Single Judge Application, Rucker v. Brown, 10 Vet.App. 67, 73 (1997); Recourse to the Federal Rules of Evidence

Excerpt from decision below: "With regard to his inadequate-reasons-or-bases argument, Mr. Larson contends that the Board inadequately explained (what he views as) its impermissible discounting of (1) lay statements, (2) VA medical records, and (3) three favorable medical opinions. As to the lay statements, however, the Board acknowledged them, noted that they contained inconsistencies as to the onset of Mr. Larson's dizziness, and assigned more probative value to those statements made to doctors and less value to those made to the Secretary in furtherance of his claim for benefits. See R. at 12 (Board noting that the Federal Rules of Evidence generally finds statements made to physicians for the purposes of diagnosis or treatment "exceptionally trustworthy" and citing Rucker v. Brown, 10 Vet.App. 67, 73 (1997) ("[R]ecourse to the [Federal] Rules [of Evidence] is appropriate where they will assist in the articulation of the Board's reasons."))." =========================== Skip navigation U.S. Court of Appeals for Veterans Claims View | Download | Details Previous document | Next document . 11-454 LarsonDH_11-454.pdf Search Terms: SAVAGE CreationDate: 03/21/2012 15:00:30 Creator: PrintServer150 ModDate: 03/29/2012 15:47:36 Producer: Corel PDF Engine Version 15.0.0.512 Title: X_XMPMETA_DC_TITLE: Times New Roman X_XMPMETA_XMPRIGHTS_MARKED: True ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS No. 11-454 DALE H. LARSON, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before KASOLD, Chief Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. KASOLD, Chief Judge: Veteran Dale H. Larson appeals through counsel that part of a January14, 2011, decision of the Board of Veterans' Appeals (Board) that denied Mr. Larson's claim for benefits for Meniere's disease and vertigo because they were not service connected. Mr. Larson argues that the Board (1) relied on an inadequate June 2010 medical report , (2) should have remanded his claim forclarificationoftwomedicalreports, (3) provided inadequate reasons or bases for its determinations, and (4) clearly erred in denying benefits. The Secretary disputes these arguments. Single-judge disposition is appropriate. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons stated below, that part of the Board decision on appeal will be affirmed. In support of his argument that the June 2010 report was inadequate, Mr. Larson contends that the report does not explain and distinguish its nexus opinion from that provided in the record lay testimony and other medical reports. However, there is no requirement that a report address all laytestimonyor other medical reports in the record. See Roberson v. Shinseki, 22 Vet.App. 358, 367 (2009) ("A medical examiner need not discuss all evidence favorable to an appellant's claim when rendering an opinion."). There also is no requirement that a medical professional contrast his opinion with that of another medical professional to be deemed adequate. Rather, "[a]n opinion is adequatewhereit is baseduponconsideration oftheveteran's priormedicalhistoryandexaminations and also describes the disability in sufficient detail so that the Board's 'evaluation of the claimed disability will be a fully informed one.'" D’Aries v. Peake, 22 Vet.App. 97, 104 (2008) (quoting Green v. Derwinski, 1 Vet.App. 121, 124 (1991)). It is the Board's duty to determine the adequacy of a medical opinion and weigh it against the other record evidence. See Gabrielson v. Brown, 7 Vet.App. 36, 40 (1994) (noting that a medical opinion is "onlythat, an opinion," and that the Board is ultimately required to address favorable evidence and provide reasons or bases for its findings). Here, the June 2010 medical report reflects that the medical professional reviewed the entire file, including "audio testing, ENG, physician reports, C&P evaluations, [ and] personal statements from the patient and his family." Record (R.) at 38. The medical professional also provided a nexus opinion based on her medical judgment and provided rationale to support her conclusion. Mr. Larson fails to demonstrate that (1) the medical professional did not consider the lay evidence and medical records in the file, (2) the file reviewed was incomplete such that some records were not considered, or (3)themedicalprofessional otherwiseignored relevant evidence. See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (holding that appellant bears burden of demonstrating error on appeal); see also Rizzo v. Shinseki, 580 F.3d 1288, 1291 (Fed. Cir. 2009) (holding that a VA medical professional is presumed competent to discharge his or her official duties in the absence of evidence to the contrary); D'Aries, supra. Also in support of his argument that the June 2010 report was inadequate, Mr. Larson presents three additional contentions of error. First, he contends that the June 2010 medical report failed to address whether Mr. Larson's vertigo was related to service. Although the report does not explicitly state that Mr. Larson's vertigo was not related to service, the report reflects that (1) Meniere's disease is characterized by vertigo, hearing loss, tinnitus, and other symptoms, (2) Mr. Larson's hearing loss and tinnitus are disabilities independent from his Meniere's disease and could be related back to service, (3) vertigo was first reported in 1995, and (4) Mr. Larson's Meniere's disease is not related to service. Read as a whole, it is not clearly erroneous to read the report as support for finding that Mr. Larson's vertigo is not related to service, given that vertigo was first reported 30 years after service and particularly in contrast to the medical professional's opinion that (1) hearing loss and tinnitus were disabilities deemed independent from his Meniere's disease, (2) vertigo was a symptom of Meniere's disease but not noted as independent of Mr. Larson's Meniere's 2 disease, and (3) Mr. Larsons's Meniere's disease was not related to service. See Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) ("'A finding is clearlyerroneous when . . . the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948))). Second, Mr. Larson contends that the doctor's statement is ambiguous as to whether or not Mr. Larson has Meniere's disease. However, such a reading of the report ignores its material essence, to wit: Mr. Larson's current Meniere's disease is not related to service. Even assuming Mr. Larson's view of the evidence could be deemed reasonable, he fails to demonstrate that the Board's view of this evidence was clearly erroneous. Gilbert, 1 Vet.App. at 52-53 (" 'Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous.'" (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573- 74 (1985))). Third, Mr. Larson contends thatthe2010medicalprofessional incorrectlystated that the first complaint of vertigo was made in 1995. However, Mr. Larson fails to identifyanyrecord documents containing a complaint or diagnosis of vertigo prior to 1995. See Hilkert, supra. To the extent he identifies a notation of dizziness in a 1988 VA medical record, he fails to demonstrate that reports of dizziness equate to having vertigo, which is a particular type of dizziness.1 Moreover, he fails to demonstrate that the June 2010 medical professional erred when rendering her implicit opinion that any reports of dizziness prior to 1995 were not reports of vertigo. Rizzo, supra. In sum, Mr. Larson fails to demonstrate that the Board clearly erred in finding that the June 2010 report was adequate. See D'Aries, 22 Vet.App. at 103-04 ("Whether a medical opinion is adequate is a finding of fact, which the Court reviews under the 'clearly erroneous' standard."); Gilbert, 1 Vet.App. at 52. In support of his argument that the Board should have remanded his claim for clarification of two medical reports, Mr. Larson relies on SavageNext Document v. Shinseki, 24 Vet. App. 259, 260 (2011), and contends that the Board should have sought clarification of private medical reports, dated in May 2006 and August 2006. However, clarification of private medical reports is required only when clarification "could provide relevant information that is otherwise not in the record and cannot be 1 "Vertigo" is defined as "an illusory sense that either the environment or one's own body is revolving; it may result from diseases of the internal ear or may be due to disturbances of the vestibular centers or pathways in the central nervous system. The term is sometimes erroneously used to mean any form of dizziness." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 2051 (32d ed. 2012) (emphasis added). 3 obtained in some other way." Id. at 269. Here, the record reflects that the June 2010 medical opinion provided sufficient medical evidence for the Board to render a decision on the claim. Accordingly, clarification of the older private medical reports was not needed. Id.; see also McLendon v. Nicholson, 20 Vet.App. 79, 84 (2006) ("[I]f there is sufficient competent medical evidence on file for the Secretary to make a decision on the claim, he may proceed to do so . . . ."). Withregardtohisinadequate-reasons-or-basesargument,Mr. LarsoncontendsthattheBoard inadequately explained (what he views as) its impermissible discounting of ( 1) lay statements, (2) VA medical records, and (3) three favorable medical opinions. As to the lay statements, however, the Board acknowledged them, noted that they contained inconsistencies as to the onset of Mr. Larson's dizziness, and assigned more probative value to those statements made to doctors and less value to those made to the Secretary in furtherance of his claim for benefits. See R. at 12 (Board noting that the Federal Rules of Evidence generally finds statements made to physicians for the purposes of diagnosis or treatment "exceptionally trustworthy" and citing Rucker v. Brown, 10 Vet.App. 67, 73 (1997) ("[R]ecourse to the [Federal] Rules [of Evidence] is appropriate where they will assist in the articulation of the Board's reasons.")). RegardingtheVAmedicalrecordsallegedlyignored,althoughMr.Larsoncited to numerous records purportedlynoting dizziness prior to 1989, the record of proceedings onlyreflects a notation of dizziness in the 1988 VA record discussed above. Moreover, Mr. Larson fails to demonstratewhy the Board might have been required to address this particular document when, as noted above, dizziness does not necessarily equate to vertigo and the June 2010 medical professional opined that vertigo was not identified until 1995. In sum, Mr. Larson fails to demonstrate that the Board failed to address materially favorable evidence or otherwise inadequately explained its decision. See Thompson v. Gober, 14 Vet.App. 187, 188 (2000) (Board must provide adequate statement of reasons or bases "for its rejection of any material evidence favorable to the claimant"); Hilkert, supra; Allday v. Brown, 7 Vet.App. 517, 527 (1995) (holding that the Board's statement "must be adequate to enable claimant to understand the precise basis for the Board's decision, as well as to facilitate review in this Court"). As to the three favorable medical opinions, the Board addressed each opinion and provided rationale for its respective assignment of weight. See Owens v. Brown, 7 Vet.App. 429, 433 (1995) 4 ("It is not error for the [Board] to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons and bases."). Specifically, the Board assigned (1) no probative value to the May 2006 medical opinion, because it provided no opinion on vertigo or Meniere's disease, (2) "very little probative value" to the March 2006 opinion, because an October 2008 joint motion for remand (JMR) noted its ambiguity on the issue of nexus between his disabilities and service,and(3)"some,but not high, probative value"to the August 2006 opinion, because it did not address the separation report of medical history, in which Mr. Larson specifically noted no history of dizziness. R. at 19. Overall, Mr. Larson fails to demonstrate that the Board provided inadequate reasons or bases in its statement. See Allday, supra. In support of his clear-error argument, Mr. Larson contends that the record evidence preponderates in favor of finding a continuity of symptoms, as well as a nexus between his disabilities and service, and that the Board clearly erred in finding otherwise. However, the record does not support his contentions. The Board found, inter alia, (1) no objective evidence of dizziness for 20 years after service despite numerous VA medical records from that time period, (2) Mr. Larson's lay statements noting an onset of dizziness in the 1990s more probative than his more recent statements recounting dizziness in service, (3) the June 2010 report against nexus more probative than the other medical evidence of record (for the reasons discussed above ), and (4) the preponderance of the evidence against the claim. Based on a review of the record of proceedings, the Board's findings are plausible and not clearly erroneous. See Burger v. Brown, 5 Vet.App. 340, 343 (1993) (Board findings of fact are reviewed under the "clearly erroneous" standard); Gilbert, 1 Vet.App. at 52; see also Hilkert, supra. Accordingly, that part of the January 14, 2011, Board decision on appeal is AFFIRMED. DATED: March 21, 2012 Copies to: Perry A. Pirsch, Esq. VA General Counsel (027) 5

Single Judge Application, Delisio, 25 Vet.App. at 54; Investigation of Casual Disease as Service-Connected

Excerpt from decision below: "The appellant argues that the August 2007 VA examination was inadequate because it failed to provide an opinion on the potential secondary relationship between the appellant's chronic substance abuse and his service-connected PTSD. Appellant's Brief (Br.) at 4-7. In his reply brief, the appellant also argues that the Court's recent holding in DeLisio v. Shinseki, 25 Vet.App. 45 (2011) is controlling, and that his alcohol and drug addiction were reasonably encompassed by his service-connected PTSD claim. Appellant's Reply Br. at 2-4. He thus contends that "VA was under a duty to investigate and develop a possible theory of secondary service connection [for the appellant's chronic substance abuse]." Appellant's Reply Br. at 4. The Secretary responds that the August 2007 examination is adequate for rating purposes because the examiner was not required to opine on the relationship between the appellant's substance abuse and his service-connected PTSD. Secretary's Br. at 5-9. The Court agrees with the Secretary that the August 2007 examination is adequate." ===================== "Additionally, DeLisio is not for application here. DeLisio held that if the condition for which VA benefits are sought is not directly associated with service, but information obtained during the processing of the claim reasonably indicates that the cause of the condition is a disease or other disability that may be associated with service, the Secretary generally must investigate whether the causal disease or disability is related to service, in order to determine whether the claimed condition is related secondarily to service. Delisio, 25 Vet.App. at 54. The appellant is already service connected for the condition for which benefits are sought, PTSD. DeLisio would apply only where substance abuse was the condition the appellant was initially seeking service connection for, and information obtained during the 4 processing of the substance abuse claim reasonably indicated that PTSD may have caused the underlying substance abuse condition." ========================== ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 10-4072 GATES D. ROBERTSON, 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, Gates D. Robertson, through counsel, appeals a September 17, 2010, Board of Veterans' Appeals (Board) decision that denied entitlement to an initial disability rating in excess of 50% for post-traumatic stress disorder (PTSD). This appeal is timely, and the Court has jurisdiction to review the Board's decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Both parties filed briefs, and the appellant filed a replybrief. Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 ( 1990). For the following reasons, the Court will affirm the Board's decision. I. BACKGROUND The appellant served honorably on active duty in the U.S. Army from June 1970 to June 1972, including service in Vietnam. Record of Proceedings (R.) at 1097. While in Vietnam the appellant experienced several confirmed stressors, including enemy attacks and one incident in particularwheretheappellant tried unsuccessfullyto help ableedingsoldier, andwatchedthesoldier die. R. at 330, 894-95. The appellant contends that he began drinking and abusing drugs for the first time following this tragic event. R. at 330, 894-95. The appellant initiallyfiled a claim for disabilitybenefits for PTSD in July1996. R. at 1065- 68. A VA regional office (RO) denied the appellant's claim in May 1997. R. at 994-99. No appeal was filed, and this determination became final. In August 2002, the appellant sought to reopen his claim (R. at 985), but was denied in January2003 when the RO determined that no new and material evidence had been submitted (R. at 958-62). The appellant subsequently submitted more evidence that was received by VA on June 30, 2003, and the RO found that new and material evidence had been submitted to reopen his claim for PTSD and granted entitlement to a 30% disability rating for PTSD in March 2005 effective the date of the receipt of the evidence. R. at 786-90. The appellant filed a Notice of Disagreement in November 2005 arguing that he deserved a higher rating. R. at 542. In October 2006, the appellant was granted a 50% rating for PTSD (R. at 447-450), and immediately appealed this decision stating he "want[ed] to continue his appeal to the Board . . . for a higher compensation rating for his PTSD" (R. at 442). VAprovidedacompensation andpension(C&P)examination in August 2007(R.at321- 33), during which the examiner noted that the appellant continues to meet criteria for PTSD. He presents with reexperiencing, avoidance and hyperarousal symptoms consistent with PTSD. [The appellant's] symptoms are moderately affecting his social, work and psychological functioning. Based on his self report and a comparison from his last C&P exam, his symptoms have not increased or changed significantly. [The appellant's] symptoms do affect his employment; however, his current unemployment is not directly related to his PTSD symptoms. Instead [his current unemployment] is secondary to his drug use and subsequent arrest. R. at 330-31. In August 2010, the American Legion, on behalf of the appellant, submitted the following statment to the Board: The veteran began using illicit drugs and alcohol as a means of overcoming combat stress during service. It is unfortunate that the habit has continued long after service. . . . Considering the veteran only began illicit drug and alcohol use to cope with the stress of combat, [t]he American Legion argues that the veteran's lower level of functioning has everything to do with his PTSD. Further, 38 C.F.R. § 3. 301 (c)(2), stipulates that "[o]rganic diseases and disabilities which are a secondary result of the chronic use of alcohol as a beverage, whether out of compulsion or otherwise, will 2 not be considered of willful misconduct origin." Also, 38 C.F.R. § 3.301 ( c)(3) stipulates that "[w]here drugs are used for therapeutic purposes or where use of drugs or addiction thereto, results from a service-connected disability, it will not be considered of misconduct origin." Therefore, the "lower level of functioning" that developed as result of the veteran's alcohol/drug abuse and dependency is subject to compensation anyways. R. at 20-21. In September 2010, the Board relied on the August 2007 examination to find that a 50% disability rating more closely approximated the severity of the appellant's PTSD. R. at 14. This appeal ensued. II. ANALYSIS The appellant argues that the August 2007 VA examination was inadequate because it failed to provide an opinion on the potential secondary relationship between the appellant's chronic substance abuse and his service-connected PTSD. Appellant's Brief (Br.) at 4-7. In his reply brief, the appellant also argues that the Court's recent holding in DeLisio v. Shinseki, 25 Vet.App. 45 (2011) is controlling, and that his alcohol and drug addiction were reasonably encompassed by his service-connected PTSD claim. Appellant's ReplyBr. at 2-4. He thus contends that "VA was under a duty to investigate and develop a possible theory of secondary service connection [for the appellant's chronic substance abuse]." Appellant's Reply Br. at 4. The Secretary responds that the August 2007 examination is adequate for rating purposes because the examiner was not required to opine on the relationship between the appellant's substance abuse and his service-connected PTSD. Secretary's Br. at 5-9. The Court agrees with the Secretary that the August 2007 examination is adequate. Under 38 U.S.C. § 5103A(d), the Secretary's duty to assist includes, in appropriate cases, "providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim." Although VA need not provide a medical examination in all cases, "once the Secretary undertakes the effort to provide an examination when developing a service-connection claim, he must provide an adequate one." Barr v. Nicholson, 21 Vet.App. 303,311(2007). A medical examination is considered adequate "where it is based upon consideration of the veteran's prior medical history and examinations and also describes the 3 disability, if any, in sufficient detail so that the Board's '"evaluation of the claimed disability will be a fully informed one."'" Stefl v.Nicholson, 21 Vet.App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet.App. 405, 407 (1994) (quoting Green v. Derwinski, 1 Vet.App. 121, 124 (1991))); see also Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008) ("A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two."). "Whether a medical opinion is adequate is a finding of fact, which this Court reviews under the 'clearly erroneous' standard." D'Aries v. Peake, 22 Vet. App. 97, 104 (2008). A factual finding is clearly erroneous when the Court, after reviewing the entire evidence, "is left with the definite and firm conviction that a mistake has been committed." United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); see also Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990). The August 2007 examination was provided in connection with his appeal for a higher rating for PTSD. The examiner provided a thorough report that compared his current PTSD condition with findings from earlier examinations. See R. at 321-33. In determining that the appellant's PTSD had not worsened, the examiner sufficiently described the effect the PTSD had on his daily life. The examiner also noted that the appellant was still struggling with chronic substance abuse. R. at 322- 33. However, because there is no secondary service-connection claim for substance abuse resulting from service-connected PTSD currently before the Court, this argument is not a basis for error. The appellant makes no arguments with respect to the adequacy of the PTSD evaluation. The Board's determination that this examination was adequate is therefore not clearly erroneous. See D'Aries, supra. Additionally, DeLisio is not for application here. DeLisio held that if the condition for which VA benefits are sought is not directly associated with service, but information obtained during the processing of the claim reasonably indicates that the cause of the condition is a disease or other disability that may be associated with service, the Secretary generally must investigate whether the causal disease or disability is related to service, in order to determine whether the claimed condition is related secondarily to service. Delisio, 25 Vet.App. at 54. The appellant is already service connected for the condition for which benefits are sought, PTSD. DeLisio would apply only where substance abuse was the condition the appellant was initially seeking service connection for, and information obtained during the 4 processing of the substance abuse claim reasonably indicated that PTSD may have caused the underlying substance abuse condition. These are not the facts of this case, and the Court therefore discerns no merit in this argument. However, if the appellant believes that he has a substance abuse claim secondary to his PTSD that remains pending and unadjudicated, the appropriate procedure is to pursue a resolution of the claim by VA, e.g., seek issuance of a final RO decision with proper notification of appellate rights and, if the decision is unfavorable, initiate a Notice of Disagreement. See 38 U.S.C. §§ 5104, 7105; DiCarlo v. Nicholson, 20 Vet.App. 52, 56 ( 2006). If the Secretary fails to process the claim, then the appellant can file a petition with this Court challenging the Secretary's refusal to act. See DiCarlo, 20 Vet.App. at 56-57 (citing Costanza v. West, 12 Vet.App. 133, 134 (1999)). III. CONCLUSION After consideration of the appellant's and the Secretary's pleadings, and a review of the record, the Board's September 17, 2010, decision is AFFIRMED. DATED: March 16, 2012 Copies to: Mark R. Lippman, Esq. VA General Counsel (027) 5

Single Judge Application, Castellano v. Shinseki, 25 Vet.App.146, 150-52 (2011), Relationship Between VA Regulations and M21-1 Provisions

Excerpt from decision below: "Provisions in VA's Manual M21-1 "dealing with PTSD are substantive rules that are 'the equivalent of [VA] [r]egulations.'" Cohen v. Brown, 10 Vet.App. 128, 139 (1997) (quoting Hayes v. Brown, 5 Vet.App. 60, 67 (1993) (alteration in original)); see Castellano v. Shinseki, 25 Vet.App.146, 150-52 (2011) (discussing the relationship between VA regulations and M21-1 provisions); Patton v. West, 12 Vet.App. 272, 282 (1999) ("The [Board] cannot ignore provisions of the Manual M21-1 relating to PTSD that are favorable to a veteran when adjudicating that veteran's claim."). The provisions of the Manual M21-1 are "rendered moot" in favor of the PTSD regulations in the Code of Federal Regulations "except where the Manual M21-1 is more favorable to the claimant." Cohen at 139. "[T]o the extent that the Manual M21-1provisions are more favorable to the claimant than the C.F.R. regulatory provisions, they are for application." Id. ================== ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 10-2653 YEMAYA J. SHIMEK, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before MOORMAN, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. MOORMAN, Judge: The appellant, Yemaya J. Shimek, appeals through counsel a July 23, 2010, Board of Veterans' Appeals (Board) decision that found no clear and unmistakable error (CUE) in a June 1996 VA regional office (RO) rating decision that denied entitlement to service connection for post-traumatic stress disorder (PTSD). Record (R.) at 3-15. Both parties filed briefs, and Ms. Shimek filed a reply brief. This appeal is timely, and the Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). A single judge may conduct this review because the outcome in this case is controlled by the Court's precedents and "is not reasonably debatable." Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, the Court will vacate the Board's July 23, 2010, decision and remand the matter for further adjudication consistent with this opinion. I. BACKGROUND Ms. Shimek served on active duty in the U.S. Army from January 1976 to April 1977. R. at 357. Service medical records (SMRs) show that she was treated for an assortment of maladies during service including nervousness, depression, nausea, anxiety, and sleeping problems. R. at 414-36. A March 1977 report of medical history noted frequent trouble sleeping, depression or excessive worry, nervous trouble, and a previous attempt at suicide. R. at 448. A March 1977 report of medical examination listed her psychiatric condition as normal. R. at 405. In January 1996, Ms. Shimek filed a claim for service connection for PTSD. R. at 352. Ms. Shimek submitted a statement to VA in which she identified the events or experiences she found most upsetting during service. R. at 324-28. This statement included, among many other incidents, her account of being raped by a female sergeant. Id. In March 1996, Ms. Shimek underwent a VA PTSD examination. R. at 331-33. The examiner reported that Ms. Shimek attributed her nightmares to "severe traumatic events that she experienced during the military." R. at 331. The examiner noted: Signs and symptoms compatible with mild to moderate form of [PTSD], as evidenced by severe insomnia, nightmares, and social isolation. This is apparently related to severe traumatic experiences in the military. Even though she has some symptoms of PTSD she has [a] psychological component that may[]be aggravating [her] symptoms as well as precluding [her] from getting any appropriate treatment. R. at 333. The RO, in a June 1996 rating decision, denied service connection for PTSD, reasoning that "[t]he evidence available for review does not establish that a stressful experience sufficient to cause [PTSD] actually occurred." R. at 317. In May 2006, Ms. Shimek requested that her claim for "PTSD sexual trauma" be reopened and argued that the June 1996 rating decision was a product of CUE. R. at 307. VA ordered an evaluation for PTSD and, in September 2006, Ms. Shimek underwent that examination. R. at 255-64. The examiner noted that the examination was only to consider the rape incident described by Ms. Shimek as a possible stressor for PTSD. The examiner noted that "[a] stressor identified on VA form 21-2507 dated August 28, 2006, sexual assault in the [U.S.] Army . . . is sufficient to cause [PTSD]" and opined that Ms. Shimek's "symptoms of [PTSD] are more likely than not related to her sexual assault in the [U.S.] Army." R. at 259. In an October 2006 rating decision, the RO granted service connection for PTSD with a disability rating of 70%, effective from May 21, 2006, and further determined that the June 1996 rating decision denying service connection for PTSD was not the product of CUE. R. at 229-37. The RO reviewed the stressor statement previously submitted by Ms. Shimek in context with her SMRs and concluded that her SMRs "contain'marker'evidence" thatsupportedherreported trauma. 2 R. at 231. The RO specifically noted the development during service of symptoms including nervousness, sleeplessness, anxiety, and depression before concluding: " Therefore, your reported sexual trauma is considered to be supported by the evidence of record." R. at 232. In the portion of the rating decision determining that the June 1996 rating decision was not a product of CUE, the RO concluded: "You have not provided anybasis for which to allege a CUE, therefore, a valid claim of a CUE is not properly identified." R. at 234. Ms. Shimek appealed that decision. In April 2009 the Board continued the denial of CUE in the 1996 rating decision. Following Ms. Shimek's appeal of that decision, the Court granted the parties' December 2009 joint motion for remand (JMR). R. at 33-38. In the JMR, the parties stipulated that the April 2009 Board erred in two respects. R. at 33. First, the Board did not provide an adequate statement of reasons or bases for its "finding that 'there was no nexus opinion relating the PTSD diagnosis to service'" and second, "when finding that the June 1996 rating decision did not containCUE,theBoardneglectedto discuss theapplicabilityofVAAdjudicationProcedureManual M21-1 (Manual M21-1), Part III, Paragraph 5.14c (Feb. 20, 1996), rendering its reasons and bases inadequate." R. at 35. Following the Court's December 2009 grant of the JMR, the Board issued the July 2010 decision currently on appeal. II. ANALYSIS The appellant argues that the Board erred in its determination that the June 1996 rating decision denying service connection for PTSD was not the product of CUE. Appellant's (App.) Brief (Br.) at 6-14. Specifically, she argues that the RO failed to apply or misapplied the law in existence at that time regarding PTSD stressor verification. Id. at 7-9; App. Reply Br. at 2-6. The Secretaryresponds that the appellant seeks an impermissible reweighing of the evidence before the RO in 1996 and that she has otherwise failed to meet the requirements of establishing CUE. Secretary's (Sec'y) Br. at 6-13. Generally, when a benefits claimant chooses not to, or otherwise fails to, appeal an RO or Board decision within the statutorily prescribed time period, that decision becomes final. Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2002). An RO or Board decision that has become final may not be reversed or revised in the absence of CUE. See 38 U.S.C. §§ 5109A, 7111(a); 38 C.F.R. 3 § 3.105(a) (2011). CUE is "a very specific and rare kind of error . . . that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestlydifferent but for the error." 38 C.F.R. § 20. 1403(a) (2011). To establish CUE, the appellant must show: (1) that either the facts known at the time were not before the adjudicator or the law then in effect was incorrectly applied, (2) that an error occurred based on the record and the law that existed at the time the decision was made, and (3) that, had the error not been made, the outcome would have been manifestly different. Grover v. West, 12 Vet.App. 109, 112 (1999); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). When reviewing Board decisions on CUE, the Court's review is generally " limited to determining whether the [Board] decision was 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.'" Russell, 3 Vet.App. at 315 (citing 38 U.S.C. § 7261(a)(3)(A)). However, the Court reviews de novo whether an applicable law or regulation was correctly applied. Joyce v. Nicholson, 19 Vet.App. 36, 42-43 (2005). The Court also reviews whether the Board's decision is supported by an adequate statement of reasons or bases. 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). Revision based on CUE is appropriate if the statutory or regulatory provisions in effect at the time of the 1996 RO decision were incorrectly applied. 38 C.F.R. § 20.1403. Provisions in VA's Manual M21-1 "dealing with PTSD are substantive rules that are 'the equivalent of [VA] [r]egulations.'" Cohen v. Brown, 10 Vet.App. 128, 139 (1997) (quoting Hayes v. Brown, 5 Vet.App. 60, 67 (1993) (alteration in original)); see Castellano v. Shinseki, 25 Vet.App.146, 150-52 (2011) (discussing the relationship between VA regulations and M21-1 provisions); Patton v. West, 12 Vet.App. 272, 282 (1999) ("The [Board] cannot ignore provisions of the Manual M21-1 relating to PTSD that are favorable to a veteran when adjudicating that veteran's claim."). The provisions of the Manual M21-1 are "rendered moot" in favor of the PTSD regulations in the Code of Federal Regulations "except where the Manual M21-1 is more favorable to the claimant." Cohen at 139. "[T]o the extent that the Manual M21-1provisions are more favorable to the claimant than the C.F.R. regulatory provisions, they are for application." Id. 4 The version of VA's Manual M21-1 in effect at the time of the 1996 RO decision—dated February 20, 1996—contained a provision for handling PTSD claims based on personal assault. A section of that provision, titled "PTSD Claims Based on Personal Assault," states in pertinent part: (1) Veteran's claiming service connection for disability due to an in- service personal assault face unique problems documenting their claims. . . . (2) Because assault is an extremely personal and sensitive issue, many incidents of personal assault are not officially reported, and victims of this type of in-service trauma may find it difficult to produce evidence to support the occurrence of the stressor. . . . (3)Toserviceconnect PTSD, theremust becredibleevidence to support the veteran's assertion that the stressful event occurred. This does not mean that the evidence actually proves that the incident occurred, but rather that the preponderance of the evidence supports the conclusion that it occurred. ... (5) The service record may be devoid of evidence because many victims of personal assault, especially sexual assault and domestic violence, do not file official reports either with military or civilian authorities. . . . (6) Identifying possible sources of alternative evidence will require that you ask the veteran for information concerning the incident. This should be done as compassionately as possible in order to avoid further traumatization. . . . ... (8) Rating board personnel must carefully evaluate all the evidence. If the military record contains no documentation that a personal assault occurred, alternative evidence might still establish an in-service stressful incident. Behavior changes that occurred at the time of the incident may indicate the occurrence of an in- service stressor. Examples of behavior changes that might indicate a stressor are ( but are not limited to): (a) Visits to a medical or counseling clinic or dispensary without a specific diagnosis or specific ailment; ... (e) Lay statements describing episodes of depression, panic attacks or anxiety but no identifiable reason for the episodes; 5 (9) Rating boards may rely on the preponderance of evidence to support their conclusions even if the record does not contain direct contemporary evidence. . . . Manual M21-1, Part III, Paragraph 5.14c (Feb. 20, 1996). The brief rationale provided in the RO's denial of service connection for PTSD in its 1996 decision reveals that the RO took the 1996 VA PTSD examiner's opinion into consideration but denied service connection based on the lack of a verifiable stressor. The RO noted that the VA examinerdiagnosedPTSD,but concludedthat: " Theevidenceavailableforreviewdoesnot establish that a stressful experience sufficient to cause [PTSD] actually occurred." R. at 317. The RO went on to state that: "This decision will be reconsidered upon receipt of more detailed information to allow for verification of military stressful events, especially the sexual assault." Id. In reviewing the 1996 RO decision for CUE, the 2010 Board acknowledged a PTSD diagnosis at that time and described the 1996 decision as follows: "The RO indicated that a verified stressor sufficient to cause PTSD was not established bythe evidence of record. The RO informed the Veteran that her decision would be reconsidered upon receipt of more detailed information to allow forverification of military stressful events especially the sexual assault." R. at 10, 12. In the December 2009 JMR, the parties agreed that the Board decision that was the subject of the JMR required remand based on the Board's failure to provide adequate reasons or bases. The parties stipulated the following: In the decision on appeal, the Board found that 'there was no nexus opinion relating the PTSD diagnosis to service.' []However, the Board did not reconcile this conclusion with the evidence of record at the time of the [RO's 1996] decision (i.e., the March 1996 VA examination), which demonstrated otherwise. R. at 36 (emphasis added). Despite the JMR stipulation that the evidence of record in 1996 demonstrated that there was a nexus opinion, the Board determined that the 1996 VA PTSD examiner "solely made a speculative statement, without review of the claims file, that the Veteran's PTSD was apparently related to severe traumatic experiences in the military." R. at 14. The 2010 Board decision discussed the Manual M21-1 provision quoted above as directed by the JMR and noted, "the evidence of record at the time of the June 1996 RO decision did include some evidence of visits to a counseling clinic during service as well as the [appellant's] statements as to nervousness and depression." R. at 14. Although the Board in 2010 did not explicitly state that 6 this evidence of a change in behavior around the time of the claimed sexual assault in service was sufficient to corroborate the stressor in 1996, this was part of the same record evidence that was sufficient to verifythe complained-of sexual assault as a stressor for the purposes of granting service connection for PTSD in 2006. R. at 231-32. In the 2006 rating decision granting service connection for PTSD, the RO noted that the appellant's SMRs contain "marker" evidence that serves to support your reported trauma. Specifically, the enlistment examination of December 1975 show[s] no evidence of any mental health complaints or disability. Starting in November 1976, nearly 11 months after enlistment, there are complaints of restlessness, nervousness, and sleepless nights. In January 1977 you were seen by Mental Health for anxiety and problems sleeping. At military discharge examination in March 1977 you further reported nerve[ s], frequenttroublesleeping,depression/or excessiveworry, andnervoustroubleofsort. The military examiner noted your multiple symptoms at discharge that were not present at enlistment but did not render any diagnosis or etiology of such. Review of all your VA claims folder provides no contradicting evidence. Therefore, your reported sexual trauma is considered to be supported by the evidence of record. R. at 231-32. It is clear that the appellant's changes in behavior were of record at the time of the 1996 RO decision and there would have been no contradicting evidence in the record at that time either. The December 2009 JMR also noted that the appellant's SMRs reflected " complaints of anxiety, nervousness, depression, and difficultysleeping." R. at 37. The parties stipulated that these "complaints may be of the type described in M21-1 as in effect in June 1996" and thus directed the Board to consider "whether the pertinent portions of M21-1 were properly applied." Id. The Court notes that, not onlywere the appellant's SMRs of record for consideration in concert with the Manual M21-1, but also of record in 1996 was the appellant's statement in which she detailed her account of the rape that she suffered during service. R. at 324-28. The statement contained the appellant's description of the in-service sexual assault that the RO would determine just two months later did "not establish that a stressful experience sufficient to cause [PTSD] actually occurred." R. at 317. Theappellant's April1996statement detailed the nameofherallegedattacker, theappellant's regular duty station where she said the attack took place, the general time during her period of service when the attack occurred, and further graphic detail. R. at 325. Rather than discussing any of the details provided by the appellant, the 1996 RO decision denied the appellant's PTSD claim noting, 7 This decisionwill bereconsidereduponreceiptof more detailed informationto allow for verification of military stressful events, especially the sexual assault. This information should show the names of those involved including witnesses, the dates of the incidents, the unit to which assigned at that time, and whether any investigation was done. R. at 317. In the 2006 Board decision granting service connection for PTSD, the Board determined that the same details provided by the appellant in her April 1996 statement along with her changes in behaviorweresufficient toestablishaverifiablestressorandgrantedthe appellant's claim forPTSD. R. at 231-32. Although the 2010 Board decision on appeal contains some discussion of the appellant's visits to a counseling clinic and her "statements as to nervousness and depression" that would be evident from her SMRs, the Board made no mention of the appellant's April 1996 statement detailing the name of her attacker and the place and time when it took place along with other graphic detail. The Board further failed to provide any discussion of whether the appellant's April 1996 statement along with the evidence of record in her SMRs and the lack of any contradictory evidence in the record would necessarily have established the alleged in-service rape as a stressor sufficiently verified under the proper application of Manual M21-1, Part III, paragraph 5.14(c) as it existed in June 1996. In attempting to explain why the RO in 2006 verified the appellant's stressor based on the same evidence that the RO in 1996 denied it, the Board stated that "it was not until May 2002, that 38 C.F.R. § 3.304(f)(3) set forth and codified specific examples of evidence of markers of personal assault." R. at 13; see R. at 10 (explaining that the RO's 2006 examination request form that informed the examiner that the stressor had been verified by "markers of personal assault" was "apparently based on a change of law, specifically the addition of 38 C.F.R. § 3.304(f)(3), effective May 7, 2002") (emphasis in original). However, the key issue that the Board failed to address is the fact that, in 1996, provision 5.14c of the Manual M21-1 instructed the RO to attempt to use alternative evidence to verify an in-service stressor and that those instructions and the alternative evidence listed are almost exactly the same as that found in 38 C.F.R. § 3.304(f)(3) in 2006. Compare Manual M21-1, 5.14c (quoted at length, above), with 38 C.F.R. § 3.304(f)(3) (2006) (now codified at 38 C.F.R. § 3.304(f)(5)). The Board stated that the "change in the law" in 2002 led to the 8 verification of the appellant's stressors, but Manual M21-1, 5.14c had the force of law in 1996 and the RO clearly failed to comment on it. See Cohen, supra. The Board also rejected that premise based upon its determination that the 1996 VA examiner's opinion was speculative. R. at 14. The 1996 VA examiner opined that the appellant's "mild to moderate form of [PTSD], as evidenced by severe insomnia, nightmares, and social isolation" were "apparently related to severe traumatic experiences in the military." R. at 333. The Board determined that this opinion was speculative because it "did not specifically relate the diagnosis of PTSD to a specific stressor (such as a rape in service)." R. at 14. The Board failed to further discuss how the examiner's opinion that the appellant's symptoms were "apparently related to severe traumatic experiences in the military" rendered it speculative. The Court is precluded from concluding that the 1996 RO decision was a result of CUE unless it is absolutely clear that the error would have resulted in a manifestlydifferent outcome. See Grover and Russell, both supra. The reasons or bases provided by the Board in the 2010 decision on appeal prevent the Court from reaching a determination on CUE. As the Board noted in 2010, the 1996 VAexaminer's opinion contained the conclusion that the appellant's "PTSD was apparently related to severe traumatic experiences in the military." R. at 14. The Board then stated the requirements for a successful service-connection claim for PTSD in 1996 and summarily concluded that the evidence of record in 1996 "clearly offered some support for the RO's point of view." Id. However, the Board's leap in logic makes its determination far from clear. It appears from the RO's brief analysis and the 2010 Board's characterization of the 1996 rating decision that the RO determined that there were no verifiable stressors of record without reaching a determination on nexus. The 2010 Board decision labeled the 1996 VA examiner's opinion speculative but fell short of making a clear determination, supported byan adequate statement of reasons or bases, on whether it could support a nexus between a verified stressor and the appellant's PTSD. R. at 14; see Livesay, 15 Vet.App. at 174. The Court's review of the1996 VA PTSD examination reveals that, although the examiner equivocated as to other potential causes of the appellant's symptoms, the examiner opined that the appellant's PTSD was "apparently related" to severe traumatic events in the military. R. at 333; see also R. at 256 (2006 examiner stating that the 1996 examiner "made the diagnosis of 9 [PTSD], mild, related to in-service stressors"). As noted above, the Board labeled this opinion speculative but failed to provide an adequate statement of reasons or bases as to whether this opinion could have provided the requisite nexus if the RO had applied the Manual M21-1 and verified the appellant's in-service stressor. On remand, the Board must readjudicate Ms. Shimek's appeal alleging CUE in the 1996 RO decision and provide an adequate statement of reasons or bases, which should expressly include a discussion of the following issues in addition to those already mentioned above. First, the Board must discuss the adequacy of the 1996 medical opinion, including whether the examiner reviewed the claims file and what effect, if any, a review or lack of review would have on his opinion. The Board should also discuss the sufficiency of the nexus opinion provided by that examiner. Next, the Board must discuss whether the RO in 1996 correctly applied provision 5. 14c of the Manual M21-1 and, if not, the effect of such an error on each of the three elements required to establish CUE. See Grover, supra. On remand, the appellant is free to submit additional evidence and raise her arguments to the Board, and the Board is required to consider them. See Kay v. Principi, 16 Vet.App. 529, 534 (2002); Kutscherousky v. West, 12 Vet.App. 369, 372 (1999) (per curiam order). The Board and the RO must provide expeditious treatment of this matter on remand. See 38 U.S. C. §§ 5109B, 7112. III. CONCLUSION After consideration of the appellant's and the Secretary's briefs, and a review of the record, the Board's July 23, 2010, decision is VACATED and REMANDED for further adjudication in accordance with this decision. DATED: March 15, 2012 Copies to: Sandra W. Wischow, Esq. VA General Counsel (027) 10

Single Judge Application, New and Material, Determination of Materiality, Duran v. Brown, 7 Vet.App. 216, 220 (1994); Shade, 24 Vet.App. at 121

Excerpt from decision below: "In making the determination of materiality, "the Board is precluded from considering the credibility of the newly submitted evidence; strictly for purposes of determining whether new and material evidence has been presented, the Board must presume that the newly submitted evidence is credible." Duran v. Brown, 7 Vet.App. 216, 220 (1994) (citing Justus v. Principi, 3 Vet.App. 510, 513 (1992)). However, the Secretary is not required "to consider the patently incredible to be credible." Id.; see also King v. Brown, 5 Vet.App. 19, 21 (1993) (noting that the Board must not assume the credibility of evidence "when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion") (citing Espiritu v. Derwinski, 2 Vet.App. 492 (1992)). In Shade, the Court held that the issue of reopening must be 3 confined to the subject of existence of new and material evidence alone and does not include a separate outcome-based element. Shade, 24 Vet.App. at 121. The Court emphasized "that the phrase 'raise a reasonable possibility of substantiating the claim' does not create a third element for new and material evidence," but was intended to provide "guidance for VA adjudicators in determining whether submitted evidence meets the new and material requirements." Id. at 117. =============== ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 11-0002 CRISTINA V. UMAGAT, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before NEBEKER, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. NEBEKER,Judge: The appellant,Cristina V. Umagat, appeals a September 29,2010, Board of Veterans' Appeals (Board) decision that determined that new and material evidence had not been received to reopen a claim for revocation of forfeiture of entitlement to VA benefits. 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. Single-judge disposition is appropriate as the issue is of "relative simplicity" and "the outcome is not reasonably debatable." Frankel v. Derwinski, 1 Vet. App. 23, 25-26 (1990). For the reasons that follow, the Court will affirm the September 2010 Board decision. I. FACTS The veteran, Tanny Umagat, served on active duty from March 1951 to October 1953. Record (R.) at 165-68. He died in October 1953. R. at 167, 168. In December 1953, the veteran's widow, the appellant, filed a claim for survivor's benefits. R. at 1037-46. She was notified in September 1954 that she would be receiving death compensation benefits as the unremarried widow of the deceased veteran. R. at 913. In December 1960, VA received a letter from the veteran's parents stating that the appellant was living as husband and wife with Jessie Cruz. R. at 830-31. A VA field examination was conducted in March 1961. R. at 787-820. During a deposition, the appellant stated that she had lived with Jessie Cruz from January 1960 to November 1960, as husband and wife, had a child together during that time, and was expecting a second child with him. R. at 795-97. In August 1961, VA determined that the appellant had remarried and informed the appellant that her death compensation benefits would be discontinued on that basis. R. at 771-74. AnotherfieldexaminationwasconductedinApril1974to determinewhethertherelationship between the appellant and Jessie Cruz had been terminated. R. at 584-97, 608. During the field examination, theappellantstatedthathermarital relationship with Jessie Zapata"started in 1960and was terminated in February1974." R. at 587. She reported that she had seven children with him and that her "marital reputation in the community" was that of the wife of Jessie Zapata. R. at 587-88. She explained that Jessie Zapata went by several aliases, including " Jessie Cruz" and "Jesus de la Cruz." R. at 587. In a May 1974 VA administrative decision, it was found that the appellant's June 1971 statement that she no longer lived with Jessie Cruz was false in light of her contradictory testimony, and the matter was referred to the Director of Compensation and Pension. R. at 579-83. It was subsequently determined that the appellant had forfeited all rights, claims, and benefits under VA law for deliberately presenting false evidence to VA. R. at 490. The appellant appealed that decision. R. at 358-83, 554-55. In support of her appeal, she submitted affidavits, including one from Jesus Zapata, stating that he did not live with her as husband and wife. R. at 370. She also submitted a joint affidavit by Jesus Zapata and Susana Gutierrez stating that they had been married for 27 years and were currently married. R. at 336-46. In July 1977, the appellant argued that Jessie Cruz was married to someone else during the time it was alleged that they were living as husband and wife. R. at 305-23. The Board issued a decision in July 1977 denying removal of the forfeiture against the appellant because it found that she had knowingly submitted false evidence in her claim for death benefits. R. at 325-29. The appellant again requested that her claim be reopened in October2008. R. at 133-82. She submitted evidence of her marriage to the deceased veteran and medical evidence regarding his death. R. at 83-90. In a June 2009 rating decision, the VA regional office denied the appellant's request to reopen her claim because it found that she had submitted no new information that would warrant revocation of the forfeiture decision declared against her. R. at 76-79. The appellant 2 appealed that decision. R. at 26-29, 53-75. In conjunction with her appeal, she submitted evidence indicating that Jessie Cruz was married to Susana Gutierrez, along with a copy of the previously submitted affidavit from the couple. R. at 53-75. On September 29, 2010, the Board issued the decision here on appeal. R. at 3-11. In that decision, the Board found that the evidence submitted since the 1977 Board decision denying removal of the forfeiture of benefits did not relate to the appellant's fraudulent conduct and thus there was no basis on which to reopen the claim. R. at 8-9. This appeal followed. II. ANALYSIS If 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. "New and material evidence" is defined as follows: New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2011). New and material evidence is evidence that would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist. Shade v. Shinseki, 24 Vet.App. 110, 121 (2010). In making the determination of materiality, "the Board is precluded from considering the credibility of the newly submitted evidence; strictly for purposes of determining whether new and material evidence has been presented, the Board must presume that the newly submitted evidence is credible." Duran v. Brown, 7 Vet.App. 216, 220 (1994) (citing Justus v. Principi, 3 Vet.App. 510, 513 (1992)). However, the Secretary is not required "to consider the patently incredible to be credible." Id.; see also King v. Brown, 5 Vet.App. 19, 21 (1993) (noting that the Board must not assume the credibility of evidence "when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion") (citing Espiritu v. Derwinski, 2 Vet.App. 492 (1992)). In Shade, the Court held that the issue of reopening must be 3 confined to the subject of existence of new and material evidence alone and does not include a separate outcome-based element. Shade, 24 Vet.App. at 121. The Court emphasized "that the phrase 'raise a reasonable possibility of substantiating the claim' does not create a third element for new and material evidence," but was intended to provide "guidance for VA adjudicators in determining whether submitted evidence meets the new and material requirements." Id. at 117. The Court instructed that the Board should consider whether the submitted evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. at 118. The Court emphasized that that determination is a component of, and not a separate determination from, the question of whether submitted evidence is "new and material evidence" within the meaning of 38 C.F.R. § 3.156(a). Id. The Board's determination of whether a claimant has submitted new and material evidence is generally reviewed under the "clearly erroneous" standard of review set forth in 38 U.S.C. § 7261(a)(4). See Suaviso v. Nicholson, 19 Vet.App. 532, 533-34 (2006); Elkins v. West, 12 Vet.App. 209, 217 (1999) (en banc). '"A finding is "clearly erroneous" when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 39 (1948)). The appellant first appears to argue that the Board failed to adequately consider a document fromtheNationalStatisticsOfficeindicatinghermaritalstatusto theveteran. Appellant's Brief(Br.) at 1. Her argument is unavailing as, while the document in question is new, it is not material. The document indicates that the appellant and the veteran were married in October 1949. R. at 57. However, similar evidence reflecting that marriage was previously of record. R. at 634. Moreover, whether the appellant was at one time married to the veteran is not in dispute. The issue before the Board was whether the appellant committed fraud by her description of her relationship with Jessie Cruz. The document from the National Statistics Office simply does not relate to that issue and is therefore not material. See 38 C.F.R. § 3.156(a). The appellant next argues that the Board failed to properly apply title 38 of the U.S. Code and that the record generally supports her claim. Appellant's Br. at 2. The appellant provides no specific legal or factual support for these assertions. Id. While the Court is mindful that the 4 appellant is proceeding pro se, she still carries the burden of presenting coherent arguments and of providing adequate support for those arguments. See Mayfield v. Nicholson, 19 Vet.App. 103, 111 (2005) (noting that "every appellant must carry the general burden of persuasion regarding contentions of error"), rev'd 444 F.3d 1328 (Fed. Cir. 2006); Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) ("An appellant bears the burden of persuasion on appeals to this Court.") aff'd per curiam, 232 F.3d 908 (Fed. Cir. 2000) (table); Berger v. Brown, 10 Vet.App. 166, 169 (1997) ("[T]he appellant . . . always bears the burden of persuasion on appeals to this Court."). Without such support there is no basis for the Court to disturb the Board's decision. 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) (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"), rev'd on other grounds sub nom. Coker v. Peake, 310 F. App'x 371 (Fed. Cir. 2008); Cromer v. Nicholson, 19 Vet.App. 215, 219 ( 2005) (holding that the Court will not address any argument "in the absence of the necessary factual predicate"); Evans v. West, 12 Vet.App. 22, 31 (1998) (noting that the Court cannot be expected to consider "vague assertion[s]" or "unsupported contention[s]"); U.S. VET. APP. R. 28(a)(5). III. CONCLUSION Uponconsiderationoftheforegoinganalysis, therecordonappeal, andtheparties'pleadings, the September 29, 2010, Board decision is AFFIRMED. DATED: March 15, 2012 Copies to: Cristina V. Umagat VA General Counsel

Report Finds Hundreds of Illegal Personality Disorder Discharges

Full article at: Newly Disclosed Records Reveal Hundreds More Illegal Personality Disorder Discharges; VVA Finds Navy and Air Force Worst Offenders WASHINGTON, March 22, 2012 /PRNewswire-USNewswire/ -- Since 2008, the Department of Defense (DoD) has illegally discharged hundreds of veterans on the alleged basis of personality disorder (PD), denying them veterans' benefits, according to a Vietnam Veterans of America (VVA) analysis of newly disclosed records released today. The analysis further concludes that since Fiscal Year (FY) 2002, the Navy has discharged the most service members on this basis in absolute terms (7735), and in FY 2006 the Air Force set a military record for the Afghanistan and Iraq era when PD discharges accounted for 3.7 percent of all airmen being discharged (1114 of 29,498 service members). The VVA report, Casting Troops Aside: The United States Military's Illegal Personality Disorder Discharge Problem, is based on records obtained by VVA in federal Freedom of Information Act litigation. The report found that, since 2008, internal DoD reviews discovered hundreds of illegal PD discharges, and since FY 2001, the military has discharged over 31,000 service members on the alleged basis of PD."

Federal Circuit, Akers v. Shinseki, No. 2011-7018, Informal Claim to Reopen, 38 CFR 3.155(a),(c); Kent v. Nicholson, 20 Vet. App. 1, 9 (2006)

Excerpts from decision below: "38 U.S.C. § 5110(a) provides that: Unless specifically provided otherwise in this chapter, the effective date of an award based on . . . a claim reopened after final adjudication . . . shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of an application therefor. Likewise, 38 C.F.R. § 3.400 provides that: Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on . . . a claim reopened after final disallowance . . . will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See also Comer v. Peake, 552 F.3d 1362, 1370 (Fed. Cir. 2009) (“The earliest effective date for an award based on a veteran’s request to reopen a final decision based on new AKERS v. DVA 10 and material evidence is generally the date that the application to reopen was filed.”). This general rule is clear but does not answer the question of whether new and material evidence must be submitted, or at least proffered, at the same time the application is filed. 38 C.F.R. § 3.156(b), entitled “[p]ending claim,” helps answer that question and provides guidance on the relationship between the effective date of benefits and the submission of new and material evidence. That provision states that “[n]ew and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed . . . will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.” This court has acknowledged that section 3.156(b) applies to claims to reopen previously decided claims. See Jackson v. Nicholson, 449 F.3d 1204, 1207-08 (Fed. Cir. 2006) (explaining that “if a claim is reopened based on new and material evidence presented before an ‘appellate decision’ the effective date of the claim will be the date of the original request to reopen . . .” and further explaining that “[i]f a case is remanded to the VA by either the Veterans Court or this court for further adjudication and the issuance of a new Board decision, and new and material evidence has been submitted while the case is still on appeal in the court system, the effective date of the claim may be measured by the date on which the request to reopen was first filed . . . [because u]nder these circumstances, the original proceeding has not been terminated”). Under this regulation, it is evident that the requirements for an application to reopen a claim are not the same as the requirements to actually reopen the claim. This conclusion is also evident from other important provisions within the pro-claimant framework of veterans’ benefits. For instance, 38 U.S.C. § 5103(a) provides in AKERS v. DVA 11 relevant part that “upon receipt of a complete or substantially complete application, the Secretary shall notify the claimant . . . of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.” See also 38 C.F.R. § 3.159(b)(1). This duty includes the duty to explain what “new and material evidence” means. Significantly, this duty only arises after DVA receives a claim. See Kent v. Nicholson, 20 Vet. App. 1, 9 (2006) (explaining that the duty to notify includes explaining to the veteran seeking to reopen the claim the precise nature of the requisite “new” and “material” evidence because these terms “have specific, technical meanings that are not commonly known to VA claimants”). Likewise, while 38 U.S.C. § 5103A “does not require [DVA] to assist claimants attempting to reopen previously disallowed claims absent the provision of ‘new and material evidence’ . . . [DVA] has chosen to assist claimants attempting to reopen in limited circumstances” to wit, in obtaining necessary records. Paralyzed Veterans of Am. v. Sec’y of Veterans Affairs, 345 F.3d 1334, 1353 (Fed. Cir. 2003) (citing 38 C.F.R. § 3.159(c)(1)-(3)). Both of these duties support the conclusions that an application to reopen does not necessarily require the simultaneous submission or proffer of new and material evidence and that the effective date of an application to reopen is not tied to the date when such evidence is actually submitted. Indeed, in this very case, DVA recognized Akers’s 2004 submission as a request to reopen a previously adjudicated claim and accordingly applied 38 U.S.C. § 5110(a) and 38 C.F.R. § 3.400 to award Akers an effective date based on the filing of that request, notwithstanding that when filed it contained no new and material evidence. In its January 2005 rating decision, the VA expressly stated: “We received a request to reopen a previous claim on July 22, 2004. Based on a review of the evidence . . . we have made the following decision on your claim . . . . The claim AKERS v. DVA 12 for service connection for the cause of death remains denied because the evidence is not new and material.” J.A. 61 (emphasis added). This record shows that DVA understood that applying to reopen a claim is one thing and actually reopening it is something else." =================== "In this case, the Veterans Court erred by importing the new and material evidence requirement from 38 U.S.C. § 5108 and 38 C.F.R. § 3.156(a) into the requirements for filing an informal claim to reopen a previously decided claim under 38 C.F.R. § 3.155(a) and (c). This error, however, was harmless. See Szemraj v. Principi, 357 F.3d 1370, 1375 (Fed. Cir. 2004)." ================== United States Court of Appeals for the Federal Circuit __________________________ VICKIE H. AKERS, Claimant-Appellant, v. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee. __________________________ 2011-7018 __________________________ Appeal from the United States Court of Appeals for Veterans Claims in 08-3983, Judge Robert N. Davis. __________________________ Decided: March 23, 2012 __________________________ KENNETH M. CARPENTER, Carpenter, Chartered, of Topeka, Kansas, argued for claimant-appellant. JOSHUA E. KURLAND, Trial Attorney, Commercial Litigation Branch, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With him on the brief were TONY WEST, Assistant Attorney General, JEANNE E. DAVIDSON, Director, and MARTIN F. HOCKEY, Assistant Director. Of counsel on the brief were DAVID J. BARRANS, Deputy Assistant General Counsel, AKERS v. DVA 2 and BRIAN D. GRIFFIN, Attorney, United States Department of Veterans Affairs, of Washington, DC. __________________________ Before NEWMAN, LOURIE, and LINN, Circuit Judges. Opinion for the court filed by Circuit Judge LINN. Concurring opinion filed by Circuit Judge LOURIE. LINN, Circuit Judge. Vickie H. Akers (“Akers”) appeals from a decision of the Court of Appeals for Veterans Claims (“Veterans Court”) affirming a decision of the Board of Veterans’ Appeals (“Board”) refusing to grant Akers an earlier effective date for dependency and indemnity compensation benefits. See Akers v. Shinseki, No. 08-3983, 2010 WL 3452490 (Vet. App. Aug. 31, 2010) (“Veterans Court Op.”), reconsideration denied by Akers v. Shinseki, No. 08- 3983, 2010 WL 3759875 (Vet. App. Sept. 27, 2010). Because the Veterans Court committed no reversible legal error in its affirmance of the Board’s decision, this court affirms. I. BACKGROUND Akers is the widow of James D. Akers (“Mr. Akers”), a veteran who died on February 12, 2002. Mr. Akers had service connected post-traumatic stress disorder rated at 100% disabling at the time of his death. Akers applied for dependency and indemnity compensation benefits in February 2002. In July 2002, Akers’s claim was denied. In February 2003, Akers filed a Notice of Disagreement and on May 9, 2003, the regional office of the United States Department of Veterans Affairs (“DVA”) mailed Akers a Statement of the Case in which it informed Akers that it was continuing to deny her claim and that she AKERS v. DVA 3 could appeal its decision within sixty days. On September 16, 2003, Akers filed an untimely appeal using VA Form 9, entitled “Appeal to the Board of Veterans’ Appeals.” J.A. 55. Akers checked the box on Form 9 corresponding to the statement “I want to appeal all of the issues listed on the Statement of the Case.” Id. On October 3, 2003, DVA informed Akers that her appeal was untimely and that the denial of her claim had become final. DVA informed Akers that her claim could only be reopened if she submitted new and material evidence. In July 2004, DVA received Akers’s submission of a Statement in Support of Claim, along with supporting evidence, which stated that Akers wished to reopen her claim for service connection of Mr. Akers’s death. DVA initially denied Akers’s request to reopen her claim on the ground that Akers had not submitted new and material evidence. Akers appealed, and submitted additional evidence on the basis of which her claim was eventually reopened and granted effective from July 2004, when DVA first received Akers’s request to reopen her claim. Akers filed a Notice of Disagreement seeking to make her benefits effective as of the date of Mr. Akers’s death. DVA denied Akers’s request for an earlier effective date and Akers appealed to the Board. The Board found that Akers’s Form 9 submission was a substantive appeal and that Akers did not attempt to reopen her claim until July 2004. The Board found “no evidence revealing that [Akers] indicated an intent to apply for [dependency and indemnity compensation] benefits between the prior final disallowance of the claim in June 2002 and the date of the receipt of the claim to reopen on July 21, 2004.” No. 07- 21 566, slip op. at 7 (Bd. Vet. App. Sept. 12, 2008). Akers appealed the Board’s decision to the Veterans Court. The Veterans Court affirmed, quoting the Board’s fact finding set forth above, and further reciting that: AKERS v. DVA 4 The Board [stated]: “In fact, the appellant concede[d] during her hearing that she did not file a claim to reopen until July 2004.” Id.; see also R. at 19-20 (November 2007 hearing testimony in which Mrs. Akers, when asked “Was there any claim filed [] prior to July 21, 2004, other than the original claim that was denied?” responded, “No, Ma’am, no.”). The Board concluded, “As the record contains no such communication or action from the appellant until July 21, 2004, there is no factual or legal basis to assign an earlier effective date.” Id. Veterans Court Op., at *2. Of particular relevance to this appeal, the Veterans Court also stated that: While the Board did not specifically discuss whether the September 16, 2003, communication constituted a claim to reopen, its statement of reasons and bases was adequate nonetheless. In order for the September document to have constituted a claim to reopen, it would have needed accompanying new and material evidence. See 38 C.F.R. § 3.156(a). . . . Mrs. Akers did not attach any evidence to the September submission. It therefore would have been impossible for the Board to reopen the claim based on the September 16, 2003, communication. Because of this impossibility, it was not error for the Board to fail to discuss whether the September communication constituted a claim to reopen. Id. (emphasis added). Akers moved for reconsideration and the Veterans Court denied her motion. Akers v. Shinseki, No. 08-3983, 2010 WL 3759875 (Sept. 27, 2010). Akers timely ap- AKERS v. DVA 5 pealed and asserts that this court has jurisdiction pursuant to 38 U.S.C. § 7292. II. DISCUSSION A. Standard of Review “This court reviews legal determinations of the Veterans Court de novo. If the decision of the Veterans Court is not in accordance with law, this court has authority to modify, reverse, or remand the case as appropriate.” Cushman v. Shinseki, 576 F.3d 1290, 1296 (Fed. Cir. 2009) (citations omitted). B. Analysis Before this court, Akers argues that the Veterans Court misinterpreted 38 C.F.R. § 3.156(a) by creating a requirement that a request to reopen a previously adjudicated claim must itself be accompanied by new and material evidence. According to Akers, neither the regulation, nor the statute which it implements, 38 U.S.C. § 5108, requires that new and material evidence actually accompany a claim to reopen. Rather, Akers argues, both provisions require only that new and material evidence be submitted at some time before the request to reopen can be granted. Akers also argues that the Veterans Court committed a second error of law by failing to address Akers’s contention that her Form 9 submission constituted an informal claim to reopen her previously adjudicated claim pursuant to 38 C.F.R. § 3.155. According to Akers, the Veterans Court’s misinterpretation of section 3.156 caused it to reject Akers’s interpretation of section 3.155 sub silentio. Akers states that it is an undisputed fact that prior to her AKERS v. DVA 6 Form 9 submission she had expressed the intent to apply for benefits. Akers further argues that it is undisputed that DVA understood the identity of the benefit Akers was seeking from her Form 9 submission. Thus, according to Akers, it is a question of law based on undisputed facts whether her Form 9 constituted an informal claim to reopen her previously adjudicated claim. DVA responds that Akers’s appeal raises factual issues beyond this court’s jurisdiction. Specifically, DVA argues that Akers asks this court to disturb the Board’s factual determination, as affirmed by the Veterans Court, that Akers never expressed an intent to apply for benefits between the final denial of her original claim and her July 2004 request to reopen her claim. DVA also argues that the Veterans Court never purported to interpret either section 3.155 or 3.156 in its opinion. According to DVA, Akers’s argument boils down to an assertion that the Veterans Court failed to recite the catechism that the Board’s factual determination that Akers never expressed the requisite intent (including in her Form 9) was not clearly erroneous. Thus, according to DVA, this appeal should be dismissed for lack of jurisdiction. DVA argues in the alternative that to the extent that the Veterans Court interpreted sections 3.155 and 3.156, it committed no reversible legal error. According to DVA, the Veterans Court did not base its holding on a categorical rule that no claim to reopen will ever be recognized absent simultaneous submission of new and material evidence, but rather that such evidence would have been necessary on the facts of this case. DVA also argues that the Veterans Court’s reference to Akers’s lack of intent to reopen her claim proved that the Veterans Court had applied the correct interpretation of section 3.155. This appeal therefore requires us to decide: (1) whether Akers has presented an issue of law which this AKERS v. DVA 7 court has the authority to review; and, if so, (2) whether the Veterans Court correctly interpreted 38 U.S.C. § 5108 and 38 C.F.R. § 3.156 to preclude the treatment of Akers’s untimely appeal as an informal claim to reopen her previously adjudicated claim for purposes of determining an effective date of benefits. 1. This Court’s Authority We begin with DVA’s challenge to this court’s authority to review Akers’s appeal. This court’s power to review decisions of the Veterans Court is limited. 38 U.S.C. § 7292(d)(2) states that “[e]xcept to the extent that an appeal under this chapter presents a constitutional issue, [this court] may not review (A) a challenge to a factual determination, or (B) a challenge to a law or regulation as applied to the facts of a particular case.” See also Ellington v. Peake, 541 F.3d 1364, 1371 (Fed. Cir. 2008) (explaining with regard to an alleged informal claim that “the interpretation of the contents of a claim for benefits [is] a factual issue over which we [do] not have jurisdiction.” (citation omitted)); Conway v. Principi, 353 F.3d 1369, 1372 (Fed. Cir. 2004) (“[W]hile we can review questions of law, we cannot review applications of law to fact.”). While this court agrees with DVA that the Veterans Court recited the Board’s fact finding in its own opinion, and that such fact finding is beyond this court’s jurisdiction, it is apparent that the Veterans Court based its holding not exclusively on that fact finding, but also on its interpretation of 38 C.F.R. § 3.156 and implicitly the statutory provision it implements, 38 U.S.C. § 5108. The Veterans Court effectively interpreted those provisions as requiring that an informal claim to reopen a previously decided claim be accompanied by new and material evidence in order to establish an effective date of benefits. AKERS v. DVA 8 According to the Veterans Court, “[i]n order for the September document to have constituted a claim to reopen, it would have needed accompanying new and material evidence.” Veterans Court Op., at *2. Akers is therefore correct that this court has the authority to review the Veterans Court’s interpretation of 38 U.S.C. § 5108 and 38 C.F.R. § 3.156. 2. Effective Date Whether Akers is entitled to an earlier effective date of benefits depends on whether her September 2003 Form 9 appeal qualified as an informal application to reopen her previously adjudicated claim and whether such application must be accompanied by or at least proffer new and material evidence. The requirements for submitting an informal claim are generally established by 38 C.F.R. § 3.155(a), which provides in relevant part that “[a]ny communication or action, indicating an intent to apply for one or more benefits . . . may be considered an informal claim.” This court has held that to qualify as an informal claim, a communication must: (1) be in writing; (2) indicate an intent to apply for benefits; and (3) identify the benefits sought. Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999). Further, 38 C.F.R. § 3.155(c) expressly recognizes, in the context of a claim for dependency and indemnity compensation, that “an informal request for . . . reopening will be accepted as a claim.” See also Tetro v. Principi, 314 F.3d 1310, 1312 (Fed. Cir. 2003) (reciting that claimant “had filed an informal claim to reopen”); Sagainza v. Derwinski, 1 Vet. App. 575, 579 (1991) (recognizing an informal claim to reopen previously adjudicated claim). Relevant to this case is the recognition that “statements cannot constitute informal requests to reopen . . . [if] they fail to demonstrate an intent to reopen a disallowed AKERS v. DVA 9 claim.” King v. Shinseki, 23 Vet. App. 464, 469 (2010), aff’d by King v. Shinseki, 430 F. App’x 890 (Fed. Cir. 2011). 38 U.S.C. § 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.” The implementing regulation, 38 C.F.R. § 3.156(a), states in relevant part that “[a] claimant may reopen a finally adjudicated claim by submitting new and material evidence.” Both the statute and the regulation expressly and unambiguously require that new and material evidence be obtained for a claim to be reopened. Benefits awarded pursuant to a reopened claim are generally effective from the date of the application to reopen. 38 U.S.C. § 5110(a) provides that: Unless specifically provided otherwise in this chapter, the effective date of an award based on . . . a claim reopened after final adjudication . . . shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of an application therefor. Likewise, 38 C.F.R. § 3.400 provides that: Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on . . . a claim reopened after final disallowance . . . will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See also Comer v. Peake, 552 F.3d 1362, 1370 (Fed. Cir. 2009) (“The earliest effective date for an award based on a veteran’s request to reopen a final decision based on new AKERS v. DVA 10 and material evidence is generally the date that the application to reopen was filed.”). This general rule is clear but does not answer the question of whether new and material evidence must be submitted, or at least proffered, at the same time the application is filed. 38 C.F.R. § 3.156(b), entitled “[p]ending claim,” helps answer that question and provides guidance on the relationship between the effective date of benefits and the submission of new and material evidence. That provision states that “[n]ew and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed . . . will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.” This court has acknowledged that section 3.156(b) applies to claims to reopen previously decided claims. See Jackson v. Nicholson, 449 F.3d 1204, 1207-08 (Fed. Cir. 2006) (explaining that “if a claim is reopened based on new and material evidence presented before an ‘appellate decision’ the effective date of the claim will be the date of the original request to reopen . . .” and further explaining that “[i]f a case is remanded to the VA by either the Veterans Court or this court for further adjudication and the issuance of a new Board decision, and new and material evidence has been submitted while the case is still on appeal in the court system, the effective date of the claim may be measured by the date on which the request to reopen was first filed . . . [because u]nder these circumstances, the original proceeding has not been terminated”). Under this regulation, it is evident that the requirements for an application to reopen a claim are not the same as the requirements to actually reopen the claim. This conclusion is also evident from other important provisions within the pro-claimant framework of veterans’ benefits. For instance, 38 U.S.C. § 5103(a) provides in AKERS v. DVA 11 relevant part that “upon receipt of a complete or substantially complete application, the Secretary shall notify the claimant . . . of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.” See also 38 C.F.R. § 3.159(b)(1). This duty includes the duty to explain what “new and material evidence” means. Significantly, this duty only arises after DVA receives a claim. See Kent v. Nicholson, 20 Vet. App. 1, 9 (2006) (explaining that the duty to notify includes explaining to the veteran seeking to reopen the claim the precise nature of the requisite “new” and “material” evidence because these terms “have specific, technical meanings that are not commonly known to VA claimants”). Likewise, while 38 U.S.C. § 5103A “does not require [DVA] to assist claimants attempting to reopen previously disallowed claims absent the provision of ‘new and material evidence’ . . . [DVA] has chosen to assist claimants attempting to reopen in limited circumstances” to wit, in obtaining necessary records. Paralyzed Veterans of Am. v. Sec’y of Veterans Affairs, 345 F.3d 1334, 1353 (Fed. Cir. 2003) (citing 38 C.F.R. § 3.159(c)(1)-(3)). Both of these duties support the conclusions that an application to reopen does not necessarily require the simultaneous submission or proffer of new and material evidence and that the effective date of an application to reopen is not tied to the date when such evidence is actually submitted. Indeed, in this very case, DVA recognized Akers’s 2004 submission as a request to reopen a previously adjudicated claim and accordingly applied 38 U.S.C. § 5110(a) and 38 C.F.R. § 3.400 to award Akers an effective date based on the filing of that request, notwithstanding that when filed it contained no new and material evidence. In its January 2005 rating decision, the VA expressly stated: “We received a request to reopen a previous claim on July 22, 2004. Based on a review of the evidence . . . we have made the following decision on your claim . . . . The claim AKERS v. DVA 12 for service connection for the cause of death remains denied because the evidence is not new and material.” J.A. 61 (emphasis added). This record shows that DVA understood that applying to reopen a claim is one thing and actually reopening it is something else. Finally, it is important to note that permitting the perfecting of an informal claim that evinces an intent to reopen by the subsequent filing of new and material evidence does not give any special or undeserved advantage to veterans who successfully reopen their claims and are ultimately awarded benefits based on “the date of receipt of the claim” under 38 C.F.R. § 3.400. A veteran who relies on the “receipt of the claim” prong of section 3.400, rather than the “date entitlement arose” prong, by definition had an entitlement to benefits that existed before the date of the relevant application to reopen. There is no injustice if such claimants are awarded the effective date when they first asked DVA to reconsider its prior decision. And because claims that are not ultimately supported by new and material evidence will be denied in due course, there is no potential for harm to the government. For the above reasons, it is apparent that the requirements to recognize an informal request to reopen a claim, and the requirements to grant such a request, are different: While actually reopening a claim requires new and material evidence, an informal request to do so does not.1 Even though such an informal claim would ulti- 1 The Concurrence—while first contending that “there is no application to reopen” in the absence of new and material evidence—concedes that an informal claim to reopen does not need to include new and material evidence but “must, at minimum, indicate an intent to submit the required new and material evidence.” Concurrence 2. But there is no principled difference between an informal application that states, “I want to reopen my claim” and one that states, “I want to reopen my claim AKERS v. DVA 13 mately be denied if no new and material evidence were forthcoming, an informal claim to reopen a previously decided claim can be accepted for purposes of establishing an effective date of benefits before the requisite new and material evidence has actually been submitted. Accordingly, this court holds that for purposes of establishing an effective date of benefits ultimately granted pursuant to a reopened claim, an otherwise proper informal request to reopen such a claim need not be accompanied by the simultaneous submission or proffer of new and material evidence. In this case, the Veterans Court erred by importing the new and material evidence requirement from 38 U.S.C. § 5108 and 38 C.F.R. § 3.156(a) into the requirements for filing an informal claim to reopen a previously decided claim under 38 C.F.R. § 3.155(a) and (c). This error, however, was harmless. See Szemraj v. Principi, 357 F.3d 1370, 1375 (Fed. Cir. 2004). While this court cannot review the factual sufficiency of evidence in appeals from the Veterans Court, we have jurisdiction to determine as a matter of law that there is a total lack of evidence to support a particular conclusion. See Waltzer v. Nicholson, 447 F.3d 1378, 1380 (Fed. Cir. 2006). Akers’s Form 9 appeal contained no evidence of any kind showing an intent to reopen her previously decided claim. The Form 9 was therefore legally insufficient evidence of the requisite intent to reopen. Thus, the Veterans Court’s imposition of an incorrect evidentiary burden on informal claimants was harmless error. Akers’s remaining arguments have been considered and are without merit. based on new and material evidence.” Nothing in the regulation requires that an informal claim evince anything more than an “intent to apply for one or more benefits.” The regulation does not purport to require a statement of the specific basis of the claim, at least for purposes of establishing an effective date. AKERS v. DVA 14 III. CONCLUSION For the foregoing reasons, the decision of the Veterans Court is affirmed. AFFIRMED COSTS Each party shall bear its own costs. United States Court of Appeals for the Federal Circuit __________________________ VICKIE H. AKERS, Claimant-Appellant, v. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee. __________________________ 2011-7018 __________________________ Appeal from the United States Court of Appeals for Veterans Claims in 08-3983, Judge Robert N. Davis. __________________________ LOURIE, Circuit Judge, concurring. Although I agree with the result reached in this case by the majority, I disagree with its reasoning, particularly its interpretation of 38 C.F.R. § 3.155. As the majority correctly notes, 38 C.F.R. § 3.155(c) permits a veteran to make an informal claim to reopen a previously decided claim, and there is no explicit requirement in that provision to present new and material evidence. However, both 38 U.S.C. § 5108 and 38 C.F.R. § 3.156(a) plainly condition reopening on the submission of new and material evidence. As the statute provides, “If new and material evidence is presented . . . the Secretary shall reopen the claim . . . ,” 38 U.S.C. § 5108 (emphasis added), and as the regulation states, “[a] claimant may reopen a finally AKERS v. DVA 2 adjudicated claim by submitting new and material evidence,” 38 C.F.R. § 3.156(a) (emphasis added). The word “if” is conditional, and the word “by” is procedural. Unless the “if” occurs and the “by” is effected—in other words, unless new and material evidence is submitted—there is no application to reopen. New and material evidence, then, is the sine qua non of an application to reopen; any legally sufficient application to reopen requires new and material evidence. In that respect, an informal claim is no different. Because an informal claim under 38 C.F.R. § 3.155(a) must “indicat[e] an intent to apply for one or more benefits,” and because applying to reopen requires submitting new and material evidence, an “informal request for . . . reopening” under § 3.155(c) must, at minimum, indicate an intent to submit the required new and material evidence. Thus, the Veterans Court correctly imported a new and material evidence requirement into the requirements for an informal claim to reopen. The majority’s interpretation of § 3.155, in contrast, divorces the new and material evidence from the application to reopen, relegating the essential statutory requirement of new and material evidence to a mere afterthought. My understanding of 38 C.F.R. § 3.155 is consistent with the other relevant statutes, including the effective date provision. Under 38 U.S.C. § 5110, “the effective date of an award based on . . . a claim reopened after final adjudication . . . shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.” An application to reopen requires new and material evidence, so the effective date of an informal claim to reopen cannot be earlier than the date that a veteran indicates an intent to apply, that is, an intent to submit the required new and material evidence. AKERS v. DVA 3 In the present case, the handling of Akers’s claim by the Board and the Veterans Court constituted a correct application of 38 C.F.R. § 3.155. Because Akers’s VA Form 9 did not indicate any intent to reopen by submitting new and material evidence, the Form 9 could not, as a matter of law, constitute an informal claim to reopen. Akers’s July 2004 submission was another matter, however. In that submission Akers not only stated that she wished to reopen her previously decided claim, but, critically, she also stated her intent to submit new and material evidence. Although the evidence submitted by Akers in July 2004 was ultimately deemed insufficient, in February 2006 she provided new and material evidence substantiating her claim. As the Veterans Court affirmed, Akers’s successful claim to reopen thus had an effective date of July 2004—the date she was found to have indicated her intent to submit new and material evidence to reopen her claim. We lack jurisdiction to review questions of fact or the application of law to fact. However, because Akers’s Form 9 was legally deficient under 38 C.F.R. § 3.155 by the reasoning I have set forth above, affirmance is the correct result in this case.

Single Judge Application, Parrish v. Shinseki, 24 Vet.App. 391, 401(2011); Fed.R. Evid. 803(4)

Excerpt from decision below: "cf. FED. R. EVID. 803(4) (recognizing that statements made for the purpose of medical treatment generally are reliable)." ======================= "With regard to the lack of discussion by the 2008 VA examiner about military service and whether or not a major depressive disorder might have been a likely diagnosis in the period immediately after WWII, there is no per se requirement that a medical examiner restate any particular facts in his report. See Parrish v. Shinseki, 24 Vet.App. 391, 401 (2011) ("[I]t is the Board, not medical examiners, that has the duty to . . . [provide] a statement of reasons or bases."(citing Gabrielson v. Brown, 7 Vet.App. 36, 40 (1994))); see also D'Aries v. Peake, 22 Vet.App. 97, 103-04 (2008) (holding that a medical opinion is adequate where it is based upon the veteran's medical history, examinations, and also describes the disability in sufficient detail, and holding that 2 whether a medical opinion is adequate is a finding of fact, which the Court reviews for clear error). ====================== ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS No. 10-3627 THOMAS W. GOODALL, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before KASOLD, Chief Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. KASOLD, Chief Judge: Veteran Thomas W. Goodall appeals through counsel a November 30, 2009, decision of the Board of Veterans' Appeals (Board) that denied disability compensation for depression, to include as secondary to headaches, because the depression was not service connected. Mr. Goodall seeks reversal arguing that the Board erred by (1) failing to address an in-service head injury, (2) relying on his lay testimony to diagnose the onset of his depression, (3) providing and relying on an inadequate medical examination, and (4) failing to address whether his depression is related to his service-connected migraine headaches. The Secretary disputes these arguments. Single-judge disposition is appropriate. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons set forth below, the Board's decision will be affirmed. The record of proceedings does not support Mr. Goodall's arguments. As to his first argument, although the Board did not address an in-service head injury from the 1940s and any connection between that event and his current depression, Mr. Goodall fails to note any evidence of record indicating or suggesting any such nexus and he fails to demonstrate that the Board erred by not addressing such a nexus. See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (appellant bears burden of demonstrating error on appeal); see also Robinson v. Peake, 21 Vet.App. 545, 522 (2008) (Board errs when it fails to address issues reasonably raised by the record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). Contrary to his second argument, the record is replete with medical evidence supporting the Board's finding that Mr. Goodall's depression began many years after service and was not related to service. To the extent Mr. Goodall contends that medical examiners cannot rely on the history of symptoms provided by a patient in support of an opinion on etiologyof a mental condition, he cites no support for such a proposition; indeed, the law is to the contrary, see Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (noting general competence of laypersons to testify as to symptoms but not medical diagnosis); Espiritu v. Derwinski, 2 Vet.App. 492, 494-95 (1992) (stating that a layperson generally can provide an account of symptoms but not a diagnosis that requires medical knowledge); cf. FED. R. EVID. 803(4) (recognizing that statements made for the purpose of medical treatment generally are reliable). In support of his third argument, Mr. Goodall notes that the January 2008 VA examination report relied on by the Board did not address his military service in 1946 and 1947 or the likelihood of a World War II diagnosis of major depressive order. He also contests the competency of the medical examiner. As to competency, Mr. Goodall did not raise this issue below and he points to nothing in the record that might have raised the issue below; he also otherwise fails to establish any basis for questioning the competencyof the examiner. See Bastien v. Shinseki, 599 F.3d 1301, 1307 (Fed. Cir. 2010) (Board not required to present affirmative evidence of competency in absence of specific reasons for challenging competency); Rizzo v. Shinseki, 580 F.3d 1288, 1291 (Fed. Cir. 2009) (applying the presumption of regularity to VA examiner competency); Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (stating that Board is entitled to assume competency of VA examiner and appellant bears the burden of persuasion otherwise). With regard to the lack of discussion by the 2008 VA examiner about military service and whether or not a major depressive disorder might have been a likely diagnosis in the period immediately after WWII, there is no per se requirement that a medical examiner restate any particular facts in his report. See Parrish v. Shinseki, 24 Vet.App. 391, 401 (2011) ("[I]t is the Board, not medical examiners, that has the duty to . . . [provide] a statement of reasons or bases."(citing Gabrielson v. Brown, 7 Vet.App. 36, 40 (1994))); see also D'Aries v. Peake, 22 Vet.App. 97, 103-04 (2008) (holding that a medical opinion is adequate where it is based upon the veteran's medical history, examinations, and also describes the disability in sufficient detail, and holding that 2 whether a medical opinion is adequate is a finding of fact, which the Court reviews for clear error). Here, the Board found that the VA examiner reviewed Mr. Goodall's claims file, which included service sick and morning call reports, as well as private medical records. However, as also found by the Board, the examiner noted that Mr. Goodall reported that his feelings of depression began 8 to 10 years prior to the VA examination – which is some 40 or so years after service. Overall, the examiner opined that Mr. Goodall's depression was not related to service. As noted above, nothing prevents an examiner from weighing the reported symptoms of a patient when rendering an opinion. See Jandreau and Espiritu, both supra. Moreover, Mr. Goodall fails to demonstrate that the 2008 VA examiner's opinion was predicated on incomplete or erroneous facts. Indeed, the Board found that there was no evidence of depression prior to the time stated by Mr. Goodall, and based on the record of proceedings, that finding is plausible and not clearly erroneous. See Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) ("'A finding is "clearly erroneous" when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'"(quoting United States v. U.S.GypsumCo., 333 U.S. 364, 395 (1948))); see also Hilkert, supra. Contrary to Mr. Goodall's final argument, the Board discussed whether his migraine headaches were the cause of his depression. Indeed, the record medical reports generally addressed whether Mr. Goodall's current depression might be related to his service-connected headaches. The Board discussed several private medical opinions, but noted that none reflected an opinion that Mr. Goodall's depression was due to his headaches; the Board also noted some internal inconsistencies in some of the private reports. Moreover, the Board noted that the 2008 VA examiner also did not attribute Mr. Goodall's depression to his headaches; rather, he opined that Mr. Goodall's depression was due to his loneliness and feelings of uselessness. Overall, the Board's statement is understandable and faciliative of judicial review. See Allday v. Brown, 7 Vet.App. 517, 527 (1995) (holding that the Board's statement "must be adequate to enable claimant to understand the precise basis for the Board's decision, as well as to facilitate review in this Court"). Upon consideration of the foregoing, November 30, 2009, decision of the Board is AFFIRMED. DATED: March 8, 2012 3 Copies to: Gregory Chandler, Esq. VA General Counsel