Tuesday, October 25, 2011
Single Judge Application, Buczynski v. Shinseki, 24 Vet.App. 221, 224 (2011); FED. R. EVID. 803(7); Evidence Against If Ordinarily Would be Recorded
Excerpt from decision below:
"Buczynski v. Shinseki, 24 Vet.App. 221, 224 (2011) (suggesting that the Board may consider failure of a fact to be recorded in a medical record to be substantive negative evidence where the missing fact would ordinarily be recorded); FED. R. EVID. 803(7) (noting that the absence of an entry in a record may be evidence against the existence of a fact if the entry would ordinarily be made)"
==========================
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 09-4769
JOANN L. VOIGHT, 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 Joann L. Voight appeals through counsel a
September 9, 2009, decision of the Board of Veterans' Appeals (Board) that
denied a higher initial
disability rating for residuals of a lumbosacral (back) injury. Ms. Voight
argues that (1) the Board
failed to provide an adequate statement of its reasons or bases for
denying an initial disability rating
in excess of 20% based upon Deluca v. Brown, 8 Vet.App. 202 (1995) (
finding that an examination
that "merely recorded the veteran's range of motion"without considering
the functional loss due to
pain upon motion was inadequate), (2) the medical examinations relied on
by the Board were
inadequate for assigning her disability compensation rating, and (3) the
Board failed to provide an
adequate statement of its reasons or bases for not referring her claim for
extraschedular
consideration. The Secretary disputes these arguments. Single-judge
disposition is appropriate.
Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons set
forth below, the Board's
decision will be in part affirmed, and in part set aside and the matter
remanded for further
adjudication.
Ms. Voight's argument that the Board failed to provide an adequate
statement of its reasons
or bases for denying an initial disability rating in excess of 20% for her
back injury based upon
DeLuca v. Brown, 8 Vet.App. 202, 205-07 (1995) is not supported by the
record. Ms. Voight's back
condition is currently rated as an injury or disease of the spine and a
disability rating is assigned
based upon her range of motion. See 38 C.F.R. § 4.71a, Diagnostic Code (
DC) 5237 (2010)
(providing a 20% disability rating when forward flexion of the spine is
greater than 30 degrees and
less than 60 degrees and a 40% rating when forward flexion is 30 degrees
or less). To establish a
40% rating under DC 5237 for thoracolumbar spine, the forward flexion must
be 30 degrees or less
or have favorable ankylosis of the entire thoracolumbar spine. The Board
explained that Ms.
Voight's 70 to 90 degrees of flexion in her back did not meet the criteria
for her currently assigned
20% disability rating under DC 5237, but recognized also that weakened
movement, excess
fatigability, and pain resulting in additional functional impairment could
support a higher disability
rating under DeLuca, supra, and 38 C.F.R. §§ 4.40, 4.45. Reviewing the
medical evidence from
August 2004, the Board found that in the most recent May 2007, VA
examination, Ms. Voight had
(1) lateral motions of 20 degrees bilaterally with back pain, (2) 70
degrees flexion and 15 degrees
of extension with some pain, (3) no significant spasms, and (4) some back
pain after 3 repetitions,
however, with no loss of motion. Record (R.) at 8; see also R. at 118. The
May 2007 VA medical
examination report specifically referred to the DeLuca procedure and found
no loss of motion.
In addition, the May 2007 VA medical examination diagnosed Ms. Voight with
herniated
disc disease, and the Board considered a higher initial rating under the
intervertebral disc syndrome
code section. See 38 C.F.R. § 4.71a, DC 5243(2011) (providing a 40%
disability rating for
incapacitating back episodes lasting at least 4 weeks but less than 6
weeks during the last 12
months). With regard to a higher rating under DC 5243, the Board found Ms.
Voight's testimony
– that she experienced monthlyincapacitatingbackepisodes lasting from a
few hours to four weeks–
not credible. Because Ms. Voight sought treatment for her back condition
at least once a month and
because none of the treatment reports mentioned back flare-ups, the Board
determined that the
absence of any flareup treatment records outweighed her testimony
concerning the frequency and
duration of her back episodes. See Buczynski v. Shinseki, 24 Vet.App. 221, 224 (2011) (suggesting that the Board may consider failure of a fact to be recorded in a medical record to be substantive negative evidence where the missing fact would ordinarily be recorded); FED. R. EVID. 803(7) (noting that the absence of an entry in a record may be evidence against the existence of a fact if the entry would ordinarily be made); see also 38 C.F.R. § 4.71a, DC 5243 (2011) (requiring
2
incapacitating episodes of 4 to 6 weeks to warrant a 40% disability
rating).
Based on the record on appeal, the Board's findings that a disability
rating higher than 20%
for residuals of a back condition under either DC 5237 or DC 5243, with
consideration of the
DeLuca factors, was not warranted is plausible and not clearly erroneous.
See Johnston v. Brown,
10 Vet.App. 80, 84 (1997) (Board's decision regarding the degree of
disability under the rating
schedule is a finding of fact subject to the "clearly erroneous" standard
of review); Gilbert v.
Derwinski, 1 Vet.App. 49, 52 (1990) ("'A finding is "clearly erroneous"
when although there is
evidence to support it, the reviewing court on the entire evidence is left
with the definite and firm
convictionthatamistakehasbeen committed.'"(quoting United States v.U.S.
GypsumCo.,333U.S.
364, 395 (1948))). Moreover, the Board considered the May2007 VA
examination that specifically
mentioned and assessed the DeLuca procedure and found no loss of motion,
and Ms. Voight points
to no evidence in the record suggesting that anypain associated with her
forward flexion movements
limited her functionality to 30 degrees or less as required for a 40%
disability rating, a rating that
requires forward flexion to be limited to 30 degrees or less. See Hilkert
v. West, 12 Vet.App. 145,
151 (1999) (en banc) (appellant bears burden of demonstrating error on
appeal). Overall the Board's
finding of a 20% disability rating is understandable and facilitative of
judicial review. 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").
Similarly, the record of proceedings does not support Ms. Voight's
argument that the VA
medical examinations are inadequate to evaluate the DeLuca factors because
none explicitly state
the point at which she experiences pain during movement. Although the more
detailed, the better
the report, the Board's determination that a report is adequate may be
reversed only if it is clearly
erroneous. See D'Aries v. Peake, 22 Vet.App. 97, 104 (2008) (Board's
determination as to adequacy
of medical examination is a question of fact); Gilbert, supra. Here, the
2007 VA medical
examination report noted application of the DeLuca factors and that Ms.
Voight had forward flexion
of 70 degrees well beyond the 30 degrees or less required for a 40%
disability rating. Although pain
is noted, the report reflects the examiner's observation that there was no
loss of motion due to pain,
and, as noted above, Ms. Voight points to no evidence in the record
indicating that her forward
flexion movements were limited by pain to a functionality of 30 degrees or
less as required for a 40%
3
disability rating. In sum, she fails to demonstrate that the Board's
finding that the medical
examination reports in the record were adequate or that the Board's
reliance on these reports was
clearly erroneous. See Hilkert, supra.; see also D'Aries, 22 Vet.App. at
103-104 (holding that a
medical opinion is adequate where it is based upon the veteran's medical
history, examinations, and
also describes the disability in sufficient detail, and holding that
whether a medical opinion is
adequate is a finding of fact, which the Court reviews for clear error);
Gilbert, supra.
On the other hand, Ms. Voight's argument that the Board failed to provide
an adequate
statement of reasons or bases for the failure to refer her claim for
extraschedular consideration is
supported by the record. The Board denied the referral of an
extraschedular rating without
addressing the evidence of record indicating interference with employment.
Ms. Voight testified in
November 2007 that she (1) needed medication to perform her job, (2)
frequently had to move
around at work because of her back, and (3) went to work bent over and
used an ice pack at work
to control her back pain. In addition, Ms. Voight's mother submitted a
letter stating that her daughter
went to work with back pain and often she was unable to stand erect.
Although the Board
determined that referral for an extraschedular rating was not warranted
because the schedular rating
was adequate, such a finding still must be supported by an adequate
statement of reasons or bases
that explains whythe schedular rating is adequate. See Thun v. Peake, 22
Vet.App. 111, 115 (2009).
This necessarilyincludes a discussion and assessment of whether a
disability or its symptomatology
is so severe that it prevents the veteran from working, and an explanation
as to whether and why
such interference with work is of the same degree and nature as
contemplated by the schedular
rating. See Barringer v. Peake, 22 Vet.App. 242, 244 (2008) ("As with all
its decisions, the Board
must provideanadequatestatementofreasons orbasesforthisdetermination");
Thompsonv.Gober,
14 Vet.App. 187, 188 (2000) (Board must provide an adequate statement of
reasons or bases "for
its rejection of any material evidence favorable to the claimant").
On remand, Ms. Voight may present, and the Board must consider any
additional evidence
and argument in support of the matters remanded. See Kay v. Principi, 16
Vet.App. 529, 534 (2002).
These matters are to be provided expeditious treatment on remand. See 38 U.
S.C. § 7112.
4
Upon consideration of the foregoing, that part of the September 9, 2009,
decision addressing extraschedular consideration is SET ASIDE,
and the matter is REMANDED for further adjudication,
and the remainder of the decision is AFFIRMED.
DATED: October 14, 2011
Copies to:
Michael A. Leonard, Esq.
VA General Counsel (027)
5
Single Judge Application, Kahana, 24 Vet.App. at 435; Clearly Distinguish Between Credibility and Causation
Excerpt from decision below:
"The Board's statement of reasons or bases is inadequate because it does not clearly distinguish between its analysis of credibility and causation.. The Board acknowledged that the record contains lay statements, from the appellant, asserting that his "bilateral hearing loss was incurred during his military service," but dismissed this evidence because the appellant is "not qualified to render an opinion concerning medical causation." R. at 11. The Board failed to address the value of these statements as lay evidence of observable symptomatology. The Board noted that the appellant, as a layperson, is not competent to address the etiology of his hearing loss, but undertakes no analysis concerning the credibility or competency of the appellant's symptom reporting. R. at 11. The Board's analysis implies that the appellant's lay statements lack credibility because they are not accompanied by contemporaneous medical evidence. R. at 9. However, "the Board can not determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence." Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); see also Kahana v. Shinseki, 24 Vet.App. 428, 438 (2011) (Lance, J., concurring) (discussing
4
the distinction between cases in which there is a complete absence of any evidence to corroborate or contradict the testimony, and cases in which there is evidence that is relevant either because it speaks directly to the issue or allows the Board as factfinder to draw a reasonable inference). Lay persons are generally competent to provide evidence on observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The appellant stated that
he first noticed his hearing loss and tinnitus while he was still in active duty service. R. at 137. "[T]he Board's categorical rejection and failure to analyze and weigh the appellant's lay evidence in accordance with established precedent renders its statement of reasons or bases inadequate." Kahana, 24 Vet.App. at 435."
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-4435
PHILLIP J. CHATWIN, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before LANCE, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
LANCE, Judge: The appellant, Phillip J. Chatwin, through counsel, appeals
a November
9, 2009, Board of Veterans' Appeals (Board) decision that denied his claim
for service connection
for bilateral hearing loss. Record (R.) at 3-11. Single-judge disposition
is appropriate. See
Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). This appeal is timely,
and the Court has
jurisdiction over the case pursuant to 38 U.S.C. §§ 7252(a) and 7266.
For the reasons that follow,
the Court will vacate the November 9, 2009, decision and remand the matter
for further proceedings
consistent with this decision.
I. FACTS
The appellant served in the U.S. Navy from June 1967 to June 1971. R. at
236. His
occupation in service was electrician's mate, and he worked in the engine
and boiler rooms onboard
naval vessels in Vietnam. R. at 157-58, 236. Audiometric1
testing was done at entrance to service.
R. at 182, 186. That testing showed that the appellant's puretone
threshold at 4000 Hertz was 10
An audiometer is "an electronic device that produces acoustic stimuli of
known frequency and intensity for
the measurement of hearing." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 178 (
32d ed. 2012) (hereinafter
"DORLAND'S").
1
decibels.2
R. at 186. The appellant's exit examination in 1971 did not include
audiometric testing,
but instead included a whispered voice test,3
which showed normal results. R. at 188. In July 1975,
theappellanthadprivateaudiometric testing, which showed
deteriorationinthe4000Hertzpuretone
threshold to 40 decibels. R. at 159.
The record before the Court contains several additional private treatment
reports from
treatment the appellant received after service but prior to his initial
claim, ranging in date from 1973
to 2006. R. at 114-17, 122-23, 126-27. In addition to generally noting a
history of ear disease,
particularly in the right ear, the treatment records cite a pre-service
cleft palate repair, R. at 126, a
diagnosis of otitis, both media and externa,4
R. at 126, and a right tympanomastoidectomy.5
R. at
127. By January 2006, the appellant had been diagnosed privately with "
bilateral mid to high toned
sensorineural hearing loss" with speech discrimination of 80%. R. at 114.
In December 2006, the appellant submitted a claim for service connection
for bilateral
hearing loss and tinnitus as a result of his noise exposure during service.
R. at 137-38, 143-56. The
appellant asserted that both conditions began while he was still on active
duty service. R. at 137,
149. The appellant received a VA medical examination in September 2007.
The examiner noted
puretone threshholds at 4000 Hertz of 45 decibels in the appellant's right
ear and 50 decibels in the
appellant's left ear, as well as speech discrimination of 94%. R. at 91-92.
The 2007 VA examiner
also noted that the appellant's whispered voice test might not have
captured "the presence of a high
frequency hearing loss at time of discharge." R. at 93. Ultimately, the
examiner opined that the
appellant's hearing loss was not related to military service, but did not
provide any rationale for that
opinion. R. at 93.
The audiometry results for the pre-induction examination are reported in
ASA values, but were converted to
ISO (ANSI) units to allow data comparison with later examination results.
R. at 6.
A whispered voice test is performed by standing behind the test subject,
occluding and rubbing the external
auditory ear canal of the non-tested ear, and whispering three random
numbers or letters from about two feet (arm's
length) from the tested ear. Iain R. C. Swan & George G. Browning, The
Whispered Voice as a Screening Test for
Hearing Impairment, 35 JOURNAL OF THE ROYAL COLLEGE OF GENERAL
PRACTITIONERS, 197 (April 1985).
Otitis is an "inflamation of the ear, often with pain, fever, hearing loss,
tinnitus, and vertigo." DORLAND'S at
1350. Otitis media is an inflamation of the middle ear, and otitis externa
is inflamation of the external ear canal. Id. at
1350-51.
"Mastoidectomy with tympanectomy." DORLAND'Sat 1993. A mastoidectomy is
the "excision of the mastoid
air cells or the mastoid process." Id. at 1112. A tympanectomy is the "
excision of the tympanic membrane." Id. at 1992.
5
4
3
2
2
In October 2007, the regional office (RO) granted service connection for
bilateral tinnitus,
rated at 10%, but denied service connection for bilateral hearing loss. R.
at 80-83. The appellant
formally appealed to the Board. R. at 49-52. In July 2009, VA requested a
VA medical expert
records evaluation. R. at 43. The medical expert was specifically asked to
review the 2007
examiner's opinion in light of the 1975 claims file record indicating a
puretone threshold of 40
decibels at 4000 Hertz for the right ear, which would meet the VA
disability standard. Id. The VA
medical expert was also asked to provide an opinion as to whether or not
the appellant's hearing loss
is related to military service and to provide a rationale for that opinion.
Id.
The VA medical expert concluded that because the appellant demonstrated no
hearing loss
at the end of military service, first showed hearing loss in 1975, and
hearing loss due to noise
exposure occurs immediately, the appellant's hearing loss was therefore
not likely due to his military
service, but rather to the aging process, other accoustical trauma, and
the right
tympanomastoidectomy. R. at 40. However, the records examiner did not
discuss the limitations
of the whispered voice test for documenting high frequency hearing loss,
which were mentioned by
the 2007 VA examiner. Instead, the records examiner noted that the
appellant's whisper test was
normal and opined that any high frequency loss the appellant suffered at
discharge "was not enough
to indicate any Previous DocumentinjuryNext Hit [from] his military service." R. at 39. The Board
relied heavily on both VA
examinations in its November 2009 denial of the appellant's claim for
bilateral hearing loss. R. at
3-11. This appeal timely followed.
II. ANALYSIS
Although the appellant's brief is not a model of clarity, it appears that
he argues, inter alia,
that the Board provided inadequate reasons or bases for its decision
because it disregarded, without
analysis, favorable evidence in the form of the appellant's lay statements
that he began experiencing
hearing loss during service, Appellant's Brief (Br.) at 20, and relied
upon the 2009 VA medical
expertopinion,whichwasallegedlybasedontheinaccurate factual premise that
the whispered voice
test at exit from service would have captured any high frequency hearing
loss due to the appellant's
military service. Id. at 16.
A decision of the Board must include a written statement of the reasons or
bases for its
findings and conclusions on all material issues of fact and law presented
on the record; that
3
statement must be adequate to enable an appellant to understand the
precise basis for the Board's
decision, as well as to facilitate informed 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 comply
with this requirement, the Board must analyze the credibility and
probative value of the evidence,
account for the evidence that it finds to be persuasive or unpersuasive,
and provide the reasons for
its rejection of any material evidence favorable to the claimant. Caluza v.
Brown, 7 Vet.App. 498,
506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table);
Gabrielson v. Brown, 7 Vet.App.
36, 39-40 (1994); Gilbert, supra.
In its statement of reasons or bases, the Board correctly stated, but did
not correctly apply,
the legal criteria required to establish service connection for a
disability. R. at 8-11. Establishing
service connection generally requires medical evidence or, in certain
circumstances, lay evidence
of (1) a current disability; (2) in-service incurrence or aggravation of a
disease or injury; and (3) a
nexus between the claimed in-service disease or injury and the present
disability. See Davidson v.
Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492
F.3d 1372, 1376-77 (Fed. Cir. 2007); Hickson v. West, 12 Vet.App. 247, 253 (1999); Caluza,
supra; 38 C.F.R. § 3.303 (2011).
The Board's statement of reasons or bases is inadequate because it does
not clearly distinguish between its analysis of credibility and causation. The Board
acknowledged that the record contains lay statements, from the appellant, asserting that his "
bilateral hearing loss was incurred during his military service," but dismissed this evidence because
the appellant is "not qualified to render an opinion concerning medical causation." R. at 11.
The Board failed to address the value of these statements as lay evidence of observable symptomatology.
The Board noted that the appellant, as a layperson, is not competent to address the etiology of
his hearing loss, but undertakes no analysis concerning the credibility or competency of the
appellant's symptom reporting. R. at 11.
The Board's analysis implies that the appellant's lay statements lack
credibility because they are not accompanied by contemporaneous medical evidence. R. at 9. However, "
the Board can not determine that lay evidence lacks credibility merely because it is
unaccompanied by contemporaneous medical evidence." Buchanan v. Nicholson, 451 F.3d 1331,
1337 (Fed. Cir. 2006); see also Kahana v. Shinseki, 24 Vet.App. 428, 438 (2011) (Lance, J.,
concurring) (discussing
4
the distinction between cases in which there is a complete absence of any
evidence to corroborate or contradict the testimony, and cases in which there is evidence that is
relevant either because it speaks directly to the issue or allows the Board as factfinder to draw a
reasonable inference). Lay persons are generally competent to provide evidence on observable symptoms.
Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The appellant stated that
he first noticed his hearing loss and tinnitus while he was still in active duty service. R. at
137. "[T]he Board's categorical rejection and failure to analyze and weigh the appellant's lay
evidence in accordance with established precedent renders its statement of reasons or bases inadequate
." Kahana, 24 Vet.App. at 435.
The appellant also asserts that the VA medical examination and VA medical
expert review
were inadequate. An adequate medical opinion must be "accurate and fully
descriptive . . . with
emphasis upon the limitation of activity imposed by the disabling
condition." 38 C.F.R. § 4.1
(2011). It must be based on an accurate factual premise and on a
consideration of the veteran's prior
medical history and examinations, and must describe the disability in
sufficient detail so that the
Board's "'evaluation of the claimed disability will be a fully informed
one.'" Ardison v. Brown,
6 Vet.App. 405, 407 (1994) (quoting Green v. Derwinski, 1 Vet.App. 121,
124 (1991)); see also
Floyd v. Brown, 9 Vet.App. 88, 93 (1996). The opinion "must support its
conclusions with an
analysis that the Board can consider and weigh against contrary opinions"
and must "provide
sufficient detail for the Board to make a fully informed evaluation of
whether direct service
connection is warranted." Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007);
see also Hicks v. Brown,
8 Vet.App. 417, 421 (1995) (inadequate evaluation frustrates judicial
review).
The 2007 VA examination, taken alone, would have been inadequate as the
examiner did not
provide a rationale for his or her conclusion that the appellant's
bilateral hearing loss was not related
to military service. R. at 93. The 2009 VA medical expert reviewer did
provide a rationale for his
opinion that the appellant's hearing loss is not related to his military
service, but did not address the
whispered voice test limitations raised by the 2007 examiner. R. at 40.
When these medical
opinions are taken together with the appellant's favorable lay testimony
that symptoms arose while
the appellant was in service, the Court concludes that the failure of the
medical opinions to fully
address the limitations of the whispered voice test with respect to
detecting high frequency hearing
5
loss renders them insufficiently detailed to allow for a fully informed
decision on service connection
for the appellant's hearing loss.
Furthermore, the 2009 examiner clearly relied on the factual premise that
the appellant's
"first indication of hearing loss was in 1975" in determining that hearing
loss did not manifest
immediately and was therefore not related to service. R. at 40. If the
medical examiner relied on
an inaccurate factual premise, his opinion is "of no probative value."
Kahana, 24 Vet.App. at 439
(Lance, J., concurring); Reonal v. Brown, 5 Vet.App. 458, 461 (1993). If
the Board finds that the
appellant's lay statements that his hearing loss began during service are
credible, the 2009 expert
records examination, upon which the Board heavily relied, would not be
adequate. On remand, the
Board should request a medical opinion that addresses any limitations of
the whispered voice test
for detecting hearing loss of the type recorded in 1975 and, if necessary,
provides an adequate
evaluation of the etiology of the appellant's hearing loss and addresses
whether there is a nexus with
the appellant's military service.
Accordingly, the Court will vacate the November 9, 2009, Board decision.
Given this
disposition, the Court need not address the appellant's remaining
arguments because the likelihood
of further development on remand renders judicial review on the current
record premature. See
Quirin v. Shinseki, 22 Vet.App. 390, 396 (2009). On remand, the appellant
is free to submit
additional evidence and argument, including the arguments raised in his
briefs to this Court, in
accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per
curiam order), and
the Board must consider any such evidence or argument submitted.
See Kay v. Principi,
16 Vet.App. 529, 534 (2002). The Board shall proceed expeditiously, in
accordance with 38 U.S.C.
§§ 5109B, 7112 (requiring Secretary to provide for "expeditious
treatment" of claims remanded by
Board or Court).
III. CONCLUSION
After consideration of the appellant's and the Secretary's briefs, and a
review of the record, the Board's November 9, 2009, decision is VACATED and the matter is
REMANDED to the Board for further proceedings consistent with this decision.
DATED: October 17, 2011
6
Copies to:
Perry A. Pirsch, Esq.
VA General Counsel (027)
7
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