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.
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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.
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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
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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.
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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)
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