Single Judge Application, Parrish v. Shinseki, 24 Vet.App. 391, 398 (2011); Board Error when Failure to Address Issue Raised

Excerpt from decision below: "Further, although Mr. Ramirez-Arce argues that the Board should have addressed this anemia issue, the record of proceedings does not reflect that he raised this issue to the Board. See (finding no error where Board did not address issue not raised by appellant or reasonably raised by the record). ============================ ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS No. 10-3678 ORLANDO RAMIREZ-ARCE, 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 Orlando Ramirez-Arce appeals through counsel that part of an October 4, 2010, decision of the Board of Veterans' Appeals (Board) that (1) denied a disability rating in excess of 10% for hemorrhoids, (2) denied entitlement to service connection for an upper back disorder, and (3) denied entitlement to service connection for erectile dysfunction (ED). Mr. Ramirez-Arce argues that the Board clearly erred in finding that the Secretary satisfied his duty to assist, and provided inadequate reasons or bases for its determinations. The Secretary agrees that the Board provided inadequate reasons or bases for the ED matter, but disputes Mr. Ramirez-Arce's remaining contentions. 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 denying a disability rating in excess of 10% for hemorrhoids will be affirmed, and that part of the decision denying entitlement to service connection for an upper back disorder and ED will be set aside and the matters remanded for further adjudication. The record does not support Mr. Ramirez-Arce's arguments regarding the hemorrhoids matter. The Board found that a 20% disability rating was unwarranted because the 2008 medical report noted hemorrhoids with "frequent" bleeding (Record (R.) at 272; see 38 C.F.R. § 4.114, Diagnostic Code (DC) 7336 (2011) (requirement for a 10% rating)), not hemorrhoids with "persistent bleeding and with secondary anemia, or with fissures" (DC 7336 (requirement for a 20% rating)). Although Mr. Ramirez-Arce asserts that the 2008 report is inadequate because it did not address anemia, the Secretary correctly notes that even a finding of anemia would not meet the schedular requirement for a 20% rating without a finding of persistent bleeding. Although Mr. Ramirez-Arce responds that a finding of anemia could warrant a 20% ratingbased on 38 C.F.R. § 4.7 (2011) ("Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating."), he fails to explain how a finding of anemia without persistent bleeding would create "a question as to which of two evaluations shall be applied." Id.; see Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (appellant bears burden of demonstrating error on appeal). Further,although Mr.Ramirez-Arce argues that the Board should have addressed this anemia issue, the record of proceedings does not reflect that he raised this issue to the Board. See Parrish v. Shinseki, 24 Vet.App. 391, 398 (2011) (finding no error where Board did not address issue not raised by appellant or reasonably raised by the record). In fact, the record reflects that he acknowledged his lack of anemia. See R. at 46 (stating, in his "Informal Hearing Presentation" to the Board, that he "does not presently exhibit secondary anemia or fissures"). Accordingly, Mr. Ramirez-Arce fails to demonstrate clear error in the Board's duty-to-assist determination or inadequate reasons or bases for its rating determination on this matter. See Nolen v. Gober, 14 Vet.App. 183, 184 (2000) (Board determination that Secretary satisfied the dutyto assist is reviewed under the "clearly erroneous" standard); Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) ("'A finding is clearly erroneous when . . . the reviewing court on the entire evidence is left with the definite and firmconvictionthat a mistake has been committed.'"(quoting United States v. U.S. GypsumCo.,333 U.S. 364, 395 (1948))); see also 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"). On the other hand, the record supports Mr.Ramirez-Arce's argumentthattheBoard provided inadequate reasons or bases for denying service connection for a back condition. The Board acknowledged a 1989 psychiatric report discussing the interplay of his back condition and post- 2 traumatic stress disorder (PTSD), but found that the report "did not specifically relate" the back condition to PTSD and therefore that there was "no medical evidence linking" the back condition to PTSD. R. at 14, 15. However, the Board's interpretation of that report is not understandable in light of the report's statement that Mr. Ramirez-Arce's PTSD "adds" to his back condition. R. at 1669 ("The associated symptoms of the [PTSD] with anxiety, hyper-vigilance, tension state, and fearfulness, adds to the [back] disability."); see Allday, supra. Moreover, although the Board noted evidence that his PTSD is unrelated to his back condition – including a June 2006 fibromyalgia report not in the record of proceedings and a November 2003 report attributing the back condition to the 1987 restraining of a man attempting suicide (which was caused by PTSD according to the 1989 psychiatric report) – the Board did not explain how it might have weighed these reports against the other medical evidence of record. See Washington v. Nicholson, 19 Vet. App. 362, 367 (2005) ("[T]he Board must analyze the credibility and probative weight of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant."); see also Hensley v. West, 212 F.3d 1255, 1263 (Fed. Cir. 2000) ("[A]ppellate tribunals are not appropriate fora for initial fact finding."). Accordingly, remand is warranted. Tucker v. West, 11 Vet.App. 369, 374 (1998) (remand is appropriate "where the Board has incorrectlyapplied the law, failed to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate"). The record also supports the parties' argument that the Board provided inadequate reasons or bases for denying serviceconnection for ED. More specifically, Mr.Ramirez-Arce raised a theory of service connection – that his ED is related to his PTSD medications – and the Board failed to address or obtain medical evidence1 on this theory. See R. at 523 (Notice of Disagreement stating: "PTSD stress is a major contributor in ED as well as medication used to treat PTSD."), 1264 (statement in support of claim asserting: "I am requesting [service connection] for [ED] secondary to PTSD condition [and] medications taken for same condition."); see also R. at 14-16 (Board not addressing PTSD medications), 446-50 (2007 report not addressing PTSD medications), 1244-48 1 The Secretary generally must provide a medical examination or opinion on a theory of service connection if there is, inter alia, an indication that his disability "may be associated with the veteran's service" through that theory and insufficient medical evidence on that theory. McLendon v. Nicholson, 20 Vet.App. 79, 81 (2006); see Robinson v. Peake, 21 Vet.App. 545, 553 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). 3 (2005 report not addressing PTSD medications). The Board's failure to address a theory for service connection raised by a claimant frustrates judicial review, such that remand is warranted. See Robinson, 21 Vet.App. at 553 (Board commits error "in failing to discuss a theoryof entitlement that was raised . . . by the appellant"); Tucker and Allday, both supra. The parties also note that the Board did not address the 2007 medical report's statement that ED was a " diabetic related genitourinary symptom." R. at 440. The Board should address this statement on remand. See Robinson, 21 Vet.App. at 553 (Board commits error "in failing to discuss a theoryof entitlement that was [reasonably] raised . . . by the evidence of record"). Also on remand, Mr. Ramirez-Arce may present, and the Board must consider, any additional evidence and argument in support of the remanded matters. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). These matters are to be provided expeditious treatment on remand. See 38 U.S.C. § 7112. Accordingly, that part of the October 4, 2010, Board decision denying a disability rating in excess of 10% for hemorrhoids is AFFIRMED, and that part of the decision denying entitlement to service connection for an upper back disorder and ED is SET ASIDE and the matters REMANDED for further adjudication. DATED: April 19, 2012 Copies to: Glenn R. Bergmann, Esq. VA General Counsel (027) 4