VA Underreports Paid Medical Tort Claims, GAO-12-6R Report

Full article at: GAO: VA's use of medical injury tort claims lacks data completion The U.S. Government Accountability Office (GAO) found that it was notified of approximately "16 percent of the total number of paid tort claims involving VA practitioners from fiscal years 2005 through 2010," an October report from GAO stated." "As a result, OMLA did not have the opportunity to review all paid tort claims for this time period to determine whether VA practitioners associated with these claims rendered substandard care, thus limiting the number of practitioners who should have been reported to the National Practitioner Data Bank (NPDB), GAO continued." Link to GAO-12-6R VA Tort Claim Data, PDF, see link above.

Single Judge Application, MacWhorter v. Derwinski, 2 Vet.App. 655, 656 (1992), Secretary's Failure to Address Arguments Are Conceded

Excerpt from decision below: "Specifically, he contends that the Board assigned the date as the time when he "first evidenced mild memory loss and suspiciousness" (R. at 31), despite evidence of memory impairment as early as 1998. The Secretary does not respond to these arguments,4 and the Court will construe the Secretary's omission as a concession of error. See MacWhorter v. Derwinski, 2 Vet.App. 655, 656 (1992) (warning the Secretary that failure to address all arguments may result in the Court determining those points are conceded)." ========================================= ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 09-2307 CURTIS W. FETTY, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before DAVIS, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. DAVIS, Judge: U.S. Air Force veteran Curtis W. Fetty appeals pro se from an April 28, 2009,BoardofVeterans'Appeals(Board)decisionthatgranted30%disabilityratings, butnohigher, for post-traumatic stress disorder (PTSD)andpesplanus.1 For the reasons that follow, the Court will affirm in part, modifyin part, and set aside in part the April 2009 Board decision and remand matters for further proceedings consistent with this decision. I. ANALYSIS A. PTSD Mr. Fettyfirst argues that, for several reasons, the Board erred byfailingto assign a disability rating higher than 30% for his service-connected PTSD. A Board determination of the appropriate The Board also awarded service connection for a cervical spine disorder, assigned a separate 10% rating for degenerative joint disease of the bilateral first metatarsals, and denied service connection for hemorrhoids. Because Mr. Fetty presents no argument on appeal as to these matters, the Court deems these issues abandoned. See Ford v. Gober, 10 Vet.App. 531, 535 (1997). The Board also remanded a request for an earlier effective date prior to January 26, 1998, for the assignment of a 10% disability rating for service-connected bilateral pes planus. Because a final decision has not been issued as to the matter, that issue is not before the Court. See 38 U. S.C. § 7252; Hampton v. Gober, 10 Vet.App. 481, 483 (1997) ("Because a final decision has not been issued by the [ Board] with respect to the claims that were remanded, those claims cannot be reviewed by the Court on this appeal."). 1 degree of disability under the rating code is a finding of fact subject to the "clearly erroneous" standard of review. 38 U.S.C. § 7261(a)(4); see Smallwood v. Brown, 10 Vet.App. 93, 97 (1997). "'A finding is "clearly erroneous" when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). Under the applicable diagnostic code (DC) for PTSD, the criteria for a 30% disability rating for PTSD is warranted where a veteran suffers from [o]ccupational and social impairment with occasional decrease in work efficiency andintermittentperiodsofinabilityto performoccupational tasks( althoughgenerally functioningsatisfactorily,withroutinebehavior,self-care, andconversationnormal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). Criteria for a 50% disability rating are as follows: Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking;disturbancesofmotivation andmood; difficultyin establishingand maintaining effective work and social relationships. A 70% disability rating is warranted when there is [o]ccupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, DC 9411 (2011). 2 This Court has held that "the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code." Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002). Rather, the examiner must "consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the [Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition]." Id. Further, the Court held that the symptoms listed in § 4.130's rating formula are merely "examples" of symptoms that warrant certain ratings, and "are not intended to constitute an exhaustive list." Id. at 442. Because the diagnostic criteria are the essential rating criteria, however, it is not error to rely on such criteria. Sellers v. Principi, 372 F.3d 1318, 1327 (Fed. Cir. 2004) (holding that "the criteria listed in the [general rating formula] are . . . the rating formula adopted by the Secretary in rating [ PTSD] claims."). 1. Lost Earnings Mr. Fetty asserts that the Board erred in discounting evidence demonstrating that his PTSD resulted in "impairment of his earnings." Appellant's Brief (Br.) at 18. Specifically, he reasoned in October 2000 that had he become an airline pilot after separation from the Air Force, by 2000 he would have been a junior airline captain earning approximately $132,000 per year. See Record (R.) at 1399-1400. He contends that his PTSD symptoms precluded him from following that career path, and instead, he was a government lawyer earning approximately $70,000 per year. See id. He asserts that this lost income should be equated to a level of occupational impairment in the 50% rating criteria. Appellant's Br. at 18. The Board considered Mr. Fetty's argument in this regard, but onlyas it pertained to an extra- schedular rating, holding that this Court's decision in Thun v. Shinseki, 22 Vet.App. 111 (2008), explained that an extraschedular rating "'does not contemplate or require a calculation of the income that may not have been realized because of a service-connected disability.' " R. at 40 (quoting Thun, 22 Vet.App. at 117). Mr. Fetty replies that Thun "did not state that impairment of earning power has no bearing on the schedular disability level assigned." Appellant's Br. at 18 (emphasis added). The Court disagrees that the Board should have considered the perceived earning capacity impairment when assigning a disability rating. Instead, the Board is to consider the symptoms that affect occupational impairment. See Mauerhan, 16 Vet.App. at 443 ("[T]he rating specialist is to consider all symptoms of a claimant's condition that affect the level of occupational and social 3 impairment."). Thus, it is the underlying symptoms that may prevent him from practicing in his chosen profession, such as anxiety or impairment in judgment, that are relevant to a disability rating assessment, not the discrepancy in salaries. In addition, although Thun does not speak directly to this issue, it provides support for the notion that actual wages play no part in a schedular disability rating. In that decision, the Court acknowledged that "manyveterans receiving benefits mayexperience a greater or lesser impairment of earning capacity than average as a result of their disability"; however, the rating schedule is based on an "average impairment in earning capacity." 22 Vet.App. at 116. The Court specifically stated that "the actual wages or income earned by a particular veteran are not considered relevant to the calculation of the average impairment of earning capacity caused by a disability." Id. In sum, the Court finds no clear error in the Board's failure to consider Mr. Fetty's perceived loss of actual wages when determining his appropriate disability rating. 2. Weighing of Symptoms Mr. Fettyfurthercontends that the Board did not appropriatelyweigh the evidence of record. Specifically, he contends that the record contains statements as to symptoms that "do fit in the 50[%] rating category" (Appellant's Br. at 19 (identifying isolation, bruxism,2 depression, anxiety, numbness, obsessive behavior, hyper-vigilance, and short and intermediate- termmemoryloss)), but the Board erroneously found that "'there is no indication that such emotions amounted to 'disturbances' of motivation or mood necessary for assignment of a 50[%] rating.'" Appellant's Br. at 19 (quoting R. at 28). The Court is not persuaded that the evidence of record is so indicative of a 50% disability rating as to render clearly erroneous the Board's conclusion that "the evidence clearly indicates that symptomatology associated with the Veteran's PTSD meets the criteria for assignment of a 30[%] evaluation." R. at 27. Although Mr. Fetty contends that the evidence corresponds with a 50% disability rating, the Board evaluated the evidence and provided adequate justification for the 30% rating. In particular, the Board described Mr. Fetty's "normal" speech, coherence, "good" long-term Bruxism is "involuntary, nonfunctional, rhythmic or spasmodic gnashing, grinding, and clenching of teeth (not including chewing movements of the mandible), usually during sleep, sometimes leading to occlusal trauma." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 257 (32nd ed. 2012). 2 4 memory, "little or no difficulty understanding complex commands," no evidence of impairment of thought processes, "little evidence" of mood and motivation disturbances, and Global Assessment of Functioning (GAF) scores ranging from 62 to 85, which are " predominately reflective of slight to mild symptoms." R. at 29. The Board also acknowledged Mr. Fetty's anxiety, memory loss, and the evidence of difficulty in establishing and maintaining effective work and social relationships, including his preference to be alone. The Board determined, however, that difficulty with work and social relationships is onlyone of the criteria for a 50% rating, but in contrast, a 30% disabilityrating contemplates his level of anxietyand memoryloss, and his predominant disabilitypicture, including sleeping difficulties, depressed mood, and anxiety. Mr. Fetty's predominant issues, the Board reasoned, "fit[] precisely into the criteria for a 30[%] rating." R. at 29. The Board also noted that Mr. Fetty met two of the seven criteria listed under a 70% rating; Mr. Fetty argues that the Board should therefore have explained why he was not then entitled to a rating of at least 50% under the equipoise standard. That a claimant displays exemplary symptoms from a higher rating category, however, does not necessarily entitle that claimant to a higher rating. Rather, when there is a question as to which of two ratings to apply, the Board will assign the higher rating only if the veteran's disability "more nearly approximates" the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2011). Here, as stated previously, the Board adequately explained why Mr. Fetty's symptoms did not more nearly approximate a rating in excess of 30%. Error does occur, however, when the Board fails to consider evidence that certain symptoms that are not listed in the diagnostic criteria are causing economic or social impairment that is equivalent to the impairment caused by the enumerated symptoms. Mauerhan, 16 Vet.App. at 443 ("If the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate, equivalent rating will be assigned."). Thus, as to those unlisted symptoms, the inquiry is whether the claimant displays relevant symptoms beyond those listed in the rating criteria. See id.; 38 C.F.R. § 4.130, DC 9440 (stating that veteran must display "such symptoms"). Only after it has been established that a veteran displays relevant symptoms that are not contained 5 in the diagnostic criteria must the Board consider the question of how those symptoms affect employment and social relationships. Mauerhan, 16 Vet.App. at 443. In this regard, Mr. Fetty asserts that the Board failed to consider " unlisted symptoms such as bruxism, moderate to severe Axis IV stressors, significant loss of income, and intermediate term memory loss." Appellant's Br. at 19. With the exception of the " significant loss of income" discussed above, the Court will address each of these factors in turn. First, with respect to bruxism, Mr. Fetty has asserted that this condition is related to anxiety; however, the Board expressly considered reports of anxiety in its assignment of a 30% disability rating. Mr. Fetty has not demonstrated the inadequacy in the Board's consideration of this factor. Asto "moderateto severeAxis IVstressors"and"intermediate-termmemoryloss," Mr.Fetty has not demonstrated the Board's failure to expressly consider these factors was prejudicial. See Shinseki v. Sanders, 556 U.S. 396 (2009) (placing the burden on the appellant to allege prejudiceand explain how the asserted error caused harm). With regard to "moderate to severe Axis IV stressors," Mr. Fetty references a February 2002 report noting, without further explanation, Axis IV ("psychosocial and environmental problems") as "[m]oderate to severe: Concerns about his health." R. at 1110. It is not at all clear that this notation is related to PTSD, let alone that the Board's express consideration of this notation could entitle him to a higher disability rating. See Shinseki, supra. As to "intermediate memoryloss," a 2007 examiner noted that Mr. Fetty"spokeofoccasional short and intermediate term memoryloss." R. at 561. Although the Board did not expresslymention theasserted"intermediate-termmemoryloss,"theCourt cannotdeemthis omission prejudical to Mr. Fetty. The Board expressly discussed, and thus considered, the 2007 report in which the notation appeared. In addition, Mr. Fettyhas not persuasively argued that his assertion of "intermediate-term memory loss" is a factor equivalent to that listed in the 50% disability rating. See Mauerhan, supra. The Court notes that a 30% disabilityrating expressly contemplates "mild memoryloss" of anytype, but in contrast, as the Board recognized, a 50% disability rating contemplates impairment of both "short- and long-term memory" (the latter of which had been described as " good" in Mr. Fetty's case (see R. at 27)). For these reasons, Court is unpersuaded that remand is warranted for the Board's consideration of these symptoms. 6 3. Staged Ratings Mr. Fetty next argues that the Board erroneously assigned an effective date for his 30% staged disability rating in the first instance.3 He also asserts that, assuming that the Board had jurisdiction to assign an effective date, it erroneously chose November 3, 2004, as the date entitlement to a 30% disability rating arose. Specifically, he contends that the Board assigned the date as the time when he "first evidenced mild memory loss and suspiciousness" (R. at 31), despite evidence of memory impairment as early as 1998. The Secretary does not respond to these arguments,4 and the Court will construe the Secretary's omission as a concession of error. See MacWhorterNext Document v. Derwinski, 2 Vet.App. 655, 656 (1992) (warning the Secretary that failure to address all arguments may result in the Court determining those points are conceded). On remand, the Board must remand the matter to the regional office (RO) for an effective-date assignment for the grant of a 30% disability rating for PTSD, taking into account all relevant evidence of record. 4. Consideration of Evidence in First Instance Mr. Fettyalso contends that the Board erred when it considered a November 2004 VA PTSD examination report that was not reviewed by the RO in the first instance. The implication is that the Board erred when it considered this new evidence without remanding the case for initial consideration by the agency of original jurisdiction or without having obtained the appellant's waiver, in violation of Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003); see also 38 C.F.R. § 19.31(b)(1) (2011) (requiring VA to issue a Supplemental StatementoftheCasewhentheAgencyoforiginaljurisdiction receivesadditionalpertinentevidence after a Statement of the Case). It appears that Mr. Fetty is currently assigned a 10% disability rating for PTSD effective January 1998 and a 30% rating from November 2004. The Secretary stated that he was "unable to address Appellant's complaint that the grant of an increased rating to 30% for his PTSD resulted in an 'unwanted staged rating.' Because the increased rating represents a grant of the benefit sought, Appellant has failed to demonstrate that the grant was erroneous, or that he has been somehow [ ] prejudiced by the award of an increased rating." Secretary's Br. at 10-11. This response disregards Mr. Fetty's argument as to the Board's jurisdiction and the appropriateness of the assigned effective date. 4 3 7 In Disabled American Veterans, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) invalidated a regulation because it effectively allowed the Board to consider additional evidence, not previously of record, without having to remand the case to the agency of original jurisdiction forinitial consideration orto obtaintheappellant'swaiver. DisabledAmericanVeterans, 327 F.3d at 1348. This practice, the Federal Circuit held, was a violation of the provision of 38 U.S.C. § 7104(a), entitling claimants to "one review on appeal to the Secretary." Id. The Court is unconvinced, however, that error occurred in this instance. First, although Mr. Fetty summarily deems the PTSD examination "pertinent," he fails to provide guidance to the Court as to this requirement; the Court cannot determine that Mr. Fetty suffered prejudicial error without an indication of how consideration of the document could provide him a rating in excess of the 30% awarded by the Board.5 See 38 C.F.R. § 19.31(b)(1); see also Hyatt v. Nicholson, 21 Vet.App. 390, 395 (2007) ("Appellants before the Court bear the burden of demonstrating error below."); Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (concluding that appellant had the burden of demonstrating error in the Board's decision), aff'd, 232 F.3d 908 (Fed. Cir. 2000). In any view of the matter, the fact that the July 2008 Supplemental Statement of the Case did not explicitly discuss the PTSD examination does not show that the RO did not consider it; the RO is obligated to base its determination on the entire evidence of record, and in the absence of clear evidence to the contrary, it is presumed to have done so. See Gonzales v. West, 218 F.3d 1378, 1381 (2000) (holding that, "absent specific evidence indicating otherwise, all evidence contained in the record at the time of the RO's [decision] must be presumed to have been reviewed by [VA], and no further proof of such review is needed"). Accordingly, the Court holds that Mr. Fetty has not shown that the Board erred in its consideration of the evidence in question. The Court further holds that the Board did not acquire and consider evidence in violation of the 38 U.S.C. § 7104(a) mandate to provide one review on appeal to the Secretary. Although this Court holds that there is no known basis on which to consider whether the document is pertinent to a rating in excess of 30%, the Court expresses no opinion as to whether the document can impact the effective date for the 30% disability rating, which will be evaluated by the RO on remand. 5 8 B. Pes Planus Mr. Fetty also argues that the Board erred in its consideration of an April 2003 private foot examination and an October 2004 podiatry report that the RO had not previously considered. Although the RO is presumed to have reviewed the April 2003 examination, submitted in 2003, the October 2004 podiatryreport is another matter. That report was not submitted until September 2008 – after the last Supplemental Statement of the Case in July 2008. Thus, the Court discerns that the RO could not have considered the information contained therein. Indeed, in a September 2008 letter to VA, Mr. Fetty provided the October 2004 report and expressly requested that the RO issue a Supplemental Statement of the Case considering both the April 2003 and October 2004 reports. It appears that the Board ignored this request and went on to consider the documents without first obtaining a waiver. Becauseboth documents potentiallysupport a 50% disabilityrating( eitherafter clarification of the reports or on a sympathetic reading), the Court cannot deem harmless the Board's error. See 38 U.S.C. § 7261(b)(2) (requiring the Court to "take due account of the rule of prejudicial error"); Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004). Thus, the Court will remand Mr. Fetty's increased-rating claim for pes planus to the Board with instructions for the RO to consider the documents in a Statement of the Case. Next, Mr.FettyarguesthattheBoard"might haveconsideredevidenceofsomeoneelse'sfoot injury that VA has carelessly placed into Appellant's record." Appellant's Br. at 24. Although this commingling of records is unfortunate, there is no evidence that the Board relied on the misfiled documents. Consequently, any such error is not prejudicial to Mr. Fetty. C. Bilateral Hammertoes, Chondromalacia Patella, and Calf Muscle Pain and Cramps Mr. Fetty next contends that the Board denied service connection for these disabilities, despite the fact that it had no jurisdiction to do so. The Secretary asserts that these matters are not before the Court, and that the Court has no jurisdiction over any claims other than those framed in the Board decision on appeal. Within its decision, the Board made the following statement: "Nor is the Veteran entitled to separate disability ratings for his knee pain, calf pain . . . and hammertoes." R. at 38. The Board did not, however, list these matters among its framed issues, nor did it expressly deny service 9 connection. To the extent that the Board's statement could be read as an implicit denial of service connection, theBoard's statementis inappropriategiven that no appeal had been perfected as to these matters. Thus, the Court will modify the April 2009 Board decision to delete the Board's reference to disability ratings for knee pain, calf pain, and hammertoes. See Henderson v. Shinseki, 131 S. Ct. 1197, 1205 (2011) (recognizing the Court's power to affirm, modify, or reverse Board decisions). D. Extraschedular Rating Lastly, Mr. Fetty contends that he has asserted that a schedular rating is inadequate based on factors related to his service-connected heart disability, including his frequent cardiac exercise sessions and the perceived economic impairment resultingfrom PTSD ( addressed supra). Although the Board did discuss an extraschedular rating, it limited its discussion to symptoms related to PTSD and pes planus. The Board did not consider anyfactors related to Mr. Fetty's service-connected heart disability. The fact that Mr. Fetty's heart disability is not on appeal is of no moment. The Board must evaluatewhether"theratingscheduleis inadequateto evaluateaclaimant'sdisabilitypicture." Thun, 22 Vet.App. at 116 (emphasis added). The "disability picture" includes all of the service-connected disabilities. See 38 C.F.R. § 3.321(b)(1) (goal of extraschedular consideration is to arrive at "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities" (emphasis added)). Mr. Fetty has presented evidence that his "heart disability requires [ three] hours of aerobic workouts per week, which impacts his earning potential and presents additional expenses," that he must travel to "Brooks AFB Hospital, TX, every three years, possibly for life, for cardiac re- evaluations," and that his service-connected disabilities have reduced his earning capacity. It is not the duty of the Court to determine in the first instance whether these constitute exceptional or unusual factors. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table) (requiring the Board to analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). In this case, the Board's limitation of its discussion to the symptoms attributable to those service- connected disabilities currently on appeal frustrates this Court's review of the matter. See Gilbert, 1 Vet.App. at 57 (an 10 adequate statement of reasons or bases enables a claimant to understand the precise basis for the Board's decision and to facilitate review in this Court). The Court will therefore remand the matter of extraschedular consideration for readjudication consistent with this decision. II. CONCLUSION On consideration of the foregoing, the Court SETS ASIDE the April 28, 2009, Board decision as to (1) the effective date of Mr. Fetty's 30% disability rating for PTSD, (2) an increased disabilityratingforbilateral pesplanus,and (3) extraschedularconsideration, and REMANDS those matters for further proceedings consistent with this decision. In pursuing these claims on remand, Mr. Fetty will be free to submit additional evidence and argument in support of them, and the Board is required to consider any such evidence and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). A final decision by the Board following the remand herein ordered will constitute a new decision that, if adverse, may be appealed to this Court upon the filing of a new Notice of Appeal with the Court not later than 120 days after the date on which notice of the Board's new final decision is mailed to Mr. Fetty. See Marsh v. West, 11 Vet.App. 468, 472 ( 1998). The Board must proceed expeditiously, in accordance with 38 U.S.C. § 7112 (requiring Secretary to provide for "expeditious treatment" of claims remanded by the Court). The Court also MODIFIES the Board decision to eliminate reference to separate disability ratings forkneepain,calfpain,andhammertoes,andAFFIRMS theremainderoftheBoarddecision. DATED: September 30, 2011 Copies to: Curtis W. Fetty, Esq. VA General Counsel (027) 11

Tinnitus, Liberalizing Law of 1976, 38 C.F.R. § 4.84b, Diagnostic Code 6260 (1976)

Excerpt from decision below: "The rating schedule was added to the Code of Federal Regulations in May 1964 and Diagnostic Codes 6260, 8045, and 8046 were codified without change. See 38 C.F.R. §§ 4.84b, 4.124a (1965); 29 Fed. Reg. 6718 (May 22, 1964). However, in March 1976, VA amended § 4.84b to provide a 10% disability rating for tinnitus that is "[p]ersistent as a symptom of head concussion[,] or acoustic trauma." 38 C.F.R. § 4.84b, Diagnostic Code 6260 (1976) (emphasis added); 41 Fed. Reg. 11291, 11298 (Mar. 18, 1976). Nevertheless, this liberalizing law does not entitle Mr. Girard to an effective date earlier than September 7, 2006, because he did not seek benefits for tinnitus until September 2007, more than one year after the March 1976 effective date of the liberalizing law." =================================================== ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 09-2969 LULA J. GIRARD, 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: Lula J. Girard, who is self-represented, appeals a July 28, 2009, Board of Veterans' Appeals (Board) decision denying her husband an effective date prior to September 7, 2006, for the award of a 10% disability rating for tinnitus. Record (R.) at 3-13. Mrs. Girard'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 believe to require a precedential decision of the Court. Because the Board's determination that John C. Girard, Jr., was not entitled to an earlier effective date for the award of benefits for tinnitus was not clearly erroneous, the Court will affirm the July 28, 2009, Board decision. I. FACTS Mrs. Girard is the widow of veteran John C. Girard, Jr., who served on active dutyin the U.S. Army from June 1955 to May 1961. In May 1961, Mr. Girard filed a claim for VA benefits for a "hearing" disability. R. at 363. In July 1961, Mr. Girard underwent a VA audiological examination and reported to the examiner that his hearing loss and tinnitus began when he was "exposed to all the demolition noise in service." R. at 348. In May 1962, a VA regional office awarded Mr. Girard benefits for bilateral hearing loss and assigned a 10% disability rating. The regional office did not adjudicate a claim for benefits for tinnitus at that time. Mr. Girard did not appeal that decision and it became final. In September 2007, more than 45 years after the initial rating decision, Mr. Girard filed a claim for VA benefits for tinnitus. In January 2008, the regional office awarded Mr. Girard benefits for tinnitus and assigned a 10% disability rating, effective September 7, 2007, the date of his claim. Mr. Girard filed a timely Notice of Disagreement with that decision, requesting an earlier effective date. In February 2009, Mr. Girard filed a motion to revise the May 1962 regional office decision based on clear and unmistakable error that asserted that the regional office "ignored or overlooked" a diagnosis of tinnitus that was of record at the time of the decision. R. at 100. In May 2009, after further development including the assignment of a September 7, 2006, effective date for the award of benefits for tinnitus, the regional office determined that there was clear and unmistakable evidence in the May 1962 regional office decision because the evidence of record at that time "show[ed] treatment of a chronic disability [of tinnitus] within one year of discharge." R. at 47. Therefore, the regional officeassigned him a noncompensable disabilityrating for tinnitus from May 19, 1961, the date of his initial claim, to September 6, 2006, and a 10% disability rating effective thereafter. Mr. Girard filed a timely Notice of Disagreement with that decision, arguing that he was entitled to a higher disability rating because "the acoustic trauma to whichhewasexposed duringservicewasequivalenttoaconcussion," andhesubsequentlyperfected his appeal to the Board. R. at 40. In July 2009, the Board issued the decision currently on appeal, which denied entitlement to an effective date prior to September 7, 2006, for the award of a 10% disability rating for tinnitus.1 Specifically, the Board explained that tinnitus caused by acoustic trauma was not a compensable disability under the ratings schedule until March 1976 and that, pursuant to 38 C.F.R. § 3.114, the earliest effective date that could be assigned for Mr. Girard's tinnitus based on that liberalizing law The Court notes that the Board refers to an "earlier effective date claim" and a "[clear and unmistakable error] claim." R. at 7, 12. However, there is no such thing as a freestanding claim for an earlier effective date. Rudd v. Nicholson, 20 Vet.App. 296, 300 (2006). Likewise, "an assertion of clear and unmistakable error is a motion or a request, rather than a claim." Hillyard v. Shinseki, 24 Vet.App. 343, 355 ( 2011). 1 2 would be September 7, 2006, one year prior to the date of his claim, which was filed more than one year after March 1976. Mrs. Girard filed a timelyNotice of Appeal with that decision and indicated that her husband died three days after the Board issued its decision. In response to a Court order, Mrs. Girard filed a timely motion for substitution, which the Court granted nunc pro tunc to the date she filed her Notice of Appeal. II. ANALYSIS Mrs. Girard argues that the Board's determination that her husband was not entitled to an effective date earlier than September 7, 2006, for the award of benefits for tinnitus was clearly erroneous. The Court disagrees. A Board determination of the proper effective date is a finding of fact that the Court reviews under the "clearly erroneous" standard of review. 38 U.S.C. § 7261(a)(4); see Hanson v. Brown, 9 Vet.App. 29, 32 (1996); Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990). " A factual finding 'is "clearly erroneous" when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). The Court may not substitute its judgment for the factual determinations of the Board on issues of material fact merely because the Court would have decided those issues differently in the first instance. See id. Generally, the effective date for an award of disability compensation benefits is "the date of receipt of the claim or the date entitlement arose, whichever is later." 38 C.F.R. § 3.400 (2011); see also 38 U.S.C. § 5110(a). When VA revises a final decision based on clear and unmistakable error, the effective date is the "[d]ate from which benefits would have been payable if the corrected decision had been made on the date of the reversed decision." 38 C.F.R. § 3.400(k). In addition, where disability compensation benefits are awarded or increased pursuant to a liberalizing law or administrative issue, "the effective date of such award or increase shall be fixed in accordance with the facts found but shall not be earlier than the effective date of the Act or administrative issue." 38 U.S.C. § 5110; see also 38 C.F.R. § 3.114(a) (2011); 38 C.F.R. § 3. 400(p). Where, as here, "a 3 claim is reviewed at the request of the claimant more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 year prior to the date of receipt of such request." 38 C.F.R. § 3.114(a)(3). Because Mr. Girard was awarded benefits for tinnitus retroactive to May 19, 1961, based on a finding of clear and unmistakable error in the May 1962 regional office decision, the Court must rely on the law extant at that time to determine whether or not the Board's determination that he was not entitled to a compensable disability rating prior to September 7, 2006, was clearly erroneous. See 38 C.F.R. § 3.400(k). In May1962, the rating schedule provided a compensable disabilityrating only for tinnitus resulting from brain trauma or cerebral arteriosclerosis; 2 tinnitus resulting from any other cause, including acoustic trauma, was considered noncompensable. See VA SCHEDULE FOR RATING DISABILITIES 63, 112 (1945) (Diagnostic Codes 6260, 8045, and 8046). In the instant case, Mrs. Girard does not point to any evidence of record that demonstrates that her husband's tinnitus was caused by brain trauma or cerebral arteriosclerosis sufficient to warrant a compensable disability rating retroactive to May 1961. Rather, Mr. Girard previously asserted that he was entitled to a compensable disability rating prior to September 7, 2006, because "the acoustic trauma to which he was exposed duringservicewas equivalentto a concussion," which is consistent with a July1961 VA medical examination report indicating that his tinnitus was caused by noise exposure. R. at 40. Mr. Girard's theoryof entitlement is contradicted by the plain language of the diagnostic codes for rating tinnitus in 1962, which specifically provided for a 10% disability rating for tinnitus due to brain trauma and cerebral arteriosclerosis and a noncompensable disability rating for tinnitus due to all other causes, including acoustic trauma. Moreover, Mrs. Girard does not citeanylegalprecedenttosupportherhusband'sinterpretation oftheapplicablediagnostic codes. Although the Court is cognizant that Mrs. Girard is self-represented, her status as a pro se appellant does not relieve her of her burden of demonstrating error. See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (holding that the appellant has the burden of demonstrating error), aff'd, 232 F.3d 908 (Fed. Cir. 2000) (table). Consequently, the Court concludes that the Board's determination that Arteriosclerosis is "any of a group of diseases characterized by thickening and loss of elasticity of arterial walls." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 144 (32d ed. 2011). Cerebral arteriosclerosis is "arteriosclerosis of the arteries of the brain." Id. 2 4 Mr. Girard was not entitled to an earlier effective date for his award of benefits for tinnitus under the rating schedule in effect at the time of the May1962 regional office decision is not clearly erroneous. The rating schedule was added to the Code of Federal Regulations in May 1964 and Diagnostic Codes 6260, 8045, and 8046 were codified without change. See 38 C.F.R. §§ 4.84b, 4.124a (1965); 29 Fed. Reg. 6718 (May 22, 1964). However, in March 1976, VA amended § 4.84b to provide a 10% disability rating for tinnitus that is "[p]ersistent as a symptom of head injury, concussion[,] or acoustic trauma." 38 C.F.R. § 4.84b, Diagnostic Code 6260 (1976) (emphasis added); 41 Fed. Reg. 11291, 11298 (Mar. 18, 1976). Nevertheless, this liberalizing law does not entitle Mr. Girard to an effective date earlier than September 7, 2006, because he did not seek benefits for tinnitus until September 2007, more than one year after the March 1976 effective date of the liberalizing law. In such a situation, the earliest effective date that may be assigned pursuant to the liberalizing law is one year prior to the date of the receipt of Mr. Girard's claim–in this case, September 7, 2006. See 38 C.F.R. § 3.114(a)(3). Likewise, even assuming without deciding that a June 1999 amendment to the rating schedule for diseases of the ear, which transferred Diagnostic Code 6260 to § 4.87 and provided a 10% disability rating for recurrent tinnitus without any restriction on the cause of the condition was a liberalizing law, Mr. Girard would not be entitled to an earlier effective date pursuant to that amendment because he did not file his claim within one year of the effective date of that liberalizing law.3 See id.; see also 38 C.F.R. § 4.87 (1999); 64 Fed. Reg. 25202, 25210 (May 11, 1999). To the extent that Mrs. Girard argues that, but for the regional office's clear and unmistakable error in the May 1962 decision, VA would have reviewed her husband's entitlement to benefits for tinnitus on its own initiative within one year of the March 1976 amendment, thereby entitling him to an effective date commensurate with the enactment of that liberalizing law under § 3.114(a)(1), VA is not required to review a veteran's entitlement to benefits pursuant to a liberalizing law. See McCay v. Brown, 106 F.3d 1577, 1581 (Fed. Cir. 1997) ("[Section 3.114(a)] would permit [VA] to identify and apply the provisions of a liberalized law or administrative issue on their own initiative where feasible; or, where it is not feasible to identify potential beneficiaries administratively, to In June 2003, VA also amended the explanatory notes to § 4.87, Diagnostic Code 6260, which are not relevant to this appeal. 68 Fed. Reg. 25822, 25823 (May 14, 2003). 3 5 require the filing of an application" (quoting S. Rep. No. 87-2042, at 5 ( 1962), reprinted in 1962 U.S.C.C.A.N. 3260, 3264-65)); Spencer v. Brown, 4 Vet.App. 283, 288 (1993) ( explaining that 38 U.S.C. § 5110(g), the authorizing statute for § 3.114(a), "does not . . . create a requirement that VA adjudicate de novo a previously and finally denied claim when there has been an intervening liberalizing law that may affect the claimant's entitlement to benefits," but rather "presuppose[s] the existence of such a right [to a de novo adjudication]"). Accordingly, the Court cannot award Mr. Girard an earlier effective date under § 3.114(a)(1) based purely on speculation that VA may have timelyconductedthatdiscretionaryreviewiftheMay1962regionalofficedecisionha correctlyin the first instance. Consequently, the Court concludes that the Board's determination that Mr. Girard was not entitled to an earlier effective date for his award of benefits for tinnitus pursuant to a liberalizing law is not clearly erroneous. Mrs. Girard next argues that her husband did not file a claim for benefits for tinnitus before September 2007 because the Missouri Veterans Commission, which she claims was "acting on behalf of [VA]," "discouraged him from reapplying and refused to assist him in doing so" and misinformed him about the likelihood of success of such a claim. Appellant's Brief (Br.) at 2; Reply Br. at 1. As an initial matter, the Court takes judicial notice of the fact that, contrary to Mrs. Girard's contention, the Missouri Veterans Commission is part of the Missouri state government and not part of VA. See MISSOURI DEPARTMENT OF PUBLIC SAFETY: VETERANS COMMISSION, http://mvc.dps.mo.gov/ (last visited Sept. 7, 2011); see also Smith v. Derwinski, 1 Vet.App. 235, 238 (1991) ("Courts may take judicial notice of facts not subject to reasonable dispute." (citing FED. R. EVID. 201(b))); Brannon v. Derwinski, 1 Vet.App 314, 316-17 (1991). Although the Court is sympathetic to Mrs. Girard's situation, the Court cannot assign an earlier effective date based solely on principles of equity. See Moffitt v. Brown, 10 Vet.App. 214, 225 (1997 ) ("[T]his Court is not a court of equity and cannot provide equitable relief."). Mrs. Girard also asserts that the Board should have assigned her husband an earlier effective date for his award of benefits for tinnitus because he was "entitled to the benefit of the doubt when evidence is lacking to the contrary." Appellant's Br. at 2. However, the benefit of the doubt only applies "when there is an approximate balance of positive and negative evidence regarding anyissue material to the determination of a matter." 38 U.S.C. § 5107(b). Here, contrary to Mrs. Girard's 6 contention, the Board found that the preponderance of the evidence weighed against the assignment of an earlier effective date, a factual determination that she does not challenge on appeal. R. at 13. Consequently, the benefit of the doubt was not applicable, and the Board's determination in that regard was not "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Gilbert, 1 Vet. App. at 58. Finally, Mrs. Girard asserts that "only [Mr. Girard's] peace time service has been considered so far" in assigning an effective date for his award of benefits for tinnitus. Appellant's Br. at 3. However, Mrs. Girard fails to cite any statute, regulation, or other legal precedent, nor can the Court discern any, explaining why this distinction is relevant to the assignment of an effective date. Therefore, the Court concludes that Mrs. Girard has failedto carryher burden of demonstrating error in that regard. See Hilkert, 12 Vet.App. at 151. III. CONCLUSION Upon consideration of the foregoing, the July 28, 2009, Board decision is AFFIRMED. DATED: October 6, 2011 Copies to: Lula J. Girard VA General Counsel (027) 7

Agent Orange, New Leukemia Treatment Compound Tested

Hopefully this new compound will soon be available to those Veterans and their children who develop Acute Leukemia following exposure to Agent Orange. Full article at: "Compound Found in Common Wart Treatment Shows Promise as Leukemia Therapy" ScienceDaily (Oct. 26, 2011) — A new potential leukemia therapy targets only cancer cells, while leaving healthy cells alone. Many current chemotherapy treatments affect cancer cells and healthy cells, causing significant side effects, such as fatigue, hair loss, nausea, anxiety and depression. "The molecules used to create this anti-leukemic agent are structurally similar to the compound found in many gout treatments and over-the-counter products used to treat warts, which also prevent cell growth."

Single Judge Application, Claim Development Must be in Neutral Manner, Austin v. Brown, 6 Vet.App. 547, 552 (1994); Mariano v. Principi, 17 Vet.App. 305, 312 (2003); Hart v. Mansfield, 21 Vet.App. 505, 508 (2007); Tyrues, 23 Vet.App. at 183

Excerpt from decision below: "Sapcoe contends that the Board's statement of reasons or bases for its decision was inadequate because the Board relied on "inherently inconsistent" propositions regarding his history of noise exposure in assessing the probative value to be assigned to the various medical opinions of record.Id. at 12. The Court agrees that the Board's statement of reasons or bases was inadequate, albeit for different reasons." =========================================== ""However, it is equally well established that VA must develop claims and gather evidence in a neutral manner." Tyrues, 23 Vet.App. at 183; see Austin v. Brown, 6 Vet.App. 547, 552 (1994) ("[B]asic fair play requires that evidence be procured by the agency in an impartial, unbiased, and neutral manner."). Specifically, "VA may not pursue . . . development if the purpose is to obtain evidence against the claim." Hart v. Mansfield, 21 Vet.App. 505, 508 (2007). As the Court explained in Mariano v. Principi: Because it would not be permissible for VA to undertake such additional development if a purpose was to obtain evidence against an appellant's case, VA must provide an adequate statement of reasons or bases for its decision to pursue further development where such development reasonably could be construed as obtaining additional evidence for that purpose.17 Vet.App. 305, 312 (2003) (citing 38 U.S.C. § 7104(d)(1))." ============================== ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 10-1606 CHARLES SAPCOE, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before HAGEL, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. HAGEL, Judge: Charles Sapcoe appeals through counsel a January 15, 2010, Board of Veterans' Appeals (Board) decision denying entitlement to VA benefits for bilateral hearing loss.1 Record (R.) at 3-15. Mr. Sapcoe'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 that theybelieve require a precedential decision of the Court. Because the Board provided an inadequate statement of reasons or bases for its decision, the Court will vacate the January 15, 2010, Board decision and remand the matter for readjudication consistent with this decision. I. FACTS Mr. Sapcoe served on active duty in the U.S. Air Force from February 1957 to February 1961. Prior to entering the military, Mr. Sapcoe worked as a hydraulic press operator for 15 months. In service, he worked as an aircraft control and warning radar repairman and was exposed to noise The Board also awarded Mr. Sapcoe VA benefits for tinnitus and otitis media, and those claims, therefore, are not the subject of this appeal. See 38 U.S.C. § 7266(a) (stating that the Court only reviews final Board decisions adverse to the claimant). 1 from heavy ground radar equipment and generators without hearing protection. In October 1960, Mr. Sapcoe perforated his right ear drum with a Q-tip and was subsequently diagnosed with an ear infection, for which medication was prescribed. Mr. Sapcoe's January1961 separation examination indicates that he punctured his right tympanic membrane during service, but that he had no complications or sequellae from that injury at that time. Mr. Sapcoe's ears were otherwise assessed as normal and the results of an audiological examination revealed that his hearingwas within normal limits. In June 1986, 25 years after separation from service, Mr. Sapcoe began receiving treatment from private physicians for various ear problems. In December 1993, Mr. Sapcoe sought treatment for increased ear congestion that he attributed to taking two recent flights while he had a cold. He was subsequently diagnosed with "high frequency neurosensory hearing loss and eustachian tube dysfunction." R. at 328. Mr. Sapcoe's private physicians later attributed his hearing loss to noise exposure in the military. In September 2005, Mr. Sapcoe filed a claim for VA benefits for bilateral hearing loss, among other ear conditions. In October 2005, Mr. Sapcoe attended a VA audiological examination. The examination report stated that,followingservice, Mr. Sapcoe worked in a machine shop for nine years and periodically visited radar sites for 23 years without wearing hearing protection. The examiner diagnosed Mr. Sapcoe with bilateral hearing loss and opined that it was less likely than not related to service because his hearing was within normal limits at separation, his hearing declined recently, and "the greatest amount of his noise exposure appears to have been after separation from the service." R. at 499. Accordingly, in February 2006, a VA regional office denied his claim for benefits for bilateral hearing loss. Mr. Sapcoe filed a timely Notice of Disagreement with that decision and subsequently perfected his appeal. In March 2006, Mr. Sapcoe submitted a letter to VA explaining that he only worked in a machine shop for four months, not nine years as the VA examiner stated, and that, during the rest of his career, he was only exposed to noise on an occasional basis. He reiterated those assertions to a VA examiner in April 2006 and at a regional office hearing in February 2007. In March 2007, Mr. Sapcoe submitted another letter to VA asserting that "all of [his] exposure to noise came from [] working with and around heavy ground radar equipment while in the [Air Force] and hardly any 2 from [his] civilian career," and clarifying that, during the 23-year period following service where he periodically worked on radar sites, he "was always in a noise[-]free environment building." R. at 344. In April 2008, Mr. Sapcoe testified at a Board hearing that his hearing loss began "immediately in the 1960s" and denied being exposed to noise after service. R. at 234. In June 2008, the Board remanded Mr. Sapcoe's claim for additional development, including a new VA audiological examination, because (1) the private medical records did not take into account his pre-service noise exposure as a hydraulic press operator or the results of his audiological examination at separation from service; and (2) the October 2005 VA medical examination was based on an inaccurate history of noise exposure. Accordingly, in February 2009, Mr. Sapcoe attended a VA medical examination conducted by an audiologist. The audiologist noted that the claims file contained conflicting information regarding the onset of Mr. Sapcoe's hearing loss and his post-service noise exposure. After summarizing Mr. Sapcoe's pertinent medical history and performing an audiological examination, the audiologist diagnosed him with bilateral sensorineural hearing loss and opined that it was less likely than not related to service. The audiologist also indicated that a separate VA examination performed by a physician was necessary to address the etiology of his otitis media. Consequently,inApril 2009,Mr.SapcoeunderwentaVAeardiseaseexamination conducted by a physician. The physician reviewed Mr. Sapcoe's claims file and diagnosed him with bilateral sensorineural hearing loss, among other conditions. The physician then opined: It is at least as likely as not that the primary etiology for the bilateral sensorineural hearing loss . . . is service related military noise exposure. This is due to the amount of noise [Mr. Sapcoe] was exposed to in the service and that he reported the onset of the hearing loss soon after he left the service. Furthermore, he denied professional or recreational noise exposure after leaving the service. It is least likely that the Q-tip injury to the right tympanic membrane contributed to his hearing loss. . . . The tympanic membrane is normal and intact and the hearing loss is sensorineural and not conductive in nature. R. at 155. 3 In light of those conflicting medical opinions, the Board member requested a medical advisoryopinion from the Veterans Health Administration to determine the etiologyof Mr. Sapcoe's hearing loss. In October 2009, a VA audiologist provided such an opinion: In view of the conflicting private and VA medical opinions of record, it is less likely as not (less than 50/50 probability) that [Mr. Sapcoe]'s claimed hearing loss is the result of his active duty in the service. His separation medical evaluation . . . is clear. Ears were examined and considered to be normal. . . . The "Whispered Voice Test" was also performed and results were 15/15 bilaterally. It should be noted that the "Whispered Voice Test"isnotfrequencyspecificand is insensitive to high frequency hearing loss, the type of hearing losses most likely to occur as a result of noise exposure[;] however, the full [a]udiological evaluation above indicates that hearing was well within normal limits in the high frequency ranges bilaterally. R. at 45. In January 2010, the Board issued the decision currently on appeal, which, in pertinent part, denied entitlement to benefits for bilateral hearing loss. Specifically, the Board discounted the positive nexus opinions provided by Mr. Sapcoe's private physicians because they "made no reference to [his] pre- or post-service noise exposure, focusing [their] attention solely on the history of in-service noise exposure as related by[Mr. Sapcoe]," and likewise discounted the April 2009 VA medical opinion because the examiner "relied on [Mr. Sapcoe]'s statement that he had no traumatic noise exposure following his separation from service." R. at 14. The Board noted that those opinions failed to consider Mr. Sapcoe's post-service noise exposure while working next to a machine shop and at radar sites and therefore concluded that they were not entitled to any probative weight. Instead, the Board preferred the October 2005, April 2006, and February 2009 VA medical opinions because they took into account Mr. Sapcoe's pre- and post-service employment, as well as "the vague and sometimes inconsistent answers provided by[Mr. Sapcoe] when questioned as to his noise exposure." Id. The Board also favored those opinions because they were "reinforced by the October 2009 VA medical opinion . . . that noted the normal separation audiometric examination." Id. Consequently, the Board found that the preponderance of the evidence was against Mr. Sapcoe's claim. 4 II. ANALYSIS Mr. Sapcoe argues that the Board erred in obtaining the October 2009 medical advisory opinion from the Veterans Health Administration because the only purpose for obtaining such an opinion was to develop evidence against his claim. Specifically, Mr. Sapcoe asserts that, prior to the Board's request for the medical advisory opinion, he was entitled to an award of benefits for bilateral hearing loss pursuant to U.S.C. § 5107(b) and 38 C.F.R. § 3. 102 because the Board implicitly found that the evidence of record was in equipoise, and that the Board subsequently requested the medical advisory opinion solely to "break the deadlock" between the conflicting February and April 2009 VA medical opinions. Appellant's Brief (Br.) at 10. Alternatively, Mr. Sapcoe contends that the Board's statement of reasons or bases for its decision was inadequate because the Board relied on "inherently inconsistent" propositions regarding his history of noise exposure in assessing the probative value to be assigned to the various medical opinions of record.Id. at 12. The Court agrees that the Board's statement of reasons or bases was inadequate, albeit for different reasons. "[I]t is well established that the Board has the discretion to determine whether further development is needed to make a decision on a claim." Tyrues v. Shinseki, 23 Vet.App. 166, 182(2009) (en banc), aff'd, 631 F.3d 1380 (Fed. Cir. 2011), judgment vacated, __ S. Ct. __ (No. 10- 1405, Oct. 3, 2011). To that end, "[t]he Board may obtain a medical opinion from an appropriate health care professional in the Veterans Health Administration . . . on medical questions involved in the consideration of an appeal when, in its judgment, such medical expertise is needed for equitable disposition of an appeal." 38 C.F.R. § 20.901(a). The Court will not overturn the Board's determination that a medical opinion from the Veterans Health Administration was necessary to decide a claim unless it was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." See Stringham v. Brown, 8 Vet.App. 445, 448 (1995) ("The standard of review this Court applies to a discretionary determination made by the Secretary is whether such determination is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."); see also Boutwell v. West, 11 Vet.App. 387, 391 (1998) (applying that standard of review to the Secretary's decision to obtain an independent medical examination). 5 "However, it is equally well established that VA must develop claims and gather evidence in a neutral manner." Tyrues, 23 Vet.App. at 183; see Austin v. Brown, 6 Vet.App. 547, 552 (1994) ("[B]asic fair play requires that evidence be procured by the agency in an impartial, unbiased, and neutral manner."). Specifically, "VA may not pursue . . . development if the purpose is to obtain evidence against the claim." Hart v. Mansfield, 21 Vet.App. 505, 508 (2007). As the Court explained in Mariano v. Principi: Because it would not be permissible for VA to undertake such additional development if a purpose was to obtain evidence against an appellant's case, VA must provide an adequate statement of reasons or bases for its decision to pursue further development where such development reasonably could be construed as obtaining additional evidence for that purpose. 17 Vet.App. 305, 312 (2003) (citing 38 U.S.C. § 7104(d)(1)). The Board's statement of reasons or bases is adequate if it allows a claimant to understand the precise basis for the Board's decision and facilitates review in this Court. Gilbert v. Derwinski, 1 Vet.App. 49, 57 ( 1990). The Board may commit error requiring remand when it fails to provide such a statement. Id. In June 2008, the Board determined that the various private medical opinions of record were inadequate because the physicians who rendered them "were apparently not made aware that[,] prior to service, [Mr. Sapcoe] was employed for 15 months as a hydraulic press operator; nor did the physicians address the findings of [his] separation exam[ination] and his January 1995 worker's compensation claim." R. at 226. Likewise, the Board determined that the October 2005 VA medical examination was also inadequate because it was "apparently based . . . on an inaccurate recounting of [Mr. Sapcoe]'s exposure to noise through his work following the military. It is apparent that the examiner was also unaware that [Mr. Sapcoe] had pre-service noise exposure as a hydraulic press operator for 15 months." Id. (emphasis omitted). Accordingly, the Board remanded Mr. Sapcoe's claim for benefits for bilateral hearing loss to obtain a medical opinion " based on the complete claims file" that would "address and reconcile the contradictory etiological opinions of record." Id. Accordingly, theBoardobtainedtheFebruary2009VAaudiologicalexaminationandtheApril2009 VA medical examination, which resulted in conflicting conclusions regarding the etiology of Mr. Sapcoe's hearing loss. In light of these conflicting opinions, the Board apparently determined that it was necessaryto obtain a medical advisoryopinion to equitablydecide the claim. As noted above, 6 the Board has the discretion to obtain such an opinion, provided that it adequately explains its rationale for doing so. Here, however, the Board made no attempt to explain why it sought the medical advisory opinion from the Veterans Health Administration. Rather, it simply summarized the opinion and found that it "reinforced" the October 2005, April 2006, and February 2009 VA medical opinions already of record. R. at 14. Absent an explanation of why a medical advisory opinion was necessary, and in light of the conflicting medical evidence that the Board could have determined was in equipoise, the Board's decision to obtain a medical advisory opinion on the etiology of Mr. Sapcoe's bilateral hearing loss "reasonably could be construed as obtaining additional evidence" against his claim. Previous HitMarianoNext Document, 17 Vet.App. at 312. Consequently, the Court concludes that the Board's statement of reasons or bases for its decision to obtain a medical advisory opinion was inadequate. Moreover, the Board's explanation for the weight it accorded to the other medical opinions was also deficient for a number of reasons. First, the Board relied on the October 2005 VA medical opinion that the Board found to be inadequate in its June 2008 decision. Specifically, in the Board decision currently on appeal, the Board found that opinion to be probative because it "noted [Mr. Sapcoe's] pre-service employment as a hydraulic press operator, as well as post-service noise exposure while working next to a machine shop and as a federal worker visiting radar sites." R. at 14. However, in the June 2008 Board decision, the Board found that another VA medical opinion was necessary, in part, because, the October 2005 VA medical opinion was " apparently based . . . on an inaccurate recounting of [Mr. Sapcoe]'s exposure to nosie through his work following the military" and because "the examiner was also unaware that [Mr. Sapcoe] had pre-service noise exposure as a hydraulic press operator for 15 months." R. at 226. These statements are clearly contradictory and the Board did not explain why the October 2005 VA medical opinion, which it previouslydeterminedwasinadequatein 2008, wasadequateandthereforeworthyofprobativevalue in 2010. Second, the Board also relied on the April 2006 VA medical opinion to deny Mr. Sapcoe's claim for benefits for bilateral hearing loss, even though that opinion only addressed the etiology of his otitis media, not his hearing loss. Therefore, absent any explanation as to why the April 2006 7 VA medical opinion was relevant to Mr. Sapcoe's claim for benefits for hearing loss, it is entirely unclear why the Board found that it weighed against that claim. Finally, the Board did not explain why a failure to discuss Mr. Sapcoe's pre-service noise exposure rendered the private medical opinions and the April 2009 VA medical opinion less probative. To the extent that the Board implied that Mr. Sapcoe's pre- service noise exposure was responsible for his hearing loss, the Board pointed to no evidence of record to support that conclusion, nor did it discuss the presumptions of soundness and aggravation. See Wagner v. Principi, 370 F.3d 1089, 1097 (Fed. Cir. 2004). Moreover, to the extent that the Board implied that Mr. Sapcoe was not credible because he did not provide a complete history of noise exposure to those examiners, the Board made no such express credibility determination in its decision. In short, the Board's failure to explain the significance of Mr. Sapcoe's pre- service noise exposure frustrates judicial review. See Gilbert, 1 Vet.App. at 57. Based on the foregoing, the Court concludes that the Board's statement of reasons or bases for its decision was inadequate. Although Mr. Sapcoe argues that reversal is warranted, the Court concludes that he has not carried his burden of demonstrating that "the only permissible view of the evidence is contraryto the Board's decision." Gutierrez v. Principi, 19 Vet.App. 1, 10 (2004) (citing Johnson v. Brown, 9 Vet.App. 7, 10 (1996)). Rather, vacatur and remand is the appropriate remedy in this case because the Board failed to provide an adequate statement of reasons or bases for its decision. See Tucker v. West, 11 Vet.App. 369, 374 (1998). On remand, Mr. Sapcoe is free to submit additional evidence and argument in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). See Kay v. Principi, 16 Vet.App. 529, 534 (2002). 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). 8 III. CONCLUSION Upon consideration of the foregoing, the January 15, 2010, Board decision is VACATED and the matter is REMANDED for readjudication consistent with this decision. DATED: October 24, 2011 Copies to: Scott J. Popma, Esq. VA General Counsel (027) 9

Single Judge Application, VA May Not Develop Negative Evidence, Mariano v. Principi, 17 Vet.App. 305,312 (2003)

Excerpt from decision below: "Consequently, the Court will vacate the Board's decision and remand the matter for readjudication. Specifically, the Board must first consider whether, given the conflicting evidence of record, an expert or independent medical opinion would be helpful. If the Board determines that additional development is necessary, it must adequately explain its reasons or bases for the decision to pursue such development. See Mariano v. Principi, 17 Vet.App. 305, 9 312 (2003) (holding that, because VA may not develop negative evidence, it "must provide an adequate statement of reasons or bases for its decision to pursue further development where such development reasonably could be construed as obtaining additional evidence for that purpose"). Second, the Board should consider whether the competent evidence of record is in equipoise and, if so, the Board must resolve all doubt in favor of Mr. Dickerson. See 38 U.S.C. § 5107(b); Hayes v. Brown, 5 Vet.App. 60, 69 (1993) (holding that the determination that the evidence is in equipoise is a finding of fact by the Board)." ================================================ ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 10-2004 EUGENE H. DICKERSON, 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: Eugene H. Dickerson appeals through counsel a February 18, 2010, Board of Veterans' Appeals (Board) decision that denied entitlement to VA disability benefits for arthritis, to include rheumatoid arthritis and osteoarthritis, of multiple joints. Mr. Dickerson's Notice of Appeal wastimely, 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 that they believe require a precedential decision of the Court. Because the Board provided inadequate reasons or bases for its determination that Mr. Dickerson is not entitled to benefits for rheumatoid arthritis, the Court will vacate that portion of the February 2010 Board decision and remand the matter for further development, if necessary, and readjudication consistent with this decision. The remainder of the Board decision will be affirmed. I. FACTS Mr. Dickerson served on active duty in the U.S. Navy from September 1943 to April 1946. His service medical records reveal a diagnosis of and treatment for rheumatoid arthritis. In August 1969, a VA regional office denied Mr. Dickerson's claim for benefits for rheumatoid arthritis, finding no link between his current condition and his in-service diagnosis. Mr. Dickerson continuouslyappealed that decision, and in March 1979 the Boardagaindenied his claim. Because there was no appellate review of Board decisions at that time, the decision became final. In February 1985, Mr. Dickerson sought to reopen his claim. In October 1985, he advised VA in a letter that he had received treatment for rheumatoid arthritis since his discharge from service, but that the physician who treated him in the 1940s and 1950s was deceased and his records were unavailable. He stated that he had also received treatment from "Dr. J. H. Smith of Christiansburg[, Virginia,] andalsoDr. BlaylockattheLewisGaleHospitalofRoanoke,[Virginia]." Record (R.) at 495. Mr. Dickerson reported that both doctors told him he had chronic arthritis. In September 1986, the regional office determined that no change was warranted in its previous decisionsandthatMr.Dickerson remainednon-service-connectedfor rheumatoid arthritis. Overthenext 20years, Mr.Dickerson repeatedlyattempted to reopen his claim, but his claim remained denied. Of note during this time period, Mr. Dickerson testified at a hearing before the regional office in September 1996. He testified that he had received treatment from Drs. Nixon, McClelland, Bowen, and Jones, and that all of them diagnosed him with rheumatoid arthritis. R. at 433. He reported that Drs. Nixon, Jones, and Bowen were deceased.1 He also stated that he currently received treatment at the Salem, Virginia, VA medical center. In October 2006, Mr. Dickerson again sought to reopen his claim. He stated that his current treatment was with a rheumatologist at an unidentified VA medical center. The record contains VA treatment records dated between November 2004 and November 2007 from the Salem VA medical center. Those records contain numerous mentions of treatment for or complaints of rheumatoid arthritis. R. at 366, 367, 369, 374, 376, 382; see also R. at 372 (" Rheumatology Attending Note"), 377 ("He also has an app[ointmen]t today with Rheum[atology]"), 378 (" Rheumatology follow-up note"), 386 ("Rheumatologyfollow-up note"); but see R. at 380 (impression of osteoarthritis in knee in note signed by Mr. Dickerson's reported rheumatologist), 387 (same, except in fingers). The record contains a September 1976 letter from Dr. McClelland stating that his records relating to his treatment of Mr. Dickerson in the 1960s had been destroyed in a fire, but that he recalled treating Mr. Dickerson "for injuries of a hip which could have been either traumatic or arthritic." R. at 546. 1 2 In May 2007, VA advised Mr. Dickerson of the need to submit new and material evidence to reopen his claim. VA also requested that he advise if he had received private treatment so that VA could obtain those records. Mr. Dickerson responded by supplying recent private medical records as well as lay statements regarding his in-service condition. In January 2008, the regional office reopened Mr. Dickerson's claim based on VA treatment records showing a current diagnosis of rheumatoid arthritis, but inexplicably denied his claim "because the evidence continues to show this condition was not incurred in or aggravated bymilitary service."2 R. at 266. Mr. Dickerson filed a Notice of Disagreement with that decision and ultimately appealed to the Board. In September 2008, Mr. Dickerson underwent a VA medical examination in which the examiner was directed to "provide an opinion as to whether it is at least as likely as not that the veteran's rheumatoid arthritis had its onset in service, or if it is related to the episode of rheumatoid arthritis diagnosed in service." R. at 192. The examiner, a nurse practitioner, reviewed and summarized Mr. Dickerson's service medical records, as well as his private and VA post-service medical records. The examiner opined: [Mr. Dickerson] indeed has a record of being treated for polyarthralgia and a diagnosis of rheumatoid arthritis given while in the military. He also has a probable diagnosis of rheumatoid arthritis via a VA disabilitygeneral medical exam in the late 1960's. This exam, in the late 1960's, actually has x-ray evidence of a possible connective tissue disease, such as rheumatoid arthritis. Unfortunately[,] there are no The Court notes that this is the same reasoning given in VA's May 2007 notice letter regarding the submission of new and material evidence. R. at 356. However, the initial August 1969 regional office decision denied Mr. Dickerson's claim for lack of a link between his current condition and his in-service diagnosis. R. at 605 ("His present condition . . . is in no way related to the acute transitory complaints in service."); see also R. 574 (June 1978 Statement of the Case declining to reopen because new evidence submitted was "not sufficient to establish continuity of symptoms for arthritis from the claimant's separation until the present time"); 553 ( March 1979 Board decision stating, "The complaints during service were not early manifestations of the rheumatoid arthritis first established as a disease entity many years after service"). Apparently, however, beginning with the July 1995 rating decision declining to reopen the claim, VA adopted the belief that Mr. Dickerson's claim had been previously denied due to a lack of evidence showing "treatment for rheumatoid arthritis while on active duty or within one year following separation from active duty." R. at 761. Mr. Dickerson does not challenge the characterization of the missing element of his claim over the course of the past four-plus decades, and, in any event, the Board decision on appeal reopened his claim, finding that new and material evidence had been submitted. The Court highlights these discrepancies only to encourage the Secretary to practice precision and consistency in his treatment of a claim and in recounting the history of the claim's adjudication in his brief to the Court. 2 3 records . . . confirming the actual diagnosis[,] and there are no records of continued treatment specifically for rheumatoid arthritis post-military discharge. While in the [service,] [Mr.Dickerson]hadpolyarthralgia,inflammation, swelling, andpainin the usual joints [in which] rheumatoid arthritis initially presents[, but t] here doesn't appear to be continuation of treatment for rheumatoid arthritis thereafter. He has received treatment for osteoarthritis in his later years by our rheumatologist here at the VA [medical center]. That same provider in 2001 didn't see[] any evidence of active rheumatoid arthritis and proceeded to treat for osteoarthritis. He did speak to a suggestive history of rheumatoid arthritis. On today's exam there are no signs or symptoms suggestive of acute or chronic rheumatoid arthritis. [Mr. Dickerson] has ample evidence, clinically, of osteoarthritis[,] especially to both hands and knees. [He] most likely had rheumatoid arthritis in his youth and this condition went into remission as he aged. Presently there are no signs of joint inflammation or panus formation (joint findings suggestive of deformityfrom chronic rheumatoid arthritis). Therefore, it is this examiner's opinion, based on circumstantial evidence, that while in the military[,] [Mr. Dickerson] had acute arthritis, most likely rheumatoid type, that hasn't produced significant joint damage or functional loss as evidenced by today's and past joint exams. R. at 186.3 In May 2009, the Board reopened Mr. Dickerson's claim and remanded it for additional development. Specifically, the Board determined that "[a] remand is necessary to clarify any inconsistencies in the medical record with a new examination that would include a medical opinion, based on the record, as to the likelihood that anyarthritis, to include osteoarthritis and/or rheumatoid arthritis of multiple joints, is related to service." R. at 119. The Board stated that the examiner should conduct all tests necessary to analyze the nature and etiology of any such disorder(s), including any X-rays, and tests necessary to determine whether any suspected condition found meets clinical criteria for classification as rheumatoid arthritis as a chronic disorder; and if so, whether this is presently active or in remission. R. at 120. The Board also directed the regional office to obtain any outstanding private or VA medical records relating to treatment for any kind of arthritis. VA obtained additional VA treatment records that contain mentions of treatment for or complaints of rheumatoid arthritis. R. at 60 (including rheumatoid arthritis on a "problem list" of Arthralgia is joint pain. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 150 ( 32d ed. 2012). Polyarthralgia is "arthralgia in many different joints." Id. at 1487. 3 4 Mr. Dickerson's conditions); 64, 71, 82, 94 (noting that Mr. Dickerson was being treated by a VA rheumatologist and was having difficulties managing rheumatoid arthritis with medication); 59, 66, 72, 83, 89 (noting stable, ongoing rheumatoid arthritis); 96 (listing rheumatoid arthritis as an "active problem"); but see R. at 51 (noting "extensive osteoarthritis" in the hands, knees, and ankles), 97 ("Rheumatology follow-up note" signed by Mr. Dickerson's reported rheumatologist diagnosing osteoarthritis). In July 2009, VA requested that Mr. Dickerson complete and return an authorization and consent form identifying health care providers from whom relevant medical records still needed to be obtained. R. at 62. Later that month, Mr. Dickerson's representative responded: "Mr. Dickerson's medical history is already of record[;] any additional treatment information would come from the Salem VA medical center." R. at 61. In December 2009, Mr. Dickerson underwent the requested VA examination, provided by the same nurse practitioner who conducted the September 2008 examination. The examiner stated that he reviewed Mr. Dickerson's claims file and recounted his medical history. The examiner also stated that Mr. Dickerson was being treated by a VA rheumatologist for osteoarthritis. R. at 37. Aftera physical examination, the examiner found "no clinical evidence of connective tissue disease" in Mr. Dickerson's hands, knees, elbows, ankles, or feet. R. at 39. X-rays were taken of the left hip, and the report revealed "[d]egenerative changes . . . in the lower lumbar spine. Generalized osteopenia noted. No fracture, dislocation, or other bony abnormality. The hip joint space is well preserved. Mineralization is good." R. at 40. The impression was "normal hip." Id. The examiner also reviewed a 2008 left hip x-ray for comparison, and the findings were essentially identical. Under "Summary of all problems, diagnoses[,] and functional effects," the examiner noted: "DIAGNOSIS: no radiographic evidence of left hip arthritic condition[.] PROBLEM ASSOCIATED WITH THE DIAGNOSIS: osteoarthritis or rheumatoid arthritis." R. at 41. The examiner concluded that neither osteoarthritis nor rheumatoid arthritis caused by or due to Mr. Dickerson's military service. With respect to rheumatoid arthritis, the examiner stated: [T]hereis no connection with militaryservice because there is no arthritis of anykind to the left hip. It is my opinion as well that the osteoarthritis diagnosed in his hands and other joints listed throughout his [claims] file and here at the VA [ medical center] Salem is not the result of the acute rheumatoid arthritis diagnosed in military 5 service in 1944. Rheumatoid arthritis is a chronic condition of exacerbations and remissions. There are occasions where there is an acute arthritis without remissions. I cannot find documented evidence of a rheumatologic exacerbation in the [ claims] file. Consequentlymyprevious opinion stands . . . based on circumstantial evidence, that while in the militarythis veteran had acute arthritis, most likelyrheumatoid type, that hasn't produced significant joint damage or functional loss as evidenced by today's and past joint exams. R. at 43. In February 2010, the Board issued the decision on appeal. The Board first determined that VA satisfied its duty to assist and that no relevant outstanding evidence had been identified. The Board then recounted Mr. Dickerson's medical history and the medical evidence of record, from the in-service diagnosis of rheumatoid arthritis to the December 2009 VA examination. The Board noted that the questions to be answered were whether Mr. Dickerson currently has rheumatoid arthritis and, if so, whether that condition is related to the in-service diagnosis of rheumatoid arthritis. The Board relied on the September 2008 and December 2009 VA examination reports to conclude that Mr. Dickerson does not have a current diagnosis of rheumatoid arthritis and that, although Mr. Dickerson's VA treatment records show that he "complained of pain and swelling in his joints with a history of inflammatory arthritis and evidence of possible rheumatoid arthritis," those treatment records did not contain a "clear diagnosis of rheumatoid arthritis since service." R. at 12. The Board also considered Mr. Dickerson's statements in support of his claim, but found that "[w]hile he may well believe that he has a current disability of rheumatoid arthritis, as a layperson . . . [he] is simply not qualified to render a medical diagnosis in this regard." R. at 13. Accordingly, the Board denied his claim.4 II. ANALYSIS On appeal, Mr. Dickerson argues that the Board failed to ensure compliance with its May 2009 remand order because the December 2009 VA examiner "did not order any tests to determine 4 The Board also determined that Mr. Dickerson's current diagnosed disability of osteoarthritis was not related to service. Mr. Dickerson, however, raises no arguments related to that decision and the Court deems any appeal of that portion of the Board's decision abandoned. See Grivois v. Brown, 6 Vet.App. 136, 138 (1994) (holding that issues or claims not argued on appeal are considered abandoned). 6 whether [he] has rheumatoid arthritis." Appellant's Brief (Br.) at 10. Mr. Dickerson also asserts that the Board provided inadequate reasons or bases for its decision to deny his claim because the Board failed to account for inconsistencies in the medical evidence regarding whether he has a current diagnosis of rheumatoid arthritis. The Court will consider each argument in turn. A. Compliance with May 2009 Remand Order "[A] remand by this Court or the Board confers on the . . . claimant, as a matter of law, the right to compliance with the remand orders." Stegall v. West, 11 Vet.App. 268, 271 (1998). When "the remand orders of the Board or this Court are not complied with, the Board itself errs in failing to [e]nsure compliance." Id. Such an error can constitute the basis for a remand by this Court. Id. Further, once VA has determined that a medical examination is necessary, as was found in this case, VA is required to ensure that the examination is adequate. See 38 C.F.R. § 4.2 (2011). If an examination is found to be inadequate, "it is incumbent upon the rating board to return the report as inadequate for evaluation purposes." Id.; see also Stegall, 11 Vet.App. at 270-71 (remanding where a VA examination was "inadequate for evaluation purposes"); Hicks v. Brown, 8 Vet.App. 417, 422 (1995) (concluding that an inadequate medical evaluation frustrates judicial review). Here, the Board ordered that Mr. Dickerson be provided a new VA medical examination to determine whether he has a current diagnosis of rheumatoid arthritis and, if so, whether that condition is related to service. As noted above, the Board instructed the examiner to "conduct all tests necessary to analyze the nature and etiology of any such disorder(s), including any X-rays, and tests necessary to determine whether any suspected condition found meets clinical criteria for classification as rheumatoid arthritis as a chronic disorder." R. at 120. Contrary to Mr. Dickerson's claim that the December 2009 VA examiner "did not order any tests," Appellant's Br. at 10, the examination report clearlyshows that the examiner ordered an x-ray of Mr. Dickerson's left hip and lower back to determine if there was any radiological evidence of rheumatoid arthritis. It is clear that Mr. Dickerson believes that the examiner was required to order additional tests, based on information contained in VA's Adjudication and Procedure Manual, but the Board clearly left it to the examiner's discretion to determine what tests were "necessary" to provide the requested opinion. Here, the examiner exercised his discretion to "only" order an x-ray to inform his opinion, and Mr. Dickerson has not demonstrated that doing so was improper. 7 Accordingly, the Court concludes that the Board ensured at least substantial compliance with its December 2009 remand order. See Dyment v. West, 13 Vet.App. 141, 146–47 ( 1999) (holding that there is no error when an examiner "more than substantially complie[s] with the Board's remand order"), aff'd sub nom. Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). Moreover, the examiner's purported "fail[ure] to consider the disability factors" of rheumatoid arthritis outlined in the Adjudication Procedures Manual–including "dryness of the eyes and mouth (Sjogren's syndrome), pulmonary complications, anemia, enlargement of the spleen, muscular atrophy, gastrointestinal symptoms, circulatory changes, imbalance in water metabolism, or dehydration, vascular changes, cardiac involvement, dry joints, [and] low renal function," Appellant's Br. at 13–is, at best, harmless error, given that Mr. Dickerson does not assert either that he suffers from any of these symptoms or that the examiner overlooked evidence of these symptoms in his review of the medical record. See Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004); see also 38 U.S.C. § 7261(b)(2) (requiring the Court to "take due account of the rule of prejudicial error"). To the extent that Mr. Dickerson attempts to argue that, because the VA examiner who performed the December 2009 examination was a nurse practitioner and not a physician, he was not competent or knowledgeable enough to provide an adequate examination, the Court notes that it is well-settled that the Board is entitled to presume the competence of a VA examiner in the absence of evidence demonstrating otherwise. See Cox v. Nicholson, 20 Vet.App. 563, 569 (2007). Mr. Dickerson offers nothing more than bald speculation that the examiner was unqualified to perform the December 2009 examination and, accordingly, has not carried his burden of demonstrating error on this point. See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (holding that the appellant has the burden of demonstrating error), aff'd per curiam, 232 F.3d 908 (Fed. Cir. 2000) (table). B. Reasons or Bases Mr. Dickerson contends that the Board "failed to adequately explain the inconsistencies in the medical record as to whether [he] has a current diagnosis of rheumatoid arthritis." Appellant's Br. at 16. The Court agrees. The Board stated: 8 Although several . . . treatment records indicate that the Veteran complained of pain and swelling in his joints with a history of inflammatory arthritis and evidence of possible rheumatoid arthritis, and there is evidence he was being treated by the VA Rheumatology Clinic, none of the treatment records contains a clear diagnosis of rheumatoid arthritis since service. R. at 12. This statement is simply unsupported by the medical evidence of record. As outlined in Part I above, the record is replete with evidence of a current diagnosis of rheumatoid arthritis. Although the evidence contained in Mr. Dickerson's VA medical records conflicts with the opinion of the VA medical examiner who conducted the September 2008 and December 2009 VA examinations,suchconflictdoesnot renderthosemedicalrecordsnot probativeorincompetent. The Board's attempt to discount the VA medical records as merely demonstrating a "history" of inflammatoryarthritis and "possible"rheumatoid arthritis is insufficient in lightofthenumerousVA treatment records that expressly state that Mr. Dickerson is being treated for "ongoing" and "stable" rheumatoid arthritis. This is especially important in light of the Board's acknowledgment that rheumatoid arthritis is a potentially chronic condition of active and dormant states. R. at 120. The Court concludes, therefore, that the Board has provided inadequate reasons or bases for its determination that Mr. Dickerson does not have a current diagnosis of rheumatoid arthritis. See 38 U.S.C. § 7104(d)(1); Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). TheCourt maynot reversetheBoard's decision,however. DespitethenumerousVAmedical records that indicate a current diagnosis of rheumatoid arthritis, there is also a fair amount of evidence that indicates that Mr. Dickerson does not, in fact, suffer from rheumatoid arthritis, not the least of which are the two VA examinations and the notations from Mr. Dickerson's rheumatologist that he is being treated for osteoarthritis. See Gutierrez v. Principi, 19 Vet.App. 1, 10 (2004) (holding that "reversal is the appropriate remedy when the only permissible view of the evidence is contrary to the Board's decision"). Consequently, the Court will vacate the Board's decision and remand the matter for readjudication. Specifically, the Board must first consider whether, given the conflicting evidence of record, an expert or independent medical opinion would be helpful. If the Board determines that additional development is necessary, it must adequately explain its reasons or bases for the decision to pursue such development. See Mariano v. Principi, 17 Vet.App. 305, 9 312 (2003) (holding that, because VA may not develop negative evidence, it "must provide an adequate statement of reasons or bases for its decision to pursue further development where such development reasonably could be construed as obtaining additional evidence for that purpose"). Second, the Board should consider whether the competent evidence of record is in equipoise and, if so, the Board must resolve all doubt in favor of Mr. Dickerson. See 38 U.S.C. § 5107(b); Hayes v. Brown, 5 Vet.App. 60, 69 (1993) (holding that the determination that the evidence is in equipoise is a finding of fact by the Board). On remand, Mr. Dickerson is free to submit additional evidence and argument in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). See Kay v. Principi, 16 Vet.App. 529, 534 (2002). 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). III. CONCLUSION Upon consideration of the foregoing, that portion of the February 18, 2010, Board decision that denied entitlement to VA benefits for rheumatoid arthritis is VACATED and the matter is remanded for further development, if necessary, and readjudication consistent with this decision. The remainder of the Board decision is AFFIRMED. DATED: October 24, 2011 Copies to: Jeany Mark, Esq. VA General Counsel (027) 10

Single Judge Application, Symptomatology, Not Treatment, C.F.R. 3.303(b), Savage, 10 Vet.App. at 496

Excerpt from decision below: "38 C.F.R. § 3.303(b). Continuity of symptomatology may establish service connection if a claimant can demonstrate (1) that a condition was "noted" during service; (2) there is postservice evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. Barr, 21 Vet.App. at 307 (citing Savage v. Gober, 10 Vet.App. 488, 495-96 (1997)). "[S]ymptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet.App. at 496. In this case, there is evidence pertaining to all three elements. There was a condition, plantar foot pain, noted in service. There is ample evidence of continuing foot pain and the 2008 VA examiner indicates that the appellant's present plantar fasciitis may explain the continuing postservice foot pain. As the Secretary concedes, the evidence produced in development of the bilateral foot disorder complaint reveals a condition that is within the scope of the filed claim, which the Board must consider. See Clemons v. Shinseki, 23 Vet.App. 1 (2009). Thus, the Court will remand the bilateral foot condition claim for development of the plantar fasciitis issue." ================== ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 10-2106 GREGORY B. SMITH, APPELLANT, v. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before DAVIS, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. DAVIS, Judge: U.S. Armyveteran GregoryB. Smith appeals through counsel from a March 15, 2010, Board of Veterans'Appeals (Board) decision that, among other things, found that new and material evidence had not been submitted to reopen a previouslydenied claim for pes planus; denied claims for service connection benefits for (1) a bilateral foot disorder, status post removal of ganglion cysts and (2) a bilateral knee disorder claimed as secondary to the pes planus condition; and denied increased disability ratings for (1) residuals of fractures of the right fourth and fifth metacarpals for the period from June 23, 2003, to September 4, 2008, and ( 2) a scar on the left hand resulting from surgical removal of a ganglion cyst.1 For the following reasons, the Court will affirm in part and set aside in part the Board's March 2010 decision and remand four matters for further proceedings consistent with this decision. The Board also denied a claim for disability benefits for a condition manifested by bilateral leg weakness and a disability rating in excess of 10% for residuals of the right hand fracture from September 5, 2008. The appellant explicitly abandoned these issues on appeal and the Court will give them no consideration. See Bowling v. Principi, 15 Vet.App. 1, 16 (2001); Green v. Brown, 10 Vet.App. 111, 115 (1997). The Board also remanded a PTSD issue for further development and referred an issue with respect to a disability rating and effective date assigned for extensor tendinitis of the left wrist. The Court has no jurisdiction over those matters because they are not the subject of a final Board decision. See Hampton v. Gober, 10 Vet.App. 481, 483 (1991); Link v. West, 12 Vet.App. 39, 47 (1998). 1 I. ANALYSIS A. Bilateral Pes Planus (Flat Feet) The appellant had active duty service from January 19, 1984, to March 15, 1989. His induction examination contained a notation indicating "[p]es [p]lanus, Mod . [moderate], asymptomatic." Record (R.) at 1820. As the Board acknowledged, "[s]ervice treatment records show that he received treatment for pain in his feet on numerous occasions due to various causes and at times was placed on temporary limited duty profiles." R. at 10. Notably, one document reported: "B/L [bilateral] arch pain [and] plantar foot pain." R. at 2152. A previous Board decision noted that "neither a report of examination prior to separation, nor a report of medical history filled out prior to separation [is] contained in the claims folder." R. at 622. In June 2003 the appellant filed a claim that sought benefits for a " bilateral foot condition." R. at 2269. The regional office (RO) developed this claim as "bilateral pes planus and athritis," but denied the claim in January2004 on the basis that "service medical records ( SMRs) . . . failed to show evidence of worsening of [the] pes planus and are negative for any clinical findings, treatment or diagnosis of arthritis." R. at 2179-80. On appeal, a 2007 Board decision found that the medical evidence of record "preponderate[d] against a finding that the veteran's bilateal pes planus that preexisted service was permanently worsened therein; or that arthritis of the feet was diagnosed within one year after separation from service." R. at 615. This decision became final. After receiving a statement in support of the claim on January 17, 2008, the RO sent notice letters with regard to the pes planus claim and provided a VA medical examination in June of that year. Apparently, the RO reopened the claim but denied it on the merits, on the basis that "the evidence still does not show that [the] bilateral pes planus either [was] incurred in or was aggravated by military service." R. at 216. In the decision here on appeal, however, the Board found that the evidence submitted since the last prior denial "does not raise a reasonable possibilityof substantiating the claim for service connection for bilateral pes planus," and concluded that new and material evidence had not been submitted to reopen the claim. R. at 6-7. 1. Adequacy of VA Medical Examination The appellant first argues that the June 2008 VA medical examination, on which the Board principally relied, was inadequate for failure to opine on whether his pes planus had been aggravated 2 during service. "[O]nce the Secretary undertakes the effort to provide an examination . . . he must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided." Barr v. Nicholson, 21 Vet.App. 303, 311 (2007). A medical examination is adequate "where it is based upon consideration of the veteran's prior medical historyand examinations and also describes the disability, if any, in sufficient detail so that the Board's 'evaluation of the claimed disability will be a fully informed one.'" Stefl v. Nicholson, 21 Vet.App. 123, 123 (2007) (quoting Ardison v. Brown, 6 Vet.App. 405, 407 (1994)). The report must contain clear conclusions and supporting data, as well as "a reasoned medical explanation" connecting the data and conclusions. Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008). The adequacyof a medicalexamination is a factual determination reviewed under the "clearly erroneous" standard of review. See Nolen v. Gober, 14 Vet.App. 184 (2000). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990). The Court agrees with the appellant that the 2008 VA examination report was inadequate, for at least two distinct reasons. i. Appropriate Classification of Congenital Condition First, the June 2008 report failed to provide the Board with a description of the appellant's condition sufficient to allow the Board to make an informed classification of the appellant's pes planus disability and nothing in the record before the Court remedies that deficiency. In its 2007 decision, the Board referred to a May 2006 VA examination report and stated: "the VA examiner diagnosed congenital pes planus." R. at 623. This examination report is not contained in the record before the Court, but accepting the Board's characterization of its content, the report stated only that the condition was congenital. As the Court has noted, "the mere fact that a condition is the result of a congenital cause does not necessarily mean that the condition itself manifested before service or that it was not aggravated by service." Quirin v. Shinseki, 22 Vet.App. 390, 394 (2009). The Court went on to discuss the difference between congenital diseases, to which the presumptions of soundness and aggravation attach, and congenital defects, to which these presumptions do not apply. See 38 C.F.R. § 3.303(c) (2011) ("Congenital or developmental defects . . . are not diseaes or injuries within the meaning of 3 of applicable legislation."). The Court noted that a General Counsel opinion on the subject distinguishes the two classes of disabilities on the basis that "'a defect differs from a disease in that the former is "more or less stationary in nature" while the latter is " capable of improving or deteriorating."'" Quirin, 22 Vet.App. at 394 (quoting VA Gen. Coun. Prec. 82-90 (July 18, 1990)). The Court further noted that "any worsening–any change at all–might demonstrate that the condition is a disease, in that VA considers defects to be 'more or less' static and immutable." Id. at 395. The Court recommended that the Board obtain medical opinions to assist in the process of properly classifying the congenital conditions. Without such an appropriate classification, the Board is not in a position to determine which party has the burden of proof and what standard of proof applies. If the appellant's pes planus is a preexisting congenital disease, the appellant must first show that the disability increased during service and the Secretary must then prove, by clear and unmistakable evidence, that the increase was due to the "natural progress of the disease." Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). On the other hand, if the condition is a congenital defect, the appellant would have the burden of establishing all the elements of an aggravation claim, under the equipoise standard of 38 U.S.C. § 5107(b), without benefit of the presumption. See G.C. Prec. 82-90 at 3 ("[M]any [congenital] defects can be subject to superimposed disease or injury . . . [in which case] service-connection may indeed be warranted for the resultant disability."). The Board must also include in its decision a written statement of the reasons or bases for its findings and conclusions on all material issues of fact and law presented on the record. That statement must be adequate to enable an appellant to understand the precise basis for the Board's decision and to facilitate informed review in this Court. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert, 1 Vet.App. at 56-57. The 2008 VA examination report was inadequate to support the Board's reasoning on the classification of the appellant's pes planus. In the decision here on appeal, the Board apparently concluded that the appellant's pes planus was a congenital defect. The Board stated: The evidence of record received since January 2007, specifically the June 2008 VA examination report, does not reflect the congenital bilateral pes planus increased in severity due to his time in service. A congenital defect is not an injury or disease for VA compensation puposes. . . There was no showing of superimposed pathology at 4 thetime ofthe[2007] Boarddecisionandnoneshowninevidencereceivedsincethen. R. at 12 (citation omitted). The Board offered no explanation for its apparent conclusion that the appellant's pes planus was a congenital defect, as opposed to a congenital disease. There is no discussion of this matter in the June 2008 medical examination report and the Board does not discuss any medical evidence elsewhere in the record that would support such a conclusion. Therefore, it is an inappropriate medical conclusion on the part of the Board. See Colvin v. Derwinski, 1 Vet.App. 171 (1991). ii. Lack of Evidence on Aggravation Second, the Court agrees with the appellant that the 2008 VA medical examination report contained no discussion whether there was a worsening of the appellant's pes planus in service, much less an increase in disability. The report stated only that the appellant's "[p]es planus (bilaterally) is at least as likely as not (50/50 probability) the same as seen in military service." R. at 257. This statement pertains to a nexus requirement. The opinion says nothing about the critical question, which is whether the appellant's pes planus worsened to the point of an increased disability during his service. The examination is therefore inadequate for failure to describe the disability in sufficient detail to inform the Board as to the salient issue. Having undertaken to provide a medical examination, the report must be adequate. See Barr, supra. In sum, the Board erred in relying on the June 2008 VA examination report and the Board's statement of reasons or bases is inadequate. The Court will set aside the Board's finding that new and material evidence was not submitted to reopen the claim for benefits for pes planus and remand the issue for the Board to obtain additional medical evidence and provide a revised statement of reasons or bases. The Secretary further concedes, and the Court agrees, that the claims for benefits for bilateral knee disorders are inextricably intertwined with the pes planus claim. Accordingly, the Court will set aside the Board's findings on these matters and remand them also. 2. Adequacy of VCAA Notice The appellant further argues that the VA notice letters on which the Board relied failed to satisfy the requirements of the Veterans Claims Assistance Act of 2000 ( VCAA), Pub. L. No. 106- 475, § 3(a), 114 Stat. 2096 (codified in part at 38 U.S.C. § 5103(a)). Specifically, he argues that the 5 letter pertaining to the pes planus condition inaccurately described the reason for the 2007 Board denial and, consequently, the issue to which his evidence must be directed. This Court has indicated that VCAA notice must be tailored to the nature of the claim. See Kent v. Nicholson, 20 Vet.App. 1 (2006). In the case of a claim to reopen, the Secretary must "look at the bases for the denial in the prior decision and . . . [provide] a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial." Id. at 10. The Secretary concedes that "the June 2007 notice letter (the only one addressing new and material evidence) misinformed the Appellant of the prior basis for denial, rendering it inadequate." Secretary's Brief at 5. The Court agrees with the concession. The VCAA notice letter mentioned only the reason for the previous denial of service connection for arthritis; it said nothing about the reason for the denial of service connection for bilateral pes planus. Because the Board declined to reopen the claim based on a lack of new and material evidence directed to an increase in disability, the Court is unable to conclude that the error did not prejudice the appellant. See 38 U.S.C. § 7261(b)(2) (directing Court to take due account of the rule of prejudicial error). He correctly argues that had the notice been correctly given he could have sought and obtained a medical opinion that addressed the issue of in-service aggravation. Therefore, the Court must remand the issue of new and material evidence to reopen the claim for benefits for pes planus for this reason as well. B. Bilateral Foot Disorder The appellant further argues that the Board erred in finding that " theexaminer did not find any objective evidence of a current disability" with regard to the claim for benefits for a bilateral foot disorder. R. at 15. The June 2008 examiner's report acknowledges that the SMRs contain a record of removal of ganglion cysts in service. The examiner diagnosed "[p]lantar fasciitis right foot" (R. at 240), and noted complaints of pain in both feet. The examiner further opined: "Bilateral feet s/p [status post] removal of ganglion cyst (no residuals) is the same as seen in military service but does not account for his current feet pain since the cyst was removed in service . . . . The veteran's plantar fasciitis is not caused by or a result of military experience." R. at 257. As a rationale for his opinion, the examiner elaborated as follows: 6 After surgical removal of the ganglion cyst[s] they did not re-occur. The veteran currently has no ganglion cyst and therefore [they] cannot be the cause of his foot pain . . . The veteran's plantar fasciitis was not noted in the medical records in service and therefore is not caused by or a result of military service. Id. The examiner's rationale is sufficient to establish that the appellant's present foot condition is not linked to the in-service treatment for ganglion cysts. As noted previously, however, the SMRs do contain evidence of in-service plantar foot pain (see R. at 2152), and thus may support service connection by continuity of symptomatology. See 38 C.F.R. § 3.303(b). Continuity of symptomatology may establish service connection if a claimant can demonstrate (1) that a condition was "noted" during service; (2) there is postservice evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. Barr, 21 Vet.App. at 307 (citing Savage v. Gober, 10 Vet.App. 488, 495-96 (1997))."[S]ymptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet.App. at 496. In this case, there is evidence pertaining to all three elements. There was a condition, plantar foot pain, noted in service. There is ample evidence of continuing foot pain and the 2008 VA examiner indicates that the appellant's present plantar fasciitis may explain the continuing postservice foot pain. As the Secretary concedes, the evidence produced in development of the bilateral foot disorder complaint reveals a condition that is within the scope of the filed claim, which the Board must consider. See Clemons v. Shinseki, 23 Vet.App. 1 (2009). Thus, the Court will remand the bilateral foot condition claim for development of the plantar fasciitis issue. C. Residuals of Right Hand Fracture The appellant further argues that the Board erred in failing to assess the effect of reported flareups in his right hand, which allegedlylimit his abilityto grasp tools and perform certain activities such as fishing. This asserted error pertains to the rating period from June 23, 2003, to September 4, 2008. Although the Board acknowledged the reported flareups, it stated: " The VA examiner, however, reported that repeated motions of the hand and fingers had no effect on the Veteran's range of motion, fatigability, weakness, endurance or incoordination." R. at 24. As the appellant argues and the Secretary concedes, the Board conflated the concepts of flareups with the effects of repetitive motion on the day of the examination. That the examiner 7 observed no range of motion effects does not account for the reported flareups in the absence of evidence that the examination was conducted during such a flareup. The Court has indicated that certain conditions subject to flareups must be assessed during a period of flareup. See Ardison v. Brown, 6 Vet.App. 405, 408 (1994). The Secretary has essentially conceded the applicability of this decision to the facts of this case. Accordingly, the Court will set aside the Board's findings with respect to the disability rating for the right hand in the period from June 23, 2003, to September 4, 2008, and remand this matter for further consideration. D. Scar on Left Hand As the Board noted, the rating criteria for scars was amended during the pendency of the apepllant's claim for benefits for residuals of his in-service hand surgery to remove a ganglion cyst. The appellant argues that the Board further erred in failing to apply the current provisions of 38 C.F.R. § 4.118, Diagnostic Code (DC) 7800 in rating the effects of the scar on his left hand. This DC provides for a minimum 10% rating for disfigurement of the head, face, or neck if a scar is present having a width "at least one-quarter inch (0.6 cm.) wide at widest part." 38 C.F.R. § 4.118, DC 7800 (2011). In his reply brief, he intimates that a veteran previously rated under DC 7805 can, under the revised provisions of § 4.118, request review under DC 7800. See Appellant's Reply Brief at 5. The Secretary reiterates the Board's analysis that "although a claimant may request consideration under the amended criteria, the Veteran has not requested such consideration." R. at 25. The appellant responds that there is no need to make such a formal request for a pending claim and that the revised criteria are applicable under Karnas v. Derwinski, 1 Vet.App. 308 (1991), overruled in part by Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Without resolvingthat issue, the Court notes that it is entirelyunclear how the appellant might obtain a higher rating for a scar on his hand by application of a DC directed to disfigurement of the head, face, or neck. Neither the previous version nor the present version of DC 7805, under which the appellant was rated, contain any indication that the provisions of DC 7800 might apply to a rating of scars on the hand. Therefore, the Court concludes that the appellant has not carried his burden of demonstrating error and pleading with some particularity the allegation of error so that the Court is able to review and assess the validity of the appellant's arguments. See Coker v. Nicholson, 19 8 Vet.App. 439, 442 (2006), rev'd on other grounds sub nom. Coker v. Peake, 310 F. App'x 371 (Fed. Cir. 2008) (per curiam order); Hilkert v. West, 12 Vet.App. 145, 151 (1999 ) (en banc). The Court will therefore affirm the Board's findings with respect to the disability rating for the left hand. II. CONCLUSION Based on the foregoing, the Court AFFIRMS the March 15, 2010, Board determination with respect to disability rating for the scar on the appellant's left hand, SETS ASIDE the determinations finding that new and material evidence had not been submitted to reopen the claim for benefits for bilateral pes planus, denying service connection for bilateral knee disorders, denying service connection for bilateral foot disorders, and denying a compensable disability rating for residuals of fractures of right fourth and fifth metacarpals. The Court REMANDS these four set aside matters for further proceedings consistent with this opinion. On remand, the appellant will be free to submit additional evidence and argument in support of his claims for benefits in the remanded matters, and the Board is required to consider any such evidence and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). A final Board decision following the remand herein ordered will constitute a new decision that, if adverse, may be appealed to this Court upon the filing of a new Notice of Appeal with the Court not later than 120 days after the date on which notice of the Board's new final decision is mailed to the appellant. Marsh v. West, 11 Vet.App. 468, 472 (1998). DATED: October 24, 2011 Copies to: Davis J. Lowenstein, Esq. VA General Counsel (027) 9