Single Judge Application, Breniser v. Shinseki, 25 Vet.App. 64, 79 (2011); Post Hoc Rationalizations

Excerpt from decision below: "The Secretary's contention, however, was not one of the bases the Board articulated for finding the veteran's assertions not credible. A post hoc rationalization is not a substitute for an adequate statement of reasons or bases. See Breniser v. Shinseki, 25 Vet.App. 64, 79 (2011) (noting that litigation 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" (internal quotation marks omitted)). Besides, Mr. Bowers's argument is that his gallstones began to form approximately 6 to 12 years before his November 2007 surgery, that is, between 1995 and 2001. All the reports the Secretary cites, dated from 1976 to 1992, predate this period. See R. at 867, 893, 915, 917. Thus, it is not immediately clear that Mr. Bowers's claims of unreported, in-service symptoms are even inconsistent with his SMRs. =========================== ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 11-3022 JOHN M. BOWERS, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before BARTLEY, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. BARTLEY, Judge: Veteran John M. Bowers, who is self-represented, appeals from a May 25, 2011, decision of the Board of Veterans' Appeals (Board), denying entitlement to service connection forcholecystitisandpostoperativeresidualsofgallbladderremoval.1 Record(R.)at4-16. This appeal is timely, and the Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judgedisposition is appropriate. See Frankel v. Derwinski, 1 Vet. App. 23, 25-26 (1990). For the reasons set forth below, the Court will set aside that portion of the May 2011 Board decision that is on appeal, and remand the matter for readjudication consistent with this decision. I. FACTS Mr. Bowers served on active duty in the U.S. Air Force from June 1981 to January 2005. R. at 486. His service medical records (SMRs) do not contain any diagnoses of, or complaints related to, gallbladder problems. R. at 674-1007. In medical history reports dated July 1976 (R. at 915), The Board remanded for additional development claims for increased disability evaluations for degenerative arthritis of the right knee, status-post arthroscopic surgery, currently evaluated as 10% disabling, and chondromalacia of the left patella, currently evaluated as 10% disabling. Record at 14-16. These issues are not before the Court. See Adams v. West, 13 Vet.App. 453, 454 (2000) (noting that the Court lacks jurisdiction over a claim remanded by the Board). 1 October 1980 (R. at 917), October 1985 (R. at 893), and April 1992 (R. at 867), he specifically denied frequent indigestion, gallbladder problems, or gallstones. After discharge in January 2005, Mr. Bowers applied for veterans disability benefits for several conditions but did not mention problems relating to his gallbladder. R. at 659-68. Then, in January2007, Mr. Bowers presented at the Air Force AcademyHospital emergency room with severe upper abdominal and bilateral mid-back pain. R. at 286, 344. Ultrasound confirmed the presence of stones in the gallbladder. R. at 287; see also R. at 234-39. The diagnosis was cholelithiasis with bile duct calculi and cholecystitis.2 Id. At a followup visit three weeks later in February 2007, Mr. Bowers advised the attending physician that he wished to postpone any surgery. R. at 282-83. After experiencing additional episodes of severe upper abdominal pain, however, he underwent a cholecystectomy, or surgical removal of the gallbladder, in October 2007.3 R. at 225-27; see also R. at 35. November 2007 postoperative notes indicate that "numerous" gallstones were present and measured up to 1.2 centimeters in diameter. R. at 261, 269. The walls of the gallbladder showed scar tissue, measuring up to .5 centimeters in thickness. R. at 223, 261. The final diagnosis was "acute and chronic cholecystitis with cholelithiasis." R. at 261. That same month, Mr. Bowers filed a claim for service connection of cholecystitis and partial removal of the gallbladder and recounted the foregoing medical history. R. at 344-45. Heelaborated in a December 2007 statement in support of claim that, between 1999 and 2007, he experienced "[u]sually mild, but occasionally moderate, upper abdominal pain after eating a large/heavy meal," between eight and ten times per year. R. at 205. However, the veteran assumed it was indigestion and treated these incidents with over-the- counter medications. Id. In a March 2008 rating decision, the VA regional office (RO) denied his claims for service connection for cholecystitis and gallbladder removal because there was no evidence demonstrating a "plausible relationship" between these conditions and his military service. R. at 190-95. Mr. "Cholelithiasis" means "the presence of or formation of gallstones," which are also known as calculi. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 349 (32d ed. 2012) [hereinafter DORLAND'S]; see also id. at 271 (defining "calculi" as "abnormal concretions . . . of mineral salts"). " Cholecystitis" is an "inflammation of the gallbladder." Id. at 348. 3 2 See DORLAND'S at 348. 2 Bowers filed a Notice of Disagreement (NOD) in April 2008 and attached numerous relevant treatment records. R. at 134-37, 142-61. In the NOD, he argued that the RO failed to consider his report of self-medicating during service, and the size of the recovered gallstones and the thickness of the gallbladder wall caused by long-term scarring. R. at 136. According to the veteran, these facts, takentogether,"indicate[d] along-termcondition thatbeganduringmilitaryservice,but which did not become severe enough to seek medical treatment until after retirement." Id. More specifically, in the NOD Mr. Bowers cited numerous medical treatises that state that gallstones grow at a rate of 1 to 2 millimeters per year. R. at 136-37. Based on this growth rate and given that the largest stones removed from his gallbladder in October 2007 were 1.2 centimeters (or 12 millimeters), he argued that the stones must have been developing before his active duty terminated in January 2005. Id. He also cited medical texts that said gallstones could be developing for years before they caused symptoms or observable problems. R. at 136. The RO issued a Statement of the Case (SOC) in November 2008, and continued to deny service connection for cholecystitis and removal of gallbladder, stating there was no evidence of a nexus between these conditions and service. R. at 111-27. With respect to the evidence Mr. Bowers submitted regarding the growth rate of gallstones, the SOC noted only that, although the presence of gallstones is a condition entitled to presumptive serviceconnection, thedisabilitydid not manifest to a compensable degree within one year of discharge from service, so service connection could not be granted. R. at 127. The veteran appealed to the Board. R. at 82-83. Testifying at a hearing before the Board in April 2011, Mr. Bowers reiterated that during service he treated what he thought at the time was indigestion with over- the-counter medicine. R. at 33; see also R. at 42. He once again shared his research about the rate at which gallstones develop and contended, based upon the size of the stones removed from this gallbladder, that they must have developed during service. R. at 33-36. The Board issued the decision currently on appeal on May 25, 2011. R. at 4- 16. First, the Board determined that VA had satisfied its duty to assist and that the veteran was not entitled to a medical nexus examination because "there [was] no credible evidence that [ the] pertinent disability had its onset in service or is otherwise associated with active duty." R. at 8. Next, although acknowledging Mr. Bowers's claims of indigestion-like symptoms and back pain during and after 3 service, the Board said his statements were not credible because there was no mention of gallbladder disease, gallstones, or cholecystitis in SMRs or postservice medical records within a year of discharge. R. at 11-12. Further, the Board stated: "It is not conceivable that the [v]eteran had unreported symptoms of cholelithiasis in service and continuously following active duty. When those symptoms were first reported in January 2007, the [v]eteran was in the emergency room due to their severity." R. at 12. Finally, with respect to Mr. Bowers's argument, based on the medical treatise evidence he cited, that his gallstones were developing during service but did not cause problems until after service, the Boardstatedsimplythathewas "not competent to render a probative opinion on a medical matter, such as the onset of gallstones, or of a medical diagnosis or causation." R. at 12. Moreover, the Board found that no competent evidence linked postoperative residuals of gallbladder removal to service; Mr. Bowers needed to present, the Board concluded, "contemporaneous service treatment records reflecting treatment or diagnosis of abdominal pain or gallbladder disease during service." R. at 13. This timely appeal followed. II. ANALYSIS Before this Court, Mr. Bowers argues that the Board failed to consider properly the medical treatise evidence that he offered. Appellant's Informal Brief (Br.) at 2. He acknowledges that he never sought treatment for a gallbladder condition during service or within the year immediately following servicebut contends that this does not mean that his gallstoneswerenotdevelopingduring service. Id., Attachment at 3. Indeed, he contends that the treatise evidence he offered, in conjunction with the evidence showing the size of the gallstones removed during the 2007 surgery, "clearly show that gallstones must have been growing while [he] was on active duty." Id. The Board, he asserts, misapplied 38 C.F.R. § 3.303 (2012) and used the absence of any manifestation of a gallbladder disorder within one year of service so as to avoid considering the implications of the evidence he submitted. Id. at 5-6. He asks that the Board be directed to consider the size of his gallstones at the time of his 2007 surgery and the medical treatise evidence on the growth rate of gallstones in general. Id. at 9. The Secretaryargues in response that the Board's decision had a plausible basis in the record. Secretary's Br.at7-10. Further,theSecretarycontendsthattheBoard" appropriatelyquestioned[Mr. 4 Bowers's] credibility." Id. at 10-11. Finally, despite acknowledging that " the Board did not directly address the medical treatise information in its decision by referring to the actual articles," the Secretarymaintains that Mr. Bowers was not prejudiced because the Board did address his argument that his gallstones must have formed while he was in service. Id. at 12. But, according to the Secretary, the Board rightly found that the veteran was not competent to make such an argument. Id. In any event, the Secretary argues, the medical treatises at issue " only discuss the general characteristics of gallstones and do not state with any certainty that [ the veteran's] gallstones would have existed as [he] maintains." Id. at 13. Mr. Bowers replies that, notwithstanding the Secretary's characterization of the decision, the Board did not address the treatise evidence he submitted. Reply Br. at 6-9. He also takes issue with how the Board determined he was not credible. Id. at 2-5. The Court agrees with Mr. Bowers on every argument he presents. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an 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 McClain v. Nicholson, 21 Vet.App. 319, 320-21 (2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A finding of service connection, or no service connection, is a finding of fact reviewed under the "clearly erroneous" standard in 38 U.S.C. § 7261(a)(4). See Swann v. Brown, 5 Vet.App. 229, 232 (1993). "A factual 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 conviction that a mistake has been committed.'" Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). Additionally, the Board is required to include in its decision 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 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. See 38 U.S.C. § 7104(d)(l); 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 persuasive or unpersuasive, and provide the reasons for its rejection of any material 5 evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 507 ( 1995); Gabrielson v. Brown, 7 Vet.App. 36, 39-40 (1994). Cholecystitis and removal of gallbladder are evaluated under 38 C.F.R. § 4.114, Diagnostic Codes 7314 and 7318 (2012), respectively. A. Medical Treatise Evidence Regarding Growth Rate of Gallstones First, the Court agrees with the veteran and the Secretary, see Secretary's Br. at 12, that the Board failed to discuss the medical treatise evidence offered by Mr. Bowers. This Court has stated that medical treatise evidence may be sufficient to establish nexus in instances where "standing alone, [it] discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion." Wallin v. West, 11 Vet.App. 509, 514 ( 1998) (quoting Sacks v. West, 11 Vet.App. 314, 317 (1998)). The U.S. Court of Appeals for the Federal Circuit has likewise held that "in an appropriate case," medical treatises can establish the nexus element of service connection. Hensley v. West, 212 F.3d 1255, 1265 (Fed. Cir. 2000) (" A veteran with a competent medical diagnosis of a current disorder may invoke an accepted medical treatise in order to establish the required nexus; in an appropriate case it should not be necessary to obtain the services of medical personnel to show how the treatise applies to his case ."). In this case, Mr. Bowers offered medical treatise evidence that placed the growth rate of gallstones at 1 to 2 millimeters per year, along with postoperative records from November 2007 showing that he had gallstones as large as 1.2 centimeters. Certainly, this is evidence that, if credited,isfavorabletoMr.Bowers'sclaimforserviceconnection becauseit woulddemonstratethat stones began to form in his gallbladder while he was on active duty and existed during service.4 As such, the medical treatise evidence should have been discussed. Without this discussion, the Board's statement of reasons or bases for its decision is inadequate. See Caluza, supra; see also Daves v. Nicholson, 21 Vet.App. 46, 51 (2007). Contraryto the Secretary's contentions, the Court is not persuaded that the Board's failure to discuss this evidence is harmless. See Shinseki v. Sanders, 556 U.S. 396, 406-07 (2009) (noting that 4 There are 10 millimeters in 1 centimeter, so the 1.2 centimeter gallstone removed from Mr. Bowers's gallbladder measures 12 millimeters. If the growth rate of gallstones is 1 to 2 millimeters per year, then at least one of the veteran's gallstones began developing 6 to 12 years before its removal in October 2007, that is, between 1995 and 2001, when Mr. Bowers was serving in the Air Force (R. at 486). 6 38 U.S.C. § 7261(b) requires this Court to take due account of the rule of prejudicial error). The Secretary asserts that the treatise evidence "do[es] not provide the requisite specificity to relate that [Mr. Bowers's] gallstones existed during service" because "they only discuss the general characteristics of gallstones." Secretary's Br. at 13. Therefore, the Secretary maintains, the Board's failure to discuss the treatise evidence is harmless error. If the Board were permitted to dismiss summarily treatise evidence on the basis that it is too general, however, there would be no value in ever submitting treatise evidence because most such evidence is necessarily generic in that sense. See 38 C.F.R. § 3.159(a)(1) (2012) ("Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. . . . [and] may also mean statements conveying sound medical principles found in medical treatises. . . . [and] statements contained in authoritative writings such as medical and scientific articles and research reports or analyses."). If credited, the treatise evidence Mr. Bowers submitted establishes that, as a general rule, gallstones grow at a rate of 1 to 2 millimeters per year. Applied specifically in Mr. Bowers's case, the treatise evidence would show that his gallstones developed while he was in service. Moreover, there is no evidence to suggest that the veteran's gallstones grew at a different rate or otherwise fell outside the standard development time line established in the medical treatises. The Board should have considered and discussed the treatise evidence that, if accepted, would seem to require little more than the application of arithmetic principles to establish service connection for the residuals of gallstones. See Hensley, supra. Furthermore, even when medical articles or treatises are not, alone, sufficient to establish service connection, they "can provide important support when combined with an opinion of a medical professional." Sacks, 11 Vet.App. at 317. The Secretary has a statutory duty to "make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit." 38 U.S.C. § 5103A(a)(1). This duty includes the obligation to obtain a medical opinion or provide a medical examination "when such an examination or opinion is necessary to make a decision on the claim." 38 U.S.C. § 5103A(d)(1). VA must provide a medical opinion or examination if the evidence of record does not contain sufficient, competent medical evidence to decide the claim, but the following factors are present: 7 (1) [C]ompetent evidence of a current disability or 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. McLendon v. Nicholson, 20 Vet.App. 79, 81 (2006); see also 38 C.F.R. § 3. 159(c)(4)(i). The third requirement—that the evidence indicate that a condition "may be associated" with service—establishes a "low threshold." McLendon, 20 Vet.App. at 83. In deciding whether a medical opinion is necessary, the Secretary must consider the evidence of record, "taking into consideration all information and lay or medical evidence (including statements of the claimant)." 38 U.S.C. § 5103A(d)(2). This Court reviews the Board's ultimate conclusion that a medical opinion is or is not necessary pursuant to section 5103A(d)(2) under the " arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" standard of review. McLendon, 20 Vet.App. at 81 (citing 38 U.S.C. § 7261(a)(3)(A)). The Board stated in the decision on appeal that "there is no credible evidence that [the] pertinent disability had its onset in service or is otherwise associated with active duty" and thus determined that a medical opinion or examination was not warranted. R. at 8. As discussed above, the Board failed to acknowledge or discuss the medical treatise evidence that Mr. Bowers submitted to and highlighted before the Board. Without such discussion, there is no indication that the Board took "into consideration all information" in the record. 38 U.S.C. § 5103A(d)(2). In the Court's view, the Board's decision not to seek a medical opinion in connection with the medical treatise evidence submitted in this case was an abuse of discretion and not in accordance with the law. McLendon, 20 Vet.App. at 81; see also Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991) ("If the medical evidence of record is insufficient, or . . . of doubtful weight or credibility, the [Board] is always free to supplement the record by seeking an advisory opinion, ordering a medical examination[,] or citing recognized medical treatises in its decisions that clearly support its ultimate conclusions."). If not sufficient on its face to establish service connection, the medical treatise evidence, coupled with the November 2007 postoperative findings in this case, at least appears to meet McLendon's low threshold for seeking a medical opinion on the likelihood that Mr. Bowers's gallstones and residual complaints are related to service. See McLendon, supra. 8 TheSecretaryalsoasserts thattheBoard'sfailuretoaddressthemedicaltreatise evidencewas harmless because the Board addressed the substance of the medical treatise evidence when it considered Mr. Bowers's arguments that his gallstones must have formed while he was in service. Secretary's Br. at 12. This is not so. Although the Board acknowledged the theorythat the veteran's gallstones began to form during service, the Board said this contention was "without merit" because "[a]s a layperson, the [v]eteran is not competent generallyto render a probative opinion on a medical matter." R. at 12. Mr. Bowers, however, was not offering his own subjective opinion as to the growth rate of gallstones; he was repeating the data reported in professional medical treatises he submitted. Certainly, a layperson is competent to report information provided by a medical professional. Cf. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that a veteran is competent to repeat a medical diagnosis and report observable symptoms). In labeling the veteran's report of the growth rate of gallstones as incompetent lay opinion, the Board avoided addressing the substance of the medical treatise evidence Mr. Bowers submitted, just as the Board failed to address those treatises directly. Thus, the Board's failure to address the medical treatise evidence that was favorable to Mr. Bowers was not harmless. See Sanders and Caluza, both supra. As such, remand is warranted for the Board to address this evidence initially, or after seeking a medical opinion, if the Board determines that one is necessary. See Tucker v. West, 11 Vet.App. 369, 374 ( 1998) (holding that remand is the appropriate remedy"where the Board has incorrectlyapplied the law, failed to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate"). And while the Board, rather than this Court, must address the probative value of the medical treatise evidence Mr. Bowers provided, the Court cannotimagineunderwhat circumstances such evidence would not be relevant and supportive of his claim for service connection for cholecystitis. On remand, Mr. Bowers is free to submit additional evidence and argument on his claims. 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). 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). In accordance with 38 U.S.C. § 7112 , the Board must proceed expeditiously with this case on remand. B. Lay Statements Regarding In-Service Symptoms Although the Court need not address additional allegations of error once it has determined that a remand to the Board is warranted, the Court may address other issues to provide further guidance on remand. See Quirin v. Shinseki, 22 Vet.App. 390, 396 (2009). The Board found that Mr. Bowers's statements—that he suffered, both during and after service, indigestion and episodes ofupperabdominalpainradiatingtohis back—werenot credible. This credibilitydetermination had two bases. First, the Board found the absence of contemporaneous medical records suggesting a gallbladder disability probative. "The first evidence of pertinent disability is in January 2007, after discharge,"theBoardobserved,"with nomentionofahistoryofunreportedsymptoms priorto then." R. at 12. Second, the Board stated: "It is not conceivable that the [v] eteran had unreported symptoms of cholelithiasis in serviceand continuouslyfollowing active duty. When those symptoms were first reported in January 2007, the [v]eteran was in the emergency room due to their severity." Mr. Bowers challenges these credibility findings. Reply Br. at 2-6. Neither of the Board's observations is a permissible basis for rejecting Mr. Bowers's credibility. First, the absence of contemporaneous medical records "does not, in and of itself, render lay evidence not credible." Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Moreover, Mr. Bowers stated that he did not report upper abdominal pain—which he thought was indigestion—during service because he treated the problem with over-the- counter products and his symptoms were not that severe. See, e.g., R. at 205; see also R. at 35 ("I didn't have real[ly] bad symptoms until after my retirement."). The Board cannot find that the veteran lacks credibility simply because his SMRs do not document complaints or symptoms related to a gallbladder condition. See Buchanan, supra. Second, the Board apparently found it incredible that Mr. Bowers could experience mild or no symptoms during service, where the symptoms, when first reported in January 2007, were so severe that he sought emergency treatment. It is not clear why the Board was so dubious of the notion that gallstones could generate little or no symptoms in the beginning of their development but severe symptoms later on. The Board may not rely on its own unsubstantiated medical conclusions 10 but must rely on the medical evidence of record. See Colvin v. Derwinski, 1 Vet.App. 171, 172 (1991), overruled on other grounds by Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998); see also Kahana v. Shinseki, 24 Vet.App. 428, 434-35 (2011) (holding that the Board erred in "making a medical determination as to the relative severity, common symptomatology, and usual treatment of an . . . injury without citing to any independent medical evidence to corroborate its finding"). Mr. Bowers asserts that "gallstones are commonly asymptomatic for years." Reply Br. at 5. And as he did on the issue of gallstone growth rates, Mr. Bowers cited in his April 2008 NOD medical treatises that support this contention. R. at 136 (quoting a medical text that reads : "Their (gallstones) development is insidious, and they may remain asymptomatic for decades."). The Board also failed to acknowledge and discuss this medical evidence, which would appear to corroborate the veteran's laystatements regarding the course of his condition. But even if Mr. Bowers had not submitted such medical evidence, the Board would not have been permitted to supply its own medical opinion as to how gallstones develop or when they might begin producing noticeable symptoms. See Colvin, supra. The Secretarycontends that the Board permissiblydoubted Mr. Bowers's credibilitybecause his assertion that he experienced indigestion-like symptoms in service and treated them with over- the-counter products is inconsistent with medical history reports in which he denied frequent indigestion, gallbladder problems, or gallstones. Secretary's Br. at 9. The Secretary's contention, however, was not one of the bases the Board articulated for finding the veteran's assertions not credible. A post hoc rationalization is not a substitute for an adequate statement of reasons or bases. See Breniser v. Shinseki, 25 Vet.App. 64, 79 (2011) (noting that litigation 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" (internal quotation marks omitted)). Besides, Mr. Bowers's argument is that his gallstones began to form approximately 6 to 12 years before his November 2007 surgery, that is, between 1995 and 2001. All the reports the Secretary cites, dated from 1976 to 1992, predate this period. See R. at 867, 893, 915, 917. Thus, it is not immediately clear that Mr. Bowers's claims of unreported, in-service symptoms are even inconsistent with his SMRs. 11 Based on the nature of the medical evidence regarding gallstone growth rates, the Board may not need to evaluate the credibility of Mr. Bowers's lay statements regarding the course of his gallbladder condition. If, however, the Board does find it necessary to do so, it must refrain from discounting his credibility on erroneous bases such as those discussed above. III. CONCLUSION Upon consideration of the foregoing, that portion of the May 25, 2011, Board decision on appeal is SET ASIDE and REMANDED for readjudication consistent with this decision. DATED: December 11, 2012 Copies to: John M. Bowers VA General Counsel (027) 12

Single Judge Application, Murray v. Shinseki, 24 Vet.App. 420, 423(2011); Separate Disability Ratings for Separate and Distinct Symptoms

Excerpt from decision below: "In short, "[i]f the appellant's symptoms are 'distinct and separate,' then the appellant is entitled to separate disability ratings for the various conditions." Murray v. Shinseki, 24 Vet.App. 420, 423(2011) (quoting Esteban, 6 Vet.App. at 262). ============================ ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 11-3509 ROBIN L. KERNS, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before BARTLEY, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. BARTLEY,Judge: U.S. ArmyveteranRobinL.Kerns, whois self-represented, appeals from an August 15, 2011, Board of Veterans' Appeals (Board) decision that denied entitlement to service connection for (1) a right knee disorder; (2) memory loss and impaired concentration, to include as a chronic disabilityresultingfrom an undiagnosed illness; and (3) an adjustment disorder, to include as a chronic disability resulting from an undiagnosed illness.1 Record (R.) at 3-24. This appeal is timely and the Court has jurisdiction to review the Board 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 reasons that follow, the Court will vacate the portion of the August 2011 Board decision addressing Ms. Kerns's claim for service connection for memory loss and impaired concentration and will remand that claim for readjudication consistent with this decision. The Court The Board also remanded theissuesof entitlement to(1) serviceconnectionforshortnessofbreathandasthma, to include as a chronic disability resulting from an undiagnosed illness; ( 2) service connection for a menstrual disorder, to include as a chronic disability resulting from an undiagnosed illness; ( 3) an effective date prior to February 24, 2010, for a 40% evaluation for fibromyalgia; and (4) an effective date prior to March 7, 2007, for a total rating based on individual unemployability (TDIU). Because a remand is not a final decision of the Board subject to judicial review, the Court does not have jurisdiction to consider those issues at this time. See Howard v. Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000); Breeden v. Principi, 17 Vet.App. 475, 478 (2004); 38 C.F. R. § 20.1100(b). 1 will affirm the Board's decision as to her claims for service connection for right knee and adjustment disorders. I. FACTS Ms. Kerns served on active duty for training from June 1990 to October 1990 and on active duty from February 1991 to October 1991, including service in Southwest Asia in support of Operations Desert Shield and Desert Storm. R. at 4, 581. Following service, she was awarded service connection for a disabilitymanifesting in muscle, joint, and upper back pain with fatigue and a sleep disorder. R. at 1282-89. In August 2005, Ms. Kerns filed a claim for service connection for, inter alia, a right knee disorder, memoryloss and impaired concentration, and an adjustment disorder. R. at 991-1019. An October 2005 VA progress note indicates that Ms. Kerns had a diagnosis " most consistent with an Adjustment Disorder related to her medical conditions." R. at 981. Subsequent VA medical records also contain diagnoses of an adjustment disorder due to or related to physical pain. R. at 961, 963. However, a January 2006 VA medical examination concluded that Ms. Kerns " does not meet [the] diagnostic criteriaforanypsychiatricdiagnosis"andexplained thatherreportedsymptoms were"not the result of any psychiatric disorder" and "may be attributable to her medication" for treating her fibromyalgia with fatigue. R. at 717. The following month, a VA physician stated that Ms. Kerns's knee pain was "part of her fibromyalgia and chronic pain with possible superimposed arthritis." R. at 312. In the meantime, a VA regional office (RO) sent Ms. Kerns a letter notifying her of the evidence she needed to submit to substantiate her August 2005 claims for direct and secondary service connection. See R. at 943 (outlining the evidence needed "to support [a] claim for compensation based upon an additional disability that was caused or aggravated by a service- connected disability"), 944 (outlining the evidence needed "to support [a] claim for service connection"). In January 2007, the RO denied entitlement to service connection for a right knee disorder, memorylossandimpairedconcentration,andanadjustment disorderbecauseit foundthatMs. Kerns did not have a current knee or psychiatric disability that was compensable for VA purposes. R. at 2 652-59. She filed a timely Notice of Disagreement (NOD) with that decision and subsequently perfected her appeal to the Board. R. at 198-99, 604-09. In May 2007, Ms. Kerns underwent a VA medical examination, at which time she complained of muscle pain, joint pain and stiffness, difficulty sleeping, abdominal cramping, and irregular menses. R. at 224-25. The examiner opined that "[a]ll complaints except sleep apnea belong to a diagnosis of fibromyalgia." R. at 225. In June 2007, the RO issued a decision recharacterizing Ms. Kerns's service-connected disability manifesting in muscle, joint, and upper back pain with fatigue and a sleep disorder as fibromyalgia with fatigue. R. at 200-11. The RO also acknowledged that Ms. Kerns raised the issue of entitlement to TDIU and deferred a decision on that issue pendingthe receipt of a completed unemployabilityquestionnaire. R. at 204. Laterthat month, the RO issued a decision denying entitlement to TDIU. R. at 39.2 In October 2007, the RO denied a claim for an increased evaluation for fibromyalgia with fatigue. Id. It appears that Ms. Kerns timely appealed that denial, as well as the RO's previous denial of entitlement to TDIU, to the Board. Id. In October 2009, the Board issued a decision remanding the issues of entitlement to service connection for a right knee disorder, memory loss and impaired concentration, and an adjustment disorder; an increased evaluation for fibromyalgia with fatigue; and TDIU for further development. R. at 36-53. Pursuant to that remand order, Ms. Kerns underwent a VA psychiatric examination in February2010. R. at 446-52. Afterreviewingthe claims file, recording Ms. Kerns's complaints, and performing a mental status examination and other psychological tests, the examiner concluded that Ms. Kerns did "not meet the [Diagnostic and Statistical Manual of Mental Disorders (DSM-IV)] criteria for the diagnosis of an adjustment disorder or anyother psychiatric disorder." R. at 451. The examiner opined that Ms. Kerns reported "difficulty with her memory and concentration, which, by definition, is part of her already service-connected fibromyalgia." R. at 452. The examiner also The Court notes that the record of proceedings does not contain a copy of that decision and several other documents related to the development and adjudication of Ms. Kerns's entitlement to TDIU and an increased evaluation for fibromyalgia with fatigue. The Secretary also did not provide that information in his brief. Therefore, the procedural history for those issues is largely derived from the summary of those issues included in the October 2009 Board decision, cited above. 2 3 explained that there were "not any psychiatric symptoms . . . that are separate from [Ms. Kerns's] already service-connected and diagnosed fibromyalgia." R. at 452. It appearsthatMs. Kerns alsounderwentaVAjointsexamination in February2010, although that examination report is not contained in the record of proceedings. See R. at 385 (RO summary of the February 2010 VA joints examination). According to the RO, that examination revealed an increasein Ms. Kerns's fibromyalgiasymptoms, includingconstant, refractoryjoint painandfatigue. Id. Based on that examination, the RO issued a November 2010 Supplemental Statement of the Case(SSOC) increasingthedisabilityevaluation forfibromyalgiawithfatigueto40%,themaximum schedular evaluation for that disability, and awarding entitlement to TDIU. R. at 393-417. In February 2011, the RO issued a decision review officer decision implementing those awards. R. at 358-63, 382-90. The cover letter accompanying that decision instructed Ms. Kerns to submit a written NOD if she disagreed with that decision and to refer to the enclosed VA Form 4107, Your Rights to Appeal Our Decision, for more information on her right to appeal. R. at 362-63. In April 2011, Ms. Kerns filed an NOD, stating that she wished to appeal the effective dates assigned for the increased evaluation for fibromyalgia with fatigue and the award of TDIU. R. at 341-43. In August 2011, the Board issued the decision currentlyon appeal, which denied entitlement to service connection for a right knee disorder, memory loss and impaired concentration, and an adjustment disorderandremandedtheissues ofentitlementtoearliereffectivedatesforfibromyalgia with fatigue and TDIU. Record (R.) at 3-24. The Board determined that Ms. Kerns's claimed right knee pain and psychiatric problems were symptoms of her service-connected fibromyalgia with fatigue, such that separatelycompensating those symptoms would violate the regulatoryprohibition against pyramiding. R. at 11-19. The Board also stated that "[s]he did not argue [in her April 2011 NOD] that the 40[%] evaluation for fibromyalgia was inadequate" and "deem[ ed] that portion of her appeal to be satisfied." R. at 21. This appeal followed. 4 II. ANALYSIS A. Claims for Service Connection Currently on Appeal As an initial matter, Ms. Kerns argues that VA did not inform her of the information and evidence necessary to establish secondary service connection for her claimed right knee disorder, memory loss and impaired concentration, and adjustment disorder. Appellant's Brief (Br.) at 2. However, as the Secretarycorrectlynotes, the record contains a January2006 pre-adjudication letter from the RO that set forth the elements necessary to support a "claim for compensation based upon an additional disability that was caused or aggravated by a service- connected disability." R. at 943. Ms. Kerns has not explained how this notice was deficient or how she was otherwise prejudiced by it. See 38 U.S.C. § 7261(b)(2) (requiring the Court to "take due account of the rule of prejudicial error"); Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (explaining that " the burden of showing that an error is harmful normally falls upon the party attacking the agency's determination"). Therefore, her argument must fail. Ms. Kerns next argues that the Board failed to consider whether her right knee disorder, memory loss and impaired concentration, and adjustment disorder may be service connected secondary to her fibromyalgia with fatigue. See Appellant's Br. at 1-3. She also challenges the Board's finding that her claimed conditions are symptoms of her service- connected fibromyalgia, rather than separate disabilities related to it. See id. The Secretary disputes her contentions and asserts that the Board's findings are plausible based on the record and supported by an adequate statement of reasons or bases. See Secretary's Br. at 7-9. The Court will address these arguments separately with respect to each of Ms. Kerns's claimed disabilities. 1. Applicable Law "Except as otherwise provided in [the rating] schedule, the disabilities arising from a single disease entity . . . are to be rated separately as are all other disabling conditions, if any." 38 C.F.R. § 4.25(b) (2012). However, "[t]he evaluation of the same disability under various diagnoses," a practice called pyramiding, "is to be avoided." 38 C.F.R. § 4.14 (2012). The rationale for the prohibition on pyramiding is that "the rating schedule may not be employed as a vehicle for compensating a claimant twice (or more) for the same symptomatology; such a result would overcompensate the claimant for the actual impairment" suffered. Brady v. Brown, 4 Vet.App. 203, 5 206 (1993). When determining whether separate evaluations are warranted, "[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." Esteban v. Brown, 6 Vet.App. 259, 262 (1994). In short, "[i]f the appellant's symptoms are 'distinct and separate,' then the appellant is entitled to separate disability ratings for the various conditions." Murray v. Shinseki, 24 Vet.App. 420, 423 (2011) (quoting Esteban, 6 Vet.App. at 262). The Board's attribution of certain symptoms to certain disabilities is a finding of fact that the Court reviews under the "clearly erroneous" standard of review. 38U.S.C. §7261(a)(4);see Murray, 24 Vet.App. at 423. "A factual 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 conviction that a mistake has been committed.'" Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)). In rendering its decision, the Board is required to provide a written statement of reasons or bases for its "findings and conclusions[] on all material issues of fact and law presented on the record." 38 U.S.C. § 7104(d)(1). The statement must be adequate to enablea claimant to understand the precise basis for the Board's decision and to facilitate review in this Court. Gilbert v. Derwinski, 1 Vet.App. 49, 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). 2. Right Knee Disorder Contrary to Ms. Kerns's argument, the Board expressly addressed whether she was entitled to service connection for a right knee disorder secondaryto her service- connected fibromyalgia with fatigue, but determined that her right knee symptoms did not represent a separate disability from her fibromyalgia with fatigue. R. at 11-14. Specifically, the Board explained that "the majority of the Veteran's doctors have either found the knee to be normal, or like the December 2005/February2006 and February 2010 doctors[,] have specifically attributed this pain to her fibromyalgia[,] which is a disability for which service connection has already been established." R. at 13. 6 To the extent that any right knee symptoms are attributable to fibromyalgia, the Board correctlyconcluded that those symptoms are alreadyaccounted for and compensated byMs. Kerns's 40% evaluation for fibromyalgia with fatigue, which is based on, inter alia, "widespread musculoskeletal pain and tender points." 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5025 (2012). A note to that DC states that "widespread pain" includes "pain in both the left and right sides of the body, that is both above and below the waist, and that affects both the axial skeleton . . . and the extremities." Id. (emphasis added). Thus, as the Board found, separately compensating Ms. Kerns for right knee pain that has been attributed by her doctors to her service- connected fibromyalgia would constitute pyramiding because that pain is not distinct and separate from her fibromyalgia symptoms, for which she is already being compensated. See Brady and Esteban, both supra; 38 C.F.R. § 4.14. The Court, therefore, is not persuaded that the Board committed clear error in that regard. See Previous HitMurrayNext Document, 24 Vet.App. at 423. The Board also acknowledged that the record contains two diagnoses of right knee disorders separate from fibromyalgia–a March 1996 diagnosis of patellofemoral syndrome and a February 2010 diagnosis of minimal degenerative changes of the knee. R. at 13-14. The Board, however, found that they were not related to Ms. Kerns's service. R. at 14. The Board explained that Ms. Kerns's diagnosis of patellofemoral syndrome was made "more than four and a half years after discharge from service," "neither the examiner nor the Veteran attributed this syndrome to active service," "this diagnosis has not been repeated," and it "has not been made since service connection for fibromyalgia was established." R. at 13. The Board also stated that there was "no evidence of degenerative changes during service," the diagnosis of degenerative changes of the right knee "was made many years after the end of the one[-]year presumptive period" for service connection for arthritis, "every X-ray study dated prior to February 2010" was negative for arthritis, "[t]here is no medical opinion that relates the current degenerative changes to any injury or event in active service or to any service[-]connected disability," and "the Veteran herself does not relate the degenerative changes to any specific trauma in service." R. at 13-14. In light of the foregoing statements, and absent evidence of a relationship to service, the Court does not discern any clear error in the Board's finding that Ms. Kerns's diagnosed patellofemoral syndrome and degenerative changes of the right knee were not subject to service 7 connection. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (reiterating that a nexus between the claimed in-service disease or injury and the current disability is a necessary element of service connection); Russo v. Brown, 9 Vet.App. 46, 50 (1996) ( explaining that the Court reviews the Board's determination regarding entitlement to service connection under the "clearly erroneous" standard of review). 3. Adjustment Disorder The Board also determined that Ms. Kerns was not entitled to service connection for an adjustment disorder on a primary or secondary basis. R. at 17. Significantly, the Board found that a preponderance of the evidence was against a finding that Ms. Kerns had a current psychiatric disability separate from the psychiatric symptoms of her fibromyalgia with fatigue. R. at 17. In support of that finding, the Board pointed to various VA medical examinations that were all negative for a psychiatric disability. Id. The Board also acknowledged that the record contains clinical assessments and one diagnosis of an adjustment disorder, as well as notations of depression, but found that "each of the examiners who ha[s] noted an adjustment disorder [ or] depression . . . has also attributed this to the fibromyalgia, the chronic fatigue, or both." R. at 18. The Board then emphasized that "none of these examiners [has] opined that the Veteran has a psychiatric disability that is a separate entity from the fibromyalgia." Id. A review of the record confirms that finding, and Ms. Kerns's 40% evaluation takes into account various psychiatric symptoms, such that compensating her separately for those symptoms would constitute pyramiding. See 38 C.F.R. §§ 4.14 (prohibiting pyramiding), 4.71a, DC 5025 (listing fatigue, sleep disturbances, headaches, depression, and anxiety as symptoms of fibromyalgia). Thus, because Ms. Kerns's psychiatric symptoms have all been attributed to her service-connected fibromyalgia with fatigue, the Court concludes that the Board did not err in denying her secondary service connection for an adjustment disorder. See Brady and Esteban, both supra. Moreover, absent any separately diagnosed psychiatric disability, Ms. Kerns is not entitled to service connection for that claimed condition on a direct basis. See Brammer v. Derwinski, 3 Vet.App. 223, 225 (1992) ("Congress specifically limit[ed] entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof 8 of present disability there can be no valid claim." (citation omitted)); see also Shedden, 381 F.3d at 1166-67 (outlining the elements of service connection). Therefore, the Board also discerns no clear error in the Board's denial of her claim for entitlement to service connection for an adjustment disorder on a direct basis. See Russo, 9 Vet.App. at 50. 4. Memory Loss and Impaired Concentration a. Reasons or Bases For reasons that remain unclear, the Board combined its analysis of Ms. Kerns's claim for serviceconnection formemorylossandimpairedconcentrationwith herclaimforserviceconnection for an adjustment disorder. R. at 14-19. As explained above, the Board found that all of Ms. Kerns's reported psychiatric symptoms, which the Board stated included memory loss and concentration problems, were attributable to her service-connected fibromyalgia with fatigue. R. at 17-18. The Board then concluded that the 40% schedular evaluation for fibromyalgia with fatigue adequately compensated Ms. Kerns for her memory loss and impaired concentration, such that any additional compensation for those symptoms would constitute pyramiding in violation of § 4.14. R. at 18. Although the Board found that "the rating criteria for the Veteran's fibromyalgia with fatigue take into consideration the symptoms that have been identified," DC 5025 does not list neuropsychological symptoms, such as memory loss and impaired concentration, among its descriptive symptoms. Id.; see 38 C.F.R. § 4.71a, DC 5025. Moreover, contrary to the Board's finding, VA classifies memory loss as a neuropsychological symptom, not a psychiatric symptom. See Compensation for Certain Diagnosed Illnesses, 60 Fed. Reg. 6660, 6601 ( Feb. 3, 1995) (explaining that, "consistent with current VA rating procedures," "memory loss is included within the category 'neuropsychological signs or symptoms'"). Thus, absent any further explanation from the Board, it is unclear why the Board accepted the February2010 VA examiner's finding that Ms. Kerns's memory loss and impaired concentration were part of her fibromyalgia and how the Board arrived at its conclusion that she was being compensated for those symptoms under her schedular evaluation for fibromyalgia. See Gilbert, 1 Vet.App. at 57. The Court therefore concludes that the Board's statement of reasons or bases for theportion ofits decisionaddressingentitlementto serviceconnection formemorylossandimpaired concentration was inadequate. 9 b. Extraschedular Evaluation The Court further notes that, although Ms. Kerns is currently in receipt of the maximum schedularevaluationforherfibromyalgia, shemayneverthelessreceiveanextraschedularevaluation for a disability picture not captured by the schedular criteria. See Thun v. Peake, 22 Vet.App. 111, 115 (2008) (explaining that referral for extraschedular consideration is warranted when, inter alia, "the schedular evaluation does not contemplate the claimant's level of disability and symptomatology");38C.F.R.§3.321(b)(providingforextraschedularevaluation in "theexceptional case where the schedular evaluations are found to be inadequate"). The Board, however, did not analyze whether she was entitled to referral for extraschedular consideration. See id. ("When either a claimant or the evidence of record suggests that a schedular rating may be inadequate, the Board must specificallyadjudicatethe issue of whetherreferral for an extraschedularratingis warranted."). That deficiency rendered the Board's statement of reasons or bases for its decision on this claim inadequate. See 38 U.S.C. § 7104(a) (requiring the Board to consider and discuss in its decision all "applicable" provisions of law and regulation); Gilbert, 1 Vet.App. at 57. The Court therefore concludes that vacatur and remand are warranted. See Tucker v. West, 11 Vet.App. 369, 374 (1998) ("WheretheBoardhasincorrectlyappliedthelaw,failedto provide anadequatestatementofreasons or bases for its determinations, or where the record is otherwise inadequate, a remand is the appropriate remedy."). Ms. Kerns is free to submit additional argument and evidence as to her claim for memory loss and impaired concentration on remand in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Court reminds the Board that "[a] remand is meant to entail a critical examination of the justification for [the Board's] decision," Fletcher v. Derwinski, 1 Vet.App. 394, 397 ( 1991), and must be performed in an expeditious manner in accordance with 38 U.S.C. § 7112. B. Other Claims Not Currently on Appeal Ms. Kerns alsoasserts thatshe" didnotreceivenotificationregardingassignmentofdisability rating and effective dates [for fibromyalgia with fatigue] until after initial adjudication of the claim." Appellant's Br. at 3. It appears that she is arguing that the Board's determination that she did not 10 appeal the 40% evaluation assigned for that service-connected disabilitywas clearlyerroneous. The Court disagrees. The record reflects that the RO sent Ms. Kerns a letter in February 2011 informing her that she had been awarded a 40% evaluation for fibromyalgia with fatigue and providing her with instructions on how to appeal that determination, should she disagree with it. R. at 362-63. That letter also expressly referred to the enclosed VA Form 4107, which outlines the specific steps for disagreeing with a VA decision and perfecting an appeal to the Board. Id. It is unclear, however, why the Board sent Ms. Kerns a letter requesting that she file an NOD given that she had previously filed one with respect to the RO's October 2007 denial of her claim for an increased evaluation for fibromyalgia: that claim remained in appellate status even after the RO issued the November 2010 SSOC awarding her a 40% evaluation for that condition and the February 2011 decision review officer decision implementing that award. See AB v. Brown, 6 Vet.App. 35, 38 (1993) (holding that "once a claim is in 'appellate status' by virtue of a previously filed NOD, the claimant may not file an additional NOD which could confer jurisdiction on this Court as to that claim"). In other words, had the Board required Ms. Kerns to file a second NOD and Substantive Appeal to obtain appellate review of the award of the increased evaluation for fibromyalgia with fatigue, it would have committed error. See id. However, the Board did not do so here. Instead, the Board addressed Ms. Kerns's claim for an increased evaluation for fibromyalgia with fatigue and (1) remanded the issue of entitlement to an earlier effective date for the 40% evaluation for that condition; and (2) determined that her appeal of the schedular evaluation for fibromyalgiawassatisfiedbecauseshehadalreadybeenawardedthemaximum schedularevaluation available under the applicable DC. R. at 19. Because the Board was correct that DC 5025 does not provide for a schedular evaluation for fibromyalgia greater than 40%, the Court discerns no error in the Board's treatment of the schedular evaluation portion of her fibromyalgia claim. See AB, 6 Vet.App. at 38 ("[O]n a claim for an original or an increased rating, the claimant will generally be presumed to be seekingthe maximum benefit allowed bylaw and regulation, and it follows that such a claim remains in controversy where less than the maximum available benefit is awarded."). Ms. Kerns finally argues that VA has not yet issued an SSOC regarding the issues remanded by the Board. See Appellant's Br. at 3. Those issues, however, are not before the Court at this time 11 because a remand is not a final Board decision that the Court has jurisdiction to review. See Howard, 220 F.3d at 1344; Breeden, 17 Vet.App. at 478; 38 C.F.R. § 20. 1100(b). To the extent that Ms. Kerns believes that VA's delay in issuing an SSOC amounts to an arbitrary refusal to act, her proper recourse is to file with the Court a petition for extraordinary relief in the nature of a writ of mandamus to attempt to compel that action. See Costanza v. West, 12 Vet. App.133, 134 (1999) (per curiam order). III. CONCLUSION Upon consideration of the foregoing, the portion of the August 15, 2011, Board decision addressing Ms. Kerns's claim for service connection for memory loss and impaired concentration is VACATED and the claim is REMANDED for readjudication consistent with this decision. The portions of the Board decision addressing her claims for service connection for right knee and adjustment disorders are AFFIRMED. DATED: November 7, 2012 Copies to: Robin L. Kerns VA General Counsel (027) 12

Single Judge Application, Buczynski v. Shinseki, 24 Vet.App. 221, 224 (2011); Category Claimant's Symptoms

Excerpt from decision below: "The Court has long held that merely listing evidence before stating a conclusion does not constitute an adequate statement of 5 reasons and bases." Dennis v. Nicholson, 21 Vet.App. 18, 22 (2007) ( citing Abernathy v. Principi, 3 Vet.App. 461, 465 (1992)). Rather, the "Board must explain, in the context of the facts presented, the rating criteria used in determining the category into which a claimant's symptoms fall; it is not sufficient to simply state that a claimant's degree of impairment lies at a certain level without providing an adequate explanation." Buczynski v. Shinseki, 24 Vet.App. 221, 224 (2011). Nowhere in the Board's discussion does the Board explain – in the context of the appellant's numerous symptoms – why the appellant's overall impairment is not more than "moderately severe." R. at 13. ============================ ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 12-678 RONALD W. BENTZ, 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, Ronald W. Bentz, through counsel appeals a January 23, 2012, Board of Veterans' Appeals (Board) decision that denied an initial disability rating in excess of 20% for muscle atrophyand callosities of the left foot. Record of Proceedings (R.) at 3-14. 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). Both parties filed briefs, and the appellant filed a reply brief. Single-judgedispositionis appropriate.Frankelv.Derwinski,1Vet.App.23,25-26( 1990). Because the Board failed to provide an adequate statement of reasons or bases, the Court will vacate the January 23, 2012, decision and remand the matter for further proceedings consistent with this decision. I. BACKGROUND The appellant served on active duty in the U.S. Navy from September 1983 to September 1986. R. at 1073, 1221. The appellant's service medical records (SMRs) indicate that he sustained an injury to his left foot on May 1, 1984, when aircraft exhaust forced him to jump off the top of a plane where he had been working. R. at 274, 1204. SMRs dated May 3, 1984, and May 9, 1984, indicate that the appellant suffered from heel pain and that he was unable to stand for 15 minutes. R. at 404, 1205. In November 2007, the appellant submitted a claim for disability compensation for "left foot pain and arthritis, left hip, and back pain," which he attributed to the " aviation accident [that] occur[r]ed during [his] military service." R. at 461. That same month, a VA podiatrist diagnosed the appellant with a "bone/joint injury" to the left foot with "[ degenerative joint disease (DJD) secondary] to service related trauma." R. at 228-30. In June 2008, the appellant underwent a compensation and pension examination of his feet. R. at 207-13. The examiner did not review the claims file or the appellant's medical records, but noted the appellant's history of sustaining an injury to his feet in service as well as the following symptoms andfunctionalimpairment:Heelpain,heat,redness, stiffness, fatigability,weakness,lack of endurance, standing limited to 15 to 30 minutes, and the inability to walk more than a few yards. R. at 208-10. The examiner further noted that a physical examination of the left foot showed objective evidence of painful motion (dorsiflexion of ankle, pain in arch); mild tenderness of the medial, lateral, and plantar aspects of the heel; abnormal weight bearing evidenced by callosities; and muscle atrophy of the ball of the foot. R. at 210-11. There was no evidence of swelling, instability, weakness, or malunion or nonunion of the tarsal or metatarsal bones. Id. X-rays of the left foot showed arthritis of the talonavicular joint, but no arthritic changes to the heel. R. at 212-13. The examiner noted that the appellant's left foot disabilityhad " significant effects" on the appellant's occupation as a corrections officer, with "[d]ecreased mobility, [w] eakness or fatigue, [d]ecreased strength: lower extremity, pain," and "[i]ncreased absenteeism." R. at 212. In November 2008, the regional office (RO) granted entitlement to disability compensation for muscle atrophy and callosities of the left foot, and assigned a 20% disability rating, effective November 21, 2007. R. at 369-79. The appellant filed a Notice of Disagreement asserting that he was entitled to a 30% disability rating for his left foot because " orthopedic inserts have not helped the condition[,] but [instead] made it worse." R. at 344. The RO issued a Statement of the Case (R. at 316-33), and the appellant perfected an appeal to the Board (R. at 312- 13). In September 2009, the Board remanded the claim to schedule the appellant for a Board hearing. R. at 299-301. 2 A January2010 outpatient podiatrynote also reflects the appellant's complaint that orthotics were not helping his pain and that he suffered from left foot pain to the plantar fascia, whole arch area, and left lateral three metatarsal heads. R. at 196. In February 2010 he underwent magnetic resonance imaging (MRI) of his left foot, which showed: "Findings most consistent with small fibroma plantar aspect of the foot at the level [of] the first and fifth metatarsals"; a "[p]robable small cyst lateral and dorsal aspect ofthecuboidbone"; [f]luid at the first metatarsal-phalangeal joint"; and "[s]mall focus isointense to bone marrow on all pulse sequences dorsal aspect talonavicular joint likely due to previous trauma." R. at 122-25. On March 3, 2010, the appellant testified at a Board hearing that numerous doctors have linked his current foot and knee disabilities to the injuries he sustained during service. R. at 246-48. The appellant stated that he was entitled to a disability rating greater than 20% because he experienced a lot of pain, tenderness, and discomfort in his left foot, and orthotics did not help his condition. R. at 251. After the hearing, the Board remanded the appellant's claim to obtain outstanding recent treatment records and to schedule him for a VA podiatryexamination to ascertain the severity and manifestations of his muscle atrophy and callosities of the left foot. R. at 232-43. The appellant underwent a second VA compensation and pension examination on July 13, 2010. R. at 111-15. The appellant reported pain in the arch and the ball of his foot and stiffness, weakness, and lack of endurance in the arch while standing and walking. R. at 112. He also reported that the efficacy of orthotic inserts was "poor," and that he was unable to stand for more than a few minutes but could walk a quarter of a mile. R. at 112-13. A physical examination of the left foot showed painful motion, tenderness, muscle atrophyand antalgic gait. R. at 113. There was no evidence of swelling, instability, weakness, or abnormal weight bearing. Id. The examiner diagnosed: "Osteoarthritic changes at talonavicular joint left foot," with increased pain and "[f]at pad atrophy . . . causing pain under [the] plantar aspect of the left foot ." R. at 114. The examiner also noted that the appellant's condition had "[s]ignificant effects" on his general occupation with decreased mobility and pain. Id. In June 2011, the RO issued a Supplemental Statement of the Case that continued to deny a higher disability rating and the matter was returned to the Board. R. at 53-62. On January 23, 3 2012, the Board issued its decision here on appeal denying an initial disability rating in excess of 20% for muscle atrophy and callosities of the left foot. R. at 3-14. II. ANALYSIS On appeal, the parties disagree whether the Board provided an adequate statement of reasons or bases for its decision. The appellant argues that the Board ignored evidence indicating that his condition worsened and failed to adequately explain why he was not entitled to a higher disability rating under Diagnostic Code (DC) 5284. Appellant's Brief (Br.) at 7-11; Reply Br. 1-4; see 38 C.F.R. § 4.71a, DC 5284 (2012). The Secretary argues that the Board did not ignore evidence and its decision "reasonably conveys . . . the basis for the overall conclusion that the severity of [the appellant's] foot symptoms does not rise to the level contemplated by the 30[%] criteria under any of the DCs set out in the rating schedule for foot disabilities." Secretary's Br. at 5-10. The assignment of a disability rating is a factual finding that the Court reviews under the "clearly erroneous" standard of review. Johnston v. Brown, 10 Vet.App. 80, 84 (1997). A finding of 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 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). In rendering its decision the Board must provide a statement of the reasons or bases for its determination, 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); see 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). In the decision here on appeal, the Board initiallynoted that the appellant's left foot disability is rated by analogy under 38 C.F.R. § 4.71a, DC 5276 (2012) for acquired flatfoot. R. at 7. Under DC 5276, a 20% disabilityratingis assigned for "severe" unilateral flatfoot with "objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, 4 indication of swelling on use, characteristic callosities." 38 C.F.R. § 4.71a, DC 5276. A 30% disability rating is warranted for "pronounced" unilateral flatfoot with " marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances." Id. After providing a detailed recitation of the medical evidence (R. at 8-12) and a summary of the appellant's symptoms (R. at 12-13), the Board concluded that the evidence did not warrant a 30% disability rating under DC 5276 because there was no evidence of "marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo [a]chillis on manipulation." R. at 13. The Board then proceeded to consider whether the appellant was entitled to a higher disability rating under a different DC. Id. The Board found that a higher rating was not warranted under DCs 5278 and 5279, and the appellant does not dispute that finding. See 38 C.F.R. § 4.71a, DCs 5278 and 5279. As noted, the central dispute is whether the Board adequately explained why the appellant was not entitled to a higher disability rating under DC 5284. DC 5284 provides that "foot injuries, other" warrant a 20% disability rating if they are " moderately severe" or a 30% disability rating if they are "severe." 38 C.F.R. § 4.71a, DC 5284. In concluding that the appellant was not entitled to a 30% disability rating under DC 5284, the Board stated: "[F]or the reasons discussed above[,] the Board concludes that the overall impairment of the [ v]eteran's left foot is not more than moderately severe. Therefore, the disability would not warrant more than a 20[%] rating under [DC] 5284." R. at 13. The Court agrees with the appellant that the Board's statement of reasons or bases is inadequate. The Board referred to its "reasons discussed above." However, in analyzing whether the evidence demonstrated entitlement to a higher disabilityratingunder DC 5276, the Board merely listed those symptoms that were present and those that were not, noting that the June 2008 examination showed "mild" tenderness, and the July 2010 examination did not show "extreme tenderness." R. at 13. Thus, although the Secretary is correct that the Board did not ignore the evidence, the Board also did not engage in any analysis or explain its conclusion that the appellant's symptoms are "moderately severe" and not "severe." See R. at 12-13. "The Court has long held that merely listing evidence before stating a conclusion does not constitute an adequate statement of 5 reasons and bases." Dennis v. Nicholson, 21 Vet.App. 18, 22 (2007) ( citing Abernathy v. Principi, 3 Vet.App. 461, 465 (1992)). Rather, the "Board must explain, in the context of the facts presented, the rating criteria used in determining the category into which a claimant's symptoms fall; it is not sufficient to simply state that a claimant's degree of impairment lies at a certain level without providing an adequate explanation." Buczynski v. Shinseki, 24 Vet.App. 221, 224 (2011). Nowhere in the Board's discussion does the Board explain – in the context of the appellant's numerous symptoms – why the appellant's overall impairment is not more than "moderately severe." R. at 13. Moreover, as noted by the appellant, DC 5284 does not provide any guidance or list of symptoms that fall under the category of "moderately severe" or "severe." Reply Br. at 2. Without such guidance, it is especially important that the Board analyze the evidence and explain why the appellant's disability falls into either category. In this case, the only potential basis for the Board's conclusion that the appellant's symptomatology was not "severe" under DC 5284 seems to be that he did not meet the criteria for "pronounced" flatfoot under DC 5276. See R. at 13. However, DC 5276 does not account for all of the appellant's symptoms, such as left foot arthritis, fatigue, pain, and stiffness, none of which are alleviated by the use of orthotics; therefore, the Board's finding that the appellant does not satisfy the criteria under DC 5276 is not nearly sufficient for the Court to understand why his disability is not "severe" under DC 5284. See Reply Br. at 3; see also R. at 112-13, 196, 208-09, 251. Similarly, although DC 5276 requires evidence of "extreme tenderness on plantar surfaces of the feet," and the Board observed that there was evidence of "mild" tenderness in 2008 and no evidence of "extreme" tenderness in 2010, the Board did not explain whether "extreme" tenderness is required under DC 5284, which rates "[f]oot injuries, other" as "moderate," "moderately severe," and "severe." 38 C.RF.R. §4.71a, DC 5284; see R. at 12-13, 113 (noting objective evidence of tenderness upon palpation midfoot dorsum/plantar[,] pain mid plantar arch and submetatarsal 3 [and] 4"). The Board's failure to adequatelydiscuss the evidence frustrates judicial review. Accordingly, the Court will remand the matter to the Board to provide an adequate statement of reasons or bases for its decision. 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"). 6 In pursuing the matter on remand, the appellant is free to submit additional evidence and argument on the remanded matter, 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." 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 the Secretary's pleadings, and a review of the record, the Board's January 23, 2012, decision is VACATED and the matter is REMANDED to the Board for further proceedings consistent with this decision. DATED: November 30, 2012 Copies to: Robert V. Chisholm, Esq. VA General Counsel (027) 7

Single Judge Application, questionable wasting is Speculative Language; 38 C.F.R. 4.56 (2012); VA Clinician's Guide

Excerpt from decision below: "The rating schedule states that "[a]ccurate measurement . . . should be insisted on" and that "[m]uscle atrophy must also be accurately measured and reported." 38 C.F.R. § 4.46 (2012). As noted earlier, muscle wasting is the same as muscle atrophy, and the VA rating schedule lists "atrophy" as one of the objective findings used to rate the severity of a muscle injury and also notes that "the cardinal signs and symptoms of muscle disability [include] loss of power [and] weakness." 38 C.F.R. § 4.56 (2012). Furthermore, the VA Clinician's Guide is designed to provide guidance to clinicians performing compensation and pension (C&P) examinations, and because the July 2010 examination was a C&P examination, the guide's provisions have general applicability here. Camacho v. Nicholson, 21 Vet.App. 360, 364 (2007) ("The VA Clinician's Guide . . . is a guide to VA doctors providing generalized direction for the proper conduct of disability examinations."). The VA Clinician's Guide provides clinicians with guidance for testing muscle weakness. VA CLINICIAN'S GUIDE, s. 0.1, 11.7 (important elements of a disability examination for muscle disease or injury), 11.8 (standard muscle strength grading system). In this case, the Board relied on the opinion of the July 2010 VA examiner, who concluded that Mr. Dubose did not have a "current disorder of the chest wall which is related to 9 his time in the military." R. at 280. However, the examiner reported that Mr. Dubose suffered from "questionable slight muscle wasting inferior to the [service-connected] scar." R. at 279. After making that observation, she did not provide a conclusion as to whether the veteran has muscle wasting, and, if so, whether it is as likely as not that the wasting or atrophy is associated with Mr. Dubose's service-connected scar. R. at 279-80. The examiner did not indicate that she had compared the muscles on the left side of Mr. Dubose's chest, where she noted "questionable wasting" below his service-connected scar, with the same muscles on the right side. VA CLINICIAN'S GUIDE, s. 11.7(b)(2) ("When there is muscle atrophy, record the circumference of the atrophic muscle and the comparison muscle on the opposite side."). The Board, in assigning probative weight to this opinion and using it to support the denial of service connection, failed to explain its reliance on a medical examination report that included speculative language, as opposed to conclusive information, concerning the existence and etiology of any muscle wasting. In addition, the July 2010 VA examination report that the Board relied on to deny service connection found that there were no tests to assess whether weakness of the chest wall exists. R. at 279. However, given the existence of the above-cited VA rating schedule provisions and guidance to clinicians who perform C&P examinations, the Board erred in failing to explain why it relied on a medical examination that did not include appropriate testing and assessment of muscles of the chest wall. R. at 279; see 38 C.F.R. §§ 4.40, 4.46, 4.56 ( 2012); VA CLINICIAN'S GUIDE secs. 0.1, 11.7, 11.8. In short, the examiner did not explain her conclusion and the Board, likewise, in relying on the examination report to deny service connection, did not provide reasons or bases, given the existence of VA regulations and guidance on this topic, for accepting the doctor's unexplained conclusion that such testing is not available. Given the deficiencies in the examination report, the Board decision should have addressed the issues discussed above. However, the Board relied on the July 2010 medical opinion without discussing or resolving these inconsistencies and inadequacies. R. at 10. 10 Therefore, the Board failed to provide an adequate statement of the reasons or bases for its findings and conclusions, and this frustrates judicial review. See Allday and Gilbert, both supra." ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 11-2851 DAVID F. DUBOSE, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before BARTLEY, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. BARTLEY, Judge: The veteran, David F. Dubose, who is self-represented, appeals a July 25, 2011, Board of Veterans' Appeals (Board) decision that denied his claim for entitlement to service connection for a disability manifested by pain and weakness of the left side of the chest, to include as secondary to service-connected residuals from a left ribcage stab wound. Record (R.) at 3-11. The Board also determined that the record reasonably raised a claim for an increase in the disability evaluation for Mr. Dubose's service-connected residual scar from a left ribcage stab wound. R. at 4. The Board referred that claim to the agency of original jurisdiction for appropriate action and, therefore, that claim is not before the Court because it was not the subject of a final Board decision. See Breeden v. Principi, 17 Vet.App. 478 (2004). Single- judgedisposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). This appeal is timely and the Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). For the reasons that follow, the Court will vacate the July 25, 2011, Board decision and remand the matter for further proceedings consistent with this decision. I. FACTS Mr. Dubose served on active duty in the U.S. Army from November 1975 to November 1978. R. at 444. In July 1976, he sustained and was treated for a superficial stab wound to the left side of the chest. R. 371, 378. Swelling and tenderness to palpation were noted at that time, associated with a localized bacterial infection. R. at 388-89. In October 1978, Mr. Dubose's separation examination indicated that his lungs, chest, and heart were each normal. R. at 369-70. In December 2001, Mr. Dubose filed a claim for VA disability benefits based on service connection for residuals of the left ribcage stab wound that he received while on active duty. R. at 240-47. In February 2002, he told his VA physician that he had been suffering from intermittent pain in his left side for a year. R. at 155-56. Upon examination, the physician noted a "tender area localized [on the] left flank where [the] stab wound scar [ is located]." R. at 158. The physician observed that the tissue there was slightly different from that of the right side, "most likely due to scar tissue formation." R. at 158. In April 2002, the VA regional office (RO) sent a VCAA notice letter to Mr. Dubose. R. at 233-36. In November 2002, the RO issued a deferred rating decision and determined that a line of duty determination was necessary. R. at 221. In December 2002, the RO rendered an administrative decision that Mr. Dubose's stab wound was incurred in the line of duty and was not the result of misconduct. R. at 218-19. Subsequently, in December 2002, a VA examiner reported: [The veteran] states that he was stabbed in 1976 in Germany. He was hospitalized for approximately two weeks. He had problems with superficial infections and the scar was aspirated weekly for approximately six to eight weeks. He does not complain of any difficulties with breathing and denies tenderness to palpation of his left axíllary scar. R. 214-15. The assessment was traumatic scar with evidence of subcuticular neuroma1 from a stab Previous DocumentinjuryNext Hit. R. at 214. A neuroma is "a tumor growing from a nerve or made up largely of nerve cells and nerve fibers." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1266 (32d ed. 2011) [hereinafter " DORLAND'S"]. 2 1 In January 2003, the RO granted service connection for the scar as " residuals of a left ribcage stab wound" and assigned a disability evaluation of 10%, effective December 31, 2001. R. at 208-13. Almost three years later, in December 2005, Mr. Dubose requested an increased evaluation for his service-connected scar and stated he was experiencing " shortness of breath, weakness on left side, [and] pain." R. at 108. On January 13, 2006, Mr. Dubose underwent a VA scar examination. R. at 95- 96. The examiner noted that the service-connected scar was .15 centimeters at its maximum width and 1 centimeter at its maximum length, with no tenderness on palpitation; no inflammation; no elevation; no edema; no skin ulceration or breakdown over the scar; no keloid formation; no adherence to underlying tissue; and no depression of the scar. R. at 96. The examiner further noted that the scar was of normal texture with no inflexibility; was normal in color; had no underlying tissue loss; caused no disfigurement of the head, face, or neck; and did not limit motion or cause loss of function. R. at 96. On January 27, 2006, the RO issued a rating decision proposing to decrease the disability evaluation for Mr. Dubose's service-connected scar, "because the evidence fails to show a superficial scar that is painful on examination." R. at 89, 96 (scar does not demonstrate tenderness on palpitation). The RO also denied service connection for shortness of breath and for weakness and pain of the left side, both based on a lack of treatment and diagnosis. R. at 88. The following month, Mr. Dubose submitted a document that he labeled " Notice of Disagreement" (NOD), expressing his objection to all three aspects of the January 2006 rating decision and noting: "I am currently tak[ing] medication for pain due to the service[-]connected left rib cage stab wound." R. at 85. The RO responded with a letter that explained to Mr. Dubose that it could not accept his submission as an NOD to the proposed rating reduction because it was only a proposed action. R. at 82. Also in February 2006, a VA progress note indicated that Mr. Dubose complained of pain in his lower chest, that he related this pain to the stab wound he received during his military service. R. at 75-77. The physician reported that Mr. Dubose was "taking lortab for this from somewhere[, but] otherwise, no concerns." R. at 75-77. In March 2006, Mr. Dubose requested that a decision review officer (DRO) review his claims, de novo. R. at 74. After this review, the DRO issued a Statement of the Case that continued to deny the claims for service connection for shortness of breath and for weakness and pain of the left side. R. at 54-72. Mr. Dubose promptly submitted a VA Form 9, stating that he was appealing (1) the proposed reduction for residuals of a left ribcage stab wound, (2) denial of service connection for shortness of breath, and (3) denial of service connection for pain and weakness of the left side, the latter two claims to include as secondary to service-connected residual scar from left ribcage stab wound. R. at 51-52. Two months later, in a VA rating decision dated May 5, 2006, the RO reduced Mr. Dubose's disability evaluation for his service-connected scar from 10% to 0%. R. at 43. The RO explained that the decision was based on the January 2006 medical examination, which found that "[t]he scar was not tender to palpation" and on the fact that, despite Mr. Dubose's statement that he took pain medication for the scar, his "treatment reports revealed no treatment for your scar." R. at 43. The May 10, 2006, letter that accompanies the rating decision informed Mr. Dubose what to do if he disagreed with the decision. R. at 40. The record of proceedings does not reflect that Mr. Dubose submitted an NOD or any other document objecting to the actual reduction, nor did he appeal this decision. Also in May 2006, Mr. Dubose's claims for service connection for shortness of breath and for weakness and pain of the left side were certified to the Board. R. at 35-38. Four years later, in April 2010, the Board denied service-connected disability benefits for shortness of breath on the basis that no respiratory disorder was shown in service or currently. R. at 21-32. The Board also remanded Mr. Dubose's claim for disability benefits for pain and weakness on the left side so that VA could obtain a medical opinion on the issue of whether Mr. Dubose suffered from a current disability manifested by these complaints and, if so, whether there was a relationship to his military service. R. at 21-32. In July 2010, a VA examiner reviewed Mr. Dubose's claims folder and noted: " no treatment noted or diagnosis of weakness or pain related to the stab wound noted in the service medical record," and "[n]o respiratory issues," and concluded by determining that the "separation examination was basically normal." R. at 279. The examiner recorded Mr. Dubose's reported history and symptoms: 4 [The veteran] was stabbed with a type of slim jim in the left side of his chest. His lungs were not punctured. He did have consequences of cellulitis2 and potential abscess formation afterwards. There was no respiratory issue at the time. He denied problems prior to military service. He has pain occasionally in the left inferior lower aspect of his chest. There is no swelling, locking, or instability. He did not have surgery, but from [w]hat he described he did have I&Ds performed. The laceration was sutured, but he did require hospitalization for his cellulitis and/or abscesses. R. at 279. The examiner then performed a physical examination and noted: Examination of approximately T10 on the left in the mid-axillary area reveals a scar which is 0.8 x 0.1 cm. There is questionable slight muscle wasting3 inferior to the scar noted. The scar itself displays hyperalgesia [increased sensitivity to pain],4 but there is no erythema [redness],5 induration [hardness],6 or keloid formation [elevation].7 It does appear neurovascularly intact. There [are] no respiratory difficulties associated with [the] scar. There is no use of accessory respiratory muscles. Lungs are clear in all fields. The assessment of weakness of the anterior or maxillary chest wall is difficult to determine. There are no specific tests which can test for this, however, it did not appear ther[e] was weakness noted. There was no anatomic deformity noted from this superficial stab wound to the left mid-axillary area. Id. The VA examiner then opined that "[i]t is less likely than not that the [v] eteran has a current disorder of the chest wall which is related to his time in the military [because] there is no clear or chronic disability from his superficial stab wound which occurred 35 years ago and at the time was associated with cellulitis and/or abscess formation." R. at 280. On July 25, 2011, the Board issued the decision on appeal. R. at 2-14. Initially, the Board noted that Mr. Dubose's recent VA examination "suggest[ed] that the . . . stab wound scar was tender to palpation." R. at 4. The Board concluded that, because Mr. Dubose's scar was 2 3 Cellulitis is usually caused by infection of a wound by bacteria. DORLAND'S at 325 (32d ed. 2011). DORLAND'S at 978. 4 DORLAND'S at 886. 5 DORLAND'S at 643. 6 DORLAND'S at 933. 7 DORLAND'S at 978. 5 currently evaluated as noncompensable, a claim for an increased evaluation of the veteran's service-connected scar disability had been raised by the record but not adjudicated by the agency of original jurisdiction (AOJ). R. at 4. Therefore, the Board referred the claim for an increased evaluation for the veteran's service-connected noncompensable scar to the AOJ for "appropriate action." R. at 4. The Board reviewed Mr. Dubose's history and the treatment records for his service- connected scar. R. at 8. It discussed the July 2010 VA examination for evaluation of any current weakness and pain in the left chest and noted Mr. Dubose's statements at that examination. R. at 9. The Board relied on the examiner's diagnosis that the "stab wound . . . was resolved except for subjective tenderness to palpation on examination" and on his conclusion that "it is less likely than not that the Veteran had a current disorder of the chest wall which is related to his time in the military [because] there is no clear or chronic disability from his superficial stab wound which occurred 35 years ago and at the time was associated with cellulitis and/or abscess formation." R. at 10. It concluded: "After reviewing the evidence of record, the Board finds that other than the Veteran's already service-connected scar, the record fails to establish that a currently diagnosed condition manifested by pain and weakness of the left side of the chest exists." R. at 10. The Board discussed its duty to assist a veteran in the development of a claim, noted that VA had obtained relevant records and provided Mr. Dubose with VA examinations, and concluded that "the VCAA provisions have been considered and complied with." R. at 6. Accordingly, the Board denied that claim. R. at 12. This appeal followed. II. ANALYSIS A. Reduction of Disability Evaluation for Service-Connected Scar Mr. Dubose states that he has only one issue before the Court, which he identifies as "evaluation of residual from left rib cage stab wound, which is currently evaluated [at] 10 percent disabling, is dec[r]eased to 0 percent effective 08/01/2006." Appellant's Brief (Br.) at 1. He argues that the Court should "restore my 10 percent for my Service Connected Residuals of Left Rib Stab wound [sic]." Appellant's Br. at 2. The Secretary argues that the issue of a higher evaluation for Mr. Dubose's service-connected scar and the May 2006 reduction from 10% to a noncompensable evaluation are not before the Court. Secretary's Br. at 14. The Court agrees with the Secretary. The Court's jurisdiction is over final Board 6 decisions. See 38 U.S.C. § 7252; Jarrell v. Nicholson, 20 Vet.App. 326, 330-32 (2006) (en banc). In this case, the Board decision on appeal concluded that the record raised an unadjudicated claim for an increased disability evaluation for Mr. Dubose's service-connected scar, and referred that claim to the AOJ for "appropriate action." R. at 4. Because the claim has been referred to the AOJ, it is not before the Court. See Jarrell, supra. The Board decision also denied Mr. Dubose's claim for disability benefits based on service connection for pain and weakness of the left side of the chest, to include as secondary to service- connected residuals from a left ribcage stab wound. R. at 3-11. The denial of that claim is the sole issue before the Court. Regarding the prior reduction of Mr. Dubose's disability evaluation, VA may not reduce a veteran's disability evaluation unless it follows certain detailed procedures that are designed to provide the veteran with advance notice of a proposed reduction and an opportunity to contest the reduction and to submit evidence "to show that compensation payments should be continued at their present level." 38 C.F.R. § 3.105(e) (2012); see Majeed v. Principi, 16 Vet.App. 421, 433-34 (2002); see also Hargrove v. Shinseki, 629 F.3d 1377, 1379-81 (Fed. Cir. 2012) (J. Newman, dissenting) (although majority held that the U.S. Court of Appeals for Veterans Claims correctly dismissed petition because veteran had not exhausted his administrative remedies, VA nonetheless erred by failing to notify veteran that NOD could not be accepted because it was responding to proposed, rather than actual, reduction decision). In this case, Mr. Dubose submitted several documents to VA between January and March 2006, objecting to the January 2006 proposed reduction of his disability evaluation. R. at 85 (February 15, 2006, objection to proposed reduction), 74 (March 9, 2006, request for DRO review of proposed reduction), 51-52 (March 23, 2006, VA Form 9 includes proposed reduction in list of items being appealed to Board). Unlike the veteran in Hargrove, who was not informed that VA could not accept an NOD to a proposed reduction, Mr. Dubose objected to the proposed reduction, prompting VA to send him a letter 10 days later, explaining that VA could not accept an NOD as to a proposed reduction and that an NOD "can only be filed on final actions." R. at 7 82; see R at 82-84. After he received notice of VA's May 5, 2006, reduction decision, Mr. Dubose did not submit an NOD or any other document objecting to this decision. Accordingly, the reduction decision became final and the Court concludes that the Board did not err or fail to provide an adequate statement of reasons or bases when it did not address the May 2006 decision that reduced his disability evaluation to noncompensable. See Jarrell, supra. B. Service Connection for Pain and Weakness on the Left Side of the Chest The Board decision on appeal denied Mr. Dubose's claim for entitlement to service connection for a disability manifested by pain and weakness of the left side of the chest, to include as secondary to service-connected residuals of a left ribcage stab wound. R. at 3-11. The Secretary asserts that the Court should affirm the decision because the Board correctly determined that Mr. Dubose does not have a current disability manifested by pain and weakness on the left side of the chest and because the decision "has a plausible basis in the record and is not clearly erroneous." Secretary's Br. at 5. As part of the duty to assist, the Secretary must, in appropriate cases, provide a claimant with a thorough and contemporaneous medical examination and opinion. 38 U. S.C. § 5103A; see Green v. Derwinski, 1 Vet.App. 121, 124 (1991). A medical report may be inadequate when it is speculative, such as when its conclusions include equivocal language such as "could" or "might," without any other rationale or supporting data. See Hood v. Shinseki, 23 Vet.App. 295, 298-99 (2009); Polovick v. Shinseki, 23 Vet.App. 48, 54 (2009) (doctor's statement that veteran's brain tumor "may well be" connected to Agent Orange exposure was speculative); Bloom v. West, 12 Vet.App. 185, 187 (1999) (use of term "could," without other rationale or supporting data, is speculative); Goss v. Brown, 9 Vet.App. 109, 114 (1996) (use of the phrase " could not rule out" was too speculative to establish medical nexus); Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992) (medical opinions are speculative and of little or no probative value when physician makes equivocal findings such as "the veteran's death may or may not have been averted"). In addition, the Board is required to include in its decision a written statement of the reasons or bases for its findings and conclusions on all material issues of fact and law presented 8 on the record. 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995). That 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. 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). The VA rating schedule provides diagnostic codes (DCs) that are used to evaluate muscle Previous HitinjuryNext Hit. See 38 C.F.R. § 4.73 (2012). These DCs include criteria for evaluating muscles located in the midaxillary region, which is the location of the veteran's service-connected scar (R. at 279). See DCs 5301, 5302. The rating schedule states that "[a]ccurate measurement . . . should be insisted on" and that "[m]uscle atrophy must also be accurately measured and reported." 38 C.F.R. § 4.46 (2012). As noted earlier, muscle wasting is the same as muscle atrophy, and the VA rating schedule lists "atrophy" as one of the objective findings used to rate the severity of a muscle injury and also notes that "the cardinal signs and symptoms of muscle disability [include] loss of power [and] weakness." 38 C.F.R. § 4.56 (2012). Furthermore, the VA Clinician's Guide is designed to provide guidance to clinicians performing compensation and pension (C&P) examinations, and because the July 2010 examination was a C&P examination, the guide's provisions have general applicability here. Camacho v. Nicholson, 21 Vet.App. 360, 364 (2007) ("The VA Clinician's Guide . . . is a guide to VA doctors providing generalized direction for the proper conduct of disability examinations."). The VA Clinician's Guide provides clinicians with guidance for testing muscle weakness. VA CLINICIAN'S GUIDE, s. 0.1, 11.7 (important elements of a disability examination for muscle disease or injury), 11.8 (standard muscle strength grading system). In this case, the Board relied on the opinion of the July 2010 VA examiner, who concluded that Mr. Dubose did not have a "current disorder of the chest wall which is related to 9 his time in the military." R. at 280. However, the examiner reported that Mr. Dubose suffered from "questionable slight muscle wasting inferior to the [service-connected] scar." R. at 279. After making that observation, she did not provide a conclusion as to whether the veteran has muscle wasting, and, if so, whether it is as likely as not that the wasting or atrophy is associated with Mr. Dubose's service-connected scar. R. at 279-80. The examiner did not indicate that she had compared the muscles on the left side of Mr. Dubose's chest, where she noted "questionable wasting" below his service-connected scar, with the same muscles on the right side. VA CLINICIAN'S GUIDE, s. 11.7(b)(2) ("When there is muscle atrophy, record the circumference of the atrophic muscle and the comparison muscle on the opposite side."). The Board, in assigning probative weight to this opinion and using it to support the denial of service connection, failed to explain its reliance on a medical examination report that included speculative language, as opposed to conclusive information, concerning the existence and etiology of any muscle wasting. In addition, the July 2010 VA examination report that the Board relied on to deny service connection found that there were no tests to assess whether weakness of the chest wall exists. R. at 279. However, given the existence of the above-cited VA rating schedule provisions and guidance to clinicians who perform C&P examinations, the Board erred in failing to explain why it relied on a medical examination that did not include appropriate testing and assessment of muscles of the chest wall. R. at 279; see 38 C.F.R. §§ 4.40, 4.46, 4.56 ( 2012); VA CLINICIAN'S GUIDE secs. 0.1, 11.7, 11.8. In short, the examiner did not explain her conclusion and the Board, likewise, in relying on the examination report to deny service connection, did not provide reasons or bases, given the existence of VA regulations and guidance on this topic, for accepting the doctor's unexplained conclusion that such testing is not available. Given the deficiencies in the examination report, the Board decision should have addressed the issues discussed above. However, the Board relied on the July 2010 medical opinion without discussing or resolving these inconsistencies and inadequacies. R. at 10. 10 Therefore, the Board failed to provide an adequate statement of the reasons or bases for its findings and conclusions, and this frustrates judicial review. See Allday and Gilbert, both supra. Accordingly, the Court will remand the matter so that VA may provide Mr. Dubose with an adequate medical examination or explain why it is not necessary to do so, and provide an adequate analysis of the July 2010 examination report. On remand, Mr. Dubose 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 briefs and a review of the record, the Board's July 25, 2011, decision is VACATED and the matter is REMANDED to the Board for further proceedings consistent with this decision. DATED: October 31, 2012 Copies to: David F. Dubose VA General Counsel (027) 11