Monday, October 10, 2011

Single Judge Application, Absence of Evidence Not Negative Evidence, Buczynski v. Shinseki, 24 Vet.App. 221, 224 (2011)

Excerpt from decision below: "Moreover, as a general matter, "[w]hen assessing a claim, the Board may not consider the absence of evidence as substantive negative evidence." Buczynski v. Shinseki, 24 Vet.App. 221, 224 (2011). There is no reason to expect that any injury or discomfort the appellant may have experienced in two days of active duty before his condition was noted in the SMR would necessarily be recorded in the appellant's service records. Therefore, VA may not rest on the notion that the record contains insufficient evidence of aggravation. Instead, VA must develop evidence to affirmatively prove that there was no aggravation." ======================== Skip navigation U.S. Court of Appeals for Veterans Claims View | Download | Details Previous document | Next document . 10-1607 MarshallHE_10-1607.pdf Search Terms: BUCZYNSKI CreationDate: 09/30/2011 16:36:29 Creator: PrintServer150 ModDate: 10/07/2011 11:00:43 Producer: Corel PDF Engine Version 15.0.0.505 Title: X_XMPMETA_DC_TITLE: Times New Roman X_XMPMETA_XMPRIGHTS_MARKED: True ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 10-1607 HARRY E. MARSHALL, 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 Harry E. Marshall appeals through counsel from a May 5, 2009, Board of Veterans' Appeals (Board) decision that denied service connection for a left shoulder disability and for a cervical spine disability. For the following reasons, the Court will reverse the Board's May 2009 decision with respect to these disabilities and remand the matters for further proceedings with the instruction that a finding of aggravation be entered. The appellant essentially argues that deficiencies in the VA medical examination report on which the Board heavily relied rendered its statement of reasons or bases inadequate. Specifically, he argues that because the examination report was based only on a records review, the examiner did not have the benefit of the appellant's account of the in-service aggravation of his preexisting injuries, a summaryof which was included in a record document submitted after the VA opinion was rendered. He further argues that the VA examination reports merely agreed with the conclusions of an earlier medical examination board (MEB) report and did not supply the examiner's own medical analysis of why his neck and shoulder conditions were not aggravated in service. The appellant had approximately 20 years service in the U.S. Army National Guard before he was called to active duty in late 2001. Although the record contains abundant evidence that he had experienced difficulties with his shoulder and neck prior to reporting for active duty, in November 2001 a private physician stated: "He is cleared for active duty in the military. He should, however, be aware that if he has a flare up of his shoulder he should back down on his activity level as he has been good about doing at work at the present time." Record (R.) at 304. Both the Board and the Secretary agree that a December 2001 medical examination conducted prior to his reporting for active duty noted no physical conditions with respect to either the neck or shoulder.1 On February 14, 2002, however, two days after reporting for active duty at Ft. Stewart, Georgia, a service medical record indicates that he was "non-deployable due to inability to wear rucksack [and] helmet due to cervical radiculopathy and chronic impingement of [the] shoulder." R. at 332. He was referred to the MEB and released from active duty. The MEB report placed an "X" in the "yes" column for "existed prior to entry on active duty" and an " X" in the "no" column for "permanently aggravated by service." Record (R.) at 710. In the decision here on appeal, the Board acknowledged that "at the time of entry, there is a presumption that the Veteran entered in sound health." R. at 20. See 38 U.S.C. § 1111. The Board found, however, that "the probative evidence constitutes clear and unmistakable evidence that a left shoulder and cervical spine injuries . . . existed prior to service entrance." R. at 21. The Board also found that "there is clear and unmistakable evidence demonstrating that the preexisting [shoulder and neck conditions] were not aggravated byservice." R. at 22. The Board therefore concluded that the presumption of soundness had been rebutted and denied service connection for the shoulder and neck conditions. I. ANALYSIS Generally, in order to establish service connection for a present disability, "the veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury The Court notes that induction examinations fail to note well-established preexisting conditions all too frequently, placing VA in a difficult situation of rebutting the presumption of soundness equipped with little contemporaneous evidence. The service departments would do well, at a minimum, to make sure that the examiners at least inquire as to previous medical history and make appropriate notations on the induction examination report. Moreover, the prior arthroscopy should have left multiple, albeit small, scars that should have seeded further inquiry. 1 2 incurred or aggravated during service." Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The presumption of soundness relates to the second requirement–the showing of in-service incurrence or aggravation of a disease or injury. See Holton v. Shinseki, 557 F.3d 1362, 1367 (Fed. Cir. 2009); see also Maxson v. West, 12 Vet.App. 453, 460 (1999) ( application of presumption satisfies incurrence or aggravation element). A claimant must show that he or she suffered from a disease or injurywhile in service. Holton, 557 F.3d at 1367. Thereafter, except for conditions noted at induction, the presumption of soundness ordinarilyoperates to satisfythe second element without further proof. "[E]very veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment." 38 U.S.C. § 1111; see also 38 C. F.R. § 3.304(b) (2011). Therefore, when no preexisting medical condition is noted upon entry into service, a veteran is presumed to have been sound in every respect. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet.App. 225, 227 (1991). The burden then falls on VA to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service. Wagner, 370 F.3d at 1096; Bagby, 1 Vet.App. at 227. Once the presumption of soundness applies, the burden of proof on the second Shedden requirement does not shift back to the claimant. In particular, even when there is clear and unmistakable evidence of preexistence, the claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong of the presumption of soundness. See Routen v. West, 142 F.3d 1434, 1440 (Fed. Cir. 1998) ("When the predicate evidence is established that triggers the presumption, the further evidentiary gap is filled by the presumption."). If the Secretary fails to produce clear and unmistakable evidence of lack of aggravation, the claimant is entitled to a finding of in-service aggravation of the preexisting condition. The Secretary mayshow a lack ofaggravation byestablishing,with clearandunmistakableevidence,thattherewas no increase in disability during service or that any "increase in disability [was] due to the natural progress" of the preexisting condition. See Wagner, 370 F.3d at 1096. While this language has some commonality with the presumption of aggravation, see 38 U.S.C. § 1153, the common 3 language does not signal that the analysis shifts to the presumption of aggravation once preexistence of the injury or disease has been established. Rather, the analysis proceeds under the aggravation prong of the presumption of soundness. The burden is not on the claimant to show that his disability increased in severity, but, rather, it is on VA to establish by clear and unmistakable evidence that it did not. Clear and unmistakable evidence means that the evidence "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Vanerson v. West, 12 Vet.App. 254, 258-59 (1999) (citing definition of "clear and unmistakable error" in Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). The clear-and-unmistakable-evidence standard is an "onerous" one. Laposky v. Brown, 4 Vet.App. 331, 334 (1993) (citing Akins v. Derwinski, 1 Vet.App. 228, 232 ( 1991)). If there is clear and unmistakable evidence to show that the veteran's disability was both preexisting and not aggravated by service, then the veteran is not entitled to service- connected benefits. Wagner, 370 F.3d at 1096. Whether the Secretary has rebutted the presumption of sound condition is a matter that the Court reviews de novo. Miller v. West, 11 Vet.App. 345, 347 (1998). The factual determinations underlying the Board's decision, however, are judged under the "clearly erroneous" standard. See Bagby, supra. A. The Preexistence Prong of the Presumption of Soundness The record amply supports the Board's determination that the shoulder and neck conditions preexisted his active duty service. As the Board noted, the record includes evidence that the appellant began experiencing discomfort in his shoulder as early as late 1999. He was diagnosed with "[p]robable tendonitis of the left shoulder" in February 2000. R. at 292. The Board further noted that the appellant underwent surgery in January 2001, consisting of " a left shoulder arthroscopy with bursectomy, subacromial decompression, and an open distal clavicle excision." R. at 14, 312. With respect to the cervical spine condition, the Board noted that an April 10, 2001, magnetic resonance imaging "revealed bulging discs at C6-7." R. at 304. Therefore, the Court discerns no reason to disturb the Board's finding that preexistence of the neck and shoulder conditions had been established by clear and unmistakable evidence. The 4 appellant's principal contention, however, is that training leading up to and after reporting for active duty aggravated those conditions. The appellant also submitted a December 2004 statement in which he attributed the origin of his neck and shoulder conditions to various accidents that occurred during periods of training while he was in the Army National Guard. See R. at 258. The Board stated that these statements were not supported by the record, however, "as the objective medical evaluations showed that the Veteran did not report any injuries and the spine and left shoulder were normal on evaluation." R. at 17. Therefore, the appellant has not shown that it is at least as likely as not that his neck and shoulder conditions occurred during his National Guard service. B. The Aggravation Prong of the Presumption of Soundness The Secretary must also prove, by clear and unmistakable evidence, that the preexisting shoulder and cervical spine disorders were not aggravated during the appellant's active duty service, brief as it was. Wagner, 370 F.3d at 1096. The Board's reasoning was asfollows: "There is no record whatsoever of any reinjury, exacerbation, or other incident regarding his left shoulder or cervical spine. There was no increase in the disability level." R. at 22. The Board's approach to the aggravation issue, as revealed in these statements, is both legally and factually flawed. The appellant's entrance examination made no mention of any difficulties with the shoulder or cervical spine. Furthermore, the private medical report in November 2001 indicated that the shoulder had improved and cleared the appellant for active duty. Less than two months later his preexisting conditions made him ineligible for deployment and required his release from active duty. Finally, the MEB report states as follows: "Currently[the appellant] has constant left shoulder pain anteriorly aggravated by direct pressure, overhead work and the wear[ ing] of a ruck sack." R. at 716. These portions of the record constitute affirmative evidence of aggravation. Regardless, as the Board acknowledged, "[t]he claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of [the presumption of soundness] attaches." R. at 19. As discussed previously, once the presumption of soundness arises, the appellant has no further duty to provide evidence of aggravation; VA must prove lack of aggravation. 5 Moreover, as a general matter, "[w]hen assessing a claim, the Board may not consider the absence of evidence as substantive negative evidence." Buczynski v.Shinseki, 24 Vet.App. 221, 224 (2011). There is no reason to expect that any injury or discomfort the appellant may have experienced in two days of active duty before his condition was noted in the SMR would necessarily be recorded in the appellant's service records. Therefore, VA may not rest on the notion that the record contains insufficient evidence of aggravation. Instead, VA must develop evidence to affirmatively prove that there was no aggravation. The Secretary and the Board point to three pieces of evidence pertaining to the aggravation question. There was the MEB report containing an "x" indicating no aggravation during service. There was an accompanying report that generally reiterated the medical history of the appellant's difficulties with his shoulder and neck; this evidence pertains to the preexistence prong of the presumption of soundness. There was no explanation of MEB's conclusion of non-aggravation, however, or any evidence pertaining to that issue. There were also two VA examination reports (one each for the shoulder and cervical spine conditions) both dated October 1, 2004. With respect to the shoulder condition, the examiner's total discussion of the aggravation issue was as follows: "On review of the records there is no indication/documentation of aggrivation [ sic] durring [sic] active duty service. I agree with the Medical Board determination." R. at 281. The cervical spine examination report contains a similarly conclusory and nonexpansive opinion on aggravation of that condition. See R. at 283. The Court agrees with the appellant that the examiner's discussion does not constitute the requisite medical explanation. The Court has made clear that such an unexplained conclusory VA opinion is entitled to no weight in a service connection context. See Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 304 (2008). Neither the VA medical opinions nor the MEB report on which they rely nor the combination of these documents constitutes clear and unmistakable evidence on the facts of this case. The Court does not agree that an "x" marked for "no aggravation" on a form rises to the level of clear and unmistakable evidence of lack of aggravation, especially when the report itself is internally contradictory, containing a statement that the wearing of the rucksack did aggravate the appellant's condition. Insofar as the VA medical opinions relyon the MEB report, theyinvoke the same internal 6 contradictions and add no weight to that report in the absence of any additional medical analysis. The only other reasoning in the VA examination reports asserted an absence of documentation of aggravation in service. This reasoning does not constitute a medical analysis; it is merely an incorrect recitation of facts. Even if the examiner were correct, the Board may not rely on reasoning that improperly shifts the burden of proof on the aggravation prong to the appellant. Therefore, the Court concludes that the Secretaryhas not carried his burden of proving lack of aggravation byclear and unmistakable evidence. Additionally,theSecretarypoints out thatuponreleasefromactiveduty, theappellantagreed "with the [MEB's] findings and recommendation." R. at 712. The Court notes that the only alternative presented on the form in question was to appeal the MEB's findings and recommendation for discharge. Furthermore, the aggravation of the appellant's preexisting conditions is ultimately a medical issue, which he is not competent to assess. See Espiritu v. Derwinski, 2 Vet.App. 492, 494-95 (1992) (stating that a layperson can provide an account of symptoms but no a diagnosis that requires medical knowledge). While the appellant's perception at separation whether the condition had been aggravated might constitute some evidence on the symptoms, the statement on the form does not constitute a binding admission on the medical conclusion. The Board asserted that "[t]here was no increase in the disability level." R. at 22. There is no medical evidence in the record, however, to support this assessment. The onlyevidence of record certainly indicates that the conditions worsened during active duty. See R. at 304, 332, 710-16. Whether this worsening constituted an increase in the disability level, as compared to what it was upon reporting for duty is a question that might have been illuminated by further medical evidence. On this record, however, the Court is unable to conclude that VA proved that there was no increase in disability. In sum, the evidence of lack of aggravation does not rise to the level of clear and unmistakable evidence. Therefore, VA has not rebutted both prongs of the presumption of soundness. The Court concludes that it must reverse the Board's finding as to aggravation of the preexisting shoulder and cervical spine conditions and direct that a finding of in-service aggravation be entered for these conditions. 7 It does not necessarily follow, however, that the unrebutted presumption of soundness will lead to service connection for the shoulder and cervical spine conditions. The appellant must still demonstrate a current disability and a nexus between his current disability and the in-service aggravation. See Holton, 557 F.3d at 1367; Dye v. Mansfield, 504 F.3d 1289, 1292-93 (Fed. Cir. 2007) (affirming this Court's finding that the presumption of soundness does not eliminate the need to demonstrate a causal connection between a veteran's current condition and his in-service injury). The Court will therefore remand these matters for further factfinding on the current disability and nexus issues. On remand, the appellant will be free to submit additional evidence and argument as to a current disability and nexus with regard to his shoulder and cervical spine conditions and the Board is required to consider any such evidence and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). A final Board decision following the remand herein ordered will constitute a new decision that, if adverse, may be appealed to this Court upon the filing of a new Notice of Appeal with the Court not later than 120 days after the date on which notice of the Board's new final decision is mailed to the appellant. Marsh v. West, 11 Vet.App. 468, 472 (1998). II. CONCLUSION Based on consideration of the foregoing, the Court REVERSES the Board's May 5, 2009, determination that the shoulder and cervical spine conditions were not aggravated in service and directs that a finding of aggravation be entered. The Court REMANDS these matters for further factfinding on the issues of a current disability and nexus to the in- service aggravation. DATED: September 30, 2011 Copies to: Virginia A. Girard-Brady, Esq. VA General Counsel (027) 8

Single Judge Application, VA Obligation Search for Pertinent Records, Mayhue v. Shinseki, 24 Vet.App. 273, 280 (2011)

Excerpt from decision below: "Recently, the Court concluded that the Board erred when it failed to assign an earlier effective date based upon the receipt of newly discovered service department records pursuant to 38 C.F.R. § 3.156(c) (2002) and (2010), where the record demonstrated that, not with standing the veteran's failure to fully cooperate with VA's requests for information to verify other claimed stressors, the information necessary for the Center for Research of Unit Records to verify his stressor that resulted in the award of benefits for PTSD had always been a part of the claims file. See Mayhue v. Shinseki, 24 Vet.App. 273, 280 (2011). The Court stated that it was "VA's administrative error in failing to verify [the appellant's] stressor with the information that it had at the time of his initial claim, not [the appellant's] subsequent failure to provide additional information sufficient to verify other claimed stressors, that prevented VA from verifying his stressor until March 2005." Id. Although Mayhue is not directly on point, the Court's reasoning is instructive and supports the appellant's contention that, in this case, VA's duty to assist may have included conducting a search for the pertinent unit histories and morning reports from the Center for Research of Unit Records where the record contains specific information denoting the appellant's unit assignments, military occupation, and dates of deployment to Vietnam. See R. at 315-16, 425, 480, 487, 526. The Board, however, did not discuss whether VA was obligated to conduct a search for unit histories or morning reports to confirm whether the appellant engaged in combat during his service in Vietnam. Instead, the Board summarily stated that it was "unaware of any outstanding pertinent evidence." R. at 5. In this case, the Court concludes that it is unclear whether the appellant's inaction deprived VA of the information needed to request records that may corroborate his assertion that he engaged in combat. See Mayhue, 24 Vet.App. at 280 (noting VA's determination that the veteran was subject to enemy attack because the Center for Research of Unit Records verified that 8 the base camp to which the veteran was assigned was subjected to enemy attacks)." ====================================== ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 09-4670 PAUL T. VENTURA, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before SCHOELEN, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. SCHOELEN, Judge: The appellant, Paul T. Ventura, appeals through counsel a November 5, 2009, BoardofVeterans'Appeals(Board)decisionthatfoundnewandmaterial evidencehad been received to reopen a claim for entitlement to service connection for post- traumatic stress disorder (PTSD), but denied the claim on the merits. Record of Proceedings (R.) at 3-9. This appeal is timely, and the Court has jurisdiction to review the Board's decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, the Court will vacate the Board's decision and remand the matter for further proceedings consistent with this decision. I. BACKGROUND The appellant served on active duty in the U.S. Marine Corps from January 27, 1969, to February 5, 1971, including service in Vietnam. R. at 526. His DD Form 214 reflects that his military occupational specialty was rifleman and that he received the National Defense Service Medal, the Vietnam Service Medal with one star, and the Vietnam Cross of Gallantry. Id. His service personnel records include a form that contains a heading, "COMBAT HISTORY - EXPEDITIONS," which notes that the appellant's service in Vietnam included participation in counterinsurgency actions against the Viet Cong from August 20, 1969, to November 30, 1969, and Operation Idaho Canyon in Quang Tri province from August 20, 1969, to September 10, 1969. R. at 480. During this time, he was assigned to Company A, 1st Battalion, 4th Marine Regiment, 3rd Marine Division. R. at 425. His personnel records also indicate that in September 1969, he was aboard the U.S.S. Repose for treatment of a "fever of unk[nown] origin." R. at 487. In May 1998, the appellant filed a claim for entitlement to service connection for PTSD, which was denied by a VA regional office (RO) in March 1999. R. at 304-09, 335-38. Years later, in February2005, the appellant was diagnosed with PTSD and reported that he experienced "hostile fire in a combat zone" and that he was sexually assaulted when he was aboard the U.S.S. Repose for treatment for malaria, hepatitis, and anemia. R. at 255, 257, 270. The following month, a VA psychiatrist, Dr. Leonard Kram, also diagnosed PTSD with depression. R. at 249. Dr. Kram's report indicates that the appellant reported combat service in Vietnam, schrapnel wounds to his lower extremities, and that he was treated aboard a medical ship after contracting malaria and hepatitis. R. at 248. Dr. Kram recorded the appellant's report that he was sodomized by another soldier while aboard the ship, but that he never reported the incident. Id. Dr. Kram also noted the appellant's history of recurrent nightmares, difficulty sleeping and maintaining employment, drug abuse, and that he had been homeless and unemployed for the preceding two years. R. at 248-49. Dr. Kram opined that "[i]t is likely that his PTSD, depression[,] and poly substance abuse is a direct result of his experience in combat in Vietnam as well as his sexual assault while receiving treatment for his in[j]uries and infectious disease while on active duty." R. at 249. In March 2005, the appellant submitted a statement indicating that he had been diagnosed with PTSD related to a sexual assault while on active duty, that he was being treated at a VA medical center for this condition, and requested that VA consider entitlement to service connection. R. at 298. Later that month, the appellant submitted a statement in support of claim in which he described the difficulties he experienced upon returning from service, including difficulty holding a job and problems with drug and alcohol, which he attributed to both the in-service sexual assault and being separated from his squad and coming into contact with the enemy while on a night fire mission. R. at 215-16. 2 The appellant submitted a handwritten statement in April 2005, in which he provided additional details regarding his combat service in Vietnam and being sexually assaulted. R. at 219- 22. With regard to his combat experience, the appellant wrote: While I was in Viet-Nam; from Da-Nang Air Force Base[,] I was sent to Quan- Tri Province then my Co. Platoon was sent to Dong-Ha Mountain where we did search [and] destroy missions or patrols. Came in contact with enemy [North Vietnamese Army] regulars in a night time s[kir]mish (firefight)[.] After that I was a nervous wreck[.] It was in the monsoon season one night on a patrol[,] I was separated from my squad[,] and to this day I still feel [the] nervousness I felt that night. I thought I was going to be killed or captured[.] I still have recurring nightmares of these events. R. at 220. On June 26, 2005, the RO issued a deferred rating decision, which noted that although the appellant's March 2005 correspondence described a sexual assault, later correspondence described combat situations. R. at 209. It was noted that clarification was necessaryto determine whether the appellant was seeking service connection for PTSD "due to sexual assault or combat exposure." Id. On August 1, 2005, the RO sent the appellant a letter informing him that it was working on his application for service connection for hepatitis C, anemia, and non- service-connected pension, and purported to inform him of the information and evidence needed to support those claims. R. at 189-97. The sole reference to his pending PTSD claim, contained on page three of the letter, requested that he clarify whether he was seeking service connection for PTSD due to sexual trauma or combat exposure. R. at 191. There is no indication in the record that the appellant responded to this request for clarification. InNovember2005,theRO notifiedtheappellant ofitsdecisionto denyentitlementto service connection for PTSD because there was no evidence presented to show that he engaged in combat with the enemy and there was no credible evidence to show that he was a victim of a sexual assault. R. at 162; see generally R. at 155-58, 160-69. With regard to the appellant's combat experience, the RO noted that [s]ervice records show that you served in Vietnam from August 19, 1969[,] to October 3, 1969[,] as a Rifleman with Company A, 1st Battalion, 4th Marine Regiment, 3rd Marine Division. For your short period of service in Vietnam, you were awarded the National Defense Service Medal, and the Vietnam Service Medal. You were also authorized to wear the Vietnamese Cross of Gallantry Medal that was awarded to your unit during the period of your assignment to that unit. In your 3 stressorstatements,youreportedthatduringyourtime in Vietnam yourcompanywas assignedto conduct"SearchandDestroy"missions and that yourunit camein contact with the North Vietnamese Army in a nighttime firefight, you also report being separated from your squad on a night patrol during the rainy season and of being sexually assaulted while aboard the hospital ship, the U.S.S. Repose. Sinceyourservicerecordsfailedto showanyawards,commendations,orcitations denoting your participation in combat or the occurrence of the sexual assault, it would have been necessary to seek out the confirmation of your reported stressors with the U.S. Armed Services Center For Research of Unit Records (USASCRUR) located in Springfield, Maryland. However, this action could not be undertaken based on your description of the events leading to your claimed [PTSD]. In order to request confirmation of reported in-service stressors, we must have specific details of the stressful event such as dates, places, unit of assignments at the time of the events, description of the events, medals, or citations received as a result of the events and if appropriate, names and other identifying information concerning any other individuals involved in the events. As a minimum, the report of stressors must indicate location and approximate time (a 2-month specific date range) of the stressful events in question, and the unit of assignment at the time the stressful event occurred. R. at 163. In November 2005, the appellant filed a Notice of Disagreement and submitted additional medical evidence from Dr. Selby, a clinical psychologist and sexual trauma counselor, who diagnosed him with PTSD based upon military sexual trauma. R. at 150-54. In February 2007, the RO issued a Statement of the Case (SOC), which continued to deny the claim because although the appellant's medical records showed a diagnosis of PTSD dueto sexual assault,therewasnoevidence of a verifiable in-service stressor. R. at 105; see R. at 91-106. The same SOC also denied the appellant's claim for entitlement to service connection for hepatitis C with anemia, which is not before the Court. Id. In May and July 2007, the appellant submitted a VA Form 9 indicating that he read the SOC and that he was appealing only the issue of "PTSD sexual assault." R. at 86-87; see also 84-85. In February 2009, the appellant submitted written statements from his brothers describing an incident that took place shortly after his return from Vietnam, during which the appellant stabbed one of his brothers who startled him from behind. R. at 48-55. 4 On November 5, 2009, the Board issued the decision here on appeal. R. at 3-9. The Board determined that new and material evidence had been received to reopen a claim of entitlement to service connection for PTSD, but denied the claim on the merits. Id. The Board concluded that "[t]he [v]eteran did not serve in combat and the record does not include credible evidence corroborating the occurrence of the [v]eteran's claimed in-service stressors including a personal assault." R. at 4. This appeal followed. The appellant argues that VA did not fulfill its duty to assist because, notwithstanding his statements that he engaged in combat with the enemy and the presence of a diagnosis of PTSD based, in part, on his reported combat experiences, VA failed to conduct a search for unit histories or morning reports, which could corroborate his assertion that he engaged in combat. Appellant's Brief (Br.) at 10-12. The appellant also argues that the Board failed to provide an adequate statement of reasons or bases for finding that he did not engage in combat and impermissiblyignored favorable evidence demonstrating that his PTSD diagnosis had been attributed to combat. Id. at 12-18. The Secretary disputes these contentions and argues for affirmance of the Board's decision. Secretary's Br. at 6-10. II. ANALYSIS To establish service connection for PTSD, a claimant must present (1) evidence of a current diagnosis of PTSD; (2) evidence of an in-service stressor, with credible supporting evidence that the claimed in-service stressor occurred; and (3) evidence of a causal nexus between the current symptomatology and the in-service stressor. 38 C.F.R. § 3.304(f) (2011); see Cohen v. Brown, 10 Vet.App. 128, 138 (1997). If the evidence establishes that the veteran engaged in combat with the enemy and his claimed stressor is related to that combat, the veteran's lay testimony alone generally is sufficient to establish the occurrence of the claimed in- service stressor. 38 U.S.C. § 1154(b); Sizemore v. Principi, 18 Vet.App. 264 (2004); 38 C.F.R. § 3. 304(f); see also Zarycki v. Brown, 6 Vet.App. 91, 98 (1993) (requiring that the Board "make specific findings of fact as to whether or not the veteran was engaged in combat with the enemy and, if so, whether the claimed stressor is related to such combat" and describing the different evidentiary standards applied to veterans who have been determined to have "engaged in combat with the enemy" and those who 5 have not). When a claim for PTSD is based on a noncombat stressor, "the noncombat veteran's testimony alone is insufficient proof of a stressor." Moreau v. Brown, 9 Vet.App. 389, 396 (1996). The Board's findings concerningcombat status and the sufficiencyofcorroborative evidence are findings of fact that the Court reviews under the "clearly erroneous" standard of review. Pentecost v. Principi, 16 Vet.App. 124, 126 (2002); Moreau, 9 Vet.App. at 395. A finding of fact is clearlyerroneous when the Court, after reviewing the entire evidence, " is left with the definite and firm conviction that a mistake has been committed." United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); see also Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990). The Board must consider all the evidence of record and discuss in its decision all "potentially applicable" provisions of law and regulation. See 38 U.S.C. § 7104(a); Schafrath v. Derwinski, 1 Vet.App. 589, 592-93 (1991). The Board is also required to provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for its decision, as well as to facilitate review in this Court. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert, 1 Vet.App. at 56-57. To comply with this requirement, 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. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). A. VA's Duty To Assist The Secretary has a duty to assist a claimant in obtaining evidence necessary to substantiate the claim. 38 U.S.C. § 5103A(a)(1). The Secretary's duty to assist includes making "reasonable efforts to obtain relevant records . . . that the claimant adequately identifies to the Secretary and authorizes the Secretaryto obtain." 38 U.S.C. § 5103A(b)(1); see Moore v. Shinseki, 555 F.3d 1369, 1372-75 (Fed. Cir. 2009). If the records are maintained by a Federal department or agency, "efforts to obtain those records shall continue until the records are obtained unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile." 38 U.S.C. § 5103A(b)(3); 38 C.F.R. § 3.159(e) (2011). If the Secretary is unable to obtain those records after making reasonable efforts to do so, the Secretary must provide notice of that fact to the claimant. See 38 U.S.C. § 5103A(b)(2); 38 C.F.R. § 3.159(e). The Board's determination that VA 6 has satisfied the duty to assist is reviewed under the "clearly erroneous" standard of review. Hyatt v. Nicholson, 21 Vet.App. 390, 395 (2007). As this Court has explained on numerous occasions, "the duty to assist is not a license for a 'fishing expedition' to determine if there might be some unspecified information which could possibly support a claim." Gobber v. Derwinski, 2 Vet.App. 470, 472 (1992) (noting that the duty to assist is "not a duty to prove a claim with the claimant only in a passive role"); Wood v. Derwinski, 1 Vet.App. 190, 193 (1991) ( stating that "[t]he duty to assist is not a one-way street"). As noted above, the appellant argues that the Secretary should have undertaken a search for pertinent unit histories and morning reports to corroborate his assertion that he engaged in combat with the enemy. Appellant's Br. at 9-13. In response, the Secretary argues that VA was under no obligation to develop a claim for PTSD based on combat exposure because the appellant failed to respond to VA's request for information and his VA Form 9 specifically limited the issue on appeal to the denial of PTSD based on sexual trauma. Secretary's Br. at 6-10. The Court disagrees. As an initial matter, the Court is not persuaded bythe Secretary's argument that the appellant limited the issue on appeal. First, it is well established that the Board has a duty to address all theories of entitlement that are reasonably raised either by the appellant or by the contents of the record. See Robinson v. Peake, 21 Vet.App. 545, 552-56 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). Indeed, the Court has stated that "[a]s a nonadversarial adjudicator, the Board's obligation to analyze claims goes beyond the arguments explicitly made." Id. at 563. Here, the record before the Board contained the appellant's lay assertions that he experienced combat in Vietnam and the March 2005 VA psychiatrist's opinion that attributes the appellant's PTSD in part to his combat experience. Second, and perhaps most compelling, is that the Board did not determine that the appellant abandoned the theory whether his PTSD is the result of combat stressors. Instead, the Board addressed that theory and found that the appellant's "service personnel records and the service treatment records do not show that the [ v]eteran experienced combat while in Vietnam" and that "[t]here is no evidence to verify that the [v]eteran experienced a night time incident with the enemy or that he ever experienced a combat situation." R. at 7; see Martin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144, 156 ( 1991) ("'[L]itigating 7 positions' are not entitled to deference when they are merely appellate counsel's 'post hoc rationalizations' for agency action, advanced for the first time in the reviewing court."). With regard to the Secretary's contention that the appellant failed to cooperate with VA's requests for information, the Court agrees with the appellant that his failure to cooperate fully with VA's request for information did not relieve VA of its duty to assist, if the Secretary had in his possession the information required to conduct a search to corroborate whether he engaged in combat. See Reply Br. at 4-5. Recently, the Court concluded that the Board erred when it failed to assign an earlier effective date based upon the receipt of newly discovered service department records pursuant to 38 C.F.R. § 3.156(c) (2002) and (2010), where the record demonstrated that, notwithstanding the veteran's failure to fully cooperate with VA's requests for information to verify other claimed stressors, the information necessary for the Center for Research of Unit Records to verify his stressor that resulted in the award of benefits for PTSD had always been a part of the claims file. See MayhueNext Hit v. Shinseki, 24 Vet.App. 273, 280 (2011). The Court stated that it was "VA's administrative error in failing to verify [the appellant's] stressor with the information that it had at the time of his initial claim, not [the appellant's] subsequent failure to provide additional informationsufficient to verifyotherclaimedstressors, thatpreventedVAfromverifyinghis stressor until March 2005." Id. Although Previous HitMayhueNext Hit is not directly on point, the Court's reasoning is instructive and supports the appellant's contention that, in this case, VA's duty to assist may have included conducting a search for the pertinent unit histories and morning reports from the Center for Research of Unit Records where the record contains specific information denoting the appellant's unit assignments, military occupation, and dates of deployment to Vietnam. See R. at 315-16, 425, 480, 487, 526. The Board, however, did not discuss whether VA was obligated to conduct a search for unit histories or morning reports to confirm whether the appellant engaged in combat during his service in Vietnam. Instead, the Board summarily stated that it was "unaware of any outstanding pertinent evidence." R. at 5. In this case, the Court concludes that it is unclear whether the appellant's inaction deprived VAoftheinformationneededtorequest records that maycorroborate his assertion that he engaged in combat. See Previous HitMayhueNext Document, 24 Vet.App. at 280 (noting VA's determination that the veteran was subject to enemy attack because the Center for Research of Unit Records verified that 8 the base camp to which the veteran was assigned was subjected to enemy attacks). As noted by the RO in its November 2005 rating decision, the record before the Agency contained the appellant's "[s]ervice records [that] show that [he] served in Vietnam from August 19, 1969[,] to October 3, 1969[,] as a Rifleman with Company A, 1st Battalion, 4th Marine Regiment, 3rd Marine Division." R. at 169. Given the relatively short period of time that the appellant served in Vietnam, the Court is unable to discern any basis for VA's failure to conduct a search for records to confirm the appellant's allegations that conducted "search [and] destroy missions or patrols" and "[c]ame in contact with enemy [North Vietnamese Army] regulars in a night time s[kir] mish (firefight)." R. at 220. The Board's failure to explain adequately why VA's duty to assist did not require the Secretary to conduct a search for unit histories or morning reports frustrates judicial review and requires that the matter be remanded. See Tucker v. West, 11 Vet.App. 369, 374 (1998) ( holding that remand is the appropriate remedy "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"). B. The Board's Reasons and Bases The Court also agrees that the Board failed to provide an adequate statement of reasons or bases for finding that the appellant did not engage in combat. As noted above, the Board determined that the appellant did not engage in combat because his service personnel and treatment records did not show that he experienced combat. R. at 7. However, in reaching this determination, the Board failed to address the credibility and probative value of the appellant's lay statements that he engaged in combat. While the Board may discount favorable evidence if it finds that the evidence lacks probative value, the Board must provide an adequate statement of reasons or bases "for its rejection of any material evidence favorable to the claimant." See Thompson v. Gober, 14 Vet.App. 187, 188 (2000); Owens v. Brown, 7 Vet.App. 429, 433 (1995) ("It is the responsibility of the [Board] . . . to assess the credibility and weight to be given to evidence."). The Board cannot satisfy its reasons-or- bases requirement by merely listing evidence, nor is a recitation of the appellant's testimony a sufficient surrogate for an account of whether the Board finds the testimony persuasive. See Dennis v. Nicholson, 21 Vet.App. 18, 22 (2007) ("The Court has long held that merely listing evidence before stating a conclusion does not constitute an adequate statement of reasons and bases." (citing 9 Abernathy v. Principi, 3 Vet.App. 461, 465 (1992))). Here, the Board's failure to assess the credibility and probative value of the appellant's lay statements that he engaged in combat renders its statement of reasons or bases inadequate. See Gaines v. West, 11 Vet. App. 353, 359 (1998) (Board's failure to analyze the veteran's own sworn testimony that he engaged in combat rendered the Board's statement of reasons or bases inadequate); see generally Daye v. Nicholson, 20 Vet.App. 512, 517 (2006) (holding that the absence of awards or decorations that would confirm engagement in combat, does not preclude a finding that the veteran engaged in combat, and the Board erred to the extent that it relied on the absence of awards to conclude that the veteran did not participate in combat). Finally, the Court agrees with the appellant that the Board impermissibly ignored favorable medical evidence. In its decision, the Board noted that the appellant initially reported a PTSD diagnosis as a result of sexual trauma, but that in March and April 2005 statements, he "also reported that he had PTSD due to a night time fight with the enemy North Vietnamese Regulars." R. at 7. The Board continued its discussion bynoting that after April 2005, the appellant "onlyindicated that he had PTSD due to a personal assault" and that "none of the VA medical records have attributed the [v]eteran's claimed PTSD to combat activities, only to the [v]eteran's claimed personal assault." Id. (emphasis added). The latter statement is factually incorrect because it ignores the March 2005 VA psychiatrist's opinion that the appellant's "PTSD, depression[,] and poly substance abuse is a direct result of his experience in combat in Vietnam as well as his sexual assault while receiving treatment for his in[j]uries and infectious disease while on active duty." R. at 249. Accordingly, on remand, the Board must assess the credibility and probative value of the veteran's lay statements regarding combat, and address the March 2005 VA psychiatrist's opinion that attributes the appellant's PTSD in part to his combat experience. In pursuing these matters on remand, the appellant is free to submit additional evidence and argument, and the Board is required to consider any such relevant evidence and argument. See Kay v.Principi,16Vet.App.529,534(2002)(statingthat,onremand,theBoardmust consideradditional evidence and argument in assessing entitlement to benefit sought); Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). The Court has held that "[a] remand is meant to entail a critical examination of the justification for the decision." Fletcher v. Derwinski, 10 1 Vet.App. 394, 397 (1991). The Board must proceed expeditiously, in accordance with 38 U.S.C. § 7112(requiring Secretary to provide for "expeditious treatment" of claims remanded by the Court). III. CONCLUSION After consideration of the appellant's and the Secretary's pleadings, and a review of the record, the November 5, 2009, Board decision is VACATED and the matter is REMANDED for further proceedings consistent with this decision. DATED: September 30, 2011 Copies to: Sean A. Ravin, Esq. VA General Counsel (027) 11

Single Judge Application, Claim Versus Theory of Entitlement to a Benefit, Hillyard v. Shinseki, 24 Vet.App. 343, 355 (2011)

Excerpt from decision below: "This Court has held that a "claim" is an expressed belief in an entitlement to a benefit, while a "theory" is a means of establishing entitlement to a benefit. Hillyard v. Shinseki, 24 Vet.App. 343, 355 (2011). Therefore, "although there may be multiple theories or means of establishing entitlement to a benefit for a disability, if the theories all pertain to the same benefit for the same disability, they constitute the same claim." Roebuck v. Nicholson, 20 Vet.App. 307, 313 (2006); see also Bingham v. Principi, 18 Vet.App. 470, 474 (2004)(finding that "direct and presumptive service connection are, by definition, two means (i.e., two theories) by which to reach the same end, namely service connection). =========================== ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 10-1862 BERNADITA P. TORRES, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before SCHOELEN, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. SCHOELEN, Judge: The appellant, Bernadita P. Torres, appeals through counsel an April 15, 2010, Board of Veterans' Appeals (Board) decision that, based on the submission of new and material evidence, reopened her claim for entitlement to service connection for the death of her husband, but then denied her claim. Record (R.) at 3-25. This appeal is timely, and the Court has jurisdiction to review the Board's decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single- judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, the Court will vacate the Board's decision and remand the matter for further proceedings consistent with this opinion. I. BACKGROUND The veteran, George Mendiola Torres, served on active duty in the U.S. Army from November 1969 until November 1971, including a period in Vietnam. R. at 519. In a March 15, 2002, decision, the VA regional office (RO) granted the veteran service connection for diabetes mellitus on a presumptive basis due to his exposure to herbicides while serving in Vietnam. R. at 452-57. In April 2002, following a surgical procedure, the veteran was diagnosed with pancreatic carcinoma. R. at 436. The veteran died on March 16, 2003. R. at 365. His death certificate lists his cause of death as "metastatic pancreas cancer," but recorded no other conditions related to his cause of death or contributing to his death. Id. On April 10, 2003, the appellant filed a claim for dependencyand indemnity compensation (DIC), death pension, and accrued benefits bya surviving spouse. R. at 356-60. The RO denied her claim in June 2003, a decision she apparently did not appeal. R. at 349-53. The appellant sought to reopen her claim in October 2006. R. at 198, 235. The RO, however, found in April 2007 that evidence submitted by the appellant was new but not material, and therefore declined to reopen her case. R. at 198-203. In October 2009, the Board requested that an expert medical opinion be obtained. R. at 51- 57. A large portion of the appellant's argument revolves around the November 2009 expert medical opinion written by Dr. Lawrence B. Afrin. R. at 43-46. Dr. Afrin concluded that it is unlikely that the veteran's pancreatic cancer was caused or aggravated byhis service- connected diabetesmilletus. R. at 44. Dr. Afrin noted that, although medical literature indicates that there might be an associational link between diabetes mellitus and pancreatic cancer, there is no evidence of a causal link. R. at 44-45. Likewise, he found no evidence in medical literature to indicate how diabetes mellitus might aggravate pancreatic cancer "in the sense of contributing to development of the cancer." R. at 45. Dr. Afrin's opinion is supported by an April 2007 VA examination report in which the examiner stated that "the veteran's diabetes did not cause his pancreatic cancer." R. at 207-08. A number of other documents submitted by private medical providers, however, link pancreatic cancer and diabetes milletus to varying degrees, including at least one that identified a causal link. R. at 49, 123, 213, 219, 220. The Board, in its April 15, 2010, decision here on appeal, reopened the appellant's claim for entitlement to service connection for the cause of death of the veteran based on the submission of new and material evidence, but then denied the claim. The Board concluded that evidence failed to indicate that the veteran's cause of death "was due to anyincident or event in active service," nor that it was "proximately due to or the result of his service-connected diabetes mellitus, on either a causation or aggravation basis." R. at 5. The Board found that competent medical evidence failed to establishaconnection betweentheveteran's diabetesmilletus andhis pancreaticcanceranddeath. 2 R. at 22. In doing so, it rejected (largely by comparison with Dr. Afrin's opinion) medical opinions potentially in support of the appellant's claim, finding them "conclusory and speculative." R. at 23- 24. The appellant raises three arguments on appeal. First, the appellant argues that the Board should have returned Dr. Afrin's opinion for clarification based on inconsistencies and inadequate reasoning in his statement of rationale. Appellant's Brief (Br.) at 10-13. Next, the appellant contends that the Board should have obtained a medical opinion exploring a possible nexus between the veteran's pancreatic cancer and his exposure to herbicide. Id. at 14- 16. Finally, the appellant argues that the Board failed to apply 38 C.F.R. § 3.312(c)(3) to her claim. Id. at 16-19. II. ANALYSIS A. Dr. Afrin's Opinion The appellant argues, essentially, that Dr. Afrin's medical opinion is inadequate. The Secretary's duty to assist includes "providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim." 38 U.S.C. § 5103A(d)(1); see also Green v. Derwinski, 1 Vet.App. 121, 124 ( 1991). This Court has held that a medical opinion is adequate "where it is based upon consideration of the veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's 'evaluation of the claimed disability will be a fully informed one.'" Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet.App. 405, 407 ( 1994)). The opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions." Id. at 124-25. Whether a medical examination report is adequate is generally a finding of fact that the Court reviews under the "clearly erroneous" standard of review. 38 U.S.C. § 7261(a)(4); Nolen v. Gober, 14 Vet.App. 183, 184 (2000). When deciding a matter, the Board must include in its decision a written statement of the reasons or bases for its findings and conclusions, adequate to enable an appellant to understand the precise basis for the Board's decision as well as to facilitate review in this Court. 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). To complywith this requirement, the Board must analyze the credibility 3 See and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Gilbert, 1 Vet.App. at 57. As the Board acknowledges, Dr. Afrin essentially states that, although medical science suggests at least an associational link between diabetes milletus and pancreatic cancer, there is no definitive evidence of a causal link between the two. R. at 24, 44-45. He stated that, based on current medical evidence, it is "impossible to say" whether the two disorders are causallyrelated and that the "precise nature of [their] association . . . is not yet known." R. at 44. But then, he went on to opine that it "fundamentally is impossible . . . given the scientific knowledge available at this time" to opine whether the veteran's diabetes mellitus caused his cancer. R. at 45. As to the pertinent legal question, however, Dr. Afrin opined: My answer is simply: the available peer-reviewed biomedical literature does not support a statement that it is at least as likely as not that this patient's pancreatic cancer was caused or aggravated by his service-connected diabetes mellitus. Therefore, given the parameters of the primaryquestion Iwas asked, Ihave no choice but to conclude the obverse, namely, it is unlikely this patient's pancreatic cancer was caused or aggravated by his service-connected diabetes mellitus. R. at 44. Dr. Afrin's opinion constitutes an unsupported leap in logic that renders it inadequate. He concludes first that, based on current medicalevidence, he cannot state, either way, whetherdiabetes mellitus and pancreatic cancer are causally linked. Then, however, he concludes that it is unlikely that the veteran's pancreatic cancer was caused or aggravated by his diabetes mellitus.1 If Dr. Afrin cannot state the precise nature of the relationship between diabetes mellitus and pancreatic cancer, he certainly cannot support his opinion that it is unlikely that pancreatic cancer was caused or aggravated by service-connected diabetes mellitus with "a reasoned medical explanation" as is Although Dr. Afrin stated that he felt he was forced to offer this opinion based on the "parameters of the primaryquestion Iwas asked,"the Board's request fora medical opinion gave him another option. It instructed that if "any question posed cannot be answered without resorting to unsupported speculation, the reviewer should so state, and explain why that is so." R. at 56. 4 1 required for his opinion to be adequate. See Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2003); see also Stefl, 21 Vet.App. at 123-24. Regarding the question of whether the veteran's diabetes mellitus aggravated his pancreatic cancer, Dr. Affrin concludes that the question is "moot" based on his finding about causation. R. at 46. As the appellant notes (Appellant's Br. at 11-12), Dr. Afrin, during his discussion about aggravation, found that [o]bviously, severe, poorly controlled diabetes (such as [the veteran] had later in his course) will "aggravate" the course of virtually any illness, including cancer, but as has already been observed by other reviewers of this case, the worsening of his diabetes (to a point where it might have "aggravated" the course of his cancer) was surgically induced and not unexpected. R. at 45. The Board summarized Dr. Afrin's opinion, writingthat Dr. Afrin "stated that severe, poorly controlled diabetes will aggravate the course of any illness, including cancer." R. at 21. However, neither the Board nor Dr. Afrin explains the apparent incongruities between these statements and Dr. Afrin's conclusion that, for the same reason as his findings on causation, there is no evidence of aggravation in the veteran's case. R at 45; see Stefl and Nieves-Rodriguez, both supra. For these reasons, the Court finds that the Board's determination that Dr. Afrin's opinion is adequate is clearly erroneous. See 38 U.S.C. § 7261(a)(4); Nolen, supra. Where an examination report is inadequate, the Board should remand the case to the RO for further development. Bowling v. Principi, 15 Vet.App. 1, 12 (2001) (holding that the Board has a duty under 38 C.F.R. § 19.9(a), to remand a case "[i]f further evidence or clarification of the evidence or correction of a procedural defect is essential for a proper appellate decision"); see also Green, 1 Vet.App. at 124 (holding that remand is appropriate where the Board relied on an inadequate examination report); 38 C.F.R. § 4.2 (2011). B. Duty to Assist The appellant asserts that the Board failed in its duty to assist because it failed to provide a medical opinion ascertaining whether there is a nexus between the veteran's in-service herbicide exposure and his pancreatic cancer. Appellant's Br. at 14-16. The Secretarydoes not respond to this argument directly. Instead, he argues that the appellant "never raised the issue of whether the [v]eteran's cancer was directly caused by [herbicide] exposure" at any stage in the adjudication of 5 her claim prior to her appeal to this Court, and thus the Board "was not required to obtain a medical opinion because the issue was not reasonably raised and not properly before the Board." Secretary's Br. at 6-7. The Board found that the appellant "is not claiming service connection for the cause of the [v]eteran's death on the basis of in-service incurrence or aggravation of the disease which caused his death." R. at 16. The Board made no findings and offered no discussion about whether the veteran's pancreatic cancer can be directly linked to his herbicide exposure. Therefore, the Court's jurisdictional abilityto respondto theappellant's argumenthingesonwhethershe is advancinganew claim or merely a new argument in support of her existing claim. If the question of whether the veteran's cause of death and herbicide exposure aredirectlylinked constitutes a new claim, the Court lacks jurisdiction to consider it because there is no final Board decision on that claim. See 38 U.S.C. §§ 7252(a), 7266(a); see also Breeden v. Principi, 17 Vet.App. 475, 478 ( 2004). If, however, direct causation represents an alternative argument in support of the appellant's claim, then the Court has jurisdiction either to consider it or remand the matter for the Board to consider it in the first instance. See Maggitt v. West, 202 F.3d 1370, 1377-78 (Fed. Cir. 2000) (holding that this Court has discretion to hear arguments presented to it in the first instance, provided that it otherwise has jurisdiction over the claim). This Court has held that a "claim" is an expressed belief in an entitlement to a benefit, while a "theory" is a means of establishing entitlement to a benefit. Hillyard v.Shinseki, 24 Vet.App. 343, 355 (2011). Therefore, "although there may be multiple theories or means of establishing entitlement to a benefit for a disability, if the theories all pertain to the same benefit for the same disability, theyconstitute the same claim." Roebuck v. Nicholson, 20 Vet. App. 307, 313 (2006); see also Bingham v. Principi, 18 Vet.App. 470, 474 (2004)(finding that "direct and presumptive service connection are, by definition, two means (i.e., two theories) by which to reach the same end, namely service connection). In this case, the end sought by the appellant, and thus her "claim," is service connection for the cause of death of the veteran, which was pancreatic cancer. The argument that the Board addresses – whether the veteran's service-connected diabetes mellitus is related to his cause of death – and the argument that pancreatic cancer is directly related to the veteran's in-service herbicide exposure, are both attempts by the appellant to reach service connection. Thus, the Court 6 finds that the appellant's assertion, brought here on appeal, that pancreatic cancer and herbicide exposure maybe linked, is merely a new theory to support her ultimate claim that service connection is warranted for the death of the veteran. See Hillyard, Roebuck, and Bingham, all supra. Therefore, the Court has jurisdiction to consider the matter. Maggitt, 202 F.3d at 1377-78. Pancreatic cancer is not one of the disorders entitled to presumptive service connection for veterans exposed to herbicides duringservice. 38C.F.R.§3.309(e)(2011). Theappellant, however, is still entitled to attempt to link the veteran's cancer to exposure to herbicides on a direct basis. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994) ("[T]he presumptive service connection procedure . . . does not foreclose proof of direct service connection."). The Board has a duty to address all issues reasonably raised before it by either the appellant or the contents of the record. Robinson v. Mansfield, 21 Vet.App. 545 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). The Board found, and the appellant does not dispute, that she did not make any argument for direct service connection before the Board. R. at 16. Therefore, for the Board's failure to discuss direct service connection to constitute remandable error, there must be some indication that the record reasonably raised direct service connection as an issue. The appellant attempts to meet this burden by again citing to Dr. Afrin's opinion. Appellant's Br. at 15. Dr. Afrin stated: With respect to this particular case, too, I should note that besides diabetes mellitus type 2, several other factors have been clearly epidemiologically associated with an increased risk for pancreatic cancer including cigarette smoking, various dietary factors, various environmental factors (e.g., certain chemical exposures), certain infections, and certain chronic inflammatory ailments. . . . The patient in this case was both a smoker and had extensive occupational risk for certain chemical exposures. . . . Did his diabetes cause his cancer? Did his smoking cause his cancer? Did his occupational exposure cause his cancer? Did some other yet unidentified factor or factors such as a chronic systemic inflammatory ailment cause his cancer? Did some complex combination of all of these issues cause his cancer? It fundamentally is impossible to answer any of these questions in this case ( or similar cases for that matter) given the scientific knowledge available at this time. R. at 45 (emphasis added). As the appellant argues, Dr. Afrin clearly indicates that environmental factors including chemical exposure may be directly associated with the veteran's pancreatic cancer. Appellant's Br. at 15. The Secretary does not attempt to counter this assertion. Dr. Afrin could have been 7 referencing chemical exposure in the appellant's post-service occupation rather than herbicide exposure, and his opinion that no scientific evidence exists that might causally link such exposure to the veteran's cancer may be adequate. However, the Board made no such factual findings, and it is not for this Court to do so in the first instance. See Hensley v. West, 212 F.3d 1255, 1263 (Fed. Cir. 2000) (stating that "appellate tribunals are not appropriate fora for initial fact finding"); see also 38 U.S.C. § 7261(c). It is enough that the appellant has demonstrated that the record reasonably raises the possibility that environmental factors such as chemical exposure may be a cause of the appellant's pancreatic cancer to warrant remand. See Robinson, supra. Therefore, on remand, the Board should take up the issue and determine whether a medical examination is warranted. The Boardshould thendecidewhethertheevidencesupports afindingthattheveteran's pancreaticcancer and herbicide exposure are directly linked and provide a statement of reasons or bases explaining its findings. The Court notes that the standard found in 38 U.S.C. § 5103A(d) is properly applied to determine whether a medical examination is warranted in disability compensation claims, but not in claims for DIC. See Wood v. Peake, 520 F.3d 1345 (Fed. Cir. 2008); DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008). Thus, both 38 U.S.C. § 5103A(d) and the test stated in McLendon v. Nicholson, 20 Vet.App. 79 (2006), which provides guidelines for applying 38 U.S.C. § 5103A(d), are not applicable to this case, as the appellant argues. See Appellant's Br. at 14-16. Instead, the Board should apply the more general standards found in 38 U.S.C. § 5103A( a), as explained by DeLaRosa and Wood. C. 38 C.F.R. § 3.312(c)(3) The appellant argues that the Board should have applied 38 C.F.R. § 3.312( c)(3) to her case. Appellant's Br. at 16-19. In general, a veteran's death "will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or contributory cause of death." 38 C.F.R. § 3.312(a) (2011). Regulatory language describes a contributorycause of death generallyas one that "contributed substantiallyor materially; that . . . combined to cause death; that . . . aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that 8 there was a causal connection." 38 C.F.R. § 3.312(c). However, pursuant to 38 C.F.R. § 3.312(c)(3), a service-connected disease or injury, like the veteran's diabetes mellitus, involvingactiveprocessesaffectingvital organsshould receivecarefulconsideration as a contributory cause of death, the primary cause being unrelated, from the viewpointofwhethertherewereresultingdebilitatingeffectsandgeneral impairment of health to an extent that would render the person materiallyless capable of resisting the effects of other disease or injury primarily causing death. The Board is required to consider and discuss all applicable provisions of law and regulation where they are made "potentially applicable through assertions and issues raised in the record." Schafrath v. Derwinski, 1 Vet.App. 589, 592-93 (1991); see 38 U.S.C. § 7104(a); Robinson, 21 Vet.App. at 552. The appellant argues that the pancreas is a vital organ, and that the veteran's diabetes mellitus affected his pancreas. Appellant's Br. at 18. Therefore, she argues, the Board should have applied § 3.312(c)(3) to consider "whether there were resulting debilitating effects and general impairment of health from the [v]eteran's diabetes mellitus to an extent that would render him materially less capable of resisting the effects of" his primary cause of death. Id. The Board listed § 3.312(c)(3) under the "Applicable Law" portion of its decision. R. at 15. The Court can find no evidence, however, that the Board considered and applied the regulation in the analysis portion of its decision. Since the Board itself identified the regulation as applicable to this case, it should have been considered and discussed. See 38 U.S.C. § 7104(a); Shafrath, 1 Vet.App. at 592-93. The Board's failure to consider the provision or explain any findings it reached renders its statement of reasons or bases inadequate. See 38 U.S.C. § 7104(d)(1); Allday, Caluza, and Gilbert, all supra. On remand, the Board should consider first whether the pancreas constitutes a "vital organ," and then consider the effects the veteran's diabetes mellitus had on his pancreas. See 38 C.F.R. § 3.312(c)(3). Finally, the Court notes that, on remand, the appellant is free to submit additional evidence and argument on the remanded matters, and the Board is required to consider any such relevant evidence and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002) ( stating that, on remand, the Board must consider additional evidence and argument in assessing entitlement to benefit sought); Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). The Court has held that "[a] remand is meant to entail a critical examination of the justification for the decision." 9 Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991). The Board must proceed expeditiously, in accordance with 38 U.S.C. § 7112 (requiring Secretary to provide for "expeditious treatment" of claims remanded by the Court). III. CONCLUSION After consideration of the appellant's and Secretary's pleadings, and a review of the record, the Board's April 15, 2010, decision is VACATED and the matter is REMANDED to the Board for further proceedings consistent with this decision. DATED: September 30, 2011 Copies to: Robert V. Chisholm, Esq. VA General Counsel (027) 10

Single Judge Application, Separate Disability Ratings When Symptoms do not Overlap, C.F.R. 4.25, Murray v. Shinseki, 24 Vet.App.(2011)

Excerpt from decision below:, ""Except as otherwise provided in [the rating] schedule, the disabilities arising from a single disease entity, e.g., arthritis, multiple sclerosis, cerebrovascular accident, etc., are to be rated separately as are all other disabling conditions, if any." 38 C.F.R. § 4.25(b) (2011). Separate compensable ratings may be assigned for multiple, associated disabilities so long as the symptoms do not overlap. As recently stated by this Court in Murray v. Shinseki, In Esteban v. Brown, the Court explained that, when determining whether to assign separate disability ratings under § 4.25(b), "[t]he critical element is that none of the symptomatology for any . . . conditions is duplicative of or overlapping with the symptomatologyof the other . . . conditions." 6 Vet.App. 259, 262 (1994) (emphasis in original). If the appellant's symptoms are "distinct and separate,"then the appellant is entitled to separate disability ratings for the various conditions. Id. =============== ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 10-0504 JAMES H. THAXTON, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before MOORMAN, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. MOORMAN, Judge: The appellant, James H. Thaxton, appeals through counsel an October 19, 2009, Board of Veterans' Appeals (Board) decision that denied entitlement to an initial rating in excess of 10% for residuals of a right knee injury, with mild traumatic tricompartmental arthritis and pain (right knee disability), for the period prior to August 1, 2006. Record (R.) at 3-21. Both parties filed briefs, and the appellant filed a reply brief. The appellant seeks reversal of the Board's decision denying him a separate 10% disability rating for symptoms that he argues are not contemplated under the current Diagnostic Code assigned to his right knee condition. The Secretary concedes that a remand, but not reversal, is warranted on the matter. The appellant does not raise any argument with respect to the Board's grant of an initial rating of 60%, but no higher, for his right knee disability for the period beginning November 1, 2007. Accordingly, the Court considers abandoned on appeal any challenge to this latter matter. See Ford v. Gober, 10 Vet.App. 531, 535 (1997); Degmetich v. Brown, 8 Vet.App. 208, 209 (1995), aff'd, 104 F.3d 1328 (Fed. Cir. 1997).1 Because there is no final Board decision regarding the remanded matter of entitlement to an initial compensable rating for a right knee neurological disorder (claimed as nerve damage), the Court lacks jurisdiction to consider that claim. See 38 U.S.C. § 7252(a) (providing that Court's jurisdiction is generally limited to review of final Board decisions); Kirkpatrick v. Nicholson, 417 F.3d 1361, 1365 (Fed. Cir. 2005) (holding that Board's remand order "was not a decision within the meaning of section 7252(a)"); see also Ledford v. West, 136 F.3d 776, 779 (Fed. Cir. 1 This appeal is timely, and the Court has jurisdiction pursuant to 38 U.S. C. §§ 7252(a) and 7266(a). A single judge mayconduct this review because the outcome in this case is controlled bythe Court's precedents and "is not reasonably debatable." Frankel v. Derwinski, 1 Vet. App. 23, 25-26 (1990). For the following reasons, the Court will affirm in part and reverse in part the Board's October 2009 decision. I. FACTS Mr. Thaxton served on active duty in the U.S. Army from March 1959 to March 1962. Record (R.) at 888. He underwent surgery on his right knee in service. See R. at 733. A VA regional office (RO) granted service connection for the residuals of a right knee injury, with traumatic arthritis and pain, andassigneda 10% disabilityratingunder 38 C. F.R. § 4.71a, Diagnostic Codes (DCs) 5010-5261, effective August 26, 2003.2 R. at 728-35. Mr. Thaxton appealed and, in his Notice of Disagreement, he noted that a doctor told him that x-rays showed that he was missing a lot of cartilage. In November 2007, the Board remanded the matter for further development. R. at 492-96. Following development of the claim, the Board issued the October 2009 decision now on appeal. The Board found that"aseparate10 percent ratingunder DC 5259 would doublycompensate the Veteran for the same manifestations of his right knee disability, contrary to the rule against pyramiding."3 R. at 18; see 38 C.F.R. § 4.14 (2011) ("The evaluation of the same disability under various diagnoses is to be avoided."). This appeal followed. 1998). Limitation of motion of the right knee is the key consideration when assigning a disability rating for traumatic arthritis. See 38 C.F.R. § 4.71a, DC 5010 (providing that arthritis due to trauma will be rated in the same manner as degenerative arthritis), 5003 (in turn providing that degenerative arthritis will be rated on the basis of limitation of motion under the appropriate DCs for the specific joint involved), 5260 ( providing the schedule of ratings for limitation of flexion of the leg), 5261 (providing the schedule of ratings for limitation of extension of the leg). As relevant here, under DC 5261, when leg extension is limited to 10 degrees, the disability rating is 10%. 38 C.F.R. § 4.71a, DC 5261. 3 2 The VA Schedule of Ratings for the knee include DC 5258 and 5259: 5258 5259 Cartilage, semilunar, dislocated, with frequent episodes of "locking," pain, and effusion into the joint . . . .20 Cartilage, semilunar, removal of, symptomatic . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 2 II. ANALYSIS The appellant contends that the Board erred in denying a separate compensable disability rating for the symptomatic removal of his semilunar cartilage under DC 5259 because it wrongly found symptoms due to the removal of his cartilage as being "contemplated by his current rating of 10 percent under DC 5010-5261," R. at 18. App. Br. at 8-9. The Secretary argues that the Court should vacate and remand the matter because the Board failed to provide an adequate statement of reasons or bases for its explanation that the appellant's right knee symptoms did not warrant a separate rating under DC 5259. "Except as otherwise provided in [the rating] schedule, the disabilities arising from a single disease entity, e.g., arthritis, multiple sclerosis, cerebrovascular accident, etc., are to be rated separately as are all other disabling conditions, if any." 38 C.F.R. § 4.25(b) (2011). Separate compensable ratings may be assigned for multiple, associated disabilities so long as the symptoms do not overlap. As recently stated by this Court in Murray v. Shinseki, In Esteban v. Brown, the Court explained that, when determining whether to assign separate disability ratings under § 4.25(b), "[t]he critical element is that none of the symptomatology for any . . . conditions is duplicative of or overlapping with the symptomatology of the other . . . conditions." 6 Vet.App. 259, 262 (1994) ( emphasis in original). If the appellant's symptoms are "distinct and separate," then the appellant is entitled to separate disability ratings for the various conditions. Id. In addition, two VA General Counsel Precedent Opinions, which are binding on VA, indicate that separate evaluations are allowed for separate disabilities arising from the same knee injury. See VA Gen. Coun. Prec. 9–2004 (Sept. 17, 2004) (authorizing separate evaluations forlimitation of leg flexion and limitation of leg extension); VA Gen. Coun. Prec. 23–97 (July 1, 1997) (authorizing separate evaluations for arthritis and subluxation or instability of the knee under Diagnostic Codes 5003 and 5257); see also Hornick v. Shinseki, 24 Vet.App. 50, 52 (2010) ("The Board is 'bound in its decisions by the . . . precedent opinions of the chief legal officer of the Department.'" (quoting 38 U.S.C. § 7104(c))). Murray, 24 Vet.App. 420, 423 (2011). The Board's assignment of a disability rating is a finding of fact that the Court reviews under the "clearly erroneous" standard of review. 38 U.S.C. § 7261(a)(4); see Johnston v. Brown, 10 Vet.App. 80, 84 (1997). A finding of material fact "is 'clearly erroneous' when [the Court], after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been 3 committed." United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); see Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990). When applying this standard, if, after reviewing the record in its entirety, the Board's finding of fact is supported by a plausible basis, "the [Court] may not reverse it even though convinced that had it been sitting as trier of fact, it would have weighed the evidence differently." Gilbert, 1 Vet.App. at 52 (quoting Anderson v. City of Bessemer City, 470 U .S. 564, 573-74 (1985)). In this case, the Board found that Mr. Thaxton's right knee is currentlyrated as 10% disabling for the period prior to August 1, 2006, under DC 5010-5261 "for the disease of traumatic arthritis with a residual condition of limitation of extension of the knee," R. at 11. The Board reviewed the evidence of record and stated: [T]he Veteran's right knee disability is manifested by X-ray evidence of arthritis, near full extension and flexion limited to 110 degrees with pain and crepitus, further limitation of motion due to pain after prolonged use, symptomatic removal of semilunar cartilage, and well-healed scars. The Veteran had subjective complaints oflocking,catching,popping,clicking,swelling,flare-ups,andtenderness; however, there is no objective evidence of lateral instability, subluxation, or dislocated semilunar cartilage. R. at 15 (emphasis added). The Board further found: "[A]s there is X-ray evidence of arthritis, the Veteran has been assigned a 10 percent rating based on painful, limited motion." R. at 16. This apparently is based on DCs 5003 and 5010. The Board also stated that "the preponderance of the evidence indicates that the Veteran had a right knee partial meniscectomy, or removal of the semilunar cartilage, during service." R. at 17. The Board then discussed Mr. Thaxton's symptoms in more detail. At the October 2003 VA examination, the Veteran reported occasional swelling, but no mechanical symptoms. The Veteran had a mildly positive McMurray's test and tenderness along the medial and lateral joint lines, but there was no objective evidence of effusion. VA treatment records dated in June and October 2004 reflect that the Veteran reported popping and cracking with occasional locking, catching, and swelling; and physical examination showed pain with the McMurray's test and significant tenderness. At the January 2005 VA examination, the Veteran indicated that his knee would swell at the end of the day after he had been on it for long periods. . . . A November 2005 treatment record indicates that the Veteran reported popping and clicking, but no locking or catching, and he had pain with the McMurray's test. 4 R. at 17-18. Following the discussion of the evidence as quoted above, which did not include a discussion of Mr. Thaxton's limitation of motion, the Board concluded that " the Veteran's right knee was symptomatic as a result of his meniscectomy." R. at 18. The Board, however, then found that (1) "such symptoms are contemplated by his current rating of 10 percent under DC 5010-5261 [(limitation of extension)];" and (2) "a separate 10 percent rating under DC 5259 would doubly compensate the Veteran for the same manifestations of his right knee disability, contrary to the rule against pyramiding [under 38 C.F.R. § 4.14]." Id.; see R. at 10, 12 ( citing to § 4.14). The Court concludes that, contrary to the Secretary's position, the Board's statement of its reason for denying the separate rating is adequate for judicial review. The Court further concludes that the Board clearly erred and that reversal, not remand, is warranted in this case because the only permissible view of the evidence is contrary to the Board's decision. See Johnson v. Brown, 9 Vet.App. 7, 10 (1996). The Board's determination that Mr. Thaxton is appropriately assigned a 10% rating only under DC 5261, which expressly is for limitation of extension of the knee, contradicts the evidence of record and "fails to adequately reflect a consideration of [Mr. Thaxton's] arthritis and its symptomatology." Murrayt, 24 Vet.App. at 424. At the time that the RO originally assigned Mr. Thaxton his 10% rating under DC 5010-5261 in December 2003, the RO focused on symptoms consisting of"pain when walking up inclines and getting up from a seated position," "mild pain on motion," "some crepitus at the last 30-40 degrees of flexion," and tender joint lines laterally. R. at 733. Subsequently developed evidence included VA medical records recording Mr. Thaxton's reports of (1) "popping and clicking in his knees" (R. at 434 (November 2005 VA progress notes)); (2) "some instability of his right knee when the pain gets to where it hits him suddenly" and"swelling at the end of the day," (R. at 542-43 (January 2005 VA medical record)); (3) "swelling, popping, locking, and catching" and a doctor's statement that he "ordered a knee brace for [Mr. Thaxton] to help him with some instabilityhe is having on long walks" (R. at 573 (October 2004 VA medical records)); and (4) "popping and cracking, and some mechanical symptoms" (R. at 629 (June 2004 VA medical records). The Court notes that symptoms of swelling, popping, clicking, instability, locking, catching, and cracking are not noted in DC 5261 and further notes that the symptom of "locking" is expressly used in DC 5258 in describing a symptom associated with a dislocated cartilage. Indeed, the Court notes that the Secretary concedes that "[n]either [DC 5010 5 nor DC 5261] contemplate[] Appellant's symptomatic removal of semilunar cartilage." Secretary's Br. at 7-8. The Court holds that the appellant is entitled to a 10% rating under DC 5259 for the removal of the appellant's cartilage, which the Board found to be symptomatic, as a separate rating in addition to the current 10% rating for arthritis of the right knee under DC 5003 and 5010. See Murray, 24 Vet.App. at 428 (reversing Board decision and remanding for Board (1) to reinstate protected 10% disability rating under DC 5257 for recurrent subluxation or lateral instability of the left knee; and (2) to assign a separate 10% disability rating for arthritis of the left knee under DCs 5003 and 5010). Accordingly, the Court will reverse the Board's finding that "a separate 10 percent rating under DC 5259 would doubly compensate the Veteran for the same manifestations of his right knee disability, contrary to the rule against pyramiding" (R. at 18) and will also reverse the Board's denial of a separate rating under DC 5259. I. CONCLUSION Upon consideration of the foregoing analysis, the record on appeal, and the parties' pleadings, the October 19, 2009, Board decision is REVERSED as to the finding that a separate 10% disability rating under DC 5259 "would doubly compensate the Veteran for the same manifestations of his right knee disability, contrary to the rule against pyramiding" (R. at 18) and as to the Board's denial of a separate 10% disability rating under DC 5259 for the appellant's right knee disability for the period prior to August 1, 2006. The matter is REMANDED for adjudication consistent with this decision. The Board decision is otherwise AFFIRMED. DATED: September 30, 2011 Copies to: Virginia L. Carron, Esq. General Counsel (027) 6