Single Judge Application, Pain, C.F.R. 3.159(c)(4)(i)(A), Locklear v. Nicholson, 20 Vet.App. 410, 418 n.6 (2006)

Excerpt from decision below: "While pain alone is not a disability for compensation purposes, it may constitute a symptom of a disability about which the appellant is competent to testify. See Locklear v. Nicholson, 20 Vet.App. 410, 418 n.6 (2006) (noting that the appellant's chest pains may alone suffice to satisfy the first prong of 38 C.F.R. § 3.159(c)(4)(i)(A))." ==================================== "Where the following four criteria are present, the Secretary is required to provide a medical examination to a veteran seeking disability compensation: (1) Competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent symptoms of a disability maybe associated with the veteran's service or with another service-connected disability; and (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet.App. 79, 81 (2006) (citing 38 U.S.C. § 5103A(d)(2)). In deciding whether an examination is necessary, the Secretary must consider the record as a whole, "taking into consideration all information and lay or medical evidence (including statements of the claimant)." 38 U.S.C. § 5103A(d)(2). The third criterion, associating a disability or persistent symptoms thereof with service, is a "low threshold," McLendon, 20 Vet.App. at 83, which requires neither medical nor necessarily competent evidence to substantiate it. See Waters v. Shinseki, 601 F.3d 1274, 1277 (Fed. Cir. 2010) ===================================== ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 09-3177 LOWELL D. JOHNSON, 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, Lowell Johnson, appeals through counsel a May 19, 2009, Board of Veterans' Appeals (Board) decision that denied his request for entitlement to service connection for a left knee disability and a right knee disability; a compensable disability rating for service-connected hypertension; and a disability rating in excess of 20% for service-connected peripheral neuropathy of the right lower extremity. 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. See Frankel v. Derwinski, 1 Vet. App. 23, 25-26 (1990). For the following reasons, the Court will vacate the Board's May 19, 2009, decision and remand these matters for further proceedings consistent with this opinion. I. BACKGROUND The appellant served on active dutyin the U.S. Army from July1967 until March 1970, with service in Vietnam. Record of Proceedings (R.) at 2373. His service medical records (SMRs) indicate that he twisted his knee in November 1967 and again the next month. R. at 2451. Neither entry indicates which knee the appellant injured. However, a radiographic report from December 1967 states under the clinical history section: "Pain L[eft] knee since November." R. at 2450. During his March 12, 1970, separation examination the appellant indicated that he had a "trick" or locked knee. R. at 2455. However, the results of the examination showed " normal" lower extremities. R. at 2453. A VA examination on August 4, 2003, reported a history of hypertension, neuropathy, right knee arthroscopic surgery in 1988, and "f[ractured] left patella." R. at 2430. In September 2003, the appellant was examined for left knee pain subsequent to a fall. R. at 2427-29. An x-rayrevealed "[o]ld adductor magnus insertion avulsion, which is solid healed with deformity. The knee joint is otherwise normal." R. at 2428. The same examination diagnosed well- controlled hypertension. R. at 2429. In November 2004, the appellant filed a claim for entitlement to service connection for several different medical conditions including diabetes, leg neuropathy, and bilateral knee disabilities. R. at 2436-47. After considering the appellant's SMRs, VA treatment records from 2003 to 2005, and a compensation and pension (C & P) examination for peripheral neuropathy on 2005, the regional office (RO) granted service connection for peripheral neuropathywith a disability rating of 10%, but denied entitlement for service connection for the appellant's bilateral knee condition and hypertension in April 2005. R. at 2375-88. The RO received additional VA medical treatment records after the appellant filed a Notice of Disagreement. The treatment records from November 30, 2005, document that the appellant complained of chronic pain in several joints, including his knee. R. at 2275. The records also document a diagnosis of hypertension from 1993 and arthroscopic knee surgeryin 1988. R. at 2766. The appellant's treatment records from June 2005 document a surgical history of "R[ight] knee x 2 for [a] Baker's cyst [and] tendon repair." R. at 2217. The RO granted service connection for hypertension in March 2006, but assigned a noncompensable disability rating. R. at 1398-1402. The appellant's C & P examination for hypertension and peripheral neuropathy from June 2006 documents hypertension and right kneecap surgery in 1974. R. at 1304- 11. Following the appellant's Substantive Appeal, the RO obtained additional VA and private medical records that included blood pressure readings from 2007 and surgical histories documenting two right knee arthroscopic surgeries. R. at 125, 265, 1164. The RO issued a Supplemental Statement of the Case in May 2007, which continued to deny the appellant's claims. R. 988-92. 2 On March 23, 2009, the appellant appeared at an informal hearing before the Board. He argued that his claims for peripheral neuropathy and hypertension should be remanded to the RO for a contemporaneous medical examination. R. at 21-22. The appellant's representative argued: "The veteran believes that remand is necessary in this case because medical information of record is no longer probative . . . ." R. at 21. He also argued that his claims for his bilateral knee conditions should be remanded formedicalexaminations to determinetheetiologyoftheconditions and for VA to obtain medical records relating to his right knee surgeries. R. at 22- 24. In May 2009, the Board issued its decision granting an increased disability rating for peripheral neuropathy, but denying the appellant's other claims. R. at 3-19. 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. Medical Examinations for Knees The appellant argues that the Secretary breached his duty to assist by failing to provide a VA medical examination to determine the etiology of his bilateral knee conditions. Appellant's Brief (Br.) at 6. In particular, he asserts that the evidence establishes that he suffers from a current bilateral knee disability and that his lay observations of a "persistent and chronic knee condition since service" and medical records documenting pain in both knees are sufficient to demonstrate the disability. Id. In response, the Secretary argues that the Board properly determined that there was insufficient evidence to show that there is a current disability in either knee, a chronic disability of the left knee in service, and an in-service injury to the right knee. Secretary's Br. at 3-7. Further, he respondsbyarguingthattheappellant's "vague"assertionsofa" persistentandchronickneecondition" 3 are insufficient to establish entitlement to an examination and that without evidence of an in-service injury of the right knee an examination could not provide the basis for service connection. Id. at 7. Where the following four criteria are present, the Secretary is required to provide a medical examination to a veteran seeking disability compensation: (1) Competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent symptoms of a disability maybe associated with the veteran's service or with another service-connected disability; and (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet.App. 79, 81 (2006) (citing 38 U.S.C. § 5103A(d)(2)). In deciding whether an examination is necessary, the Secretary must consider the record as a whole, "taking into consideration all information and lay or medical evidence (including statements of the claimant)." 38 U.S.C. § 5103A(d)(2). The third criterion, associating a disability or persistent symptoms thereof with service, is a "low threshold," McLendon, 20 Vet.App. at 83, which requires neither medical nor necessarily competent evidence to substantiate it. See Waters v. Shinseki, 601 F.3d 1274, 1277 (Fed. Cir. 2010) The Court reviews the Board's conclusion that a medical examination or opinion is not necessary pursuant to section 5103A(d) under the "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law" standard of review pursuant to 38 U.S.C. § 7261(a)(3)(A). McLendon, 20 Vet.App. at 81. The Board's underlying determinations whether the appellant has a currentdisabilityandwhethertheappellantsufferedanin-serviceevent,injury, ordiseasearefindings of fact subject to the "clearly erroneous" standard of review. Id. at 82; see 38 U.S.C. § 7261(a)(4). In the decision here on appeal, the Board found that the evidence failed to establish that the appellant suffered from a left or right knee disability. R. at 6. The Board stated that "the records tend to show that he had no chronic disability of the left knee or injury to or disability of the right knee during service." Id. The Board went on to state: "[A]s there is no medical evidence of record of a current left or right knee disability or of a chronic left or right knee disability in service, under the facts of this case, the Board has no duty to provide a VA examination or obtain a medical opinion." R. at 16. 4 The Board found that because of the absence of an "underlying pathology" the appellant did not suffer from a bilateral knee disability, even though the appellant suffered from chronic knee pain. R. at 7. While pain alone is not a disability for compensation purposes, it may constitute a symptom of a disability about which the appellant is competent to testify. See Locklear v. Nicholson, 20 Vet.App. 410, 418 n.6 (2006) (noting that the appellant's chest pains may alone suffice to satisfy the first prong of 38 C.F.R. § 3.159(c)(4)(i)(A)). Consequently, the appellant's observations of persistent and chronic knee pain combined with medical records documenting pain in both of his knees and a history of knee surgeries may be sufficient to establish "competent evidence of a current disability or persistent or recurrent symptoms of a disability." McLendon, 20 Vet.App. at 81. There is no requirement that the appellant present evidence of a chronic knee disability in service. See id. Therefore, the Court will vacate the Board's decision and remand the matter for the Board to consider whether the record contains "competent evidence of . . . persistent and recurrent symptoms of a [bilateral knee] disability" and whether the symptoms may be associated with the appellant's service. See id. With respect to the right knee, the Board also determined there was no in- service injury. The Court finds that the Board failed to provide an adequate statement of reasons or bases with regard to its determination. See R. at 6; Allday v. Brown, 7 Vet.App. 517, 527 (1995 ) (the Board must provide a statement of reasons or bases adequate to enable a claimant to understand the precise basis for its determination, and to facilitate review in this Court); and Caluza, 7 Vet. App. at 506 (holding that Board must analyze the credibility of all evidence and provide the reasons for its rejection of any material evidencefavorableto theclaimant). TheBoardstatedthat:"[s] ervicetreatmentrecordsshow that the Veteran was treated for a twisted left knee in November and December 1967." R. at 5. However, the Board failed to explain how it reached this conclusion. There is ambiguity in whether the injuries in service are for only the left knee or for both knees. See R. at 2451. The SMR entries on November 27 and December 8 list only"twistedknee"without explaining which knee was treated. Id. Furthermore, in his separation physical, the appellant complained of a " trick" or locked knee without indicating which knee, or knees, the condition pertained to. R. at 2455. The Board's conclusory statement does not provide the Court with the kind of discussion required for it to 5 ascertain whether the Board fully considered the ambiguities in the appellant's records. Where appellatereview is frustrated because the Board provided inadequate reasons or basesfor its decision, remand is the appropriate remedy. See Cogburn v. Nicholson, 19 Vet.App. 427, 430 (2006). Accordingly, on remand, the Board must also reevaluate the evidence and provide an adequate statement of reasons or bases for its determination whether the record demonstrates that the appellant sustained an in-service injury to his right knee. When deciding whether an examination is necessary, the Board is reminded that it 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); see, e.g., R. at 22, 2275 (appellant's lay statements that he has suffered from a persistent and chronic knee condition since service, and VA treatment records documenting complaints of chronic pain in the knee); R. at 2217 (appellant's medical records that list two right knee surgeries for a Baker's cyst and tendon repair under past surgical history); R. at 2428 (radiological report that stated that the x-ray of the appellant's left knee showed "[o]ld adductor magnus insertion avulsion, which is solid healed with deformity"); R. at 2430 (appellant's medical records indicating right knee arthroscopic surgeryin 1988 and "fx left patella"); and R. at 2455 (separation physical fromMarch1970thatreported a " trick"or locked knee). If, after applying the McLendon elements, the Board determines that a medical examination is not warranted, it must provide an adequate statement of reasons or bases in support of its decision. Duenas v. Principi, 18 Vet.App. 512, 519 (2004). B. Contemporaneous Examinations for Hypertension and Peripheral Neuropathy The Secretary's dutyto assist requires a thorough and contemporaneous medical examination when the record does not adequately reveal the current state of the claimant's disability. See 38 U.S.C. § 5103A(d)(1); Green v. Derwinski, 1 Vet.App. 121, 124 (1991); see also Caffrey v. Brown, 6 Vet.App. 377, 381 (1994). The record is inadequate and a contemporaneous examination is necessarywhen the "evidence indicates there has been a material change in a disability or that the current ratingmaybe incorrect." 38 C.F.R. § 3.327(a) (2011); seePalczewski v. Nicholson, 21Vet.App. 174, 182 (2007) (submission of new evidence or allegation that a disability has worsened may require a new medical examination to be provided, but "mere passage of time between those 6 events does not"); Caffrey, 6 Vet.App. at 381 (finding 23-month-old examination too remote to be contemporaneous where appellant submitted evidence indicating disability had since worsened); Olson v. Principi, 3 Vet.App. 480, 482 (1992) ("Where the veteran claims a disability is worse than when originally rated, and available evidence is too old to adequately evaluate the current state of the condition, the VA must provide a new examination."). Here, the Board did not address whether the duty to assist required VA to obtain another medical examination. The Board reviewed the March 2005 and June 2006 VA examinations for blood pressure readings, and based its peripheral neuropathy rating decisions on a June 2006 examination. R. at 9-10. The Court finds that the Board did not provide adequate reasons and bases for its decision to rely on the 2005 and 2006 examinations given the appellant's argument at his 2009 hearing that the medical examinations before the Board were not adequate to describe his current medical conditions. R. at 21 ("The veteran believes that remand is necessary in this case because medical information of record is no longer probative regarding the severity of his peripheral neuropathy of the right lower extremity and hypertension[.]" (emphasis added)). The Secretary argues that the appellant did not allege that his conditions had worsened; instead, he argues that the appellant was only basing his request for a new examination on the passage of time. Secretary's Br. at 7- 8. Although the appellant's argument is not a model of clarity, it is clear that he questioned the adequacy of the medical evidence of record and the Board did not address his assertions, frustrating judicial review. Accordingly, the Court will remand the appellant's claim for increased disability ratings for hypertension and peripheral neuropathy for the Board to provide an adequate statement of reasons or bases for its decision. See 38 U.S.C. § 7104(a), (d)(1); Duenas, 18 Vet. App. at 519 (remanding for Board to provide an adequate statement of reasons and bases for its decision that a VA medical examination was not required). 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 7 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 any such relevant 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 the Secretary to provide for "expeditious treatment" of claims remanded by the Court.). III. CONCLUSION Afterconsideration of the appellant's and theSecretary's pleadings, andareviewof the record, the Board's May 19, 2009, decision is VACATED and the matter is REMANDED to the Board for further proceedings consistent with this decision. DATED: September 21, 2011 Copies to: Glenn R. Bergmann, Esq. VA General Counsel (027) 8

Single Judge Application, Attorney Resentation and Liberally Construed, Cogburn v. Shinseki, 24 Vet.App. 205, 213 (2010)

Excerpt from decision below: "This Court has recently clarified that, although a veteran's claim must always be liberally construed, "representation [by an attorney] may be a factor in determining the degree to which the pleading is liberally construed." Cogburn v. Shinseki, 24 Vet.App. 205, 213 (2010) (emphasis added)" ======================= ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 10-1917 PAULINE C. BAKER, 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: Pauline C. Baker appeals through counsel a May 19, 2010, Board of Veterans' Appeals (Board) decision that reopened but denied a claim for entitlement to dependency and indemnity compensation. Mrs. Baker's Notice of Appeal was timely and the Court has jurisdiction to review the Board decision pursuant to 38 U.S.C. § 7252(a). Neither party requested oral argument or identified issues theybelieve require a precedential decision of the Court. Because the Board failed to adjudicate all theories of entitlement reasonably raised by the record, the Court will vacate the May 2010 Board decision and remand the matter for further development, if necessary, and readjudication consistent with this decision. I. FACTS Mrs. Baker is the widow of veteran Richard J. Baker, who served on active dutywith the U.S. Navy from November 1962 to November 1966 and from May 1967 to December 1973. No abnormalities were noted at Mr. Baker's entrance examination. Service treatment records from December 1968 indicate that Mr. Baker twice sought treatment for headaches described as "persistent" and "frequent." Record (R.) at 208, 210. Similarly, a May 1971 service treatment note reflects Mr. Baker's complaints of headaches every other day that localized near the left temple and caused a pain that started as a dull ache but would get sharper. In June 1973, he again sought treatment for dizzy spells, sudden lightheadedness, and headaches. Post-service medical records from Air Force and Naval hospitals where Mr. Baker sought treatment between February 1976 and February 1987 indicate continued complaints of headaches and migraines, often described as vascular and persistent, recurring, or experienced for many years. In early March 1987, Mr. Baker was admitted to an Air Force medical center emergency room with recent symptoms of headaches, confusion, disorientation, lethargy, nausea, and slurred speech. A history of migraine headaches with an onset in 1972 was noted. Mr. Baker died on May 5, 1987. The immediate cause of death was presumed to be a midbrain tumor. Following an autopsy, however, the death certificate was amended to change the immediate cause of death to a stroke due to or a consequence of a vascular malformation. Major diagnoses at that time were "[m]arked diffuse autolytic change - brain ( 'Respirator Brain'), "[h]erniation of[the]midbrain,brainstem,cerebellartonsils,"and"[p]neumonia [ of the] right middle lobe." R. at 1097. In the autopsy report, the examiner stated that [g]ross examination of the optic chiasm[1 ] showed a web of anastomosing[2 ] small vessels surrounding it. Several of these were thrombosed.[3 ] The gross and microscopic appearance of these vessels was consistent with cerebral arterial occlusive disease. This is a rare disorder of uncertain etiology marked by occlusion of the main branches of the carotid artery with formation of collateral vessels. R. at 1099. The examiner explained that this rare disorder was known as Moyamoya Disease and that, although it was more prevalent in children, it was also known to occur in adults. He explained that "[t]he characteristic presentation in the adult patients was a sudden alteration in consciousness frequently associated with a massive subarachnoid bleed from the ruptured collaterals," and opined that "[t]his was probably the case with Mr. Baker." R. at 1099. The optic chiasm is "the part of the hypothalamus formed by the decussation, or crossing, of the fibers of the optic nerve from the medial half of each retina." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 342 (32d ed. 2011) [hereinafter DORLAND'S]. 2 1 Anastomosis is "a connection between two vessels." DORLAND'S at 75. Thrombosis is "the formation, development, or presence of a thrombus." DORLAND'S at 1923. A thrombus is "a stationary blood clot along the wall of a blood vessel, frequently causing vascular obstruction." Id. 3 2 The examiner noted that Mr. Baker "had a history of migra[i]ne headaches that date[d] back to 1972," and that this history "suggest[ed] the presence of altered vascular reactivity." R. at 1099. The examiner also noted that Mr. Baker "had a history of smoking three to four packs of cigarette[s] per day for in excess of [25] years," which was "clinically significant in that smokers under 65 years have twice the death rate from coronary arterial occlusive disease than non-smokers." R. at 1098. The examiner then summarized his findings: "[T]he anatomic findings are consistent with a dia[g]nosis of cerebral arterial occlusive disease—Moyamoya [D]isease. The rupture of some of the collateralvesselsprobablyresultedin hemorrhage, increasedintracranialpressure[,] andMr.Baker's death." R. at 1100. Mrs. Baker applied for dependency and indemnity compensation in April 1987. This claim was denied by a VA regional office in July 1987 on the basis that the evidence did not indicate that Mr. Baker's death was service connected. Mrs. Baker did not appeal this decision and it became final. In December 2004, Mrs. Baker requested that her dependency and indemnity compensation claim be reopened and indicated that her late husband was involved in Project Shipboard Hazardand Defense (SHAD). Project SHAD "was part of the joint service chemical and biological warfare test program conducted during the 1960s" and "encompassed tests designed to identify US warships' vulnerabilities to attacks with chemical or biological warfare agents and to develop procedures to respond to such attacks while maintaining a war-fighting capability." R. at 136. In a July2006 compensation and pension examination inquiry, the regional office confirmed that Mr. Baker had participated in two Project SHAD operations, "Scarlet Sage[,] with exposure to Bacillus subtilis[4 ] var[iant] niger[,] also called Bacillus globigii[,] . . . and . . . Purple Sage[,] with exposure to Methylacetoacetate."5 R. at 268. The regional office therefore requested that a VA Bacillus is "a genus of bacteria of the family Bacillaceae, including large aerobic or facultatively anaerobic, spore-forming, rod-shaped cells, the great majority of which are gram- positive and motile. Most species are saprophytic soil forms; three are pathogenic or potentially pathogenic." DORLAND'S at 190. Bacillus subtilis is "a species that is a common saprophyte in soil and water, often a laboratory contaminant, and can cause conjunctivitis. It also produces the antibiotic bacitracin." Id. 5 4 The record indicates that Methylacetoacetate is "a sarin nerve agent simulant." R. at 136. 3 examiner determine "whether [Mr. Baker's] cause of death was a direct or contributory result of exposure to stimulants as a result of his participation in Project SHAD." R. at 269. This opinion was obtained from a VA neurologist later that month. After reviewing the claims file, the neurologist noted that "[t]he autopsy findings showed that [Mr. Baker] had cerebral vascular occlusive disease and vascular malformation causing him to have a stroke." R. at 240. With regard to the agents to which Mr. Baker was exposed during his involvement with Project SHAD, the neurologist stated that [a] tracer that was used of bacillus globigii has not been known to consistently cause disease in healthyadult humans. The studies on autopsyshowed that this was not the cause of the infection in [Mr. Baker's] right lung. The cause of death was due to congenital vascular malformation causing a stroke. The clinical course was one that is commonly the case of improvement, and then he developed cerebral edema with brain stem compression and this probably caused his respiratory arrest with contributoryfactorsofright-sidedpneumoniaduetostaph[6 ] andklebsiella[7 ] andnot due to the agent that is mentioned in the tests. R. at 240-41. The neurologist therefore opined that Mr. Baker's " participation in Project SHAD . . . and [operation] SCARLET-SAGEwith exposure to bacillus globigii did not cause[his] death, either from that or exposure to Methylacetal acetate in Purple Sage." R. at 241. In August 2006, the regional office issued a rating decision again denying Mrs. Baker dependency and indemnity compensation on the basis that her husband's death was not service connected. Mrs. Baker filed a Notice of Disagreement in October 2007 and, after further development, appealed to the Board. In both her appeal and her Notice of Disagreement, Mrs. Baker argued that bacillus globigii was known to "cause Q-Fever[8 ] in 3-6% of humans that inhaled the 6 Staph, short for Staphylococcus, is "a ubiquitous genus of gram-positive, mainly facultatively anaerobic bacteria . . . ." DORLAND'S at 1765. They "are important inhabitants of the skin, cutaneous glands, and mucous membranes; several species are important pathogens, causing a wide varietyof infections, as well as producing a number of toxins." Id. Klebsiella is "a genus of bacteria of the family Enterobacteriaceae, made up of small, gram-negative, facultatively anaerobic, nonmotile rods, usually occurring singly; they are widely distributed in nature, including in the intestines. They are a frequent cause of nosocomial urinary and pulmonary infections and of wound infections." DORLAND'S at 988. Q fever is "an acute, generallyself-limited infection caused byCoxiella burnetii, characterized byfever, chills, headache, myalgia, malaise, and occasionally rash, and sometimes complicated by mild pneumonia . . ., hepatitis, and endocarditis. In humans, it is usually acquired by inhalation of airborne organisms in dust or aerosols contaminated by 8 7 4 chemical agent and that humans will continue to have flu-like symptoms and diarrhea, sore throat, fever, cough[,] and other cold symptoms—that will continue for years and then humans die 20 years later." R. at 95; see also R. at 60. She asserted that her husband's medical "records match these symptoms flawlessly," R. at 60, 95, and that it was therefore her belief that he "was one of the 3-6% of . . . soldiers sprayed . . . that developed Q-Fever and never received medical treatment due to the fact that everything about . . . [Project] SHAD . . . was kept classified for over 30 years." R. at 60. The Board issued the decision now on appeal in May 2010. Initially, the Board concluded that new and material evidence had been submitted by Mrs. Baker and therefore reopened her dependency and indemnity compensation claim. In assessing the merits of that claim, the Board noted Mrs. Baker's contention that her husband had contracted Q fever as a result of his participation in Project SHAD and that this condition contributed to his death. The Board also noted that service and post-service medical records indicated treatment for various ailments, including, on many occasions, headaches, but observed that none of them "refer[red] to Q fever or to any relationship between [Mr. Baker's] symptoms and his service." R. at 13. Finally, the Board found the VA neurologist's July2006 opinion to be highlyprobativeand"inlinewith the autopsyreport" insomuch as it concluded that Mr. Baker died as a result of "a congenital vascular malformation." R. at 16. Relying on this opinion, the Board concluded that the preponderance of the evidence did not indicate that Mr. Baker's death was related to his service and therefore denied Mrs. Baker entitlement to dependency and indemnity compensation. II. ANALYSIS A. Dependency and Indemnity Compensation On appeal, Mrs. Baker does not contest the Board's finding that Mr. Baker's participation in Project SHAD did not cause or contribute to his death. Instead, she argues that the Board erred by "onlyconsider[ing] whether [Mr. Baker's] cause of death was the result of chemical exposure" when "[t]he evidence of record . . . clearly raise[d] another issue which the [ Board] did not consider or discuss, whether [Mr. Baker's] in-service vascular headaches were the first manifestations of the infected domestic animals." DORLAND'S at 693. 5 [M]oyamoya [D]isease which led to his death bystroke." Appellant's Brief ( Br.) at 4. The Secretary contends that Mrs. Baker "did not raise this theory of entitlement [to dependency and indemnity compensation] when she sought to reopen her claim[,] nor was such a theory suggested by the evidence of record that would reasonably put the Board on notice that such a theory was plausible and must be developed." Secretary's Br. at 4. The Secretary argues that the Board therefore did not err in failing to consider and discuss this theory of entitlement. In Robinson v. Peake, this Court explained that, because proceedings before VA are nonadversarial, "the Board's obligation to analyze claims goes beyond the arguments explicitly made." 21 Vet.App. 545, 553 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). As the Court explained, "[i]t is entirely possible that the record might 'indicate' a theory of entitlement, but that a lay appellant might not be sophisticated enough to recognize the theory," meaning that "a theory can be both unknown to the appellant and suggested by the record." Id. (citing Ingram v. Nicholson, 21 Vet.App. 232, 256-57 (2007)). On the other hand, the Board is not required "to assume the impossible task of inventing and rejecting every conceivable argument in order to produce a valid decision." Id. Accordingly, "[w]here a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory." Robinson, 557 F.3d at 1361. In other words, "[t]he Board commits error only in failing to discuss a theory of entitlement that was raised either by the appellant or by the evidence of record." Robinson, 21 Vet.App. at 553. Here, having been reopened following the submission of new and material evidence, Mrs. Baker's claim was one for entitlement to dependency and indemnity compensation. A surviving spouse is eligible for dependency and indemnity compensation under 38 U.S. C. § 1310(a) and 38 C.F.R.§3.312(a)wheretheevidencedemonstratesthata service-connected disability"was either the principal or a contributory cause of death." 38 C.F.R. § 3.312(a) ( 2011). A disability is service connected where the evidence of record demonstrates (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a nexus between the in-service injury or disease and the current disability. 38 U.S.C. § 1110; Davidson v. Shinseki, 581 F. 3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); 38 C.F.R. § 3.303 (2011); 6 see also 38 U.S.C. § 1310(a) (providing that "[t]he standards and criteria for determining whether or not a disability is service-connected shall be those applicable under chapter 11 of this title"). Here, the Board found, and the evidence of record overwhelminglyindicates, that Mr. Baker suffered a stroke that resulted in a hemorrhage when some of the collateral vessels near the optic chiasm ruptured, which in turn caused intracranial pressure leading to his death. The evidence of record is equally clear, and the Board again found, that this stroke resulted from a vascular malformationcausedbyararecerebral vascularocclusivediseaseofuncertainetiologythatis known as Moyamoya Disease. Some of the evidence of record—namely, the autopsyreport—indicates that Mr. Baker's history of migraine headaches is consistent with the manner in which this condition manifests. See R. at 1099 ("Mr. Baker's history of migraine headaches suggests the presence of altered vascular reactivity."). The autopsy examiner dated the onset of this symptomatolgy to1972, during Mr. Baker's active duty service, R. at 1098, but, in fact, the first indication in the record of proceedings of Mr. Baker seeking treatment for headaches is found in the December 1968 service treatment notes, in which his headaches were described as "persistent" and " frequent." R. at 208, 210. Further, additional service treatment records indicate that Mr. Baker continued to suffer from headaches through June 1973, approximately five months prior to his separation from service. R. at 1343, 1374. There is also a bevy of post-service medical records suggesting that this symptom persisted following his separation, until the time of his death. R. at 930, 935, 938, 956, 959, 964, 968-70, 972, 980, 1023, 1035-1039. In sum, this body of evidence suggests that: (1) Mr. Baker's death resulted from a rare cerebral vascular disease of uncertain origins; (2) one symptom of this disease exhibited by Mr. Baker was migraine headaches; (3) these migraine headaches began during Mr. Baker's active duty service and continued, to one extent or another, throughout his service; and (4) headaches continued to plague him following his separation from service until the time of his death. Despite this evidence, the Board gave no consideration whatsoever to the possibility that this disease, although not diagnosed until Mr. Baker's death, had an onset during his active duty service. See 38 C.F.R. § 3.303(d) (providing that a disease that is first diagnosed following the veteran's separation from service may still be granted service connection "when all the evidence, including that pertinent to service, establishes that the disease was incurred in service"). Likewise, the Board gave no 7 consideration to whether the condition might be service connected as a " chronic disease" pursuant to 38 C.F.R. § 3.303(b) or, alternatively, by showing continuity of symptomatology pursuant to that sameprovision. SeegenerallySavagev.Gober, 10 Vet.App. 488, 495-97 (1997). Instead, the Board focused solely on the theory of entitlement to dependency and indemnity compensation expressly raised by Mrs. Baker—that her husband contracted Q fever during Project SHAD, which went untreated for many years and ultimately caused or contributed to his death. This was error, as the Board was required not only to develop and adjudicate the theories of entitlement expressly raised by Mrs. Baker, but also those reasonably raised by the record. Robinson, 21 Vet.App. at 553. In reaching the conclusion that this theory of entitlement was reasonably raised by the record, the Court notes that there is no indication that Mrs. Robinson was represented by an attorney during the course of proceedings below. See R. at 5 (listing Disabled American Veterans as Mrs. Baker's representative); see also Comer v. Peake, 552 F.3d 1362, 1370 (Fed. Cir. 2009) (explaining that assistance provided to claimants by veterans service organizations is invaluable but not equivalent to representation by a licensed attorney). This Court has recently clarified that, although a veteran's claim must always be liberally construed, "representation [by an attorney] may be a factor in determining the degree to which the pleading is liberally construed." Cogburn v. Shinseki, 24 Vet.App. 205, 213 (2010) (emphasis added). Accordingly, here, the Board was required to take into account the nature of Mrs. Baker's representation when assessing the evidence of record for the purpose of identifying and fully developing all issues and theories of entitlement pertinent to Mrs. Baker's claim for dependency and indemnity compensation. The Court concludes that a liberal examination of this evidence would have led to the development and adjudication of the alternative theory now expressly presented by Mrs. Baker on appeal. Because this did not happen, the Court will remand this claim for readjudication consistent with this decision. See Robinson, 21 Vet.App. at 553. B. Remedy The Court notes that Mrs. Baker argues that reversal, not remand, is the appropriate remedy under the circumstances of this case. She argues that "[t]he only permissible view of [the] evidence is that [Mr. Baker's] [M]oyamoya [D]isease, which was the cause of his death, began in service and should, then, have been service connected." Appellant's Br. at 7. The Court disagrees. 8 It is true that reversal is the appropriate remedy when there is but one permissible view of the evidence, and that view is contrary to the Board's decision. Gutierrez v. Principi, 19 Vet.App. 1, 10 (2004) (citing Johnson v. Brown, 9 Vet.App. 7, 10 (1996)). It is also true that, in the present case, the theoryof entitlement outlined above byMrs. Baker was most certainly raised bythe record. However, this case involves complex medical questions that the Board did not even attempt to address in the decision on appeal. "[W]here the Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate, a remand is the appropriate remedy." Tucker v. West, 11 Vet.App. 369, 374 (1998); see Hicks v. Brown, 8 Vet.App. 417, 422 (1995). Under the circumstances of this case, the Court is not convinced that the "only permissible view of the evidence" necessitates a finding that Mr. Baker's death was service connected, and remand is therefore the appropriate remedy. See Gutierrez, 19 Vet.App. at 10. Onremand,theBoardshould determinewhetheradditionaldevelopment, includingobtaining another VA medical opinion that explicitly considers this alternative theory of entitlement, is necessary. See McLendon v. Nicholson, 20 Vet.App. 79, 83-84 (2006). Mrs. Baker will also be free to submit additional evidence and argument on remand 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 Board is reminded that "[a] remand is meant to entail a critical examination of the justification for the decision" by the Board. 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). 9 III. CONCLUSION Upon consideration of the foregoing, the May 2010 Board decision is VACATED and this matter is REMANDED for additional development, if necessary, and readjudication. DATED: September 21, 2011 Copies to: Shannon L. Brewer, Esq. VA General Counsel (027) 10

Single Judge Application, New and Material, Reasonable Possibility, Shade v. Shinseki, 24 Vet.App. 110, 121 (2010)

Excerpt from decision below: "New and material evidence is evidence that would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Shade v. Shinseki, 24 Vet.App. 110, 121 (2010). Subsequent to the Board's decision in this case,thisCourt issued its decision in Shade, supra, which held that the issue of reopening must be confined to the subject of existence of new and material evidence alone and does not include a separate outcome-based element. Id. 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 3 adjudicators in determining whether submitted evidence meets the new and material requirements." Id. at 117. The Court further held that the term "reasonable possibility" contemplates the likely entitlement to a nexus medical examination, as opposed to the likely entitlement to the benefit sought. Id. at 121. In making the determination of materiality, "the Board is precluded from considering the credibility of the newly submitted evidence; strictly for purposes of determining whether new and material evidence has been presented, the Board must presume that the newly submitted evidence is credible." Duran v. Brown, 7 Vet.App. 216, 220 (1994) (citing Justus v. Principi, 3 Vet.App. 510, 513 (1992))." ========================= Skip navigation U.S. Court of Appeals for Veterans Claims View | Download | Details Previous document | Next document . 10-0997 ReedRA_10-997.pdf Search Terms: INJURY CreationDate: 09/20/2011 16:29:17 Creator: PrintServer150 ModDate: 09/28/2011 13:46:04 Producer: Corel PDF Engine Version 15.0.0.431 Title: X_XMPMETA_DC_TITLE: Times New Roman X_XMPMETA_XMPRIGHTS_MARKED: True ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 10-0997 ROSS A. REED, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before FARLEY, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. FARLEY, Judge: The appellant, Ross A. Reed, appeals that part of the December 1, 2009, Board of Veterans'Appeals (Board)decision that determinedthatnew and material evidence had not been submitted to reopen his claims for service connection for a left knee disorder and a low back disorder. Record (R.) at 3-15. 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. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). Because the Board erred in finding that no new and material evidence was offered to reopen the claims, the Court will reverse the decision and remand the matters for further proceedings consistent with this decision. I. FACTS The appellant served on active duty in the U.S. Army from August 1970 to February 1972. Record (R.) at 690. His original claim, filed in March 1972 (R. at 614-15), for entitlement to service connection for back and knee disorders was denied in May 1974 (R. at 577- 78). The VA regional office (RO) at that time found that the appellant's in-service back Previous DocumentinjuryNext Hit was "acute" and that he had no "right" knee disorder. R. at 577-78. Over the following years, the appellant made several unsuccessful attempts to reopen the previously denied claims for entitlement to service connection for a back and a left knee disorder. See, e.g., R. at 234, 541-42, 546. In April 1994, the appellant clarified that it was his left knee, not his right, that was injured in service. R. at 442. Also added to the record was an October 1995 VA medical examination report that included diagnoses of mechanical low back pain and "degenerative joint disease of the left knee." R. at 332. The appellant attempted to reopen his claim for service connection for his back and left-knee conditions in March 2006. R. at 147. The RO denied reopening in December 2006. R. at 118-22. The appellant submitted a Notice of Disagreement in December 2007. R. at 106. In support of his claims, he submitted a letter from Dr. Daniel Hinshaw, his treating physician, who opined that the Previous HitinjuryNext Document documented in the appellant's service medical records is related to his current chronic back pain. R. at 64. In the December 1, 2009, decision on appeal, the Board denied reopening the appellant's claims for entitlement to service connection for his left knee and back disorders. R. at 3-15. The Boardnotedthat the May1974 ratingdecision was final andthat, sincethatdecision,"new"evidence had been submitted. R. at 12. With regard to the Veteran's claim of service connection for a back condition, the RO held that the back strain in 1970 in service was an acute condition that did not exist after 1970, until the present time and could not be related to service. With regard to the left knee claim, the RO denied service connection for lack of evidence of a left knee disability. R. at 11. The Board listed the evidence that the appellant had submitted in support of his claim since the 1974 denial, but ultimately concluded that it was not sufficient to warrant reopening the claim. See R. at 11-12. The Board discussed the opinion submitted by Dr. Hinshaw, but found that "it does not substantiate the Veteran's claim because it does not provide evidence of a currently diagnosed back disability that is related to service." II. ANALYSIS In his brief before this Court, the appellant argues that the Board applied the wrongdefinition of what constitutes new and material evidence sufficient to warrant reopening his claims. Appellant's Brief (Br.) at 5-9. He contends that the Board should have applied the version of the applicable regulation "in effect when the veteran attempted to reopen his claims in 1994 and 1998, 2 and which is more favorable to the veteran." Id. at 5. Alternatively, he argues that, irrespective of whichdefinition ofnewandmaterial evidencewasused,theBoarderredin not reopeningtheclaims. Id. at 5, 10-12. The Secretary concedes that the Board's statement of reasons or bases for declining to reopen the appellant's claims is inadequate. Secretary's Br. at 5. Specifically, the Secretarypoints to the Board's inconsistent statements noting that "a December 2007 VA physician's letter provided a positive nexus" for the back claim but nevertheless finding that the opinion "did not 'substantiate the Veteran's claim because it does not provide evidence of a current back disability.'" Secretary's Br. at 7. The Secretary also points out that the Board noted that the 1974 rating decision denied the appellant's left knee claim on the basis that there was no current disability but the Board denied reopening because "there was no evidence of a nexus to service." Id. at 9. The Secretary urges the Court to remand the matter for readjudication. Id. at 10. He disagrees with the appellant that reversal is the appropriate remedy. Id. at 10-13. Pursuant to 38 U.S.C. § 5108, "[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim." 38 U.S.C. § 5108. New and material evidence is defined as: New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2011). New and material evidence is evidence that would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Shade v. Shinseki, 24 Vet.App. 110, 121 (2010). Subsequent to the Board's decision in this case,thisCourt issued its decision in Shade, supra, which held that the issue of reopening must be confined to the subject of existence of new and material evidence alone and does not include a separate outcome-based element. Id. In Shade, the Court emphasized "that the phrase 'raise a reasonable possibilityof substantiating the claim 'does not create a third element for new and material evidence," but was intended to provide "guidance for VA 3 adjudicators in determining whether submitted evidence meets the new and material requirements." Id. at 117. The Court further held that the term "reasonable possibility" contemplates the likely entitlement to a nexus medical examination, as opposed to the likely entitlement to the benefit sought. Id. at 121. In making the determination of materiality, "the Board is precluded from considering the credibility of the newly submitted evidence; strictly for purposes of determining whether new and material evidence has been presented, the Board must presume that the newly submitted evidence is credible." Duran v. Brown, 7 Vet.App. 216, 220 (1994) (citing Justus v. Principi, 3 Vet.App. 510, 513 (1992)). The Board's determination of whether a claimant has submitted new and material evidence is generally reviewed under the "clearly erroneous" standard of review set forth in 38 U.S.C. § 7261(a)(4). Suaviso v. Nicholson, 19 Vet.App. 532, 533-34 ( 2006); Elkins v. West, 12 Vet.App. 209, 217 (1999) (en banc). 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.'" Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). Here, the Board denied reopening the appellant's claims for service connection for a back disability and a left knee disability based on the finding that, although the appellant had submitted "new" evidence, it was not "material" because it failed to show a current disability related to service. R. at 12, 15. In coming to this conclusion, the Board reviewed the evidence submitted since the last final denial of the claims in May 1974. R. at 12, see also R. at 577-578. As to the back condition, the Board stated that in 1974 the claim had been denied because "there was no evidence of a back disabilitythat was related to service." R. at 12. However, the Board conceded that a December 2007 VA physician's letter provided a positive nexus between the appellant's back strain in service and his current back pain. See R. at 12, see also R. at 64. Nevertheless, the Board inexplicably denied reopening because the December 2007 nexus opinion did not "substantiate the Veteran's claim because it does not provide evidence of a current back disability. . . ." Id. The Board erred in not reopening the appellant's claim when the evidence of record included the December 2007 medical opinion that relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. 4 § 3.156(a). This evidence bears directly and substantiallyon his claim for service connection for his back disorder being related to his military service. Id. Similarly, the Board erred in denying reopening of the appellant's left knee disability claim. See R. at 12. Specifically, the Board bases its denial of reopening the appellant's left knee claim on the basis that there was no evidence of a nexus to service. Id. Yet, the Board explicitly stated that the 1974 rating decision denied the claim "for lack of evidence of a left knee disability." R. at 11. Recourse to the 1974 rating decision reveals that service connection for a right knee condition was denied for lack of evidence of a disability. R. at 577-78. In 1976 (R. at 554), and again in April 1994 (R. at 442), the appellant made clear that he was seeking service connection for a left knee disability. Irrespective of which knee was considered, insofar as the denial was based on the lack of a current disability, the newly submitted evidence of record reveals degenerative joint disease of the left knee. R. at 332. However, the Board failed to address the appellant's current diagnosis, which bears directly and substantially on his claim for service connection. The newly submitted evidence meets the regulatory requirements such that the appellant's claim should be reopened. The Court is required to reverse "a finding of material fact . . . if the finding is clearly erroneous." 38 U.S.C. § 7261(a)(4). Accordingly, the Court will reverse the December 1, 2009, Board decision that found that no new and material evidence had been received to reopen the appellant's claims forserviceconnection for his back and left knee disorders, and remand the matters to the Board for readjudication. 38 U.S.C. § 7261(a)(4); Duran, 7 Vet.App. at 220; Justus, 3 Vet.App. at 513. Further, once the claims are remanded, the Board must return the matter to the RO for adjudication to afford the appellant one review on appeal and to complete any development that the reopened claims require. Disabled Am. Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339, 1347 (Fed. Cir. 2003) ("When the Board obtains evidence that was not considered bythe [regional office] and does not obtain the appellant's waiver, however, an appellant has no means to obtain 'one review on appeal to the Secretary,' because the Board is the only appellate tribunal under the Secretary."); see 38 U.S.C. § 7104(a) ("All questions in a matter which . . . is subject to decision by the Secretary shall be subject to one review on appeal to the Secretary"); Shade, supra. 5 III. CONCLUSION On consideration of the foregoing, the parties' briefs, and the record on appeal, that part of the December 1, 2009, Board decision that found that no new and material evidence had been submitted to warrant reopening the claims for service connection for a back disorder and a left knee disorder is REVERSED and the matters are REMANDED for readjudication consistent with this decision. DATED: September 21, 2011 Copies to: Michael A. Leonard, Esq. VA General Counsel (027) 6 S

Single Judge Application, Period Without Medical Complaint, Causation, cf. Maxson v. Gober, 230 F.3d (Fed. Cir. 2000)

Excerpt from decision below: "The final problem with the Board's credibility analysis is that it misstates the relevant law. Maxson v. Gober does not, as stated by the Board, stand for the proposition that "the passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection." R. at 230. Rather, Maxson held that the Board may consider "evidence of a prolonged period without medical complaint, along with other factors." 230 F.3d at 1333. In other words, Maxson is not about credibility but about causation, once the facts are established. Id.; cf. Buchanan, 451 F.3d at 1337; Kahana v. Shinseki, 24 Vet.App. 428, 438 (2011)." ============================================= ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 10-0340 MIGUEL A. SOTO, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before LANCE, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. LANCE, Judge: The appellant, Miguel A. Soto, through counsel, appeals a January6, 2010, Board of Veterans' Appeals (Board) decision that denied his claim for disability compensation for tinea versicolor.1 Record (R.) at 17-32. Initially, the Court notes that it lacks jurisdiction over the claims for disability compensation based on service connection for a liver disability and for an acquiredpsychiatricdisability,to includepost-traumaticstressdisorder, thatwereremandedandthey will not be addressed further. See 38 U.S.C. §§ 7252(a), 7266(a); Howard v. Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000). The appellant does not present anyargument concerning the separate January 6, 2010, decision of the Board that determined that a January 17, 1986, decision should not be revised or reversed on the grounds of clear and unmistakable error. Accordingly, that claim is deemed abandoned. See Ford v. Gober, 10 Vet.App. 531, 535 (1997). Single- judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). This appeal is timely and the Court has jurisdiction over the case pursuant to 38 U.S.C. §§ 7252(a) and 7266. For the reasons that 1 Tinea versicolor is "a common, chronic, usually symptomless disorder, characterized by macular patches of various sizes and shapes, with colors from white in pigmented skin to tan or brown in pale skin. It is caused by Malassezia furfur and is usuallyseen inhot, humid tropical regions." DORLAND'SILLUSTRATEDMEDICALDICTIONARY1930 (32d ed. 2011) (hereinafter "DORLAND'S"). follow, the Court will vacate the January 6, 2010, decision and remand the matter for further proceedings consistent with this decision. I. FACTS The appellant served in the U.S. Armyfrom November 1969 to November 1971. R. at 1176. During service, in May 1971, he was experiencing pain while shaving and was diagnosed with and treated for folliculitis2 and acne vulgaris.3 R. at 1303-04. His June 1971 discharge examination reports that his skin was normal at that time. R. at 1433. The appellant suffers from schizophrenia with an anxiety disorder, which is rated at 50% disabling as a non-service-connected disability, as well as an acquired psychiatric disorder, depression, and "autistic impediments" that were reported at least as early as 1976. R. at 1355. In August 2004, the appellant filed a claim requesting disability compensation based on service connection for a skin condition on his arms and chest. R. at 782. He stated that his skin condition became worse when exposed to sunlight or heat and that he was treated for a skin condition while in the military. R. at 782. The appellant stated that he believed that his current condition was related to his in-service skin problem. R. at 782. An October 1997 treatment record noted that the appellant had a 10-year history of hyperpigmented lesions on his inner arms and back that increased when he was sweating. R. at 1094. The "provisional diagnosis" was listed as "r/o tinea versicolor." R. at 1094. In December 2008, the appellant received a VA compensation and pension examination. R. at 166-67. The examiner stated that the appellant was "a poor historian" and explained that "[h]e could not give a good history." R. at 166. The examiner continued: " However, on questioning about skin condition, he said he has been getting rashes since service on and off. It is intermittent . . . . Especially when he is exposed to moisture, sweating or heat, the rash comes. He was never treated in the servicealthough he complained, and he was never treated before saying it is not service connected[.]" R. at 166. 2 Folliculitis is "inflammation of a follicle or follicles, usually. . . hair follicles[.]" DORLAND'S at 726. 3 Acne vulgaris is "the usual form of acne, a chronic inflammatory disease of the pilosebaceous units; lesions usually occur on the face, chest, and back." DORLAND'S at 18. On January 6, 2010, the Board issued the decision on appeal. R. at 17-32. The Board found that"[t]he servicetreatment recordsarenegativefortineaversicolor, theinitial evidenceoftreatment for this disabilityis dated 26 years after discharge, and competent medical opinion finds that it is less likely than not related to active service." R. at 19. The Board noted the appellant's lay statements that supported a finding of continuity of symptomatology, but concluded that the statements were not credible. R. at 28. Accordingly, it denied the claim. II. ANALYSIS Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet.App. 247, 253 (1999); Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303 (2011). Service connection mayalsobe established byshowing continuity ofsymptomatology,whichrequires aclaimantto demonstrate(1)thatacondition was"noted"during service; (2) evidence of postservice continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. 38 C.F.R. § 3.303(b) (2011); see Davidson, 581 F.3d at 1316 (2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (whether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board); Barr v. Nicholson, 21 Vet.App. 303, 307 (2007); Charles v. Principi, 16 Vet.App. 370, 374 ( 2002) (appellant is competent to testify where symptoms are capable of lay observation, such as ringing in the ears); Layno v. Brown, 6 Vet.App. 465, 469 (1994) (lay testimony is competent to establish the presence of an observable symptomatology and "may provide sufficient support for a claim of service connection"). Under this provision, "symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage v. Gober, 10 Vet.App. 488, 496 (1997 ). A finding of service connection is a factual determination bythe Board that the Court reviews for clear error. See 38 U.S.C. § 7261(a)(4); Rose v. West, 11 Vet.App. 169, 171 (1998). A. Evidence of Tinea Versicolor in Service The appellant places great weight on the fact that, in its discussion of tinea versicolor, the Board stated that "[a] review of the service treatment records is negative for evidence of a skin disability, including tinea versicolor." Appellant's Brief (Br.) at 5, citing R. at 27. He argues that this was clearly erroneous, that the December 2008 medical examiner made the same error when he stated "[t]here is no mention of this condition [tinea versicolor] in the service medical record," and that the Board "failed to consider whether the present-daydiagnosed skin condition is related in any manner to the ignored in-service folliculitis and acne vulgaris." Appellant's Br. at 8. In response, the Secretary argues that the appellant "offers no evidence or adequate rationale that his one-time treatments for folliculitis and acne vulgaris were related to his [current] tinea versicolor in anyway." Secretary's Br. at 6. The Court agrees. In this case, although the Board stated on page 11 of its decision that "[ a] review of the service treatment records is negative for evidence of a skin disability, including tinea versicolor," it stated on page 19 of its decision, in the formal "FINDINGS OF FACT" section, that "[t]he service treatment records are negative for tinea versicolor." R. at 19 (emphasis added). The Secretarynotes that the appellant's current disability is confined to his arms, back, and chest, whereas both the in- service folliculitis and acne vulgaris affected his face because theyboth affected his ability to shave. R. at 450, 1303, 1304. The December 2008 medical examiner was even more explicit: he stated that the "service medical record does not mention anything about a skin rash or tinea versicolor." R. at 166. The examiner also expressly stated that he had reviewed the appellant's claims file. R. at 165. Giventhatthemedicalexaminerreviewedtheappellant's servicemedicalrecordsandconcludedthat they did not include evidence of an in-service rash, the Court must conclude that the medical examiner did not consider folliculitis or acne vulgaris to fall into the categoryof skin conditions that are considered "rashes." R. at 165-66. Accordingly, the Court agrees with the Secretary that any error in this regard did not prejudice the appellant's claim. Secretary's Br. at 9-10; see Shinseki v. Sanders, 129 S.Ct. 1696, 1704 (2009); see also 38 U.S.C. § 7261(b)(2) ( requiring the Court to "take due account of the rule of prejudicial error"). B. Credibility of Lay Statements The Court finds merit in the appellant's second argument, that the Board improperly discounted the appellant's lay statements in support of continuity of symptomatology. Appellant's Br. at 12. The Board is required to assess the credibility and probative weight of all relevant evidence. McClain v. Nicholson, 21 Vet.App. 319, 325 (2007). In doing so, the Board mayconsider factors such as facial plausibility, bias, self interest, and consistency with other evidence of record. Caluza, 7 Vet.App. at 511; Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Jandreau, 492 F.3d at 1376 ("The Board retains discretion to make credibility determinations and otherwise weigh the evidence submitted[.]"); cf. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (Board may consider "evidence of a prolonged period without medical complaint, along with other factors" when considering aggravation of a pre-existing condition). The Board may consider the absence of contemporaneous medical evidence when determining the credibility of lay statements, but may not determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence. Buchanan, 451 F.3d at 1331. Personal interest may affect the credibility of the evidence; however, the Board may not disregard a claimant's testimony simply because he or she is an interested party and stands to gain monetary benefits. Cartright v. Derwinski, 2Vet.App.24, 25 (1991). "The Court reviews factual findings" such as credibility"under the 'clearly erroneous' standard such that it will not disturb a Board finding unless, based on the record as a whole, the Court is convinced that the finding is incorrect." Hood v. Shinseki, 23 Vet.App. 295, 299 (2009). In this case, the Board concluded that the appellant's statements about continuity of symptomatology were not credible. R. at 28. In doing so, the Board explained its three reasons for this determination: [1] The December 2008 examiner described the Veteran as a poor historian. [ 2] In addition, his current contentions of symptoms since service are contradicted by the October 1997 treatment record which states that he had onlya 10 year historyof tinea versicolor, which would place its onset nearly 16 years after discharge. This history was presumablyobtained from the Veteran. [3] Furthermore, the Board notes that the passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Previous HitMaxsonNext Hit v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet.App. 365 (1992). The Board must concludethat the evidence does not support a finding of continuity of symptomatology[.] R. at 28. Each of these three reasons is problematic. First, the Board merely relied on the October 2008 medical examiner's description of the appellant as a "poor historian" rather than making its own determination about the appellant's ability to recount the history of his medical condition. R. at 28. However, the medical examiner did not explain what she meant bythis statement, nor did she explain which of the facts and conclusions she discussed were affected by her perception of the appellant as a poor historian. R. at 28. Nor did the Board explain how it interpreted the examiner's statement or how its weighing of any of the facts or conclusions in the medical opinion was affected by this description. These ambiguities preclude effective judicial review. Secondly, the Court is troubled by the Board's reliance on the " contradiction" between the appellant's statements and the treatment record of October 1997 that refers to a "10 year history" of tinea versicolor. R. at 1094. This record appears to be merely a referral from an Emergency Room physician to a dermatologist. R. at 1094. The section of the record labeled "Consultation Report" is completely blank and the reference to a "10 year history" is part of the single sentence on the page, with no further elaboration. R. at 1094. The Court is also troubled by the Board's statement that "[t]his history was presumably obtained from the Veteran." R. at 28. Given that the Board explicitly admitted that it is unsure whether the report of a 10-year history is even a statement by the appellant, it is not clear that the Board would reach the same conclusion about the appellant's credibility based solely on the October 1997 notation. The final problem with the Board's credibility analysis is that it misstates the relevant law. Maxson v. Gober does not, as stated by the Board, stand for the proposition that "the passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection." R. at 230. Rather, Maxson held that the Board may consider "evidence of a prolonged period without medical complaint, along with other factors." 230 F.3d at 1333. In other words, Maxson is not about credibility but about causation, once the facts are established. Id.; cf. Buchanan, 451 F.3d at 1337; Kahana v. Shinseki, 24 Vet.App. 428, 438 (2011). Accordingly, the Court is not convinced that the other errors in the credibility analysis are harmless, and the Court will remand the claim for the Board to provide an accurate analysis. C. Competence of Lay Statements Finally, the Court notes that the Board erred in its analysis of the appellant's competence to opine on the etiology of his tinea versicolor. R. at 28. When considering lay evidence supporting a claim for disability compensation, the Board must consider, on a case by case basis, the competence and sufficiency of lay evidence offered to support a finding of service connection. Davidson, 581 F.3d at 1316 (reiterating that "'[l]ay evidence can be competent and sufficient to establish a diagnosis of 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.'") (quoting Jandreau, 492 F.3d at 1377). In Barr v. Nicholson, this Court held that the presence of a simple, observable condition, such as varicose veins, is not a determination that is "medical in nature" and is therefore capable of lay observation for purpose of establishing service connection. 21 Vet.App. at308-09;seeKahana v.Shinseki,24Vet.App.428,438(2011)(Lance,J.,concurring)(" Simplyput, any given medical issue is either simple enough to be within the realm of common knowledge for lay claimants and adjudicators or complex enough to require an expert opinion."). In this case, the Board concluded that the appellant is not competent to opine on the issue of etiology. The Board explained that it had "considered the Veteran's sincere belief that his tinea versicolor was first incurred in service. However, the Veteran is not a physician, and he is not qualified to express a medical opinion as to such a relationship. Espiritu v Derwinski, 2 Vet.App. 492, 495 (1992)." R. at 28. The Board's analysis was flawed. The disability in question is tinea versicolor, a skin condition "characterized by macular patches of various sizes and shapes, with colors from white in pigmented skin to tan or brown in pale skin."4 Although the appellant may not be competent to provide a medical determination about a potential causal connection between tinea versicolor and folliculitis or acne vulgaris, it is unclear to the Court why he would not be competent to report whether or not he has observed simple visible symptoms, and how tinea versicolor differs from the varicose veins that were subject to competent lay observation in Barr. On remand, rather than categoricallydismissingtheappellant's statementsasnotcompetentbecausetheappellant is not a physician, the Board must make a case-specific determination as to whether the appellant's tinea versicolor is the type of observable medical condition that a lay person is competent to describe, as discussed in Davidson, Jandreau, and Barr. On remand, the appellant is free to submit additional evidence and argument, including the arguments raised in his briefs to this Court, in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order), and the Board must consider any such evidence or argument 4 DORLAND'S at 1930. submitted. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Board shall proceed expeditiously, in accordance with 38 U.S.C. §§ 5109B, 7112 (requiring Secretary to provide for "expeditious treatment" of claims remanded by Board or Court). III. CONCLUSION After consideration of the appellant's and the Secretary's briefs, and a review of the record, the Board's January 6, 2010, decision is VACATED as to the tinea versicolor claim and the matter is REMANDED to the Board for further proceedings consistent with this decision. DATED: September 23, 2011 Copies to: Perry A. Pirsch, Esq. VA General Counsel (027)

Combat Brain Trauma Increasing, 9,000 Pulled from Duty

Full article at: More troops' mild brain trauma diagnosed By Gregg Zoroya, USA TODAY By Garrett Hubbard, USA TODAY "Nearly 1,400 U.S. servicemembers were found to have concussions or mild brain injuries in Afghanistan and Iraq this year under a program that forces servicemembers to take a break from combat when exposed to a blast or other jarring incident.The military has pulled about 9,000 servicemembers from combat for short periods of time to look for signs of brain injury after blasts that caused no obvious wounds, according to data given to USA TODAY."

Single Judge Application, Lack of Notation of Medical Condition, Buczynski v. Shinseki, 24 Vet.App. 221, 226-27 (2011)

Post deleted.

30% of Female Veterans with PTSD Suffered Military Sexual Trauma

Full article at: Sexual Trauma Rampant in Female OIF/OEF Veterans With PTSD Megan Brooks September 22, 2011 — Roughly one third of Iraq and Afghanistan female veterans with posttraumatic stress disorder (PTSD) have suffered military sexual trauma (MST), new research shows. "A significant proportion of women with PTSD report MST...existing PTSD protocols, such as prolonged exposure or cognitive processing therapy, are known to be effective in dealing with sexual trauma," Shira Maguen, PhD, a psychologist at the San Francisco VA Medical Center in California, told Medscape Medical News.

Single Judge Application, Remand Delays, Harvey, 24 Vet.App.at 288

Excerpt from decision below: "However, if the Secretary fails to expeditiously complete the processing of this case and the Court's remand, the petitioner may file another petition and the Court will once again have to consider whether the Secretary has been reasonably diligent and energetic in his attempts to fulfill the Court's remand order. See Harvey, 24 Vet.App.at 288 (stating that the Secretary's duty to expedite is an inherent component of the Court's remand power that merits suitable urgency and attention from the Secretary); see also Espamer v. Derwinski, 1 Vet.App. 3 ( 1990)." ==================== ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 11-470 FRANCIS NOBLE, PETITIONER, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, RESPONDENT. Before LANCE, Judge. ORDER Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. I. BACKGROUND On February 14, 2011, the pro se petitioner filed a petition asking the Court to order the Secretaryto "finalize" his remanded claim for entitlement to service connection for bilateral hearing loss. The petition at hand stems from an appeal decided by the Court on August 24, 2007. In that decision, the Court remanded the petitioner's bilateral hearing loss claim so that the Board could obtain medical records from the Federal Aviation Administration (FAA), provide an adequate medical examination, and also provide an adequate statement of reasons or bases for its findings concerning notice pursuant to 38 U.S.C. § 5103. See Noble v. Nicholson, No. 05-2878, 2007 WL 2429854 (Vet. App. Aug. 24, 2007). On April 11, 2011, the Court ordered the Secretary to respond to the petitioner's assertions. On April 26, 2011, the Secretary submitted a response. In his response, the Secretary stated that in September 2008, the petitioner's case was remanded to the Appeals Management Center (AMC) for further development. He further stated that the petitioner was scheduled for a February 17, 2009, audiological examination. However, the Secretary admitted that the notice was mailed to the wrong address. As a consequence, the petitioner apparently did not report for his scheduled examination. The Secretary also informed the Court that on April 14, 2011, the petitioner was sent notice that he would be scheduled for another audiological examination. In light of the considerable delay involved in the processing of the petitioner's remand, the Court ordered the Secretary to provide the Court with a supplement concerning VA's progress in meeting the requirements of the Court's August 2007 remand. As detailed in the Secretary’s response and additional supplemental responses, completion of the required medical examination has been complicated by the appellant’s relocation to Mexico. However, on September 6, 2011, the Secretary filed a supplemental response indicating that the petitioner had finally received an examination and an opinion that appears adequate for rating purposes. II. ANALYSIS A. Entitlement to a Writ This Court has adopted the case-or-controversy jurisdictional requirements imposed by Article III of the U.S. Constitution. Aronson v. Brown, 7 Vet.App. 153, 155 (1994). Where the relief sought by a petition for extraordinary relief has been afforded, the petition is moot. See Chandler v. Brown, 10 Vet.App. 175, 177 (1997) (per curiam order); Thomas v. Brown, 9 Vet.App. 269, 270 (1996) (per curiam order). In this case, the petitioner has sought compliance from VA with the Court's August 2007 remand order that required the Secretary to obtain the petitioner's medical records from the FAA, provide an adequate medical examination, and also provide an adequate statement of reasons or bases for its findings concerning notice under 38 U.S.C. § 5103. See Noble, supra. Based on the supplements submitted bythe Secretary, the petitioner's FAArecords have been obtained, he has received a new audiological examination, and he will be in receipt of a decision shortly. Accordingly, the petitioner has received the relief he is entitled to and his petition must be dismissed as moot. See Chandler, supra. B. Sanctions The Court acknowledges that the petitioner seeks sanctions for the considerable delay in the processing of his case. However, sanctions are appropriate only where the delay in the processing of a Court remand is the result of "gross negligence and a gross lack of diligence" on the part of the Secretary. Harvey v. Shinseki, 24 Vet.App. 284, 287 (2011). In this case, the delay in the petitioner's claim seems to have been caused by an incorrect mailing by the AMC and by the claim being placed in deferred status while other work was being performed on different claims associated with the petitioner. The Court, in this case, finds that the Secretary's conduct, although not ideal and approaching negligent, has not reached the level of gross negligence and lack of diligence required for a civil contempt sanction. Id. Accordingly, the Court will not order sanctions at this time. However, if the Secretary fails to expeditiously complete the processing of this case and the Court's remand, the petitioner may file another petition and the Court will once again have to consider whether the Secretary has been reasonably diligent and energetic in his attempts to fulfill the Court's remand order. See Harvey, 24 Vet.App.at 288 (stating that the Secretary's duty to expedite is an inherent component of the Court's remand power that merits suitable urgency and attention from the Secretary); see also Espamer v. Derwinski, 1 Vet.App. 3 ( 1990). Furthermore, if such an event comes to pass, these proceedings will undoubtedly be taken into account when determining the necessity of stronger action by the Court. 2 III. CONCLUSION Upon consideration of the foregoing, it is ORDERED that the appellant's request for sanctions is DENIED; it is further ORDERED that the petition for extraordinary relief is DISMISSED as moot. DATED: Sept. 15, 2011 BY THE COURT: ALAN G. LANCE, SR. Judge Copies to: Francis Noble VA General Counsel (027) 3

Single Judge Application, Claim for Service Connection, Inexact Term

Excerpt from decision below: "E. Final Matter The Court notes that the parties' briefs repeatedly refer to a "claim for service connection."As the Court explained in Hillyard v. Shinseki, the use of this term is inexact, and therefore is–although prevalent in the Court's cases, as well as those of the United States Court of Appeals for the Federal Circuit–disfavored. 24 Vet.App. 343, 355 (2011). The Court urges the parties to practice precision in language in future briefs. +++++++++++++++ ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 10-0246 DARRELL VULGAMORE, 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: Darrell Vulgamore appeals through counsel a November 27, 2009, Board of Veterans' Appeals (Board) decision that denied entitlement to (1) a disability rating in excess of 50% for post-traumatic stress disorder; (2) a disability rating in excess of 40% for reactive hypoglycemia1 secondary to vagotomy2 and pyloroplasty3 for a duodenal ulcer; and (3) a total disability rating based on individual unemployability. Mr. Vulgamore's Notice of Appeal was timely, and the Court has jurisdiction to review the Board decision pursuant to 38 U.S.C. § 7252(a). Neither party requested oral argument or identified issues they believed to require a precedential decision of the Court. Because the Board improperly applied the disability rating schedule in its decisionregardingentitlementto anincreaseddisabilityratingforpost- traumaticstressdisorder,and because the Board provided inadequate reasons or bases for denying entitlement to a total disability Hypoglycemia is "an abnormallydiminished concentration of glucose intheblood." DORLAND'SILLUSTRATED MEDICAL DICTIONARY 915 (31st ed. 2007) [hereinafter DORLAND'S]. A vagotomy is a surgical treatment for ulcers that interrupts the impluses carried by the vagus nerve or nerves. See DORLAND'S at 2048. The vagus is the tenth cranial nerve. Id. at 1280. A pyloroplasty is an "incision of the pylorus and the reconstruction of the channel through it, such as to relieve obstruction or accelerate gastric emptying after a vagotomy for peptic ulcers." DORLAND'S at 1583. The pylorus is "the most distal part of the stomach . . . through which the stomach contents are emptied into the duodenum." Id. 3 2 1 rating based on individual unemployability, those portions of the November 2009 Board decision will be vacated and remanded for further development and readjudication consistent with this decision. BecausetheBoard's determinationthatanincreaseddisabilityratingforhypoglycemiawas not warranted was not clearly erroneous, that portion of the Board decision will be affirmed. I. FACTS Mr. Vulgamore served on active duty from February 1963 to October 1966 and from November 1966 to November 1972, including service in Viet Nam. In October 1968, he underwent a vagotomy and a pyloroplasty to treat a bleeding duodenal ulcer. In October 1972, he was diagnosed with reactive hypoglycemia, probably secondary to the vagotomy and pyloroplasty. In January 1973, a VA regional office granted Mr. Vulgamore's December 1972 claim for benefits for reactive hypoglycemia secondaryto vagotomyand pyloroplastyfor a duodenal ulcer and assigned a 40% disability rating. In March 1995, the regional office granted Mr. Vulgamore's April 1994 claim for benefits for post-traumatic stress disorder and assigned a 50% disability rating. In February 1996, the Social Security Administration determined that Mr. Vulgamore was disabled as of February 1995 due primarily to post-traumatic stress disorder and secondarily to degenerative disc disease. The record reveals that, in November 2000, a VA physician diagnosed Mr. Vulgamore with both post-traumatic stress disorder and bipolar disorder. In June 2005, Mr. Vulgamore sought increased disability ratings for both of his service- connected conditions and asserted that he had been unemployable as a result of those conditions since August 1990. He also advised VA that he was receiving Social Security disability benefits based in part on post-traumatic stress disorder. In September 2005, Mr. Vulgamore underwent a VA digestive conditions examination in which the examiner was asked to determine whether Mr. Vulgamore was unemployable as a result of his hypoglycemia. The examiner reviewed Mr. Vulgamore's claims file and medical records. In reviewing those records, the examiner stated: "[Mr. Vulgamore] never lost a job as a truck driver or backhoe ditch digger because of any problems other than [he] decided to quit because he could not 2 tolerate being around people." Record (R.) at 1186. The examiner also noted: "[Mr. Vulgamore] reports that he worked as a truck driver, and was in an accident in 1990 when he slipped on oil in the parking lot and tried to go back in 1994 and was not able to pass the physical due to his right arm. He then went to commercial fishing and then was not able to work due to his decrease in vision." R. at 1187. The examiner recorded Mr. Vulgamore's description of his hobbies, including yard work, fishing, home remodeling, and traveling with his wife, and noted that he was able to perform the activities of daily living. After a physical examination, the examiner concluded: "It appears that since he was discharged from the service[, Mr. Vulgamore] has not sought medical treatment for his symptoms. He is also able to maintain an active lifestyle even with his symptoms[,] and it is less likely than not that he is unemployable." R. at 1188. Also in September 2005, Mr. Vulgamore underwent a VA post-traumatic stress disorder examination. The examiner reviewed his claims file and medicalhistoryand conducted a 90-minute face-to-face interview and evaluation. Mr. Vulgamore described his marriage as "good, as long as [mywife] stays awayfrom me when I am mad," but the examiner noted that Mr. Vulgamore laughed after making the statement and appeared to have "a rather sardonic sense of humor." R. at 1190. The examiner noted Mr. Vulgamore's prior employment as an over-the-road truck driver, which he had to give up when he began to have problems with his knees and when problems with his arms and hands made gripping the steering wheel difficult. The examiner also noted that Mr. Vulgamore had "a very limited social life" and summarized his mental health treatment since approximately 2000. The examiner stated: "The overall impression from reviewing the notes was that [Mr. Vulgamore] is being treated primarily for bipolar disorder. There are only three documented therapy contacts relative to [post-traumatic stress disorder] issues from 2000 to the present." R. at 1192. The examiner then summarized his findings relative to the post-traumatic stress disorder criteria contained in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), compared Mr. Vulgamore's current symptoms to his demonstrated past symptomatology, and concluded: "[Mr. Vulgamore's] [post-traumatic stress disorder] symptoms atthis time areclearlynot more intense or frequent than what he reported in 1994. He is not unemployable due to [post- traumatic stress disorder] symptoms alone." R. at 1194. 3 In October 2005, the regional office issued a rating decision continuing both the 40% disability rating for hypoglycemia and the 50% disability rating for post- traumatic stress disorder, and denying entitlement to a total disability rating based on individual unemployability. Mr. Vulgamore filed a Notice of Disagreement with that decision and included a statement from his wife regarding his bad moods, social avoidance, sleep apnea, anger, and poor impulse control. She also described an incident in which Mr. Vulgamore disappeared for several weeks without calling. Mr. Vulgamore ultimately appealed to the Board. In October 2006, Mr. Vulgamore sought treatment for his psychiatric conditions. His attending physician diagnosed bipolar disorder, depression, and panic attacks with agoraphobia, as well as reduced concentration, energy, and motivation. In January 2008, Mr. Vulgamore underwent a VA diabetes mellitus examination in connection with a new claim for that condition. The examiner noted that his VA medical records and VA examinations, as well as laboratorytests administered in May2007, contained no diagnoses of diabetes. Although further examination and testing did not yield a diagnosis of diabetes, the examinerdid notethatMr.Vulgamorecomplainedofdecreasedenergyandappetite, fatigue,nausea, vomiting, and constipation. Mr. Vulgamore underwent another VA diabetes mellitus examination in June 2008 at which he complained of heat intolerance, vomiting, diarrhea, constipation, irritability, moodiness, and night sweats. Again, the examiner concluded that Mr. Vulgamore did not suffer from diabetes. In April 2009, the Board remanded Mr. Vulgamore's claims to the Appeals Management Center for VA examinations to determine the current levels of impairment due to both hypoglycemia and post-traumatic stress disorder. In June 2009, both VA examinations were provided. In the stomach examination, the examinernotedthat overthe past several years, Mr. Vulgamoresufferedfromconstipation, diarrhea, abdominal pain, belching, bloating, nausea, and vomiting. The examiner answered "no" to the questions "Are there signs of significant weight loss or malnutrition?" and "Are there signs of anemia?" R. at 65. The examiner noted mild effects on feeding and toileting, but otherwise determined that Mr. Vulgamore's condition did not affect his daily activities. 4 In the post-traumatic stress disorder examination, the examiner recorded Mr. Vulgamnore's description of his prior employment, including that he had not worked since 1990 and that he had to leave his job as a truck driver after he "went ballistic and hurt somebody." R. at 68. Mr. Vulgamore stated that he and his wife were "still friends," but that he had trouble being around "too manypeople,"andreportedexperiencingpanicattackswhileshopping. TheexaminernotedthatMr. Vulgamore was agitated and guarded with "increased emotional lability." Id. The examiner also noted Mr. Vulgamore's reports of suicidal ideation (without plans or intent), sleep disturbances, and hypervigilence. The examiner compared Mr. Vulgamore's symptoms to the post- traumatic stress disorder criteria described in the DSM-IV and concluded that he does suffer from post-traumatic stress disorder. She stated that his post-traumatic stress disorder symptoms were "not more intense or frequent than in previous exams. Therefore, his [post-traumatic stress disorder] is not causingany more distress than in previous exams. He is not unemployable due to [post- traumatic stress disorder]." R. at 71. Rather, His disability and unemployability appears to be multi-factorial with increasing health problems, unmanaged bipolar disorder, depressive symptoms, and his personality disorder. These do not seem connected to the [post-traumatic stress disorder]. He was diagnosed with Major Depressive Disorder and Bipolar Disorder [previously]. He denied current suicidal ideation, intent or plans, but consistently verbalizes a negative view of himself, his present circumstances, and his future. Symptoms from non-managed bipolar and depression, the stress from his wife's medical illnesses, and his concerns about his health problems (diabetes, peptic ulcer, etc[.]) appear to cause a severe level of distress and seem to be a more likely cause for his current problems. His psychiatrist . . . diagnosed him with Bipolar [disorder], depression, and [post-traumatic stress disorder,] though during therapy she focused on managing the bipolar [disorder]. . . . In review of previous reports, his bipolar [disorder], depression, personality problems, and health problems appear to have worsened, while his [post-traumatic stress disorder] appears to have remained the same. Id. In November 2009, the Board issued the decision on appeal. The Board determined that Mr. Vulgamore's post-traumatic stress disorder warranted no more than a 50% disability rating and his hypoglycemia warranted no more than a 40% disability rating. The Board also concluded that there was no evidence that Mr. Vulgamore was unemployable due to these service- connected conditions. 5 II. ANALYSIS A. Post-Traumatic Stress Disorder Mr. Vulgamore first argues that the Board provided inadequate reasons or bases for its determination that a disability rating in excess of 50% was not warranted for post-traumatic stress disorder. Specifically, he contends that the Board improperly required him to demonstrate the full complement of symptoms contained in 38 C.F.R. § 4.130 to warrant a 70% disability rating for post-traumatic stress disorder, thereby misapplying Mauerhan v. Principi, 16 Vet.App. 436 (2002). The Court agrees. In Mauerhan, the Court explained that "the factors listed in the rating formula [for mental disorders] are 'examples' of conditions that warrant particular ratings” that are intended to assist the adjudicator in differentiating between levels of disability, a task that would be "extremely ambiguous" without the listed factors. 16 Vet.App. at 442. The Court made clear, however, that "any suggestion that the Board was required, in complying with the regulation, to find the presence of all, most, or even some, of the enumerated symptoms is unsupported by a reading of the plain language of the regulation." Id. Thus, this "list of examples[ ] provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation." Id. Here, the Board paid lip service to Mauerhan but proceeded to do precisely what Mauerhan prohibits. The Board's discussion was as follows: When interpreted in light of the whole recorded history and reconciling the various reports into a consistent picture (see 38 C.F.R. § 4.2), the Board finds that the evidence portrays a consistent pattern of occupational and social impairment with reduced reliability and productivity throughout the appeal period due to such symptoms as panic attacks; impairment of memory; disturbances of motivation and mood; and difficulty in establishing and maintaining social relationships. There is, however, no evidence of the kinds of symptoms that would warrant a rating of 70 percent or higher at any time during the appeal period. Although [Mr. Vulgamore] does admit to occasional thoughts of suicide and has expressed concern that he may hurt others, these thoughts are not persistent, and there is no plan or intent. There is also no report of obsessional rituals; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting his ability to 6 function independently, appropriately and effectively; spatial disorientation; neglect of personal appearance and hygiene; or complete inability to establish and maintain effective relationships; gross impairment in thought processes or communication; inability to perform activities of daily living (including maintenance of minimal personal hygiene); or memory loss for names of closes relatives, own occupation, or own name at any time during the appeal period. Although [Mr. Vulgamore] does complain of some auditory illusions, Compensation and Pension examiners indicate that this is "illusionary" and not indicative of a psychotic thought process, and the record contains no evidence to the contrary. See Colvin v. Derwinski, 1 Vet. App. 171 (1991) (holding that the Board must consider only independent medical evidence to support its findings rather than provide its own medical judgment). Moreover, while reportedly reclusive, easily agitated and angered, and "moody," [Mr. Vulgamore's] relationships with close family and friends are intact, and both Compensation and Pension examinersaverthat[his]post[-]traumaticstressdisorderdoesnot renderhim unemployable. The Board further notes that [Mr. Vulgamore] receives little outpatient treatment for his post[-]traumatic stress disorder, and has never been hospitalized for [post-traumatic stress disorder]. Accordingly, for the reasons just expounded, the Board finds that the criteria for a rating of 70 percent or higher for posttraumatic stress disorder are not met at any time during the appeal. 38 C.F.R. §[§] 3.102, 4.130, 4.132 Diagnostic Code 9411. R. at 14-15 (emphasis added). In other words, the Board determined that Mr. Vulgamore experienced"occupationalandsocialimpairmentwithreducedreliability"( theeffectofthedisability required for a 50% disability rating) because his symptomatology–panic attacks, memory impairment,mooddisturbances, anddifficultiesestablishingandmaintainingrelationships–matched those included in the rating criteria for a 50% disability rating. Similarly, the Board determined that Mr. Vulgamore must not have experienced "occupational and social impairment with deficiencies in most areas, including work, school, familyrelationships, judgment, thinking, or mood" (the effect of the disability required for a 70% disability rating) because his symptoms did not match those included in the rating criteria for a 70% disability rating. It was clear error for the Board to conclude that Mr. Vulgamore could be occupationally and socially impaired to the degree required for a 70% disabilityratingonlyif the evidence demonstratedthespecificcriteriasetforthin therating schedule for a 70% rating. See 38 U.S.C. § 7261(a)(4); Smallwood v. Brown, 10 Vet. App. 93, 97 (1997) (holding that the Court reviews the Board's assignment of the disability rating assigned under the "clearlyerroneous"standard of review). Accordingly, the Court will vacate the Board's decision and remand the matter for readjudication. 7 The record is replete with evidence regarding the level of Mr. Vulgamore's occupational and social functioning. On remand, the Board should thoroughly consider this evidence in determining whether an increased disability rating is warranted and not simply match Mr. Vulgamore's documented symptoms of post-traumatic stress disorder to the criteria contained in the rating schedule. The Board should obtain a new examination if doing so would assist the Board in determining the effects of Mr. Vulgamore's post-traumatic stress disorder symptoms on his occupational and social functioning. Although the Court is remanding this claim, to provide the Board additional guidance on remand, the Court will address Mr. Vulgamore's assertion that the June 2009 VA post-traumatic stress disorder examination was inadequate. See Quirin v. Shinseki, 22 Vet. App. 390, 395 (2009). Mr. Vulgamore contends that the VA examiner "failed to properly explain how to separate the symptoms of [post-traumatic stress disorder] and the bipolar disorder/depression" and "failed to explain why [his] health problems appeared to have aggravated his bipolar disorder and depression but not his [post-traumatic stress disorder]." Appellant's Brief (Br.) at 24, 25. The Court disagrees. The June 2009 VA post-traumatic stress disorder examination is extremely thorough. The examiner reviewed Mr. Vulgamore's claims file and medical records, extensively outlined Mr. Vulgamore's psychiatric treatment history between 2000 and 2009, emphasized the portions of Mr. Vulgamore's treatment records related to post-traumatic stress disorder, recorded a detailed social history, and conducted a detailed post-traumatic stress disorder examination. During that examination, the examiner painstakingly followed the DSM-IV and noted the symptoms Mr. Vulgamore demonstrated that met each of the six post-traumatic stress disorder criteria. In reaching her conclusion that Mr. Vulgamore's post-traumatic stress disorder symptomatology had not increased, the examiner compared Mr. Vulgamore's current reported symptomatology to that contained in previous treatment records. She expressly stated: "In review of previous reports, his bipolar, depression, personality problems, and health problems appear to have worsened, while his [post-traumatic stress disorder] appears to have remained the same." R. at 71. She stated that this wasconsistent with researchthatshowedthatpost- traumaticstressdisordersymptoms usuallylessen over time. Twice, the examiner indicated that some of Mr. Vulgamore's symptomatology "seemed more like someone who had bipolar disorder that was not being managed." R. at 70. 8 The Court is satisfied that, when read as a whole, the examiner provided adequate support and rationale for her conclusion that Mr. Vulgamore's post-traumatic stress disorder had not worsened and that his deteriorating functioning was attributable to unmanaged bipolar disorder and depression. See Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007); Ardison v. Brown, 6 Vet.App. 405, 407 (1994); see also Nieves–Rodriguez v. Peake, 22 Vet.App. 295, 304 ( 2008). Accordingly, the Court concludes that the Board did not err in relying on the June 2009 VA post-traumatic stress disorder examination. Onremand,Mr.Vulgamoreis freeto submitadditional evidenceandargumentin 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). Further, "[a] remand is meant to entail a critical examination of the justification for the decision" by the Board. 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). B. Hypoglycemia As the Board noted, a 40% disability rating is warranted for moderate postgastrectomy syndrome4 with "less frequent episodes of epigastric disorders with characteristic mild circulatory symptoms after meals but with diarrhea and weight loss." 38 C.F.R. § 4. 114, Diagnostic Code 7308 (2011). A 60% disability rating is warranted for severe postgastrectomy syndrome "associated with nausea,sweating,circulatorydisturbanceaftermeals,diarrhea, hypoglycemicsymptoms, andweight loss with malnutrition and anemia." Id. The Board determined that, although there was "subjective and objective evidence of weight loss, fatigue, diarrhea, and nausea," there was "absolutely no evidence of weight loss with malnutrition and anemia" related to Mr. Vulgamore's reactive hypoglycemia. R. at 19. Accordingly, the Board determined that he was not entitled to a 60% disability rating. Mr. Vulgamore argues that the Board erred because it improperly interpreted Diagnostic Code 7308 as requiring evidence of all of the criteria listed in the rating schedule for that rating. He There is no diagnostic code for precisely the condition Mr. Vulgamore has; his disability is rated by analogy. See 38 C.F.R. § 4.20 (2011). 4 9 asserts that, because he has most of the symptoms listed for a 60% disability rating, 38 C.F.R. § 4.7 required the Board to assign a 60% disability rating. The Court disagrees. The rating criteria under Diagnostic Code 7308 are successive; that is, each higher disability rating contains all of the symptoms of the disability rating below it in addition to "new" symptoms warranting a higher disability rating. In such a case, all criteria for the higher disability rating must be present for a claimant to be entitled to the higher disability rating. See Camacho v. Nicholson, 21 Vet.App. 360, 367 (2007) (holding that the criteria contained in 38 C.F. R. § 4.119, Diagnostic Code 7913, for diabetes are cumulative and therefore a claimant must demonstrate all of the criteria for a particular rating). Much as the Court found in Camacho, if anemia and malnutrition were not required elements of a 60% disability rating for postgrastrectomy syndrome ( along with "hypoglycemicsymptoms,"whichMr.Vulgamorenecessarilydemonstrates, giventhatheis service- connected for hypoglycemia), there would be no need for a 40% disability rating–everyone who simplydemonstrated weight loss in addition to the other criteria wouldbeentitledto a 60% disability rating. The Court will not presume that the Secretaryintended such an absurd result. See id. at 366- 67 (citing Splane v. West, 216 F.3d 1058, 1068-69 (Fed. Cir. 2000) (" Canons of construction . . . require us to give effect to the clear language of a [regulation] and avoid rendering any portions meaningless or superfluous.")). Mr. Vulgamore's reliance on Tatum v. Shinseki, 23 Vet.App. 152 (2009), is misplaced. The regulation at issue in that case, 38 C.F.R. § 4.119, Diagnostic Code 7903, contains rating criteria for hypothyroidism that are not successive. Accordingly, the Court found that Camacho's holding did not applyand remanded the matter to the Board to determine whether § 4.7 permitted the assignment of a higher disability rating in the face of evidence that the appellant demonstrated at least some of the symptoms required for a higher rating. 23 Vet.App. at 155-57. That is not the case here. Accordingly, Mr. Vulgamore's argument is without merit, and the Court concludes that the Board's determination that an increased disability rating for hypoglycemia was not warranted is not clearly erroneous. See 38 U.S.C. § 7261(a)(4); Smallwood v. Brown, 10 Vet.App. 93, 97 (1997). To the extent that Mr. Vulgamore argues that the June 2009 stomach examination was inadequate because it did not discuss whether he suffers from hypoglycemia, any error in that regard is harmless. See Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004); see also 38 U.S.C. 10 § 7261(b)(2) (requiring the Court to "take due account of the rule of prejudicial error"). Because there is no dispute that Mr. Vulgmore suffers from hypoglycemia (the only question being the severityof the condition), and because the examiner unequivocallystated that there was no evidence of malnutrition or anemia (requirements for the maximum 60% disability rating), a finding that Mr. Vulgamore does not dispute, remand for a new examination that expressly states that he has hypoglycemia can serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (holding that "strict adherence" to reasons or bases requirement where evidence was "overwhelmingly" against the claim would unnecessarily impose additional burdens on the Board with no benefit flowing to the veteran); see also Valiao v. Principi, 17 Vet.App. 229, 232 (2003) (holding that, "[w]here the facts averred by a claimant cannot conceivably result in any disposition of the appeal other than affirmance of the Board decision, the case should not be remanded for development that could not possibly change the outcome of the decision"). Accordingly, the Court will affirm that portion of the Board decision that denied entitlement to an increased disability rating for hypoglycemia. C. Total Disability Rating Based on Individual Unemployability Mr. Vulgamore asserts that the Board provided an inadequate statement of reasons or bases for its determination that he is not entitled to a total disability rating based on individual unemployability. Specifically, he argues that the Board did not address whether, "in light of his service-connected disabilities, [he] could perform an occupation which would provide an 'annual income that exceeds the poverty threshold for one person.'" Appellant's Br. at 22-23 (quoting Faust v. West, 13 Vet.App. 342, 3556 (2000)). The Court agrees. "[T]otal disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. § 4.15 (2011). Even where a service- connected disabilityis less than total, a veteran may be entitled to a total disability rating if that veteran satisfies the percentage requirements set forth in 38 C.F.R. § 4.16(a) (2011). Under section 4.16( a), a total disability rating will be awarded, even where the schedular rating is less than total, (1) when the disabled person is "unable to secure or follow a substantially gainful occupation" as a result of service-connected disabilities; and (2) if there is only one such disability, that it is ratable at 60[%] or more, or if there 11 are two or more disabilities, there shall be at least one disability ratable at 40% and sufficient additional disability to bring the combined rating to 70% or more. Because, as the Board found, Mr. Vulgamore has a combined disability rating of 70%,5 the remaining question is whether his service- connected disabilities render him unable to obtain and maintain a substantially gainful occupation. Inthis regard,theBoardfirstdeterminedthatMr.Vulgamorewasnot unemployablebyvirtue of anysingle service-connected disability, relying on various VA medical records to that effect. The Board acknowledged that the Social Security Administration considered Mr. Vulgamore disabled based, in part, on post-traumatic stress disorder, but noted that the Social Security Administration also considered him disabled due to a non-service-connected back condition. Mr. Vulgamore does not dispute this finding, and the Court finds no error. Next, the Board stated: There is also no probative evidence that [Mr. Vulgamore] is unemployable based solely on a combination of service-connected disabilities. Indeed, a January 2007 VA Compensation and Pension examination found no more than "moderate" high frequency hearing loss bilaterally, and found good word recognition. In addition, while [Mr. Vulgamore's] service-connected digestive disability has been evaluated as 40[%] disabling, a September 2005 VA Compensation and Pension examiner avers that "it is less likely than not that he is unemployable," and points outs that [he] is able to maintain an active lifestyle even with his symptoms. According to a June 2009 examiner, apart from a mild impact on his feeding and toileting, [Mr. Vulgamore's] activities of daily living are not limited by his digestive disability. There is also no evidence, lay or medical, that [he] is unemployable by virtue of his service-connected hemorrhoids disability, which is evaluated as 0[%] disabling. R. at 22. Not only does this discussion leave out post-traumatic stress disorder in considering whether the combination of Mr. Vulgamore's service-connected disabilities renders him unemployable, but the Board also failed to acknowledge the absence of medical evidence that evaluates Mr. Vulgamore's employability comprehensively. That is, at various times, various VA examiners have stated that a particular disability does not render Mr. Vulgamore unemployable, yet VA has obtained no medical opinion that considers whether the effects of all of Mr. Vulgamore's service-connecteddisabilitiescombined render him unemployable. This is theessentialquestion the In addition to the disabilities addressed in this decision, Mr. Vulgamore also receives disability benefits for tinnitus, rated 10% disabling, as well as hemorrhoids and hearing loss, both rated noncompensable. R. at 21. 5 12 Board must answer, yet it attempts to do so in the absence of a medical opinion that reaches this issue. The Board's conclusion amounts to a finding that because no single disability renders Mr. Vulgamore unemployable, the cumulative effect of those individual disabilities must also not render him unemployable. This is not permitted. Accordingly, the CourtconcludesthattheBoard's reasons or bases are inadequate, and remand is therefore warranted. See Tucker v. West, 11 Vet.App. 369, 374 (1998). On remand, the Board will obtain a medical opinion or examination that specifically considers whether the combination of the effects of Mr. Vulgamore's service-connected disabilities renders him unable to obtain and maintain substantially gainful employment. As noted above, Mr. Vulgamore is free to submit additional evidence and argument on this issue. See Kay, 16 Vet.App. at 534; Kutscherousky, 12 Vet.App. at 372-73. D. Reasonably Raised Claims Finally, Mr. Vulgamore argues that the Board erred in not adjudicating reasonably raised claims for benefits for bipolar disorder and depression. He asserts that, because the June 2009 VA post-traumatic stress disorder examiner attributed many of his symptoms to bipolar disorder and depression, the Board was required to adjudicate claims for those conditions. The Court disagrees. First, Mr. Vulgamore's reliance on Clemons v. Shinseki, 23 Vet.App. 1 ( 2009), is misplaced. In that case, a self-represented appellant filed an initial claim for benefits for post-traumatic stress disorder that was denied based on a lack of a current diagnosis of that condition. The Board, however, failed to consider whether the claimant was entitled to benefits for schizoid personality disorder, a distinct mental disorder with which he had been previously diagnosed. The Court, citing the well-established rule that a layperson is generally not competent to provide a medical diagnosis, explained that VA "should construe a claim based on the reasonable expectations of the non-expert, self-represented claimant and the evidence developed in processing that claim." Clemons, 23 Vet.App. at 5. Here, however, Mr. Vulgamore was not seeking initial benefits for symptoms that he thought were caused by post-traumatic stress disorder that turned out to be caused by bipolar disorder or depression; he had already been diagnosed with–and compensated for–post-traumatic stress disorder. Mr. Vulgamore's claim was denied because his already diagnosed and service- connected post-traumatic stress disorder had not worsened, not because the Board improperly 13 narrowed the scope of his claim. That Mr. Vulgamore suffers from bipolar disorder and depression is irrelevant to the question of whether his post-traumatic stress disorder has worsened. Further, the mere existence in the medical records of a diagnosis for a condition for which a claimant is not service connected is not sufficient to raise a new claim for benefits for that condition. Criswell v. Nicholson, 20 Vet.App. 501, 504 (2006) ("The mere existence of medical records generally cannot be construed as an informal claim; rather, there must be some intent by the claimant to apply for a benefit."). Mr. Vulgamore fails to identify any evidence in the record indicating that he sought VA benefits for his bipolar disorder or depression, or that he, or anyone on his behalf, submitted a written document expressing his intent to seek benefits for those conditions. See Brokowski v. Shinseki, 23 Vet.App. 79, 85 (2009) (citing Brannon v. West, 12 Vet.App. 32, 35 (1998) (to file a claim, a "claimant must submit a written document identifying the benefit and expressing intent to seek it"); see also Criswell, 20 Vet.App. at 504. In the absence of Mr. Vulgamore having submitted a claim for those conditions, it was not error for the Board not to address them.6 See Robinson v. Peake, 21 Vet.App. 545, 53 (2008) (holding that the Board is required to consider all issues raised by the claimant or reasonably raised bythe evidence of record). To the extent that Mr. Vulgamore relies on the June 2009 VA examiner's discussion of his bipolar disorder and depression as creating a duty for the Board to adjudicate claims for those conditions, the Court is unpersuaded. Mr. Vulgamore's claim was one for an increased disability rating for post-traumatic stress disorder. As such, the current level of symptoms caused by that condition was of primary importance both to the June 2009 VA examiner and to the Board. See Francisco v. Brown, 7 Vet.App. 55, 58 (1994) (holding that in claims for an increased disability rating, the current level of disability is the primary concern). The VA examiner was directed to undertake a post-traumatic stress disorder examination to determine the current level of severity of Mr. Vulgamore's post-traumatic stress disorder and to opine as to whether that condition rendered Moreover, the record reveals that Mr. Vulgamore was diagnosed with bipolar disorder and depression at least as early as 2000, five years before he sought an increased disability rating for post-traumatic stress disorder, yet he never sought VA benefits for those conditions and only raises the possibility of unadjudicated claims for those conditions for the first time on appeal. R. at 1235-36. It is also worth noting that Mr. Vulgamore does not argue in his briefs, or cite any evidence in the record that supports the assertion, that his bipolar disorder or depression are related to service. 6 14 him unemployable. See R. at 66, 129. The examiner was under no duty to determine the severity or etiology of any other condition. In light of this discussion, the Court concludes that it was not error for the Board to not consider claims for benefits for bipolar disorder and depression. Mr. Vulgamore remains free to file claims for those benefits should he so desire. E. Final Matter The Court notes that the parties' briefs repeatedly refer to a "claim for service connection." As the Court explained in Hillyard v. Shinseki, the use of this term is inexact, and therefore is–although prevalent in the Court's cases, as well as those of the United States Court of Appeals for the Federal Circuit–disfavored. 24 Vet.App. 343, 355 (2011). The Court urges the parties to practice precision in language in future briefs. III. CONCLUSION Upon consideration of the foregoing, those portions of the November 27, 2009, Board decision that denied entitlement to an increased disability rating for post-traumatic stress disorder and to a total disability rating based on individual unemployability are VACATED and the matters are REMANDED for further development and readjudication consistent with this decision. The remainder of the Board decision is AFFIRMED. DATED: September 14, 2011 Copies to: Nicholas L. Phinney, Esq. VA General Counsel (027) 15