Wednesday, February 9, 2011

Single Judge Application of Buchanan v. Nicholson, 451 F.3d and McLendon v. Nicholson, 20 Vet.App.; Lay Evidence Unsubstantiated by Medical Evidence

Excerpts from Decision below:

"Thus, even though the Board accepted the appellant's lay assertions regarding noise exposure as "credible and accurate," it is not clear to the Court the extent to which the examiner accepted the appellant's lay testimony regarding noise exposure. This confusion renders the examination inadequate because "[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion . . . that contributes probative value to a medical opinion." Nieves-Rodriguez v. Peake, 22 Vet.App.295,304 (2008); see also Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007) (a medical examination is adequate "where it is based upon consideration of the veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's '"evaluation will be a fully informed one"'" (quoting Ardison v. Brown, 6 Vet.App. 405, 407 (1994) (quoting Green v. Derwinski, 1 Vet.App. 121, 124 (1991))))."
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"The Court also finds that the 2008 VA audiology examination is inadequate
with regard to the appellant's claim for entitlement to service connection for tinnitus. The examiner's opinion is inadequate because the sole rationale provided to support his conclusion that the appellant's tinnitus is unrelated to service is the absence of complaints of tinnitus in the appellant's SMRs and discharge examination. R. at 47. The Court notes that this is the same rationale that was provided by the 2005 VA medical examiner, which was found inadequate by the Board in its September 2008 remand.
The Board may not rely on a medical opinion that impermissibly rejects the
veteran's lay history solely because it is not corroborated by medical records. Buchanan v. Nicholson, 451 F.3d 1331, 1336 n.1 (Fed. Cir. 2006) (noting that VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim of service connection could be proven without contemporaneous medical evidence"); see also McLendon v. Nicholson, 20 Vet.App.79,85(2006)(concluding that the lack of actual evidence does not constitute substantive negative evidence). Here, the examiner failed to discuss the etiology of the appellant's tinnitus in relation to his reported history of noise exposure during service and therefore the Board's reliance on the examiner's report was error. See Buchanan and Stefl, both supra.
Accordingly, because VA did not comply with the terms of the Board's
September 2008 remand order, and the Board based its decision on an inadequate medical opinion, the Court will remand the matter to the Board so that it may ensure compliance with the September 2008 remand order. See Stefl, 21 Vet.App. at 124 (holding that a remand is appropriate when the Board relied upon an inadequate medical examination to deny the appellant's claim); Bowling v. Principi, 15 Vet.App. 1, 12 (2001) (citing 38 C.F.R. § 19.9(a) (2000) when holding that the Board has a duty to remand a case "[i]f further evidence or clarification of the evidence or correction of a procedural defect is essential for a proper appellate decision"); see also Stegall, 11 Vet.App. at 271 (holding that remand by this Court or the Board confers on the veteran the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms); Hicks v. Brown, 8 Vet.App. 417, 422 (1995) (concluding that an inadequate medical evaluation frustrates judicial review); Green, supra; 38 C.F.R. § 4.2 (2010) ("If a diagnosis is not

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supported bythe findings on the examination report or if the report does
not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes.")."
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-0961
DAVID P. SEWELL, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

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

SCHOELEN, Judge: The appellant, David P. Sewell, appeals through counsel a
February
19, 2009, Board of Veterans' Appeals (Board) decision that denied his
claims for entitlement to service connection for bilateral hearing loss and tinnitus. Record of Proceedings (R.) at 3-12. This appeal is timely, and the Court has jurisdiction to review the Board's decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). Because the Board failed to ensure compliance with its
September 2008 remand order and based its decision on an inadequate medical opinion, the Court will vacate the Board's February 19, 2009, decision and remand the matter for further adjudication.

I. BACKGROUND
The appellant served on active duty in the U.S. Army from June 1972 to
June 1975. R. at
506. The appellant's service medical records (SMRs) are negative for any
complaints related to
hearing loss and Previous HittinnitusNext Hit. R. at 358-440. In addition, audiometric testing
conducted as part of his
enlistment and separation examinations reveal that his hearing fell within
normal limits. R. at 413-
14, 419-20.


On August 9, 2004, the appellant filed a claim for entitlement to service
connection for
bilateral hearing loss and Previous HittinnitusNext Hit. R. at 312-22. The appellant claimed
that his disabilities arose
from exposure to noise during service. R. at 318. In particular, the
appellant claimed that he worked
as a crew member on a Mohawk twin turbine engine plane and worked on
flight lines as an airborne
sensor specialist. Id. He also indicated that he worked in office
situations since service and denied
postservice noise exposure. Id.
At a September 2004 VA medical examination, the appellant again reported
that his hearing
loss and Previous HittinnitusNext Hit were caused by noise exposure during service. R. at 294-
96. The examiner
diagnosed mild to moderately severe sensorineural hearing loss, but
refused to provide an etiology
opinion because the appellant's SMRs were not available for review. R. at
296. The examiner
subsequentlyreceived the appellant's SMRs and opined that the appellant's
hearing loss and Previous HittinnitusNext Hit
are not as likely as not related to his military service. R. at 111. In
support of this conclusion, the
examinerstatedthattheappellant's audiogramsatenlistment
andseparationrevealed normalhearing
and there is no mention of Previous HittinnitusNext Hit complaints in the SMRs. Id.
In June 2005, a VA regional office (RO) denied the appellant's claims. R.
at 105-10. The
appellant filed a timely Notice of Disagreement, and later perfected his
appeal to the Board. R. at
81, 104. In a September 11, 2008, order, the Board remanded the
appellant's claims to the RO to
obtain "a well reasoned medical opinion that takes into account the
veteran's noise exposure in
service." R. at 6-7. Accordingly, the Board's remand order directed the
following:
Afford the appellant a VA audiology examination to ascertain the etiology
of his bilateral hearing loss and tinnitus. The claims file must be made
available for review of pertinent documents therein in connection with the examination. The examiner should be asked to review and comment on the evidence of record, to include the veteran's service records and service treatment records, and determine whether:
a) the appellant had acoustic trauma in service; specifically addressing
whether appellant's service duties, to include as an airborne sensor specialist,
exposed him to acoustic trauma; and
b) whether it is at least as likely as not . . . that the veteran's
present bilateral hearing loss and tinnitus are related to his military service.
R. at 68.

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Following the Board's remand, the appellant was examined on November 3,
2008. R. at 46-47. The examiner reported that he reviewed the appellant's claims file, conducted a hearing examination, and diagnosed the appellant as having "moderately-severe, high frequency, sensorineural hearing loss . . . in both ears." R. at 46. The examiner concluded as follows:
It has been requested that the etiology of the veteran's hearing loss be
defined.
Unless a detailed record of noise exposure and frequent audiological data
from the time of discharge is provided[,] no such opinion regarding the etiology of
the veteran's hearing loss can be provided. [W]hat can be provided is what the
etiology is NOT and that is military service. Review of the C-file revealed hearing
tests showing that he entered the military with hearing within normal limits and
separated with hearing within normal limits. This clearly indicates his hearing loss
did not occur while in the military and that it is less likely than not his
hearing loss is service connected. Current research does not support the concept of delayed onset of hearing loss. Therefore any increased loss of hearing after discharge is more than likely to be due to other factors which cannot be defined. The veteran stated that his tinnitus began while in the military. The record revealed several medical consultations including maladies of the head and neck region but tinnitus was not one of them. He did not complain of tinnitus when discharged. Therefore it is less likely than not that his tinnitus is service connected. R. at 46-47.
On February 19, 2009, the Board denied the appellant's claims for
entitlement to service connection for bilateral hearing loss and tinnitus. This appeal followed.

II. ANALYSIS
The appellant argues that the Board failed to ensure compliance with the
September 2008 Board's remand instructions in violation of Stegall v. West, 11 Vet.App. 268, 271 (1998), and consequently relied on an inadequate medical opinion. Appellant's Brief (Br.) at 3-6. In particular, the appellant complains that the VA examiner failed to determine whether he sustained acoustic trauma in service. Id. at 3. He asserts that it is not at all clear that the examiner's opinion would have remained the same had he confirmed the appellant's acoustic trauma in service. Id. at 5-6. The Secretary argues in response that although the examiner did not specifically opine as to this matter, the Board conceded that the appellant was exposed to significant noise in service and therefore a remand would serve no useful purpose. Secretary's Br. at 6-7. The Court disagrees.

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In the decision on appeal, the Board acknowledged that the "examiner did
not provide an answer to the Board's September 2008 remand question as to whether the [v]eteran's duties as a[n] airborne sensor specialist exposed him to acoustic trauma." R. at 6. Nonetheless, the Board concluded that the examiner "substantially complied" with the Board's remand instructions and proceeded to rely on the examiner's opinion to deny the appellant's claim.Id.; see D'Aries v. Peake,
22 Vet.App. 97, 105 (2008) (substantial compliance, not strict compliance,
is required under Stegall). In doing so, the Board noted that the examiner reviewed the claims file, which contained the appellant's assertions regarding noise exposure during service, and provided an opinion that the appellant's hearing loss was unrelated to service. R. at 6-7. While this appears to be technically correct, the examiner's opinion is confusing because he begins by stating: "Unless a detailed record of noise exposure and frequent audiological data from the time of
discharge is provided[,] no such opinion regarding the etiology of the veteran's hearing loss can be provided." R. at 46-47. Thus, even though the Board accepted the appellant's lay assertions regarding noise exposure as "credible and accurate," it is not clear to the Court the extent to which the examiner accepted the appellant's lay testimony regarding noise exposure. This confusion renders the examination inadequate because "[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion . . . that contributes probative value to a medical opinion." Nieves-Rodriguez v. Peake, 22 Vet.App.295,304 (2008); see also Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007) (a medical examination is adequate "where it is based upon consideration of the veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's '"evaluation will be a fully informed one"'" (quoting Ardison v. Brown, 6 Vet.App. 405, 407 (1994) (quoting Green v. Derwinski, 1 Vet.App. 121, 124 (1991)))). Given that the Board remanded the appellant's claims in 2008 for VA to obtain "a well reasoned medical opinion that takes into account the veteran's noise exposure in service," the Court cannot agree that the examiner substantially complied with the Board's remand order. Instead, much like the examiner in the 2005 examination, the examiner in the 2008 examination appears to rely heavily on the fact that the veteran's hearing was normal upon separation from service to conclude that his hearing loss is unrelated to military service without explaining the significance, if any, of such noise exposure.

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The Court also finds that the 2008 VA audiology examination is inadequate
with regard to the appellant's claim for entitlement to service connection for tinnitus. The examiner's opinion is inadequate because the sole rationale provided to support his conclusion that the appellant's tinnitus is unrelated to service is the absence of complaints of tinnitus in the appellant's SMRs and discharge examination. R. at 47. The Court notes that this is the same rationale that was provided by the 2005 VA medical examiner, which was found inadequate by the Board in its September 2008 remand.
The Board may not rely on a medical opinion that impermissibly rejects the
veteran's lay history solely because it is not corroborated by medical records. Buchanan v. Nicholson, 451 F.3d 1331, 1336 n.1 (Fed. Cir. 2006) (noting that VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim of service connection could be proven without contemporaneous medical evidence"); see also McLendon v. Nicholson, 20 Vet.App.79,85(2006)(concluding that the lack of actual evidence does not constitute substantive negative evidence). Here, the examiner failed to discuss the etiology of the appellant's tinnitus in relation to his reported history of noise exposure during service and therefore the Board's reliance on the examiner's report was error. See Buchanan and Stefl, both supra.
Accordingly, because VA did not comply with the terms of the Board's
September 2008 remand order, and the Board based its decision on an inadequate medical opinion, the Court will remand the matter to the Board so that it may ensure compliance with the September 2008 remand order. See Stefl, 21 Vet.App. at 124 (holding that a remand is appropriate when the Board relied upon an inadequate medical examination to deny the appellant's claim); Bowling v. Principi, 15 Vet.App. 1, 12 (2001) (citing 38 C.F.R. § 19.9(a) (2000) when holding that the Board has a duty to remand a case "[i]f further evidence or clarification of the evidence or correction of a procedural defect is essential for a proper appellate decision"); see also Stegall, 11 Vet.App. at 271 (holding that
remand by this Court or the Board confers on the veteran the right to VA
compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms); Hicks v. Brown, 8 Vet.App. 417, 422 (1995) (concluding that an inadequate medical evaluation frustrates judicial review); Green, supra; 38 C.F.R. § 4.2 (2010) ("If a diagnosis is not

5

supported by the findings on the examination report or if the report does
not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes.").
Given this disposition, the Court will not at this time address the remaining arguments and issues raised by the appellant. See Best v. Principi, 15 Vet.App. 18, 20 (2001). "A narrow decision preserves for the appellant an opportunity to argue those claimed errors before the Board at the readjudication, and, of course, before this Court in an appeal, should the Board rule against him." Id. On remand, the appellant is free to submit additional evidence and argument on the remanded
matter, and the Board is required to consider any such relevant evidence
and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002) (stating that, on remand, the Board must consider additional evidence and argument in assessing entitlement to benefit sought); Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). The Court has held that "[a] remand is meant
to entail a critical examination of the justification for the decision."
Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991). The Board must proceed expeditiously, in accordance with 38 U.S.C. §7112(requiring Secretary to provide for "expeditious treatment" of claims remanded by the Court).

III. CONCLUSION
After consideration of the appellant's and the Secretary's pleadings, and
a review of the record, the Board's February19, 2009, decision is VACATED and the matter is REMANDED to the Board for further proceedings consistent with this decision.

DATED: January 20, 2011
Copies to:
Jeffrey J. Bunten, Esq.
VA General Counsel (027)
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Single Judge Application of Shade v. Shinseki, 24 Vet.App.; Whether Evidence Can Reasonably Substantiate the Claim

This single judge's reasoning does give some insight into the low threshold to reopen found in Shade and his views that "VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118."

Excerpts from Single Judge Decision below:

==============================================================
"The threshold for determining whether new and material evidence raises a reasonable
possibility of substantiating a

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claim is "low." See Shade v. Shinseki, 24 Vet.App. 110, 117 (2010).
Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be
reopened, either by triggering the Secretary's duty to assist or through
consideration of an alternative theory of entitlement. Id. at 118. Finally, when evaluating whether evidence justifies reopening a claim, the Board is required to discuss the reasons or bases for its findings and conclusions on material issues of fact and law. Allday v. Brown, 7 Vet.App. 517, 527 (1995).
"

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The Board further explained that the
evidence failed to show any relationship between the appellant's current
degenerative disc disease of the lumbar spine and his active military service Id. However, in coming to this conclusion the Board applied the wrong legal standard.
As stated earlier, when evaluating the materiality of newly submitted
evidence, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, but rather should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory. See Shade, supra.
Accordingly, it was error for the Board to focus solely on whether the appellant's newly submitted evidence could provide the nexus that was found to be missing in 1997. Id.

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Accordingly, it appears that the appellant's newly submitted evidence
could reasonably result in an award of service connection if his claim was reopened under the low standard contemplated by law. See Shade, surpa. This is because the new evidence, if found competent and credible, could allow the appellant to achieve service connection for his DDD under continuity of symptomatology. See Savage v. Gober, 10 Vet.App. 488, 495 (1997) (explaining that continuity of symptomatology is a distinct and separate path to service connection); 38 C.F.R. § 3.303(b) ( 2010).

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-0360
RUSSELL J. GEORGE, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

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

LANCE, Judge: The appellant, Russell J. George, through counsel, appeals a
December 15, 2008, Board of Veterans' Appeals (Board) decision that denied a reopening of his claim for entitlement to service connection for a low-back disability. Record (R.) at 3. Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). This appeal is timely, and the Court has jurisdiction over the case pursuant to 38 U.S.C.
§§ 7252(a) and 7266. For the reasons set forth below, the Court will vacate the Board's decision and remand the matter for further proceedings consistent with this decision.

I. BACKGROUND
The appellant served on active duty in the U.S. Army from June 1965 to May
1967. R. at 615. In April 1966, while the appellant was in service, he was
hospitalized for acute lumbar strain; however, upon discharge from the hospital the appellant was found asymptomatic. R. at 816-18.
Upon discharge from the Army, the appellant's spine was found to be normal.
R. 812-20. In July 1994, the appellant filed a claim seeking service connection for a low-back condition based on the lumbar strain he suffered in 1966. R. at 807-11. In October 1994, this claim was denied by the Sioux Falls, South Dakota, regional office (RO). R. at 635.
The appellant's case was appealed to the Board, but the Board continued to deny the appellant service connection. R. at 636.
The Board acknowledged the appellant's assertions and the medical evidence
that was submitted; however, it concluded that the evidence of record did not clearly establish that the appellant had a currently diagnosed low-back disorder and that it failed to link any low-back disorder to an in-service incident. R. at 639-40.
In April 2004, the appellant requested that VA reopen his low-back
disorder claim. R. at 610-12. In support of his request, the appellant submitted multiple medical records and lay testimony stating that he had suffered from back pain since his time in service. R. at 49-59, 184, 321, 484-93, 579-80, 587-89, 610. In September 2004, the Indianapolis, Indiana, RO declined to reopen the appellant's claim. R. at 4. His claim was appealed to the Board. R. at 3. In the decision
on appeal, the Board found that the appellant had not submitted new and
material evidence that would allow his low-back claim to be reopened. Id.

II. ANALYSIS
In his briefing materials, the appellant maintains that his case must be
remanded for the Board to provide an adequate statement of reasons or bases because the Board did not specifically discuss 1) a July 2004 medical report by Doctor Steven J. Svabek, and 2) a statement from his brother asserting that the appellant complained of back pain after leaving the Army. Appellant's Brief (Br). at 6-9; Reply Br. at 2-4. After consideration of the pleadings and the record, the Court
agrees with the appellant.
As a matter of law, a previously disallowed claim can be reopened upon the
submission of new and material evidence. Woehlaert v. Nicholson, 21 Vet.App. 456, 460 (2007) (citing 38 U.S.C. §§ 5108, 7105(c)). The evidence "must be both new and material." Smith v. West, 12 Vet.App. 312,314 (1999). "New" evidence means "evidence not previously submitted to agency decision makers."
38 C.F.R. § 3.156(a) (2010). "Material evidence means existing evidence
that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim." Id. "New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened,
and must raise a reasonable possibility of substantiating the claim." Id.
The threshold for determining whether new and material evidence raises a reasonable
possibility of substantiating a
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claim is "low." See Shade v. Shinseki, 24 Vet.App. 110, 117 (2010).
Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be
reopened, either by triggering the Secretary's duty to assist or through
consideration of an alternative theory of entitlement. Id. at 118. Finally, when evaluating whether evidence justifies reopening a claim, the Board is required to discuss the reasons or bases for its findings and conclusions on material issues of fact and law. Allday v. Brown, 7 Vet.App. 517, 527 (1995).

In this case, the Board, in evaluating the evidence submitted by the
appellant, found first that the last prior denial of his claim in 1997 was based on a lack of medical evidence relating his low-back disorder to his in-service accident. R. at 10. The Board then found that much of the evidence received since the 1997 Board decision was "'new' in that it was not of record at the time" of the prior decision, but that the evidence was not "'material' because it d[id] not raise a reasonable possibility of substantiating the [appellant's] claim." R. at 11. The Board further explained that the evidence failed to show any relationship between the appellant's current degenerative disc disease of the lumbar spine and his active military service Id. However, in coming to this conclusion the Board applied the wrong legal standard.
As stated earlier, when evaluating the materiality of newly submitted
evidence, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, but rather should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory. See Shade, supra.
Accordingly, it was error for the Board to focus solely on whether the appellant's newly submitted evidence could provide the nexus that was found to be missing in 1997. Id.

Furthermore, this error would appear to be prejudicial, as Dr. Svabek's July 2004 medical report and the statement from the appellant's brother might meet the low threshold for reopening his low-back disability claim.
In this regard, the Court notes that Dr. Svabek's opinion provides a clear
and current diagnosis of degenerative disk disease (DDD), along with a statement that the appellant has a long history of back pain. R. at 587-589. The Court also observes that the statement from the appellant's brother asserts that the appellant entered the Army free of back pain, but had back problems after discharge and has complained of back pain to this day. R. at 184. This evidence is significant as
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the Board found in 1997 that it was "unclear if the veteran had a currently diagnosed low back disorder" and dismissed the appellant's then submitted evidence on continuity of symptomatology because it found that the appellant's testimony could not link his symptoms to a condition. R. at 639.
Accordingly, it appears that the appellant's newly submitted evidence could reasonably result in an award of service connection if his claim was reopened under the low standard contemplated by law. See Shade, surpa. This is because the new evidence, if found competent and credible, could allow the appellant to achieve service connection for his DDD under continuity of symptomatology. See Savage v. Gober, 10 Vet.App. 488, 495 (1997) (explaining that continuity of symptomatology is a distinct and separate path to service connection); 38 C.F.R. § 3.303(b) ( 2010). Alternatively, it may be sufficient to trigger the Secretary's duty to obtain a medical opinion. See McLendon v. Nicholson, 20 Vet.App. 79, 81 (2006). Accordingly, the Board's decision must be vacated so that it can provide an adequate explanation for its rejection of both law and evidence material to the potential reopening of the appellant's claim. See Allday, supra.
Accordingly, the Court will vacate the December 15, 2008, Board decision.
On remand, the appellant is free to submit additional evidence and argument, including the arguments raised in his briefs to this Court, in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order), and the Board must consider any such evidence or argument submitted. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Board shall proceed expeditiously, in accordance with 38 U.S.C. §§ 5109B, 7112 (requiring Secretary to provide for "expeditious treatment" of claims remanded by Board or Court).

III. CONCLUSION
After consideration of the appellant's and the Secretary's briefs, and a
review of the record, the Board's December 15, 2008, decision is VACATED and the matter is REMANDED to the Board for further proceedings consistent with this decision.
DATED: January 26, 2011
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Copies to:
Daniel G. Krasnegor, Esq.
VA General Counsel (027)
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