Single Judge Application, Kahana, 24 Vet.App. at 435, Board Inference of Medical Determination Must be Cited

Excerpt from decision below; "However, this Court finds "the only permissible view of the evidence" is that the daughter's statement is a credible report supporting continuity of headaches dating back to service and rebutting the assertion that the veteran's complaints are a recent fabrication. Gutierrez v. Principi, 19 Vet.App. 1, 10 (2004) (citing Johnson v. Brown, 9 Vet.App. 7, 10 (1996)); see FED. R. EVID. 801(d)(1), supra. Furthermore, since the March 2010 remand, this Court has clarified the circumstances under which the Board can properly draw an inference based on the absence of evidence. In Kahana v. Shinseki, 24 Vet.App. 428 (2011), it was noted that "when a Board inference results in a medical determination, the basis for that inference must be independent and it must be cited." Kahana, 24 Vet.App. at 435; see also id. at 438 (Lance, J., concurring) (discussing the distinction between cases in which there is a complete absence of any evidence to corroborate or contradict the testimony and cases in which there is evidence that is relevant either because it speaks directly to the issue or allows the Board as factfinder to draw a reasonable inference). In this case, the Board inferred that, because the appellant did not have documentation of seeking medical treatment for his headaches until decades after service, his lay testimony regarding a continuity of symptomatology was not credible. However, without independent medical confirmation that the appellant's headaches are the type for which treatment would likely have been sought, the Board's inference was improper." ============================================== Skip navigation U.S. Court of Appeals for Veterans Claims View | Download | Details Previous document | Next document . 10-2827 PadillaF_10-2827.pdf Search Terms: KAHANA Author: lzobrist CreationDate: 01/17/2012 13:22:26 Creator: PScript5.dll Version 5.2.2 ModDate: 01/27/2012 15:45:53 Producer: Acrobat Distiller 9.4.6 (Windows) Title: C:\Users\lzobrist\Desktop\Yohan\Padilla 10-2827 MemDec Reverse.wpd X_XMPTK: Adobe XMP Core 4.2.1-c043 52.372728, 2009/01/18-15:08:04 X_XMPMETA_XMP_CREATORTOOL: PScript5.dll Version 5.2.2 X_XMPMETA_XMP_MODIFYDATE: 01/27/2012 15:45:53 X_XMPMETA_XMP_CREATEDATE: 01/17/2012 13:22:26 X_XMPMETA_XMP_METADATADATE: 01/27/2012 15:45:53 X_XMPMETA_DC_FORMAT: application/pdf X_XMPMETA_DC_TITLE: C:\Users\lzobrist\Desktop\Yohan\Padilla 10-2827 MemDec Reverse.wpd X_XMPMETA_DC_CREATOR: lzobrist X_XMPMETA_PDF_PRODUCER: Acrobat Distiller 9.4.6 (Windows) X_XMPMETA_XMPMM_DOCUMENTID: uuid:77eb4523-8d0e-4156-9bf9-80a95c13ceb0 X_XMPMETA_XMPMM_INSTANCEID: uuid:b9859de6-62e6-44d5-a7b7-1337870e77ca ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 10-2827 FUNDADOR PADILLA, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before LANCE, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. LANCE, Judge: The appellant, Fundador Padilla, through counsel, appeals an August 23, 2010, Board of Veterans' Appeals (Board) decision that denied his claim for entitlement to service connection for residuals of a head injury. Record (R.) at 3-20. Single- judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). This appeal is timely and the Court has jurisdiction over the case pursuant to 38 U.S.C. §§ 7252(a) and 7266. For the reasons that follow, the Court will reverse the Board's August 23, 2010, decision and remand for VA to assign a disability rating and effective date. I. FACTS The appellant served in the U.S. Army from February 1952 to September 1957. R. at 708. In December 1994, the appellant filed a claim for entitlement to service connection for headaches as a result of a head injury suffered during basic training. R. at 681-84. The appellant has described the incident as a fall during basic training in which he hit the back of his head but did not report the injury because he believed he would be thrown out of the service if injured. R. at 479-99, 570, 647, 681. He states that he has had headaches regularly since that incident. He also reported seeking treatment for these headache while stationed in Germany and Japan, but his service medical records (SMRs) are presumed destroyed in the 1973 National Personnel Records Center (NPRC) fire and are unavailable. R. at 479-99, 647, 661, 682. II. ANALYSIS This claim has been the subject of a lengthy adjudicative process, including three joint motions for remand (December 2000, April 2006, and February 2008) and a remand from this Court in March 2010. R. at 120-24, 277-84, 462-65; Padilla v. Shinseki, No. 08- 2785, 2010 WL 1252145 (March 20, 2010) (table). The March 2010 remand was issued for the Board to consider the lay statement submitted by the appellant's daughter. Padilla, 2010 WL 1252145 at *2. The Board, in the decision on appeal, considered the daughter's lay statement but determined it did "not provide a continuity of symptomatology." R. at 20. The Board found the daughter's statements not probative because: (1) the daughter was born several years after the incident occurred, possibly during the appellant's active duty service, and is therefore relying on hearsay evidence from her mother that an in-service incident occurred; (2) the appellant's daughter is not competent to diagnose the etiology of the appellant's headaches; (3) the statement recalled events from 40 years' prior and was therefore of questionable accuracy; and (4) the daughter may be biased by familial relationship. R. at 19-20. The Board's analysis is faulty. First, it is an exception to the hearsay rule that the prior consistent statements of the declarant may be admitted to rebut an inference of fabrication. FED. R. EVID. 801(d)(1). In this case, the Board found the appellant not credible because, inter alia, nearly 40 years passed before he sought medical treatment. R. at 18. The Court concludes that this hearsay evidence meets the exception and rebuts the Board's determination that the appellant's symptoms were a recent development. R. at 10. Second, the daughter's statement was not provided to confirm etiology, but rather to provide evidence supporting a continuity of symptomatology, and she is competent to report whether her father suffered from headaches, as the Board acknowledges. Id., Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay persons are generally competent to provide evidence on observable symptoms). Third, as the appellant's daughter was reporting a continuity of symptomatology, observed over the last 40 years and continuing to the present, she was not attempting to recall the specific details of a single incident that occurred 40 years ago. Thus, the Court is not persuaded that the 2 length of time the appellant's symptoms were observed is as subject to " the frailty of human memories" as the Board suggests. R. at 19. Fourth, while the Board may consider bias in assessing lay statements, Caluza v. Brown, 7 Vet.App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table), the Board may not find lay statements incredible merely because they are provided by family members, as this would render all familial lay statements per se not credible, an absurd result. Because the Board did not find the daughter's lay statement probative, it determined that the appellant's own lay statement was still not probative. R. at 20. However, this Court finds "the only permissible view of the evidence" is that the daughter's statement is a credible report supporting a continuity of headaches dating back to service and rebutting the assertion that the veteran's complaints are a recent fabrication. Gutierrez v. Principi, 19 Vet.App. 1, 10 (2004) (citing Johnson v. Brown, 9 Vet.App. 7, 10 (1996)); see FED. R. EVID. 801(d)(1), supra. Furthermore, since the March 2010 remand, this Court has clarified the circumstances under which the Board can properly draw an inference based on the absence of evidence. In Kahana v. Shinseki, 24 Vet.App. 428 (2011), it was noted that "when a Board inference results in a medical determination, the basis for that inference must be independent and it must be cited." Kahana, 24 Vet.App. at 435; see also id. at 438 (Lance, J., concurring) (discussing the distinction between cases in which there is a complete absence of any evidence to corroborate or contradict the testimony and cases in which there is evidence that is relevant either because it speaks directly to the issue or allows the Board as factfinder to draw a reasonable inference). In this case, the Board inferred that, because the appellant did not have documentation of seeking medical treatment for his headaches until decades after service, his lay testimony regarding a continuity of symptomatology was not credible. However, without independent medical confirmation that the appellant's headaches are the type for which treatment would likely have been sought, the Board's inference was improper. The Court concludes that when the daughter's lay testimony is combined with the appellant's, the preponderance of evidence is in the appellant's favor that an in-service injury occurred and that it is connected to service through a theory of continuity of symptomatology. Because the Board found the appellant's testimony incredible, it discounted as not probative any medical examinations supporting a nexus to service. R. at 10-11. However, as the Court 3 concludes that the daughter's and the appellant's lay statements are credible, this objection is no longer valid. There is a medical opinion of record from May 2006 linking the appellant's headaches to his in-service trauma. R. at 18. Of the three remaining medical examinations of record, one found the appellant's headaches were not related to trauma, but did not consider the claims file or provide a rationale, and the other two were inconclusive on the relationship between the appellant's headaches and his in-service incident, in part because the in-service incident had not been established as fact. R. at 133, 571, 651. The Court concludes that, in the absence of any other definitive medical opinions to the contrary, the 2006 medical opinion is probative. Therefore, the evidence is at least in equipoise as to the appellant's claim for entitlement to service connection for residuals of a head injury, and the Court will reverse the Board's August 23, 2010, decision and remand for VA to assign a disability rating and effective date. III. CONCLUSION After consideration of the appellant's and the Secretary's briefs, and a review of the record, the Board's August 23, 2010, decision is REVERSED and the matter is REMANDED to the Board for further proceedings consistent with this decision DATED: January 17, 2012 Copies to: Judy J. Donegan, Esq. VA General Counsel (027) 4

Federal Circuit, 38 C.F.R § 3.304(f) Amendments, Decided: January 20, 2012, Private Practitioner Reports

Excerpt from decision below: "To the extent Petitioners contend that the VA must consider private practitioner’s reports in all circumstances, Congress has directly addressed that issue here and concluded only that the VA “may” accept such reports. Also, the new rule does not require a VA confirma- 11 NATIONAL ORG OF VETERANS ADV v. VA tion of a medical examination by a private practitioner. As such, the rule is not in direct conflict with § 5125. ====================================================== "The statute is clear that the Secretary shall consider all medical evidence and give the benefit of the doubt to the claimant when there is an approximate balance of evidence. What is not expressed is what that consideration entails or what weight any given piece of evidence is to carry. Those questions were left to the Secretary to determine under 38 U.S.C. § 501(a). The new rule is an exercise of that authority, and it is not in conflict with § 5107(b). The new rule, moreover, does not actually pit one set of evidence against another. Rather, it provides several options for establishing service connection under either a VA examination or a private physician examination. ========================= United States Court of Appeals for the Federal Circuit __________________________ NATIONAL ORGANIZATION OF VETERANS’ ADVOCATES, INC., Petitioner, v. SECRETARY OF VETERANS AFFAIRS, Respondent. __________________________ PARALYZED VETERANS OF AMERICA, Petitioner, v. SECRETARY OF VETERANS AFFAIRS, Respondent. __________________________ VETERANS OF MODERN WARFARE AND NATIONAL VETERANS LEGAL SERVICES PROGRAM, Petitioners, v. SECRETARY OF VETERANS AFFAIRS, Respondent. __________________________ WOUNDED WARRIOR PROJECT AND VIETNAM VETERANS OF AMERICA, Petitioners, NATIONAL ORG OF VETERANS ADV v. VA 2 v. SECRETARY OF VETERANS AFFAIRS, Respondent. __________________________ 2010-7136, -7139, -7142, 2011-7041 __________________________ On petition for review pursuant to 38 U.S.C. Section 502. ______________________________ Decided: January 20, 2012 ______________________________ DAVID H. TENNANT, Nixon Peabody, LLP, of Rochester, New York, argued for petitioner. On the brief were RICHARD P. COHEN, National Organization of Veterans’ Advocates, Inc., of Washington, DC; and DOUGLAS J. ROSINSKI, Pillsbury Winthrop Shaw Pittman, LLP, of San Francisco, California. MICHAEL P. HORAN, Deputy General Counsel, Paralyzed Veterans of America, of Washington, DC, argued for petitioner. With him on the brief were WILLIAM S. MAILANDER, General Counsel, and JENNIFER A. ZAJAC, Assistant General Counsel. BARTON F. STICHMAN, National Veterans Legal Services Program, of Washington, DC, argued for the petitioners. Of counsel on the brief were STEPHEN B. KINNAIRD and SEAN D. UNGER, Paul Hastings Janofsky & Walker, LLP, of Washington, DC. 3 NATIONAL ORG OF VETERANS ADV v. VA SCOTT D. AUSTIN, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued respondent. With him on the brief were TONY WEST, Assistant Attor-ney General, JEANNE E. DAVIDSON, Director, and MARTIN F. HOCKEY, JR., Assistant Director. Of counsel on the brief were MICHAEL J. TIMINSKI, Deputy Assistant Gen-eral Counsel, and MARTIE ADELMAN, Attorney, of United States Department of Veterans Affairs, of Washington, DC. MICHAEL WISHNIE, Veterans Legal Services Clinic, of New Haven, Connecticut, for amici curiae. With him on the brief was JEFFREY SELBIN. __________________________ Before NEWMAN, O’MALLEY, and REYNA, Circuit Judges. REYNA, Circuit Judge. The National Organization of Veterans Advocates, Paralyzed Veterans of America, Veterans of Modern Warfare and National Veterans Legal Services (collec-tively “Petitioners”) challenge a rule issued by the Secretary of Veterans Affairs (“Secretary”) amending 38 C.F.R § 3.304(f) with respect to claims for service-connected disability benefits for posttraumatic stress disorder (“PTSD”). Petitioners contend that the new rule is con-trary to existing statutes and arbitrary and capricious in nature. We conclude that the new rule is a permissible application of the statute by the Secretary and not in violation of any law or rule. We therefore deny the petition. I The rule at issue here concerns PTSD. The Diagnostic and Statistical Manual of Mental Disorders, Fourth NATIONAL ORG OF VETERANS ADV v. VA 4 Edition (“DSM-IV”), classifies PTSD as an anxiety disor-der. A person may develop PTSD after exposure to a stress inducing event, such as threatened death or serious injury. Persons suffering from PTSD reexperience the traumatic event in several ways, including nightmares, flashbacks, and physiological or psychological reactions to stimuli reminiscent of the damaging experience. As a result, those suffering from PTSD may remove themselves from the world and those around them in an effort to avoid that which could trigger a response. Tragically, an estimated ten to thirty percent of United States Armed Services personnel will develop PTSD within a year of leaving combat. See Nat’l Council on Disability, Invisible Wounds: Serving Service Members and Veterans with PTSD and TBI 2-3 (Mar. 4, 2009), available at http://www.ncd.gov/publications/2009/March042009 (“Invisible Wounds”). The United States has deployed over 1.6 million troops in the recent wars in Iraq and Afghanistan. Id. at 8. Those conflicts have been characterized by guerilla warfare tactics and the inherent uncertainty that comes with it. Moreover, many troops have served multiple tours of duty with little respite in between. It is no sur-prise that these conditions are particularly likely to lead to increased incidences of PTSD. See id. at 21-23. The troops who return home and develop PTSD are often faced with more than reliving the horrors of war. Veterans with PTSD suffer from more chronic conditions and have shorter life spans than veterans without PTSD. PTSD has also been linked to higher divorce rates and joblessness. Id. at 18. Against this backdrop, the Secretary amended the Department of Veterans Affairs (“VA”) regulations to address the serious problem of troops returning home with PTSD. 5 NATIONAL ORG OF VETERANS ADV v. VA II Like other injuries, veterans who suffer from service-connected PTSD are eligible for benefits. The Secretary has the authority to issue regulations which establish the requirements for veterans to qualify for service-connected PTSD injuries. 38 U.S.C. § 501(a). Specific rules govern the diagnosis of PTSD and the evidence required to con-nect a diagnosis to military service. Generally, a finding of PTSD service-connection requires three components: “medical evidence diagnosing the condition in accordance with § 4.125(a) of this chapter; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred.” 38 C.F.R. § 3.304(f). The VA proposed a rule on August 24, 2009, creating an additional situation where a veteran could establish PTSD service-connection without supporting evidence regarding the claimed in-service stressor. Stressor De-terminations for Posttraumatic Stress Disorder, 74 Fed. Reg. 42,617 (Aug. 24, 2009). That rule, codified at 38 C.F.R. § 3.304(f)(3), is at issue here: If a stressor claimed by a veteran is related to the veteran’s fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of posttraumatic stress disorder and that the veteran’s symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed NATIONAL ORG OF VETERANS ADV v. VA 6 in-service stressor. For purposes of this paragraph, “fear of hostile military or terrorist activity” means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or seri-ous injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran’s re-sponse to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. The new rule has three features relevant to this challenge: one, it allows a veteran to establish PTSD without supporting evidence; two, the lower evidentiary standard only applies if a VA psychologist or psychiatrist, or one who has contracted with the VA, confirms the claimed-stressor supports the diagnosis; and three, it defines the veteran’s “fear of hostile military or terrorist activity” as involving a response characterized by “a psychological or psycho-physiological state of fear, helplessness, or horror.” Id. As explained by the Secretary at oral argument, the rule does not require a VA practitioner to confirm the diagnosis of PTSD. Rather, a VA practitioner is only required to confirm that the claimed-stressor supports the diagnosis. The VA explained that the rule was “intended to ac-knowledge the inherently stressful nature” of serving where “hostile military or terrorist activities [are] ongoing.” 74 Fed. Reg. at 42,617. The goal was “to facilitate the timely VA processing of PTSD claims by simplifying the development and research procedures that apply to 7 NATIONAL ORG OF VETERANS ADV v. VA these claims.” Id. Pursuant to procedure, the VA invited responses to the proposed rule and received 126 comments, including critiques, from various organizations, including Petitioners here. The VA responded to the comments but left the rule as proposed. 75 Fed. Reg. 39,843 (July 13, 2010). The majority of comments were aimed at the rule’s distinction between private psychologists and psychiatrists and those employed or associated with the VA. The comments suggested that the new rule should extend to all qualified practitioners. The VA declined to extend the rule beyond VA practitioners, explaining that PTSD diagnoses are “particularly complex.” Id. at 39,847. This complexity was only increased as the new rule added an extra wrinkle—the examiner would now also make the “forensic” determination that the claimed-stressor as described by the veteran was sufficient to support a PTSD diagnosis. See id. VA practitioners, the VA contended, were particularly able to make this forensic determination for several reasons: First, VA practitioners are given specific instruction on how to conduct PTSD examinations, including guidance materials and a certification process. Id. Second, the VA reviews the quality of its practitioners’ examinations, including taking steps to address identifiable problems with feedback and training. Id. Third, the VA provides VA associated practitioners with the veterans’ claims folders in connection with all mental-disorder examinations, including PTSD examinations. Id. The practitioners are in turn instructed that a PTSD diagnosis cannot occur without a review of the folder. In contrast, private practitioners do not have direct access to a veteran’s claims folder. Id. at 39,847-48. Fourth, the VA noted that limiting the rule to VA associated practitioners would “ensure standardization and consistency.” Id. at NATIONAL ORG OF VETERANS ADV v. VA 8 39,848. The consistency would be a product of both the large number of PTSD examinations performed by VA practitioners and the review of those examinations by the VA. Because the VA does not control the quality of private practitioners’ examinations, it could not ensure, manage, or develop the same level of quality and consistency. For these reasons, the VA opted to leave the rule as proposed. Id. Petitioners subsequently filed a timely petition to review the final rule. This court has jurisdiction to review the validity of the final rule under 38 U.S.C. § 502. The review is conducted in accordance with 5 U.S.C. § 706 of the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701 et seq. III We examine the regulation here under the framework provided in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). First, we must determine “whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter . . . .” Id. at 842. Second, if “Congress has not directly addressed the precise question at issue,” we must determine if the Secretary’s regulation is “based on a permissible construction of the statute.” Id. at 843. The agency’s regulation will stand unless it is “arbitrary or capricious in substance, or manifestly contrary to the statute.” United States v. Mead Corp., 533 U.S. 218, 227 (2001). IV On appeal, Petitioners assert that the new VA rule: (1) conflicts with statutes and regulations that require the VA to consider all medical evidence on a case-by-case basis, including evidence from private physicians, and 9 NATIONAL ORG OF VETERANS ADV v. VA that require the VA to give the veteran the benefit of the doubt when considering all evidence in the record; (2) improperly includes language that is not required in the DSM-IV; and (3) should be set aside as arbitrary and capricious on grounds that none of the VA’s proffered explanations provides a rational basis for excluding private doctors’ opinions. We address each argument in turn. A. The VA Rule The Secretary issued the rule pursuant to 38 U.S.C. § 501(a). That statute provides the Secretary with the ability to prescribe all “necessary” and “appropriate” rules to carry out the laws administered by the VA, including “regulations with respect to the nature and extent of proof and evidence and the method of taking and furnishing them in order to establish the right to benefits under such laws . . . .” 38 U.S.C. § 501(a)(1). Congress’s delegation of authority here was broad. Nonetheless, Petitioners contend that the regulation is in conflict with several statutes and is therefore contrary to law. We disagree and find that Congress has not spoken on the precise issue addressed by the new rule. First, Petitioners contend that the regulation is contrary to 38 U.S.C. § 1154(a). Section 1154(a) requires that the Secretary’s regulations concerning veterans’ benefits claims give “due consideration” to “the places, types, and circumstances of such veteran’s service” including “all pertinent medical and lay evidence.” 38 U.S.C. § 1154(a). Petitioners contend that because the regulation allows for a PTSD service connection to be established based on a VA practitioner’s conclusion without corroborating evidence but not a private practitioner’s, the rule does not give “due consideration” to all medical evidence. NATIONAL ORG OF VETERANS ADV v. VA 10 Petitioners’ argument reads too much into the phrase “due consideration.” Rather than directly addressing what “due consideration” entailed, Congress left that task to the Secretary. See id.; 38 U.S.C. § 501(a)(1). Under the regulation, a private practitioner’s examination will be considered along with a VA practitioner’s assuming there is also corroborating evidence of the claimed stressor. The new rule, however, provides a relaxed evidentiary stan-dard only where a VA practitioner concludes that the claimed-stressor occurred. Because the phrase “due consideration” is unambiguous and private examinations are considered in the normal course of a PTSD determination, the new rule cannot be said to directly conflict with § 1154(a). Second, Petitioners contend that the regulation is contrary to 38 U.S.C. § 5125, which provides that: For purposes of establishing any claim for benefits under chapter 11 or 15 of this title, a report of a medical examination administered by a private physician that is provided by a claimant in support of a claim for benefits under that chapter may be accepted without a requirement for confirmation by an examination by a physician employed by the Veterans Health Administration if the report is sufficiently complete to be adequate for the purpose of adjudicating such claim. The key word in the statute is “may.” The VA “may” accept a private physician’s report, but it does not have to. See id. To the extent Petitioners contend that the VA must consider private practitioner’s reports in all circumstances, Congress has directly addressed that issue here and concluded only that the VA “may” accept such reports. Also, the new rule does not require a VA confirma- 11 NATIONAL ORG OF VETERANS ADV v. VA tion of a medical examination by a private practitioner. As such, the rule is not in direct conflict with § 5125. Third, Petitioners contend that the new rule is contrary to 38 U.S.C. § 5107(b), which provides that: The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the deter-mination of a matter, the Secretary shall give the benefit of the doubt to the claimant. The statute is clear that the Secretary shall consider all medical evidence and give the benefit of the doubt to the claimant when there is an approximate balance of evidence. What is not expressed is what that consideration entails or what weight any given piece of evidence is to carry. Those questions were left to the Secretary to determine under 38 U.S.C. § 501(a). The new rule is an exercise of that authority, and it is not in conflict with § 5107(b). The new rule, moreover, does not actually pit one set of evidence against another. Rather, it provides several options for establishing service connection under either a VA examination or a private physician examination. Petitioners also contend that the new rule is contrary to 38 C.F.R. § 4.125(a), which provides standards used in DSM-IV. Specifically, the regulation states that “[i]f the diagnosis of a mental disorder does not conform to DSM-IV or is not supported by the findings on the examination report, the rating agency shall return the report to the examiner to substantiate the diagnosis.” Id. NATIONAL ORG OF VETERANS ADV v. VA 12 Under DSM-IV, PTSD may be diagnosed where an individual “witnessed” or “experienced” a serious physical threat to themselves or others and the person’s response is characterized by “intense fear, helplessness, or horror.” DSM-IV at 427-28. This is labeled criterion A. Id. at 427. In addition, the person will display symptoms of “persistent reexperiencing of the traumatic event.” Id. at 424. Those symptoms include, among others, “psychological distress” and “physiological reactivity,” and are listed under criterion B. Id. at 428. A diagnosis of PTSD requires that the individual meet the requirements of criteria A and B, as well as other requirements under criteria C, D, E, and F. Id. at 427-29. The new rule applies where, among other things, PTSD is alleged as the result of “fear of hostile military or terrorist activity.” 38 C.F.R. § 3.304(f)(3). That phrase is defined as involving a response characterized by “a psychological or psycho-physiological state of fear, helplessness, or horror.” Id. Petitioners raise two problems with the formulation in the new rule. First, Petitioners contend that that the terms “psychological” and “physiological” are not contemplated under criterion A in DSM-IV and that therefore the rule must fail. The regulation, though, merely merges the elements of criterion A with those of criterion B, where the terms do appear. Compare DSM-IV at 428 (“B. The traumatic event is persistently reexperienced in one (or more) of the following ways: . . . (4) intense psychological distress at exposure to internal or external cues . . . . (5) physiological reactivity on exposure to internal or exter-nal cues . . . .”) with 38 C.F.R. § 3.304(f)(3) (“a psychologi-cal or psycho-physiological state of fear, helplessness, or horror.”). That drafting choice does not render the new rule invalid. 13 NATIONAL ORG OF VETERANS ADV v. VA Second, Petitioners contend that even if the complained-of phrase is viewed as incorporating the elements of criterion B, the regulation improperly restricts the range of acceptable symptoms under criterion B. This argument fails as well because the regulation does not necessarily have to be read as restricting the available symptoms of criterion B. In fact, the Secretary stated as much in the final notice. 75 Fed. Reg. at 39,846 (“Because the requirement that a claimed stressor relate to a veteran’s fear of hostile military or terrorist activity has no effect on the diagnostic criteria for PTSD, the requirement does not narrow the DSM-IV definition of PTSD.”). Even if the regulation were limiting, it would not be in conflict with 38 C.F.R. § 4.125(a). That regulation requires a diagnosis to conform to DSM-IV. A diagnosis of PTSD under the narrower reading of the new rule will necessarily conform to the broad requirements of DSM-IV. Therefore, there is no conflict. In summary, we have considered petitioners arguments and find that no existing statute or regulation specifically addresses the issue raised in the new rule so as to create a conflict or contradiction. B. The VA Rule Has a Rational Basis Because Congress has not spoken directly to the issue raised in the rule, we must determine whether the regulation is otherwise permissible. Chevron, 467 U.S. at 843. Additionally, under the APA this court must set aside a regulation if we find it to be “arbitrary” or “capricious.” 5 U.S.C. § 706(2)(A). Although courts sometimes analyze a regulation under both the second step of Chevron and the APA independently, the issues raised will often overlap. See Shays v. Fed. Election Comm’n, 414 F.3d 76, 96-97 (D.C. Cir. 2005); Animal Legal Def. Fund, Inc. v. Glick-man, 204 F.3d 229, 234 (D.C. Cir. 2000). Where, as here, NATIONAL ORG OF VETERANS ADV v. VA 14 a regulation will equally stand or fall under either review, a single analysis is appropriate. A regulation is not arbitrary or capricious if there is a “rational connection between the facts found and the choice made.” Motor Vehicle Mfrs. Ass’n. of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). This is a deferential standard of review. Regardless of our views, we must uphold the regulation if there is a rational basis for it on the record. Balt. Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 105 (1983) (“It is not our task to determine what decision we, as Commissioners, would have reached. Our only task is to determine whether the Commission has considered the relevant factors and articulated a rational connection between the facts and the choice made.”). At the heart of the Petitioners disagreement with the new rule is the distinction between private practitioners and VA associated practitioners. The VA provided reasons for this distinction during the rulemaking, as de-scribed above. Petitioners contend that these justifications ring hollow and that no reasonable rationale exists for the rule. First, Petitioners contend that there is no reasonable basis for the VA’s premise that VA practitioners are better trained than private practitioners. If quality assurance is the problem, Petitioners contend, the VA should instead focus on whether a given practitioner is qualified on an individual basis. Additionally, Petitioners question why the special guidance materials used by the VA cannot also be made available to all practitioners. Second, Petitioners question why, if reviews of examinations are deemed helpful, the VA cannot also review private practitioners’ examinations. Petitioners also 15 NATIONAL ORG OF VETERANS ADV v. VA question the vagueness of the VA’s claimed review process. Third, Petitioners argue that the Secretary cannot rely on the VA’s access to the claims folder as a rational basis for distinguishing between private and VA practitioners. Petitioners note that there are other sources of relevant information concerning the veteran for practitioners to use in examinations. Petitioners point out that the private practitioner also has access to the claims folder through the veteran, who may request his own folder. Fourth, Petitioners disagree with the VA’s view that the distinction between private and VA practitioners is warranted due to allegedly increased consistency. Petitioners note that VA practitioner performance of many more PTSD examinations is a double-edged sword. Rather than resulting in greater quality, the increased number of examinations may, in fact, result in hastier, less thorough examinations. Petitioners argue that the VA simply cannot categorically distinguish between VA and private practitioners. This belief amounts only to a disagreement with the administrative rulemaking process generally. It is well accepted that administrative agencies may resolve generally applicable factual questions through rulemaking. See Am. Hosp. Ass’n v. N.L.R.B., 499 U.S. 606, 612 (1991) (noting that agencies may “rely on rulemaking to resolve certain issues of general applicability unless Congress clearly expresses an intent to withhold that authority”); see generally R. Pierce, Administrative Law Treatise §§ 7.5, 10.5 (5th ed. 2010). That the underlying logic for the rule “may not always be true” is not enough to render the rule invalid. See Barnhart v. Thomas, 540 U.S. 20, 29 (2003). As the Supreme Court has noted: “To generalize NATIONAL ORG OF VETERANS ADV v. VA 16 is to be imprecise. Virtually every legal (or other) rule has imperfect applications in particular circumstances.” Id. (emphasis in original). To be sure, Petitioners have ably demonstrated areas of weakness in the VA’s logic, in particular where the object of the rule is to provide better services to veterans with PTSD. Indeed, some of the VA’s logic, such as the belief that a large number of examinations will increase quality, could lead to the opposite conclusion. Additionally, Petitioners have proposed alternative methods that the VA could use to ensure that the examinations it receives are of sufficient quality, such as by reviewing the private practitioner’s examinations. Perhaps with the development of data or with more experience on the operation and effect of the new rule, for instance, on quality of care and the incidents of veteran’s seeking care, the VA could be convinced that these suggestions would ultimately best serve veterans. But “[w]hether or not we, if writing on a pristine page, would have reached the same set of conclusions is not the issue.” Assoc’d Fisheries of Me., Inc. v. Daley, 127 F.3d 104, 111 (1st Cir. 1997). The question presented here is whether there is a logical basis for the new rule, and we determine that such a basis exists. This court’s review of the Secretary’s rules is deferential, and a “reasoned” analysis is not necessarily an “unassailable” one. Ass’n of Pub. Safety Commc’ns Officials Int’l, Inc. v. Fed. Commc’n Comm’n, 76 F.3d 395, 400 (D.C. Cir. 1996). We cannot say that the VA’s rationale is without a logical basis, or is otherwise arbitrary and capricious. Based on the foregoing, we find that the new VA rule is a permissible application of statute and is not in violation of law. We also find that Petitioners’ remaining NATIONAL ORG OF VETERANS ADV v. VA 17 arguments are without merit. The petition is therefore DENIED.

Single Judge Application, Competence Determination Before Probability, Kahana v. Shinseki, 34 Vet.App. 428, 435 (2011)

Excerpt from decision below: "The Board stated that the lay statements, "made many years after service, are outweighed by the more contemporaneous service treatment records showing no signs of a right shoulder condition, normal clinical evaluations of the upper extremities, and the Veteran's denial of having any shoulder problems." R. at 10. However, the Board did not make any specific findings as to the competence or credibility of the lay statements, which is required before determining which evidence is most probative. Kahana v. Shinseki, 34 Vet.App. 428, 435 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (stating that lay persons are generally competent to provide evidence on observable symptoms); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006)(noting that "the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). ========================================= Skip navigation U.S. Court of Appeals for Veterans Claims View | Download | Details Previous document | Next document . 10-3169 ClaytonL_10-3169.pdf Search Terms: KAHANA Author: lzobrist CreationDate: 01/12/2012 09:59:29 Creator: PScript5.dll Version 5.2.2 ModDate: 01/17/2012 15:07:13 Producer: Acrobat Distiller 9.4.6 (Windows) Title: C:\Users\lzobrist\Desktop\Yohan\Clayton 10-3169 MemDec Remand.wpd X_XMPTK: Adobe XMP Core 4.2.1-c043 52.372728, 2009/01/18-15:08:04 X_XMPMETA_XMP_CREATORTOOL: PScript5.dll Version 5.2.2 X_XMPMETA_XMP_MODIFYDATE: 01/17/2012 15:07:13 X_XMPMETA_XMP_CREATEDATE: 01/12/2012 09:59:29 X_XMPMETA_XMP_METADATADATE: 01/17/2012 15:07:13 X_XMPMETA_DC_FORMAT: application/pdf X_XMPMETA_DC_TITLE: C:\Users\lzobrist\Desktop\Yohan\Clayton 10-3169 MemDec Remand.wpd X_XMPMETA_DC_CREATOR: lzobrist X_XMPMETA_PDF_PRODUCER: Acrobat Distiller 9.4.6 (Windows) X_XMPMETA_XMPMM_DOCUMENTID: uuid:c966eb6b-4d6e-4bdd-82d1-a5a11e131c95 X_XMPMETA_XMPMM_INSTANCEID: uuid:cdaacb3b-b9ab-43af-b88d-195bd8ffeb46 ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 10-3169 LLOYD CLAYTON, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before LANCE, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. LANCE, Judge: The appellant, Lloyd Clayton, through counsel, appeals an August 27, 2010, Board of Veterans' Appeals (Board) decision that denied his claim for entitlement to service connection for a right shoulder condition. Record (R.) at 3-11. The appellant does not present any argument concerning the denial of his request for a total disability rating based on individual unemployability. Accordingly, that request is deemed abandoned. See Ford v. Gober, 10 Vet.App. 531, 535 (1997). Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). This appeal is timely and the Court has jurisdiction over the case pursuant to 38 U.S.C. §§ 7252(a) and 7266. For the reasons that follow, the Court will vacate the August 27, 2010, decision and remand the matter for further proceedings consistent with this decision. I. FACTS The appellant served in the U.S. Army from July 1959 to July 1961, with prior service in the U.S. Army Reserves. R. at 472, 1101-20. His service medical records (SMRs) do not reflect a shoulder injury, and in his separation examination he denied ever having a " painful or 'trick' shoulder." R. at 1089 (capitalization omitted); see generally 1088-1149 ( in-service medical examinations). However, at medical appointments in February 1997 and July 1998 the appellant sought treatment for a painful right shoulder and told the treating physicians that he injured his right shoulder while in the military. R. at 103, 124. In October 1999, the appellant filed a claim for entitlement to service connection for a right shoulder condition. R. at 1068-71. In personal statements to VA, provided during the development of his claim, the appellant stated that he hurt his shoulder in the service while playing football; that the shoulder has continued to bother him since the initial injury such that he has lost jobs due to limitations of movement resulting from his injury; and that he did not previously submit a claim because he did not know that he was eligible to receive benefits for this type of injury. See, e.g., R. at 22, 534-58, 569-72, 677-84. The appellant also submitted statements from his wife and brother supporting his assertion that he had trouble with his right shoulder dating back to service. R. at 702- 03. After further development, which did not include a VA medical opinion, the Board ultimately denied the appellant's claim for service connection for a right shoulder disability. This appeal followed. II. ANALYSIS The appellant argues that the Board's reasons or bases are flawed because the Board failed to conduct a proper competency and credibility analysis of the appellant's lay statements and those submitted by his family members and that, absent a determination that the lay statements of record were not credible or not competent, there is evidence of record that his right shoulder disability may be related to service such that the low threshold of McLendon is met and a medical nexus opinion is required. Appellant's Brief (Br.) at 3-4; see 38 U.S.C. § 5013A(d)(2); McLendon v. Nicholson, 20 Vet.App. 79, 81-86 (2006); 38 C.F.R. § 3.159(c)(4) (2011). The Court agrees. 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. 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 56- 57 (1990). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 2 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Gabrielson v. Brown, 7 Vet.App. 36, 39-40 (1994); Gilbert, supra. The Board stated that the lay statements, "made many years after service, are outweighed by the more contemporaneous service treatment records showing no signs of a right shoulder condition, normal clinical evaluations of the upper extremities, and the Veteran's denial of having any shoulder problems." R. at 10. However, the Board did not make any specific findings as to the competence or credibility of the lay statements, which is required before determining which evidence is most probative. Previous DocumentKahanaNext Document v. Shinseki, 34 Vet.App. 428, 435 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (stating that lay persons are generally competent to provide evidence on observable symptoms); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (noting that "the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). The Board has not provided any indication that it finds the lay testimony of record to be incompetent. Furthermore, in finding against the establishment of a continuity of symptomatology, the Board stated that it found the appellant's February 1997 and July 1998 statements to treatment providers, which the Board agrees contained assertions ofanin-service injury,particularlyprobative because they were "provided during medical treatment," which suggests that the Board found the lay statements credible. R. at 10. This cursory discussion of the lay statements does not facilitate this Court's review. It is not clear from the analysis provided why, absent an explicit finding that the lay statements are not credible, the statements asserting a history of injury dating back to service are "of great probative value," but do not meet the low McLendon threshold indicating that a medical nexus examination is warranted. R. at 10; see McLendon, 20 Vet.App. at 83. Therefore, remand is required for an adequate reasons or bases discussion that includes a full analysis of the competence and credibility of the lay testimony of record. On remand, the Board must explicitly discuss the competence and credibility of the appellant's lay statements and those provided by his family members. The Board should consider the appellant's testimony that he did seek treatment in-service for his football injury. See, e.g., R. at 668. The Board should also discuss whether the appellant's 1998 statement that he had shoulder pain for the previous year related to work might be consistent with an in- service injury that only manifests under strenuous use, particularly in light of the appellant's testimony that he frequently 3 quit or was let go from manual labor employment that required the use of his shoulder, but did not have pain with other tasks that did not involve his shoulder. See, e.g., R. at 534-557, 688-89. Finally, the Board should address the statements bythe appellant's family including both their ability to observe symptomatology and the extent that they are reporting past statements by the veteran that would rebut an inference that his history of complaints is a recent fabrication. See FED. R. EVID. 801(d)(1) (prior consistent statements of declarant may be admitted to rebut inference of fabrication). If the Board determines that the appellant's lay statements are competent and credible, a medical nexus opinion is required to determine whether the appellant's current shoulder disability is related to his in-service football injury. As mentioned above, the McLendon standard provides a low threshold for determining whether there is an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service. McLendon, 20 Vet.App. at 83. This threshold encompasses a report of continuity of symptomatology that by itself is not strong enough to meet the requirements of 38 C.F.R. § 3.303( b), such as the reports provided by the appellant and his family, but nonetheless provides some indication of a link between the current disability and the in-service event. On remand, the appellant is free to submit additional evidence and argument, including the arguments raised in his briefs to this Court, in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order), and the Board must consider any such evidence or argument submitted. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Board shall proceed expeditiously, in accordance with 38 U.S.C. §§ 5109B, 7112 (requiring Secretary to provide for "expeditious treatment" of claims remanded by Board or Court). III. CONCLUSION After consideration of the appellant's and the Secretary's briefs, and a review of the record, the Board's August 27, 2010, decision is VACATED and the matter is REMANDED to the Board for further proceedings consistent with this decision. DATED: January 12, 2012 4 Copies to: Michael R. Viterna, Esq. VA General Counsel (027) 5

Single Judge Application, Case Similar to Shade v. Shinseki, 24 Vet.App.(2010)

Excerpt from decision below: "If the Board construes "raises a reasonable possibility of substantiating the claim" as a requirement that the appellant submit his own medical nexus evidence to reopen his claim, even though he has provided new and material evidence concerning any other missing element, it would force the veteran to provide medical nexus evidence to reopen his claim so that he could be provided with a medical nexus examination by VA. Id. at 119-21 (emphasis supplied) (citations omitted). This case presents a situation similar to the facts of Shade itself. See id. at 119-22. As in Shade, the RO originally denied the appellant's claim for failing to establish two of three necessary elements. See id. at 111; R. at 263. Thereafter, as in Shade, the appellant proffered new, competent evidence to establish the element of a current PTSD diagnosis – a positive PTSD screen – which was one of the reasons the claim was originally denied. R. at 205, 263. Such evidence, as explained in Shade, 24 Vet.App. at 121, suffices to reopen the appellant's PTSD claim because it relates to and serves to substantiate the claim's unestablished present diagnosis element. See Cohen, 10 Vet.App. at 138; see also 38 C.F.R. § 3.156(a). By effectively proceeding directly to the merits of the appellant's claim, the Board not only fails to correctly apply the mandate of section 3.156(a), but it also deprives the appellant the opportunity to further develop evidence of the unestablished in-service stressor element. Cf. Shade, 24 Vet.App. at 120 (reasoning that if a claimant is required to submit his own medical nexus evidence to substantiate an unestablished element of the claim, "it would force the veteran to provide medical nexus evidence to reopen his claim so that he could be 6 provided with a medical nexus examination by VA"). The Secretary cites to no caselaw for the proposition that the Board's erroneous analysis of the materiality of the positive PTSD screening is nonprejudicial because the appellant purportedly failed to proffer sufficient material evidence to advance a separate element of his PTSD claim. What is more, the Secretary failed to acknowledge or notify the Court of the intervening authority in Ervin v. Shinseki, 24 Vet.App. 318, 324 (2011)(applying to pending cases an amendment that permitted establishment of an in-service stressor via a veteran's lay testimony that the stressor is related to "fear of hostile military or terrorist activity"), and its impact on the disposition of the new-and-material- evidence issue in this case. Irrespective of Ervin, the appellant has proffered sufficiently new and material evidence to reopen his PTSD claim and obtain the full benefit of VA's duty to assist. See Shade, 24 Vet.App. at 119-21. Accordingly, the Court will reverse the Board's finding on this issue and remand the matter to permit further development and evaluation of the merits in accordance with Ervin." ========================================================== ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 10-0096 JOHN W. WILLIAMS, 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, veteran John W. Williams, appeals through counsel a September 29, 2009, Board of Veterans' Appeals (Board) decision that denied his claim for entitlement to service connection for vision disorder, right ear hearing loss, pinched nerves, gout, and a disorder manifested by constipation. Record of Proceedings (R.) at 3- 19. The Board decision also rejected the appellant's claim for entitlement to service connection for post-traumatic stress disorder (PTSD) based on new and material evidence. R. at 16. This appeal is timely, and the Court has jurisdiction to review the Board's decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, the Court will affirm in part, reverse in part, and vacate in part the Board's decision and remand the matter for further adjudication. I. BACKGROUND The appellant served on active duty in the U.S. Army from February 1969 to October 1970, with service in Vietnam. R. at 529. In 1996, the appellant filed a claim for entitlement to service connection for a back injury. R. at 429-32. As evidence, the appellant submitted private medical records documenting treatment he received for various back ailments in 1990 and 1991. R. at 448, 455, 481. The VA regional office (RO) denied the appellant's claim because "th[e] condition neither occurred in nor was caused by service." R. at 418. The RO explained that the appellant's service medical records did not indicate complaints of back problems or treatment for a back injury. Id. Instead, the relevant treatment reports, accordingto the RO, suggested that the appellant first injured his back when he slipped and fell on ice in January 1989. Id.; see also R. at 448. The RO's decision became final after the appellant failed to appeal the RO's September 1997 Statement of the Case (SOC). R. at 379-85. In May 2000, the appellant was hospitalized with complaints of nightmares, auditory and visual hallucinations, depression, and sleep disturbances. R. at 339-42, 351-65. The appellant reported having suicidal and homicidal ideation less than two weeks prior. Id. The appellant also stated that he was previously diagnosed with PTSD. R. at 345; see also R. at 350. The appellant was referred to a psychiatrist for further evaluation. R. at 365. Several times during his May 2000 hospital stay, the appellant reported other ailments to his examiners. The appellant reported bowel problems and sometimes bleeding from his rectum. R. at 364. The appellant also stated that the sun hurt his eyes and that he saw color spots. R. at 354, 365. One physician speculated that the appellant's color spots may be considered a visual hallucination. R. at 365. In June 2000, the appellant filed a claim seeking service connection for his PTSD. R. at 372- 76. The appellant submitted a letter from an acquiantance who described his behavior upon returning from Vietnam, his "hyper and paranoid" attitude, and sleeping problems. R. at 330-31. The appellant also submitted a PTSD questionnaire in which he identified his drinking problem and alcohol-related disciplinary action as having contributed to his PTSD. R. at 318-19. The appellant denied that any casualties or injuries caused his PTSD. R. at 319. In September 2001, the RO denied entitlement to service connection because no evidence demonstrated an in-service stressor and "there [was] no evidence to show a diagnosis of PTSD." R. at 263. The appellant failed to appeal this decision and thus it became final. InJuly2004,theappellantfiledanother claim,seekingserviceconnection forpinchednerves and gout. R. at 250. The appellant also sought to reopen his PTSD claim. Id. The only location for treatment of these conditions the appellant identified was the Fayetteville, North Carolina VA 2 hospital. R. at 250, 254-55. The appellant also stated that he'd been receiving Social Security Administration (SSA) disabilitybenefits since 1997. R. at 240, 248; see also R. at 175. The medical records obtained from the Fayetteville VA hospital indicated that he had been diagnosed with depression and that his PTSD screen indicated PTSD. R. at 175, 205. In November 2004, the RO denied the appellant's claims. R. at 145-50. The RO found no evidence of a medical diagnosis or treatment for pinched nerves or gout. R. at 146-48. The RO also found that, although medical records from the Fayetteville VA hospital were new, they were not material because they failed to evidence a diagnosis of PTSD or corroborate an in-service stressor. R. at 149-50. In March 2005, the appellant asserted new claims for constipation, right-ear hearing loss, and poor vision. R. at 138. After the appellant failed to submit any further evidence, the RO adjudicated and denied all of his claims in December 2005. R. at 114-20. The appellant filed a Notice of Disagreement in April 2006. R. at 109. The RO in turn issued its Statement of the Case in January 2007. R. at 81-103. That same month, the appellant filed an appeal to the Board and requested a hearing. R. at 77-79. At the appellant's July 2009 hearing, he stated that his right-ear hearing loss "comes from firing a weapon while [he] was in the war," and that his hearing loss " progressed ever since I been out of service." R. at 28-29. The appellant confirmed that he had not been provided an audiological examination. Id. When questioned about his vision disorder, the appellant exclaimed "I see . . . blurry spots sometime[s]. My sight goes almost blind and it comes back." R. at 30. A private physician, according to the appellant, stated that his vision was "not good." R. at 31. The appellant continued: "I also have a sleeping disorder, I have nights w[h]ere I see different things. I see different visions and stuff in my sleep. I have nightmares." R. at 30. The appellant remarked that he did not know whether the blurry spots or visions were due to PTSD. Id. The appellant also admitted that he had no "other medical diagnosis associated with [his] eyes," but he alleged that his current eye problems developed in service. R. at 32. The appellant also claimed that his constipation began in service and continued to this day. R. at 33. The appellant conceded, however, that no specific disorder was diagnosed in connection with his constipation. Id. The appellant also denied seeing a physician for the problem, but testified 3 that he used Dulcolax to alleviate his symptoms. R. at 34. Proceeding to the gout claim, the appellant testified that he was diagnosed with gout in service and has suffered with the pain since that time. R. at 40. Regarding his pinched-nerves claim, the appellant stated that "I got four pinched nerves and a twisted spine" while in service. R. at 42. The appellant confirmed that he was receiving treatment for his pinched nerves at the Fayetteville VA Hospital. R. at 43. Turning to the PTSD claim, the hearing officer asked the appellant to identify a specific trauma or stressor. R. at 44. The appellant responded: "Well, well, just a, just the total experience of being over there in a, in a war zone and stuff and uh, the things I seen, I guess I developed it like that." Id. When asked for specifics, he answered: "Dead bodies, uh a bunch of bombing, explosions." Id. The appellant advised the Board member that, while in Vietnam, he had been stationed at Tiger Hill and Cam Ranh Bay. R. at 46. The Board's September 2009 decision denied all of the appellant's claims. R. at 3-19. The Board concluded that the in-service and postservice records did not establish a diagnosis for the alleged right-ear hearing loss, constipation, gout, and pinched-nerve conditions. R. at 9-11. Absent evidence of such conditions, the Board found further development futile. R. at 10. The Board also determined apart from a notation of poor vision that in-service and postservice medical records were devoid of evidence of an eye injury. R. at 11. Regarding the PTSD claim, the Board found that while the medical records were new, they were not material because "they provide[d] no support for the occurrence of the claimed in-service stressors or that PTSD has been definitively diagnosed." R. at 15. With regard to the notation of PTSD by a Fayetteville VA hospital physician, the Board reasoned "that the medical reference of PTSD contained in the record is based solely on history reported by the Veteran," and that "the primary psychiatric diagnosis [was] apparently associated with depression." Id. The Board further explained that the appellant's testimony was "vague . . . (seeing dead bodies and being near explosions during service)," and that he had not " revealed useful information which would aid VA in verifying his claimed in service stressor." Id. Given that the appellant had been found to have not engaged in combat, the Board viewed the appellant's statements as "not [] sufficient to establish the occurrence of the alleged stressor." Id. This appeal followed. 4 II. ANALYSIS A. New and Material Evidence: PTSD The appellant contends that the Board erred in refusing to reopen his PTSD claim. Appellant's Brief (Br.) at 6-8. First, the appellant argues that the Board erred in deciding that the positive PTSD screen was not material because the primary psychiatric diagnosis of the report in question was depression. Appellant's Br. at 7; see also R. at 15. In essence, the appellant maintains that the positive PTSD screen was sufficient to reopen the claim because it related to an unestablished fact necessaryto substantiate the claim. See 38 C.F.R. § 3. 156(a) (2011). Second, the appellant maintains that the Board erred in finding that his lay testimony was vague, unhelpful, and ultimately would not "aid in the verification of any claimed in-service stressor." R. at 15; see also Appellant's Br. at 7. The appellant submits that corroboration does not require an overly detailed account of a stressor event, contrary to the Board's prescription. Appellant's Br. at 8. In response, the Secretary acknowledges that the Board "impermissibly" skipped "the reopening phase and [went] straight to adjudication on the merits," but argues that such "error is immaterial[] because the evidence submitted does nothing to corroborate any purported in-service stressor." Secretary's Br. at 12. Specifically, the Secretary asserts that the appellant's lay testimony of an in-service stressor – his observance of "dead bodies, uh a bunch of bombing, explosions" and the "total experience of being over there in a, in a war zone" – was insufficiently precise to demonstrate an in-service stressor, and therefore to prompt additional development to determine whether an in-service stressor occurred. Secretary's Br. at 13. Without such precise evidence, the Secretary reasons, any error by the Board in evaluating the positive PTSD screening is immaterial. Secretary's Br. at 12-13. To be eligible for service connection for PTSD, a claimant must satisfy" three elements": (1) A medical diagnosis of PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor. Cohen v. Brown, 10 Vet.App. 128, 138 (1997). In this case, the original decision denying service connection for PTSD explained that the appellant failed to provide evidence of an in-service stressor, but also that the "there [was] no evidence to show a diagnosis of PTSD." R. at 263. As the Secretary would have it, the Board need not reopen this 5 claim unless the appellant proffers new evidence that relates to both unestablished elements identified by the original decision as the basis for denial: (1) Evidence of a PTSD diagnosis; and (2) evidence of an in-service stressor. Secretary's Br. at 12. This is not the law. In Shade v. Shinseki, 24 Vet.App. 110, 119-20 (2010), the claimant submitted evidence of a present diagnosis of a chronic skin disorder as qualifying to reopen his claim for service connection. The Board there reasoned that "because the newly submitted evidence pertained only to the unestablished fact of a current diagnosis, but not to the other unestablished fact of a nexus between that diagnosis and service, the evidence submitted by the appellant was not new and material." Id. The Shade court disabused the Board of this faulty logic: The threshold established by § 3.156(a) requires the Board to analyze whether the new evidence presented "raises a reasonable possibility of substantiating the claim." If the Board construes "raises a reasonable possibility of substantiating the claim" as a requirement that the appellant submit his own medical nexus evidence to reopen his claim, even though he has provided new and material evidence concerning any other missing element, it would force the veteran to provide medical nexus evidence to reopen his claim so that he could be provided with a medical nexus examination by VA. Id. at 119-21 (emphasis supplied) (citations omitted). This case presents a situation similar to the facts of Shade itself. See id. at 119-22. As in Shade, the RO originally denied the appellant's claim for failing to establish two of three necessary elements. See id. at 111; R. at 263. Thereafter, as in Shade, the appellant proffered new, competent evidence to establish the element of a current PTSD diagnosis – a positive PTSD screen – which was one of the reasons the claim was originally denied. R. at 205, 263. Such evidence, as explained in Shade, 24 Vet.App. at 121, suffices to reopen the appellant's PTSD claim because it relates to and serves to substantiate the claim's unestablished present diagnosis element. See Cohen, 10 Vet.App. at 138; see also 38 C.F.R. § 3.156(a). By effectively proceeding directly to the merits of the appellant's claim, the Board not only fails to correctly apply the mandate of section 3.156(a), but it also deprives the appellant the opportunity to further develop evidence of the unestablished in-service stressor element. Cf. Shade, 24 Vet.App. at 120 (reasoning that if a claimant is required to submit his own medical nexus evidence to substantiate an unestablished element of the claim, "it would force the veteran to provide medical nexus evidence to reopen his claim so that he could be 6 provided with a medical nexus examination by VA"). The Secretary cites to no caselaw for the proposition that the Board's erroneous analysis of the materiality of the positive PTSD screening is nonprejudicial because the appellant purportedly failed to proffer sufficient material evidence to advance a separate element of his PTSD claim. What is more, the Secretary failed to acknowledge or notify the Court of the intervening authority in Ervin v. Shinseki, 24 Vet.App. 318, 324 (2011)(applying to pending cases an amendment that permitted establishment of an in-service stressor via a veteran's lay testimony that the stressor is related to "fear of hostile military or terrorist activity"), and its impact on the disposition of the new-and-material- evidence issue in this case. Irrespective of Ervin, the appellant has proffered sufficiently new and material evidence to reopen his PTSD claim and obtain the full benefit of VA's duty to assist. See Shade, 24 Vet.App. at 119-21. Accordingly, the Court will reverse the Board's finding on this issue and remand the matter to permit further development and evaluation of the merits in accordance with Ervin. B. Disorder Manifested by Constipation The appellant contends that the Board failed to provide adequate reasons or bases for its decision to deny service connection for a disorder manifested by constipation. Appellant's Br. at 10-12. Specifically, the appellant contends that the Board failed to explain why he was not competent to observe and therefore diagnose constipation. Appellant's Br. at 10-11. Furthermore, the appellant argues that, because he was referred to a psychiatrist on the same dayhe complained of constipation, "[t]he record raises some question as to whether gastrointestinal complaints may be related to" his PTSD claim, and thus such claims should be remanded together. Appellant's Br. at 11. In response, the Secretary argues first that, although constipation is a disorder capable of being observed bya layperson, it is not a "disability" for which a claimant maybe service connected. Secretary's Br. at 19-20. Second, the Secretary notes that the physician who referred the appellant to a psychiatrist did not connect his constipation to his psychiatric symptoms and, in any event, constipation may be considered separately from PTSD and therefore should not be remanded for joint consideration. Secretary's Br. at 20-21. The Board determined that service connection for a disorder manifested byconstipation was unwarranted because the appellant "[n]ever received [a] competent medical diagnos[i]s" and also 7 lacked "competent medical evidence which [would] causally relate[] [any diagnosis] to service." R. at 9-10. However, the Board failed to acknowledge and discuss the appellant's lay testimony at the July 2009 hearing that his constipation began "after basic training" and continued to the present or complaints of constipation the appellant registered during treatments before he filed his claim. R. at 33, 364; see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that lay evidence maybe used to diagnose a condition where a layperson is competent to identifythe medical condition). The Board did not address whether the appellant was competent to identify his constipation and whether his lay statements would be sufficient to establish service connection. The Secretary maintains that the Board's failure was irrelevant because VA does not recognize a constipation "disability" for which the appellant may be service connected. Secretary's Br. at 20. However, the Board did not articulate this position, either. Instead, the Board treated the claim as thoughit could be service connected, repeatedlyreferring to it as " residuals of constipation" and "a disorder manifested by constipation." R. at 9-10. Furthermore, as the appellant submits, irritable bowel syndrome is a disability of which constipation is a symptom and which the appellant may presumably be competent to diagnose, see 38 C.F.R. § 4.114, Diagnostic Code 7319 (2011), but because the Board also failed to address this issue as well, the Court may not speculate. See Jandreau, 492 F.3d at 1377 ("Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans' Court."). In any case, the Board failed to provide adequate reasons and bases for its failure to discuss this evidence, see Allday v. Brown, 7 Vet.App. 517, 527 (1995), and vacatur and remand is warranted. On remand, consistent with the duty to assist articulated in McLendon v. Nicholson, 20 Vet.App. 79, 81 (2006), the Board must consider whether an examination is warranted to dispose of this claim. The Court will accordingly forego discussion of the appellant's remaining theory of Board error. See Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam). C. Vision Disorder The appellant next argues that the Board erred in failing to find that VA's duty to assist was breached when the Board hearing officer failed to suggest that the appellant obtain private medical records pertaining to his purported vision disorder. Appellant's Br. at 12. The Secretary responds 8 that, even assuming the Board member improperly failed to suggest evidence, the appellant was not prejudiced by any error because the private medical records only involved poor eye sight and the provision of reading glasses, neither of which are conditions eligible for service connection. Secretary's Br. at 22-23. While it is true, as the appellant notes, that the Board member did not advise the appellant to obtain his private medical records pertaining to his vision problems, the appellant has not demonstrated that the Board member had a duty to suggest evidence. Since this Court decided Bryant v. Shinseki, 23 Vet.App. 488, 498 (2010), VA amended 38 C.F.R. §§ 3.103, 20.706 to reflect that the duty to suggest evidence was limited to "hearings conducted before the VA office having original jurisdiction over the claim." The Board committed no error, in turn, in failing to ascribe a breach of the duty to suggest evidence to the Board hearing officer. Even if the duty to suggest evidence remained binding on Board members, however, the duty is nevertheless subject to the rule of prejudicial error. See Bryant, 23 Vet.App. at 498. As such, as the Secretary argues, the Court must consider "whether the appellant was prejudiced by the Board's errors." Id. Here, the appellant confirmed that his private physician merely advised that he would need glasses to assist with refractive error. R. at 30-31 (private physician "said my vision [is] not good" and that the appellant "need[ed] glasses"). Because refractive error is not a "disease[] or injur[y]" eligible for service connection, see 38 C.F.R. § 3.303(c) (2011 ), the failure to suggest evidence in support of such a condition does not prejudice the appellant. See Bryant, 23 Vet.App. at 499 (indicating that the failure to suggest relevant evidence is the touchstone of prejudicial error). Thus, even if the Board hearing officer were so obligated, any failure to suggest evidence would not be a remandable error. The appellant also claims that the record suggests that his claim for vision disorder is inextricably intertwined with his PTSD claim, and therefore his vision disorder claim should be remanded along with his PTSD claim. Appellant's Br. at 12-13. The appellant fails to explain how his vision claim is inextricably intertwined with his PTSD claim, however,and thus fails to carry his burden of providing adequate support for his argument. See Locklear v. Nicholson, 20 Vet.App. 410, 416 (2006) (holding that the Court will not entertain underdeveloped arguments); Coker v. Nicholson, 19 Vet.App. 439, 442 (2006), rev'd on other grounds sub nom. Coker v. Peake, 310 F. 9 App'x 371 (Fed. Cir. 2008) (stating that an appellant must "plead with some particularity the allegation of error so that the Court is able to review and assess the validity of the appellant's arguments"). The Court must, therefore, reject this argument and affirm the portion of the Board's decision regarding the appellant's claim for vision disorder. D. Depression The appellant argues that the Board failed to explain why his effort to reopen his PTSD claim was not regarded as encompassing a new claim for service connection for depression in light of his acknowledged depression diagnosis. Appellant's Br. at 10. Because, as discussed above, the Court is reversing the Board's decision on the appellant's PTSD claim and remanding the matter to allow adjudication on the merits, the Board must also determine whether the appellant in fact asserted a claim for entitlement to service connection for depression, consistent with Clemons v. Shinseki, 23 Vet.App. 1, 5 (2009). The Court will therefore forego discussion of this argument. See Best,15 Vet.App. at 20. E. Pinched Nerves and Right-Ear Hearing Loss The appellant argues that the Board failed to explain why the record evidence of right-ear hearing loss does not entitle the appellant to a medical examination. Appellant's Br. at 13-14. The Secretary agrees with the appellant and argues in favor of remand. Secretary's Br. at 28-29. Similarly, the parties agree that the Board failed to address whether the appellant's evidence of treatment for various back ailments in 1990 and 1991 is relevant to his claim for pinched nerves, and that the Board erroneously failed to procure his SSA records, which appear relevant to his pinched nerves claim. Appellant's Br. at 14; Secretary's Br. at 27. Accordingly, the Court will remand both claims. F. SSA Records The appellant argues that the Board erroneously failed to obtain his SSA records with respect to his constipation, vision disorder, and gout claims.1 Appellant's Br. at 14-15. The Secretary responds that the Board was not required to procure SSA records for claims other than those for 1 The appellant also seeks procurement of his SSA records to support his PTSD, right ear hearing loss, and pinched nerves claims, but because the Court is remanding these claims, he is free to argue before the Board the relevance of his SSA records to such claims. 10 which the appellant was receiving benefits. Secretary's Br. at 24-26. The Board's duty to obtain Federal records is limited to Federal records for which there is reason to believe that such records "may give rise to pertinent information." Golz v. Shinseki, 590 F.3d 1319, 1323 (Fed. Cir. 2010). The evidence demonstrates that the appellant received SSA benefits "for back problems" (R. at 175), but there is no indication that the Board evaluated whether the appellant's SSA records may give rise to information pertinent to his constipation, vision disorder, and gout claims. Absent an adequate discussion by the Board of the grounds for failing to obtain the appellant's SSA records for the aforementioned claims, a remand is warranted. See Allday, 7 Vet.App. at 527. III. CONCLUSION After consideration of the appellant's and the Secretary's pleadings, and a review of the record, the September 29, 2009, Board decision is AFFIRMED IN PART, REVERSED IN PART, VACATED IN PART and the reversed and vacated matters REMANDED for further adjudication. DATED: December 29, 2011 Copies to: Jeany Mark, Esq. VA General Counsel (027) 11

Single Judge Application, DeLisio v. Shinseki, 25 Vet.App. 45, 53(2011); Apparent and Potential Claim, Referring to Affected Body Part

Excerpt from decision below: "Although his filing appears to only raise the issue of service connection on a direct basis, VA is not constrained by that theory. See DeLisio v. Shinseki, 25 Vet.App. 45, 53(2011) ("[E]ven if a claimant believes that his condition is related to service in a particular way, his claim is not limited solely to one theory of service connection."). Indeed, "upon the filing of a claim for benefits, the Secretary generally must investigate the reasonably apparent and potential causes of the veteran's condition and theories of service connection that are reasonably raised by the record or raised by a sympathetic reading of the claimant's filing." Id. =================================== "The Court disagrees. Mr. Canuto's claim was one for a "right leg (injury) condition" (R. at 284 ); as the Board noted, he did not provide anydetails as to the condition other than his theory that the condition – whatever that may be – was directly service related. Just as the Board is not limited to his theory of service connection, see DeLisio, supra, the Board is also not limited to only those conditions that may be the result of a right leg "injury." Especially because the claim was phrased in such broad terms, the Court concludes that Mr. Canuto's right leg claim may reasonably encompass varicose veins and edema. See DeLisio, 25 Vet.App. at 53 (noting that an appellant sufficiently files a claim by referring to the affected body part)." ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 11-2472 HONORATO D. CANUTO, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before DAVIS, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. DAVIS, Judge: U.S. Navy veteran Honorato D. Canuto appeals through counsel from a June 15, 2011, Board of Veterans' Appeals (Board) decision that denied him entitlement to service connection for "residuals of a right leg injury."1 Record (R.) at 9. For the reasons stated below, the Court will set aside the Board's June 2011 decision and remand the matter for further proceedings consistent with this decision. I. ANALYSIS Mr. Canuto first argues that the Board clearly erred in its determination that Mr. Canuto did not suffer from a current right leg disability. Specifically, he contends that he "suffers from several disabilities of the right leg that have been attributed to his service-connected heart disease" including varicose veins, edema, or a venuous insufficiency (which encompasses both varicose veins and 1 The Board also remanded the issue of entitlement to a total disability rating based on individual employability and deferred adjudication of the issue of an initial compensable evaluation for hypertension. Those matters are not before the Court at this time. See 38 U.S.C. § 7266 (stating that the Court reviews only final decisions of the Board); see also Howard v. Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000). edema) (Appellant's Brief (Br.) at 7), but the Board only considered whether he suffered from a disability that could be directly connected to an in-service injury. In response, the Secretary contends that Mr. Canuto only "sought service connection for a 'right leg (injury)' – not secondary service connection for residuals of arteriosclerotic heart disease." Secretary's Br. at 8. He asserts that the characterization of the condition as an "injury" (as opposed to a "disease") that was sustained in service, his reference to supporting evidence from his service records, and his failure to expressly raise the possibility of secondary serviceconnection in his filings are fatal to his plea before the Court for an expansive reading of his claim for disability benefits. In this case, Mr. Canuto filed a claim for disability benefits for a " right leg (injury) condition."2 R. at 284. Although his filing appears to only raise the issue of service connection on a direct basis, VA is not constrained by that theory. See DeLisio v. Shinseki, 25 Vet.App. 45, 53(2011) ("[E]ven if a claimant believes that his condition is related to service in a particular way, his claim is not limited solely to one theory of service connection."). Indeed, "upon the filing of a claim for benefits, the Secretary generally must investigate the reasonably apparent and potential causes of the veteran's condition and theories of service connection that are reasonably raised by the record or raised by a sympathetic reading of the claimant's filing." Id. Here, the Board determined that Mr. Canuto was not suffering from a right leg disability that is related to an injury in service. It appears, however, that the Board may have erred in limiting Mr. Canuto's claim as one for direct service connection. In its decision, the Board specifically noted that "[t]he only diagnosis of any disorder of the right leg (other than symptoms attributed to his service[-]connected coronary artery disease) appears in September 2008 medical records." R. at7(emphasis added). Mr. Canuto asserts that those "symptoms" to which the Board referred were varicose veins and edema, both of which may be separately compensable under the diagnostic code (DC). See 38 C.F.R. § 4.104, DC 7120, 7121 (2011). Contrary to Mr. Canuto's contention, the Board's analysis does not identify those conditions that may be secondarily related to coronary artery disease. If the "symptoms" are indeed varicose veins and edema, because the record raised the issue of secondary service connection for those compensable conditions, the Board should have considered whether 2 The Court notes that the Secretary failed to include the word "condition" when quoting from Mr. Canuto's claim. 2 service connection was warranted. As it stands, the Board's rationale is insufficient to facilitate judicial review of this matter, and remand is required. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995). In so ordering, the Court notes the Secretary's objection that Mr. Canuto's claim for a right leg "injury" may not encompass conditions such as varicose veins and edema. The Court disagrees. Mr. Canuto's claim was one for a "right leg (injury) condition" (R. at 284); as the Board noted, he did not provide any details as to the condition other than his theory that the condition – whatever that may be – was directly service related. Just as the Board is not limited to his theory of service connection, see DeLisio, supra, the Board is also not limited to only those conditions that may be the result of a right leg "injury." Especially because the claim was phrased in such broad terms, the Court concludes that Mr. Canuto's right leg claim may reasonably encompass varicose veins and edema. See DeLisio, 25 Vet.App. at 53 (noting that an appellant sufficiently files a claim by referring to the affected body part). Mr. Canuto also argues that he has "a claim for tender scars (including of the right leg) that has been pending since at least June 1988" (Appellant's Br. at 8), and that the Board should have considered whether he suffers from a "current disability" of a tender scar of the right leg. It appears that this argument was not presented to the Board in the first instance, which would be better able to determine whether the matter had been previously adjudicated and properly appealed between 1988 and the present. See Maggitt v. West, 202 F.3d 1370, 1377-78 (Fed. Cir. 2000) (holding that the Court has discretion to remand issues presented for the first time on appeal). Consequently, on remand,the Board should determine whether the issue of a "tender scar" requires Board adjudication. II. CONCLUSION On consideration of the foregoing, the Court SETS ASIDE the Board's June 15, 2011, decision as to service connection for residuals of a right leg injury and REMANDS that matter for further proceedings consistent with this decision. On remand, Mr. Canuto is free to submit additional evidence and raise any other additional arguments to the Board, and the Board must address such evidence and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Board 3 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). DATED: January 5, 2012 Copies to: Amy F. Fletcher, Esq. VA General Counsel (027) 4

Quattlebaum v. Shinseki, No. 09-3557 (Argued September 28, 2011 Decided January 5, 2012)Accrued Benefits, 38 U.S.C. 5121(c)

Excerpt from decision below: B. Prejudice As noted above, Mrs. Quattlebaum asserts that she was prejudiced by the Board's misunderstanding of the law. We agree. By improperly concluding that the statutory scheme prohibited a claim to reopen a prior denial of accrued benefits, the Board did not adjudicate whether she was entitled to accrued benefits, either via the 2001 original claim or the 2006 claim to reopen, and adjudication may lead to a successful outcome for Mrs. Quattlebaum. See Arneson v. Shinseki, 24 Vet.App. 379, 388-89 (2011) (finding prejudice where error could have made difference in outcome); see also supra note 1. ============================================== UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 09-3557 PEGGY L. QUATTLEBAUM, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. On Appeal from the Board of Veterans' Appeals (Argued September 28, 2011 Decided January 5, 2012) Kenneth M. Carpenter, of Topeka, Kansas, for the appellant. Peter J. Meadows, of Fort Lauderdale, Florida, was on the brief for appellant. James R. Drysdale, with whom Will A. Gunn, General Counsel; R. Randall Campbell, Assistant General Counsel; and Richard Mayerick, Deputy Assistant General Counsel, all of Washington, D.C., were on the brief for the appellee. Before KASOLD, Chief Judge, and MOORMAN and DAVIS, Judges. KASOLD, Chief Judge: Mrs. Peggy L. Quattlebaum, surviving spouse of World War II veteran Cecil L. Quattlebaum, appeals through counsel a June 11, 2009, Board of Veterans' Appeals(Board) decision that denied her attempt to reopen a previously denied claim for accrued benefits. Mrs. Quattlebaum argues that the Board's statement that "finally denied claims for accrued benefits cannot be reopened once the [one-year] time period [of 38 U.S.C. § 5121(c)] expires" was an incorrect statement of law and not supported by adequate reasons or bases. Record (R.) at 7. The Secretary disputes this argument. For the reasons stated herein, we hold that there is no per se legal bar to reopening a denied accrued benefits claim. Because the Board decision on appeal rests solely on a misunderstanding of the law prejudicial to Mrs. Quattlebaum, it will be set aside and the matter remanded for further adjudication. I. BACKGROUND Mr. Quattlebaum served on active duty from September 1942 to February 1947. The record of proceedings reflects that, by letter dated August 9, 2000, the Montgomery, Alabama, VA regional office (RO) notified Mr. Quattlebaum that his claim for benefits for, inter alia, tremors of all fingers, twitching in finger, a heart condition, and a total disability rating for individual unemployability (TDIU) had been denied. Nevertheless, on October 20, 2000, and December 19, 2000, the RO continued to send Mr. Quattlebaum letters stating that "[w]e are still processing your application for COMPENSATION." R. at 51, 53. On December 29, 2000, Mr. Quattlebaum died. Mrs. Quattlebaum's claim for dependency and indemnity compensation (DIC), death pension, and accrued benefits was received by the RO on February 5, 2001. In a letter dated February 7, 2001, and still addressed to Mr. Quattlebaum, the RO acknowledged that "[w]e have received your application for benefits." R. at 55. In August 2001, the RO sent a letter to Mrs. Quattlebaum stating, inter alia, that "[a]n accrued benefit is any money VA owed Mr. Quattlebaum at the time of his death. We cannot approve your claim for accrued benefits because VA did not owe him any money." R. at 318. The RO attached to this letter a rating decision dated August 23, 2001, that denied her DIC claim and determined that eligibility to dependents' educational assistance was not established, but did not address her accrued benefits claim. Thereafter, Mrs. Quattlebaum filed a Notice of Disagreement (NOD) as to the denial of DIC and perfected an appeal that led to a November 2005 DIC award, effective from December 2000.1 In January 2006, Mrs. Quattlebaum notified the RO that she had not received accrued 1 At oral argument, Mrs. Quattlebaum argued that her initial February 2001 claim for accrued benefits remains pending because the August 2001 rating decision did not address her claim for accrued benefits. This argument was not raised below or included in the briefing, and was presented by counsel for the first time at oral argument. Counsel attempted to justify this piecemeal litigation by explaining that he took over this case after the initial briefing had been submitted. Substitute counsels are reminded that, if they discover a new argument after the initial briefing, they generally must file a motion for leave to file a supplemental brief positing such argument, in order for the Court to consider it. See U.S. VET. APP. R. 27 (discussing applications for relief); cf. Fugere v. Derwinski, 1 Vet.App. 103, 105 (1990)("Advancing different arguments at successive stages of the appellate process does not serve the interests of the parties or the Court. Such a practice hinders the decision-making process and raises the undesirable specter of piecemeal litigation."). As discussed more fully in the text, infra at section III.B, remand is warranted in this case, Mrs. Quattlebaum can raise this issue below, and it will not be further addressed herein. See Maggitt v. West, 202 F.3d 1370, 1377-78 (Fed. Cir. 2000) (if Court has jurisdiction over a matter, issues presented for first time on appeal may be addressed, disregarded, or remanded back to Board for further development); Kay v. Principi, 16 Vet.App. 529, 534 (2002) (on remand, claimants may present, and the Board must consider, any additional evidence and argument in support of the matters remanded). 2 benefits, and asked the RO to review the file, determine whether her husband had a claim pending at the time of his death, and award any benefits due. The record of proceedings does not contain any notice to Mrs. Quattlebaum regarding how to substantiate her claim for accrued benefits or how to reopen her claim. Rather, in August 2006, the RO notified Mrs. Quattlebaum that her husband's claim had been denied pursuant to the August 9, 2000, letter, and advised her that, if she disagreed, she could file an NOD within one year. Mrs. Quattlebaum filed a timely NOD, identifying the December 2000 and February 2001 letters as evidence that a claim was pending at the time of her husband's death. A September 2007 Statement of the Case (SOC) restated that Mr. Quattlebaum had no pending claim at the time of his death, and also noted that accrued benefits were not warranted because the January 2006 claim had been submitted more than one year after her husband's death. Following Mrs. Quattlebaum's Substantive Appeal, the Board decision on appeal denied entitlement to accrued benefits. The Board reasoned that, because Mrs. Quattlebaum previously had been denied entitlement to accrued benefits, "her [January 2006] claim is essentially one to reopen." R. at 7. It further reasoned that "[t]he language in § 5121(c) is inconsistent with permitting consideration of a reopened claim received more than one year after death" and that "it is § 5121(c) which controls here, not § 5108." Id. The Board determined that, although Mrs. Quattlebaum's initial application met the section 5121(c) one-year filing requirement, her current claim "was filed more than five years after the Veteran's date of death" and therefore "does not meet the statutory requirement for paying accrued benefits." Id. This appeal followed. II. THE PARTIES' ARGUMENTS On appeal, Mrs. Quattlebaum argues that the Board's statement that a surviving spouse cannot reopen an accrued benefits claim more than one year after the veteran's death was not supported by adequate reasons or bases and was not in accordance with law. She contends that the statutory scheme does not explicitly or implicitly exclude accrued benefits claims from being reopened, and asserts that 38 U.S.C. § 5121(c) can be read in harmony with 38 U.S.C. § 5108. During oral argument, Mrs. Quattlebaum asserted two counts of prejudice arising from the Board's misunderstanding of the law, to wit: (1) she was never informed of the evidence necessary to 3 substantiate her claim as required by 38 U.S.C. § 5103(a),2 such that she was deprived of a meaningful opportunity to participate in the processing of her claim, and (2) the Board, in rendering its erroneous decision on the law, never evaluated whether she had submitted new and material evidence. The Secretary argues that the Board correctly stated the law and that a surviving spouse cannot reopen an accrued benefits claim more than one year after the veteran's death because the statutory scheme does not permit the reopening of an accrued benefits claim. At oral argument, the Secretary further posited that an attempt to reopen an accrued benefits claim is an exercise in futility because an accrued benefits claim is based on the evidence "in the file at date of death" and such evidence cannot also constitute the "new and material" evidence required to reopen a claim. When confronted with the possibility that evidence could be both "in the file at date of death" and "new and material," the Secretary argued in the alternative that a motion for revision based on clear and unmistakable error (CUE) was the proper avenue for relief in such situations. The Secretary also asserts that Mrs. Quattlebaum has not demonstrated prejudice, because she merely asked for a review of the record and submitted no new and material evidence. III. DISCUSSION A. Reopening Accrued Benefits Claims Section 5121 permits a surviving spouse to "stand in the shoes of the veteran and pursue his claim after his death" by filing an accrued benefits claim, Zevalkink v. Brown, 6 Vet.App. 483, 490 (1994), aff'd, 102 F.3d 1236 (Fed. Cir. 1996), so long as the surviving spouse files an application for accrued benefits "within one year after the [veteran's] date of death," 38 U.S.C. § 5121(c).3 2 The Secretary is required by 38 U.S.C. § 5103(a) to "inform the claimant of the information and evidence not of record (1) that is necessary to substantiate the claim, (2) that VA will seek to obtain, and (3) that the claimant is expected to provide," and further required by 38 C.F.R. § 3.159(b)(1) to "[4] request that the claimant provide any evidence in the claimant's possession that pertains to the claim." As an aside, this fourth requirement was repealed by the Secretary, effective May 30, 2008. See Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (notice of final rule amending § 3.159(b) and removing the fourth requirement of notice, because it "is not required by statute and is redundant of the three statutory requirements"). 3 In pertinent part, 38 U.S.C. § 5121 states: (a) Except as provided in sections 3329 and 3330 of title 31, periodic monetary benefits (other than 4 Additionally, if the application is incomplete at the time originally submitted, the Secretary must provide notification of the evidence necessary to complete the application, and an accrued benefits claimant has an additional year after such notification to submit that necessary evidence. Id. Section 5108 states that "[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim." 38 U.S.C. § 5108; see 38 C.F.R. § 3.156 (2011). The Board found the notion of reopening an accrued benefits claim pursuant to section 5108 inconsistent with the one-year requirement of section 5121(c), reasoning that "accrued benefits [claims] cannot be reopened once the [one-year] time period expires." R. at 7. Succinctly stated, however, we see no such inconsistency.4 On its face, section 5121 in no way indicates a preclusion of reopening accrued benefits claims. Similarly, section 5108 on its face allows the reopening of any previously disallowed claim. Read together, an accrued benefits claim must be filed within one year after the veteran's date of death pursuant to section 5121(c), and an accrued benefits claim can be reopened upon the presenting of new and material evidence pursuant to section 5108. The Board also noted that the language of section 5121(c) regarding incomplete applications for accrued benefits – namely, that the Secretary must notify the claimant if an application is incomplete, and the claimant has one year thereafter to submit evidence completing the application – "indicates that once the specific time limit elapses, no accrued benefits will be paid if the requested evidence is ultimately submitted in an untimely matter." R. at 7. However, this discussion of insurance and servicemen's indemnity) under laws administered by the Secretary to which an individual was entitled at death under existing ratings or decisions or those based on evidence in the file at date of death (hereinafter in this section and section 5122 of this title referred to as "accrued benefits") and due and unpaid, shall, upon the death of such individual be paid . . . . . . . . (c) Applications for accrued benefits must be filed within one year after the date of death. If a claimant's application is incomplete at the time it is originally submitted, the Secretary shall notify the claimant of the evidence necessary to complete the application. If such evidence is not received within one year from the date of such notification, no accrued benefits may be paid. 4 Even if we perceived an inconsistency, we note that it is an appellate court's task "to construe the two statutes in a way that best resolves any possible conflict between them." Cathedral Candle Co. v. U.S. Int'l Trade Comm'n, 400 F.3d 1352, 1368 (Fed. Cir. 2005); see also Morton v. Mancari, 417 U.S. 535, 551 (1974) ("[W]hen two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective."); Terry v. Principi, 340 F.3d 1378, 1385 (Fed. Cir. 2003) ("When we construe a statute, we do so in the setting of the statutory scheme of which it is a part."). 5 incomplete applications is referring to applications that do not "establish that the claimant is within the category of persons eligible to receive accrued benefits." Hyatt v. Shinseki, 566 F.3d 1364, 1370 (Fed. Cir. 2009); see Evidence for Accrued Benefits, 67 Fed. Reg. 9638, 9639 (Mar. 4, 2002)(Secretary noting that the "evidence" to be submitted in section 5121(c) is "that information necessary to establish that the applicant for accrued benefits is the person eligible for and entitled to those benefits"). Once a claim is timely filed and an application is completed (i.e., status as a proper accrued benefits claimant is established), section 5121(c) in no way limits the submission of evidence pertaining to the merits of the accrued benefits claim or bars a claim to reopen.5 Further, the Secretary's contention – that attempting to reopen an accrued benefits claim is an exercise in futility because an accrued benefits claim is based only on evidence "in the file at date of death," 38 U.S.C. § 5121(a), and therefore any new evidence submitted after death could not be considered and therefore would not be material to the claim – fails upon examination. This is because the Secretary has defined by regulation the phrase "evidence in the file at date of death,"38 U.S.C. § 5121(a), to include "evidence in VA's possession on or before the date of the beneficiary's death, even if such evidence was not physically located in the VA claims folder on or before the date of death." 38 C.F.R. § 3.1000(d)(4) (2011). Thus, pursuant to this regulation, there may be circumstances – perhaps rare but certainly possible – where documents are in the Secretary's possession at the date of the veteran's death (and therefore are considered to be in the file at the date of death), yet have never been presented to the Agency decisionmakers. Any such document submitted to the decisionmaker subsequent to a denial of an accrued benefits claim would qualify as "new" evidence pursuant to 38 C.F.R. § 3.156(a) ("New evidence means existing evidence not previously submitted to agency decisionmakers."), and might also be material if it (along with evidence previously in the record) "relates to an unestablished fact necessary to substantiate the claim. Id. ("Material 6 evidence . . . relates to an unestablished fact necessary to substantiate the 5 It is undisputed that Mrs. Quattlebaum established her status as a proper accrued benefits claimant. Accordingly, we do not comment on whether a claimant who did not establish status as a proper accrued benefits claimant in the one-year period after notification can reopen the claim or whether "no accrued benefits may be paid." 38 U.S.C. § 5121(c). 6 Although evidence need only relate to an unestablished fact necessary to substantiate a claim in order to be deemed "material," 38 C.F.R. § 3.56, further evidentiary development generally is not permitted in accrued benefits claims, see 38 U.S.C. § 5121(a); 38 C.F.R. § 3.1000(d)(4). 6 claim."). For example, if evidence was in the possession of one RO at the date of death, and the surviving spouse's accrued benefits claim was submitted to and finally denied by another RO without knowledge of the evidence in the possession of the other RO, an accrued benefits claimant may successfully reopen her claim with that evidence, if material. At oral argument, when confronted with the above possibility, the Secretary argued that the only proper avenue for obtaining relief in the circumstances described above is a motion for revision based on CUE. However, a CUE motion involves errors "based on the record . . . that existed" at the time of the previous decision, Russell v. Principi, 3 Vet.App. 310, 314 (1992) (en banc), while an attempt to reopen involves a supplement to the record that existed before the Agency decisionmaker, see 38 C.F.R. § 3.156(a). The situation of a claimant submitting evidence that was in the possession of the Secretary, but not previously in the claims file or before the decisionmaker, more closely aligns with the concept of reopening. Further, the CUE standard requires a claimant to demonstrate that the document "would manifestly have changed the outcome of the case," Sondel v. West, 13 Vet.App. 213, 221 (1999), imposing a significantly higher burden than that of demonstrating "a reasonable possibility of substantiating the claim," which is the new-and-material evidence standard. See Shade v. Shinseki, 24 Vet.App. 110, 117 (2010); see supra note 6. Thus, while a request for revision based on CUE is potentially one way to obtain accrued benefits when a timely claim for such benefits has been submitted but denied, that option does not preclude the option of seeking to reopen the claim based on new and material evidence. We also note that the Board's view, and the Secretary's argument, that a timely filed claim for accrued benefits, once denied and final, would not – as a matter of law – be subject to reopening, is inconsistent with the Secretary's position in the past. For example, in Moffitt v. Brown, 10 Vet.App. 214, 217 (1997), a surviving spouse filed an accrued benefits claim based on TDIU within one year of her husband's death, which was finally denied in a 1987 Board decision. The spouse thereafter attempted to reopen the accrued benefits claim in 1991, but a 1994 Board decision found that no new and material evidence had been submitted since the 1987 decision. Id. at 222. On appeal, both the spouse and the Secretary argued that remand was warranted based on a newly service-connected kidney condition that "may constitute new and material evidence deemed to have been in the file at the date of death." Id. (internal quotation marks omitted). Rather than holding (as 7 the Secretary requests here) that the 1991 attempt to reopen was precluded by statute, the Court agreed that remand was warranted for the Board to readjudicate the accrued benefits claim based on TDIU in light of the kidney condition. Id. Further, in Wright v. Brown, 9 Vet.App. 300, 302-03 (1996), when a surviving spouse "submitted a document which could be interpreted as a claim alleging CUE . . . or, in the alternative, a request to reopen her [accrued benefits] claim" four years after a final Board denial, the Court did not hold (as the Secretary requests here) that such an attempt to reopen was precluded by statute. Rather, the Court stated that, "[t]o the extent that the document submitted . . . may be considered as a request to reopen," the spouse had failed to demonstrate new and material evidence. Id. at 303. While acknowledging that an agency's interpretation of a statute that it is charged with administering is subject to "some deference," Cathedral Candle Co., 400 F.3d at 1365, we also recognize that "'considerably less deference'" (Gose v. U.S. Postal Serv., 451 F.3d 831, 837-38 (Fed. Cir. 2006) (quoting Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 515 (1994)) is due to an interpretation that is (1) articulated by appellate counsel, rather than promulgated formally by administrative officials, (2) inconsistent with previous agency positions, or (3) not a reflection of the "'specialized expertise'" of the agency, Cathedral Candle Co., 400 F.3d at 1367 (quoting U.S. v. Mead Corp., 533 U.S. 218, 234 (2001)). Here, deference to the Secretary's current interpretation of the statutory scheme is particularly unjustified, where (1) the Secretary has not identified any regulation, VA Office of General Counsel opinion, or Agency-wide pronouncement positing his current interpretation, (2) this current interpretation is inconsistent with positions previously taken in Moffitt and Wright, both supra, and (3) the Secretary has not articulated – and the Court cannot discern – how this interpretation reflects his specialized expertise. See Cathedral Candle Co., 400 F.3d at 1367; see also Gose, supra (citing Bowen v. Georgetown Univ. Hosp, 488 U.S. 204, 212(1988), and Inv. Co. Inst. v. Camp, 401 U.S. 617, 628 (1971)). In sum, as long as an accrued benefits claimant submits a claim within one year of the date of death of the veteran, the claim is timely. Once timely submitted and thereafter denied because accrued benefits are deemed not warranted, it is subject to being reopened if the claimant submits new and material evidence. Accordingly, we hold that the Board's determination that an accrued benefits claim cannot be reopened more than one year after the veteran's death is not in accordance 8 with law and will be reversed. See 38 U.S.C. § 7261(a)(3)(A) (Court shall hold unlawful and set aside decisions and conclusions "not in accordance with law"). B. Prejudice As noted above, Mrs. Quattlebaum asserts that she was prejudiced by the Board's misunderstanding of the law. We agree. By improperly concluding that the statutory scheme prohibited a claim to reopen a prior denial of accrued benefits, the Board did not adjudicate whether she was entitled to accrued benefits, either via the 2001 original claim or the 2006 claim to reopen, and adjudication may lead to a successful outcome for Mrs. Quattlebaum. See Arneson v. Shinseki, 24 Vet.App. 379, 388-89 (2011) (finding prejudice where error could have made difference in outcome); see also supra note 1. In this regard, we note that the record of proceedings reflects that Mrs. Quattlebaum attached two VA letters in support of her claim. These letters (1) indicate that Mr. Quattlebaum's claim was still being considered by the Secretary at the time of Mr. Quattlebaum's death, (2) were not mentioned in the August 2001 RO letter that stated that the RO "cannot approve your claim for accrued benefits because VA did not owe [the veteran] any money" (R. at 318), and (3) appeared in the record of proceedings only once (as submitted by Mrs. Quattlebaum), indicating they may not have been in the record at the time of the August 2001 RO letter. Whether the August 2001 RO letter constituted a denial of the accrued benefits claim and whether these letters constitute new and material evidence are factual determinations to be made by the Secretary or the Board in the first instance. See Prillaman v. Principi, 346 F.3d 1362, 1367 (Fed. Cir. 2003) (concluding that new-and material-evidence determinations are factual determinations); Thompson v. Gober, 14 Vet.App. 187, 188 (2000) (per curiam) (stating that the Court "'should not simply [make] factual findings on its own'" (quoting Hensley v. West, 212 F.3d 1255, 1263 (Fed. Cir. 2000))). Remand is warranted. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (stating that remand is appropriate "where the Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate"). On remand, Mrs. Quattlebaum may present, and the Board must consider, any evidence to the extent otherwise permitted by law (see, e.g., 38 U.S.C. § 5121 and 38 C.F.R. § 3.1000(d)(4)), and any additional argument in support of the matter remanded. See Kay, 16 Vet.App. at 534. This 9 matter is to be provided expeditious treatment on remand. See 38 U.S.C. § 7112. IV. CONCLUSION Upon consideration of the foregoing, the finding of the June 11, 2009, Board that an accrued benefits claim cannot as a matter of law be reopened more than one year after a veteran's death is REVERSED, and the decision of the Board denying Mrs. Quattlebaum's attempt to reopen her accrued benefits claim is SET ASIDE and the matters REMANDED for further development and readjudication consistent with applicable law and this decision. 10