Single Judge Application, 38 C.F.R. § 3.310, Secondary Service Connection, Impermissible Medical Judgment

Excerpt from decision below: "The record supports Mr. Coble's first assertion. Based on the record of proceedings, Mr. Coble specifically raised the issue of secondary service connection, such that both causation and aggravation should have been addressed. See Allen v. Brown, 7 Vet.App. 439, 448 (1995) (en banc)(acknowledging that a disability may be secondarily service connected if aggravated by service-connected disease or injury); 38 C.F.R. § 3.310 (2011) (providing for secondary service connection if (a) a disability is "proximately due to or the result of a service-connected disease or injury" or (b) a disability's "increase in severity . . . is proximately due to or the result of a service-connected disease or injury" and not due to natural progress); see also Robinson v. Peake, 21 Vet.App. 545, 552 (2008) (Board required to consider all issues raised either by the claimant or reasonably by the evidence of record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). The February 2008 medical report, however, only addressed causation. See Record (R.) at 178 ("It is less likely as not (less than 50/50 probability) that the anxiety disorder is caused by or a result of military service, left ear hearing loss, and/or TORP surgery in service."). As such, the Board's conclusion that Mr. Coble's psychiatric disability was not incurred in or aggravated by service exceeds the findings in the February 2008 report and constitutes an impermissible medical judgment. See Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991) (Board's findings of fact must be supported by medical evidence of record, rather than the Board's own judgment)." =================================== ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS No. 09-2486 DENNIS L. COBLE, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before KASOLD, Chief Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. KASOLD, Chief Judge: Veteran Dennis L. Coble appeals through counsel that part of an April 10, 2009, decision of the Board of Veterans' Appeals (Board) that denied benefits for a psychiatric disability, claimed as mental stress, secondaryto service- connected left-ear hearing loss. Mr. Coble argues that the Board erred by (1) rendering its own unsubstantiated medical opinion as to aggravation, (2) relying on an inadequate February 2008 VA medical report that failed to address aggravation, and (3) finding that the inadequate medical report fulfilled the Secretary's dutyto assist. The Secretary disputes these arguments. Single-judge disposition is appropriate. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons stated below, that part of the Board decision on appeal will be set aside and the matter remanded for further adjudication. The record supports Mr. Coble's first assertion. Based on the record of proceedings, Mr. Coble specifically raised the issue of secondary service connection, such that both causation and aggravation should have been addressed. See Allen v. Brown, 7 Vet.App. 439, 448 (1995) (en banc) (acknowledging that a disability may be secondarily service connected if aggravated by service-connected disease or Previous DocumentinjuryNext Hit); 38 C.F.R. § 3.310 (2011) (providing for secondary service connection if (a) a disability is "proximately due to or the result of a service-connected disease or Previous HitinjuryNext Hit" or (b) a disability's "increase in severity . . . is proximately due to or the result of a service- connected disease or Previous HitinjuryNext Document" and not due to natural progress); see also Robinson v. Peake, 21 Vet.App. 545, 552 (2008) (Board required to consider all issues raised either by the claimant or reasonably bythe evidence of record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). The February 2008 medical report, however, only addressed causation. See Record (R.) at 178 ("It is less likely as not (less than 50/50 probability) that the anxiety disorder is caused by or a result of military service, left ear hearing loss, and/or TORP surgery in service."). As such, the Board's conclusion that Mr. Coble's psychiatric disability was not incurred in or aggravated by service exceeds the findings in the February 2008 report and constitutes an impermissible medical judgment. See Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991) (Board's findings of fact must be supported by medical evidence of record, rather than the Board's own judgment). Although the Secretaryargues that a finding of aggravation cannot be warranted because the record reflects no increase in the severity of the psychiatric disability, the Secretary proffers this justification post hoc and the Board did not render this finding. SeeWanless v. Principi, 18 Vet.App. 337, 343 (2004) (Steinberg, J., concurring) (noting that the "Court's role is to review whether the Boardin its decision, rather than the Secretaryin his brief, providedan adequatestatementofreasons or bases"). Judicial review is frustrated and remand is warranted. See Allday v. Brown, 7 Vet.App. 517, 527 (1995) (Board's statement "must be adequate to enable a claimant to understand the precise basis for the Board's decision, as well as to facilitate review in this Court"); see also 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"). Accordingly, Mr. Coble's other assertions, also based on the aggravation issue, are rendered moot by the aforementioned need to remand this matter. See Dunn v. West, 11 Vet.App. 462, 467 (1998) (holding that remand of a claim under one theory moots the remaining theories advanced on appeal). On remand, Mr. Coble may present, and the Board must consider, any additional evidence and argument in support of the matter remanded. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). This matter is to be provided expeditious treatment on remand. See 38 U.S. C. § 7112. 2 For the reasons stated above, that part of the April 10, 2009, Board decision that denied benefits fora psychiatricdisability, claimed as mentalstress, secondaryto service-connected left-ear hearing loss, will be SET ASIDE and the matter REMANDED for further adjudication. DATED: October 12, 2011 Copies to: Erick J. Haynie, Esq. VA General Counsel (027) 3