Wednesday, October 26, 2011

Single Judge Application, Pain and Functional Loss, Mitchell v. Shinseki, __ Vet.App. __, __, No. 09-2169, slip op. at 8, 2011 WL 3672294 at *5 (Aug. 23, 2011) (quoting 38 C.F.R. § 4.40 (2011))

Excerpt from decision below: "Although Mr. Bosse is therefore correct that the Board misconstrued the scope of the Federal Circuit's holding in Sanchez-Benitez, this Court recently clarified that "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system" and that "[p]ain in . . . a particular joint may result in functional loss, but only if it limits the ability 'to perform the normal working movements of the body with normal excursion, strength, speed, coordination[, or] endurance.'" Mitchell v. Shinseki, __ Vet.App. __, __, No. 09-2169, slip op. at 8, 2011 WL 3672294 at *5 (Aug. 23, 2011) (quoting 38 C.F.R. § 4.40 (2011)). Thus, pain is only compensable as a disability if it causes functional loss as described in Mitchell. Id. In the present case, Mr. Bosse does not assert that he actually experiences any functional loss due to his low back pain, nor does he direct the Court to any evidence in the record that suggest that the pain he experiences is accompanied by functional loss." =============================== ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 09-4624 JOSEPH R. BOSSE, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before HAGEL, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. HAGEL, Judge: Joseph R. Bosse appeals through counsel a November 12, 2009, Board of Veterans' Appeals (Board) decision that denied entitlement to VA benefits for the residuals of a heady injury and a lumbar spine disorder.1 Mr. Bosse's Notice of Appeal was timely and the Court has jurisdiction to review the Board decision pursuant to 38 U.S.C. § 7252(a). Neither party requested oral argument or identified issues that they believe require a precedential decision of the Court. Because the Board's determination that VA satisfied its duty to assist was clearly erroneous in some respects and unsupported by adequate reasons or bases in other respects, the Court will vacate the November 2009 Board decision and remand the matter for further development and readjudication consistent with this decision. The November 2009 Board decision also reopened and remanded previously denied claims for VA benefits for a cervical spine disorder and Wolf Parkinson White Syndrome. Because the Board has not yet issued a final decision regarding these claims, the Court does not have authority to consider them at this time. See 38 U.S.C. § 7252 (providing that the Court may only review final decisions of the Board); see also Howard v. Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000) (holding that a Board remand does not constitute a final decision that may be appealed (citing 38 C.F.R. § 20.1100(b)(1999))). 1 I. FACTS Mr. Bosse served on active duty in the U.S. Marine Corps from November 1971 to May 1977. A February1995 case summarycompleted bya private chiropractor indicates that Mr. Bosse first sought treatment for "bilateral low back discomfort" in February 1993, at which time he was treated and the discomfort resolved. Record (R.) at 43. It also indicates that physical examination and radiographs "revealed lateral tipping of the first cervical vertebra" and that it was possible that this resulted from an incident Mr. Bosse reported in which he received a " blow to the head in 1973 which rendered him unconscious and caused episodes of convulsions." R. at 43. Aprivateemergencyroomreport fromMarch2005indicatesthatMr.Bossesought treatment forchestpainwith associatednausea,shortnessofbreath, andlightheadedness. Thisrecordindicates that Mr. Bosse reported a medical history free of hospitalizations or medical illnesses, aside from "a head injury while in the service as a Marine, apparently [with] no sequelae[2 ] from that." R. at 313. In May 2005, Mr. Bosse filed a number of claims, including a claim for VA benefits for the residuals of an in-service head injury.3 At that time, Mr. Bosse also submitted a statement in support of his claim, describing the incident that resulted in the head injury: While assigned to [Marine Attack Squadron]-223 in Yuma, Arizona, my unit was deployed to Fallon, Nevada[,] for a period of about 15 days ([f]rom January 21, to February 13, 1973). During the deployment I had an accident at the barracks where our unit was assigned. I suffered a head injury (concussion) and was knocked unconscious. Iwas transported fromthebarracksto thehospital base byambulance[] that evening, still in an unconscious state. I was revived at the hospital and some x- rays were taken immediately. Iwas afterwards brought to a room and assigned a bed, where I was checked every half hour. Shortly after lying down on the bed ( lying on my back) the whole room started spinning around and I started vomiting. The next morning my [non-commissioned officer in charge] came to visit me, and told me that the doctor wanted to keep me at the hospital for an extended period of A sequela is "any lesion or affection following or caused by an attack or disease." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1696 (32d ed. 2011). It is unclear from the record of proceedings whether Mr. Bosse also filed his claim for benefits for a lumbar spine disorder at this time or at a later date. 3 2 2 time to take some more x-rays so that he could evaluate the extent of my injuries. Being young and stupid[,] I told [him] that I did not want to stay at the hospital and we went to see the doctor about getting me released. The doctor refused at first[,] saying my injuries were serious and that I had to be monitored for a while. But after insisting and arguing back and forth, the doctor had me sign a release form and let me go. For six months following that injury, I had some severe headaches. Three months later, on two different occasions, I collapsed on the floor like a rag. I was still conscious but I had no control over my body, and after a few seconds on the floor I regained control and stood up. For two to three years following that accident, I would get real dizzy whenever I would tilt my head back to look up. For over ten years[,] I could not lay down on my back because I had the same episodes that happened at the hospital. R. at 569. Mr. Bosse also described "back aches" that he stated were attributed by a chiropractor in 1993 to the top vertebrae in his neck being shifted to the side. R. at 569. He further indicated that, at that time, the doctor asked him whether he ever received a blow to the head and that he continued to periodically seek treatment from his chiropractor since that time, as he "still [had] aches and pains when [he] turn[ed] [his] head to the left side and occasionally sharp pain when it snaps." R. at 569. In October 2005, after a VA regional office requested Mr. Bosse's service medical records, theNationalPersonnelRecordsCenter(Records Center) respondedthattheserecordshadpreviously been furnished in connection with a separate claim in May 1995. Later that month, the regional office determined that Mr. Bosse's claims file was missing and began the process of rebuilding it. Mr. Bosse subsequently submitted copies of his service medical records, although the record of proceedings does not indicate precisely when this occurred or whether these account for all of the service medical records that were previously in his claims file. None of the service medical records submitted by Mr. Bosse describe an incident in which he struck his head, nor do they indicate that hesoughttreatment forsymptoms suchasdizziness,headaches,collapsing, orproblemswith his low back. A clinical evaluation conducted during Mr. Bosse's April 1977 separation examination revealed no head, face, neck, scalp, spine, or neurologic abnormalities. In November 2005, Mr. Bosse submitted another statement in support of his claim, along with service records indicating that he and the Marine Attack Squadron to which he was assigned were ordered to report to the Naval Air Station in Fallon, Nevada, for a period of 22 days on or about 3 January 17, 1973. In his statement, Mr. Bosse claimed that the accident in which he struck his head would not be mentioned in his service medical records because the doctor would onlydischarge him from the hospital if he signed a release stating that the incident would not be in his medical records, which he did. Mr. Bosse indicated that he believed there would nevertheless be records of his admission at the Naval Air Station medical facilityin Fallon where he was treated and requested that VA obtain them. In March 2006, the regional office requested from the Records Center any clinical records pertaining to treatment Mr. Bosse received for "head and spine injuries - barracks injury" at the Fallon Naval AirStation medicalfacilitybetweenthedates January21,1973, andFebruary13,1973. R. at 463. In May 2006, the Records Center provided the following response : "Fallon Naval Base appears to be an outpatient facility only. No search possible based on the information furnished." R. at 463. A June 2006 report of contact reflects that the regional office "[c]alled Fallon[,] Nevada[,] [b]ranch [m]edical" and was informed byan employee that records from the dates in question would have been sent to the Records Center. R. at 466. Later that month, the regional office made a formal finding that clinical records from Fallon Naval Air Station for the year 1973 were unavailable and that any further efforts to obtain the records would be futile. The regional office also sent a letter to Mr. Bosse notifying him of this finding, listing the previous efforts it had made to obtain these records, and requesting that he submit any other relevant evidence within 10 days, after which time a decision would be made on his claims. In July 2006, the regional office issued a rating decision denying entitlement to VA benefits for (1) the residuals of a back condition, (2) a head injury, and (3) dizziness, headaches, episodes of collapsing, and no bodily control, all associated with a head injury. In July 2007, Mr. Bosse filed a Notice of Disagreement with the July 2006 rating decision and, after further development, he appealed to the Board. In June 2009, he was afforded a hearing before the Board. At that time, he described the incident that led to his claimed in-service head injury as follows: In 1973[,] as I came into the barracks, it was a field day, the barracks floor had been stripped and waxed and I had to take off my boots. And at one point I got shoved backwards. I don't remember the details because . . . after that I hit my head against, 4 from what the records say, from what theytold me the people that were there, against a beam that was behind me, which caught my head completely[.] I fell on my chest and then my head, it hit the floor. And from there I woke up at the hospital. R. at 241. Mr. Bosse further stated that he was admitted to the hospital where he spent three or four days, that a brain scan was conducted at that time, and that, subsequently, he collapsed a few times while still in service. In addition, he stated that, following the incident, he experienced dizziness while working on airplanes and could not tilt his head up for two to three years. He also described his current symptoms, including constant neck pain with occasional numbness, dizziness caused by standing after squatting, a loss of balance, nausea and a spinning sensation when lying flat on his back, and headaches lasting up to an entire day on a weekly basis. Regarding his claimed low back disability, Mr. Bosse stated that his low back would be stiff in the morning when he woke up. AJuly2009examination report completedbyaprivatephysiciandetails Mr.Bosse's reported medical history, including the incident in 1973, which Mr. Bosse stated resulted in immediate unconsciousness, "convulsive movements of his arms and legs," and a loss of memory for 12 hours. R. at 215. It also indicates that Mr. Bosse claimed to have received medical treatment at the Fallon Naval Air Station where he remembered having x-rays taken, "being confused as to time and place," and experiencing"nausea, vomiting, severe headaches[,] and confusion." R. at 215. In addition, Mr. Bosse stated that he "sign[ed] out against medical advice" and "was able to do this because the Naval Medical Officer did not have direct command over him." R. at 215. Mr. Bosse reported experiencing severe headaches and dizziness in the weeks and months following the incident and currentlysuffering from "intermittent episodes of vertigo and dizziness," as well as "frequent severe headaches." R. at 216. Following a physical examination, the private physician diagnosed Mr. Bosse with several conditions unrelated to this appeal,4 as well as "chronic[,] non-radiating lumbosacral pain." R. at 219. The examiner further opined that, based on Mr. Bosse's recitation of the in-service incident, "there is a reasonable causal nexus between [the] injury event of January 21, 1973[,] and the development of multiple subsequent medical diagnoses presenting over the years." R. at 219. For instance, Mr. Bosse was diagnosed with "cervical degenerative disc disease and cervical peripheral nerve dysfunction with peripheral neuropathy syndrome." R. at 219. As indicated at footnote 1, the Board reopened a previously denied claim for a cervical spine disorder and remanded it for further consideration. 4 5 In November 2009, the Board issued the decision now on appeal, characterizing the relevant issues before it as including entitlement to VA benefits for the residuals of a head injury and for a lumbar spine disorder. At the outset, the Board noted that Mr. Bosse's claims file had been rebuilt and that Mr. Bosse submitted copies of his servicetreatment records. The Board also noted that "VA attempted to obtain hospitalization records from the facility that treated [ Mr. Bosse] after the in- service head injury, but was unsuccessful," as the facility was contacted but "indicated it does not have records from that long ago (1970s)." R. at 6. The Board then concluded that, although Mr. Bosse had not been afforded a VA medical examination in connection with his claims, the evidence of record did not establish his entitlement to such examinations. The Board then denied the claims, finding that the preponderance of the evidence did not indicate that Mr. Bosse currently has a low back disability and that "there is no competent and credible evidence of an in-service head injury with a subsequent period of unconsciousness[] and either convulsions or some type of seizure." R. at 14. II. ANALYSIS A. Fallon Naval Air Station Medical Records At the outset, despite Mr. Bosse's contention that VA owed him a heightened duty to assist because his claims file was lost, it appears that VA was able to rebuild his claims file, in no small part because Mr. Bosse submitted copies of his service medical records. However, Mr. Bosse seems to premise his contention that VA had a heightened duty to assist him not on the loss or destruction of records actually in his original claims file, but on VA's failure to obtain the records he identified regarding treatment he received at the Fallon Naval Air Station medical facility. See Washington v. Nicholson, 19 Vet.App. 362, 370 (2005) (explaining that when a veteran's medical records are presumed to be lost or destroyed, VA has a heightened duty to assist that requires it to recommend the submission of alternative sources of evidence and to assist in developing this alternative evidence). However, as described below, it is not clear to the Court that these records truly are unavailable—let alone that they were presumably lost or destroyed—and the Court will remand Mr. Bosse's claims so that VA can satisfy its duty to assist by making further efforts to obtain them. 6 VA's duty to assist requires it to "make reasonable efforts to assist a claimant in obtaining evidence necessaryto substantiate the claimant's claim for a benefit under a law administered by the Secretary." 38 U.S.C. § 5103A(a)(1). Further, VA is required to make reasonable efforts to obtain all records held by a governmental entity that are relevant to the claim and that pertain to the claimant's militaryserviceiftheclaimantprovidestheSecretaryinformationsufficientto locatesuch records. 38 U.S.C. § 5103A(c)(1). In that regard, VA is required to make as many requests as necessary to obtain records from Federal agencies. 38 C.F.R. § 3.159(c)(2 ) (2011). VA may discontinue its efforts to obtain records from a Federal department or agencyonly when it concludes that continued efforts would be futile, which requires that the Federal department or agency advise VA that either the requested documents do not exist or that the custodian does not have them. Id. Here, Mr. Bosse described an in-service head injury, indicated that he was treated for the injury at the Fallon Naval Air Station medical facility, provided a relatively small window of time in which he estimated having received this treatment, and requested that VA attempt to obtain all records of his admission and treatment at that facility. The record indicates that VA did make some efforts to obtain these records. Initially, the regional office requested from the Records Center any records from the Fallon Naval Air Station medical facility pertaining to Mr. Bosse (his service number was provided) and "head and spine injuries - barracks injury" between January21, 1973, and February13, 1973. R. at 463. In May2006, the Records Center responded that the Fallon Naval Air Station appeared to have an outpatient medical facility and that "[n]o search [was] possible based on the information furnished." R. at 463. Although it is unclear to the Court what further information would be necessary to conduct a search for the records in question, it does not appear that the regional office followed up with the Records Center in an effort to resolve this ambiguity so that a search for the records could be conducted. Instead, the regional office directly contacted the Fallon Naval Air Station medical facility in an effort to obtain the records, but was informed by an employee that any such records from 1973 would have been sent to the Records Center. Obviously, this information should have directed the regional office's efforts back to the Records Center in an effort to determine what additional information was needed to conduct a search. Instead, the regional office made a formal finding that the records were unavailable and that further efforts to obtain them would be futile. 7 As noted above, the Board concluded that VA satisfied its duty to assist. The Board recognized VA's failure to obtain records documenting treatment Mr. Bosse received at the Fallon Naval Air Station medical facility, but appears to have concluded that VA was not required to make further efforts to obtain them because the facility itself "indicated it does not have records from that long ago (1970s)." R. at 6. The Board failed to acknowledge, however, that the medical facility also informed the regional office that any such records would have been sent to the Records Center, or that the Records Center previously indicated it had not been supplied with sufficient information to enable it to conduct a search for the records. When this information is considered, along with the fact that it appears that VA made no further efforts to obtain the records from the Records Center, the Court concludes that the Board's determination that VA satisfied its duty to assist was clearly erroneous and must be set aside. See Nolen v. Gober, 14 Vet.App. 183, 184 ( 2000) (holding that the Board's determination that the duty to assist was satisfied is a finding of fact reviewed pursuant to the "clearly erroneous" standard of review). On remand, the Board must ensure that the records in question are again requested from the Records Center and that all available information regarding those records is provided to the Records Center. If the Records Center is still unable to conduct a search based upon the information provided,the regional officeshould endeavor to determine what additional informationis necessary, seek such information from Mr. Bosse, and provide it to the Records Center. If the Records Center is ultimately able to conduct a search but determines that the records are unavailable or do not exist, a formal finding to that effect must be made by VA and Mr. Bosse must be provided with the notice described in 38 U.S.C. § 5103A(b)(2). In addition, the regional office must also suggest that Mr. Bosse submit other forms of evidence that could support his allegation of an in-service injury as he has described. For instance, it appears that Mr. Bosse has at times described his head injury as resulting from being pushed after walking into a barracks. He should therefore be informed that he can submit statements from any fellowservicemembers who mayhave witnessed the incident,theseverityofhis resultinginjury,and the treatment he received thereafter. Further, on remand, Mr. Bosse is free to submit additional evidence and argument in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). See 8 Kay v. Principi, 16 Vet.App. 529, 534 (2002). "A remand is meant to entail a critical examination of the justification for the decision" by the Board. Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991). In addition, the Board shall proceed expeditiously, in accordance with 38 U.S.C. § 7112 (expedited treatment of remanded claims). Lastly, the Board must consider the negative impact resulting from the loss of Mr. Bosse's claims file while in the custody of VA, especially in light of the Records Center's October 2005 message that it could not provide Mr. Bosse's service medical records because it had previously conveyed them to the regional office in 1995. B. Medical Examination Mr. Bosse next contends that VA was required to provide him with a medical examination in connection with his claims relevant to this appeal. In certain circumstances, VA's duty to assist requires it to provide a disability compensation claimant with such an examination. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4) (2011). In McLendon v. Nicholson, the Court parsed section 5103A(d) and § 3.159(c)(4) and explained: In disability compensation claims, the Secretary must provide a VA medical examination when there is (1) competent evidence of a current disabilityor persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. 20 Vet.App. a79, 81 (2006). Further, in Duenas v. Principi, the Court held that when the Board considers whether a medical examination or opinion is necessary under section 5103A(d) and § 3.159(c)(4), it must provide a written statement of the reasons or bases for its conclusion, pursuant to 38 U.S.C. § 7104(d)(1), and that, absent a finding of nonprejudicial error, vacatur and remand is warranted where it fails to do so. 18 Vet.App. 512, 517–18 (2004) ( citing Tucker v. West, 11 Vet.App. 369, 374 (1998)). 1. Lumbar Spine Disorder 9 With regard to Mr. Bosse's claim for benefits for a lumbar spine disorder, the Board concluded that the first McLendon element had not been satisfied. It concluded that the record did not evince "competent evidence of a current disability" because it only reflected that Mr. Bosse experienced some degreeof low back pain. Citing Sanchez-Benitez v. Principi, 259 F.3d 1356, 1361 (Fed. Cir. 2001), the Board concluded that "[p]ain is not a disability in and of itself." R. at 7. Mr. Bosse argues that the Board misconstrued the holding in Sanchez- Benitez, noting that the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) did not reach the question of whether pain alone can constitute a compensable disability. Indeed, in that case, the Federal Circuit stated that this was "an interesting, indeed perplexing, question," but did not reach it because, in any event, the Board plausibly determined that the "free-standing" pain experienced by the veteran was not attributable to an in-service event or injury, meaning it could not be service connected. Sanchez- Benitez, 259 F.3d at 1361-62. Although Mr. Bosse is therefore correct that the Board misconstrued the scope of the Federal Circuit's holding in Sanchez-Benitez, this Court recently clarified that "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system" and that "[p]ain in . . . a particular joint may result in functional loss, but only if it limits the ability 'to perform the normal working movements of the body with normal excursion, strength, speed, coordination[, or] endurance.'" Mitchell v. Shinseki, __ Vet.App. __, __, No. 09-2169, slip op. at 8, 2011 WL 3672294 at *5 (Aug. 23, 2011) (quoting 38 C.F.R. § 4.40 (2011)). Thus, pain is only compensable as a disability if it causes functional loss as described in Mitchell. Id. In the present case, Mr. Bosse does not assert that he actually experiences any functional loss due to his low back pain, nor does he direct the Court to any evidence in the record that suggest that the pain he experiences is accompanied by functional loss. Instead, he appears to argue that the question of whether free-standing pain alone can constitute a compensable disability remains unanswered following the Federal Circuit's decision in Sanchez-Benitez. As explained above, this is not accurate and, absent some indication that he experiences functional loss due to his low back pain, the Court concludes that the Board's mischaracterization of the Federal Circuit's holding in Sanchez-Benitez was nonprejudicial. See 38 U.S.C. § 7261(b)(2) (requiring the Court to "take due account of the rule of prejudicial error"). 10 Nevertheless, theCourtconcludesthattheBoardultimatelyprovidedaninadequatestatement of reasons or bases for its determination that the first McLendon element was not satisfied and that Mr. Bosse was not entitled to a VA medical examination in connection with his claim for benefits for a lumbar spine disorder. As noted above, the first McLendon element is met whenever there is "competent evidence of a current disability or persistent or recurrent symptoms of a disability." 20 Vet.App. at 81 (emphasis added). Here, although the Board addressed the issue of whether Mr. Bossepresentedcompetentevidenceofpersistentorrecurrentsymptomsofdisability, its explanation for its determination that no such evidence was contained in the record was confusing and failed to address favorable evidence. First, the Board acknowledged that Mr. Bosse made several statements describing his low back pain, but dismissed them because it did "not find his report of the in-service head injury credible," a conclusion that was then discussed in great detail elsewhere in the opinion. R. at 8. However,thecredibilityofMr.Bosse's statementsregardingthenatureandseverityofanyin-service head injury he sustained is irrelevant to the issue of whether he currently suffers from persistent or recurrent symptoms of a disability, such as low back pain. It is unclear, then, how or why the Board dismissed Mr. Bosse's lay statements regarding the symptoms of low back pain he experiences, and the Court's inability to comprehend the Board's reasoning on this issue renders its statement of reasons or bases inadequate. See Gilbert v. Derwinski, 1 Vet.App. 49, 57 ( 1990) (explaining that the Board's statementofreasons orbasesmust beadequate to enablea claimant to understand the precise basis for the Board's decision, as well as to facilitate review in this Court). Second, the Board acknowledged that private medical records dated between 2002 and 2008 were of record, but found that "[n]one of these medical records address treatment for a low back disability or even the appellant reporting low back pain." R. at 8. Although the Board's characterization of this evidence is correct, the Board failed to account for other contradictory evidence. The private chiropractor's February 1995 case summary indicates that Mr. Bosse first soughttreatment for "bilateral lowbackdiscomfort"asearlyasFebruary1993. Becausethis medical record was relevant to Mr. Bosse's history of low back pain, the Board was required to discuss it in determining whether the record contained competent evidence of persistent or recurrent symptoms of disability. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. 11 Cir. 1996) (table) (holding that the Board's reasons or bases obligation requires it to analyze the credibilityand probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). Because it failed to do so, the Court concludes that its reasons or bases for determining that Mr. Bosse was not entitled to a VA medical examination were inadequate. Id.; see also Duenas, 18 Vet.App. at 517–18. On remand, the Board must reassess whether Mr. Bosse is entitled to a VA examination and support its ultimate determination with a clear statement of reasons or bases that accounts for all relevant evidence of record. Further, because the Board will also be required to reassess the evidence of record on remand, it is reminded that, although it most certainly can weigh an absence of corroborating records against lay evidence such as Mr. Bosse's description of the alleged in- service head injury and attendant symptoms, it may not conclude that this lay evidence lacks credibility solely because it is unaccompanied by other contemporaneous evidence or records. See Buchanan v. Nicholson, 451 F.3d 1331, 1335-37 (Fed. Cir. 2008). In conducting such an analysis, the Board must take into consideration that VA lost Mr. Bosse's claims file and that, although Mr. Bosse submitted copies of the service medical records in his possession, it is impossible to know whether these are complete and account for all records that were originally in his claims folder. Also onremand,theBoardmustaddress how the loss of Mr. Bosse's claims file impactsVA's heightened duties to provide reasons or bases for its findings, to assist Mr. Bosse in substantiating his claim, and to consider the benefit of the doubt rule. See Kowalksi v. Nicholson, 19 Vet.App. 171, 179 (2005) ("[W]here a veteran's records are lost . . . the Board has a heightened duty to provide a full explanation of the reasons or bases for its findings."); Russo v. Brown, 9 Vet.App. 46, 51 (1996) (explaining that where a veteran's medical records are lost or destroyed, the Board's "obligation to explain its findings and conclusions and to consider the benefit-of-the- doubt is heightened" (quoting O'Hare v. Derwinski, 1 Vet.App. 365, 367 (1991)). Finally, as noted above, after VA satisfies the duties noted in this decision, Mr. Bosse is free to submit additional evidence and argument in support of this claim. See Kay, 16 Vet.App. at 534; Kutscherousky, 12 Vet.App. at 372-73. 2. Residuals of a Head Injury 12 In concluding that Mr. Bosse was not entitled to a VA medical examination in connection with his claim for benefits for the residuals of a head injury, the Board found that the first McLendon element was satisfied byinformation contained in the July 2009 private medical examination report, but that elements two and three—evidence establishing that an event, injury, or disease occurred in serviceandindicatingthatthecurrentdisabilitymayberelatedto thatevent, injury,ordisease—were not satisfied. The Board then engaged in a detailed explanation for this finding, which was premised on its determination that Mr. Bosse's "claim that an in-service head injury occurred in the manner in which [he] . . . described" was not credible. R. at 8. In particular, the Board noted that Mr. Bosse repeatedly described a head injury so severe that it caused loss of consciousness, convulsions, hospitalization for several days, and lingering in-service symptoms such as severe headaches, dizziness, and collapsing, but that there was no reference in Mr. Bosse's service medical records to such an injury or that he sought treatment for these lingering symptoms. Mr. Bosse argues that the Board's statement of reasons or bases for its credibility determination was inadequate. He characterizes this determination as founded on an absence of service records that corroborate his account of the events surrounding his injury, but asserts that this reasoning is illogical since his claims file was lost and treatment records from the Fallon Naval Air Station medical facility were not obtained. However, Mr. Bosse ignores that his claims file was rebuilt and that the rebuilt file contains his service medical records. Indeed, the Board reviewed and discussed these service medical records in explaining that their lack of reference to the claimed in- service head injury or attendant symptoms undercut the credibility of his statements. Nevertheless, the Court cannot discern from the Board decision whether, in making its credibility determination, the Board concluded that Mr. Bosse's assertion that he suffered an in- service head injury was not credible, or only that his statements regarding the severity of that injury were not credible. On the one hand, after reviewing the evidence of record, the Board described Mr. Bosse's statements as an "exaggeration of what happened in service" and therefore concluded that his "claim that an in-service head injury occurred in the manner in which [ he] . . . described" was not credible. R. at 10, 8 (emphasis added). This would suggest that the Board found his statements that he suffered an in-service head injury to be credible, but found that his statements regarding the severity of this injury to be exaggerated and not credible. On the other hand, the Board concluded 13 that the evidence of record did not establish that Mr. Bosse suffered an in-service event or injury, and that the second McLendon element was therefore not satisfied. This tends to suggest that the Board found that all of Mr. Bosse's statements regarding an in-service head injurylacked credibility, even those regarding whether such an event actually occurred. This lack of clarity in the Board decision renders its reasons or bases for determining that a VA medical examination was unnecessary inadequate. See Gilbert, 1 Vet.App. at 57; see also Duenas, 18 Vet.App. at 517–18. In addition, as outlined above, on remand VA will be required to make further efforts to obtain records of treatment from the Fallon Naval Air Station medical facility. Such records, if they are available, will be significant to any credibility determination made by the Board regarding Mr. Bosse's account of an in-service head injury. Accordingly, on remand, the Board should consider such records, if obtained, in assessing the credibility of Mr. Bosse's statements, and should clearly and unambiguously explain the scope of its credibility determination. Again, Mr. Bosse is free to submit additional evidence on argument on remand. See Kay, 16 Vet.App. at 534; Kutscherousky, 12 Vet.App. at 372-73. III. CONCLUSION Upon consideration of the foregoing, the November 12, 2009, Board decision is VACATED and the matter is REMANDED for further development and readjudication consistent with this decision. DATED: October 14, 2011 Copies to: Francis M. Jackson, Esq. VA General Counsel (027) 14