Monday, May 2, 2011

Single Judge Application, Evidentiary Guidlines, Medical Evidence, Competent Evidence, Jandreau v. Nicholson, 492 F.3d; Waters v. Shinseki, 601 F.3d

Excerpt from decision below:
"In any event, the Board admitted, on the one hand, that Mr. Byrd was competent to report his hallucinations, but required, on the other hand, competent medical evidence to substantiate these hallucinations. This is contrary to Jandreau v.
Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007), which held that lay
testimony is competent evidence of observable symptoms. See also Waters v. Shinseki, 601 F.3d 1274, 1277 (Fed. Cir. 2010) (noting that "medical evidence" and "competent evidence" are "separate, although perhaps related, evidentiary guidelines").

Moreover, the Board seemingly rejected Mr. Byrd's reported hallucinations because they were not "persistent," as described in the rating criteria for a 100%
disability rating. 38 C.F.R. § 4.130.
However, although auditory and visual hallucinations are not explicitly
mentioned in the criteria for any lesser disability rating, the Board is not precluded from considering evidence of occasional hallucinations in concert with the assignment of a lesser disability rating. See Mauerhan, 16 Vet.App. at 442 (explaining that "the factors listed in the rating formula are 'examples' of
conditions that warrant particular ratings"). Consequently, the Court
concludes that the Board's statement of reasons or bases is inadequate and remand is therefore warranted. See Gilbert,
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-0479
JAMES E. BYRD, 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: James E. Byrd appeals through counsel a February 2, 2009,
Board of
Veterans' Appeals (Board) decision denying entitlement to a disability
rating in excess of 30% for
post-traumatic stress disorder for the period of October 17, 2002, to
November 13, 2005. Record
(R.) at 3-22. The Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a)
and 7266(a) to review the
February2009Boarddecision.
BecausetheBoardfailedtoprovideanadequatestatementofreasons
or bases for its decision, the Court will vacate the February 2, 2009,
Board decision and remand the
matter for readjudication consistent with this decision.
I. FACTS
Mr. Byrd served on active duty in the U.S. Army from July 1967 to July
1969, including
service in Viet Nam.
In October 2002, Mr. Byrd filed a claim for VA benefits for post-traumatic
stress disorder.
Later that month, Mr. Byrd sought treatment for an undiagnosed psychiatric
condition that he
characterized as post-traumatic stress disorder and reported that he had "
been drinking a quart of
alcohol [a] day for many years." R. at 320. The physician informed Mr.
Byrd that "he could neither
be assessed nor treated for [post-traumatic stress disorder] until he ha[d]
at least 60 days of


documented sobriety." R. at 320. In November 2002, Mr. Byrd was
hospitalized at a VA medical
center for a period of 33 days. The treating physician acknowledged that
Mr. Byrd suffered from
post-traumatic stress disorder symptoms such as inability to sleep, fitful
sleep, nightmares, and
exaggerated startle response, but explained that Mr. Byrd denied suicidal
or homicidal ideation and
had no history of suicide attempts. The VA physician also noted that Mr.
Byrd reported being
violent in self-defense, including an incident of road rage where he "shot
a man in the cheek." R.
at 318. Upon discharge, he was found to be psychologically stable and
competent.
In March 2003, Mr. Byrd underwent a VA medical examination and reported
that he
experiencedflashbacks, nightmares,problemssleeping,wakingupfighting,
andheightenedreactions
to sound, but denied suicidal and homicidal ideation and auditoryor visual
hallucinations. Although
Mr. Byrd stated that he had a good relationship with his wife, he admitted
being irritable and angry
and avoiding other social relationships. The VA examiner described Mr.
Byrd as prone to
"vindictive behavior" and explained that he experienced "excessive anxiety,
tension, nervousness,
and depression," as well as "chronic feelings of insecurity," "withdraw[al]
from social interactions,"
and "avoidant behavior[] and intrusive thoughts." R. at 304, 306. The
examiner diagnosed Mr. Byrd
with post-traumatic stress disorder and alcohol dependence and assigned a
Global Assessment of
Functioning Score of 55.1
With regard to his employment history, the examiner noted that Mr. Byrd
hadworkedforanautomobilemanufacturerfrom1969to 2002andhadreceivedseveral
suspensions
from work for insubordination and aggressiveness, but was now "retired
from competitive
employment and likely unemployable for any other employment at [that] time
." R. at 306.
In April 2003, a VA regional office awarded Mr. Byrd a 30% disability
rating for post-
traumatic stressdisordereffectiveOctober17,2002. Mr.Byrdfileda
timelyNotice of Disagreement
with this decision and subsequently perfected his appeal. In a September
2004 hearing before the
Board, Mr. Byrd testified that he would "go off" on his wife three to four
times a week and that he
did not socialize with many people. R. at 214, 223. In December 2004, the
Board remanded Mr.
Byrd's claim for another VA medical examination.
A Global Assessment of Functioning score represents "the clinician's
judgment of the individual's overall level
of functioning" and is "useful in planning treatment and measuring its
impact[ ] and in predicting outcome." DIAGNOSTIC
AND STATISTICALMANUALOF MENTALDISORDERS 30 (4th ed. 1994); see Richard v.
Brown, 9 Vet.App. 266, 267 (1996).
1
2


In September 2005, Mr. Byrd presented at a VA medical center with
complaints of sleep
disturbances, irritability, memoryproblems, poor concentration, decreased
energyand appetite, and
depression. Mr. Byrd denied suicidal and homicidal ideation and reported "
visual hallucination[s]
of seeing shadows while driving at night," which the VA physician
characterized as "questionable."
R. at 195-96. The physician also stated that Mr. Byrd's speech was "clear,
coherent, and goal
directed,"hehad"[n]o grosscognitive impairment,"andwasconsidereda"low"
riskto harmhimself
and others. R. at 195-96. The physician diagnosed him with post-traumatic
stress disorder and
hypertension, assigned him a Global Assessment of Functioning score of 60,
and prescribed
medication "to help his paranoid thought and sleep disturbance." R. at 196.
In November 2005, Mr. Byrd underwent another VA medical examination. Mr.
Byrd
described himself as "averyangryindividual" who "is capable of great
violence, including homicide
when provoked" and "is quick to anger with only minor provocation." R. at
145. He also reported
experiencingpanic attacks, anxiety, depression, irritability, chronic
difficulties with anger including
sudden outbursts, intolerance, poor motivation, and passive thoughts of
death one or two times per
week, but denied suicidal and homicidal ideation, auditory and visual
hallucinations, paranoia, and
delusions. The VA examiner diagnosed him with severe post-traumatic stress
disorder, alcohol
dependence, depression, and dysthymia, and assigned a Global Assessment of
Functioning score of
40. The examiner explained that Mr. Byrd suffered from "major impairment
in such areas as work,
school, family relations, judgment and mood," had no friends, and suffered
from "frequent panic
attacks and frequent passive suicidal thoughts," and opined that Mr. Byrd
was unemployable. R. at
147.
The examiner attributed the "worsening of his [post-traumatic stress
disorder]
symptomatology" to "his retirement, increased free time, and . . . current
events, such as the [w]ar
in Iraq and his response to the difference in civilian treatment of Iraqi
veterans compared to Vietnam
veterans." Id.
In December 2005, the regional office awarded Mr. Byrd staged disability
ratings for his
post-traumaticstressdisorder,assigninga30%disabilityratingfromOctober17,
2002,to November
13, 2005, and a 50% disability rating thereafter. In March 2007, the Board
denied Mr. Byrd's claim
for a further increase of the staged disability ratings assigned by the
regional office in December
2005. Mr. Byrd appealed the Board decision, and in October 2007, the Court
granted the parties'
3


joint motion for remand, which instructed the Board to "further address"
Mr. Byrd's "increase in
symptomatology [since] June 2002." R. at 88.
After further development, including a January 2008 Board decision and a
June 2008 joint
motion for remand granted by the Court, Mr. Byrd submitted an October 2008
private medical
opinion addressinghis increasedpost-
traumaticstressdisordersymptomsbetweenOctober2002and
November2005. Although the private physician did not personallyexamineMr.
Byrd,the physician
based his opinion on "a thorough review of available medical documentation
[,] including two [VA
e]xaminations dated March 13, 2003, and November14, 2005." R. at 28.
Specifically, the physician
opined that "Mr. Byrd has suffered from a severe and debilitating form of [
post-traumatic stress
disorder]," with a significant "history of and capacity for anger and
violence." R. at 29. The
physician concluded that Mr. Byrd's "level of severe anger[,] which has
been a documented and
significant part of his [post-traumatic stress disorder] since at least
2002[,] renders [him] severely
disabled and unemployable since 2002." Id.
In February 2009, the Board issued the decision currently on appeal, which
denied
entitlement to a disability rating in excess of 30% for post-traumatic
stress disorder for the period
of October17, 2002, to November13, 2005. Specifically, the Board reviewed
theevidence of record
and determined that Mr. Byrd's symptoms of post-traumatic stress disorder,
including "nightmares
and chronic sleeping problems, hypervigilance, anxiety, tension,
nervousness, moderate to severe
depression, avoidant behavior, anger and irritability, and intrusive
thoughts," "most closely
approximate the criteria for a 30[% disability] rating under [Diagnostic
Code] 9411." R. at 21. The
Board also referred the issue of entitlement to a total disability rating
based on individual
unemployability to the regional office and found that "the extent to which [
Mr. Byrd] might be
unemployable due to his [post-traumatic stress disorder], but does not
meet the criteria for a rating
in excess of 30[%] prior to November 14, 2005 . . . is properly considered
in [his] total disability
rating due to individual unemployab[i]lity claim . . ., which has been
referred to the [regional
office]."2
In addition, the Board noted that Mr. Byrd was competent to report his
auditoryand visual
2
There is no such thing as a freestanding claim for a total disability
rating based on individual unemployability.
A request for entitlement to a total disability rating based on individual
unemployability "involves an attempt to obtain
an appropriate rating for a disability or disabilities, either as part of
the initial adjudication of a claim, or . . . as part of
a claim for increased compensation." Rice v. Shinseki, 22 Vet.App. 447,
453-54 (2009).
4


hallucinations but "not competent to diagnose himself as being psychotic,
having gross impairment
in thought processes, or as being delusional due to a psychiatric
condition." R. at 19. Accordingly,
the Board determined that there was no competent medical evidence of
hallucinations or delusional
behavior. Finally, the Board discounted the October 2008 private medical
opinion because the
physician who rendered the opinion did not personally examine Mr. Byrd.
II. ANALYSIS
A. Board's Determination of Appropriate Disability Rating
Mr. Byrd first argues that the Board's determination that he was not
entitled to a disability
rating in excess of 30% for his post-traumatic stress disorder for the
period of October 17, 2002, to
November 13, 2005, was clearlyerroneous. Specifically, he contends that,
because the March 2003,
November 2005, and October 2008 medical opinions indicated that he was
unemployable, he is
necessarily entitled to a disability rating in excess of 30%. The Court
disagrees.
Mr. Byrd is correct that the regulation for rating mental disorders,
including post-traumatic
stressdisorder,speaksin termsof"[o]ccupationalandsocialimpairment." 38C.F.
R. §4.130(2010).
However, the fact that the medical opinions of record indicate that Mr.
Byrd is unemployable does
not compel the conclusion that he is automatically entitled to a 100%
schedular disability rating for
"[t]otal occupational and social impairment," or even to a disability
rating in excess of 30%, which
represents "[o]ccupational and socialimpairmentwithoccasionaldecrease[s]
in work efficiencyand
intermittent periods of inability to perform occupational tasks." Id. The
disability ratings outlined
in the rating schedule "represent . . . the average impairment in earning
capacity resulting from . . .
diseases and injuries and their residual conditions in civil occupations."
38 C.F.R. § 4.1 (2010).
Because the degrees of disability specified in the rating schedule are
generally"considered adequate
to compensate for considerable loss of working time from exacerbations or
illnesses proportionate
to the severity of the several grades of disability," id., the Board may
evaluate evidence of
unemployability and determine the appropriate schedular disability rating
to be assigned, including
a disability rating that is less than total. See Wood v. Derwinski, 1 Vet.
App. 190, 193 (1991) ("The
[Board] has the duty to assess the credibility and weight to be given to
the evidence.").
5


Here,theBoardconsideredtheevidenceofunemployabilityin
therecordanddeterminedthat
"the record does not reflect occupational and social impairment due to
. . . the symptoms listed in
the criteria for a 50[% disability] rating under [Diagnostic Code] 9411,
or any symptoms that could
be considered to approximate the severity [of] such symptomatology." R. at
17. This is precisely
the sort of factual finding that is contemplated by the rating schedule,
see 38 C.F.R. § 4.1, and that
is uniquely within the purview of the Board, see Wood, 1 Vet.App. at 193.
Moreover, to the extent
that Mr. Byrd asserts that the "uncontroverted entirety of the evidence"
compels the assignment of
a higher disability rating, Appellant's Br. at 14, this argument amounts
to nothing more than a
disagreement with the way the Board weighed the evidence. See Washington v.
Nicholson,
19 Vet.App. 362, 369 (2006) (holding that it is the Board's responsibility
to determine the
appropriate weight to be given to evidence). Although the Court may have
decided this issue
differently in the first instance, the Court may not substitute its
judgment for the determinations of
the Board on issues of material fact. Hersey v. Derwinski, 2 Vet.App. 91,
94 (1992). Accordingly,
the Court concludes that the Board's determination that Mr. Byrd was not
entitled to a disability
rating in excess of 30% for his post-traumatic stress disorder for the
period of October 17, 2002, to
November 13, 2005, was not clearly erroneous. See Smallwood v. Brown, 10
Vet.App. 93, 97
(1997).
In addition, the record does not support Mr. Byrd's assertion that the
Board declined to
consider evidence of unemployability in assigning a schedular disability
rating for post-traumatic
stress disorder because it was only "properly considered" in the context
of the referred issue of
entitlement to a total disability rating based on individual
unemployability. Appellant's Br. at 14
(quoting R. at 17). Rather, the Board explicitly considered this evidence
and determined that it was
insufficient to warrant the assignment of a disability rating greater than
30%. The Board then
explained "that the extent to which [Mr. Byrd] might be unemployable due
to his [post-traumatic
stress disorder], but does not meet the criteria for a [disability] rating
in excess of 30[%] . . . is
properly considered" in conjunction with the referred issue of entitlement
to a total disability rating
based on individual unemployability. R. at 17; see Previous DocumentLocklearNext Document v. Shinseki, __
Vet.App. __, __, No. 09-
2675, slip op. at 9, 2011 WL 474693 at *6 (Feb. 11, 2011) ("[T]he criteria
for entitlement to [a total
disability rating based on individual unemployability] differs from [a]
schedular rating [for a mental
6


disorder]."). Accordingly, the Court concludes that Mr. Byrd has failed
to carry his burden of
demonstrating error in this regard. See Hilkert v. West, 12 Vet.App. 145,
151 (1999).
B. Reasons or Bases
Mr. Byrd next contends that the Board's statement of reasons or bases for
its decision was
inadequate because the Board (1) ignored evidence of unemployability; (2)
treated the criteria in the
rating schedule as requirements for assigning a higher disability rating
in violation of Mauerhan v.
Principi, 16 Vet.App. 436, 442 (2002); (3) improperlydiscounted the
October 2008 private medical
opinion; (4)improperlyrejectedevidenceofauditoryandvisual hallucinations;(
5) failedto consider
the November 2005 VA medical examination; and (6) failed to consider
whether Mr. Byrd was
entitled to a temporary 100% disability rating pursuant to 38 C.F.R. § 4.
29.
In rendering its decision, the Board is required to provide 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." 38 U.S.C. § 7104(d)(1). The statement must be adequate to enable
a claimant to understand
the precise basis for the Board's decision, as well as to facilitate
review in this Court. See Gilbert
v. Derwinski, 1 Vet.App. 49, 57 (1990). To comply with this requirement,
the Board must 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. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995),
aff'd per curiam,
78 F.3d 604 (Fed. Cir. 1996) (table). The Board may commit error requiring
remand when it fails
to provide an adequate statement of its reasons or bases. See Gilbert, 1
Vet.App. at 57.
1. Evidence of Unemployability
First, Mr. Byrd argues that the Board's statement that evidence of
unemployability was only
properlyconsidered in the context of the referred issue of entitlement to
a total disabilityratingbased
on individual unemployability and not with regard to the assignment of a
schedular disability rating
rendered the Board's statement of reasons or bases inadequate. As
discussed in Part II.A above, this
argumentis premisedonMr.Byrd'smischaracterization oftheBoard's statement
and, therefore,fails
for the same reasons as stated above.
7


2. Mauerhan v. Principi
Second, Mr. Byrd argues that the Board treated the criteria outlined in §
4.130 as
requirements for assigning a higher disability rating in violation of
Mauerhan, 16 Vet.App. at 442.
Specifically, he contends that the Board's reasons or bases for its
decision is inadequate because "it
is difficult to tell from the decision on appeal whether or to what extent
the Board applied the Court's
holding in Mauerhan." Appellant's Br. at 19. The Court disagrees.
In Mauerhan, the Court explained that "the factors listed in the rating
formula [for mental
disorders] are 'examples' of conditions that warrant particular ratings,"
which were intended to assist
the adjudicator in differentiating between levels of disability, a task
that would be "extremely
ambiguous" without the listed factors. 16 Vet.App. at 442. However, the
Court made clear that "any
suggestion that the Board was required, in complying with the regulation,
to find the presence of all,
most, or even some, of the enumerated symptoms is unsupported by a reading
of the plain language
of the regulation." Id. Thus, this "list of examples[] provides guidance
as to the severity of
symptoms contemplated for each rating, in addition to permitting
consideration of other symptoms,
particular to each veteran and disorder, and the effect of those symptoms
on the claimant's social and
work situation." Id.
Here, the Board recited the rating criteria for assigning a 30%, 50%, 70%,
and 100%
disability rating for post-traumatic stress disorder. However, contrary to
Mr. Byrd's contention, the
Board did not mechanically apply the list of factors at each level as if
they were prerequisites to the
next higher disability rating. Rather, the Board set forth Mr. Byrd's
symptoms and diagnoses as
reflected in the evidence of record (excluding the November 2005 VA
medical opinion, see Part
II.B.5 below), which included symptoms that are listed in the rating
criteria in § 4.130 and others that
are not, such as Mr. Byrd's anger and his inability to cry. The Board then
evaluated all of his
symptoms and determined that they "most closely approximate the criteria
for a 30[% disability]
rating." R. at 21. Based on the foregoing, the Court concludes that the
Board's actions in this case
comply with the Court's holding in Mauerhan and, therefore, the Board's
statement of reasons or
bases is not inadequate in that regard. See Gilbert, 1 Vet.App. at 57; see
also Hilkert, 12 Vet.App.
at 151.
8


3. October 2008 Private Medical Opinion
Third, Mr. Byrd asserts that the Board improperly discounted the October
2008 private
medical opinion because the physician did not personally examine him.
Although Mr. Byrd is
correct that retrospective medical opinions can be probative in certain
instances, see, e.g., Chotta v.
Peake, 22 Vet.App. 80 (2008), the Board is permitted to favor one opinion
over another provided
that it gives an adequate statement of its reasons and bases for doing so.
See Simon v. Derwinski,
2 Vet.App. 621, 622 (1992). Here, the Board explained that it ascribed
more probative value to the
March2003andNovember2005VAmedicalopinions that,
unliketheOctober2008privatemedical
opinion, included personal evaluations of Mr. Byrd conducted
contemporaneous to the staged rating
period at issue in this case. Such an assessment of evidence is within the
Board's purview as
factfinder, see Washington, 19 Vet.App. at 369, and the Court concludes
that the Board's statement
explaining its reasons or bases for discounting the October 2008 private
medical opinion is adequate
to facilitate judicial review and to enable Mr. Byrd to understand the
precise basis for this
determination. See Gilbert, 1 Vet.App. at 57.
4. Hallucinations
Fourth, Mr. Byrd argues that the Board improperly rejected his reports of
experiencing
auditory and visual hallucinations. The Court agrees.
In September 2005, Mr. Byrd reported experiencing unspecified
auditoryhallucinations and
"visual hallucination[s] of seeing shadows while driving at night." R. at
195-96, 198. The Board
explained that auditory and visual hallucinations demonstrated post-
traumatic stress disorder
symptoms "more severe than a 30[%] disability rating indicates" and
acknowledged that Mr. Byrd
was competent to report the occurrence of such hallucinations. R. at 19.
However, the Board stated
that Mr. Byrd was "not competent to diagnose himself as being psychotic,
having gross impairment
in thought processes, or as being delusional due to a psychiatric
condition." Id. The Board therefore
concluded that the "competent medical evidence of record reflects no
hallucinations or delusional
behavior, much less persistent delusions or hallucinations," and that "
even considering [Mr. Byrd]'s
reported symptoms of seeing and hearing things in September 2005, such
reports . . . do not, without
competent medical evidence indicating that [he] had delusions or
hallucinations related to post-
traumatic stress disorder, warrant a disability rating in excess of 30[%]."
R. at 19-20.
9


This explanation is deficient for a number of reasons. First, the rating
criteria for a 100%
disability rating does not require a diagnosis of psychosis or a
delusional psychiatric condition;
rather, "persistent delusions or hallucinations" are included in a
nonexhaustive list of symptoms that
demonstrate "[t]otal occupational and social impairment." 38 C.F.R. § 4.
130; see Mauerhan,
16 Vet.App. at 442 (holding that the phrase "such symptoms as" in § 4.130
indicates that the listed
criteria "are not intended to constitute an exhaustive list, but rather
are to serve as examples of the
type and degree of the symptoms, or their effects, that would justify a
particular rating"). Similarly,
"gross impairment in thought processes or communication" is a separate
entry on this list and,
therefore, Mr. Byrd's lack of a diagnosis of gross impairment in thought
processes should not affect
the Board's evaluation of his reported hallucinations. Id. In any event,
the Board admitted, on the
one hand, that Mr. Byrd was competent to report his hallucinations, but
required, on the other hand,
competent medical evidence to substantiate these hallucinations. This is
contrary to Jandreau v.
Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007), which held that lay
testimony is competent
evidence of observable symptoms. See also Waters v. Shinseki, 601 F.3d
1274, 1277 (Fed. Cir.
2010) (noting that "medical evidence" and "competent evidence" are "
separate, although perhaps
related, evidentiary guidelines").
Moreover,theBoardseeminglyrejectedMr.
Byrd'sreportedhallucinationsbecausetheywere
not "persistent," as described in the rating criteria for a 100%
disability rating. 38 C.F.R. § 4.130.
However, although auditory and visual hallucinations are not explicitly
mentioned in the criteria for
any lesser disability rating, the Board is not precluded from considering
evidence of occasional
hallucinations in concert with the assignment of a lesser disability
rating. See Mauerhan,
16 Vet.App. at 442 (explaining that "the factors listed in the rating
formula are 'examples' of
conditions that warrant particular ratings"). Consequently, the Court
concludes that the Board's
statement of reasons or bases is inadequate and remand is therefore
warranted. See Gilbert,
1 Vet.App. at 57.
5. November 2005 VA Medical Examination
Fifth, Mr. Byrd contends that the Board failed to consider the November
2005 VA medical
opinion. The Secretaryconcedes that the Board did not discuss this medical
opinion, but asserts that
the Board was not required to discuss it because it was not relevant to
the issue of the severity of Mr.
10


Byrd's post-traumatic stress disorder prior to November 2005. The
Secretary's argument is
unpersuasive.
The VA examiner began his medical opinion by discussing Mr. Byrd's "
psychosocial
adjustment since the last exam[ination]" in March 2003. R. at 145.
Specifically, Mr. Byrd reported
"an increase in his [post-traumatic stress disorder symptomatology" since
his retirement in June
2002, including panic attacks, anxiety, depression, irritability, chronic
difficulties with anger
including sudden outbursts, intolerance, poor motivation, and passive
thoughts of death one or two
times per week. R. at 145-46. Mr. Byrd also explained that, since his last
examination in March
2003,hehadbecome"averyangryindividual"who"iscapableofgreat violence,
includinghomicide
when provoked" and "is quick to anger with only minor provocation." R. at
145. The examiner then
attributedMr.Byrd's increasedpost-traumaticstressdisordersymptoms to "
hisretirement,increased
free time, and . . . current events, such as the [w]ar in Iraq and his
response to the difference in
civilian treatment of Iraqi veterans compared to Vietnam veterans," all of
which occurred before
November 2005.3
R. at 147.
Accordingly, the November 2005 VA medical examination contains potentially
favorable
evidence that could support a disability rating in excess of 30% for Mr.
Byrd's post-traumatic stress
disorder for the period of October 17, 2002, to November 13, 2005.
Although "a discussion of all
evidence is not required when . . . the Board has supported its decision
with thorough reasons or
bases regarding the relevant evidence," Dela Cruz v. Principi, 15 Vet.App.
143, 149 (2001), the
Court concludes that the Board's failure to explain whyit rejected this
potentiallyfavorable evidence
renders its statement of reasons or bases inadequate. See Caluza, 7 Vet.
App. at 506.
6. Temporary Total Disability Rating
Sixth, Mr.Byrd asserts that the Board's statement ofreasons
orbaseswasinadequatebecause
the Board did not address the issue of entitlement to a temporary 100%
disability rating pursuant to
38 C.F.R. § 4.29. This regulation, in pertinent part, provides: "A total
disability rating (100 percent)
will be assigned . . . when it is established that a service-connected
disability has required hospital
3
The Court takes judicial notice of the fact that U.S. military action in
Iraq began on March 20, 2003. See Smith
v. Derwinski, 1 Vet.App. 235, 238 (1991) ("Courts may take judicial notice
of facts not subject to reasonable dispute."
(citing FED. R. EVID. 201(b))).
11


treatment in a Department of Veterans Affairs or an approved hospital for
a period in excess of 21
days." 38 C.F.R. § 4.29 (2010). Although the Secretary argues that this
issue is being raised for the
first time on appeal, the record reveals that Mr. Byrd was hospitalized at
a VA medical from
November 18, 2002, to December 30, 2002, a period exceeding 21 days.
Accordingly, the Court
concludes that entitlement to a temporary total disability rating under §
4.29 was reasonably raised
by the record and the Board was, therefore, obligated to consider it. See
38 U.S.C. § 7104(a);
Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991).
The Court acknowledges the Secretary's argument that the Board's failure
to consider
entitlement to benefits under § 4.29 was harmless error because Mr. Byrd
was hospitalized for
alcohol dependence and not for treatment of post-traumatic stress disorder,
which had not been
diagnosed at the time. However,thereasonforMr. Byrd's hospitalization is
unclear from the record.
See R. at 317-18 (discussing Mr. Byrd's history of substance abuse and
psychiatric history, noting
that Mr. Byrd "had a hard time after returning from Vietnam," and listing
his "post-traumatic stress
disorder symptoms"). Moreover, Mr. Byrd filed a claim for VA benefits for
post-traumatic stress
disorderinOctober2002,amonth beforehis hospitalization,
andwassubsequentlyawardedbenefits
effective October 17, 2002. Because the Board made no factual findings on
the matter, and because
the Court "is not a trier of fact and is not in a position to make . . .
factual determination[s],"
Zevalkink v. Brown, 102 F.3d 1236, 1244 (Fed. Cir. 1996), the Court will
remand the matter to the
Board for adjudication in the first instance. See also Hensley v. West,
212 F.3d 1255, 1263 (Fed. Cir.
2000) (explaining that "appellate tribunals are not appropriate fora for
initial fact finding").
C. Compliance with the Court's October 2007 Remand
Finally, Mr. Byrd argues that the Board failed to ensure compliance with
the Court's October
2007 remand because the Board failed to discuss the November 2005 VA
medical examination.
Although the parties dispute what the joint motion for remand actually
instructed the Board to do,
the Court has already concluded that the Board committed error in not
discussing this medical
examination. See Part II.B.5 above. Consequently, because the Court will
remand the Board
decision for a new statement of reasons or bases, including consideration
of the November 2005 VA
medical examination, there is no need to further address this particular
allegation of error.
12


III. CONCLUSION
Uponconsideration oftheforegoing,theFebruary2,2009,
BoarddecisionisVACATEDand
the matter REMANDED for readjudication consistent with this decision.
DATED: April 26, 2011
Copies to:
Glenn R. Bergmann, Esq.
VA General Counsel (027)
13

Single Judge Application, 38 C.F.R. 3.159(c)(3); (e); Washington v. Nicholson, 19 Vet. App. 362, 370-71 (2005)

Excerpt from decision below:
"Pursuant to 38 C.F.R. § 3.159(c)(3)(2010), Agency decisionmakers are
directed to make efforts to obtain relevant military records, and if such records are not available, the claimant must be informed that such records were not available. Furthermore, such unobtainable records should be identified, an explanation as to what efforts were made to get those records, a description of what further action VA will take and notice that the claimant is ultimately responsible for obtaining such
records. 38 C.F.R. § 3.159(e); see also Washington v. Nicholson, 19 Vet. App. 362, 370-71 (2005)(explaining that VA failed to fully discharge its duty to assist because appellant was not adequately advised as to alternative forms of information and evidence that he could use to establish his claim).
==================================
----------------------------------------------------

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-0183
ANTHONY E. BONNER, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

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

HOLDAWAY,Judge: Before the Court is the October26, 2009, Board
of Veterans' Appeals (Board) decision that denied entitlement to service connection for post-traumatic stress disorder(PTSD). Single-judge disposition is appropriate when the issue is of "relative simplicity" and "the outcome is not reasonably debatable." Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the
reasons that follow, the Court will vacate the October 2009 Board decision
and remand the matter for readjudication.

I. FACTS
The appellant had active dutyservice from August 1981 to August 1984.
Record (R.) at 123.
His service medical records are negative for anycomplaints or treatment
for a psychiatric condition.
R. at 162-200.
InMay2005,theappellantsubmittedaclaimforentitlementtoserviceconnection
forPTSD.
R. at 430. In July2005, the appellant submitted a statement indicating
that he was assigned to "HHC
1st Bn, 13th Armor, 3rd Armor Division." R. at 399. He stated that "we
were ending a thirty day
training mission, as the soldiers were preparing to leave the training
area, one of them slipped off
the tank into hydr[au]lic swee[p]per caus[e]ing him to be seriouslyinjured,
broken-up and mawed."


Id. He also reported that the incident occurred on April 20, 1983, and
that the solider involved in
the incident was in the "HHC 1/13th Armor Division." R. at 399-400.
However, he did not state
the name of the solider involved. Id.
The regional office (RO) denied entitlement to service connection for PTSD
in September
2005. R. at 415-19. In October 2005, the appellant submitted a Notice of
Disagreement (NOD) and
attached a medical record in which a private examiner reported that he
diagnosed the appellant with
PTSD and chronic depression. R. at 408-12. The examiner reported that the
appellant's PTSD was
caused by witnessing a "severe accident in Germany while on a field
training mission." R. at 409-
10. In a September 2005 statement also attached to the appellant's NOD, Mr.
Frankie Gwynn also
stated that he served with the appellant in Germany and while on a 30-day
training mission in
Hornsphelt, Germany, one of the "soldiers slipped and fell into the
sweepers which caused him to
revolve around the [s]weeper a number of times, causing a terrible
grinding noise and him to be
broken up and mawed continuously." R. at 412. Mr. Gwynn related that
unlike the appellant, he was
"not right at the scene of the accident" but arrived on the scene
afterwards. Id. The appellant also
attached a stressor statement to his NOD. R. at 411. He stated that on or
about April 1983 while
he was on a 30-day field training mission in Hornsphelt, Germany, he
witnessed a severe accident
involving hydraulic sweepers attached to tanks. Id. He again related that
a "solider slipped and fell
into the sweeper, rotating him around and around several times, creating a
terrible grinding and
crunching noise." Id.
In May 2006, the RO advised the appellant that verification of his alleged
stressor required
that he provide the full name and unit designation of the injured solider.
R. at 329. The appellant
responded that he did not know the soldier's name or Social Security
number, but stated that the
"company's name" was "HHC 1/13th Armor Division, Illishime Germany APO NY
09140-741."
R. at 308. He noted that the date was April 1982. Id.
In June 2006, the RO submitted a request for information to verify the
appellant's PTSD
stressor using the date April 1983. 1
R. at 306. The appellant filed his Substantive Appeal in May
2007. R. at 44.
1
Notably, just prior to this request for information, the appellant claimed
that his stressor took place in
April 1982, instead of the previously asserted April 1983.
2


In September 2008, in response to the June 2006 VA request for
information, the VA
coordinator with the U.S. Army and Joint Service Records Research Center (
JSRRC) made a
"[f]ormal finding of a lack of information required to corroborate
stressor(s) associated with the
claim for service connection for PTSD." R. at 25-26. The coordinator
stated that the information
required to corroborate the stressful event described by the appellant was
insufficient to send to
JSRRC and/or insufficient to allow for meaningful research of Marine Corps
or National Archives
and Records Administration records. Id. The coordinator stated that "[w]
hen researching casualty
information, both the last and first names should be given" and that dates
and units are also helpful.
Id. The coordinator further stated that "no listing of casualties by units
is currently available" and
that "JSRRC would not be able to provide any additional information about
if the veteran was
involved in the incident that resulted in casualties." Id. He concluded
that the appellant did not
provide enough information or details of events for JSRRC to research. Id.
In October 2009, the Board denied entitlement to service connection for
PTSD. R. at 3-10.
This appealed followed.
II. ANALYSIS
Pursuant to 38 C.F.R. § 3.159(c)(3) (2010), Agency decisionmakers are
directed to make
efforts to obtain relevant military records, and if such records are not
available, the claimant must
be informed that such records were not available. Furthermore, such
unobtainable records should
be identified, an explanation as to what efforts were made to get those
records, a description of what
further action VA will take and notice that the claimant is ultimately
responsible for obtaining such
records. 38 C.F.R. § 3.159(e); see also Washington v. Nicholson, 19 Vet.
App. 362, 370-71 (2005)
(explaining that VA failed to fully discharge its duty to assist because
appellant was not adequately
advised as to alternative forms of information and evidence that he could
use to establish his claim).
In the decision on appeal, the Board concluded that it was "satisfied VA [
had] made
reasonable efforts to obtain relevant records and evidence." R. at 6. The
Board also found that the
appellant "was an active participant in the claims process and he
responded to VA's request for
information . . . . Any error in notice is not shown to have affected the
essential fairness of the
adjudication or to cause Previous DocumentinjuryNext Document" to the appellant. R. at 7. The Secretary
argues and the appellant in
3


his reply brief agrees that remand is necessary because the Board failed
to provide an adequate
statement of reasons or bases for its finding that VA had fulfilled its
duty to notify and assist the
appellant. Secretary's Brief (Br.) at 4; Appellant's Reply Br. at 1.
The Secretary notes that the appellant was never notified of the finding
by the coordinator
in September 2008 that not enough information was provided for JSRRC to
research the appellant's
alleged stressor, and he was never advised that he could submit
alternative sources of evidence to
corroborate his stressor. Secretary's Br. at 6. Although the RO asked the
appellant for more specific
information regarding his stressor in a May 2006 letter, the Secretary
notes that at that time he was
not advised of any alternative evidence that he could submit. Secretary's
Br. at 6 (citing R. at 329).
The Secretary concedes that in light of the fact that the appellant was
never advised he did not
provide sufficient information for JSRRC to perform a meaningful search to
corroborate his alleged
stressors and that he was never notified as to alternative forms of
information and evidence he could
submit to establish his claim, the basis for the Board's finding that VA
fulfilled its duty to notify and
assist is unclear. 38 U.S.C. §§ 5103, 5103(A); see also 38 C.F.R. § 3.
159.
The Court agrees and will remand the appellant's claim for entitlement to
service connection
for PTSD. In pursuing his case on remand, the appellant may present, and
the Board must consider,
any additional evidence and argument in support of the matters remanded.
See Kay v. Principi,16
Vet.App. 529, 534 (2002). These matters are to be provided expeditious
treatment on remand. See
38 U.S.C. § 7112.

III. CONCLUSION
Upon consideration of the foregoing, the parties' briefs, and the record
on appeal, the
October 26, 2009, Board decision is VACATED and the matter is REMANDED for
further
proceedings consistent with this decision.
DATED: April 25, 2011
Copies to:
Anthony E. Bonner
VA General Counsel (027)
4

Single Judge Application, 38 C.F.R. § 4.55(a), Lichtenfels v. Derwinski, 1 Vet.App. 484 (1991)

38 C.F.R. § 4.55(a) (2008), that a "muscle injury rating will not be combined with a peripheral nerve paralysis rating of the same body part, unless the injuries affect entirely different functions." Id.

=================================
The Board found that because the appellant's right knee flexion is not limited to 60 degrees and is thus not entitled to a noncompensable ratingunder DC 5260, the appellant "even when considering the effects of pain and functional loss after repetitive use . . . would not be entitled to a compensable evaluation for his right knee disability." Id. The appellant and the Secretary both dispute this finding based on this Court's holding in Lichtenfels v. Derwinski, 1 Vet.App. 484 (1991). In Lichtenfels, the Court stated: Read together, DC 5003, and [38 C.F.R.] § 4.59 thus state that painful motion of a major joint or groups caused by degenerative arthritis, where the arthritis is
5

established by x-ray, is deemed to be limited motion and entitled to a minimum 10[% disability] rating, per joint, combined under DC 5003, even though there is no actual limitation of motion. 1 Vet.App. at 488.


===========================

The Board did not explain what functions are affected by the muscle injury for which the appellant has already received a disability rating, nor did it explain what functions are affected by the appellant's peripheral neuropathy. Without more explanation, the Court cannot determine the basis for the Board's conclusory statement that the evidence does not show that a different function is affected by the appellant's numbness. The appellant also calls into question the Board's application of the term "numbness." Appellant's Br. at 12. Applying DC 8521, the Board stated that it "associates the reports of numbness with mild incomplete paralysis of the nerve, as opposed to moderate incomplete paralysis." R. at 13. Thus, the Board found, no more than a 10% disability
rating is warranted for the appellant's peripheral neuropathy. DC 8521, as well as DCs 8522, 8523, 8524, and 8525,
7

contemplates disability ratings for complete nerve paralysis and mild, moderate, and severe incomplete paralysis. A notation at the beginning of the DC section on peripheral nerves indicates that "[w]hen involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree." The Board does not explain how numbness relates to this notation, or why the medical and lay evidence of record warrants a disability rating for mild rather than moderate incomplete paralysis. Finally, the Court notes that before its analysis of the appellant's peripheral neuropathy, the Board did report the findings of the June 2006 VA examiner in detail.
However, the Board did not relate those findings to the DC provisions in its analysis. The Court has "long held that merely listing evidence before stating a conclusion does not constitute an adequate statement of reasons and bases." Dennis v. Nicholson, 21 Vet.App. 18, 22 (2007). Therefore, for the above stated reasons, the Court finds the Board's statement of reasons or bases concerning the appellant's peripheral neuropathy to be inadequate. See 38 U.S.C. § 7104(d)(1); Allday, Caluza, and Gilbert, all supra.
============================

"The Court has "long held that merely listing evidence before stating a conclusion does not constitute an adequate statement of reasons and bases." Dennis v. Nicholson, 21 Vet.App. 18, 22 (2007)."

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


Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-1968
IRWIN M. NABLE, 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, Irwin M. Nable, appeals through counsel a January 28, 2009, Board of Veterans' Appeals (Board) decision that denied him entitlement to an increased disability rating for residuals of a shell fragment wound to the right leg, muscle group XII, with an old healed fracture of the middle third shaft of the tibia, numerous
retained particles, arthritis of the
right knee and ankle, peripheral neuropathy, and multiple scars, currently evaluated at 30% disabling. Record of Proceedings (R.) at 3-22. This appeal is timely, and the Court
has jurisdiction to review the Board's decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is
appropriate. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, the Court will vacate the Board's decision and remand the matter for further proceedings consistent with this decision.

I. BACKGROUND
A. Facts
The appellant served on active duty in the U.S. Army from July 1943 until May 1945. R. at 403, 697. The appellant was injured by an exploding hand grenade in combat on June 15, 1944. R. at 513. In a January 1948 rating decision, the appellant was granted a 10% disability rating for residuals of shell fragment wounds suffered in combat. R. at 403. The
wound resulted in multiple scars on his right leg, a fracture of the tibia, and "numerous small retained particles" in the soft
tissues of his muscle group XII muscles. Id. A January 1949 medical report indicates that the appellant's fracture had healed with a satisfactory general bony alignment, and that innumerable small metallic foreign bodies remained scattered through the soft tissues of his right thigh and lower
leg. R. at 389. In April 2006, Dr. Jorge Acevedo diagnosed the appellant with arthritis in his right knee related to his in-service injury. R. at 58. In June 2006, the appellant was provided a VA examination. R. at 196-213. The examiner found no injury in muscle groups X and XI, but identified the muscle group XII injury as impacting the tibialis anterior
muscle. R. at 203-04. The appellant was found to have a range of motion in his right knee of zero to 130 degrees. R. at 200. The appellant was diagnosed with degenerative arthritis of the right knee. R. at 202. The examiner also identified numbness in the area of scars on the medial anterior
surface of his right lower leg. R. at 205-06. The appellant was diagnosed with peripheral neuropathy secondary to his shell
fragment wound affecting the external peroneal nerve. R. at 206-07. A September 2007 medical report indicates that the appellant has "innumerable shrapnel fragments throughout the soft tissues" of his right leg and has experienced progressive degenerative changes with an "almost complete obliteration of the medial aspect of the knee joint" and soft tissue
swelling. R. at 55-56. The appellant was provided a hearing before the Board on September 8, 2008. R. at 30-52. During the hearing, the appellant's wife stated that he often has trouble standing up, and that once he does, his leg is numb, and he must wait up to 20 minutes before he can try to
walk. R. at 37. The appellant stated that he has daily numbness in his leg. R. at 43. He also stated that he suffers from swelling, arthritis, and difficulty walking. R. at 43-44.
The Board, in its January28, 2009, decision here on appeal, denied the appellant entitlement to an increased disability rating for residuals of a shell fragment wound in his right leg. The Board noted that the appellant's disability is currently rated under 38 C.F.R. § 4.73, Diagnostic Code (DC)
5312 (2008), "which is in the section for rating muscle injuries." R. at 11. The appellant, the Board stated, is "already receiving the maximum schedular disability rating allowed under DC 5312." R.
2


at 12. The Board, however, noted that, in evaluating muscle group injuries, it also has the responsibility to "determine whether there are any residuals that require separate ratings." R. at 11-12. In this case, the Board determined that the criteria for rating scars should be considered. R. at 12. The Board also decided it would consider peripheral neuropathy, but found, citing 38 C.F.R. § 4.55(a) (2008), that a "muscle injury rating will not be combined with a peripheral nerve paralysis rating of the same body part, unless the injuries affect entirely different functions." Id.
The Board determined that a separate rating is not warranted for either peripheral neuropathy or scars. R. at 13. Regarding the appellant's peripheral neuropathy, the Board identified damage to the external peroneal nerve, and found that a 10% disability rating could be awarded for peripheral neuropathy "based on mild incomplete paralysis of the external popliteal nerve (common peroneal)." Id. However, the Board determined that "[t]he medical evidence does not show that different functioning is affected bythe [appellant's] complaints of numbness," and thus a separate rating is not warranted. Id.
The Board next considered "whether the various disabilities now assigned a single rating under DC 5312 would warrant a higher rating if evaluated separately and then combined." Id. In analyzing the appellant's traumatic arthritis, the Board noted that the appellant's right leg flexion was to 130 degrees. R. at 19. The Board stated: Given that arthritis of the right knee is shown, a compensable evaluation would be
warranted if the limitation of motion is noncompensable under the appropriate Diagnostic Code. . . . However, a noncompensable rating is not warranted
for limitation of flexion of the leg unless flexion is limited to 60 degrees . . . . Since limitation of right leg flexion to 60 degrees or less is not shown by the medical evidence of record, even when considering the effects of pain . . . and
functional loss after repetitive use, the [appellant] would not be entitled to a compensable evaluation for his right knee disability. Id.
The Board concluded that "the only disability contemplated in the currently assigned 30% disability rating for muscle injury that would by itself warrant a compensable evaluat is peripheral neuropathy." R. at 20. The Board also noted that, since both the appellant's right knee and ankle have arthritis, but "essentially no limitation of motion," a 10% evaluation "could be awarded for the combination of joints with arthritis under DC 5003." Id. Since a combined disability rating for
3


peripheral neuropathy and arthritis would not be greater than 30%, "a higher schedular evaluation would not be warranted when considering the [appellant's] disabilities separately." Id.

B. Arguments on Appeal
The appellant raises three arguments on appeal. The appellant first argues that the June 2006 VA examination report is inadequate, and that a new examination should be
ordered. Appellant's Brief (Br.) at 8-10. The appellant next argues that the Board's denial of a separate compensable
rating for his arthritis was accompanied by an inadequate statement of reasons or bases and demonstrated a misapplication of the law. Id. at 11-12. Finally, the appellant asserts that the Board failed to provide an adequate statement of reasons or bases for its denial of a separate compensable rating for peripheral neuropathy and did not adequately explain the choice of DC it applied to that
injury. Id. at 12-13.
The Secretary concedes that remand is warranted because the Board failed to "provide an adequate statement of reasons or bases for its determination that [a]ppellant was not entitled to a separate compensable rating for arthritis of the right knee." Secretary's Br. at 3-5. Based on his
concession, the Secretary agues that the Court need not address the appellant's other arguments. Id. at 5. However, responding to the appellant's argument concerning the June
2006 VA examination, the Secretary asserts that the record supports the Board's finding that the examination was adequate. Id. at 7-8. Finally, the Secretary argues that the Board adequately supported its decision regarding a separate disability rating for peripheral neuropathy and the appellant
failed to adequately demonstrate error. Id. at 9-10. In his reply, the appellant states that he "herebyamends his opening brief to request reversal" on the arthritis issue to which the Secretary conceded error. Reply at 2.
On July 11, 2010, the
Secretary moved to strike the appellant's reply brief because the appellant used it to raise a new argument, and the appellant opposed the motion on July 23, 2010. This
Court has consistently held that it will not consider arguments raised for the first time in a reply brief. See Henderson v. West, 12 Vet.App. 11, 18-19 (1998) (holding that an argument raised for the first time in the appellant's reply brief is considered abandoned); Tubianosa v. Derwinski, 3 Vet.App.
181, 184 (1992) (holding that a party "should have developed and presented all of his arguments in his initial pleading"). The
Court, therefore, will grant the Secretary's motion in part, and strike the portion of the appellant's
4


reply brief arguing that reversal is warranted. The Court will consider arguments in the reply brief concerning issues he adequately raised in his initial brief.

II. ANALYSIS
A. Arthritis
When deciding a matter, the Board must include in its decision a written statement of the reasons or bases for its findings and conclusions, adequate to enable an appellant to understand the precise basis for the Board's decision as well as to facilitate review in this Court. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v.
Derwinski, 1 Vet.App. 49, 56-57(1990). Tocomplywith this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide
the reasons for its rejection of anymaterial evidence favorable to the claimant. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995); Gilbert, 1 Vet.App. at 57.
The appellant argues and the Secretary concedes that the Board's denial of a separate compensable rating for arthritis of the appellant's right knee was not supported by an adequate statement of reasons or bases. Appellant's Br. at 11-12; Secretary's Br. at 2-5. The Board noted that the appellant's right leg flexion was measured at 130 degrees. R. at 19.
However, as the Board reported, DC 5260 allows for a noncompensable disability rating for limitation of leg flexion only when flexion is measured at 60 degrees, and allows a compensable disability rating only when flexion is limited to 45 degrees or less. Id. The Board further stated that under the criteria for degenerative arthritis, found in DC 5003, a disability rating of 10% is allowed when a limitation of
motion is found to be noncompensable under the appropriate DC. The Board found that because the appellant's right knee flexion is not limited to 60 degrees and is thus not entitled to a noncompensable ratingunder DC 5260, the appellant "even when considering the effects of pain and functional loss after repetitive use . . . would not be entitled to a compensable evaluation for his right knee disability." Id. The appellant and the Secretary both dispute this finding based on this Court's holding in Lichtenfels v. Derwinski, 1 Vet.App. 484 (1991). In Lichtenfels, the Court stated: Read together, DC 5003, and [38 C.F.R.] § 4.59 thus state that painful motion of a major joint or groups caused by degenerative arthritis, where the arthritis is
5

established by x-ray, is deemed to be limited motion and entitled to a minimum 10[% disability] rating, per joint, combined under DC 5003, even though there is no actual limitation of motion. 1 Vet.App. at 488.
The Board has already found that the appellant has arthritis of the right knee
confirmed by x-ray and that it, along with the residuals of his wound, are "primarily manifested by[] pain, stiffness, swelling." R. at 4, 13, 18. The Board also noted that the appellant reported persistent pain and that VA treatment records indicate right knee pain. R. at 15; see also R. at 55. Treatment notes from Dr. Acevedo support the Board's finding that the appellant has arthritis and pain associated with his arthritis in his right knee. R. at 57-58. The June 2006 VA examiner diagnosed the appellant with degenerative arthritis of the right knee with effects on usual daily activities. R.
at 202. The examiner found that the appellant is experiencing right knee pain. R. at 196, 200.
Therefore, based on the record, the Court agrees with the Secretary and the appellant that the Board should have applied the Court's finding in Lichtenfels in making its
determination. Its failure to do so renders its statement of reasons or bases inadequate. See 38 U.S.C. § 7104(d)(1); Allday, Caluza, and Gilbert, all supra.

B. Peripheral Neuropathy
The Board stated that the appellant reported to the June 2006 VA examiner that he had numbness near the scars in his right lower leg and that the examiner diagnosed the appellant with
peripheral neuropathy secondary to his shell fragment wounds affecting the external peroneal nerve. R. at 13; see also 205-07. The Board noted, based on 38 C.F.R. § 4.124a, DC 8521 (2008), that a 10% disability rating "could be awarded for peripheral neuropathy in the right lower extremity based
on mild incomplete paralysis of the external popliteal nerve (common peroneal)." Id. The appellant disputes the Board's use of DC 8521 to find that his peripheral neuropathy
warrants a 10% disability rating. Appellant's Br. at 12-13. The appellant notes that the June 2006 VA examiner diagnosed the appellant with damage to his external peroneal nerve. Id. at 12. DCs 8521, 8522, and 8523 apply to the external popliteal (common peroneal), musculocutaneous
(superficial peroneal), and anterior tibial (deep peroneal) nerves respectively, but none identify the external peroneal nerve. The appellant, citing this Court's precedent in
Colvin v. Derwinski, 1 Vet.App. 171 (1992), argues that the Board's decision to apply DC 8521 required the Board to make a medical determination that the external popliteal nerve(common peroneal) is equivalent to external
6

peroneal nerve, and that its decision is not based on independent medical evidence. Id. at 12-13.
The Court gives great deference to the Board's expertise in selecting appropriate DCs, and thus will set aside such decisions only if they are "'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.'" Butts v. Brown, 5 Vet.App. 532, 539 (1993) (en banc) (quoting 38 U.S.C. § 7261(a)(3)(A)). However, this deference does not
abrogate that Board's requirement to provide an adequate statement of reasons or bases for its decisions. Under Colvin, the Board may consider only independent medical evidence and may not substitute its own medical opinion for a lack of such evidence. 1 Vet.App. at 175. The Board does not
explain the basis for its decision to apply DC 8521 rather that DC 8522 or 8523, or for that matter DCs 8524 or 8525, which apply to the internal popliteal nerve (tibial) and posterior tibial nerve respectively.
The Board, citing 38 C.F.R. § 4.55(a) (2008), also found that the appellant's existing disability rating for his muscle injury "will not be combined with a peripheral nerve paralysis rating
of the same body part, unless the injuries affect entirely different functions." Id. The Board then held that "[t]he medical evidence does not show that different function is affected by the [appellant's] complaints of numbness," and thus declined to combine his peripheral neuropathy and muscle disability ratings. Id.
The appellant argues that the Board failed to provide an adequate statement of reasons or bases for its assertion that the medical evidence does not show that different function is affected by his complaints of numbness. Appellant's Br. at 12. The Court agrees. The Board did not explain what functions are affected by the muscle injury for which the appellant
has already received a disability rating, nor did it explain what functions are affected by the appellant's peripheral neuropathy. Without more explanation, the Court cannot determine the basis for the Board's conclusory statement that the evidence does not show that a different function is affected by the appellant's numbness.
The appellant also calls into question the Board's application of the term "numbness." Appellant's Br. at 12. Applying DC 8521, the Board stated that it "associates the reports of
numbness with mild incomplete paralysis of the nerve, as opposed to moderate incomplete paralysis." R. at 13. Thus, the Board found, no more than a 10% disability rating is warranted for the appellant's peripheral neuropathy. DC 8521, as well as DCs 8522, 8523, 8524, and 8525,
7

contemplates disability ratings for complete nerve paralysis and mild, moderate, and severe incomplete paralysis. A notation at the beginning of the DC section on peripheral nerves indicates that "[w]hen involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree." The Board does not explain how numbness relates to this notation, or why the medical and lay evidence of record warrants a disability rating for mild rather than moderate incomplete paralysis.
Finally, the Court notes that before its analysis of the appellant's peripheral neuropathy, the Board did report the findings of the June 2006 VA examiner in detail. However, the Board did not relate those findings to the DC provisions in its analysis. The Court has "long held that merely listing evidence before stating a conclusion does not constitute an adequate statement of reasons and bases." Dennis v. Nicholson, 21 Vet.App. 18, 22 (2007). Therefore, for the above stated reasons, the Court finds the Board's statement of reasons or bases concerning the
appellant's peripheral neuropathy to be inadequate. See 38 U.S.C. § 7104(d)(1); Allday, Caluza, and Gilbert, all supra.

C. Other Arguments
Given this disposition, the Court will not, at this time, address the other arguments and issues raised by the appellant. See Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam order) (holding that "[a] narrow decision preserves for the appellant an opportunity to argue those claimed errors before the Board at the readjudication, and, of course, before this Court in an appeal, should the Board rule against him"). On remand, the appellant is free to submit additional evidence and argument on the remanded matters, and the Board is required to consider 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).
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III. CONCLUSION
After consideration of the appellant's and Secretary's pleadings, and a review of the record, the Board's January 28, 2009, decision is VACATED and the matter REMANDED to the Board for further proceedings consistent with this decision.

DATED: April 28, 2011
Copies to:
David T. Landers, Esq.
VA General Counsel (027)
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