Thursday, August 4, 2011

Single Judge Application, Prejudicial Error, Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004)

Excerpt from decision below:
"The Board's failure to consider potentially favorable medical
evidence constitutes error that renders its statement of reasons of bases inadequate. See Caluza, 7 Vet.App. at 506. When the Court concludes that the Board has committed error, the Court is bound by statute to determine whether that error is prejudicial to the claimant's claim. See 38 U.S.C. § 7261(b)(2) (requiring the Court to "take due account of the rule of prejudicial error"); Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004).

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-3181
GLEN H. PHILLIPS, 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: Glen H. Phillips appeals through counsel an April 30, 2009,
Board of
Veterans' Appeals (Board) decision denying entitlement to VA benefits for
muscle and joint pain,
a neuropsychological disorder, a sinus and throat disorder, a respiratory
disorder, a gastrointestinal
disorder, and extreme dental decay, all to include as due to an
undiagnosed illness.1
Record (R.) at
688-705. The Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and
7266(a) to review the
April 2009 Board decision. Mr. Phillips did not request oral argument or
identify issues he believes
require a precedential decision of the Court. Because the Board failed to
ensure compliance with
its September2007remandorderregardingMr.Phillips'sclaimforbenefits
foraneuropsychological
disorder, and because the Board failed to provide an adequate statement of
reasons or bases for its
decision regarding his claim for benefits for a gastrointestinal disorder,
the Court will vacate the
portions of the April 30, 2009, Board decision denying entitlement to
benefits for a
neuropsychological disorder and a gastrointestinal disorder and remand
those claims for further
The Board also denied entitlement to initial disability ratings in excess
of 10% for varicosities of the bilateral
lower extremities. However, because Mr. Phillips does not make any
arguments regarding the varicosities claims in his
brief, the Court deems abandoned any appeal as to those claims. See
Grivois v. Brown, 6 Vet.App. 136, 138 (1994)
(holding that issues or claims not argued on appeal are considered
abandoned).
1


development, if necessary, and readjudication consistent with this
decision. Because the Board's
failure to consider various medical records was not Previous DocumentprejudicialNext Hit to Mr.
Phillips's other claims, the
Court will affirm the remainder of the Board decision.
I. FACTS
Mr. Phillips served on active duty in the U.S. Air Force from June 1981 to
June 1991,
including service in Southwest Asia during the Persian Gulf War. Service
medical records reveal
treatment for chronic low back pain and scoliosis in February1983,
heartburn and gastritis in March
1988, chest and lung problems in January 1990, heartburn in October 1990,
and recurrent low back
pain and scoliosis in March 1991.2
It was also noted that Mr. Phillips had dental caries3
in
September 1985 and sought treatment for depression due to marital problems
in April 1990.
In April 2001, Mr. Phillips was involved in a "significant motor vehicle
accident" in which
he sustained a closed head injury, traumatic brain injury, and fractured
cervical spine. R. at 514.
Upon being admitted to the hospital, Mr. Phillips was intubated to assist
his breathing.4
In November 2002, Mr. Phillips filed a claim for VA benefits for muscle
and joint pain, a
neuropsychological disorder, a sinus and throat disorder, a respiratory
disorder, a gastrointestinal
disorder, and extreme dental decay, among other conditions. His claim also
referenced stenosis of
the trachea.5
In August 2003, Mr. Phillips attended a VA medical examination for these
conditions. With
respect to Mr. Phillips's muscle and joint pain, a VA examiner diagnosed
him with "osteoarthritis
in multiple sites consistent with age" and opined that his "Gulf War
experience did not cause his
osteoarthritis." R. at 911. The examiner also attributed Mr. Phillips's "
progressive low back pain"
Scoliosis is "an appreciable lateral deviation in the normally straight
vertical line of the spine." DORLAND'S
ILLUSTRATED MEDICAL DICTIONARY 1706 (31st ed. 2007) [hereinafter DORLAND'S
]. Gastritis is "inflammation of the
stomach." Id. at 774.
Caries is "the molecular decay or death of a bone, in which it becomes
softened, discolored, and porous."
DORLAND'S at 300.
4
3
2
Intubation is "the insertion of a tube into a body canal or cavity."
DORLAND'S at 969.
Stenosis is "an abnormal narrowing of a duct or canal." DORLAND'S at 1795.
5
2


to his mild degenerative joint disease, "which is a process of his ageing [
sic]." R. at 921. With
respect to Mr. Phillips's respiratory condition, the examiner diagnosed
him with subglottic stenosis
with a resultant tracheotomy. The examiner opined that he "d[id] not feel
like [Mr. Phillips's] Gulf
War experience with breathing the fumes that [were] over there caused his
subglottic stenosis," but
rather that it was "most likely secondaryto his traumatic intubation"
following the April 2001 motor
vehicle accident. R. at 917. Finally, Mr. Phillips underwent a
psychological examination and a
separate VA examiner diagnosed him with bipolar disorder of an unspecified
etiology without
reviewing his claims file.
In September 2003, a VA regional office denied Mr. Phillips's claims for
benefits for muscle
and joint pain, a neuropsychological disorder, a sinus and throat disorder,
a respiratory disorder, a
gastrointestinal disorder, and extreme dental decay.
Mr. Phillips filed a timely Notice of
Disagreement with that decision and subsequently perfected his appeal.
In October 2005, Mr. Phillips attended another VA medical examination in
which he was
diagnosed with chronic obstructive pulmonary disease and gastroesophageal
reflux disease.6
Although Mr. Phillips was also scheduled for a dental examination at that
time, he refused to
undergo the examination because he stated that "he had all [his] teeth
removed and dentures made"
and "got his award from Social Security and does not feel he needs the
exam[ination]." R. at 770.
In September 2007, the Board remanded Mr. Phillips's claims for VA to
obtain his Social
Security Administration records. The Board also noted that the examiner
who conducted Mr.
Phillips's August 2003 psychiatric examination did not review his claims
folder, which "contains
evidence . . . relevant to the question of the etiology and onset of [his]
bipolar disorder," and
remanded for VA to schedule a new psychiatric evaluation that included
claims-folder review. R.
at 675. Accordingly, the VA Appeals Management Center scheduled Mr.
Phillips for a psychiatric
examination in August 2008, but he cancelled it for reasons that were
unexplained at the time. In
January 2009, Mr. Phillips sent an email to VA that stated: "I am now
willing, able & looking
Chronic obstructive pulmonary disease is "any disorder characterized by
persistent or recurring obstruction
of bronchial air flow, such as chronic bronchitis, asthma, or pulmonary
emphysema" DORLAND'S at 538.
Gastroesophageal reflux disease is "any condition noted clinically or
histopathologically that results from
gastroesophageal reflux, ranging in seriousness from mild to life-
threatening; principal characteristics are heartburn and
regurgitation." Id. at 540.
6
3


forward to a [VA] examination. I cancelled one that I had in Aug[ust] [20]
08 because I was
suffering from severe depression & anxiety." R. at 8. However, VA did not
schedule another
psychiatric examination for him.
In April 2009, the Board issued the decision currently on appeal, which
denied entitlement
to benefits for muscle and joint pain, a neuropsychological disorder, a
sinus and throat disorder, a
respiratory disorder, a gastrointestinal disorder, and extreme dental
decay, all to include as due to
an undiagnosed illness. Specifically, the Board found that these
conditions were not undiagnosed
illnesses under 38 C.F.R. § 3.317 because they were all attributed to
known diagnoses. Moreover,
the Board determined that Mr. Phillips was not entitled to service
connection for any of these
conditions on a direct basis because there was no evidence of any diseases
or injuries in service and
no evidence of a nexus between the current diagnoses and his service.
In making these
determinations, the Board considered the length of time between Mr.
Phillips's separation from
service and his post-service treatment and found that such gaps weighed
against his claims. In
addition, with respect to his claim for benefits for a sinus and throat
problem, the Board found that
the evidence established that this condition was related to the April 2001
motor vehicle accident, not
his service in the Persian Gulf.
II. ANALYSIS
As an initial matter, the Court notes that Mr. Phillips does not challenge
the Board's findings
that he was not entitled to benefits for any of his conditions under 38 C.
F.R. § 3.317 because each
of his claimed conditions was attributed to a known diagnosis. Therefore,
the Court will not address
this theory of service connection in its discussion of his claims. See
Hilkert v. West, 12 Vet.App.
145, 151 (1999) (holding that appellant has the burden of demonstrating
error), aff'd, 232 F.3d 908
(Fed. Cir. 2000) (table).
A. Compliance with September 2007 Board Remand Order
Mr. Phillips first argues that the Board erred in adjudicating his claim
for benefits for a
neuropsychological disorder because it failed to ensurecompliancewith its
September 2007 remand
order, which instructed VA to provide him with a new psychiatric
examination that included review
of his claims file. Specifically, Mr. Phillips asserts that, after he
cancelled the scheduled psychiatric
4


examination because of depression and anxiety caused by his bipolar
disorder, VA failed to request
and schedule another psychiatric examination and the Board subsequently
failed to determine
whether he had good cause for failing to attend the examination. The
Secretary concedes that "the
Board did not discuss the terms of the September 2007 Board remand order,
the fact that [Mr.
Phillips] did not present for his scheduled VA examination, or whether [
his] January2009 statement
established 'good cause' for not presenting for that examination."
Secretary's Brief (Br.) at 19
(quoting 38 C.F.R. § 3.655(a) (2010)). Both parties assert that vacatur
and remand is warranted to
ensure compliance with the Board's September 2007 remand order.
"[A] remand by this Court or the Board confers on the . . . claimant, as a
matter of law, the
right to compliance with the remand orders." Stegall v. West, 11 Vet.App.
268, 271 (1998). When
"the remand orders of the Board or this Court are not complied with, the
Board itself errs in failing
to [e]nsure compliance." Id. Such an error can constitute the basis for a
remand by this Court. Id.
It is undisputed that the September 2007 Board decision remanded Mr.
Phillips's claim for
benefits for a neuropsychological disorder for a new psychiatric
examination that included claims
file review. Pursuant to that remand order, VA scheduled a psychiatric
examination for Mr. Phillips
in August 2008, which he failed to attend. At that point, VA was free to
adjudicate his claim based
on the evidence of record, provided that the Board determined that Mr.
Phillips did not have good
cause, including "illness or hospitalization of the claimant," for failing
to report for the psychiatric
examination. 38 C.F.R. §§ 3.655(a)-(b).
However, both parties assert, and the Court agrees, that the Board erred
when it failed to
consider whether depression and anxiety constituted good cause under § 3.
655(a). Therefore,
vacatur and remand is warranted for the Board to make this determination
in the first instance to
comply with the Board's September 2007 remand order. See Stegall, 11 Vet.
App. at 271. In making
this determination, the Board must consider that the original examination
was held pursuant to a
Court order, there was only one effort made to obtain the requested
examination, and the Secretary
has conceded error in this regard. If the Board finds that Mr. Phillips's
depression and anxiety
constituted good cause under § 3.655(a), then the Board must provide him
with a new psychiatric
evaluation that includes claims file review. Otherwise, the Board must
provide an adequate
statement of reasons or bases for its determination that Mr. Phillips
failed to demonstrate good cause
5


for failing to report for the August 2008 examination. 38 U.S.C. § 7104(
d)(1) (stating that 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").
Although Mr. Phillips additionally argues that the Board's statement of
reasons or bases for
denying his claim for benefits for a neuropsychological disorder was
inadequate, the Court need not
address that argument because the Board will necessarily provide a new
statement of reasons or
bases for its decision on this claim on remand.
B. Reasons or Bases
Mr. Phillips next argues that the Board failed to provide an adequate
statement of reasons or
bases for its determinations that he was not entitled to VA benefits for
his remaining conditions.
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. Gilbert v.
Derwinski, 1 Vet.App. 49, 57 (1990). To comply with this requirement, the
Board must analyze the
credibilityand probative value of the evidence, account for the evidence
that it finds to be persuasive
or unpersuasive, and provide the reasons for its rejection of any material
evidence favorable to the
claimant. 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. Gilbert, 1 Vet.App. at 57.
1. Muscle and Joint Pain
Mr. Phillips argues that the Board's statement of reasons or bases for its
determination that
he was not entitled to benefits for muscle and joint pain was inadequate
because it (1) failed to
consider March 1991 service medical records reflecting a complaint of low
back pain and diagnoses
of recurrent low back strain and very mild lumbar scoliosis; (2)
misapplied the holding in Maxson
v. Gober, 230 F.3d 1330 (Fed. Cir. 2000); and (3) relied on Maxson to "
supplant the appropriate
application of 38 C.F.R. § 3.303(b) to evaluate continuity of
symptomatology to establish service
connection." Appellant's Br. at 15.
6


With respect to his first argument, Mr. Phillips is correct that the
Board did not discuss either
of the March 1991 service medical records that reflect treatment for and
diagnoses of low back
conditions. The Board's failure to consider potentially favorable medical
evidence constitutes error that renders its statement of reasons of bases inadequate. See Caluza, 7 Vet.App. at 506. When the Court concludes that the Board has committed error, the Court is bound by statute to determine whether that error is prejudicial to the claimant's claim. See 38 U.S.C. § 7261(b)(2) (requiring the Court to "take due account of the rule of prejudicial error"); Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004).

Service connection for VA disability compensation purposes is established
on a direct basis when the record before the Secretary contains lay or medical evidence of (1) a current disability,
(2) incurrence or aggravation of a disease or injury in service, and (3) a
nexus between the in-service
injury or disease and the current disability. See 38 U.S.C. § 1110;
Shedden v. Principi, 381 F.3d
1163, 1166-67 (Fed. Cir. 2004); 38 C.F.R. § 3.303 (2011). Here, the Board
denied Mr. Phillips's
claim for benefits for muscle and joint pain on a direct basis because it
determined that there was no
incurrence of a disease or injury in service and no nexus between his
current disability and service.
Even assuming that the March 1991 service medical records that the Board
failed to consider would
establish that Mr. Phillips incurred a muscle or joint disease or injury
in service, there would still be
no evidence of a nexus between his current disabilities, diagnosed as
osteoarthritis and degenerative
joint disease, and his service. In fact, the only evidence of a nexus
between his current muscle and
joint disabilities and service is Mr. Phillips lay statements, which the
Board determined were not
competent to establish nexus because Mr. Phillips, as a layman, did not
possess the necessary
expertise to opine as to the etiology of those disabilities. Accordingly,
the only evidence of record
relevant to the question of nexus between Mr. Phillips's current muscle
and joint disabilities and
service is the August 2003 VA medical opinion that stated that his
osteoarthritis and degenerative
joint disease were attributable to age, not to his service.
Mr. Phillips does not challenge the Board's competency determination with
regard to his lay
statements, does not argue that the August 2003 VA medical examination was
inadequate, and does
not otherwise assert that a new medical opinion is warranted to determine
the etiology of his current
muscle and joint disabilities. Consequently, the Court concludes that the
Board's failure to consider
7


the March 2001 service medical records was harmless error. See 38 U.S.C. §
7261(b)(2); Conway,
353 F.3d at 1374; see also Soyini v. Derwinski, 1 Vet.App. 540, 546 (1991) (
holding that remand is
not warranted where "strict adherence" to the reasons-or-bases requirement
would unnecessarily
impose additional burdens on the Board with no benefit flowing to the
veteran).
Mr. Phillips's second argument is also unpersuasive. In Maxson, the U.S.
Court of Appeals
for the Federal Circuit (Federal Circuit) held that "evidence of a
prolonged period without medical
complaint can be considered, along with other factors concerning the
veteran's health and medical
treatment during and after military service, as evidence of whether a pre-
existing condition was
aggravated by military service." 230 F.3d at 1333. Although Mr. Phillips
is correct that Maxson
dealt with a claim for VA benefits based on a theory of aggravation, not
direct service connection,
neither the Federal Circuit nor this Court has limited the application of
the holding in Maxson to
such claims. See, e.g., Fagan v. Shinseki, 573 F.3d 1282, 1289 (Fed. Cir.
2009) (direct service
connection); Parrish v. Shinseki, 24 Vet.App. 391, 401 (2011) (presumptive
service connection
based on exposure to ionizing radiation); Nieves-Rodriguez v. Peake, 22
Vet.App. 295, 305 (2008)
(secondary service connection and increased disability rating).
Moreover, to the extent that Mr. Phillips attempts to distinguish his case
from Maxson
because the length of time between separation from service and his first
post-service complaint was
only four years as opposed to 45 years, he provides no argument as to why
such a four-year gap
would not be probative evidence that his current muscle and joint
disabilities were not incurred in
service. Accordingly, the Court concludes that Mr. Phillips has failed to
carry his burden of
demonstrating error in this regard.7
See Hilkert, 12 Vet.App. at 151.
With respect to his third argument, the Court agrees with Mr. Phillips
that the Board erred
in its application of the principles of continuityof symptoms to his claim
for benefits for muscle and
joint pain. Continuity of symptoms provides an alternative method of
establishing the second and
Mr. Phillips makes this same argument with regard to his claims for
benefits for a respiratory disorder and a
gastrointestinal disorder. In both cases, he does not explain why a 10-
year and a six-year gap between his separation
from service and his initial post-service treatment for a respiratory
disorder and a gastrointestinal disorder, respectively,
would not be probative evidence that those disabilities were not incurred
in service. Therefore, the Court concludes that
he failed to carry his burden of demonstrating error in this regard. See
Hilkert, 12 Vet.App. at 151. Accordingly, the
Court will not address this argument further in its respective discussions
of Mr. Phillips's respiratory and gastrointestinal
disorders.
7
8


third elements required to establish service connection, i.e., incurrence
or aggravation of a disease
or injury in service and a nexus between the in-service injury or disease
and the current disability.
Barr v.Nicholson,21Vet.App.303,307(2007). "
Continuityofsymptomatologymaybeestablished
if a claimant can demonstrate (1) that a condition was 'noted' during
service; (2) evidence of
postservice continuity of the same symptomatology; and (3) medical or, in
certain circumstances,
lay evidence of a nexus between the present disability and the postservice
symptomatology." Id.
(citing Savage v. Gober, 10 Vet.App. 488, 495-96 (1997)); see also 38 C.F.
R. § 3.303(b). In Savage,
the Court explained that, notwithstanding a showing of continuous symptoms
since service, medical
evidence is still required to demonstrate a nexus between a current
disability and the continuous
symptoms "unless such a relationship is one as to which a lay person's
observation is competent"
because "it would not necessarily follow that there is a relationship
between any present disability
and the continuity of symptomatology demonstrated." 10 Vet.App. at 497.
Here, the Board cited Maxson and stated that a four-year gap between Mr.
Phillips's
separation from service and his initial post-service treatment for muscle
and joint disabilities "does
not support a finding of in-service onset." R. at 696. However, "symptoms,
not treatment, are the
essence of any evidence of continuity of symptomatology." Savage, 10 Vet.
App. at 496. Therefore,
Mr. Phillips's failure to seek treatment for four years following service
is irrelevant to the issue of
continuityof symptoms where, as here, there is evidence that he suffered
from continuing symptoms
of muscle and joint pain since service. See R. at 910 (reporting that Mr.
Phillips experienced
"progressive bilateral[] hip, shoulder, and knee pains since the Gulf War
"). Nevertheless, the Court
concludes that this error is harmless because, as explained above, Mr.
Phillips does not point to any
competent evidence of a nexus between his current muscle and joint
disabilities and his continuing
symptoms, anecessaryelementforanawardofserviceconnection
basedoncontinuityofsymptoms.
See Barr, 21 Vet.App. at 307; Savage, 10 Vet.App. at 497.
2. Respiratory Disorder
Mr. Phillips next argues that the Board's statement of reasons or bases
for its determination
that he was not entitled to benefits for a respiratory disorder was
inadequate because it failed to
consider a February1990 medical record that indicated a "[s]uspect area of
increased patchydensity
in the right upper lung zone" (R. at 1389), as well as an April 2001
medical record noting "a linear
9


area of probable subsegmental atelectasis seen within the right upper
lobe"8
(R. at 541) and a January
2003 medical record noting "multiple calcified subcentimeter nodes
surrounding the upper lobe
bronchus which maybe causing some degree of compression" (R. at 196). He
also contends that the
Board failed to consider his continuity of symptoms.
The Court agrees with Mr. Phillips that the Board failed to discuss the
February 1990, April
2001, and January 2003 medical records cited in his brief. However, the
Court concludes that the
Board's failure to consider these records was harmless. First, with
respect to the February 1990
medical record, Mr. Phillips does not point to any evidence of a diagnosis
of a respiratory disorder
in service. In fact, the BoardexpresslystatedthattheAugust
1990pulmonaryfunction test "revealed
no pulmonary diagnosis and found [Mr. Phillips] to be within normal limits
." R. at 699. Second,
with respect to the April 2001 and January 2003 medical records, Mr.
Phillips does not explain how
considerationofthesepost-servicemedical recordswoulddemonstrateanin-
servicediseaseorinjury
or a nexus between his current chronic obstructive pulmonary disease and
service. Notably, the
October 2005 VA medical opinion attributed his chronic obstructive
pulmonary disease to his
tobacco use. Therefore, the Court concludes that Mr. Phillips has failed
to demonstrate Previous HitprejudicialNext Hit
error in this regard. See Hilkert, 12 Vet.App. at 151.
Moreover, Mr. Phillips's continuity of symptoms argument likewise fails
because he has not
pointed to any evidence of a nexus between his current respiratory
disability and his continuous
symptoms other than his lay statements, which the Board determined to be
incompetent. See Part
II.B.1 above. In light of the negative nexus opinion provided by the VA
examiner in October 2005
and the lack of any evidence of a nexus between his current respiratory
disability and his continuing
symptoms, any error by the Board in this regard is necessarily harmless.
3. Sinus and Throat Disorder
The portion of Mr. Phillips's brief regarding his claim for benefits for a
sinus and throat
disorder is somewhat unclear, but he appears to argue that the Board erred
in classifying his
gastroesophageal reflux disease as a sinus and throat disorder rather than
a gastrointestinal disorder.
See Appellant's Br. at 19. However, other than his conclusory statement
that this disorder was
8
Atelectasis is "incomplete expansion of a lung or a portion of a lung."
DORLAND'S at 173.
10


mischaracterized by the Board, Mr. Phillips makes no argument that he was
prejudiced by the
purported error. Indeed, the Court notes that the October 2005 VA medical
examination attributes
Mr. Phillips's gastroesophageal reflux disease to his age, weight, and
tobacco use and not to his
military service. R. at 768. Accordingly, the Court concludes that Mr.
Phillips has failed to carry
his burden of demonstrating error in this regard. See Hilkert, 12 Vet.App.
at 151.
4. Extreme Dental Decay
Mr. Phillips next argues that the Board's statement of reasons or bases
for its determination
that he was not entitled to benefits for extreme dental decay was
inadequate because it failed to
consider the September 1985 medical record indicating that he had dental
caries in service. He also
contends that the Board failed to consider his continuity of symptoms.
The Court agrees with Mr. Phillips that the Board failed to consider the
September 1985
medical record. Notably, the Board stated: "Service treatment records do
not reveal complaints of,
treatment for, or diagnosis of dental decay in service. Reports of [m]
edical [h]istory indicate that
[Mr. Phillips] never suffered from tooth or gum trouble." R. at 701. This
determination is clearly
erroneous in light of the September 1985 medical record indicating that Mr.
Phillips suffered from
dental caries.
However, the Court concludes that theBoard's failureto consider this
evidence was harmless
because, even assuming that the September 1985 medical record establishes
a disease or injury in
service, there is no competent evidence of a nexus between his current
disability and his service.
Specifically, VA attempted to provide Mr. Phillips with a dental
examination in October 2005 to
determine the etiology of his extreme tooth decay. However, Mr. Phillips
refused to undergo the
examination because he stated that "he had all [his] teeth removed and
dentures made" and "got his
award from Social Securityand [did] not feel he need[ed] the exam[ination
]." R. at 770. As a result,
the Board was free to adjudicate his claim based on the evidence of record,
which did not include
a medical nexus opinion. See Kowalski v. Nicholson, 19 Vet.App. 171, 178 (
2005) (recognizing that
"a veteran is free to refuse to report for a scheduled VA examination,"
but "the consequences of that
refusal may result in the adjudication of the matter based on the evidence
of record"); 38 C.F.R.
§ 3.655(b) ("When a claimant fails to report for an examination scheduled
in conjunction with an
original compensation claim, the claim shall be rated based on the
evidence of record."). The only
11


other evidence of record that indicates a nexus between Mr. Phillips's
current dental disability and
his service is his lay statement regarding the etiology of his extreme
dental decay, which the Board
determined was not competent. Again, Mr. Phillips does not challenge this
finding and the Court
will not disturb it. Therefore, had the Board considered the September
1985 medical record, Mr.
Phillips still would not have prevailed on his claim for benefits for
extreme dental decay because
there was no competent evidence of record connecting his current dental
disability to his service.
Accordingly, the Court concludes that the Board's failure to consider the
September 1985 medical
record did not prejudice his claim. See 38 U.S.C. § 7261(b)(2); Conway,
353 F.3d at 1374.
5. Gastrointestinal Disorder
Finally, Mr. Phillips argues that the Board's statement of reasons or
bases for its
determination that he was not entitled to benefits for a gastrointestinal
disorder was inadequate
because it failed to consider March 1988 and October 1990 complaints of
heartburn in service. The
Court agrees.
Here, the Board stated that "VA treatment records reflect ongoing
treatment for peptic ulcer
disease and chronic gastritis," but determined that Mr. Phillips did not
demonstrate a chronic
gastrointestinal problem in service because his service medical records
only revealed "a single
instance of gastritis" that was deemed to be "acute and transitory rather
than chronic in nature." R.
at 700. However, the Board did not discuss the March 1988 and October 1990
complaints of
heartburn, which could have indicated an in-service gastrointestinal
disorder. The Board was
required to discuss this potentially favorable evidence and its failure to
do so renders its statement
of reasons or bases inadequate. See Caluza, 7 Vet.App. at 506.
Unlike the Board's failure to discuss medical records related to Mr.
Phillips's other claims
as described above, the Court concludes that the Board's failure to
consider the March 1988 and
October 1990 service medical records was prejudicial to his claim for
benefits for a gastrointestinal
disorder because VA never provided him with a medical examination to
determine the etiology of
his chronicgastritis andpepticulcerdisease. Specifically,theAugust
2003VAmedicalexamination
did not address his gastrointestinal disorder and, although he was
provided with an examination for
"stomach, duodenum[,] and peritoneal adhesions" in October 2005, R. at 766,
the examiner only
discussed his gastroesophageal reflux disease, which the Board considered
part of his claim for
12


benefits for a sinus and throat disorder. R. at 698-99. Assuming, without
deciding, that the March
1988 and October 1990 complaints of heartburn were evidence of an event,
injury, or disease in
service, VA would be required to provide Mr. Phillips with a medical
examination pursuant to
38 C.F.R. § 3.159(c)(4)(i) because there would be evidence of a current
gastrointestinal disability,
i.e, chronic gastritis and peptic ulcer disease; an in-service
gastrointestinal disease demonstrated by
his complaints of heartburn; and an indication that the current disability
is related to the in-service
disease, i.e., credible evidence of continuityof symptoms capable of
layobservation. See McLendon
v. Nicholson, 20 Vet.App. 79, 81-84 (2006); see also 38 U.S.C. § 5103A(d)(
2). Consequently, the
Court is unable to conclude that the Board's failure to consider the March
1988 and October 1990
complaints of heartburn in service was nonprejudicial to Mr. Phillips's
claim for benefits for a
gastrointestinal disorder and, therefore, vacatur and remand is warranted.
See Gilbert, 1 Vet.App.
at 57.
Onremand,theBoardmust determinewhethertheMarch1988andOctober1990complaints
of heartburn demonstrate incurrence of a gastrointestinal disease in
service and, if so, whether a
medical examination is required pursuant to § 3.159(c)(4)(i). Mr.
Phillips is also free to submit
additional evidence and argument in accordance with Kutscherousky v. West,
12 Vet.App. 369,
372-73 (1999) (per curiam order). See Kay v. Principi, 16 Vet.App. 529,
534 (2002). The Court
reminds the Board 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). In
addition, the Board shall
proceed expeditiously, in accordance with 38 U.S.C. § 7112 (expedited
treatment of remanded
claims).
13


III. CONCLUSION
Upon consideration of the foregoing, the portions of the April 30, 2009,
Board decision
denying entitlement to benefits for a neuropsychological disorder and a
gastrointestinal disorder are
VACATED and the claims REMANDED for further development, if necessary, and
readjudication
consistent with this decision. The remainder of the Board decision is
AFFIRMED.
DATED: July 27, 2011
Copies to:
Valerie D. Metrakos, Esq.
VA General Counsel (027)
14

Single Judge Application, Prejudicial Error, Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)

Excerpt from decision below:
"A September 2006 VA medical treatment
record states that the appellant's knee and back hurt and that they were injured in Vietnam when he "jumped from the top of a water tank." R. at 576. The record also reveals that the appellant did not receive treatment at that time. R. at 576, 578, 580. The Board's failure to discuss this evidence is prejudicial because it is potentially relevant to proving the appellant's claim under either a theory of direct service connection or a theory of continuity of symptomatology. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Savage v. Gober, 10 Vet.App. 488, 496-97 (1997); 38 C.F.R. § 3.303(b) (2011).
Therefore, the appellant's low back claim must be remanded so the Board
can address evidence material to the appellant's claim. See Caluza, supra.


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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-3729
GORDON R. WEMHOFF, 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, Gordon R. Wemhoff, through counsel, appeals a
September
21, 2009, Board of Veterans' Appeals (Board) decision that denied his
claims for entitlement to
service connection for left ear hearing loss, a lower back condition, a
right ankle condition, a right
knee condition, and a right lower leg condition. Record (R.) at 3-6. The
Court notes that it lacks
jurisdiction over several claims that were remanded and they will not be
addressed further. See 38
U.S.C. §§ 7252(a), 7266(a); Howard v. Gober, 220 F.3d 1341, 1344 (Fed.
Cir. 2000). The appellant
does not present any argument concerning the denial of claims concerning
his posterior right calf
scar, gastroesophageal reflux disease, peripheral neuropathy, acquired
psychiatric disorder, and
sexual dysfunction. Accordingly, those claims are deemed abandoned. See
Ford v. Gober,
10 Vet.App. 531, 535 (1997). Single-judge disposition is appropriate. See
Frankel v. Derwinski,
1 Vet.App. 23, 25-26 (1990). This appeal is timely, and the Court has
jurisdiction over the case.
38 U.S.C. §§ 7252(a) and 7266. For the reasons that follow, the Court
will vacate the September
21, 2009, decision as to the claim for a lower back disorder and remand
that matter for further
proceedings consistent with this decision. The decision will otherwise be
affirmed.


I. FACTS
The appellant served on active duty in the U.S. Air Force from June 1967
until June 1971.
R. at 838. Service medical records (SMRs) demonstrate that he had multiple
hearing tests during
his service and that his left ear hearing was normal upon discharge. R. at
744-45, 754-55, 758.
In September 2006, the appellant filed claims for entitlement to service
connection for,
among other things, bilateral hearing loss and a lower back disability. R.
at 690-705. In November
2006, VA afforded the appellant an audiology examination and opinion. R.
at 622-26. The
examiner noted that there was "some high frequency hearing loss" in the
appellant's right ear on both
his service entrance and exit exams, but that there was "no significant
change in either ear between
the two tests." R. at 624. The examiner opined that it is at least as
likely as not that the appellant's
current tinnitus is related to his active service, but that it is not
likely that the appellant's hearing loss
is related to his active service. R. at 626.
In a December 2006 rating decision, VA determined, among other things,
that the appellant
was entitled to service connection for tinnitus. R. at 612-21. VA
requested a clarification from the
examiner and, in a December 2006 addendum, the examiner opined that the
appellant's hearing loss
is not related to his in-service noise exposure. R. at 606. The examiner
also issued a supplemental
opinion in which he listed the puretone threshold results from the
appellant's service entrance and
exit examinations; he then reiterated that there was no significant change
between the two tests and
that "[b]ased on the UNCHANGED audiogram at exit from the service (
relative to entrance) the
veteran's current hearing loss in either ear is not likely to be related
to noise exposure in the service."
R. at 606 (capitalization in original).
In February 2007, the appellant received a VA orthopedic examination. R.
at 591-94. The
examiner noted that the appellant sprained his back in 1968. R. at 592.
The examiner opined that
the appellant's current back disability is not likely the result of a
documented in-service calf injury.
R. at 593. An additional orthopedic opinion was obtained in April 2007. R.
at 583-84. That
examiner noted that he reviewed the appellant's claims file, which
included previous examination
reports and opinions. R. at 583. The examiner further noted that the
appellant's SMRs indicated that
he was diagnosed with a back sprain in April 1968, although his separation
examination did not note
a back condition. R. at 583. The examiner found that the appellant's
current back disability, which
is spinal stenosis, is not likely due to his in-service back sprain. R. at
583. The examiner based his
2


opinion upon the appellant's separation examination, the lack of evidence
of a disability after
discharge, and the lack of continuity of symptoms or treatment. R. at 583.
In May 2007, VA issued a rating decision denying, among other things,
service connection
for left ear hearing loss and a lower back condition. R. at 560-70. In
addition, it granted service
connection for right ear hearing loss. R. at 566. The appellant filed a
Notice of Disagreement
(NOD) in August 2007. R. at 517-22. The appellant perfected his appeal in
January 2008. R. at
211-12. In the decision on appeal, the Board denied the disputed claims. R.
at 3-40.
II. ANALYSIS
A. Secretary's Motion to Strike
As a preliminary matter, the Court notes that after the appellant filed
his reply brief, on October
21, 2010, the Secretary filed a motion to strike the portion of his reply
brief that cites to non-
precedential authority, pursuant to Rule 30 of this Court's Rule of
Practice and Procedure. U.S.
VET.APP. R. 30(a). The appellant has not responded to the Secretary's
motion. In his reply brief, the
appellant cites to Flodman v. Shinseki, No. 07-3291, 2009 WL 2730884 (
August 31, 2009), and argues
that the facts of that case are "analogous" to the facts of the case here
on appeal. Appellant's Reply
Brief (Br.) at 3. He further suggests that the Court should adopt the
logic of that case in deciding his
appeal. Appellant's Reply Br. at 3-4. Because the appellant asserts that
the logic and analysis of
Flodman apply in this case, his use of the case violates Rule 30(a).
Therefore, the Court will grant the
Secretary's motion to strike the portion of the appellant's reply brief
that relies on Flodman.
B. Low Back Disability
The parties agree that the appellant's claim for service connection for a
low back disorder must
be remanded because the Board failed to adequately address the appellant's
lay testimony. See
Appellant's Br. at 15-18, Secretary's Br. at 15-16. After a review of the
pleadings and cited records
in this case, the Court agrees that remand is necessary.
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;
that 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. 38 U.S.C. § 7104(d)(1); Allday v. Brown,
7 Vet.App. 517, 527 (1995);
Simon v. Derwinski, 2 Vet.App. 621, 622 (1992); Gilbert v. Derwinski, 1
Vet.App. 49, 57 (1990). To
3


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. Caluza v. Brown, 7
Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (
table); Gabrielson v. Brown,
7 Vet.App. 36, 39-40 (1994).
In this case, the Board failed to discuss any of the appellant's lay
testimony or to apply the
relevant law to that testimony. A September 2006 VA medical treatment
record states that the appellant's knee and back hurt and that they were injured in Vietnam when he "jumped from the top of a water tank." R. at 576. The record also reveals that the appellant did not receive treatment at that time. R. at 576, 578, 580. The Board's failure to discuss this evidence is prejudicial because it is potentially relevant to proving the appellant's claim under either a theory of direct service connection or a theory of continuity of symptomatology. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Savage v. Gober, 10 Vet.App. 488, 496-97 (1997); 38 C.F.R. § 3.303(b) (2011).
Therefore, the appellant's low back claim must be remanded so the Board
can address evidence material to the appellant's claim. See Caluza, supra.

The appellant also argues that the February 2007 VA orthopedic examiner
did not adequately
describe his history because the examiner only considered an April 1968
automobile accident that
inured the appellant's back and did not address the appellant's lay
testimony that he injured his back
when he jumped off a water tank in Vietnam. Appellant's Br. at 11-12. The
Court agrees with the
appellant that this factual issue would be critical to an adequate medical
opinion (see Ardison v.
Brown, 6 Vet.App. 405, 407 (1994)); however, the need for a new medical
examination is an issue best
decided by the Board in the first instance. See Maggitt v. West, 202 F.3d
1370, 1377-79 (Fed. Cir.
2000) (Court has discretion to remand issues to the Board); see also
McCormick v. Gober,
14 Vet.App. 39, 45 (2000) (holding that remand is appropriate where it
would "likely benefit the
Court by producing 'a better record . . . for appellate review of the [
Board's] decision'") (quoting
Maggit, 202 F.3d at 1377). Specifically, whether the February 2007 exam is
inadequate depends
on whether the Board finds the appellant's statement that he injured his
back after jumping off a
water tank to be credible. See Reonal v. Brown, 5 Vet.App. 458, 461 (1993) (
medical opinion based
on inaccurate factual premise has no probative value). This is a
determination that the Court cannot
make; therefore, the issue of whether a new medical opinion is necessary
is better left to the Board.
4


See Maggitt, supra; Mayfield v.Nicholson, 444 F.3d 1328, 1333 (Fed. Cir.
2006). Accordingly, on
remand, the Board must address whether the appellant's statements are
credible and, if so, whether
the February 2007 VA orthopaedic opinion was inadequate.
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). Furthermore,
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); see also
Harvey v. Shinseki,
24 Vet.App. 284, 288 (2011) (the Secretary's duty to expedite is an
inherent component of the
Court's remand power that merits suitable urgency and attention from the
Secretary).

C. Left Ear Hearing Loss
Hearing loss is considered a disability for compensation purposes when: (1)
the auditory
threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (
Hz) is 40 decibels or greater;
(2) when the auditory thresholds for at least three of the frequencies 500,
1000, 2000, 3000, or 4000
Hz are 26 decibels or greater; or (3) when speech recognition scores using
the Maryland CNC Test are
less than 94%. 38 C.F.R. § 3.385 (2011). Disability ratings for hearing
loss are almost exclusively
dependent on the mechanical application of average pure tone decibel loss
and percent of speech
discrimination to the corresponding VA rating table. See Acevedo-Escobar v.
West, 12 Vet.App. 9,
10 (1998); Lendenmann v. Principi, 3 Vet.App. 345, 349 (1992); 38 C.F.R. §
4.85 (2011). Hearing
loss does not constitute a disability if it does not meet the threshold
requirements set forth in 38 C.F.R.
§ 3.385. Palczewski v. Nicholson, 21 Vet.App. 174, 179-80 (2007).
1. Adequacy of November and December 2006 Opinions
A medical opinion is considered adequate for evaluation purposes if it (1)
is based upon
consideration of the veteran's prior medical history, (2) describes the
disability in sufficient detail so
that the Board's "'evaluation of the claimed disability will be a fully
informed one,"' Ardison v. Brown,
6 Vet.App. at 407 (quoting Green v. Derwinski, 1 Vet.App. 121, 124 (1991)),
and (3) "supports its conclusion with an analysis that the Board can consider and weigh against contrary opinions." Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007). Whether a medical opinion is adequate is a finding of fact, which the Court reviews under the "clearly erroneous" standard. See 38 U.S.C. § 7261(a)(4); D'Aries
5


v. Peake, 22 Vet.App. 97, 103 (2008); Gilbert, 1 Vet.App. at 52. "A
factual finding 'is "clearly
erroneous" when although there is evidence to support it, the reviewing
court on the entire evidence
is left with the definite and firm conviction that a mistake has been
committed.'" Hersey v. Derwinski,
2 Vet.App. 91, 94 (1992) (quoting United States v. U.S. Gypsum Co., 333 U.
S. 364, 395 (1948)).
The appellant argues that the November 2006 VA audiological examination
and the December
2006 clarification relied upon by the Board to deny service connection for
his left ear hearing loss are
inadequate because the examiner did not take into account that his 1966
entrance physical and his 1971
discharge physical reveal a worsening of his hearing at 4,000 Hz.
Appellant's Br. at 7-8. After a
review of the records in question, the Court finds this argument
unpersuasive, because the 2006 VA
examiner took those results into account in formulating his opinion. See
Hilkert v. West, 12 Vet.App.
145, 151 (1999) (en banc) (stating that on appeal to the Court, the "
appellant always bears the burden
of persuasion"), aff'd, 232 F.3d 908 (Fed. Cir. 2000) (table).
In both of the 2006 VA opinions, the examiner noted that audiometric
testing was performed
in 1966 and 1971, and that there was "no significant change in either ear
between the two tests." R.
at 624 (emphasis added). The examination report further states: "Based on
the separation audiogram
being unchanged relative to the entrance audiogram, it is not likely that
the veteran's current hearing
loss is a direct result of [m]ilitary noise exposure." R. at 626, see also
R. at 605 (December
clarification stating there was no significant change in either ear). In
December 2006, the examiner
concluded "[b]ased on the UNCHANGED audiogram at exit from the service (
relative to entrance) the
veteran’s current hearing loss in either ear is not likely to be related
to noise exposure in the service."
R. at 606 (capitalization in original). Furthermore, the examination is
otherwise adequate because it
contains a history, diagnostic testing, a description of the disability,
and a rationale for its conclusion.
R. at 606, 622-26. Therefore, because the Board had a basis for finding
that the VA examiner
specifically addressed the results of the appellant's audiological
examinations from 1966 and 1971, the
appellant's argument is unpersuasive. See Hilkert, supra.
As for the appellant's contention that the Board did not provide an
adequate statement of
reasons or bases for relying on the November and December 2006 VA opinions,
the Court is equally
unconvinced. See Hilkert, supra. In the decision on appeal, the Board
provided an adequate statement
of reasons or bases for determining that the VA examinations were adequate.
It stated:
6


the VA examinations obtained in this case are adequate as they are
collectively
predicated on a review of the claims folder and medical records contained
therein;
contain descriptions of the history of the disabilities at issue; document
and consider
the relevant medical facts and principles; recorded the relevant findings
for rating the
Veteran's service connected disabilities; and provided opinions with
supporting
rationale for those disabilities which the Veteran claims are service-
connected.
R. at 10. This explanation is consistent with the law, supported by the
record, and sufficient to inform
the appellant of the basis for the Board's determination, while also
allowing for review by this Court.
See Allday, supra. Accordingly, the appellant does not present a basis for
remand. See Hilkert, supra.
2. Effect of Service Connection for Right Ear Hearing Loss
The appellant also contends that he is entitled to service connection for
his left ear hearing loss
because VA is bound by the facts that were relied upon to determine his
entitlement to compensation
for right ear hearing loss. Appellant's Br. at 5-11, 17. This argument is
unpersuasive and unsupported
by law. See Hilkert, supra. First, the facts relied upon by the appellant
were decided by the regional
office (RO) and, therefore, were not binding upon the Board. See Anderson
v. Shinseki, 22 Vet.App.
423 (2009). Second, the factual situation involved in the appellant's
claim for service connection for
his right ear hearing loss and tinnitus varies in a meaningful way from
the factual situation surrounding
his left ear hearing loss claim. Specifically, the RO awarded service
connection for the appellant's
right ear because his 1971 separation audiogram demonstrated a 45 decibel
auditory threshold at 4,000
Hz. R. at 566. However, the appellant's 1966 auditory test results
demonstrate that he did not have
a right ear hearing disability when he entered active service, and his
1971 separation examination
revealed that he had a right ear hearing disability upon discharge. R. at
744-45, 754-55; see 38 C.F.R.
§ 3.385 (2011). Furthermore, a review of the record reveals that the RO
awarded service connection
despite the negative nexus examination because the in-service medical
records demonstrated that the
appellant had a right ear hearing loss disability prior to discharge. R.
at 566. However, the appellant
did not have a left ear hearing loss disability when he separated from
service and he did not develop
a left ear hearing loss disability until later in life. R. at 744-45.
Additionally, in contrast to his left ear
hearing loss, the medical evidence of record indicates that his tinnitus
is "at least as likely as not" the
result of his in-service noise exposure. R. at 612-21, 626. Therefore,
given the factual differences
between the right and left ear hearing loss, and given that the facts
relating to the right ear hearing loss
have no preclusive effect on the Board, there is no valid basis for remand.
See Hilkert, supra.
7


The appellant also argues that the November and December 2006 VA
audiological opinions violated the holding in Hensley v. Brown; however, the appellant misreads that case. 5 Vet.App. 155(1993). In Hensley, the Court stated that "when audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service." Id. at 160.
However, Hensley is a legal doctrine applicable to the Board and not a medical guideline. See id. at 164 (explaining that "the Board was required to determine whether the veteran's current right-ear hearing disability was causally related to
in-service noise exposure"). Indeed, the Court lacks the necessary
expertise to make binding rules on
medical issues and the ever-changing nature of medical knowledge cannot be
subject to res judicata.
Rather, the physician should apply current medical knowledge to the facts
of an individual's case, and
Board, as finder of fact, interprets the medical reports in light of the
applicable law. See Moore v.
Nicholson, 21 Vet.App. 211, 218 (2007) ("The medical examiner provides a
disability evaluation and
the rating specialist interprets medical reports in order to match the
rating with the disability."), rev'd
on other grounds sub nom. Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009).
In this case, the VA examiner did not base his conclusion solely on normal
hearing test results
at separation but, rather on the fact that the veteran's audiograms at
separation had not significantly
changed from his enlistment audiograms. R. at 18, 622-26. Nothing in
Hensley precludes a medical
examiner from relying on a comparison between two in-service audiograms.
Hensley, 5 Vet.App. at
159-60. Accordingly, the Board properly determined that the medical
evidence did not demonstrate
that the appellant's current left ear hearing loss is related to his
active service. R. at 13-16. Therefore,
this argument lacks merit and does not provide an independent basis for
remand.
III. CONCLUSION
After consideration of the appellant's and the Secretary's briefs and a
review of the record,
the Board's September 21, 2009, decision is VACATED as to the appellant's
claim for a low back
disorder and that matter is REMANDED to the Board for further proceedings
consistent with this
decision. The Board decision is otherwise AFFIRMED.
DATED: August 1, 2011
8


Copies to:
John S. Berry, Esq.
VA General Counsel (027)
9