Single Judge Application, Massie v. Shinseki, 25 Vet.App. 123, 131-32 (2011); 38 CFR 3.157(b)

Excerpt from decision below: "Accordingly, this Court has previously held that, unless the evidence of record demonstrates the veteran's intent to seek benefits for a particular disability, the mere existence of medical evidence referencing the disability, such as that cited by Mr. 9 Hester, does not raise an informal claim for such benefits. See Criswell v. Nicholson, 20 Vet.App. 501, 503–04 (2006). The only exception to this rule is that, pursuant to regulation, certain medical records demonstrating a worsening in a veteran's disability that is already service connected may constitute an informal claim for an increased disability rating for that disability. See 38 C.F.R. § 3.157(b) (2011); see also Massie v. Shinseki, 25 Vet.App. 123, 131-32 (2011) (discussing the requirements of § 3.157(b)). ================ ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 10-3072 ANTE HESTER, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before HAGEL, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. HAGEL, Judge: Ante Hester, who is self-represented,1 appeals a December 17, 2009, Board of Veterans' Appeals (Board) decision2 denying entitlement to an initial disability rating for a cervical spine disability in excess of 20% from December 14, 1993, to August 16, 2001, and in excess of 60% from August 16, 2001, onward.3 Mr. Hester's Notice of Appeal was timely and the Court has jurisdiction to review the Board decision pursuant to 38 U.S.C. § 7252(a). The parties neitherrequestedoralargumentnor identified issues that theybelieve requireaprecedentialdecision 1 Mr. Hester's principal brief was submitted through counsel, but the Court issued an order granting his former counsel's motion to withdraw on September 22, 2011. The Board's decision was issued on December 17, 2009. Mr. Hester subsequently filed a motion for reconsideration, which was denied by the Board on September 8, 2010. The Board also granted entitlement to VA benefits for a left elbow disability. However, on appeal, Mr. Hester presents no argument related to this aspect of the Board decision and the Court therefore deems any such argument abandoned. See Grivois v. Brown, 6 Vet.App. 136, 138 (1994) (issues or claims not argued on appeal are considered abandoned). The Board also remanded the issue of entitlement to a total disability rating based on individual unemployability for further development. Because the Board has not yet issued a final decision regarding this issue, the Court does not have authority to consider it at this time. See 38 U.S.C. § 7252 (providing that the Court may only review final decisions of the Board); see also Howard v. Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000) (holding that a Board remand does not constitute a final decision that may be appealed (citing 38 C.F.R. § 20.1100(b)(1999))). 3 2 of the Court. Because the Board provided an adequate statement of reasons or bases for its decision, the Court will affirm the September 2010 Board decision. I. FACTS Mr. Hester served on active duty with the U.S. Army from October 1993 to December 1993. He was discharged from active duty after a medical board determined, in October 1993, that he did not meet medical fitness standards for enlistment due to the residuals of a preexisting left elbow fracture"with intermittent symptoms ofnumbnessand tinglingin the ulnar nervedistribution aswell as the middle finger on the left hand" that occasionally spread to the index finger. Record (R.) at 1735. The medical board noted that, a week prior to its determination, Mr. Hester fell and subsequently "developed some muscle spasm on the left side of his neck." R. at 1735. In January 1994, shortly after his separation from active duty, Mr. Hester filed a claim for VA benefits for a neck injury resulting from the in-service fall. Mr. Hester was provided a VA muscles examination in April 1994. After a physical examination and the interpretation of x-rays taken at that time, the examiner diagnosed Mr. Hester with a left neck muscle strain and ruled out cervical radiculopathy.4 In June 1994, a VA regional office awarded Mr. Hester VA benefits for a left neck muscle strain, evaluated as 10% disabling, effective January 1994. Mr. Hester filed a Notice of Disagreement with this decision in November 1994 and, in December 1994, the regional office issued a Statement of the Case continuing the previous determination. In January 1995, Mr. Hester submitted a statement requesting a personal hearing and notification of what further action would be taken. VA medical records from 1996 indicate that Mr. Hester sought treatment for various problems. A January 1996 VA treatment note reflects that Mr. Hester reported intermittent headaches with photophobia, the sensation of seeingblackdots, andpressure. Theimpression atthat time was probable vascular headaches. A March 1996 VA treatment note reflects continued complaints of headaches and blurry eyesight. A VA treatment note from September 1996 indicates Radiculopathy is "disease of the nerve roots, such as from inflamation or impingement by a tumor or bony spur." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1571 (32d ed. 2012) [ hereinafter "DORLAND'S"]. 4 2 that Mr. Hester complained of neck pain with right arm numbness. The only assessment was neck pain. A VA neurological clinic note from October 1996 indicates that Mr. Hester reported headaches, tingling in both of his hands, and numbness in his right arm. Mr. Hester told the examiner that his headaches had plagued him since childhood and caused some visual problems, but no nausea or vomiting. The examiner's impression was variable headaches and numbness and tingling on both hands. Peripheral neuropathy5 and cervical radiculopathy were ruled out. Mr. Hesterwasaffordeda VA joints examination in February1997. The examiner noted that computedtomographyscansofMr.Hester'sheadperformedin February1996werenegativeandthat nerve conduction velocity studies performed on his left upper extremity in March 1995 were negative for radiculopathy, neuropathy, and carpal tunnel disease. After physical examination, the examiner diagnosed a chronic strain of the cervical spine. In June 1997, the regional office issued a rating decision denying a disability rating in excess of 10% for a left neck muscle strain. Although not entirely clear, it appears that the regional office made this determination in the context of a new claim for an increased disability rating. There is no indication that Mr. Hester appealed this decision, meaning it became final. A November 2000 VA physical therapy initial evaluation report reflects that Mr. Hester complained of increased pain in his spine described as "intermittent and . . . localized to the left upper trapezius muscle with some radiation into the upper cervical spine, radiating into the occiput as well as to the parietal lobe, experiencing the pain as headaches." R. at 1589. The assessment at that time was "signs and symptoms of [a] left upper trapezius strain." R. at 1589. A March 2001 VA x-ray report contained an impression of cervical spondylosis. A subsequent VA treatment note from May 2001 reflects that Mr. Hester complained of recent loss of balance and continuing headaches, neck pain, and neck spasms. The impression was (1) cervical spondylosis, (2) myofascial6 pain, and (3) headaches secondary to the cervical spondylosis and myofascial pain, or of another etiology. Peripheral neuropathy, or polyneuropathy, is "neuropathy of several peripheral nerves simultaneously." DORLAND'S at 1491. Neuropathy is "a functional disturbance or pathological change in the peripheral nervous system, sometimes limited to noninflammatory lesions as opposed to those of neuritis." Id. at 1268. The term "myofascial" means "pertaining to or involving the fascia surrounding and associated with muscle tissue." DORLAND'S at 1223. 6 5 3 In August 2001, Mr. Hester submitted a statement "requesting a current review of [his] present condition as it relates to spondylosis, facial pain[,] and migraine headaches." R. at 1480. The regional office treated this statement as a claim for an increased disability rating for his service- connected left neck muscle strain and initial claims for VA benefits for cervical spondylosis and myofascial pain with headaches, both secondary to his service-connected left neck muscle strain. Each of these claims was denied by the regional office in a June 2002 rating decision. The claims for benefits for myofascial pain with headaches and cervical spondylosis were both denied because there was no evidence that they were related to the service-connected left neck muscle strain or that the conditions manifested in service. Mr. Hester filed a Notice of Disagreement with this decision in December 2002. Mr. Hester was afforded VA spine examinations in September 2002 and July 2003, during which range of motion testing was conducted and magnetic resonance imaging and electromyography testing results were reviewed. The September 2002 examiner diagnosed Mr. Hester with "[c]ervical spondylosis with foraminal stenosis" and the July 2003 examiner assessed him with "[i]ntervertebral dis[c] syndrome with radicular symptoms and cervical spondylosis with foraminal stenosis." R. at 1347, 977. The July 2003 examiner further opined that "it is at least as likely as not that the continued progression of [Mr. Hester's] symptoms are related to the onset of symptoms in service." R. at 977. Separate Statements of the Case were issued in October 2002 (continuing to deny an increased disability rating for a service-connected left neck muscle strain) and September 2003 (continuing to deny, among other claims, Mr. Hester's claim for VA benefits for myofascial pain with headaches). Also in September 2003, a decision review officer granted Mr. Hester's claim for benefits for cervical spine spondylosis and assigned a 10% disability rating, effective August 16, 2001. This award of benefits was made in addition to the existing award of benefits for a left neck muscle strain. Mr. Hester filed a Notice of Disagreement with this decision later that month. In November 2003, Mr. Hester submitted a statement indicating that he "[d] isagree[ed] with all of the [i]ssue[s] on appeal" and that he wanted "a decision on all [of his] [i]ssue[s]." R. at 770, 771. 4 In March 2004, a decision review officer issued another decision. At the outset, the decision review officer noted that other issues remained pending following the issuance of Statements of the Case, including Mr. Hester's claim for benefits for myofascial pain syndrome with headaches. The decision reviewofficerfoundthatMr.Hester's service- connectedleftneckmusclestrainandcervical spondylosis should betreatedasonedisabilityandthat"[t]he evaluation of cervical spondylosis with chronic muscle strain of the left neck [was] increased to 60% disabling effective August 16, 2001." R. at 587. The decision review officer rated this condition pursuant to the rating criteria for intervertebral disc syndrome, 38 C.F.R. § 4.71a, Diagnostic Code 5293 ( 2001).7 In establishing this disability rating, the decision review officer relied on "[m]edical evidence show[ing] significant impairment in the neck and left arm with lesser symptoms in the right arm," and stated that the 60% disability rating "include[d] all neurological symptoms in the arms." R. at 587. In October 2007, Mr. Hester requested revision of the June 1994 regional officedecision that awarded benefits for a left neck muscle strain and assigned a 10% disability rating, alleging that that decision was tainted by clear and unmistakable error. After further development, in July 2009 the Board dismissed this motion as untimely because it found that Mr. Hester's January 1995 statement regarding his neck claim was filed "within the one year appeals period from the denial of the claims" and was sufficient to demonstrate his intent to pursue an appeal of the issues decided in the June 1994 regional office decision. R. at 166. Accordingly, the Board found that the regional office mistakenly "failed to certify the issues to the Board, . . . the Board . . . never [took] any action," and the appeal therefore remained open. R. at 166. The Board remanded Mr. Hester's claim for benefits for a left neck muscle strain for further development and readjudication. In October 2009, the regional office issued a Supplemental Statement of the Case continuing to deny an initial disability rating for a service-connected left neck muscle strain in excess of 10% for the period between December 14, 1993, and August 16, 2001, whenMr. Hester's disabilityrating was increased to 60%. The following month, Mr. Hester appealed to the Board, arguing that, because his appeal remained open, the effective date for the March 2004 award of a 60% disability rating should have been effective from the date of his claim. 7 Becausethediagnosticcriteriachanged duringthependencyofMr. Hester'sappeal, thedecisionreviewofficer determined that the previous version would result in a higher disability rating,and therefore applied it. 5 TheBoardissuedthe decision now on appeal in December 2009. The Board framedtheissue before it as Mr. Hester's entitlement to an initial disability rating for a "cervical spine disability" in excess of 10% for the period from December 14, 1993 (the date Mr. Hester filed a claim for a neck injury), to August 16, 2001 (the effective date established by the March 2004 decision for a 60% disability rating for cervical spondylosis with chronic muscle strain of the left neck). R. at 94. II. ANALYSIS In rendering its decision, the Board is required to provide a written statement of the reasons or bases for its "findings and conclusions[] on all material issues of fact and law presented on the record." 38 U.S.C. § 7104(d)(1). The statement must be adequate to enable a claimant to understand the precise basis for the Board's decision, as well as to facilitate review in this Court. See Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). The Board may commit error requiring remand when it fails to provide an adequate statement of its reasons or bases. See Gilbert, 1 Vet.App. at 57. Mr. Hester argues that the Board's reasons or bases for its decision were inadequate in four respects, all of which pertain to the disability rating established prior to August 16, 2001. A. Extraschedular Consideration First, Mr. Hester contends that the Board failed to adequately explain its determination that referral for extraschedularconsideration was not warranted for the period of time prior to August 16, 2001. Consideration of whether a claimant is entitled to an extraschedular rating is a three-step inquiry. Thun v. Peake, 22 Vet.App. 111, 115 (2008), aff'd, 572 F.3d 1366 ( Fed. Cir. 2009). The first step is to determine whether the "evidence before VA presents such an exceptional disability picture that the availableschedular evaluations for that service-connected disabilityare inadequate." Id. If the adjudicator determines that this is so, the second step of the inquiryrequires the adjudicator to "determine whether the claimant's exceptional disability picture exhibits other related factors," 6 such as marked interference with employment or frequent periods of hospitalization. Id. at 116. Finally, if the first two steps of the inquiry have been satisfied, the third step requires the adjudicator to refer the claim to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether an extraschedular rating is warranted. Id. TheBoardconcludedthat,priorto August16,2001,Mr.Hester's"service- connectedcervical spine disability manifest[ed] with pain and limitation of motion, with associated neurological symptoms of sensorydeficit." R. at 112. However, the Board further concluded that its examination of Mr. Hester's symptoms and the relevant schedular criteria reflected that "these symptoms are contemplated by the rating criteria." R. at 112. The Board therefore concluded that referral for extraschedular consideration was not warranted. Mr. Hester argues that, by discussing only his symptoms of pain, limitation of motion, and neurological sensory deficits, the Board ignored evidence suggesting that, prior to August 2001, he alsosufferedfromsymptoms suchasheadaches,blurredvision, lossofbalance, andmyofascialpain. He further asserts that there is evidence that these symptoms may be attributable to his service- connected neck condition, including the May 2001 VA treatment note that included an assessment of headaches possibly secondary to the cervical spondylosis or myofascial pain. Accordingly, he contends that the Board should have discussed whether these symptoms warranted referral for extraschedular consideration. The Court disagrees. The record indicates that, since Mr. Hester filed a statement in August 2001 requesting review of his condition as it relates to myofascial pain and migraine headaches, the regional office has recognized a separate claim for disability compensation benefits for a condition characterized by such symptoms, including as secondary to Mr. Hester's service-connected neck/cervical spine condition. The record further indicates that the regional office denied this claim in June 2002, that Mr. Hester filed a Notice of Disagreement with this decision, and that the regional office issued a Statement of the Case continuing to deny this claim in September 2003. The Court notes that, in November 2003, Mr. Hester filed a statement expressing that he "[d]isagree[ d] with all of the [i]ssue[s] on appeal" and requesting "a decision on all [his] [i]ssue[s]." R. at 770, 771. In January 2012, the Court issued an order directing "the Secretary to supplement the record of proceedings with all documents pertaining to VA's adjudication of the claim for benefits for 7 myofascial pain syndrome with headaches" in an effort to better assess the status of this claim. Hester v. Shinseki, U.S. Vet. App. No. 10-3072 (Jan. 20, 2012, order).8 Although the Secretaryfiled a supplemental record of proceedings in February 2012, the evidence contained in this supplement is either duplicative of that already contained in the original record of proceedings or simply does not relate to Mr. Hester's claim for benefits for myofascial pain with headaches. The Court is therefore left to assume that VA has taken no further adjudicatory action on this claim since the September 2003 Statement of the Case. The Court is troubled by this state of affairs, given Mr. Hester's November2003statementthatappearsto request appellatereview of all issues thenpending in appellate status, which would presumablyinclude the denial of his claim for myofascial pain with headaches. Nevertheless, because the issue of the denial of benefits on that claim is not currently before the Court, the Court makes no finding at this time regarding whether the November 2003 statement constituted a Substantive Appeal, since the Court would lack jurisdiction to do so. Regardless, it is apparent from the record that VA has determined that Mr. Hester's myofascial pain, headaches,and attendant symptoms are attributable to a disabilityseparate from his service-connected cervical spine disability, and that this disability is not secondary to the cervical spine disability or otherwise related to his service. This being so, these symptoms are not pertinent to the service-connected cervical spine disability that is at the heart of this appeal and the Board was therefore not required to discuss them when conducting an extraschedular analysis. See 38 C.F.R. § 3.321 (2011) (expresslystating that extraschedular evaluation should compensate for "the average earning capacity impairment due exclusively to the service-connected disability or disabilities" (emphasis added)); see also 38 U.S.C. § 7104(d)(1) (providing that the Board must provide a statement of its reasons or bases for its findings and conclusions only " on . . . material issues of fact and law presented on the record" (emphasis added)); Caluza, 7 Vet.App. at 506 (stating that the Board's obligation to explain its determinations requires it to explain its rejection of any material evidence that is favorable to the claimant). In reaching this conclusion, the Court emphasizes that The Court also offered Mr. Hester an opportunity to supplement the record with any documents he felt were relevant but had not been included in the supplement filed by the Secretary, see Hester v. Shinseki, U.S. Vet. App. No. 10-3072 (Mar. 15, 2012, order), but, on March 20, 2012, he filed a response indicating that he had nothing more to add. 8 8 the propriety of the regional office's determination that Mr. Hester's disorder characterized as myofascial pain with headaches is not service connected is simply not before the Court at this time. In light of this discussion, the Court concludes that Mr. Hester has not carried his burden of demonstrating error in the Board decision now on appeal. See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (holding that appellant has the burden of demonstrating error), aff'd per curiam, 232 F.3d 908 (Fed. Cir. 2000) (table). B. Claims Reasonably Raised by the Record Mr. Hesternext argues that the Board's statement of reasons or bases was inadequate because "the decision on appeal fails to explain why the evidence of headaches, blurred vision, and loss of balance—and evidence that these problems are associated with service- connected cervical spine disability—were not additional claims reasonably raised by the record." Appellant's Br. at 15. This argument is not compelling. First, and as noted above, the record reflects that VA has recognized and adjudicated a claim for myofascial pain syndrome with headaches since Mr. Hester filed his August 2001 statement requesting a review of his condition as manifested by facial pain and headaches. Because VA has recognized and adjudicated such a claim, Mr. Hester's argument that the Board should have discussed the possibility that evidence of headaches raised a separate claim is without merit. To the extent that Mr. Hester's argument is that VA should have recognized the possibility of a claim for a separate condition manifested by blurred vision and loss of balance, in support of this argument, he cites only to various medical records documenting these symptoms. However, it is now well established that an intent to apply for benefits is an essential element of any claim, whether formal or informal, and that such intent must be expressed in writing. See Brokowski v. Shinseki, 23 Vet.App. 79, 84 (2009) (explaining that "the essential requirements of any claim, whether formal or informal," are "(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing"); see also 38 C.F.R. § 3.1(p) (2011) (defining a "claim" as "a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement"). Accordingly, this Court has previously held that, unless the evidence of record demonstrates the veteran's intent to seek benefits for a particular disability, the mere existence of medical evidence referencing the disability, such as that cited by Mr. 9 Hester, does not raise an informal claim for such benefits. See Criswell v. Nicholson, 20 Vet.App. 501, 503–04 (2006). The only exception to this rule is that, pursuant to regulation, certain medical records demonstrating a worsening in a veteran's disability that is already service connected may constitute an informal claim for an increased disability rating for that disability. See 38 C.F.R. § 3.157(b) (2011); see also Massie v. Shinseki, 25 Vet.App. 123, 131-32 (2011) (discussing the requirements of § 3.157(b)). Here, Mr. Hester has not cited any evidence reflecting his written intent to seek benefits for blurred vision or loss of balance. Instead, he has cited only medical records documenting these symptoms. Because these records alone could not, as a matter of law, have raised initial claims for VA benefits for conditions characterized bysuch symptoms, the Board was not obligated to consider and discuss this possibility. See Criswell, 20 Vet.App. at 503-04; see also 38 U.S.C. § 7104(d)(1) (requiring the Board to consider only the "material issues of . . . law presented on the record"). C. Evidence of Right Upper Extremity Neurological Symptoms Next, Mr. Hester argues that the Board ignored evidence that, prior to August 2001, he exhibited neurological symptoms in not just his left upper extremity, but also his right upper extremity. He contends that the Board was required to consider evidence of neurological symptoms in his right upper extremity because it is favorable insomuch as it may have resulted in a higher schedular rating. The Board considered several diagnostic codes under which Mr. Hester's condition could be rated for the period prior to August 16, 2001, including the rating criteria for intervertebral disc syndrome, 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2001). At that time, Diagnostic Code 5243 provided for: a 60% disability rating for pronounced intervertebral disc syndrome "with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to [ the] site of [the] diseased disc, [with] little intermittent relief"; a 40% disability rating for severe symptoms characterized by "recurring attacks[] with intermittent relief"; a 20% disability rating for moderate symptoms characterized by "recurring attacks"; and a 10% disability rating for mild symptoms. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2001). 10 The Board concluded that, even if it were to evaluate Mr. Hester's condition pursuant to this diagnostic code, the evidence of record prior to August 16, 2001, did not demonstrate that his symptoms were any more than moderate. Mr. Hester argues that, in reaching this conclusion, the Board considered only evidence of neurological symptoms such as tingling and numbness in his left hand and arm and ignored evidence suggesting that he also experienced such symptoms in his right hand and arm. However, Mr. Hester ignores that the Board expresslyconsidered the results of reflex testing conductedbyvariousmedicalexaminersbetweenApril1994andAugust 14,2001, thatcumulatively suggested that his "reflexes were 2+ and symmetrical, bilaterally, at all times." R. at 112 (emphasis added). Accordingly, although the Board did not explicitly state that the record contained some evidence that Mr. Hester experienced numbness in his right upper extremity, it did base its determination on reflex testing that addressed the neurological impact of Mr. Hester's condition on both of his upper extremities. Under these circumstances, the Court concludes that the Board adequately discussed the evidence of record pertaining to neurological symptoms Mr. Hester experiences in his bilateral upper extremities. D. Effective Dates Finally, Mr. Hester argues that the Board failed to adequately discuss the ramifications of its July 2009 determination that his initial claim for benefits for a neck muscle strain remained in appellate status. More specifically, he contends that the Board failed to discuss how this determination impacted the establishment of an effectivedate for the increased 60% disabilityrating awarded by a decision review officer in March 2004. It appears that his contention is that, because the decision review officer established an effective date for this increased disability rating based on the mistaken presumption that Mr. Hester's August 2001 statement was a new claim for an increased disability rating, he is entitled to an effective date prior to August 2001 for the increased disability rating as a result of the Board's July 2009 decision. This argument is unpersuasive. The Board adequately explained its determination that Mr. Hester was not entitled to a disability rating in excess of 20% prior to August 16, 2001. Specifically, the Board stated that, because Mr. Hester's appeal involved the appropriate initial disability rating, it was giving "consideration . . . to 'staged ratings' (different percentage ratings for different periods of time since 11 the effective date of service connection)." R. at 112 (citing Fenderson v. West, 12 Vet.App. 119 (1999). The Board further found that "the weight of the credible evidence demonstrate[d] that [Mr. Hester's] cervical spine disability . . . warranted a 20[%] rating but no more for the period prior to August 16, 2001, and no more than 60[%] for the initial rating period since August 16, 2001." R. at 112. This finding was based on a lengthy analysis of the medical evidence of record prior to August 16, 2001, and Mr. Hester does not contend that the Board clearly erred in assessing this evidence and assigning no more than a 20% disability rating for this period under the schedular criteria. Accordingly, the Court concludes that the Board adequatelyexplained its decision to assign staged ratings. Further, this explanation clearly indicated that the Board was aware of the import of its July 2009 finding that Mr. Hester's claim remained in appellate status. III. CONCLUSION Upon consideration of the foregoing, the September 8, 2010, Board decision is AFFIRMED. DATED: April 17, 2012 Copies to: Ante Hester VA General Counsel (027) 12