duty to assist includes "providing a medical examination
or obtaining a
medicalopinion whensuch an examination or opinion is necessaryto makea
decision on the claim."
38 U.S.C. § 5103A(d)(1); see also Green v. Derwinski, 1 Vet.App. 121, 124 (
1991). This Court has
held that a medical opinion is adequate "where it is based on
consideration of the veteran's prior
medical history and examinations and also describes the disability, if any,
in sufficient detail so that
the Board's 'evaluation of the claimed disability will be a fully informed
one.'" Stefl v. Nicholson,
21 Vet.App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet.App. 405, 407 (
1994)). The opinion
"must support its conclusion with an analysis that the Board can consider
and weigh against contrary
opinions." Id. at 124-25. Whether a medical examination report is adequate
is generally a finding
of fact that the Court reviews under the "clearly erroneous" standard of
review. See 38 U.S.C.
§ 7261(a)(4); Nolen v. Gober, 14 Vet.App. 183, 184 (2000).
The appellant argues that the July 2006 medical examination report is
inadequate because
the examiner did not consider or discuss PTSD. Appellant's Br. at 8-12.
The Board expressly
discussed this contention in its decision. It stated:
Based on the Board's reading of the July 2006 VA examination report, the
examiner
was aware that the [appellant] was claiming he had [PTSD] and considered
that
diagnosis. . . . The examiner discussed intrusive thoughts, dissociative
flashbacks,
in-service stressors, 'criterion B symptoms,' and that the [appellant]
felt a preservice
injury he sustained contributed to [PTSD]. . . . [T]he examiner was
clearly aware of
the fact that the [appellant] had been diagnosed with multiple psychiatric
disorders,
but found that these two diagnoses [(schizophrenia, paranoid type and
alcohol
dependence, in remission)] were the appropriate and accurate ones at the
time he
examined the [appellant]. This would have included consideration of [PTSD
]. . . .
The examiner had a full understanding that the [appellant] had been
diagnosed with
multiple psychiatric illnesses, and that notations of [PTSD] had been made.
He
entered diagnoses under Axis I and provided a detailed rationale based on
medical
principles and evidence in the claims file. . . . Moreover, the initial
question did not
5


specifically ask the examiner about alcohol dependence, yet the examiner
was able
to enter such a diagnosis. This is further proof that the psychiatrist
diagnosed what
was present based on his examination and the evidence. He did not ignore
any
disability that was shown by the evidence.
R. at 11-12.
As the appellant argues, VA's request for the examination seems to exclude
PTSD from the
examiner's consideration, and at the very least does not ask him to
specifically discuss the disorder.
R. at 313-17. In the examination report itself, the examiner mentions PTSD
on only one occasion
– during a recitation of information included in the appellant's April
2004 appeal to the Board. R.
at 302. The examiner did, however, note that the diagnosis he assigned the
appellant's condition "is
the best explanation for all of his subsequent life difficulties." Id. The
Board found that this
statement and others indicate that the examiner did consider a range of
possible disorders before
rendering his diagnosis, including PTSD. It appears, however, that the
only conclusion that can be
drawn for certain from the examination report is that the examiner was
aware that PTSD is a feature
of the appellant's past medical history when he reached his conclusions.
The examination report's
failure to convey the degree of consideration the examiner gave to the
appellant's PTSD renders the
report inadequate.
Even if the examiner did consider PTSD in rendering his opinion, he did
not explicitly state
his conclusion about whether the appellant suffers from PTSD nor did he
explain his rationale for
anyconclusion he reached. Instead, he extensivelyexplained his opinions
concerningschizophrenia
andalcoholdependence,thetwodisorderswith whichhediagnosedtheappellant,
andheextensively
explained his reasons for declining to diagnose the appellant with
depression and anxiety disorder.
R. at 302-03. Moreover, the examiner was asked to "reconcile" the various
psychiatric diagnoses
the appellant had received. R. at 317. His extensive discussion of
schizophrenia, alcohol
dependence, depression, and anxiety disorder indicate that he attempted to
fulfill this request, while
his failure to discuss PTSD leaves the Court unsure whether that diagnosis
was part of the attempt
at reconciliation. Finally, his silence regarding PTSD does not in any way
help the Board in
determining why, if he did indeed consider and reject a PTSD diagnosis, he
chose to do so, and thus
does not aid the Board in making its ultimate determination on the
appellant's claim. See Stefl,
supra; seealsoNieves-Rodriguezv.Peake,22Vet.App.295,301(2008)(
holdingthattheexaminer's
6


report must contain clear conclusions and supporting data, as well as "a
reasoned medical
explanation" connecting the data and the conclusions). For these reasons,
the Court finds that the
Board's determination that the July 2006 medical opinion is adequate is
clearly erroneous. See 38
U.S.C. § 7261(a)(4); see also Nolen, supra. As a consequence, the Board's
statement of reasons or
bases is inadequate. See 38 U.S.C. § 7104(d)(1); Allday, Caluza, and
Gilbert, all supra.
B. VA's Duty To Obtain Additional Records
The Secretary has a duty to assist the appellant in obtaining evidence
necessary to
substantiate his claim, including making reasonable efforts to obtain all
potentially relevant records
that the appellant adequately identifies and authorizes the Secretary to
obtain. See 38 U.S.C.
§ 5103A(a)(1), (b)(1); Moore v. Shinseki, 555 F.3d 1369, 1372-75 (Fed.
Cir. 2009). The Secretary's
duty to obtain records extends only to relevant records. See 38 U.S.C. §
5103A(b)(1); Loving v.
Nicholson, 19 Vet.App. 96, 102 (2005) (VA's duty to assist includes making
efforts to obtain
relevant records that the appellant has adequately identified).
The appellant argues that the Board should have sought to obtain records
from Hamilton Air
Force Base, where he was stationed, near the time of his December 1970
psychiatric episode to
determine whether a suicide he claimed to witness had indeed occurred.
Appellant's Br. at 13-15.
Once again, the appellant apparentlyraised this argument before the Board,
and the Board answered
it directly. The Board found that the July 2006 examination report
demonstrates that the examiner
accepted the appellant's account of witnessing a suicide as an in-service
stressor, and still did not
diagnose the appellant with PTSD. R. at 15. The Board stated:
The examiner did not diagnose [PTSD] based upon this or any other stressor
the
[appellant] argued had impacted him in service. Thus, the Board's denial
of this
particular claim is based on a conclusion that the Previous HitpreponderanceNext Document of the
evidence is
against finding that the [appellant] has [PTSD] as opposed to either a
lack of a
verified stressor or a finding that there is no diagnosis of [PTSD].
Simply put[,]
remanding this case to attempt to verify this purported in-service
stressor would not
change the outcome of this determination. Hence, remanding the case is not
in order.
R. at 21-22.
Because the Court has found the July 2006 examination to be inadequate
based on the
examiner's failure to provide anyrationale concerning anyconclusions
reached about the appellant's
PTSD, the Board's statement of reasons or bases regarding whether VA
fulfilled its duty to assist
7


despite not seeking records pertaining to a possible suicide during the
appellant's service may be no
longer valid. On remand, the Board should, based on its further
development of the evidence,
reassess its determination on this point.
C. Other Arguments
Given this disposition, the Court will not, at this time, address the
other arguments and issues
raised by the appellant. See Best v. Principi, 15 Vet.App. 18, 20 (2001) (
per curiam order) (holding
that "[a] narrow decision preserves for the appellant an opportunity to
argue those claimed errors
before the Board at the readjudication, and, of course, before this Court
in an appeal, should the
Board rule against him"). On remand, the appellant is free to submit
additional evidence and
argument on the remanded matters, and the Board is required to consider
anysuch relevant evidence
and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002) (stating
that, on remand, the Board
must consider additional evidence and argument in assessing entitlement to
benefit sought);
Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order).
The Court has held that
"[a] remand is meant to entail a critical examination of the justification
for the decision." Fletcher
v. Derwinski, 1 Vet.App. 394, 397 (1991). The Board must proceed
expeditiously, in accordance
with 38 U.S.C. § 7112 (requiring Secretary to provide for "expeditious
treatment" of claims
remanded by the Court).

III. CONCLUSION
After consideration of the appellant's and Secretary's pleadings, and a
review of the record,
the Board's August 20, 2009, decision is VACATED and the matter is
REMANDED to the Board
for further proceedings consistent with this decision.
DATED: June 27, 2011
Copies to:
Todd M. Wesche, Esq.
VA General Counsel (027)
8