Monday, August 8, 2011

Federal Circuit, Smith v. Shinseki, No. 2010-7145, TDIU; Thun v. Shinseki, 572 F.3d 1366, 1369 (Fed. Cir. 2009)

Excerpt from decision below:
"We have previously held that VA interpretations of its own regulations in its Adjudication Procedures Manual are “controlling” as long as they are not “plainly erroneous or inconsistent with the regulation.” Thun v. Shinseki, 572 F.3d 1366, 1369 (Fed. Cir. 2009) (quoting Auer v. Robbins, 519 U.S. 452, 461 (1997)).
=======================

United States Court of Appeals for the Federal Circuit
__________________________
CURTIS E. SMITH,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS,
Respondent-Appellee.
__________________________
2010-7145
__________________________
Appeal from the United States Court of Appeals for Veterans Claims in 08-3702, Judge William P. Greene. Jr.
__________________________
Decided: August 8, 2011
___________________________
JAMES R. BARNEY, Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, of Washington, DC, argued for claimant-appellant. MARK R. LIPPMAN, The Veterans Law Group, of La Jolla, California, for claimant-appellant.
ERIC P. BRUSKIN, Trial Attorney, Commercial Litiga-tion Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for the respondent-appellee. With him on the brief were TONY WEST, Assis-tant Attorney General, JEANNE E. DAVIDSON, Director, and MARTIN F. HOCKEY, JR., Assistant Director. Of coun-
SMITH v. DVA 2
sel on the brief were MICHAEL J. TIMINSKI, Deputy Assis-tant General Counsel, and AMANDA R. BLACKMON, Attor-ney, United States Department of Veterans Affairs, of Washington, DC.
__________________________
Before LINN, PLAGER, and DYK, Circuit Judges.
DYK, Circuit Judge.

Curtis E. Smith (“Smith”) appeals a decision of the Court of Appeals for Veterans Claims (“Veterans Court”) that denied him a rating of total disability based on individual unemployability (“TDIU”). Smith argued that the Veterans Administration (“VA”) was required to obtain an industrial survey from a vocational expert to evaluate TDIU claims such as Smith’s. The Veterans Court rejected this argument. We affirm.

BACKGROUND
Smith served in active military duty for training from July 1972 to November 1972, active military duty from February 1975 to February 1979, and in the Army Na-tional Guard before and after his active service. While not serving in the military, Smith worked as a “laborer in a supply company and in the coal mines . . . for 13 years” and as a carpenter. J.A. 38. In January 1997, Smith filed a claim for entitlement to TDIU. TDIU provides a veteran with a total disability rating even where his disability rating is below 100% if the veteran is at least 60% disabled, meets other disability rating criteria, and is “unable to secure or follow a substantially gainful occupa-

3 SMITH v. DVA

tion as a result of service-connected disabilities.”1 38 C.F.R. § 4.16(a).
In September 1998, the VA regional office denied Smith’s TDIU claim. From 1998 to 2007, the Board of Veterans’ Appeals (“Board”) remanded Smith’s claim to the VA for further development three times, and Smith underwent a total of five VA medical examinations. By 2007, Smith had a combined service-connected disability rating of 80% based on neck, back, cardiovascular, eye, and hearing disorders. Finally, in November 2007, the Board denied Smith’s TDIU claim. The Board found that his 80% combined rating (with at least one disability rated at 40%) met the threshold requirements for a TDIU claim. See 38 C.F.R. § 4.16(a). However, taking into account Smith’s work history, his educational back-ground, and reports from VA medical examiners, the Board found that Smith’s disabilities were not “so disabling as to prevent him from securing and maintaining all forms of substantially gainful employment consistent with a work background that would be consistent with either sedentary employment or certainly light manual labor.” J.A. 35. The basis for this finding was, in significant part, the conclusions of the VA medical examiners.
While the medical examiners did not suggest that Smith could perform his previous employment as a laborer in the coal mines or a carpenter, they concluded that he was not prevented from performing other jobs. One examiner concluded, based in part on Smith’s enrollment in business classes, that he would be capable of “[d]esk jobs” or other activities “similar to that of school-

1 A veteran who does not meet the disability rating thresholds may still be able to secure TDIU benefits under some circumstances if he is still “unable to secure or follow a substantially gainful employment as a result of service-connected disabilities.” 38 C.F.R. § 4.16(b).

SMITH v. DVA 4

ing” that would not involve “heavy labor.” J.A. 45. Another examiner stated that Smith “should be able to assume gainful employment doing most types of work which do not involve heavy lifting (above 20-30 pounds), excessive bending, or climbing. He would certainly be able to assume all types of sedentary and light work.” J.A. 50–51. A third examiner determined that Smith’s cardiovascular disorder would not prevent him from being gainfully employed. Lastly, a VA examiner found that Smith’s eye disorder would only preclude him from jobs where excellent depth perception was required or double vision would be a serious risk (i.e., jobs involving driving or heavy equipment operation).
Smith appealed the Board’s decision to the Veterans Court, which affirmed. The Veterans Court found that the Board’s conclusion was not clearly erroneous. It also rejected Smith’s argument that the Board did not take “his potential transferable occupational skills or educational background” into account. Smith v. Shinseki, No. 08-3702, slip op. at 3 (Vet. App. Aug. 11, 2010). Lastly, the Veterans Court held that the VA was not obligated to obtain an industrial survey from a vocational expert in order to evaluate whether Smith was employable in a job other than his former occupation (i.e., a job that did not involve heavy manual labor). Smith timely appealed, and we have jurisdiction pursuant to 38 U.S.C. § 7292.

DISCUSSION
Under 38 U.S.C. § 7292(a) and (c), our review of decisions of the Veterans Court is limited to a “challenge to the validity of any statute or regulation or any interpretation thereof . . . .” Smith challenges the Veterans Court’s interpretation of 38 U.S.C. § 5103A––the duty to assist statute.

5 SMITH v. DVA

The duty to assist statute provides that the VA “shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant’s claim for [veterans] benefit[s].” Id. Smith argues that an industrial survey from a vocational expert (or its equivalent) is “necessary” in all TDIU cases in which “a veteran’s service-connected disabilities prevent him . . . from performing the duties of his . . . prior employment” but where he may be able to “secure alternative employment.” Appellant’s Br. 11, 15. According to Smith, in this situation, only an industrial survey “can . . . tell us what jobs are available in the labor market [that are] compatible with the claimant’s physical [and] mental limitations [and] educational and employment experience.” Appellant’s Br. 19. Although Smith fails to fully explain what an industrial survey entails, it apparently involves collecting job market data, comparing available jobs with an individual’s skills and experience, and thereby enabling a vocational expert to determine “whether jobs are avail-able, to which . . . [the] claimant can make a work adjustment, and the incidence of those jobs in the economy.” Jon C. Dubin, Overcoming Gridlock: Campbell After a Quarter-Century and Bureaucratically Rational Gap-filling in Mass Justice Adjudication in the Social Security Administration’s Disability Programs, 62 Admin. L. Rev. 937, 965 (2010).
This question whether the VA is obligated to supply a vocational expert as a matter of course in cases where the veteran cannot perform his old job is an issue of first impression. We agree with the Veterans Court that the statute does not require the VA to obtain such a survey in all cases in which a veteran is unable to return to his former occupation.
We note first that the statute includes no explicit reference to industrial surveys or vocational expert reports.

SMITH v. DVA 6

In contrast, the statute specifically requires the VA to obtain “[t]he claimant’s medical records,” “[a]ny [other] relevant records” identified by the claimant (including government records), and “a medical examination or . . . a medical opinion” when that examination or opinion is “necessary.” 38 U.S.C. § 5103A(b)-(d).2 The explicit reference to medical expert reports without a reference to vocational expert reports provides evidence that Congress did not view such industrial surveys as “necessary.” Like the statute, nothing in the VA’s regulation implementing the duty to assist statute explicitly requires the VA to obtain an industrial survey or consult non-medical experts even though the regulation identifies specific instances in which the duty to assist applies, including “obtaining records” and “providing medical examinations or obtaining medical opinions.”3 38 C.F.R. § 3.159(c).

2 The statute also explicitly defines when such a medical examination is “necessary.” It is “necessary” if the record “contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability;” and “indicates that the disability or symptoms may be associated with the claimant's active military, naval, or air service;” but “does not contain sufficient medical evidence for the Secretary to make a decision on the claim.” 38 U.S.C. § 5103A(d)(2).

3 So too a precedential VA general counsel opinion determined that in order to “require an employability assessment [from VA’s vocational rehabilitation service] as a matter of generally applicable adjudication policy for determining a veteran’s entitlement to [TDIU] . . . the Secretary must . . . first promulgate substantive regulations defining the scope, purpose and criteria for conducting such an assessment.” Precedential Opinion of the Office of Gen. Counsel for the Dep’t of Veterans Affairs, No. 08-1994, 4–5 (Mar. 25, 1994), available at http://www.va.gov/ogc/docs/1994/Prc08-94.doc. No such regulation has been promulgated.

7 SMITH v. DVA

Nevertheless, in and of itself, the failure of the statute or the regulation to specifically require the VA to provide an industrial survey from a vocational expert is not dispositive. The duty to assist statute could still require the VA to obtain an industrial survey if it were “necessary to substantiate” the veteran’s claim. However, here, the administrative scheme makes it clear that such a survey is not “necessary” as a matter of course for TDIU claims of the type identified by Mr. Smith.
Smith’s primary argument is that the VA must con-sider the availability of work in making a TDIU determination. The VA regulation governing TDIU claims includes no requirement that the agency consider the availability of work and makes no reference to vocational experts or industrial surveys. See 38 C.F.R. § 4.16. While the TDIU regulation requires that the veteran be capable of obtaining employment that would provide income “exceed[ing] . . . the poverty threshold for one person,” it does not state that a particular job meeting this standard must exist in the national or local economy. Id. § 4.16(a). The VA’s Adjudication Procedures Manual (published by VA in order to provide guidance to its adjudicators) explicitly states that the “availability of work” is an “extraneous factor” that is irrelevant to the TDIU determination. VA Adjudication Procedures Manual Rewrite M21-1MR, Part IV, Subpart ii, Chapter 2, Section F, 2-F-12.
We have previously held that VA interpretations of its own regulations in its Adjudication Procedures Manual are “controlling” as long as they are not “plainly erroneous or inconsistent with the regulation.” Thun v. Shinseki, 572 F.3d 1366, 1369 (Fed. Cir. 2009) (quoting Auer v. Robbins, 519 U.S. 452, 461 (1997)). We thus defer to this interpretation of the TDIU regulation, which is consistent with the Veterans Court’s standard. That standard does not require a showing that jobs exist in sufficient num-

SMITH v. DVA 8

bers in the economy. See, e.g., Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (“The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment.”).
Given that a TDIU determination does not require any analysis of the actual opportunities available in the job market, we decline to conclude that an industrial survey is “necessary” for that purpose in connection with TDIU claims. Because job market information is not required, the duty to assist does not require the VA to provide such information through an industrial survey.4
To support his contrary interpretation, Smith relies on cases involving Social Security Administration (“SSA”) disability determinations. These cases held that, at least in some circumstances, the SSA was required to provide vocational expert testimony or similar evidence. See, e.g., DeLorme v. Sullivan, 924 F.2d 841, 850 (9th Cir. 1991); Fields v. Bowen, 805 F.2d 1168, 1170 (5th Cir. 1986). However, the SSA scheme differs significantly from the VA’s approach. The SSA regulations expressly provide that “any other work [besides your former occupation] that you can adjust to must exist in significant numbers in the national economy” and that “[SSA is] responsible

4 See Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir. 2009) (holding that the duty to assist does not require the VA to provide affirmative evidence as to the competence of a VA examiner “because VA does not require a claimant such as Mr. Rizzo to provide any evidence that would establish the competence of a VA examiner in order to substantiate a claim for benefits”).

9 SMITH v. DVA

for providing evidence that demonstrates that other work exists in significant numbers in the national economy that you can do, given your residual functional capacity . . . .” 20 C.F.R. § 404.1560(c). The SSA regulations also specifically envision that “[SSA] may use the services of a vocational expert or other specialist,” id. § 404.1566(d), and a 1983 Social Security precedential ruling determined that, in some cases, “the assistance of a vocational resource may be necessary.” SSR 83-14: Titles II and XVI: Capability To Do Other Work (1983), available at http://www.socialsecurity.gov/OP_Home/rulings/di/02/SSR83-14-di-02.html.
Smith argues that, quite apart from determining the availability of work, a vocational expert may be necessary to determine whether a veteran is qualified in education and experience for the type of job that he is medically fit to perform. He notes that the regulation provides that “employment history, [and] educational and vocational attainment” of the veteran are relevant to a TDIU claim. 38 C.F.R. § 4.16(b). At the same time, the duty to assist statute provides that “[n]othing . . . shall be construed as precluding the Secretary from providing such other assistance . . . to a claimant in substantiating a claim as the Secretary considers appropriate.” 38 U.S.C. § 5103A(g). At oral argument, the government agreed that the statute provided the VA with the discretion to offer additional assistance in the form of a vocational expert when the VA concluded that it was necessary. Thus, the VA agrees that a vocational expert could be “necessary” under the facts of a particular case (if, for example, the veteran were found medically qualified for a particular type of job, but there was an unusually difficult question as to whether the veteran had the educational or vocational skills for the position).
SMITH v. DVA
10

But the relevance of education and experience or the fact that such an expert is sometimes necessary does not suggest that a vocational expert is always required for this purpose, and we hold that such an expert is not invariably required. We note in particular that Smith’s counsel at oral argument “concede[d]” that “there has to be some discretion [with] the [VA]” in determining “when and where” such evidence is necessary, Oral Arg. at 10:44–11:03, available at http://oralarguments.cafc.uscourts.gov/default.aspx?fl=2010-7145.mp3.

Smith appears to argue that the VA should have found that an expert was necessary for this purpose in this case. Even if the question of whether a vocational expert was necessary in this case were within our jurisdiction––a question on which we express no opinion––we could not conclude on these facts that the VA abused its discretion in declining to provide a vocational expert.
AFFIRMED
COSTS
No costs.

Federal Circuit, Singleton v. Shinseki, No. 2010-7106 (Decided: August 8, 2011)

Excerpt from decision below:

"As the government noted in its briefing, “The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (internal quotation marks omitted). In that case the Supreme Court set forth guidance for determining the constitutional sufficiency of a process that results in a deprivation of property:
[O]ur prior decisions indicate that identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and, finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.Id. at 334–35.

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

"As to the first factor, this court has previously recognized a constitutionally-protected property interest in a veteran’s entitlement to disability benefits. Cushman v. Shinseki, 576 F.3d 1290, 1298 (Fed. Cir. 2009). This

SINGLETON v. DVA 8

recognition was based on our reasoning that “[v]eteran’s disability benefits are nondiscretionary, statutorily mandated benefits. A veteran is entitled to disability benefits upon a showing that he meets the eligibility requirements set forth in the governing statutes and regulations.” Id. (emphasis added). To the extent that Mr. Singleton has a protectable property interest here to disability benefits, that interest extends only so far as the law creates it."
==============

"And while Mr. Singleton is correct that § 3.344 confers a measure of additional security to veterans whose disability rating has “stabilized” (i.e., has remained at the same level for over five years), we see nothing in the regulation or the caselaw suggesting that this extra security is available when establishing staged ratings retrospectively."
==========================




United States Court of Appeals for the Federal Circuit
__________________________
GEORGE SINGLETON,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS,
Respondent-Appellee.
__________________________
2010-7106
__________________________
Appeal from the United States Court of Appeals for Veterans Claims in case no. 08-1131, Judge Bruce E. Kasold.
__________________________
Decided: August 8, 2011
__________________________
KENNETH M. CARPENTER, Carpenter, Chartered, of Topeka, Kansas, argued for claimant-appellant.
MARTIN F. HOCKEY, JR., Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With him on the brief were TONY WEST, Assistant Attorney General, JEANNE E. DAVIDSON, Director, and TODD M. HUGHES, Deputy Director. Of
SINGLETON v. DVA 2
counsel on the brief were MICHAEL J. TIMINSKI, Deputy Assistant General Counsel and DANA RAFFAELLI, Attor-ney, United States Department of Veterans Affairs, of Washington, DC.
__________________________
Before BRYSON, PLAGER, and PROST, Circuit Judges.
PROST, Circuit Judge.

George Singleton is a Navy veteran who served during the Vietnam War and who now suffers from posttraumatic stress disorder (“PTSD”) and schizophrenia. He applied for disability benefits in February 1981 but his claim was rejected. Much later, the United States Court of Appeals for Veterans Claims (“Veterans Court”) and the Board of Veterans’ Appeals (“Board”) concluded that Mr. Singleton was in fact entitled to benefits stemming from that initial claim. This case concerns the procedures the Board applied to retrospectively assess the extent of Mr. Singleton’s disability (and so compute the value of his claim) during the twenty-seven years from 1980 to 2007. Mr. Singleton contends that the Board’s procedures denied him due process. For the reasons set forth below, we disagree.

I. BACKGROUND
For our purposes, the story of this case began April 11, 1980, when the Department of Veterans Affairs (“VA”) added diagnosis of PTSD to the disabilities rating schedule. See generally Schedule for Rating Disabilities; New Diagnostic Code, 45 Fed. Reg. 26,326 (Apr. 18, 1980) (later codified at 38 C.F.R. pt. 4). About ten months after PTSD was added to the schedule, Mr. Singleton filed a claim for disability benefits in connection with an acquired psychiatric disorder, namely schizophrenia and

3 SINGLETON v. DVA

PTSD. Mr. Singleton contended that his condition was traceable to his Navy service in the 1970s, but his claim was denied for lack of service connection after the VA was unable to verify some of his allegations. For various reasons, this denial never became final and Mr. Single-ton’s case remained open but dormant. See Singleton v. Nicholson, No. 04-2396, 2006 WL 4111519, at *1 (Vet. App. Dec. 22, 2006) (“2006 Ct. Op.”) (analyzing the status of Mr. Singleton’s claim between 1981 and 2001).
Time passed. On August 7, 2001, Mr. Singleton asked that his claim be reopened and submitted new evidence of service connection. This time, the VA granted service connection and assigned a 100% disability rating effective the date of the 2001 filing. On appeal to the Board, Mr. Singleton argued that his benefits should be backdated further in accordance with his 1981 claim. The Board held a hearing in April 2004 concerning this argument, which it subsequently rejected. Bd. Vet. App. 0429095 (Oct. 22, 2004), rev’d, 2006 Ct. Op.
The Veterans Court, however, agreed with Mr. Singleton that benefits should have been awarded in the period before the 2001 filing reopened the case. 2006 Ct. Op. at *2. It ordered the Board to determine an earlier effective date for Mr. Singleton’s benefits and to compute his back benefits accordingly. The Veterans Court specifically instructed the Board to determine the level of Mr. Singleton’s disability “for the various periods of time during the pendency of the claim, a practice known as ‘staged’ ratings.” Id.
On remand the Board determined that Mr. Singleton was entitled to benefits dating back to the addition of PTSD to the rating schedule, April 11, 1980. Bd. Vet. App. 0723470 (July 30, 2007) (“July 2007 Bd. Op.”), aff’d

SINGLETON v. DVA 4

sub nom. Singleton v. Shinseki, 23 Vet. App. 376 (2010). Five months later, the Board established the following staged ratings for Mr. Singleton’s disability:1
Period I (April 11, 1980–December 9, 1980): 50%
Period II (December 10, 1980–October 31, 1991): 100%
Period III (November 1, 1991–December 28, 2000): 70%
Period IV (December 29, 2000 onward): 100%
Dec. 2007 Bd. Op. Notably, the Board held that the 70% rating for Period III was justified because Mr. Singleton was able to maintain jobs during that period and was married. Id.
Mr. Singleton appealed to the Veterans Court. He argued that the transition from a 100% rating in Period II to 70% in Period III was a “reduction” in his benefits and that, under the applicable regulations, he was entitled to an opportunity to submit new evidence and argument and, potentially, to undergo a medical exam before such a reduction could be made. The Veterans Court disagreed and affirmed the Board. Singleton v. Shinseki, 23 Vet. App. 376 (2010) (“2010 Ct. Op.”). Mr. Singleton timely

1 Having set April 11, 1980 as the effective date for Mr. Singleton’s disability, the Board initially remanded to the Regional Office for determination of rating. July 2007 Bd. Op. Following a motion for reconsideration by Mr. Singleton, however, the Board withdrew the remand and took it upon itself to determine ratings. Bd. Vet. App. 0738783 (Dec. 10, 2007) (“Dec. 2007 Bd. Op.”), aff’d sub nom. Singleton v. Shinseki, 23 Vet. App. 376 (2010).

5 SINGLETON v. DVA

appealed. This court has jurisdiction to review the legal determinations of the Veterans Court. 38 U.S.C. § 7292. Our review of those legal determinations is de novo. This court may not review the Veterans Court’s factual findings or its application of law to facts absent a constitutional issue. Id.; see also Reizenstein v. Shinseki, 583 F.3d 1331, 1334 (Fed. Cir. 2009).

II. ANALYSIS
Mr. Singleton’s argument in this appeal is a variation of the case he presented to the Veterans Court. There, Mr. Singleton contended that because the Board’s staged rating assessment included a total disability period exceeding five years (i.e., Period II, from 1980 to 1991), Mr. Singleton’s disability during that period became “stabilized.” See 38 C.F.R. § 3.344. He urged that when his rating became stabilized, the VA was precluded from reducing it from the stabilized level without following the procedural provisions of § 3.344, which included “a recent, full, and complete medical examination indicating improvement[.]” See 2010 Ct. Op. at 378. As already noted, the Veterans Court rejected this line of reasoning. Applying the logic of this court’s decision in Reizenstein, the Veterans Court held that the protections of § 3.344 were not to be applied in cases of retrospective staged ratings.
Rather than simply present this court with the same argument the Veterans Court already rejected, Mr. Singleton applied a fresh coat of paint in the hope of attract-ing more favorable judicial treatment. Mr. Singleton no longer seeks a holding that § 3.344 applies to retrospective staged ratings. Instead, he argues that the VA’s failure to require application of the procedures of § 3.344 (or some other hypothetical procedures closely resembling them) when retrospectively assessing Mr. Singleton’s

SINGLETON v. DVA 6

disability effectively denied Mr. Singleton of property without due process and so fails constitutional muster.2
The subject “property,” according to Mr. Singleton, was the total disability rating that would begin December 10, 1980. The “denial” of that property, again according to Mr. Singleton, occurred when the Board held that “Period II” of Mr. Singleton’s total disability ended on October 30, 1991, and “Period III” began, with Mr. Singleton only 70% disabled from November 1, 1991 to December 28, 2000. Mr. Singleton argues that the due process clause required a separate evidentiary proceeding before the Board could conclude that a period of 70% disability should follow one of total disability.
We disagree. To begin with, we note that, assuming the staged ratings assigned by the Board ultimately

2 The government urges that this constitutional argument was not made to the Veterans Court or the Board and so should be held waived. There is precedent for this court declining to hear arguments, even constitutional arguments, not raised to previous tribunals. See Solorio v. United States, 483 U.S. 435, 451 n.18 (1987); Smith v. West, 214 F.3d 1331, 1334 (Fed. Cir. 2000). We agree with the government that it is incumbent upon appellants to timely raise all arguments in support of their cases before trial and intermediate tribunals, and failure to do so can lead to waiver before this court. Nevertheless, we decline the government’s invitation to affirm the Veterans Court on waiver grounds alone. Though the new constitu-tional gloss Mr. Singleton has applied to his case before this court was not present below, his argument is essentially consistent with his previous positions and in this unique circumstance we will hear it. We reject, however, Mr. Singleton’s suggestion that his failure to present his constitutional claims earlier is excusable because he did not know that the Veterans Court would reject his arguments under § 3.344. Litigants are charged with presenting all of their arguments in a timely fashion.

7 SINGLETON v. DVA

become final, they will have been the subject of (1) an evidentiary hearing held by the Board in 2004, (2) an appeal to the Veterans Court, and (3) an appeal to this court.
As the government noted in its briefing, “The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (internal quotation marks omitted). In that case the Supreme Court set forth guidance for determining the constitutional sufficiency of a process that results in a deprivation of property:
[O]ur prior decisions indicate that identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and, finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.Id. at 334–35.
Applying this guidance to Mr. Singleton’s case leads us to conclude that the process applied by the Board and the Veterans Court was sufficient to meet constitutional requirements.
As to the first factor, this court has previously recognized a constitutionally-protected property interest in a veteran’s entitlement to disability benefits. Cushman v. Shinseki, 576 F.3d 1290, 1298 (Fed. Cir. 2009). This

SINGLETON v. DVA 8

recognition was based on our reasoning that “[v]eteran’s disability benefits are nondiscretionary, statutorily mandated benefits. A veteran is entitled to disability benefits upon a showing that he meets the eligibility requirements set forth in the governing statutes and regulations.” Id. (emphasis added). To the extent that Mr. Singleton has a protectable property interest here to disability benefits, that interest extends only so far as the law creates it. And while Mr. Singleton is correct that § 3.344 confers a measure of additional security to veterans whose disability rating has “stabilized” (i.e., has remained at the same level for over five years), we see nothing in the regulation or the caselaw suggesting that this extra security is available when establishing staged ratings retrospectively. This court has previously expressed skepticism that retrospective assessment of changes in a veteran’s disability rating could work a “reduction” in the veteran’s compensation. See Stelzel v. Mansfield, 508 F.3d 1345, 1347–49 (Fed. Cir. 2007). We therefore disagree with Mr. Singleton that any constitutionally-protected interest he has extends so far as to provide him security against a staged rating computation in which a period of total disability is followed by one of a lower rating.

This conclusion is consistent with our opinion in Reizenstein. 583 F.3d 1331. There, the veteran claimant argued that the Board, operating in the retrospective staged rating context, could not “reduce” his disability rating from one period to the next without providing a medical examination as per 38 C.F.R. § 3.343. We disagreed, deferring to the VA’s position that such procedures were inapplicable to staged ratings. Id. at 1336–37. A similar logic applies here. In the circumstance presented in this case, we see no constitutional deprivation in the VA adopting for staged ratings a set of procedures tailored to that context.

SINGLETON v. DVA
9

Turning to the second factor, we deem that the process applied to Mr. Singleton’s case was more than sufficient to minimize the risk of Mr. Singleton being erroneously deprived of his benefits. Mr. Singleton had a 2004 hearing before the Board. In 2007 he specifically requested staged rating of the Board and had the opportunity to argue for whatever ratings he thought best applied. Unsatisfied with the Board’s staged rating decision, he appealed to the Veterans Court and, unsatisfied with that decision, he appealed to this court. He has shown no reason why this was not sufficient process to expose any error in the Board’s decision, nor any justification to expect that yet another round before the Board would make the process substantially more fair. We therefore conclude that the process here was sufficient to protect Mr. Singleton’s interests.

Finally, the government has a straightforward interest in the speedy resolution of Mr. Singleton’s claim. Adding further rounds of review (and, potentially, further rounds of appeal) would require yet more hours of labor and additional adjudication costs for the government.

In sum, Mr. Singleton has had his day in court concerning the staged ratings and legal process sufficient to satisfy his Fifth Amendment rights. We see no constitu-tional deprivation in the conduct of his case, and we therefore affirm.
AFFIRMED

Single Judge Application, Claim File Review, Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 303(2008)




Excerpt from decision below:
"Although the failure to review the claims file does not render an examination per se inadequate, where, as here, the Board explains "what information in the claims file was important and necessary for a competent and persuasive medical opinion" (i.e., the service medical records recording a documented history of injury and incidents relating to his service as a paratrooper), the failure to review the claims file is a legitimate basis on which to discount a medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 303(2008)."
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-0447
KENNETH D. MARLOW, APPELLANT,
v.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

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

DAVIS, Judge: U.S. Army veteran Kenneth D. Marlow appeals through counsel
from a
December 18, 2009, Board of Veterans' Appeals (Board) decision that denied
entitlement to service
connection for a (1) right knee disorder, (2) lumbar spine disorder, (3)
bilateral shoulder disorders,
and (4) bilateral foot disorders. The Board also found that new and
material evidence had been
submitted to reopen his claim for a (1) cervical spine disorder with
headaches (formerly claimed as
"headaches") and (2) left knee disorder. For the following reasons, the
Court will set aside Board's
December 2009 decision and remand the matter for further development
consistent with this
decision.
Mr. Marlow served on active duty from March 1975 to March 1978 in an
airborne division
of the Army. During his service he reported participation in 56 jumps and
received a parachute
badge. Mr. Marlow seeks service connection for his various disabilities
claiming theyresulted from
the trauma of his in-service parachute jumps.
I. ANALYSIS
A. Bilateral Foot Disorder


Mr. Marlow first argues that the Board erred when it did not consider
bilateral pes planus as
part of his claim for a bilateral foot disability. Mr. Marlow argues that
the Board wrongly found that
his pes planus did not exist during the pendency of his claim. The
Secretary agrees that remand is
warranted for his bilateral foot disorder because of these errors.
Secretary's Brief (Br.) at 4-5.
As the Secretary concedes, this Court stated that "a claimant may be
granted service
connection even though the disability resolves prior to the Secretary's
adjudication of the claim."
McClain v. Nicholson, 21 Vet.App. 319, 321 (2007). The claimant need
onlyhave a disabilityat any
time during the pendency of the claim. Id.
In its decision, the Board acknowledged "an in-service notation of
'asymptomatic' bilateral
pes planus and a 1990 diagnosis of the same." Record (R.) at 11. The Board
then found, however,
that "the Veteran has not offered a diagnosis of pes planus during the
pendencyof this claim and that
particular disability will not be addressed." R. at 11 (citing McClain,
supra). The Board cited to no
evidence that Mr. Marlow's pes planus had resolved and the recordappears
to contain none. Because
the Board did not reject the 1990 diagnosis and there is no evidence that
Mr. Marlow's condition had
resolved by October 2005, the Board's statement of reasons or bases for
its determination that the
disability did not exist during the pendency of his claim, the Board's
statement of reasons or bases
is inadequate. 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) (all Board findings of fact and
law must be accompanied
bya written statement of the reasons or bases explaining its findings and
conclusions on all material
issues presented on the record). Remand is therefore required for the
Board to address Mr. Marlow's
pes planus as part of his bilateral foot claim.
Mr. Marlow similarly contends that the Board, in denying Mr. Marlow's
bilateral foot claim,
wrongly ignored the principles set forth in Clemons. See Clemons v.
Shinseki, 23 Vet.App. 1, 4-5
(2009) (while a claimant mayidentifya particular condition, the scope of
the claim cannot be limited
only to the condition stated). Because Mr. Marlow's claim for a bilateral
foot disorder is already
being remanded, the Court will not address this claim further. See Mahl v.
Principi, 15 Vet.App. 37,
38 (2001) (per curiam order) ("[I]f the proper remedy is a remand, there
is no need to analyze and
discuss all the other claimed errors that would result in a remedy no
broader than a remand.").
B. July 2006 examination
2


Mr. Marlow also contends that a July 2006 VA examination was inadequate
as to all of his
claims. In that report, the examiner organized his analysis into three
parts labeled (1) "feet,"
(2) "joints," and (3) "spine." See R. at 351-66. The "joints" section is
relevant to Mr. Marlow's
claims for bilateral knee and shoulder disorder while the "spine" section
includes an examination of
both Mr. Marlow's cervical and lumbar spine disorders.
1. "Feet" Examination
As to his bilateral foot disorder, Mr. Marlow contends that the
examination was inadequate
because the examiner failed to recognize a diagnosis of pes planus during
service. The Secretary
concedes that the examination was inadequate for this reason. Secretary's
Br. at 6.
The examiner stated that "[s]ervice medical records are silent for
significant report to sick
call for bilateral feet injuries while in the service." R. at 364. The
record, however, contains an in-
service diagnosis of pes planus (see R. at 480). R. at 364. This opinion
is therefore based on an
inaccurate factual premise. See Reonal v. Brown, 5 Vet.App. 458, 461 (1993
) (medical opinions
based upon inaccurate factual premises are entitled no probative weight);
see also West v. Brown,
7 Vet.App. 70, 77-78 (1994) (stating that an examination that relies on an
inaccurate history is
inadequate for rating purposes); Wilson v. Derwinski, 2 Vet.App. 458, 460-
61 (1993) (the Board
must evaluate the credibilityand weight of the history upon which a
medical opinion is predicated).
In addition, because he did not recognize the in-service diagnosis, the
examiner failed to address
whether Mr. Marlow's current bilateral foot condition was related to
service. The July 2006 VA
examination is therefore inadequate for rating purposes as it pertains to
Mr. Marlow's bilateral foot
condition and the Board erred in its reliance on it.
2. "Joints" Examination
Mr. Marlow also argues that the July2006 VA examination was inadequate as
to his bilateral
knee claim because the examiner failed to recognize that he suffered "a
hematoma of the quadriceps
after injuring his left knee during service during parachute training
exercises." Appellant's Br. at 16;
see R. at 447. The examiner noted that "[s]ervice medical records are
silent for significant report
to sick call for . . . bilateral knee . . . injuries while in the service."
R. at 357. However, there is a
service medical record indicating that Mr. Marlow injured his knee while
jumping over a banister
3


(resulting in a hematoma of the quadricep).1
R. at 447. The Secretary responds that "[i]t is quite
clear that the examiner was distinguishing from something that appeared
minor to him in his
professional opinion, and something of amedically'significant nature.'"
Secretary's Br. at 10. While
the Secretary argues otherwise, it is not clear that such an Previous DocumentinjuryNext Hit did
not appear significant to the VA
examiner because the examiner did not mention this incident causingMr.
Marlow to make a sick call
anywhere in his report. This analysis does not allow the Board to
adequatelyconsider and weigh this
opinion against other medical opinions. See Stefl v. Nicholson, 21 Vet.App.
120, 124-25 (2007)
("[A] medical opinion . . . must support its conclusion with an analysis
that the Board can consider
and weigh against contrary opinions."). The Board's reliance on the
examination was therefore in
error.
Mr. Marlow also contends that the examiner provided no explanation as to
why his current
joint problems were related to aging and not caused by his numerous jumps
as a paratrooper. See
id. An examination report must containclearconclusionsandsupporting data,
as well as "areasoned
medical explanation" connecting the data and conclusions. Nieves-Rodriguez
v. Peake, 22 Vet.App.
295, 301 (2008).
The July 2006 VA examiner opined that
[b]ased on this patient's history, review of his C-file and his
examination to date, it
is felt that the patient's bilateral impingement syndromes of his
shoulders . . . are
[not] caused by a result of trauma while in the service but rather
secondary to a
normal aging process for a 50-year-old individual.
R. at 362.
The examiner provided no rationale for his conclusion that Mr. Marlow's
current bilateral
shoulder symptoms are more likely related to aging than his service as a
paratrooper. The portion
of the examination related to Mr. Marlow's bilateral shoulder impingement
is therefore inadequate.
See Stefl and Nieves-Rodriguez, both supra.
3. "Spine" Examination
Mr. Marlow also contends that the examiner provided no rationale for his
conclusion that his
current spine conditions were related to aging and not caused by his
numerous jumps as a
paratrooper.
1
Mr. Marlow has stated that jumping over banisters was part of his training
during parachute school. R. at 57.
4


The July 2006 VA examiner opined that
based on this patient's history, review of his C-file and his examination
to date, the
patient['s] intervertebral disc disease in the cervical spine and low back
is not caused
by a result of trauma while in the service. It is felt by this medical
examiner that this
is a normal aging process that is not disproportional for this
individual's age. The
patient does not demonstrate significant intervertebral disc disease,
compression
fractures or medical conditions that would be attributed to a parachuting
accident.
R. at 355.
TheexaminerdeterminedthatMr.Marlow's
discdiseasewasagerelatedbecausetheseverity
of the condition was consistent with Mr. Marlow's age and that the
appellant lacked other potential
indications of trauma from parachuting. The examiner based his opinion on
his review of Mr.
Marlow's past history and its relation to Mr. Marlow's current condition.
The examiner's conclusion
regarding Mr. Marlow's lumbar spine condition is therefore adequately
supported by a reasoned
medical explanation. See Nieves-Rodriguez, supra.
In sum, the examination is inadequate as to Mr. Marlow's bilateral feet,
bilateral knee, and
bilateral shoulder disorders. On remand, VA must provide Mr. Marlow an
examination that
adequately considers these conditions.
C. Lay Statements
Mr. Marlow next argues that the Board erred in its treatment of his lay
statements. In regard
to his lay statement the Board found:
[I]n this case that the Veteran's account of severe injuries associated
with parachute
jumping is not consistent with the documentation of the STR [service
treatment
records], which is conspicuously absent for treatment of significant
cervical spine,
bilateral knee, lumbar spine, bilateral shoulder or bilateral foot
disabilities.
In regard to chronicity of symptoms, the Veteran's account is inconsistent
with the
medical evidence of record, which is absent for treatment for the current
disorders
for almost thirty years after service.2
Moreover, the Veteran's initial claim for service connection was
conspicuously
absent of any mention of right knee, low back bilateral shoulder, and
bilateral foot
Mr. Marlow received treatment on his feet approximately 12 years after
service in 1990, and thus the Board's
statement is inaccurate as to his foot condition.
2
5


problems. See Shaw v. Principi, 3 Vet. App. 365 (1992) (a veteran's
delayin asserting
a claim can constitute negative evidence that weighs against the claim).
R. at 18.
The Board committed at least three errors in this analysis. First, as
already discussed, the
service treatment records were not absent for potentiallysignificant
treatment for both Mr. Marlow's
bilateral knee and foot conditions and thus that portion of the analysis
as it pertains to those
conditions is factually inaccurate.
Next, while the Board may weigh the absence of
contemporaneous medical evidence against the lay evidence in determining
credibility, the Board
cannot determine that lay evidence lacks credibility merely because it is
unaccompanied by
contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (
Fed. Cir. 2006). By
not providing any other rationale except that there was no contemporaneous
medical evidence of
treatment, the Board's treatment of Mr. Marlow's lay statements regarding
the continuity of
symptomatology is inconsistent with Buchanan. Finally, the Board's
reliance on Shaw was in error
as this was a non-precedential single judge decision. As nearly all of the
Board's analysis here is
inadequate because of these errors, remand is required for the Board to
adequately address Mr.
Marlow's lay statements.
D. July 2006 VA Examination More Probative
Finally, Mr. Marlow argues that the Board failed to provide an adequate
statement of reasons
or bases for finding more probative the July 2006 VA examination over the
February and June 2008
favorable medical opinions. See Allday and Gilbert, both supra. To provide
an adequate statement
of reasons or bases, the Board must analyze the credibility and probative
value of the evidence,
account for the evidence it finds 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). In particular, the Board may favor one medical opinion over
another as long as it provides
adequate reasons or bases. Owens v. Brown, 7 Vet.App. 429, 433 (1995).
Here the Board provided adequate rationale for finding the favorable 2008
medical evidence
less probative. The Board determined that neither the February 2008 letter
from a VA nurse
practitioner nor the March 2008 VA outpatient records, written with access
to Mr. Marlow's service
medical records and did not mention the negative service medical records,
the lack of an
6


compression fractures indicative of trauma, and the lack of treatment for
decades after service. R.
at 14-15. The Board found that the two favorable opinions were entitled to
little probative value
because the history provided came entirely from Mr. Marlow. Although the
failure to review the
claims file does not render an examination per se inadequate, where, as
here, the Board explains
"what information in the claims file was important and necessary for a
competent and persuasive
medical opinion" (i.e., the service medical records recording a documented
history of Previous HitinjuryNext Document and
incidents relating to his service as a paratrooper), the failure to review
the claims file is a legitimate
basis on which to discount a medical opinion. See Nieves-Rodriguez v.
Peake, 22 Vet.App. 295, 303
(2008). The Board therefore did not err in favoring the July 2006 VA
examination over the
favorable 2008 medical evidence. This analysis, however, is irrelevant to
those portions of the July
2006 VA examination the Court has already deemed inadequate.
II. CONCLUSION
On consideration of the foregoing, the Court SETS ASIDE the December 2009
Board
decision and REMANDS all matters for further development. In pursuing his
claim on remand, Mr.
Marlow will be free to submit additional evidence and argument in support
of the claim, and the
Board is required to consider any such evidence and argument. See Kay v.
Principi, 16 Vet.App.
529, 534 (2002). A final decision by the Board following the remand herein
ordered will constitute
a new decision that, if adverse, may be appealed to this Court upon the
filing of a new Notice of
Appeal with the Court not later than 120 days after the date on which
notice of the Board's new final
decision is mailed to the appellant. Marsh v. West, 11 Vet.App. 468, 472 (
1998).
DATED: July 29, 2011
Copies to:
David J. Lowenstein, Esq.
VA General Counsel (027)
7





Panel Decision, CFR 4.59, 4.55, Pain, Burton v. Shinseki. 09-2873(Decided August 4, 2011)

Excerpt from decision below:

===================
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-2873
RUSSELL W. BURTON, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Decided August 4, 2011)
John Thomas Westermeier, of Reston, Virginia, was on the pleadings for the appellant.
Will A. Gunn, General Counsel; R. Randall Campbell, Assistant General Counsel; Jeffrey J.
Schueler and Carolyn F. Washington, Deputy Assistant General Counsels, and Kristen D. King-
Holland, all of Washington, D.C., were on the pleadings for the appellee.
Before KASOLD, Chief Judge, and DAVIS and HOLDAWAY, Judges.
KASOLD, Chief Judge: Veteran Russell W. Burton appeals through counsel an April 6,
2009, Board of Veterans' Appeals (Board) decision that denied entitlement to an initial disability
rating for residuals of a left-shoulder injury with surgical repair in excess of 0% from August 28 to
December 1, 2002, 10% from December 2, 2002, to May 22, 2003, 10% from October 1, 2003, to
March 8, 2004, 20% from March 9, 2004, to April 20, 2005, and 10% from April 21, 2005, onward.
On March 29, 2011, the Court issued a single-judge memorandum decision affirming the Board
decision. On April 18, Mr. Burton filed a motion for a panel decision. On May 9, the Court granted
Mr. Burton's motion for a panel decision and withdrew the March 29 memorandum decision. For
the reasons that follow, the Board decision will be in part affirmed, and in part set aside and the
matter remanded for further adjudication.
I. FACTS
Mr. Burton served on active duty in the U.S. Army from February 1995 to February 1999.
The record on appeal reflects that he complained of left-shoulder pain during service and underwent
surgery for repair of a superior labrale anterior-posterior (SLAP) lesion1 in September 1996.
In August 2002, Mr. Burton filed for benefits for a left-shoulder injury. In January 2003, the
VA regional office (RO) granted service connection for residuals of a left-shoulder injury with
surgical repair and assigned a noncompensable rating, effective August 28, 2002. The decision was
based primarily on a November 2002 VA medical examination report that the RO characterized as
finding that Mr. Burton had a "full range of motion with no pain." Record (R.) at 1079. In June
2003, the RO awarded a temporary 100% rating, effective May 23, 2003, because Mr. Burton
underwent arthroscopic left-shoulder surgery for further repair of the SLAP lesion. In November
2003, the RO determined that the period of temporary total disability had ended, and reinstated a
noncompensable rating, effective October 1, 2003. In June 2005, the RO awarded a 10% rating,
effective March 9, 2004, based primarily on a March 2004 VA examination that found pain on
motion and some functional loss with repetition. In June 2006, after Mr. Burton appealed his ratings
to the Board, the Board remanded the matter for further development.
In October 2008, based on a reexamination of the medical evidence, the RO (1) maintained
a noncompensable rating, effective August 28, 2002, (2) increased the noncompensable rating to a
10% rating, effective December 2, 2002, (3) maintained a 100% rating, effective May 23, 2003, (4)
increased the noncompensable rating to 10%, effective October 1, 2003, (5) increased a 10% rating
to a 20% rating, effective March 9, 2004, and (6) awarded a 10% rating, effective April 21, 2005.
The Board decision on appeal affirmed these ratings, and this appeal followed.
II. PARTIES' ARGUMENTS AND PANEL ISSUE
Mr. Burton asserts that the Board erred by failing to (1) address adequately 38 C.F.R.
§§ 4.40, 4.59, and painful motion generally, or otherwise assign a minimum compensable rating for
1 "SLAP lesion" is defined as an "injury involving the superior glenoid labrum and attachment of the biceps brachii,
extending from anterior to posterior." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1040 (31st ed. 2007) [hereinafter
DORLAND'S].
2
his actually painful joints, see 38 C.F.R. § 4.59 (2011) ("It is the intention to recognize actually
painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum
compensable rating for the joint."), and (2) assign two separate 20% ratings for his left-shoulder
injury, based on his limitations on abduction and flexion.
In his initial brief, the Secretary disputed Mr. Burton's first contention, arguing that § 4.59
was applicable only to arthritis-related claims. See 38 C.F.R. § 4.59 (section begins: "With any form
of arthritis . . . ."). However, his supplemental brief cites VA Fast Letter 04-22 (Oct. 1, 2004) ("As
always, when evaluating knee function, . . . [§] 4.59 must be considered.") and acknowledges that
§ 4.59 can apply in non-arthritis contexts. Nevertheless, the Secretary still seeks affirmance of the
Board decision, arguing that (1) the application of § 4.59 would not have altered the Board's
determinations, (2) Mr. Burton's request for two separate ratings for one shoulder disability
contravenes the Court's holding in Cullen v. Shinseki, 24 Vet.App. 74, 84 (2010), and (3) the Board
did not otherwise err.
Mr. Burton's motion for panel decision was granted – and the Court's March 29, 2011,
single-judge memorandum decision withdrawn – to resolve the parties' dispute and clarify the law
as to whether § 4.59 is applicable only to claims involving arthritis. Although the Secretary in his
supplemental brief now agrees that § 4.59 is not so limited, a panel decision remains warranted. See
Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990) (panel decision required if case clarifies existing
rule of law). Compare, e.g., Wesenick v. Nicholson, 20 Vet.App. 144 (2005) (table) ("Because the
appellant has not been diagnosed with arthritis, 38 C.F.R. § 4.59 has no application to his claim."),
with Abbey v. Principi, 18 Vet.App. 13 (2001) (table) (remanding case for Board to address § 4.59
in non-arthritis claim).
III. DISCUSSION
A. 38 C.F.R. § 4.59
1. Law
The "interpretation of a . . . regulation is a question of law" that we "review de novo." Lane
v. Principi, 339 F.3d 1331, 1339 (Fed. Cir. 2003). However, substantial deference is granted to the
Secretary's interpretation of his own regulation so long as it is not inconsistent with the regulation
3
or otherwise plainly erroneous. Smith v. Nicholson, 451 F.3d 1344, 1349-50 (Fed. Cir. 2006) (citing
Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)). Further, although "post hoc
rationalizations" advanced for the first time on appeal are not entitled to deference, we note that the
Secretary's interpretation of § 4.59 was recorded in a Fast Letter and not advanced for the first time
on appeal. Hickson v. Shinseki, 23 Vet.App. 394, 400 (2010). As discussed below, we find that the
Secretary's interpretation of § 4.59 is not inconsistent with the regulation or otherwise plainly
erroneous. See Smith, supra.
We begin with the language of the regulation, see Lengerich v. Dep't of Interior, 454 F.3d
1367, 1370 (Fed. Cir. 2006) (citing Bowles, 325 U.S. at 414-15 (focusing on the "plain words of the
regulation" to ascertain the meaning of the regulation)), which, when read as a whole, reasonably can
be applied beyond circumstances of pain associated only with arthritis. Section 4.59 is entitled
"Painful motion," and states in full:
With any form of arthritis, painful motion is an important factor of
disability, the facial expression, wincing, etc., on pressure or
manipulation, should be carefully noted and definitely related to
affected joints. Muscle spasm will greatly assist the identification.
Sciatic neuritis is not uncommonly caused by arthritis of the spine.
The intent of the schedule is to recognize painful motion with joint or
periarticular pathology as productive of disability. It is the intention
to recognize actually painful, unstable, or malaligned joints, due to
healed injury, as entitled to at least the minimum compensable rating
for the joint. Crepitation either in the soft tissues such as the tendons
or ligaments, or crepitation within the joint structures should be noted
carefully as points of contact which are diseased. Flexion elicits such
manifestations. The joints involved should be tested for pain on both
active and passive motion, in weight-bearing and nonweight-bearing
and, if possible, with the range of the opposite undamaged joint.
Examining the first sentence out of context can lead one to consider that the regulation might
apply only to the evaluation of arthritis claims. However, a proper interpretation of a regulation
"examines and reconciles the text of the entire regulation, not simply isolated sentences." Reflectone,
Inc. v. Dalton, 60 F.3d 1572, 1577-78 (Fed. Cir. 1995) (citing Beecham v. United States, 511 U.S.
368, 372 (1994)). In the eight-sentence regulation, arthritis is explicitly mentioned only in the first
and third sentences and is not the subject of the majority of the regulation, which, inter alia,
comments on the schedule's intent as to healed injury and malaligned joints (fifth sentence), how to
4
note crepitation 2 in the soft tissues (sixth sentence), and how to test joints for pain (eighth sentence).
Rather, examining the regulation as a whole, the majority of the regulation provides guidance for
noting, evaluating, and rating joint pain, and that guidance is devoid of any requirement that the pain
be arthritis related. Cf. DeLuca v. Brown, 8 Vet.App. 202, 207 (1995) (rejecting interpretation that
38 C.F.R. § 4.45 is limited to muscle and nerve conditions because, inter alia, plain language does
"not refer solely to muscle and nerve conditions").
Further, although the title of § 4.59 is not dispositive as to its scope, "section headings are
tools available for the resolution of a doubt about the meaning of a statute" or regulation. Fla. Dep't
of Revenue v. Piccadilly Cafeterias, Inc., 554 U.S. 33, 47 (2008) (internal quotation marks omitted);
see DeLuca, 8 Vet.App. at 207 (looking to "the title of the regulation" to determine scope of 38
C.F.R. § 4.45). Here, the title – "Painful motion" – reflects the subject matter of the regulation in
general and implies no limitation to arthritis claims. Notably, the Secretary has used the term
"arthritis" in the title of regulations that deal exclusively with arthritis – see 38 C.F.R. § 4.58
("Arthritis due to strain") – and did not do so for § 4.59, even though § 4.58 and § 4.59 were
promulgated together. See 29 Fed. Reg. 6718, 6725 (May 22, 1964) (adding the 1945 rating
schedule to the Code of Federal Regulations); cf. DeLuca, 8 Vet.App. at 207 (rejecting interpretation
that 38 C.F.R. § 4.45 is limited to muscle and nerve conditions because, inter alia, title does not refer
to muscles or nerves though other regulations refer thereto).
Of course, we do not find the introductory phrase regarding arthritis insignificant or
superfluous. See TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) ("It is a cardinal principle of statutory
construction that a statute ought, upon the whole, to be so construed that, if it can be prevented, no
clause, sentence, or word shall be superfluous, void, or insignificant." (internal quotation marks
omitted)); Savage v. Shinseki, 24 Vet.App. 259, 265 (2011) (citing Black & Decker Corp. v. Comm'r
of Internal Revenue, 986 F.2d 60, 64 (4th Cir. 1993) ("Regulations, like statutes, are interpreted
according to canons of construction.")). Rather, it is a reasonable interpretation from examining the
regulation as a whole that the introductory phrase defines the subject of the next three sentences, and
does not limit the application of all eight sentences. Overall, the first portion of the regulation
2 "Crepitation" is defined as "a sound like that made by throwing salt into a fire . . . the noise made by rubbing together
the ends of a fractured bone." DORLAND'S at 437.
5
regards painful motion involved with arthritis in particular. The remaining portion comments on joint pain in general, including pain caused by healed injury, malaligned joints, and crepitation; and the phrase introducing the first portion is neither insignificant nor limiting to the regulation.
Accordingly, the Secretary's interpretation of the scope of § 4.59 – that its application is not limited to arthritis claims – is not inconsistent with the regulation or otherwise plainly erroneous. See Smith, supra. When § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. See Robinson v. Peake, 21 Vet.App. 545, 552 (2008) (Board is required to consider all issues raised either by the claimant or reasonably by the record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991) (applicable provisions of law and regulation should be addressed when they are made "potentially applicable through the assertions and issues raised in the record").

2. Application to Fact
Mr. Burton contends that the Board erred in failing to address adequately §§ 4.40, 4.59, and painful motion generally, or otherwise assign a minimum compensable rating for his actually painful joints as required by § 4.59. The Secretary argues that (1) the Board adequately addressed § 4.40 and painful motion generally, and (2) no prejudice was caused by the Board's failure to apply § 4.59 because the Board adequately addressed Mr. Burton's joint pain on motion for each time period.
With the exception of the period from August 28 to December 1, 2002, the record supports the Secretary's argument. The Board referenced 38 C.F.R. § 4.40 and pain on motion throughout its decision and Mr. Burton fails to specifically demonstrate error in this regard. See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (appellant bears burden of demonstrating error on appeal).
Further, although the Board did not explicitly address § 4.59, the Board reasonably addressed joint pain and assigned a compensable rating with regard to the time periods other than August 28 to December 1, 2002, and Mr. Burton otherwise fails to demonstrate prejudice. See Shinseki v. Sanders, 129 S. Ct. 1696, 1706 (2009) (appellant bears burden of demonstrating prejudice on appeal); Marciniak v. Brown, 10 Vet.App. 198, 201 (1997) (remand unnecessary in "the absence of demonstrated prejudice").
6

On the other hand, the record supports Mr. Burton's argument that the Board failed to address adequately §§ 4.40, 4.59, and painful motion generally with regard to the period of August 28 to December 1, 2002. Although the Board noted 38 C.F.R. § 4.40 and found that Mr. Burton exhibited no "pain on movement of [his] left shoulder" (R. at 12), it failed to address a September 2002 VA medical examiner's assessment that Mr. Burton was "able to hold [his] arm behind [his] head while explaining pain" and the examiner's diagnosis of shoulder pain, which reasonably raises the applicability of § 4.59. R. at 1171. Further, although the Board noted that the November 2002 VA medical examiner's report found full range of motion, the report merely listed Mr. Burton's subjective complaints of pain on motion and then recorded his range of motion without addressing whether he had any actual pain on motion. DeLuca, 8 Vet.App. at 205-06 (rejecting Board's reliance on examination that "merely recorded the veteran's range of motion" without addressing functional loss due to pain upon motion). The Board's failure to discuss adequately these potentially favorable or
incomplete reports, in conjunction with the failure to apply § 4.59, frustrate judicial review of the
Board's finding of no pain on movement. See Allday v. Brown, 7 Vet.App. 517, 527 (1995) (holding
that the Board's statement "must be adequate to enable claimant to understand the precise basis for
the Board's decision, as well as to facilitate review in this Court"); see also Thompson v. Gober, 14
Vet.App. 187, 188 (2000) (Board must provide an adequate statement of reasons or bases "for its
rejection of any material evidence favorable to the claimant"). Because the Board provided an
inadequate statement of reasons or bases and the application of § 4.59 may alter the Board's
determination that a compensable rating is unwarranted for this period, remand is warranted. See
Tucker v. West, 11 Vet.App. 369, 374 (1998) (remand is appropriate "where the Board has
incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its
determinations, or where the record is otherwise inadequate"); see also Arneson v. Shinseki, 24
Vet.App. 379, 388-89 (2011) (finding prejudice where error could have made difference in outcome).
B. Two Separate Disability Ratings
Although the Board did not address the possibility that Mr. Burton could be entitled to two
separate disability ratings for the abduction and flexion limitations of his left shoulder, the record
on appeal does not reflect that Mr. Burton raised this argument to the Board. See Robinson, 21
Vet.App. at 552. Moreover, although Mr. Burton has both abduction and flexion limitations, these
7
limitations arise from one disability, and the law does not permit separate ratings under such
circumstances. See 38 C.F.R. § 4.14 ("The evaluation of the same disability under various diagnoses
is to be avoided."); see also Boggs v. Peake, 520 F.3d 1330, 1337 (Fed. Cir. 2008) (claimant "cannot
be compensated more than once for the same disability"); Cullen, 24 Vet.App. at 84 (Court rejected
argument that one disability manifesting in multiple symptoms could receive two separate ratings
within a particular diagnostic code). Accordingly, it was not error for the Board not to address
separate disability ratings, as the issue was not reasonably raised. See Robinson, supra.

IV. CONCLUSION
Accordingly, that part of the April 6, 2009, Board decision denying an initial rating in excess
of 0% from August 28 to December 1, 2002, is SET ASIDE and the matter REMANDED for further
adjudication. The remainder of the decision is AFFIRMED.
8

VA Form 9, Substantial Appeals, Veterans Rights Explained




Excerpt from decision below:
“VA's own regulations, let alone a veteran-friendly, non-adversarial process, do not permit the Board ab initio to dismiss certain issues within an appeal without first affording the appellant the benefit of the procedure mandated by 38 C.F.R. § 20.101(d): to provide notice of the Board's perceived defect in the Substantive Appeal created by a claimant's response on the Form 9 and an opportunity to present argument and/or evidence on the issue of the adequacy of the Substantive Appeal.”
=============================



UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 08-2133
JAMES I. EVANS, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Decided August 4, 2011)
Kenneth L. LaVan, with whom Dianne E. Olson, both of Fort Lauderdale, Florida, was on
the pleadings for the appellant.
Will A. Gunn, General Counsel; R. Randall Campbell, Assistant General Counsel; Edward V. Cassidy, Jr., Deputy Assistant General Counsel, and Christopher O. Adeloye, all of Washington, D.C., for the appellee.

Before MOORMAN, LANCE, and SCHOELEN, Judges.
MOORMAN, Judge, filed the opinion of the Court. LANCE, Judge, filed a dissenting
opinion.

MOORMAN, Judge: The appellant, James I. Evans, through counsel, appeals an April 17, 2008, Board of Veterans' Appeals (Board) decision that denied his claim of entitlement to service connection for the residuals of a collapsed lung, remanded his claims of entitlement to service connection for a back disorder and to a compensable evaluation for residuals of a fractured distal left fibular shaft, and effectively dismissed his claims for asbestos exposure, hepatitis B, and hepatitis C. Record (R.) at 3-4. On January 28, 2011, this panel issued a decision reversing in part the April 17, 2008, decision and remanding for further proceedings. On February 16, 2011, the Secretary filed a motion for partial reconsideration of the January 28, 2011, decision. At the Court's invitation, on March 31, 2011, the appellant filed a response in opposition to partial reconsideration.
The Court concludes that reconsideration is warranted based upon the Secretary's compelling argument that the Court's January 2011 opinion, read broadly, held that the Secretary waives his ability to dismiss claims if a claimant uses VA Form 9 and checks Box A of Block 9, indicating that he wishes to appeal all issues listed in the Statement of the Case (SOC), and must adjudicate all issues listed in the SOC even where the evidence of record may also indicate that the claimant
wished to limit his appeal to certain issues. Accordingly, the Court will grant the Secretary's motion for partial reconsideration, withdraw the Court's January 28, 2011, opinion, and issue this opinion in its stead.
This appeal is timely, and the Court has jurisdiction over the case pursuant to
38 U.S.C. §§ 7252(a) and 7266. The appellant does not present any argument concerning the denial of his claim for the residuals of a collapsed lung. Accordingly, that claim is deemed abandoned. See Ford v. Gober, 10 Vet.App. 531, 535 (1997). In addition, the Court will not discuss the claims remanded by the Board, as the Court does not have jurisdiction over them and the appellant makes no argument with respect to them. See Link v. West, 12 Vet.App. 39, 47 (1998); Marlow v. West, 11 Vet.App. 53, 55 (1998). For the reasons set forth below, the Court will vacate the April 17, 2008, Board decision as to its dismissal of the appellant's claims of entitlement to service connection for
asbestos exposure, hepatitis B, and hepatitis C and remand those matters for further proceedings consistent with this opinion. However, the Court will dismiss the appellant's appeal as to his claims for memory loss, migraines, and plantar fasciitis that were not the subject of the Board decision on appeal.

I. BACKGROUND
The appellant served on active duty in the U.S. Army from August 1968 until August 1970. R. at 573. In July 2003, the appellant filed a claim with the St. Petersburg, Florida, regional office (RO),
seeking entitlement to service connection for a back condition, bilateral wrist conditions, hepatitis
C, carpel tunnel syndrome, a collapsed lung, drug addiction, and a lung condition due to asbestos
exposure. R. at 484-85. The appellant also sought a compensable rating for his service-connected
distal left fibular shaft fracture and the reopening of a previously denied claim for a forehead injury.
R. at 484. At a later date, the appellant added claims for an eye condition, hepatitis B, a stab wound to the chest, and a heart condition. R. at 448, 450.
In February 2004, the RO issued a rating decision that disposed of 16 separate claims. R. at

2

391. Within that decision, the RO continued the appellant's noncompensable rating for his fibular shaft fracture, denied entitlement to a non-service-connected pension, and also denied reopening of the appellant's claim for the residuals of a forehead injury. R. at 391. The decision further denied entitlement to service connection for an eye condition, the residuals of a stab wound to the chest, the residuals of a collapsed lung, asbestos exposure, heart trouble, drug and alcohol addiction, hepatitis B and C, a back disability, carpal tunnel syndrome, a scar on the left wrist, and bilateral plantar fasciitis. Id. The appellant timely filed a Notice of Disagreement (NOD) to the RO's decision with
respect to his claims for asbestos exposure, a back disability, a collapsed lung, hepatitis B and C, and his distal left fibular shaft fracture. R. at 379-84. The appellant also raised new claims for a neck condition, migraines, and memory loss. Id. However, the appellant did not express any disagreement with the other ten claims decided by the RO in the February 2004 decision. Id.
In September 2004, the RO issued an SOC with respect to the six claims referenced in the
appellant's NOD. R. at 311-31. The RO also issued a rating decision with respect to the appellant's newly filed claims for a neck condition, migraines, and memory loss. R. at 334-39. The record before the Court does not reflect that the appellant filed an NOD with respect to the September 2004 rating decision; however, using a VA Form 9,1 the appellant filed a Substantive Appeal to the Board in November 2004 concerning the "issues" outlined in the September 2004 SOC. R. at 309-10. On his Form 9, the appellant checked Box A within Block 9, which stated: "I WANT TO APPEAL ALL OF THE ISSUES LISTED ON THE STATEMENT OF THE CASE AND ANY SUPPLEMENTAL STATEMENTS OF THE CASE THAT MY LOCAL VA OFFICE SENT TO ME." R. at 309. Box B within Block 9 is to be completed only if the claimant is appealing some but not all of the issues on the SOC. Id. Below Box B is a space for the claimant to list the issues he wishes to appeal. Although the appellant did not check Box B within Block 9, in the space provided below Box B of Block 9 on the same Form 9, the appellant specifically listed the RO's denial of his claims for an increased rating for his service-connected fractured distal fibular shaft and denial of his claims for a back injury and residuals of a collapsed lung. Id.

1 The appellant's VA Form 9 that was submitted by the parties as part of the record of proceedings is attached
to this opinion. R. at 309. Although the printed instructions for completing the VA Form 9 were not included in the
record of proceedings, the Court is attaching a copy of the full text of VA's Form 9 including those instructions. This
is the same version of the form that was submitted by the appellant.
3

In the decision now on appeal, the Board fully addressed the three "issues" specifically
outlined in the appellant's Form 9 in the blank space below Box B in Block 9 and further in Block 10; however, the Board dismissed the appellant's claims for (or issues of) asbestos exposure, hepatitis B, and hepatitis C. The Board, in the decision on appeal, observed that the appellant had originally included these issues in his appeal. It then stated
However, in his October 2004 VA Form 9, the veteran stated that he was only
appealing the issues of entitlement to service connection for a back disorder and
residuals of a collapsed lung and for an increased evaluated (sic) for his residuals of
a fractured distal left fibular shaft. As such, the veteran has not filed a [S]ubstantive
[A]ppeal for the other issues. See 20 C.F.R. § 20.202.
R. at 4.

II. ANALYSIS
A. The Court's Jurisdiction
In his brief to the Court, the appellant argues that the Board erred by not adjudicating his
claims of entitlement to service connection for asbestos exposure, hepatitis B, hepatitis C, memory loss, migraines, and bilateral plantar fasciitis. Appellant's Brief (Br.) at 7. Specifically, he asserts that the Court's caselaw required the Board to liberally read his Form 9 Substantive Appeal and to address all issues possibly raised within that appeal. Id. at 20-24. The Secretary counters that the Court lacks jurisdiction over the appellant's asbestos, hepatitis, memory loss, migraine, and plantar fasciitis claims because those claims were never properly raised before the Board. Secretary's Br. at 7. In support of this contention, the Secretary argues that, under 38 U.S.C. § 7105(d)(5), 38 C.F.R.
§ 20.202, and this Court's caselaw, the Board was free to dismiss claims where the appellant did not allege some error committed by the RO. Id. at 7-10.
The Court's appellate jurisdiction derives exclusively from the statutory grant of authority
provided by Congress, and the Court may not extend its jurisdiction beyond that which is permitted by law. Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 818 (1988); see Henderson v. Shinseki, 131 S.Ct. 1197 (2011). Congress has established that the Court "shall have power to affirm, modify, or reverse a decision of the Board or to remand the matter, as appropriate." 38 U.S.C. § 7252(a). Consequently, the Court's "jurisdiction is premised on and defined by the
4

Board's decision concerning the matter being appealed," and when the Board has not rendered a decision on a particular issue, the Court generally has no jurisdiction under section 7252(a) to consider the merits of the matter. Ledford v. West, 136 F.3d 776, 779 (Fed. Cir. 1998); see also Howard v. Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000). Nonetheless, the Court exercises de novo review over Board determinations that are critical to its jurisdiction. See Stokes v. Derwinski, 1 Vet.App. 201, 203-204 (1991) (finding that the Court may find facts "crucial to the proper determination of whether this Court has jurisdiction"); see also Butts v. Brown, 5 Vet.App. 532, 539 (1993) (en banc) (Court reviews "questions of law de novo without any deference to the [Board's]
conclusions of law"). The Court reviews do novo whether a document constitutes a Substantive Appeal. Gibson v. Peake, 22 Vet.App. 11, 15 (2007).

1. Claims (Issues) Dismissed by the Board
The Court has the power to review the Board's refusal to exercise its jurisdiction. Butts,
supra. In this case, the Court has jurisdiction to determine whether the Board acted properly in dismissing the appellant's claims for asbestos exposure, hepatitis B, and hepatitis C pursuant to 38 U.S.C. § 7105 and VA's implementing regulation, 38 C.F.R. § 20.202. For the reasons discussed below, the Court concludes that the Board failed to provide an adequate statement of reasons or bases for its conclusion that the appellant had not filed a Substantive Appeal on three of the six issues that were identified on his NOD and the RO's SOC.
Pursuant to section 7105, the filing of an NOD initiates appellate review in the VA
administrative adjudication process, and the request for appellate review is completed by the claimant's filing of a Substantive Appeal, after an SOC is issued by VA. 38 U.S.C. § 7105(a), (d)(1), (d)(3); see Archbold v. Brown, 9 Vet.App. 124, 132 (1996); Rowell v. Principi, 4 Vet.App. 9, 14 (1993). The statute states in relevant part that
Copies of the "statement of the case" prescribed in paragraph (1) of this subsection
will be submitted to the claimant and to the claimant's representative. . . . The
claimant will be afforded a period of sixty days from the date the statement of the
case is mailed to file the formal appeal. This may be extended for a reasonable
period on request for good cause shown. The appeal should set out specific
allegations of error of fact or law, such allegations related to specific items in the
statement of the case. The benefits sought on appeal must be clearly identified.
38 U.S.C. § 7105(d)(3). It is well established that the Board must review all issues and theories that
5

are reasonably raised by the claimant or the evidence of record. See generally Robinson v. Peake, 21 Vet.App. 545 (2008) aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); see also Jarrell v. Nicholson, 20 Vet.App. 326, 331-32 (2006) (en banc); Myers v. Derwinski, 1 Vet.App. 127 (1991).
The issue before the Court is whether the Board erred in determining that a claimant limits his appeal to certain specified issues when he files a VA Form 9 in which he checks the box indicating his desire to appeal "ALL OF THE ISSUES LISTED ON THE [SOC]", but also specifies on the Form 9 arguments as to some, but not all, issues listed in the SOC.
The September 2004 SOC covered the following six issues: (1) an increased rating for the
appellant's service-connected residuals of a fractured distal left fibular shaft, (2) service connection for a back disability, (3) service connection for asbestos exposure, (4) service connection for hepatitis B, (5) service connection for hepatitis C, and (6) service connection for the residuals of a collapsed lung. R. at 313. In response to the SOC, the appellant submitted a Substantive Appeal in the form of a VA Form 9, on which he checked Box A of Block 9 indicating that he wanted to appeal
"ALL OF THE ISSUES" stated in the SOC. R. at 309. However, on that same VA Form 9 in the
white space below Box B (which he did not check) within Block 9, the appellant specifically listed
the RO's denial of his claims for an increased rating for his service-connected fractured distal fibular
shaft and denial of service connection for a back injury and collapsed lung. Id.
This Form 9 was accepted as a Substantive Appeal, and the appellant's case went before the
Board. In 2 May 2005, the appellant's representative from a veterans service organization submitted
a letter listing distal fibular shaft, back injury, and collapsed lung as the "[i]ssues [p]resented for
[r]eview." R. at 302. In January 2008, the appellant presented testimony at a Board hearing. R. at
124-152. At the outset of the hearing, the hearing officer, without further explanation, stated that:
"In our prehearing conference we determined that we have three issues on appeal today, those being
entitlement to service connection for a back disability, service connection for residuals of a collapsed
lung, and entitlement to a compensable (increased) evaluation for residuals of a fracture of the left
2The record before the Court does not contain any evidence of whether all or only three of the six issues listed
in the September 2004 SOC were certified by the RO as on appeal to the Board. See 38 C.F.R. § 19.35 (2011)
(providing that a VA Form 8 "'Certification of Appeal' . . . is used for administrative purposes and does not serve to either
confer or deprive the Board . . . of jurisdiction over an issue").
6
distal fibular tip/shaft. Is that the correctly stated issues?" The appellant replied, "That's correct."
R. at 125. The hearing officer then concluded the hearing by asking the appellant: "Is there anything
that you would like to add at this time that you don't feel that we've discussed with regard to your
back, your lungs or, essentially, your left ankle?" R. at 151. The appellant declined to add anything.
Id.
In its April 2008 decision, the Board made no further mention of this dialog nor of the
"prehearing conference" in reaching the conclusion that the appellant had limited his appeal to solely
those three issues being discussed at the hearing. Notably, any statements made at the "prehearing
conference" are not a part of the record before this Court. The Board noted that
the veteran's appeal had originally included the issues of entitlement to service
connection for asbestos exposure, hepatitis B, and hepatitis C. However, in his
October 2004 VA Form 9, the veteran stated that he was only appealing the issues
of entitlement to service connection for a back disorder and residuals of a collapsed
lung and for an increased evaluat[ion] for his residuals of a fractured distal left
fibular shaft. As such, the veteran has not filed a [S]ubstantive [A]ppeal for the other
issues. See 38 C.F.R. § 20.202. Accordingly, the issues of asbestos exposure,
hepatitis B, and hepatitis C no longer remain in appellate status and no further
consideration is required.
R. at 4.
The Board's decision to dismiss the veteran's appeal as to three issues relied on VA regulation
38 C.F.R. § 20.202 (Rule 202. Substantive Appeal). That regulation cites as its statutory authority,
38 USC § 7105 (d)(3)-(5). Both are important to this decision. This Court has addressed both of
these provisions previously, noting that the language used in section 7105(d)(5) ("may dismiss") is
permissive in nature and merely allows the Board the latitude to dismiss appeals under certain
conditions. Gomez v. Principi, 17 Vet.App. 369, 372 (2003). However, dismissal is not mandated
in any case. It is helpful here to start with the provisions of Rule 202, which implements section
7105:
A Substantive Appeal consists of a properly completed VA Form 9, "Appeal to
Board of Veterans' Appeals," or correspondence containing the necessary
information. If the Statement of the Case and any prior Supplemental Statements of
the Case addressed several issues, the Substantive Appeal must either indicate that
the appeal is being perfected as to all of those issues or must specifically identify the
issues appealed. The Substantive Appeal should set out specific arguments relating
7
to errors of fact or law made by the agency of original jurisdiction in reaching the
determination, or determinations, being appealed. To the extent feasible, the
argument should be related to specific items in the Statement of the Case and any
prior Supplemental Statements of the Case. The Board will construe such arguments
in a liberal manner for purposes of determining whether they raise issues on appeal,
but the Board may dismiss any appeal which fails to allege specific error of fact or
law in the determination, or determinations, being appealed. The Board will not
presume that an appellant agrees with any statement of fact contained in a Statement
of the Case or a Supplemental Statement of the Case which is not specifically
contested. Proper completion and filing of a Substantive Appeal are the last actions
the appellant needs to take to perfect an appeal.
38 C.F.R. § 20.202 (2004 & 2010) (emphasis added).
The regulation states in pertinent part that the Substantive Appeal "should set out specific
arguments" and "to the extent feasible, the arguments should be related to specific items in the
[SOC]." The regulation further states: "The Board will construe such arguments in a liberal manner
for purposes of determining whether they raise issues on appeal" while noting that the "Board may
dismiss any appeal which fails to allege specific errors of fact or law . . . ." Id. In this portion of the
regulation, the Board is directed to assume the affirmative obligation of construing the arguments
in a liberal (pro-veteran) manner. And, the regulation only then notes the permissive option of
dismissal if "any appeal. . . fails to allege specific error."
The problem in the case before the Court is that the appellant created an ambiguity by
checking the box in Block 9 indicating that he wanted to appeal all of the issues identified in the
SOC and also inserted in the same Block 9 specific mention of three specific issues. This created
a situation not contemplated by the instructions accompanying this form. The instructions for
completion of Block 9 stated the following:
Block 9. Save what you want to tell us about why you are appealing for the
next block. This is the block where you tell us exactly what you are appealing.
You do this by identifying the "issues" you are appealing. Your local VA
office has tried to accurately identify the issues and has listed them on the
SOC and any SSOC it sent you.
If you think that your local VA office has correctly identified the issues
you are appealing and, after reading the SOC and any SSOC you
received, you still want to appeal its decisions on all those issues, check the
first box in block 9. Do not check the second box if you check the first box.
8
Check the second check box in block 9 if you only want to continue your
appeal on some of the issues listed on the SOC and any SSOC you received.
List the specific issues you want to appeal in the space under the second box.
While you should not use this form to file a new claim or to appeal new issues
for the first time, you can also use this space to call the [Board's] attention to
issues, if any, you told your local VA office in your Notice of Disagreement
you wanted to appeal that are not included in the SOC or a SSOC. If you want
to file a new claim, or appeal new issues (file a new Notice of Disagreement),
do that in separate correspondence.
Attachment at 4-5 (boldface emphasis added). Thus, in completing his VA Form 9, this appellant
created ambiguity in regard to the issues he was appealing. He checked Box A in Block 9, did not
check Box B in Block 9 (which states an intention to appeal only certain listed issues), and then in
the remaining free space in Block 9, which appears to be intended for use only in limited appeals for
which Box B is checked, he inserted comments concerning only three issues.
In analyzing the circumstances presented by the ambiguity created here with respect to the
Substantive Appeal, the Court notes significant principles that the Board failed to consider and apply.
First, this Court has long taken the position that VA must not confine its review of a document from
a pro se claimant to the four corners of the document itself. See, e.g., Douglas v. Derwinski,
2 Vet.App. 435, 439 (1992) (discussing this principle in the context of a Form1-9 Substantive
Appeal). Second, there is a "basic principle of the VA claims process that claims will be processed
and adjudicated in an informal, nonadversarial atmosphere, and that to ensure a just outcome under
this rubric VA will assist claimants in many ways." Id.; EF v. Derwinski, 1 Vet.App. 324, 326
(1991) (stating that although the arguments made in a Form 1-9 appeal to the Board often frame the
nature of that appeal: "there is nothing magical about the statements actually on the 1-9 form, given
the VA's non-adversarial process. The VA's statutory 'duty to assist' must extend this liberal reading
to include issues raised in all documents or oral testimony submitted prior to the B[oard] decision.").
In this regard, the Board has an obligation to read pro se filings liberally. See Comer v. Peake,
552 F.3d 1362, 1368 (Fed. Cir. 2009); Andrews v. Nicholson, 421 F.3d 1278, 1282-84 (Fed. Cir.
2005); Roberson v. Principi, 251 F.3d 1378, 1380-84 (Fed. Cir. 2001). This obligation also applies
to filings made by represented appellants in their direct appeals to the Board. Robinson v. Shinseki,
557 F.3d 1355, 1359 (Fed. Cir. 2009).
Third, the Secretary promulgated a regulation, 38 C.F.R. § 20.101(d), directing the Board to
9
seek clarification from a claimant when a claimant's Substantive Appeal is ambiguous as to the
issues raised on appeal. This regulation provides:
The Board may address questions pertaining to its jurisdictional authority to review
a particular case, including, but not limited to, determining whether . . . Substantive
Appeals are adequate . . ., at any stage in a proceeding before it, regardless of whether
the agency of original jurisdiction addressed such question(s). When the Board, on
its own initiative, raises a question as to a potential jurisdictional defect, all parties
to the proceeding and their representative(s), if any, will be given notice of the
potential jurisdictional defect(s) and granted a period of 60 days following the date
on which such notice is mailed to present written argument and additional evidence
relevant to jurisdiction and to request a hearing to present oral argument on the
jurisdictional question(s). . . .
38 C.F.R. § 20.101(d).3 Rather, the Board determined, on its own initiative and without notice to the appellant, that: "the veteran has not filed a [S]ubstantive [A]ppeal for the other issues. See 38 C.F.R. § 20.202. Accordingly, the issues of asbestos exposure, hepatitis B, and hepatitis C no longer remain in appellate status and no further consideration is required." R. at 4. VA's own regulations, let alone a veteran-friendly, non-adversarial process, do not permit the Board ab initio to dismiss certain issues within an appeal without first affording the appellant the benefit of the
procedure mandated by 38 C.F.R. § 20.101(d): to provide notice of the Board's perceived defect in the Substantive Appeal created by a claimant's response on the Form 9 and an opportunity to present argument and/or evidence on the issue of the adequacy of the Substantive Appeal.
On the facts of this case, where the appellant completed a VA Form 9 and checked Box A
of Block 9 stating that "I WANT TO APPEAL ALL OF THE ISSUES LISTED ON THE
STATEMENT OF THE CASE AND ANY SUPPLEMENTAL STATEMENTS OF THE CASE THAT MY LOCAL VA OFFICE SENT TO ME," but then further completed Block 9 by listing only certain issues, the Board's unexplained statement that the appellant had limited his appeal by the manner in which he completed his VA Form 9 constitutes error. It fails to adequately provide reasons or bases for the dismissal of the remaining issues. Faced with the ambiguity created by the appellant in the Substantive Appeal, the veteran-friendly process requires VA at the RO or Board to seek clarification and communicate with the appellant as to any perceived concern about how the

3 In Percy v. Shinseki, 23 Vet.App. 37, 45 (2009), this Court held that the statutory period with regard to filing
a Substantive Appeal is discretionary and the time frame is not appropriately deemed "jurisdictional."
10
appellant had filled out the Form 9. Indeed, such action would be consistent with VA's obligation under § 20.101(d).
However, the record before the Court contains no evidence of any effort by VA to clarify
whether the appellant was appealing all the issues in the SOC or only three issues. The Board failed to comply with VA's own procedural requirements found in 38 C.F.R. § 20.101(d). This failure to notify the appellant here was prejudicial to the appellant because the appellant had no opportunity, prior to the Board decision, to present argument and/or evidence in support of his position with respect to what issues he was appealing and any errors in the RO's adjudication of those issues. The Board summarily declared that the appellant "stated that he was only appealing the issues of entitlement to service connection for a back disorder and residuals of a collapsed lung and for an increased evaluat[ion] for his residuals of a fractured distal left fibular shaft." R. at 4. Yet, no such statement from the appellant can be found on any portion of the Form 9. See R. at 309.
The Court notes that the VA Form 9, Block 9, containing two apparently mutually exclusive options, together with sufficient white space that a person checking Box A in Block 9 might also add additional information in that block, invites ambiguity in a claimant's response. That is precisely the ambiguity we deal with today. However, after the filing of this Form 9, the Board and the appellant were not powerless to limit the issues on appeal in this case. As noted above, the Board could have resolved any ambiguity by providing notice to the appellant of any potential defect in his Substantive Appeal "at any stage in a proceeding before [the Board]." 38 C.F.R. § 20.101(d). Further, the Secretary has specifically provided procedures for a withdrawal of an entire appeal or issues within an appeal, which procedures specifically require that the withdrawal be in writing. 38 C.F.R. § 20.204. Thus, the issues on appeal could have been limited if the record was clear that the appellant wished to do so. However, there is nothing in the record before the Court to make it clear that the Board hearing officer informed the appellant that the manner in which he had completed his VA Form 9 might lead to a conclusion that only three issues were on appeal.
The Secretary argues that the legislative and regulatory history of 38 U.S.C. § 7105 and
38 C.F.R. § 20.202 show that Congress never intended to relieve the claimant of the burden of "identify[ing] issues they wish to appeal and assert[ing] specific error in the administrative decision." Secretary's Motion for Partial Reconsideration at 2-8. He further argues that VA is not obligated to
11
inform the claimant that certain issues will be deemed abandoned on appeal upon the claimant's failure to raise an assertion of error. Neither of these arguments addresses the unique circumstances before the Court, in which the appellant's completion of the VA Form 9 clearly engendered an ambiguity of which VA had a duty, under its own regulations, to notify the appellant and give him an opportunity to present written argument and additional evidence relevant to the issue, actions which may likely lead to clarification as to which matters are being appealed.
The comments received by VA during the development of regulations governing VA's
treatment of issues on appeal to the Board expressed concern that the regulations granted the Secretary too much discretion to unilaterally dismiss an appeal. See 48 Fed. Reg. 6961, 6964 (1983), 57 Fed. Reg. 4088, 4093 (1992). In response to those concerns, VA noted that the Board has been, and will continue to be, very liberal in this area. This Rule of Practice also provides that "The Board will construe such arguments in a liberal manner for purposes of determining whether they raise issues on appeal . . ." and § 20.203[4] provides that appellants and representatives will be given notice and an opportunity to contest the matter when the [Board] questions the adequacy of the Substantive Appeal. 57 Fed. Reg. 4088, 4093 (1992).

As noted above, VA has a multitude of avenues available to clarify the issues on appeal that are consistent with pro-veteran, claimant-friendly claim development. The entire veterans claims adjudication process reflects the clear congressional intent to create an Agency environment in which VA is actually engaged in a continuing dialog with claimants in a paternalistic, collaborative effort to provide every benefit to which the claimant is entitled. In accordance with the Secretary's asserted position, VA not only does not engage in such a dialog, but rather need not even communicate to a veteran that he has not perfected an appeal as to certain issues he might otherwise believe are on appeal to the Board until the veteran receives that message many years later in a final Board decision.
The veteran's only remaining chance to receive an initial Board adjudication on the merits of any issue deemed abandoned by the Board is then to request Board reconsideration. However, the

4 In 2001, 38 C.F.R. § 20.203 was withdrawn and replaced with § 20.101(d), which permits the Board to
"dismiss any case over which it determines it does not have jurisdiction." 38 C.F.R. 20.101(d); 66 Fed. Reg. 17840,
17841 (2001); 66 Fed. Reg. 53339 (2001). However, § 20.101(d) requires that the Board first provide the claimant with
notice of any perceived defect of an entire Substantive Appeal and the opportunity to contest the asserted defect.
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Board's standard for granting reconsideration is a burdensome standard for the veteran to meet. The Chairman of the Board or his delegate has the sole discretion to choose the decisions that will be reconsidered and limits the decision to a review to the following grounds: (a) upon allegation of obvious error of fact of law; (b) upon discovery of new and material evidence; or (c) upon allegation that an allowance of benefits by the Board has been materially influenced by false or fraudulent evidence. 38 C.F.R. § 20.1000 (2011).
The Secretary further argues that the appellant "explicitly abandoned" the issues of
asbestos exposure, hepatitis B, and hepatitis C during his January 2008 hearing before the Board. Secretary's Br. at 13-14. However, it is the Board that is required to provide a complete statement of reasons or bases, and the Secretary cannot make up for its failure to do so. See Martin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144, 156 (1991) (" '[L]itigating positions' are not entitled to deference when they are merely appellant counsel's 'post hoc rationalizations' for agency action, advanced for the first time in the reviewing court."). The Board does not discuss the January 2008 hearing in its decision. There is simply no indication that any statements that the appellant or his representative made at that January 2008 hearing influenced the Board's decision. The Secretary cannot support the Board's determination by providing reasons for the Board's decision that were not stated by the Board.
In sum, the Board's only explanation for its decision is the cursory statement that the
appellant "stated" on the Form 9 that he intended to limit his appeal. A review of the appellant's Substantive Appeal indicates that he did not actually state that he was limiting his appeal to three issues. The Board's summary conclusion is inadequate because it does not provide this Court or the appellant with an explanation of how the Board considered and weighed the conflicting information on the VA Form 9. The Secretary again attempts to bolster the Board's decision by arguing that the Board exercised its discretion under § 20.202 and dismissed the appeal as to the claims for asbestos exposure, hepatitis B, and hepatitis C because the Board determined that the Substantive Appeal did not contain any specific allegations of error of fact or law regarding these claims. In doing so, the Secretary again makes a post hoc rationalization for the Board's decision. There is no mention in the Board decision that it was dismissing the appeal for this reason. The Board decision does not include any discussion of the specificity requirement of section 7105. Rather, the Board declared
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that the appellant "stated that he was only appealing [three of the six] issues in his Substantive Appeal." The Board then concluded that the appellant limited his appeal and did not file a Substantive Appeal as to the three disputed issues.
Contrary to the Secretary's argument, it is impossible to determine from the Board's
conclusory language that it determined that the Substantive Appeal was insufficient because it contained no specific allegations of error of fact or law. The Court expects that if the Board intends to dismiss an appeal for failure to comply with the specificity requirement of section 7105, the Board would clearly state this and explain the basis of its decision. Therefore, the Court finds the Secretary's argument that the Board correctly dismissed the appellant's appeal under § 20.202 unavailing. Moreover, as noted above, the Board did not discuss 38 C.F.R. § 20.101(d). These fundamental deficiencies in the Board's statement of reasons or bases require that we vacate the Board decision that the appellant did not file a Substantive Appeal and remand the matter for readjudication.
Accordingly, the Court will vacate the Board's dismissal of the issues of asbestos exposure, hepatitis B, and hepatitis C under 38 C.F.R. § 20.202 for failure to state adequate reasons or bases and for failure to comply with the Secretary's own regulations and will remand the matter for appropriate action consistent with VA's regulations. See 38 C.F.R. § 20.101(d); Robinson v. Shinseki, 557 F.3d at 1359.

2. Claims Not Addressed by the Board
To the extent that the appellant makes arguments concerning his claims for memory loss,
migraines, and fasciitis, which were not decided by the Board, the Court has no jurisdiction to consider these claims on the merits absent a Board decision addressing them. See Jarrell, 20 Vet.App. at 331 (noting that the Board does not have jurisdiction over a claim until the RO first issues a decision on it); see also 38 U.S.C. § 7104(a). The Court notes that it is not apparent from the record that the appellant ever filed an NOD as to these claims after the RO decided them. To the extent that the appellant believes he has a pending appeal as to these claims, he should raise this issue to VA. See DiCarlo v. Nicholson, 20 Vet.App. 52, 55 (2006). If the Board determines that no
timely NOD was filed or if it denies the claims on the merits, the appellant can appeal by filing a
Notice of Appeal with the Court within 120 days of the Board's decision. 38 U.S.C. § 7266(a).
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B. Appellant's Merit Argument
The Court acknowledges the appellant's argument that VA did not meet its duty to assist with respect to his claim for service connection for a lung condition caused by asbestos exposure. Appellant's Br. at 24. However, as this claim has not been considered on the merits by the Board, the Court will not address this issue, but will allow the Board to consider it in the first instance. See Maggitt v. West, 202 F.3d 1370, 1377 (Fed. Cir. 2000) (finding that the Court "may hear legal arguments raised for the first time with regard to a claim that is properly before the court, [but] it is not compelled to do so in every instance").
Accordingly, the Court will vacate the April 17, 2008, Board decision with respect to the
appellant's claims for asbestos exposure, hepatitis B, and hepatitis C and remand those matters for further proceedings consistent with this opinion. However, the appellant's appeal for service connection for memory loss, migraines, and plantar fasciitis is dismissed for lack of jurisdiction because those conditions were not the subject of the Board decision now on appeal. On remand, the appellant is free to submit additional evidence and argument, including the arguments raised in his briefs to this Court, in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order), and the Board must consider any such evidence or argument submitted. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Board shall proceed expeditiously, in accordance with 38 U.S.C. §§ 5109B, 7112 (requiring Secretary to provide for "expeditious treatment" of claims remanded by Board or Court).

IV. CONCLUSION
Based on the foregoing analysis, the appellant's and the Secretary's briefs, and a review of
the record on appeal, the Secretary's motion for partial reconsideration is granted; the Court's
January 28, 2011, opinion is WITHDRAWN; and this opinion is issued in its stead. The Board's
April 17, 2008, decision is VACATED with respect to the Board's dismissal of the issues of asbestos
exposure, hepatitis B, and hepatitis C, and the matters are REMANDED to the Board for further
proceedings consistent with this opinion. The appeal as to the appellant's claim for service
connection for memory loss, migraines, and plantar fasciitis is DISMISSED for lack of jurisdiction.
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LANCE: Judge, dissenting: I believe that the Court's original opinion was correct and should stand. Therefore, I must dissent. The new majority's opinion upon reconsideration is flawed in both application and analysis. In application, the Board should not be permitted another opportunity to dismiss the claims that it did not properly dismiss the first time. I fear that in two years the Court will be reversing another improper dismissal and remanding these claims for a decision on the merits that is already overdue. More importantly, the analysis in the new opinion is hopelessly muddled and will lead to rampant confusion in future cases as to how the Board should approach these issues.
The essential flaw in this new opinion is that fails to differentiate between the requirements for a valid Substantive Appeal and the requirements for a valid withdrawal of an appeal. The result is an opinion that seriously undermines our recent en banc decision in Ortiz v. Shinseki, 23 Vet.App. 353 (2010) (en banc). In Ortiz, we clearly held that a mere expression of intent is not enough to satisfy the Substantive Appeal requirement. Id. at 357. Yet, the current opinion discusses the "ambiguity" as to whether the appellant intended to appeal all issues as if that mattered in
determining whether the Board's dismissal was proper. It simply does not. As the majority notes,
the Board decision on review held that "the veteran has not filed a [S]ubstantive [A]ppeal for the
other issues." R. at. 4. The correctness of this determination cannot be measured by the appellant's
intent but only by examining whether the requirement to "set[] forth—however inartfully—a
particular theory of error" was satisfied or waived. Ortiz, 23 Vet.App. at 357.
In this case, there is no question that the appellant did not offer any argument, inartful or
otherwise, as to the claims in dispute. He merely checked Box A on VA Form 9, which states: "I
WANT TO APPEAL ALL OF THE ISSUES LISTED ON THE STATEMENT OF THE CASE AND ANY SUPPLEMENTAL STATEMENTS OF THE CASE THAT MY LOCAL VA OFFICE SENT TO ME." R. at 309. Thus, the question of whether the Substantive Appeal requirement was satisfied turns on the issue of whether checking this box was an acceptance of an offer by the Secretary to waive the argument requirement.
In my view, the only reasonable interpretation of Box A is that it is an offer to waive the
argument requirement. As a legal matter, such an interpretation is consistent with both the claimant friendly nature of the veterans benefits system, see Henderson v. Shinseki, 131 S. Ct. 1197, 1200 (2011) (reiterating that VA's adjudicatory process is meant to function with a high degree of
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informality and solicitude for the claimant), and the more general principle that ambiguity in a document should be construed against the drafter, see E.L. Hamm & Associates, Inc. v. England, 379 F.3d 1334, 1341-42 (Fed. Cir. 2004) (discussing the contract interpretation rule of contra proferentem, which states that ambiguity is generally construed against the drafter of a contract).
As a practical matter, a veteran would be completely shocked to check this box in a case and then to receive a Board decision dismissing his appeal for failure to state an argument.
The majority opinion spends a lot of time trying to decipher the effect that should be
accorded to the specific arguments that the appellant makes in box B of the form. The correct answer is none. The appellant's specific arguments cannot alter the meaning of box A. The meaning of that box is necessarily uniform in every case where that Form 9 is used and the appellant's choice to add arguments in box B cannot magically turn box A into something other than an offer to waive the argument requirement. By giving weight to the appellant's additional arguments in interpreting box A, the majority implies that the meaning of the pre-printed language in the Secretary's form is not fixed, but varies depending upon how the form is filled out. This is simply inconsistent withbedrock principles of law. Cf. Tropf v. Nicholson, 20 Vet.App. 317, 321 n.1 (2006) ("Without standard word meanings and rules of construction, neither Congress nor the Secretary can know how to write authorities in a way that conveys their intent and no practitioner or–more importantly–veteran can rely on a statute or regulation to mean what it appears to say."). Thus, the new majority opinion errs to the extent that the confusing new analysis implies that box A on this version of VA's Form 9 is not a waiver of the argument requirement in this case or in general.
There is arguably a separate issue of whether the appellant abandoned his appeal. As the
majority opinion notes, this was not the holding of the Board decision and the Secretary is raising this issue for the first time on appeal. Slip op. at 13. That could easily be the end of the matter.
Even if we were to entertain this argument, our case law is clear that the appellant's actions were not sufficient to withdraw these claims. See Kalman v. Principi, 18 Vet.App. 522, 524 (2004) (reversing Board finding that claimant withdrew his appeal where his statement regarding the "only issue remaining," in context, referred to resolving the location of a video hearing and not limiting the issues on appeal); Verdon v. Brown, 8 Vet.App. 529, 533 (1996) (setting aside Board finding that claimant withdrew his appeal where (1) the claimant's letter to his service representative stated he
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had "come to an agreement" in regard to the disability rating for his right leg, and (2) the service
representative's presentation to the Board omitted mention of the right leg rating, but (3) the
presentation of the claimant's other service representative mentioned the right leg rating); Isenbart
v. Brown, 7 Vet.App. 537, 541 (1995) (finding that, where claimant enumerated certain issues and
stated that there are "no additional issues" at hearing, Court found that "these few words spoken
orally" did not provide "the formality or specificity that withdrawal of [a Notice of Disagreement]
requires."). Therefore, remanding this matter for the Board to provide additional reasons or bases
on an issue where the record is clearly insufficient to support a finding against the appellant merely
risks needless delay and an unnecessary appeal to this Court in the future.
Finally, I note that this new opinion adds some additional discussion of the Board's
procedures for notifying appellants of potential jurisdictional problems and giving them an
opportunity to respond. Slip op. at 12 (discussing 38 C.F.R. § 20.101(d) (2011)). Although these
procedures should not be overlooked in relevant cases, procedural errors are simply irrelevant on
issues where the veteran should prevail on the merits. Thus, there is no need to discuss them in this
case as they merely provide another opportunity to unnecessarily prolong this matter on remand.
For these reasons, I would remand these claims with directions to the Board to decide them
on the merits and I dissent from the majority's more limited remand.
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