Duchesneau v. Shinseki, No. 2011-7112(Decided: May 17, 2012);Winn, 110 F.3d at 57, Appeal When Remand Disposes of an Important Legal Issue

Excerpt from decision below: "Our cases have distinguished (1) situations where an issue might be mooted by a failure to present sufficient evidence on remand from (2) situations where the very authority of the Veterans Court to remand might be mooted by the remand itself. For example, in Myore, we explained that the third Williams factor was not satisfied despite the fact that the veteran “may win or lose on the facts of her case without regard to the Veterans Court’s interpretation of [statute] . . . .” Myore, 323 F.3d at 1352.3 That is to say, a failure to present sufficient evidence may have mooted the issue regardless of the Veterans Court’s interpretation of the statute, but that was not enough to establish a substantial risk that the Veterans Court’s interpretation would evade review. However, in both Adams, 256 F.3d at 1321 and Stevens v. Principi, 289 F.3d 3 We also explained that “[i]f Myore loses before the Board, and [the statute] is applied against her, and the Board’s decision is affirmed by the Veterans Court, then Myore may seek review of that court’s interpretation of [the statute] . . . .” Myore, 323 F.3d at 1352 DUCHESNEAU v. DVA 8 814, 817 (Fed. Cir. 2002), we held that the third Williams factor was satisfied because “the question of the authority of the Veterans Court to order a remand might not survive a remand, and, therefore, constituted an appealable final decision.” Myore, 323 F.3d at 1353. See also Winn, 110 F.3d at 57 (holding that a remand is appealable only “when the remand disposes of an important legal issue that would be effectively unreviewable at a later stage of litigation”). Put differently, in order to satisfy the third Williams factor, “the appellant’s claim must be that he has a legal right not to be subjected to a remand.” Donnellan v. Shinseki, No. 2011-7127, slip op. at 7 (Fed. Cir. Apr. 18, 2012)." =========================== United States Court of Appeals for the Federal Circuit __________________________ RACQUEL S. DUCHESNEAU, Claimant-Appellant, v. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee. __________________________ 2011-7112 __________________________ Appeal from the United States Court of Appeals for Veterans Claims in 09-1702, Judge Robert N. Davis. __________________________ Decided: May 17, 2012 __________________________ LINDA J. THAYER, Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, of Cambridge, Massachusetts, argued for claimant-appellant. With her on the brief was RONALD L. SMITH, of Washington, DC. L. MISHA PREHEIM, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondentappellee. With her on the brief were TONY WEST, Assistant Attorney General, JEANNE E. DAVIDSON, Director, DUCHESNEAU v. DVA 2 and BRIAN M. SIMKIN, Assistant Director. Of counsel on the brief were MICHAEL J. TIMINSKI, Deputy Assistant General Counsel, and LARA K. EILHARDT, Attorney, United States Department of Veterans Affairs, of Washington, DC. __________________________ Before LOURIE, LINN, and PROST, Circuit Judges. PROST, Circuit Judge. Racquel Duchesneau appeals a decision of the United States Court of Appeals for Veterans Claims (“Veterans Court”), which vacated and remanded a decision of the Board of Veterans’ Appeals (“Board”) denying Ms. Duchesneau’s request for an increased disability rating for a service-connected right shoulder disability currently evaluated as bursitis. Duchesneau v. Shinseki, No. 09- 1702 (Vet. App. Jan. 31, 2011). Because the decision of the Veterans Court was not a final judgment, we dismiss the appeal for lack of jurisdiction. BACKGROUND Ms. Duchesneau served on active duty in the United States Army from July 1996 to January 1999. In April 2000, a Department of Veterans Affairs Regional Office (“RO”) issued a rating decision granting Ms. Duchesneau service connection for right shoulder bursitis with a 10% disability rating under 38 C.F.R. § 4.71a, diagnostic code (“DC”) 5203 (2010). In December 2003, Ms. Duchesneau filed a claim for an increased disability rating, but the RO denied her claim, maintaining that her right shoulder bursitis merited only a 10% disability rating. Ms. Duchesneau timely appealed that decision to the Board, and on January 13, 2009, the Board sustained the RO’s determination. The Board also considered, but ultimately DUCHESNEAU v. DVA 3 rejected, the possibility of whether Ms. Duchesneau’s limitation of motion in her right shoulder warranted a rating under other DCs in § 4.71a, including DC 5201, which provides disability ratings depending on limitation of motion of the arm. Ms. Duchesneau subsequently appealed the Board’s decision to the Veterans Court, where she made two arguments:1 (1) that the Board erred by failing to award her an additional disability rating for limitation of motion in her right shoulder under DC 5201; and (2) that the Board erred by failing to award her not only one but two separate 20% disability ratings under DC 5201 because her right shoulder’s range of motion is limited on two planes—flexion and abduction.2 In a January 31, 2011 decision, the Veterans Court rejected Ms. Duchesneau’s claim for two separate disability ratings under DC 5201, holding that the argument was “obviated and negated by the [Veterans] Court’s recent decision in Cullen v. Shinseki, 24 Vet. App. 74 (2010).” Duchesneau, slip op. at 3. In that case, the Veterans Court held that “within a particular diagnostic code, a claimant is not entitled to more than one disability rating for a single disability unless the regulation expressly provides otherwise.” Id. (quoting Cullen, 24 Vet. App. at 84). But after rejecting Ms. Duchesneau’s claim for two separate disability ratings under a single diagnostic code, the Veterans Court 1 Because Ms. Duchesneau did not contest the Board’s finding that she is not entitled to a higher disability rating under DC 5203, the Veterans Court deemed that issue abandoned. Duchesneau, slip op. at 1, n.1. 2 The flexion plane is defined by the shoulder’s and arm’s forward movement while the abduction plane is defined by the shoulder’s and arm’s side movement. See 38 C.F.R. § 4.71 (2010) (Plate I). DUCHESNEAU v. DVA 4 proceeded to set aside the Board’s decision as to a single appropriate disability rating under DC 5201 and remanded the case to the Board to clarify the precise extent of her right shoulder limitation. Id. at 3-5. Ms. Duchesneau now appeals the Veterans Court’s interpretation of 38 C.F.R. § 4.71a, DC 5201. DISCUSSION On appeal, Ms. Duchesneau argues that the Veterans Court erred in holding that 38 C.F.R. § 4.71a, DC 5201 provides only a single disability rating for a single disability. The government defends the Veterans Court’s decision, but first argues that this court should dismiss the appeal because the Veterans Court’s decision is not final. The jurisdiction of this court to hear appeals from the Veterans Court is limited by statute. Under 38 U.S.C. § 7292(a), this court may review “the validity of a decision of the [Veterans Court] on a rule of law or of any statute or regulation . . . or any interpretation thereof (other than a determination as to a factual matter) that was relied on by the [Veterans Court] in making the decision.” Section 7292(c) vests this court with exclusive jurisdiction “to review and decide any challenge to the validity of any statute or regulation or any interpretation thereof brought under this section, and to interpret constitutional and statutory provisions, to the extent presented and necessary to a decision.” While the statutory provision that gives this court jurisdiction to review a decision of the Veterans Court does not expressly premise our review on the finality of the Veterans Court’s decision, we have, nonetheless, “‘generally declined to review non-final orders of the Veterans Court.’” Williams v. Principi, 275 F.3d 1361, 1363 (Fed. Cir. 2002) (quoting Adams v. Principi, 256 F.3d 1318, 1320 (Fed. Cir. 2001)). This finality DUCHESNEAU v. DVA 5 rule serves several purposes: it “promot[es] efficient judicial administration,” “emphasize[s] the deference that appellate courts owe to the trial judge,” and “reduces harassment of opponents and the clogging of the courts through successive appeals.” Williams, 275 F.3d at 1364 (citing Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374 (1981)). Moreover, “[t]he mere fact that the Veterans Court as part of a remand decision may have made an error of law that will govern the remand proceeding —even one that, if reversed, would lead to a decision in favor of the claimant—does not render that decision final.” Myore v. Principi, 323 F.3d 1347, 1352 (Fed. Cir. 2003). Our decision in Williams provides a limited exception to the general rule that remand orders are not appealable. We will depart from the strict rule of finality when a veteran establishes: (1) the Veterans Court issued a clear and final decision of a legal issue that (a) is separate from the remand proceedings, (b) will directly govern the remand proceedings or, (c) if reversed by this court, would render the remand proceedings unnecessary; (2) the resolution of the legal issue adversely affects the party seeking review; and (3) there is a substantial risk that the decision would not survive a remand, i.e., that the remand proceeding may moot the issue. Williams, 275 F.3d at 1364. This exception to the finality rule is narrow. Jones v. Nicholson, 431 F.3d 1353, 1358 & n.3 (Fed. Cir. 2005) (noting that the Supreme Court has emphasized that departures from the finality rule should occur “‘only when observance of it would practically defeat the right to any review at all’” (quoting Flanagan v. United States, 465 U.S. 259, 263 (1984))); Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (explaining that the Williams conditions are met only in rare circumstances); Adams, DUCHESNEAU v. DVA 6 256 F.3d at 1321 (noting that the finality rule should only give way in “unusual circumstances”). In the present case, the parties agree that Ms. Duchesneau satisfies the first two Williams factors. Ms. Duchesneau argues that the third Williams factor is also satisfied because “if the Board finds in Ms. Duchesneau’s favor on remand for the higher disability rating, Ms. Duchesneau will not be able to file a second appeal and reassert her claim for separate disability ratings for limitation of abduction and flexion.” Ms. Duchesneau is mistaken. If the Board grants Ms. Duchesneau a 20% disability rating under DC 5201, it must apply the law of the case and deny two separate disability ratings under DC 5201, even if the Board finds that Ms. Duchesneau’s right shoulder is indeed limited in both planes. Consequently, Ms. Duchesneau will still be adversely affected by the Board’s decision to limit her to just one rating. After completion of the remand proceedings and entry of a final judgment, Ms. Duchesneau is free to file a second appeal and raise her argument regarding the Veterans Court’s interpretation of § 4.71a. See Myore, 323 F.3d at 1351-52; Winn v. Brown, 110 F.3d 56, 57 (Fed. Cir. 1997). Moreover, Ms. Duchesneau’s appeal to this court “may raise any objections to the judgment that was entered [by the Veterans Court], whether the errors arose from the original [Veterans Court’s] decision or the second and final decision.” Joyce v. Nicholson, 443 F.3d 845, 850 (Fed. Cir. 2006). To be sure, Ms. Duchesneau currently has no disability rating under DC 5201. Indeed, she contends that there is a substantial risk that on remand the Board will continue to find that the evidence does not support a disability rating for either her abduction limitation or her flexion limitation, or both. Under these scenarios, Ms. DUCHESNEAU v. DVA 7 Duchesneau argues that the remand would moot the issue of whether she is entitled to two disability ratings under DC 5201. This argument does not, however, rise to the level of a substantial risk that the Veterans Court’s interpretation of § 4.71a would evade review. On remand, Ms. Duchesneau may present evidence that she is entitled to a disability rating under DC 5201 for her serviceconnected limitation of motion in her right shoulder. And Ms. Duchesneau is correct that she may lose on the facts she presents without regard to the Veterans Court’s interpretation of § 4.71a. That uncertainty alone, however, is not enough to create a substantial risk that the Veterans Court’s interpretation of § 4.71a would evade review. Our cases have distinguished (1) situations where an issue might be mooted by a failure to present sufficient evidence on remand from (2) situations where the very authority of the Veterans Court to remand might be mooted by the remand itself. For example, in Myore, we explained that the third Williams factor was not satisfied despite the fact that the veteran “may win or lose on the facts of her case without regard to the Veterans Court’s interpretation of [statute] . . . .” Myore, 323 F.3d at 1352.3 That is to say, a failure to present sufficient evidence may have mooted the issue regardless of the Veterans Court’s interpretation of the statute, but that was not enough to establish a substantial risk that the Veterans Court’s interpretation would evade review. However, in both Adams, 256 F.3d at 1321 and Stevens v. Principi, 289 F.3d 3 We also explained that “[i]f Myore loses before the Board, and [the statute] is applied against her, and the Board’s decision is affirmed by the Veterans Court, then Myore may seek review of that court’s interpretation of [the statute] . . . .” Myore, 323 F.3d at 1352 DUCHESNEAU v. DVA 8 814, 817 (Fed. Cir. 2002), we held that the third Williams factor was satisfied because “the question of the authority of the Veterans Court to order a remand might not survive a remand, and, therefore, constituted an appealable final decision.” Myore, 323 F.3d at 1353. See also Winn, 110 F.3d at 57 (holding that a remand is appealable only “when the remand disposes of an important legal issue that would be effectively unreviewable at a later stage of litigation”). Put differently, in order to satisfy the third Williams factor, “the appellant’s claim must be that he has a legal right not to be subjected to a remand.” Donnellan v. Shinseki, No. 2011-7127, slip op. at 7 (Fed. Cir. Apr. 18, 2012). In this case, Ms. Duchesneau does not question the authority of the Veterans Court to remand. Rather, she asserts that the remand proceedings should be conducted under a different interpretation of § 4.71a than that ordered by the Veterans Court. That Ms. Duchesneau may lose before the Board without regard to the Veterans Court’s interpretation of § 4.71a does not, however, create a substantial risk that the Veterans Court’s interpretation of § 4.71a would evade review. Were we to hold otherwise and “accept [Ms. Duchesneau’s] framing of the exception to the rule against review of remand orders, the exception would swallow the rule.” Donnellan, slip op. at 8. The Veterans Court’s remand is, therefore, not a final appealable order. DUCHESNEAU v. DVA 9 CONCLUSION Because Ms. Duchesneau’s appeal does not present any issues that would evade further review by this court and because Ms. Duchesneau has not appealed from a final order or judgment, we dismiss the appeal for lack of jurisdiction. COSTS Each party shall bear its own costs. DISMISSED

Morris v. Shinseki, No. 2011-7061 (Decided: May 15, 2012), Federal Circuit, Presumption of Soundness Does Not Apply to Personality Disorders

Excerpt from decision below: "In sum, according to the express language of 38 C.F.R. § 3.303(c), personality disorders are not diseases or injuries within the meaning of § 1110 and thus are not compensable. Therefore, the Board and the Veterans Court did not err in holding the presumption of soundness inapplicable to Mr. Morris’s case. The 1988 Board Decision therefore was not tainted by CUE. As we hold there was no CUE in the 1988 Board Decision, we need not address the government’s alternative argument that, assuming there was CUE, the error was not outcome determinative. ============================ United States Court of Appeals for the Federal Circuit __________________________ JACK D. MORRIS, Claimant-Appellant, v. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee. __________________________ 2011-7061 __________________________ Appeal from the United States Court of Appeals for Veterans Claims in case no. 09-0017, Judge Robert N. Davis. _________________________ Decided: May 15, 2012 _________________________ KENNETH M. CARPENTER, Carpenter, Chartered, of Topeka, Kansas, argued for claimant-appellant. SCOTT D. AUSTIN, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, 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, JR., Assistant Director. Of counsel on the brief were MICHAEL J. TIMINSKI, Deputy MORRIS v. DVA 2 Assistant General Counsel, and DANA RAFFAELLI, Attorney, United States Department of Veterans, of Washington, DC. __________________________ Before DYK, SCHALL, and MOORE, Circuit Judges. Opinion for the court filed by Circuit Judge SCHALL. Concurring opinion filed by Circuit Judge DYK. SCHALL, Circuit Judge. Jack D. Morris appeals the October 15, 2010 decision of the United States Court of Appeals for Veterans Claims (“Veterans Court”) in Morris v. Shinseki, No. 09-0017, 2010 WL 4068749 (Vet. App. Oct. 15, 2010). In its decision, the Veterans Court affirmed the September 12, 2008 decision of the Board of Veterans’ Appeals (“Board”) in In re Morris, No. 04-38 491 (Bd. Vet. App. Sept. 12, 2008) (“2008 Board Decision”). In that decision the Board found no clear and unmistakable error (“CUE”) in its February 9, 1988 decision denying Mr. Morris’s claim for service connection for a psychiatric disorder. See In re Morris, No. 87-11 982 (Bd. Vet. App. Feb. 9, 1988) (“1988 Board Decision”). We affirm. BACKGROUND I. Mr. Morris served on active duty in the United States Army from July 31, 1964, to October 6, 1964. 1988 Board Decision at 2. His entrance examination revealed no psychiatric abnormality. Subsequently, in mid- September of 1964, he underwent an examination in connection with his separation from the service. That examination also revealed no psychiatric abnormality. At the time, Mr. Morris did, however, complain of experiencing “nervous trouble and other symptoms.” Id. Mr. MORRIS v. DVA 3 Morris’s clinical record cover sheet dated October 6, 1964, sets forth the following diagnosis: “Passive aggressive reaction, chronic, moderate, unchanged, manifested by periods of anxiety and inability to express anger. Stress: Minimal. Predisposition: Moderate, unstable family. Disability: Moderate.” On January 21, 1966, Mr. Morris filed with the Department of Veterans Affairs (“VA”) a claim for disability compensation for a psychiatric disorder. In support of his claim, he stated that, while in basic training, he had suffered mental and physical abuse from his platoon sergeant, which had caused him to experience a nervous breakdown. In a May 5, 1966 rating decision, the VA’s Regional Office (“RO”) denied the claim. Noting that the file did not reflect any record of treatment for a nervous condition during service, the rating specialists concluded that Mr. Morris’s condition was in a chronic stage and had existed prior to service. The RO thus determined that there was no indication that Mr. Morris’s condition was incurred in or aggravated during service. II. On January 31, 1986, Mr. Morris sought to reopen his claim for a psychiatric disorder by providing lay statements and a statement from a therapist. After the RO concluded that the additional evidence did not constitute new and material evidence sufficient to warrant reopening of the claim, Mr. Morris appealed to the Board. In its February 9, 1988 decision, the Board determined that, contrary to what the RO had found, Mr. Morris had come forward with new and material evidence in support of his claim. 1988 Board Decision at 5. However, after reviewing the evidence, the Board concluded that the evidence did not show that Mr. Morris’s “psychiatric symptoms” were “due to other than a personality MORRIS v. DVA 4 disorder.” Id. “Under 38 C.F.R. § 303(c),” the Board noted, “a personality disorder is not a disease within the meaning of applicable legislation providing for compensation benefits.” Id. at 4. Based upon the VA’s regulation, the Board therefore denied Mr. Morris’s claim of service connection for a psychiatric disorder. Id. at 6.1 On February 23, 1988, the VA considered medical evidence from the University of South Florida psychology department. Mr. Morris had submitted this evidence on May 5, 1987, while his appeal before the Board was 1 The version of 38 C.F.R. § 3.303(c) in effect at the time of the 1988 Board Decision is identical to the present version of the regulation. Compare 38 C.F.R. § 3.303(c) (1987) with 38 C.F.R. § 3.303(c) (2011). Pertinent to this case, § 3.303(c) provides in relevant part as follows: Preservice disabilities noted in service: There are medical principles so universally recognized as to constitute fact (clear and unmistakable proof), and when in accordance with these principles existence of a disability prior to service is established, no additional or confirmatory evidence is necessary. . . . In the field of mental disorders, personality disorders which are characterized by developmental defects or pathological trends in the personality structure manifested by a lifelong pattern of action or behavior, chronic psychoneurosis of long duration or other psychiatric symptomatology shown to have existed prior to service with the same manifestations during service, which were the basis of the service diagnosis, will be accepted as showing preservice origin. Congenital or developmental defects, refractive error of the eye, personality disorders and mental deficiency as such are not diseases or injuries within the meaning of applicable legislation. MORRIS v. DVA 5 pending. Following a further denial of his claim, Mr. Morris presented additional medical evidence to the VA. This evidence indicated that Mr. Morris had been diagnosed with schizophrenia and included an opinion from a VA physician that the schizophrenia had its onset during service. On June 14, 1990, the Board again denied Mr. Morris’s claim of service connection for a psychiatric disorder, concluding that the evidence still was not sufficient to show that the previous diagnosis of a personality disorder was in error. In re Morris, No. 90-02 895, slip op. at 8 (Bd. Vet. App. June 4, 1990). Mr. Morris then appealed to the Veterans Court. In the wake of a remand from the Veterans Court in March of 1992, the Board, in May of 1992, received the opinion of a psychiatrist who was an examiner for the Board. Based upon that opinion, the December 1992 opinion of an independent medical examiner, as well as additional evidence before it, the Board reopened Mr. Morris’s claim on February 3, 1993 and concluded that “the preponderance of the old and new evidence, considered together, supports the claim for service connection for schizophrenia.” In re Morris, No. 90-02 895, slip op. at 4 (Bd. Vet. App. Feb. 3, 1993). At the same time, however, the Board determined that its February 1988 decision “was well supported by the evidence then of record and in accordance with all applicable legal criteria” and that the decision was thus final. Id., slip op. at 9. Subsequently, in April of 1993, the RO awarded service connection for schizophrenia effective from May 5, 1987, and assigned a 100 percent rating from that date. The RO assigned May 5, 1987, as the effective date because that was when the VA received certain additional evidence from Mr. Morris. Thereafter, in 1996, the Board denied Mr. Morris’s claim that the 1966 RO decision contained CUE and that the award of service connection therefore MORRIS v. DVA 6 should be made retroactive to the date of his 1966 claim for benefits. In re Morris, No. 94-06 408 (Bd. Vet. App. Apr. 19, 1996). III. In September of 2004, Mr. Morris filed a motion with the Board in which he argued that the 1988 Board Decision was tainted by CUE because the Board failed to correctly apply 38 U.S.C. §§ 105(a), 1110, and 1111. According to Mr. Morris, the Board improperly relied upon the existence in his service medical records of a “non-compensable” psychiatric condition (personality disorder) as a basis for denying disability compensation. Instead, he urged, the Board should have relied upon the presumption of service connection under § 105(a) and the presumption of sound condition under § 1111 to award him compensation under § 1110 for a psychiatric disorder. 2008 Board Decision at 4-5. In its September 12, 2008 decision, the Board denied Mr. Morris’s CUE claim. The Board began by noting the claim that Mr. Morris had presented in 1988. The Board pointed out that, at that time, Mr. Morris contended that, during active duty, he developed, and was treated for, an acquired psychiatric disability; that he was in sound condition when he entered the service; that he was harassed by a drill sergeant, which resulted in his development of a nervous disorder; and that, following separation from the service, his psychiatric problems continued. 2008 Board Decision at 9. Continuing, the Board noted that the 1988 Board had determined that the initial service medical records on file showed that any psychiatric symptoms present during service were acute and transitory and attributed to a personality disorder. Id. The 1988 Board also had determined, it was noted, that a chronic acquired psychiatric disorder was not indicated MORRIS v. DVA 7 during service or on an examination for separation from active duty. Id. In addition, the Board pointed out, the 1988 Board had determined that, although more recently developed medical records referred to an investigation of a “maltreatment incident,” those records did not demonstrate the presence of an acquired psychiatric disorder during service but, instead, psychiatric symptoms associated with a personality disorder, which for short periods resulted in symptoms such as anxiety and depression. Id. Finally, the Board set forth the 1988 Board’s ultimate conclusions: (1) that a chronic acquired psychiatric disorder was not incurred or aggravated in service; (2) that a personality disorder is a congenital or developmental defect and not a disease within the meaning of the applicable regulation, 38 C.F.R. § 3.303(c); and (3) that evidence received subsequent to the May 1966 rating decision, which was not appealed, did not present a new factual basis warranting the grant of service connection for a psychiatric disorder. Id. at 10. Turning to Mr. Morris’s contentions, the Board first rejected the argument that, under 38 U.S.C. § 105(a) a veteran is entitled to a statutory presumption of service connection for an alleged disability. The Board reasoned that § 105(a) pertains to line of duty and misconduct considerations, neither of which was on appeal or before the Board in 1988.2 2008 Board Decision at 11. Section 2 38 U.S.C. § 105(a) states in relevant part: An injury or disease incurred during active military, naval, or air service will be deemed to have been incurred in line of duty and not the result of the veteran's own misconduct when the person on whose account benefits are claimed was, at the time the injury was suffered or disease contracted, in active military, naval, or air service, whether on active MORRIS v. DVA 8 105(a), the Board stated, “does not serve to establish a presumption that any claimed disease or injury in service is entitled to service connection, because a claimant makes a claim for service connection.” Id. The Board viewed Mr. Morris’s main argument to be that the 1988 Board had failed to afford him the presumption of sound condition under 38 U.S.C. § 1111, which, he claimed, would have entitled him to compensation under 38 U.S.C. § 1110 for a psychiatric disorder.3 Addressing this argument, the Board stated that “[t]he veteran was afforded the presumption of soundness with respect to the issue of service connection for an acquired psychiatric disorder in the February 1988 Board decision.” 2008 Board Decision at 11. After making this statement, the Board observed that the 1988 Board had noted that Mr. Morris’s entrance psychiatric examination was normal duty or on authorized leave, unless such injury or disease was a result of the person's own willful misconduct or abuse of alcohol or drugs. 3 38 U.S.C. § 1110 provides that a veteran shall be compensated for a disability arising from an injury or disease incurred or aggravated while the veteran was on active duty. 38 U.S.C. § 1111 supplements § 1110 and states: For the purposes of section 1110 of this title, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. MORRIS v. DVA 9 and that Mr. Morris’s in-service symptoms were associated with a personality disorder and were not due to a chronic acquired psychiatric disability. Id. The Board stated that the 1988 denial of service connection “was not made on the basis that the veteran had a preexisting defect, infirmity, or disorder which was not aggravated during service. Rather, the denial of service connection for an acquired psychiatric disability was made on the basis that an acquired psychiatric disability was not present during service and was not incurred in service.” Id. at 12. Putting the matter another way, the Board reasoned that “the denial of service connection for a chronic acquired psychiatric disability was based on a determination that the veteran did not have this disability during service and any post-service symptoms did not establish that a chronic acquired psychiatric disability originated during service. The . . . denial was not on the basis that an acquired psychiatric disability preexisted service and was not aggravate therein.” Id. Finally, the Board remarked that, although Mr. Morris was arguing that the 1988 Board had failed to afford him § 1111’s presumption of soundness, what he really was complaining about was the 1988 Board’s weighing of the evidence and its finding that, during his period in service, he had suffered from a personality disorder, which by regulation is not compensable. Id. at 13. See 38 C.F.R. § 3.303(c). Based upon its analysis, the Board denied Mr. Morris’s motion for revision of the 1988 Board decision on the basis of CUE. 2008 Board Decision at 14. IV. Mr. Morris appealed the Board’s denial of his motion to the Veterans Court. Before the Veterans Court, he pressed the same arguments that he had advanced before the Board. He again argued that the 1988 Board had failed to apply correctly 38 U.S.C. §§ 105(a), 1110, and MORRIS v. DVA 10 1111. The Veterans Court rejected Mr. Morris’s arguments. Noting that Mr. Morris had offered no evidence that the 1988 Board incorrectly considered his condition a personality disorder, the court stated that it previously had held that § 1111 does not apply to personality disorders in view of the language of 38 C.F.R. § 3.303(c). Morris v. Shinseki, No. 09-0017, 2010 WL 4068749 at *2 (Vet. App. Oct. 15, 2010) (citing Winn v. Brown, 8 Vet. App. 510, 516 (1996) (“A personality disorder . . . is not the type of disease- or injury related-defect to which the presumption of soundness can apply.”)) The court therefore affirmed the Board’s September 12, 2008 decision that found no CUE in its 1988 decision. This appeal followed. DISCUSSION I. Our jurisdiction to review decisions of the Veterans Court is limited by statute. 38 U.S.C. § 7292(a); see Forshey v. Principi, 284 F.3d 1335, 1338 (Fed. Cir. 2002) (en banc), superseded on other grounds by Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 402(a), 116 Stat. 2820, 2832. We have jurisdiction to review a decision of the Veterans Court “with respect to the validity of a decision of the [Veterans] Court on a rule of law or of any statute or regulation . . . or any interpretation thereof (other than a determination as to a factual matter) that was relied on by the [Veterans Court] in making the decision. 38 U.S.C. § 7292(a). Our authority extends to deciding all relevant questions of law, and we can set aside a regulation or an interpretation of a regulation relied upon by the Veterans Court when we find it to be “arbitrary, capricious, and an abuse of discretion, or otherwise not in accordance with law; contrary to constitutional right, power, privilege, or immunity; in excess of MORRIS v. DVA 11 statutory jurisdiction, authority, or limitations; or in violation of a statutory right; or without observance of procedure required by law.” Jones v. West, 194 F.3d 1345, 1350 (Fed. Cir. 1999); see 38 U.S.C. § 7292(d)(1). Our authority, however, does not extend to the ability to review factual determinations or the application of a law or regulation to a particular set of facts unless a constitutional issue is presented. 38 U.S.C. § 7292(d)(2). As set forth below, the sole issue in this case is whether the Veterans Court, in affirming the 2008 Board Decision, erred in its interpretation of the pertinent regulation, 38 C.F.R. § 3.303(c). We therefore agree with the parties that we have jurisdiction over this appeal. II. In order to revise a final VA decision on account of CUE, the following must be demonstrated: 1) Either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied, 2) The error must be “undebatable” and the sort “which, had it not been made, would have manifestly changed the outcome at the time it was made,” and 3) A determination that there was CUE must be based on the record and the law that existed at the time of the prior adjudication in question. Willsey v. Peake, 535 F.3d 1368, 1371 (Fed. Cir. 2008) (citing Russell v. Principi, 3. Vet. App. 310, 313-14 (1992)). Mr. Morris hinges his CUE claim on the argument that, in the 1988 Board Decision, the Board incorrectly MORRIS v. DVA 12 applied 38 C.F.R. § 3.303(c) and that the 2008 Board Decision and the decision of the Veterans Court now on appeal continued the error. His argument essentially is as follows: It is true that under § 3.303(c) a disability attributable to a personality disorder is not compensable. Reply Br. at 2. However, under 38 U.S.C. § 1111, a veteran claiming disability compensation under 38 U.S.C. § 1110 is entitled to a presumption that he was in sound condition when he entered service.4 Thus, even when the record contains an in-service diagnosis of a personality disorder, in order to have that diagnosis defeat a claim for compensation under § 1110, the VA must rebut the presumption of sound condition under § 1111. According to Mr. Morris, if, as here, “no pre-service disability was noted, . . . the VA must in accordance with the presumption of sound condition show by clear and unmistakable evidence that the condition noted during service was a pre-service disability.” Claimant’s Br. at 12. That this requirement exists, Mr. Morris contends, is supported by the language of § 3.303(c), id. at 10-14, and the interpretation of § 3.303(c) set forth in two VA General Counsel opinions, id. at 14-19. Thus, Mr. Morris argues, the Board erred when it interpreted § 3.303(c) to mean that the in-service diagnosis of a personality disorder in and of itself was enough to defeat Mr. Morris’s claim of a psychiatric disorder. Rather, the VA should have been required to demonstrate affirmatively that the personality disorder existed prior to service. In short, we understand Mr. Morris to be saying the following: I recognize that a personality disorder is not a compensable disability. I 4 The versions of 38 U.S.C. §§ 1110 and 1111 in effect at the time of the 1988 Board Decision are identical to the present versions of the statutes. Compare 38 U.S.C. § 310 (1982) with 38 U.S.C. § 1110 (2010) and 38 U.S.C. § 311 (1982) with 38 U.S.C. § 1111 (2010). MORRIS v. DVA 13 also recognize that, in my case, the record shows an inservice diagnosis of a personality disorder. However, before that diagnosis could serve to disqualify me from compensation, the VA should have been required to overcome § 1111’s presumption of soundness by demonstrating that I had a personality disorder when I entered the service. The government responds that the Veterans Court did not err in affirming the 2008 Board Decision. The government starts from the premise that, in order to be entitled to compensation under 38 U.S.C. § 1110, a veteran must demonstrate that he or she presently suffers from a disability, that there was in-service incurrence or aggravation of a disease or injury, and that there is a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Resp’t’s Br. at 14. Next, relying upon our decision in Terry v. Principi, 340 F.3d. 1378, 1382 (Fed. Cir. 2003), the government contends that, if a disability cannot be attributed to an injury or disease incurred or aggravated in the line of duty, the disability is not compensable. In that regard, the government points out that § 3.303(c) states that a personality disorder is not a disease or injury within the meaning of § 1110. Resp’t’s Br. at 14 (citing Terry, 340 F.3d at 1382). “Accordingly,” the government reasons, “pursuant to Terry, any disability attributable to personality disorders is not compensable.” Id. In other words, “because a personality disorder is not a disease or injury, the condition cannot form the basis for an award of disability compensation.” Id. at 16. The government thus takes the position that the Veterans Court correctly held that the Board did not err in not applying the presumption of soundness to Mr. Morris’s claim. The reason is that because Mr. Morris’s personality disorder was not a compensable injury or disease, it MORRIS v. DVA 14 could not be service connected. Therefore, § 1111’s presumption of soundness did not apply in his case. Id. at 17. At the same time, the government argues that neither of the two VA General Counsel opinions upon which Mr. Morris relies supports his case. Id. at 20-22. Finally, the government makes the alternative argument that, even if the Veterans Court erred in its conclusion that § 3.303(c) renders § 1111’s presumption of soundness inapplicable in this case, CUE did not occur because the purported error was not outcome determinative. Id. at 23-24. III. Section 1110 provides compensation to a veteran for a disability resulting from an injury or disease incurred or aggravated during active duty. To demonstrate entitlement to compensation under § 1110, a veteran must establish: “(1) the existence of a present disability; (2) inservice incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). “[I]f a disability cannot be attributed to an ‘injury’ or ‘disease’ incurred or aggravated in the line of duty, the disability is not compensable.” Terry, 340 F.3d at 1382. We have previously observed that there is a “gap left by the statute with respect to the question of what kinds of conditions qualify as injuries or diseases for purposes of entitlement to veterans’ benefits.” Id. at 1383. The VA, however, has addressed this issue. Pursuant to its authority under 38 U.S.C. § 501 “to prescribe all rules and regulations which are necessary to carry out the laws administered by the [VA],” the VA promulgated the MORRIS v. DVA 15 regulation set forth at 38 C.F.R. § 3.303(c). As noted above, the regulation provides in relevant part as follows: Preservice disabilities noted in service: There are medical principles so universally recognized as to constitute fact (clear and unmistakable proof), and when in accordance with these principles existence of a disability prior to service is established, no additional or confirmatory evidence is necessary. . . . In the field of mental disorders, personality disorders which are characterized by developmental defects or pathological trends in the personality structure manifested by a lifelong pattern of action or behavior, chronic psychoneurosis of long duration or other psychiatric symptomatology shown to have existed prior to service with the same manifestations during service, which were the basis of the service diagnosis, will be accepted as showing preservice origin. Congenital or developmental defects, refractive error of the eye, personality disorders and mental deficiency as such are not diseases or injuries within the meaning of applicable legislation. In Terry, we upheld the validity of § 3.303(c) as consistent with the § 1110. 340 F.3d at 1381-86. Turning to the present case, under the plain language of § 3.303(c), a personality disorder is not a disease or injury within the meaning of § 1110, a point upon which both the government and Mr. Morris agree. See Reply Br. at 2; Resp’t’s Br. at 14; see also Conley v. Peake, 543 F.3d 1301, 1305 (Fed. Cir. 2008) (“Under 38 C.F.R. § 3.303(c), . . . personality disorders are considered ‘[c]ongenital or developmental defects’ for which service connection cannot be granted because they ‘are not diseases or injuries within the meaning of the applicable legislation.’”). See MORRIS v. DVA 16 also 38 C.F.R. § 4.9 (“[P]ersonality disorder and mental deficiency are not diseases or injuries in the meaning of the applicable legislation for disability compensation purposes.”); § 4.127 (“Mental retardation and personality disorders are not diseases or injuries for compensation purposes . . . .”).5 Thus, the personality disorder which the 1988 Board found Mr. Morris had fell outside the scope of the applicable legislation and therefore was not compensable. The Board did not err in denying compensation for the disorder. As seen, Mr. Morris tries to avoid the bar of § 3.303(c) by arguing that the 1988 Board erred by failing to grant him the presumption of soundness. The effort fails, however. Section 1111 grants veterans a statutory presumption of soundness only “for the purposes of section 1110,” and § 1110, in turn, provides compensation only for an “injury” or “disease” contracted or aggravated in the line of duty. If pursuant to a valid VA regulation (38 C.F.R. § 3.303(c)), a condition is not an injury or disease within the scope of § 1110, then § 1111 and the presumption of soundness simply do not come into play. Terry, 340 F.3d at 1386 (“[W]hen sections 1110 and 1111 are read together, ‘the term defect in section 1111 necessarily means a defect that amounts to or arises from disease or 5 The version of 38 C.F.R. § 4.9 in effect at the time of the 1988 Board Decision is identical to the present version of the regulation. Compare 38 C.F.R. § 4.9 (1982) with 38 C.F.R. § 4.9 (2011). Although not identical to the present version of the regulation, the version of 38 C.F.R. § 4.127 in effect at the time of the 1988 Board Decision treats personality disorders in the same manner. Compare 38 C.F.R. § 4.127 (1982) (“Mental deficiency and personality disorders will not be considered as disabilities under the terms of the schedule.”) with 38 C.F.R. § 4.127 (2011) (“Mental retardation and personality disorders are not diseases or injuries for compensation purposes . . . .”). MORRIS v. DVA 17 injury.’” (quoting Winn v. Brown, 8 Vet. App. 510, 516 (1996)). As noted in the 1988 Board Decision, based upon the record before it, the Board found that, while in service in 1964, Mr. Morris exhibited a personality disorder, and under 38 C.F.R. § 3.303(c), as well as 38 C.F.R. §§ 4.9 and 4.127, a personality disorder is not a compensable “injury” or “disease.” Accordingly, we are unable to agree with Mr. Morris that the Board committed CUE when it denied his claim for service connection without applying § 1111’s presumption of soundness. See 1988 Board Decision. Mr. Morris’s argument that the presumption of soundness should be applied in the case of a personality disorder effectively conflates the diagnosis inquiry and the causation inquiry. Diagnosis involves the observation of certain symptoms and characteristics that indicate the presence of a particular condition. The diagnosis process does not implicate the question of whether the veteran was in sound condition when he or she entered service. That is because all that is relevant at the diagnosis stage is determining the service member’s present condition. Once a diagnosis is made, however, as was the case here, the temporal relationship between the onset of symptoms and service must be examined to determine whether the disorder is service related. It is only at this stage in the inquiry that the presumption of soundness becomes relevant. Causation is not at issue in this case, however. Because Mr. Morris was diagnosed with a personality disorder, it was unnecessary to examine causality as personality disorders cannot legally be service related. See Conley, 543 F.3d at 1305 (“Under 38 C.F.R. § 3.303(c), . . . personality disorders are considered ‘[c]ongenital or developmental defects’ for which service connection cannot be granted because they ‘are not diseases or injuries within the meaning of the applicable legislation.’”). In effect, Mr. Morris is trying to circumvent the 1988 factual MORRIS v. DVA 18 finding that there was an in-service diagnosis of a personality disorder, which we cannot review, by importing the presumption of soundness into the diagnosis inquiry. In support of his position, Mr. Morris highlights certain language within § 3.303(c). Specifically, he points to the following language: In the field of mental disorders, personality disorders which are characterized by developmental defects or pathological trends in the personality structure manifested by a lifelong pattern of action or behavior, chronic psychoneurosis of long duration or other psychiatric symptomatology shown to have existed prior to service with the same manifestations during service, which were the basis of the service diagnosis, will be accepted as showing preservice origin. This sentence does not support Mr. Morris’s argument, however. Section 3.303(c) states that based on universally recognized medical principles, certain disabilities arise from conditions that necessarily are unrelated to service and thus, by definition, can not be service related. The description of personality disorders within § 3.303(c) merely explains why personality disorders can not be service related, which the regulation emphasizes. (“[P]ersonality disorders and mental deficiency as such are not diseases or injuries within the meaning of applicable legislation.”). See also 38 C.F.R. § 4.9 (“[P]ersonality disorder and mental deficiency are not diseases or injuries in the meaning of the applicable legislation for disability compensation purposes.”); § 4.127 (“Mental retardation and personality disorders are not diseases or injuries for compensation purposes . . . .”). As far as mental disorders distinct from personality disorders are concerned, “chronic psychoneurosis of long duration or MORRIS v. DVA 19 other psychiatric symptomatology shown to have existed prior to service with the same manifestations during service, which were the basis of the service diagnosis, will be accepted as showing preservice origin.” Thus, the language of § 3.303(c) does not support the argument that a personality disorder is a compensable disability unless it is shown to exist prior to service. Nor do the two opinions from the VA General Counsel provide Mr. Morris with any help. DVA Op. Gen. Counsel Prec. 82-90 (July 18, 1990) discusses whether disorders of congenital or developmental origin may be service related. The opinion distinguishes between a disease, which is a condition that is capable of improvement or deterioration, and a defect, which is a condition that is not capable of improvement or deterioration. In making this distinction, the General Counsel states that hereditary “diseases” may qualify for service connection whereas hereditary “defects” are excluded from coverage by § 3.303(c). At the same time, DVA Op. Gen. Counsel Prec. 67-90 (July 18, 1990) discusses whether a hereditary disease always rebuts the presumption of soundness. Again focusing on the distinction between a “disease” and a “defect,” the General Counsel states that hereditary “diseases,” which are capable of improvement or deterioration, may be entitled to service connection. When the two opinions are read together, it is apparent that they are referring solely to hereditary diseases that are not “congenital or developmental defects”; such defects are expressly excluded from coverage by § 3.303(c). Indeed, DVA Op. Gen. Counsel Prec. 82-90 (July 18, 1990) makes clear that the terms “disease” and “defect” are mutually exclusive. Thus, contrary to Mr. Morris’s contention, the two opinions provide no support for the proposition that “[c]ongenital or developmental defects, refractive error of the eye, MORRIS v. DVA 20 personality disorders, and mental deficiency” are entitled to the presumption of soundness. In sum, according to the express language of 38 C.F.R. § 3.303(c), personality disorders are not diseases or injuries within the meaning of § 1110 and thus are not compensable. Therefore, the Board and the Veterans Court did not err in holding the presumption of soundness inapplicable to Mr. Morris’s case. The 1988 Board Decision therefore was not tainted by CUE. As we hold there was no CUE in the 1988 Board Decision, we need not address the government’s alternative argument that, assuming there was CUE, the error was not outcome determinative. CONCLUSION For the foregoing reasons, the decision of the Veterans Court is affirmed. Each party shall bear its own costs. AFFIRMED United States Court of Appeals for the Federal Circuit __________________________ JACK D. MORRIS, Claimant-Appellant, v. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee. __________________________ 2011-7061 __________________________ Appeal from the United States Court of Appeals for Veterans Claims in case no. 09-0017, Judge Robert N. Davis. __________________________ DYK, Circuit Judge, concurring. I agree that the majority has reached the correct result and join the majority, but I think additional explanation is useful because the regulation is not immediately clear on its face. The statute provides that only an “injury” or “disease” that is service-connected is compensable. 38 U.S.C. §§ 1110, 1131. These terms are not defined in the statute, but the Department of Veterans Affairs regulations defining “injury” and “disease” are entitled to Chevron deference. See Terry v. Principi, 340 F.3d 1378, 1382 (Fed. Cir. 2003). Those regulations state that personality disorders are not injuries or diseases within the meaning of the statute. See 38 C.F.R. MORRIS v. DVA 2 § 3.303(c) (“[P]ersonality disorders and mental deficiency as such are not diseases or injuries within the meaning of applicable legislation.”); id. § 4.9 (“[P]ersonality disorder and mental deficiency are not diseases or injuries in the meaning of applicable legislation for disability compensation purposes.”); id. § 4.127 (“Mental retardation and personality disorders are not diseases or injuries for compensation purposes.”). The first question is whether the regulation at issue, 38 C.F.R. § 3.303(c), defines “personality disorder.” I think it does. The regulation provides, in relevant part: In the field of mental disorders, personality disorders which are characterized by developmental defects or pathological trends in the personality structure manifested by a lifelong pattern of action or behavior, chronic psychoneurosis of long duration or other psychiatric symptomatology shown to have existed prior to service with the same manifestations during service, which were the basis of the service diagnosis, will be accepted as showing preservice origin. 38 C.F.R. § 3.303(c) (emphasis added). The most natural reading of this regulation is that a personality disorder is a disorder “characterized by developmental defects or pathological trends in the personality structure manifested by a lifelong pattern of action or behavior.” Id. Thus, in theory, if a disorder did not exist before service, it would not fall into the category of a personality disorder, which requires a “lifelong pattern.” However, I do not read the regulation as applying the presumption of soundness or aggravation to personality disorders or as requiring proof of preservice origin or no aggravation, but only to require such a showing with respect to “chronic psychoneurosis of long duration or MORRIS v. DVA 3 other psychiatric symptomatology.” Id. In other words, the clause “shown to have existed prior to service with the same manifestations during service” modifies only “chronic psychoneurosis of long duration or other psychiatric symptomatology,” which—unlike personality disorders —may be compensable if they are shown not to have existed prior to service. Id. While the regulation then appears to state that all the listed items “will be accepted as showing preservice origin,” that means merely that all such disorders are non-compensable. Id. Thus I agree that the majority here is correct in holding that the presumption of soundness does not apply to personality disorders.

Single Judge Application, Kahana, 24 Vet.App. at 440; For Absence of Notation, Service Medical Records Must be Complete

Excerpts from decision below: "A. The Secretary's Examination Request The appellant contends that the Secretary's examination request, pertaining to the most recent VA medical opinion, inappropriately biased the examiner's opinion by essentially stating a factual premise unsupported by any Board finding. The appellant focuses in particular on the following paragraph: "Following examination and review of the claims folder, please provide an opinion as to whether any current disability of either knee is as likely as not the result of parachute jumps in service or if right knee disability is likely related to one-time complaint during service." R. at 84. This request clearly advances the premise that there was only a single complaint of a knee injury in service and requests the examiner to opine whether the appellant's current knee condition may be explained by that incident as documented in the STRs. The Court notes that the appellant argued below that there is a second STR, dated May 26, 1956, that "appears to state 'knees feel hurt.'" R. at 1305. The Court is unable to verify this assertion; the only document of that date in the record is illegible. See R. at 1707. In any view of the matter, this argument raises a dispute as to the content of the STRs. Therefore, the Court agrees with the appellant that the Secretary's instruction contained an inappropriate factual premise that may have truncated the examiner's review of the record. See Kahana v. Shinseki, 24 Vet.App. 428, 436 (2011) (Secretary erred by suggesting factual premise from what may have been an inaccurate summary of the service records)" ======================= "In any event, the Board made no finding of fact that the SMRs in the record may be regarded as complete. See Kahana, 24 Vet.App. at 440 (Lance, J., concurring) (in order to rely on absence of notations in SMRs, the Board must first find that the SMRs appear to be complete). The Secretary's examination request assumes a single in-service complaint of knee injury, which demands, as a logical prerequisite, complete SMRs. The Court concludes that the SMRs are useful only for what they distinctly show." ============================= ---------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 11-0010 DONALD R. RAMSEY, APPELLANT, v. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before DAVIS, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. DAVIS, Judge: U.S. Army veteran Donald R. Ramsey appeals through counsel from a September 8, 2010, Board of Veterans' Appeals (Board) decision that denied entitlement to service connection for a lumbosacral spine and bilateral knee disabilities and a disability rating in excess of 20% for a service-connected right-ankle condition. For the following reasons, the Court will set aside the Board's September 2010 decision and remand the case for further proceedings consistent with this decision. The appellant primarily argues that the Board failed to obtain adequate VA medical opinions. With respect to the knee disabilities, he argues that the Secretary's examination request for the most recent VA medical examination impermissibly tainted the examiner's opinions by suggesting a factual premise that is unsupported byappropriate findings of the Board. He furtherargues that none of the VA examiners' conclusions are supported by an appropriate medical explanation, rendering the Board's statement of reasons or bases inadequate. Finally, he argues that the Board's denial of an increased rating for his right-ankle disability is not supported by a sufficient statement of reasons or bases that accounts for all the evidence of record. As discussed below, the Court finds merit in all of these arguments. The appellant served on active duty from July 9, 1954, to June 25, 1957, including service as a paratrooper. He alleges that he sustained multiple injuries in parachute jumps, including knee and back injuries, and ankle injuries, with one ankle injury resulting in service connection. He states that the symptoms of the knee and back injuries continued after service and worsened with time, eventuating in bilateral knee replacements and degenerative arthritis of the lumbar spine. He testified that while he sought medical attention as he could afford it after service, he primarily self- treated with ankle and knee braces and over-the-counter pain medication. The appellant sustained a postservice work-related injuryto his knees on June 29, 1989. The resultant proceedings of the Office of Workmen's Compensation Programs ( OWCP) indicated that he twisted the right knee, which placed stress on the left knee. See Record (R.) at 6 ("The OWCP's accepted injuries from this incident were bilateral knee sprains."), 314. However, later medical procedures revealed his knee conditions were much more complicated. The Board noted that "[a]n October 1989 magnetic resonance imaging (MRI) study of the right knee contains an impression noting degenerative changes with possible Grade I tears of the posterior limbs of the menisci, small joint effusion, a possible loose body, and a possible tear of the cruciate ligament." R. at 6; see also R. at 1033 (arthroscopy postsurgical record dated August 30, 1990, containing postoperative diagnosis that included: "1. Degenerative arthritis of the right knee 2. osteochondral loose body of the right knee 3. torn medial and lateral meniscus of the right knee 4. Chondromalacia of the patella, right knee"). Eventually, the OWCP paid for the bilateral knee replacements and the appellant retired soon thereafter, when he found he could no longer perform his duties as a sheet metal worker on airplanes at Tinker Air Force Base. I. ANALYSIS A finding of service connection or the denial thereof is a finding of fact that the Court reviews underthe "clearly erroneous" standard of review. See Dyment v. West, 13 Vet.App. 141, 144 (1999). The assignment of a disability rating is also a factual finding that the Court reviews under the "clearly erroneous" standard of review. Johnston v. Brown, 10 Vet.App. 80, 84 (1997). A finding of fact is clearly erroneous when the Court, after reviewing the entire evidence, "is left with the definite and firm conviction that a mistake has been committed." United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); see also Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990). 2 The Board is required to consider all evidence of record and to consider and discuss all "potentially applicable" provisions of law and regulation. Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991); see 38 U.S.C. § 7104(a); Weaver v. Principi, 14 Vet.App. 301, 302 (2001) (per curiam order). In rendering its decision, the Board must provide a statement of reasons or bases that is adequate to enable an appellant to understand the precise basis for its decision and to facilitate review in this Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet. App. 517, 527 (1995); Gilbert, 1 Vet.App. at 56-57. To comply with these requirements, the Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). A claim for service connection must generally be supported by evidence demonstrating "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In the decision here on appeal the Board made no findings as to the existence of present disabilities, although there appears to be no divergence between the opinions of private physicians and VA physicians that the appellant has "[d]egenerative joint disease of the bilateral knees status post total knee replacement," and "[m]ultilevel degenerative joint disease of the lumbar spine with spondylolisthesis and spinal canal stenosis." Record (R.) at 79 (February 2010 VA examination report); see also R. at 1494 (private physician's diagnosis of "multilevel degenerative disease and degenerative spondylolisthesis at L5-S1"). Service connection mayalso be established by chronicity and continuity of symptomatology. See 38 C.F.R. § 3.303(b) (2011). Continuity of symptomatology may establish service connection if a claimant can demonstrate that (1) a condition was "noted" during service; (2) there is postservice evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. Barr v. Nicholson, 21 Vet.App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet.App. 488, 495-96 (1997)). As the Board acknowledged during a hearing (see R. at 1298), there is record evidence 3 tending to support the first two requirements for obtaining service connection by continuity of symptomatology. The Board decision supports the occurrence of conditions noted in service. "The Veteran's service treatment reports (STRs) show that in May 1955, he was treated for a left knee injury related to a parachute jump, and that he was provided with a bandage. In July 1956, he was treated for a sprained back, and the reports note that an X-ray was negative." R. at 6. The appellant and members of his family testified that knee and back symptoms continued after service. See R. at 1230, 1232, 1280-82. As discussed more fully below, the Board criticized portions of this lay evidence but stopped short of finding it not credible. See Coburn v. Nicholson, 19 Vet.App. 427, 433 (2006) ("[T]he Board addressed conflicting facts but it never rendered a finding with regard to the credibility of [the appellant's] statements to the medical examiner."). Thus, as with many such cases, the result depends on the analysis of the nexus evidence. A. The Secretary's Examination Request TheappellantcontendsthattheSecretary's examination request, pertaining to the most recent VA medical opinion, inappropriately biased the examiner's opinion by essentially stating a factual premise unsupported by any Board finding. The appellant focuses in particular on the following paragraph: "Following examination and review of the claims folder, please provide an opinion as to whether any current disability of either knee is as likely as not the result of parachute jumps in service or if right knee disability is likely related to one-time complaint during service." R. at 84. This request clearly advances the premise that there was only a single complaint of a knee injury in service and requests the examiner to opine whether the appellant's current knee condition may be explained by that incident as documented in the STRs. The Court notes that the appellant argued below that there is a second STR, dated May 26, 1956, that "appears to state 'knees feel hurt.'" R. at 1305. The Court is unable to verify this assertion; the only document of that date in the record is illegible. See R. at 1707. In any view of the matter, this argument raises a dispute as to the content of the STRs. Therefore, the Court agrees with the appellant that the Secretary's instruction contained an inappropriate factual premise that may have truncated the examiner's review of the record. See Kahana v. Shinseki, 24 Vet.App. 428, 436 (2011) (Secretary erred by suggesting factual premise from what may have been an inaccurate summary of the service records) 4 It is also entirely unclear how the Board could legitimately conclude that the STRs were complete enough to ensure that the single knee incident evident from the available and legible records was the only in-service incident involving a knee injury. The appellant's service records were fire damaged and several of the documents in the record of proceedings (ROP) are but copies of charred fragments, with as much as half of their content obliterated. The response to VA's request for service records reads as follows: "Record is fire-related. The original SMRS [service medical records] are moldy or brittle and cannot be mailed. Copies of all available SMRS <>." R. at 1699 (emphasis added). This response at least suggests the possibility that the complete set of SMRs was unavailable. The appellant correctly notes that the first page of the separation examination report is missing from the record, raising the possibility that the SMRs may be incomplete in other ways. Furthermore, the Court's review of the SMRs reveals that certain entries are illegible (see R. at 1703, 1707); because the Board did not have the originals, it was in no better position to assess the illegible content. In any event, the Board made no finding of fact that the SMRs in the record may be regarded as complete. See Kahana, 24 Vet.App. at 440 (Lance, J., concurring) (in order to rely on absence of notations in SMRs, the Board must first find that the SMRs appear to be complete). The Secretary's examination request assumes a single in-service complaint of knee injury, which demands, as a logical prerequisite, complete SMRs. The Court concludes that the SMRs are useful only for what they distinctly show. The Secretary's inference,conveyed in the examination request, that the records demonstrate one and only one knee incident in service is impermissible. Because this inference injected a possibly false premise into the examiner's analysis, the matter requires a remand for a new medical opinion. B. The Knee Conditions 1. VA Examination Reports The Board relied on two VA medical examinations in denying service connection for the appellant's bilateral knee conditions. The VA examiner's analysis in February 2010 was as follows: [I]t is the opinion of this examiner that the degenerative joint disease of the bilateral knees status post total knee replacement is less likely than not secondary to the parachute jumps in the service and is also less likely than not secondary to the one 5 time complaint related to the left knee documented in the military record. The rationale is that there is no documentation regarding knee problems between his discharge date in 1957 and the documented workman's compensation injury in 1989. R. at 79. As the Board acknowledged in evaluating the appellant's medical evidence of nexus, "a bare conclusion that is unaccompanied by discussion, explanation, or citation to clinical findings during service" is entitled to no weight in a service-connection context. R. at 12; see also Nieves- Rodriguez v. Peake, 22 Vet.App. 295, 304 (2008). The above-quoted passage from the examiner's report that purports to be a rationale is, in fact, a mere recital of the content of the available records. The examiner offered no medical analysis why she relied so heavily on lack of postservice medical records. For instance, she did not state that had the in-service stress and injuries eventuated in the degenerative conditions and loose bodies found in 1989 such effects would be expected to develop rapidly after service and demand medical attention. Cf.Kahana, 24 Vet.App. at 432 (Board made inappropriate medical finding that had the claimed injury occurred in service, it would have required medical treatment and thus should have been recorded in SMRs). Thus, the February 2010 medical examination report adds no medical support to the Board's analysis. The examiner may have intended to imply that the appellant's knee conditions were more likelythe result of the work-related injury. If so, however, she offered no explanation how the work- related incident in June 1989 could have resulted in the degenerative conditions, foreign bodies, and chondromalacia by October of the same year. The Board also discussed the results of an August 2006 VA joints examination, which resulted in the following opinion: I do not see any evidence [] that the veteran had continuation of his knee problems of that one instance when he was seen in service. So I cannot without resorting to speculation saythat the veteran's current knee problems are related to his one episode of knee pain while in service. It is more likely that the Workman's Comp injuries led to his problems, but I have no records of what the Workman's Comp injury was and when it had happened. R. at 1435. The second sentence neither adds nor detracts from the Board's analysis of the appellant's knee claims; it merely states that a supportive conclusion may not be drawn on the basis of the available in-service medical records. The third sentence is ludicrous on its face and the Court 6 is amazed that it is included in any serious analysis of this service- connection issue. Thus, to the extent that the Board may have regarded the appellant's knee conditions as the product of the work- related injury, neither VA examination report lends any support to that view. 2. The Board's Analysis Neither VA examiner discussed the implications of the lay evidence in the record that tends to support a continuity-of-symptomatology claim. In addition to the appellant's statements that his knee conditions began in service and worsened through the years (see R. at 76), the record contains statements from both of the appellant's sons that they observed symtpms of the appellant's knee conditions from a quite early age. In a statement dated January 22, 2009, his elder son recalled: "During the fifty years of my life, I observed first hand the agony and suffering my father has endured due to chronic pain and swelling in his knees . . . . I can remember him getting injections in his knees and having to wrap them and still struggling to get around." R. at 1230. He further stated that he observed his father experiencing knee pain "[f]or as long as I can remember." Id. This statement places the son's observations potentiallyas far back as the mid- 1960s and corroborates the appellant's testimony that he sought episodic medical assistance and self- treated with bandages in the years closely following service. The younger son stated that he " cannot remember a time when [the appellant] didn't limp . . . I remember his knees were swelled up all the time." R. at 1232. This statement puts the younger son's observations potentially back to the early 1970s, certainly much earlier than 1989. While VA medical examiners have no duty to discuss all the relevant evidence of record, the Board certainly does. The Board noted a "job application, and an associated 'Supplemental Experience Statement' (CSC Form 630), dated in July 1970, which shows that the Veteran stated, 'Paratrooper for 3 years without any serious injury.'" R. at 6. Later, in evaluating the lay evidence, the Board stated: "Although the Veteran has asserted that he began having a knee and low back symptoms during service, this is contradicted, to an extent, by his 1970 statement in his job application." R. at 14. Because the Secretary provides no record citation for this document, and the Court was unable to locate it in a 1264-page ROP, the Court's review is somewhat frustrated. The Board certainly mayconsider inconsistent statements in making credibility evaluations. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (Board can consider bias in lay 7 evidence and conflicting statements of the veteran in weighing credibility); Caluza v. Brown, 7 Vet.App. 498, 511 (1995) ("The credibility of a witness can be impeached by a showing of interest, bias, inconsistent statements, or, to a certain extent, bad character."). As with any determination, however, the Board must explain the reasoning behind its credibility assessments. Accepting the Board's characterization of the 1970 document, however, the Court views the content as equivocal at best. The appellant's perception of what he may have regarded as a "serious injury" must be viewed in the light of the fact that the SMRs document the fact that both his ankles had apparently been fractured. See R. at 75, 1725. At any rate, the Board really did not make a negative credibility finding as to the appellant's statements; it only stated that "the lay testimony is insufficiently probative to warrant a grant of any of the claims." R. at 14. The Board undertook no discussion or analysis of the statements of the appellant's sons. The Board concluded that "the [SMRs], and the post-service medical evidence, outweigh the Veteran's contentions to the effect that the Veteran has the claimed conditions that are related to service." R. at 15. The Board must reevaluate this assessment consistently with this decision. Citing Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000), the Board reiterated the gap of 31 years in medical records concerning the knee conditions and stated that this gap weighed against the claim. The Maxson case is a oft-cited and much-abused precedent. In Maxson the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) was considering whether the absence of treatment records for an extended number of years could be considered in the context of rebutting the presumption of aggravation under 38 U.S.C. § 1153. Such consideration is consistent with the regulatory scheme pertaining to the presumption of aggravation because it is relevant to determining whether there was a permanent worsening in the preexisting disability. The Court does not read the case as setting forth any general principle that a gap in medical records, regardless of the factual context of a case, weighs against a service-connection claim. Thus, the mere absence of medical records, without more, does not support an inference that a veteran had no health problems in the intervening years. In general, there are many reasons that the record may not contain medical documentation for a period of years. Among these reasons is the possibility that a veteran's life situation may be 8 such that he cannot afford frequent visits to physicians or that he may be more inclined to bear up under progressively worsening symptoms until they become unbearable. The Board should have considered the lay evidence indicating that such explanatory factors may have been operative in this case. See R. at 1281, 1291-92 (appellant's hearing testimony concerning years immediately after service). For the foregoing reasons, the Court holds that the Board's statement of reasons or bases is inadequate to support its ultimate conclusions with respect to the bilateral knee disorder. Therefore, the Court will set aside those findings and remand the matter for further proceedings. C. The Back Condition 1. The VA Examination Reports The February 2010 VA examination report noted an absence of postservice documentation of lower back pain until the 1990s following the knee replacement surgeries. The examiner concluded that the lumbosacral spine condition was less likely than not related to military service. The examiner's rationale was that "there is a onetime injury to the left low back in July of 1956 but no other complaints throughout the military service showing no chronicity of symptoms." R. at 79. Again, this statement is not a medical explanation but a mere reiteration of the state of the document record. A September 2006 report from a VA spinal examination was inconclusive. The examiner's statement reads as follows: The veteran was seen twice for the back pain [in service] and had a normal x-ray at that time and had no problems until about 40 years after leaving service. So I cannot really give an opinion without resorting to speculation as to whether the veteran's current back problems are related to his service. R. at 1426; see also R. at 1420 (indicating that the appellant was seen on July 26, 1956, and again on July 30 for back complaints). The Board referred to "[a] VA spine examination report, dated in August 2006." R. at 8. This reference may have been an inadvertence, stemming from the fact that the same examiner conducted the August 2006 joints examination that was discussed previously. The Board went on to erroneouslystate, however, that "the Veteran was onlyshown to have had one treatment for back symptoms in one month during service." Id. (emphasis added). In weighing the evidence pertaining to the back condition, the Board did not rely on the 2006 report. 9 2. The Board's Analysis The Board began its discussion of the lumbosacral spine disorder with the assertion that "the Veteran was treated for back symptoms in July 1956, with no subsequent treatment during his remaining service, a period of about 11 months." R. at 11. As discussed previously, this premise depends on the doubtful proposition that the SMRs are complete in the record, a finding that the Board did not make. The Board further noted that "a lumbosacral spine disorder was not noted upon separation from service." Id. The Board should have explained the significance it attached to this fact, in view of the fact that postservice diagnosis of the back condition was made with the aid of an MRI, a technology not available in 1957. Moreover, as the appellant points out, the separation examination report also does not mention the ankle condition, which is reflected elsewhere in the SMRs and for which service connection was later awarded. Thus, neither the Board nor the record itself supports an exception to the rule that the absence of evidence is not substantive negative evidence. See Buczynzki v. Shinseki, 24 Vet.App. 221 (2011). Furthermore, the Board made no attempt to reconcile the divergent evidence regarding the number of complaints in the SMRs for a back condition. The February 2010 VA examiner stated that "there is a onetime injuryto the left low back in Julyof 1956 but no other complaints throughout the military service showing no chronicity of symptoms." R. at 79. As the September 2006 report notes, however, the appellant was seen twice for back complaints in the same month. It is unclear whether the February 2010 examiner believed that there was only one complaint of back symptoms or whether she was attributing the two visits to the same injury. The Board should have sought clarification. See Savage v. Shinseki, 24 Vet.App. 259 (2010). Moreover, there is a private medical examination report that identifies three visits to physiotherapy in the SMRs after the documented July 1956 injury. See R. at 1494. The Board should have reconciled this evidence, because the February 2010 VA examiner's analysis depended in part on a lack of chronicity during service. There is also no analysis in the VA medical examination reports pertaining to the possible effect of multiple parachute jumps before and after the documented July1956 injury. See McLendon v. Nicholson, 20 Vet.App. 79, 83 (2006) (if a veteran's military records indicate he served as a paratrooper,makingmultiplejumps duringservice, andtheveterannowhasevidenceofarthritis that 10 he indicates was due to those jumps, VA must obtain a medical opinion as to a possible link). The February 2010 VA examination report is inadequate because it failed to consider this matter. Finally, the Board's discussion of the lay evidence is similarly inadequate to support its analysis. In particular, the Board made no mention of the younger son's observation that he noticed the appellant's back "was kinda hunched over." R. at 1232. For the foregoing reasons, the Court holds that the Board's statement of reasons or bases is inadequate to supportits ultimate conclusionswith respectto thebackdisorder. Therefore, the Court will set aside those findings and remand the matter for further proceedings. C. Ankle Injury The principal dispute as to the appropriate disabilityrating for the ankle injuryis whether the appellant's right ankle has ankylosis. See 38 C.F.R. § 4.71a, Diagnostic Code 5270 (2011) (ankle, ankylosis of). The appellant contends that he is entitled to a higher rating under this diagnostic code for the ankylosis of his right ankle. The Board acknowledged that ankylosis includes immobility due to a surgical procedure. See R. at 16 (citing Shipwash v. Brown, 8 Vet.App. 218, 221 (1995)). The Board further acknowledged that the appellant "underwent a right ankle arthrodesis." R. at 16. An "arthrodesis" is "the surgical fixation of a joint by a procedure designed to accomplish fusion of the joint surfaces by promoting the proliferation of bone cells; called also artificial ankylosis." DORLAND'SILLUSTRATEDMEDICALDICTIONARY157 (32d ed. 2012). Yet, the February 2010 VA examination report indicates that "there is no evidence of ankylosis." R. at 79. Neither the examination report nor the Board offers anyexplanation how this observation can be true despite the acknowledged surgical procedure. Thus, the Court must remand this issue for a fuller explanation. The Court must remand the matter of the ankle disability for the additional reason that the evidence seems to indicate that there may be an additional claim for a secondary ankle condition. See Schafrath, supra; Robinson v. Peake, 21 Vet.App. 545, 552 (2008) ( Board is required to consider all issues raised either by the claimant or by the evidence of record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). In a letter dated April 13, 2009, Dr. Paul Kammerlocher indicated that the appellant has "severe ankle pain in his subtalar joint, which has 11 gone on to secondary post-traumatic arthrosis as a result of his ankle fusion, which by his history is a direct result of injury he sustained in the Army in 1956." R. at 1238. The Board must evaluate whether this evidence raises a claim for secondary service connection for the condition described by this physician. See Clemons v. Shinseki, 23 Vet.App. 1 (2009). For the foregoing reasons, the Court holds that the Board's statement of reasons or bases is inadequate to support its ultimate conclusions with respect to the disability rating for the right ankle. Therefore, the Court will set aside those findings and remand the matter for further proceedings. II. CONCLUSION On consideration of the foregoing, the Court SETS ASIDE the Board's September 8, 2010, decision, and REMANDS this case for further proceedings consistent with this decision and readjudication. On remand, the appellant will be free to submit additional evidence and argument as to his claims and the Board is required to consider any such evidence and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). A final Board decision following the remand herein ordered will constitute a new decision that, if adverse, may be appealed to this Court upon the filing of a new Notice of Appeal with the Court not later than 120 days after the date on which notice of the Board's new final decision is mailed to the appellant. Marsh v. West, 11 Vet.App. 468, 472 (1998). DATED: April 30, 2012 Copies to: Sandra E. Booth, Esq. VA General Counsel (027) 12

Single Judge Application, Cogburn v. Shinseki, 24 Vet.App. 205, 212-14; Implicit Denial, Four Factors

Excerpt from decision below: ""The 'implicit denial' rule provides that, in certain circumstances, a claim for benefits will be deemed to have been denied, and thus finally adjudicated, even if [VA] did not expressly adjudicate that claim in its decision." Adams, 568 F.3d at 961. "[T]he key question in the implicit denial inquiry is whether it would be clear to a reasonable person that [VA's] action that expressly refers to one claim is intended to dispose of others as well." Id. at 964; see also Ingram v. Nicholson, 21 Vet.App. 232, 243 (2007) (holding that "a reasonably raised claim remains pending until there is either a recognition of the substance of the claim in an RO decision from which a claimant could deduce that the claim was adjudicated or an explicit adjudication of a subsequent 'claim' for the same disability"). The Court has identified four factors for consideration when determining whether a claim was implicitly denied: (1) "The relatedness of the claims"; (2) "whether the adjudication alluded to the pending claim in such a way that it could reasonably be inferred that the prior claim was denied"; (3) "the timing of the claims"; and (4) whether "the claimant is represented." Cogburn v. Shinseki, 24 Vet.App. 205, 212-14 (2010). Although the Board issued its decision after Cogburn had been decided, the Board limited its analysis to the first and second factors identified as relevant to determining whether a claim is implicitly denied. The Board stated that the facts of this case are similar to those in Deshotel, and explained that "[f]or an 'implicit denial' of an unadjudicated claim, the claim must be closely related to the adjudicated issue." R. at 14. =========================== ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 11-910 RONALD FRADKIN, 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: Theproseappellant,Ronald Fradkin,appealsaMarch16,2011, Board of Veterans' Appeals (Board) decision that (1) denied entitlement to an effective date earlier than April 28, 1995, for the award of disability compensation for major depression, and (2) determined that a November 22, 1971, rating decision is final and did not involve clear and unmistakable error (CUE). Record of Proceedings (R.) at 3-30. This appeal is timely, and the Court has jurisdiction to review the Board's decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Both parties filed briefs, and the appellant filed a reply brief. Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). Because the Board failed to provide an adequate statement of reasons and bases for its determination that the appellant's 1971 application for compensation benefits for a "nervous condition" included reasonably construed claims for chronic anxiety, depressive neurosis, and schizoid personality disorder, and that the November 22, 1971, rating decision implicitly denied the claims for chronic anxiety and depressive neurosis, the Court will vacate the Board's March 16, 2011, decision and remand the matter for further adjudication consistent with this decision. I. BACKGROUND The appellant served on active duty in the U.S. Air Force from June 5, 1967, to January 8, 1971. R. at 1250. In 2002, he was awarded disability compensation for recurrent major depression, effective April 28, 1995, the date of filing of a reopened claim. R. at 613-17, 631-40, 1046-49. The appellant's appeal stems from his disagreement with the assigned effective date. He seeks a January 9, 1971, effective date based on the assertion that his October 4, 1971, claim for disability compensation for a "nervous condition" included claims for benefits based on diagnoses of "chronic anxiety" and "depressive neurosis" that remained pending and unadjudicated since 1971. In the alternative, assuming his 1971 claims were finally adjudicated, he seeks to reverse or revise on the basis of CUE the November 22, 1971, rating decision that denied disability compensation for a "nervous condition." Because this is the third time the appellant's appeal of the effective date decision is before the Court, the Court will not provide a detailed recitation of the facts, except where pertinent to the Court's analysis. See Fradkin v. Shinseki, No. 09-0096, 2010 WL 2316256 (Vet. App. June 9, 2010) (mem dec.); see also Fradkin v. Nicholson, No. 04-730, 2006 WL 3007303 (Vet. App. Sept. 30, 2006) (order). II. ANALYSIS A. Finality of the November 22, 1971, Rating Decision In the March 16, 2011, decision here on appeal, the Board denied entitlement to an effective date prior to April 28, 1995, for an award of disability compensation for major depression. R. at 3- 21. In rendering its decision, the Board determined that (1) the appellant's October 4, 1971, application for compensation benefits for a "nervous condition" is " reasonably construed as a claim for service connection for chronic anxiety, depressive neurosis, and schizoid personality disorder"; (2) although the November 1971 rating decision did not explicitly address chronic anxiety or depressive neurosis, the claims were implicitlydenied in the decision; (3) the December 1971 notice letter informed the appellant that his claim had been denied because his " nervous condition was not considered to be a disability within the meaning of the law"; and (4) "the November 1971 rating decision and the December 1971 notice letter provided notice sufficient enough for the [v]eteran to know that service connection for a psychiatric disorder including chronic anxiety or a depressive 2 neurosis had been denied." R. at 5, 11-17. As a result, the Board concluded that the November 22, 1971, rating decision is final and cannot provide a basis for entitlement to an earlier effective date absent CUE. R. at 17. The Board also rejected the appellant's argument that he was mentally ill and unable to file an appeal timely from the November 22, 1971, rating decision. R. at 17- 19. The Board found that the principles of equitable tolling did not apply to the time for the veteran to perfect an appeal to the Board and, even assuming that they did, (1) there was "no suggestion in the record that the [v]eteran was incompetent for VA purposes or otherwise mentally incapable of pursuing a timely appeal, and (2) the doctrine of equitable tolling cannot apply because the appellant never filed an appeal from the November 1971 rating decision. Id. The appellant argues that the Board erred when it determined that his claims for chronic anxiety and depressive neurosis were implicitly denied by the November 22, 1971, rating decision. Appellant's Brief (Br.) at 8-15. He argues that although the rating decision identified the "issue" as a "nervous condition," the regional office (RO) limited its discussion of the facts to a "schizoid personality disorder." Therefore, because there is nothing in the rating decision or notice of disallowance that refers or alludes to the diagnoses of chronic anxiety and depressive neurosis, the appellant argues there is no reasonable basis for concluding that claims based on these diagnoses were considered and denied.1 Id. at 10-15. The November 22, 1971, rating decision identified the issue as "[s]ervice connection for nervous condition," and found that the "[v]eteran's official [s]ervice [r] ecords show he was observed in August . . . 1968 for an emotional problem and found to have [s]chizoid [ p]ersonality [d]isorder." R. at 1121. The rating decision then states: "Constitutional or developmental abnormality – not a disabilityunderthelaw[.] SCHIZOID PERSONALITY DISORDER." Id. On December 27, 1971, the RO sent the appellant a notice letter, which stated: This will advise you of the decision in your claim for disability. Based upon a complete review of your service records and the other evidence contained in your file, it has been necessary to deny your claim. This denial was based upon a determination that your [n]ervous condition is not considered a disability within the meaning of the law. R. at 1117. 3 1 TheBoardfoundthat the appellant's "October1971claimofserviceconnection foranervous condition included the issues of service connection for schizoid personality disorder, depressive neurosis[,] and chronic anxiety." R. at 13-14 (emphasis added); see Fradkin v. Shinseki, 2010 WL 2316256, at *6 (remanding matter for the Board to make the substantially factual determination whether the appellant's claim for disability compensation for a "'nervous condition' included the issues of 'chronic anxiety' and 'depressive neurosis' or constituted separate claims for 'chronic anxiety' and 'depressive neurosis'" (emphasis added)). In accordance with the Court's decision in Clemons v. Shinseki, 23 Vet.App. 1 (2009), the Board stated that the appellant's application demonstrated that "he was filing a claim for his current psychiatric disorder, although he did not identify a specific clinical diagnosis." R. at 13; see Clemons, 23 Vet.App. at 5-6 (noting that a claimant does "not file a claim to receivebenefits onlyfor a particular diagnosis, but forthe affliction his [ ] condition, whatever that is, causes him" and holding that a single claim for disability compensation can encompass more than one condition). This statement by the Board suggests that the appellant filed one claim for a mental disability and that the RO's adjudication of the claim required it to weigh and assess the nature of the appellant's current condition by considering all potential diagnoses of record to determine whether the appellant's psychiatric disability was related to service. See Clemons, 23 Vet.App. at 5 (when determining the scope of a mental disability claim, the Board must consider "the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim"). However, in addressing the appellant's argument that "the November 1971 rating decision only denied the claim of service connection for schizoid personality disorder and . . . did not adjudicatetheclaimsforserviceconnection forchronicanxietyanddepressiveneurosis,"theBoard's analysis suggests that it treated the appellant's October 1971 application as having raised three separate claims for disability benefits. R. at 14 (finding that "the claim of service connection for chronic anxiety and depressive neurosis were implicitly denied in the November 1971 rating decision"). In this regard, the Board observed that a claim for benefits may be implicitlydenied, and thus finally adjudicated, even if the rating decision did not explicitly address that claim in its 4 decision. R. at 14 (citing Adams v. Shinseki, 568 F.3d 956, 961 (Fed. Cir. 2009) and Deshotel v. Nicholson, 457 F.3d 1258 (Fed. Cir. 2006)). "The 'implicit denial' rule provides that, in certain circumstances, a claim for benefits will be deemed to have been denied, and thus finally adjudicated, even if [VA] did not expressly adjudicate that claim in its decision." Adams, 568 F.3d at 961. "[T]he key question in the implicit denial inquiry is whether it would be clear to a reasonable person that [VA's] action that expressly refers to one claim is intended to dispose of others as well." Id. at 964; see also Ingram v. Nicholson, 21 Vet.App. 232, 243 (2007) (holding that "a reasonably raised claim remains pending until there is either a recognition of the substance of the claim in an RO decision from which a claimant could deduce that the claim was adjudicated or an explicit adjudication of a subsequent 'claim' for the same disability"). The Court has identified four factors for consideration when determining whether a claim was implicitly denied: (1) "The relatedness of the claims"; (2) "whether the adjudication alluded to the pending claim in such a way that it could reasonably be inferred that the prior claim was denied"; (3) "the timing of the claims"; and (4) whether "the claimant is represented." Cogburn v. Shinseki, 24 Vet.App. 205, 212-14 (2010). Although the Board issued its decision after Cogburn had been decided, the Board limited its analysis to the first and second factors identified as relevant to determining whether a claim is implicitly denied. The Board stated that the facts of this case are similar to those in Deshotel, and explained that "[f]or an 'implicit denial' of an unadjudicated claim, the claim must be closely related to the adjudicated issue." R. at 14. In this regard, the Board found that the appellant's claim for "schizoid personality disorder and the implicit claims of service connection for chronic anxiety and depressive neurosis are closely related since they each may represent a nervous condition as generally claim[ed] by the [v]eteran." R. at 15. The appellant argues that the Board's reason for concluding that his claim for a schizoid personality disorder was closely related to his claims for chronic anxiety and depressive neurosis is incorrect because according to the Diagnostic and StatisticalManual of Mental Disorders (2d ed. 1968) (DSM-II) anxietyand depression areneuroses, and personality disorders are not. See DSM-II at 41 (providing that personality disorders "are characterized by deeply ingrained maladaptive patterns of behavior that are perceptibly different in 5 quality from psychotic and neurotic symptoms"). Thus, although each diagnosis is indicative of a psychiatric disability, they all do not represent "nervous conditions." With regard to the second factor identified in Cogburn, the crux of the appellant's argument is that the RO failed to discuss the claims for chronic anxiety and depressive neurosis in terms sufficient to put him on notice that theywere being considered and denied because neither the rating decision nor the notice letter discussed either diagnosis or evidence related these diagnoses (e.g., postservice hospital treatment records and a January 6, 1970, service medical record). Appellant's Br. at 10-15. He persuasivelyargues that unlike Deshotel, supra, where the RO stated that there was "no psychiatric symptomatology," and Adams, supra, where the RO stated that it "had considered his affidavit," it would have been illogical for him to conclude that anything other than a schizoid personality disorder was considered. Id. In response, the Secretary argues that "[b]ecause the competing diagnoses were predicated upon the same symptomatology, [the a] ppellant should have recognized that the denial of entitlement as to one psychiatric diagnosis was, effectively, a denial as to all." Secretary's Br. at 13. The Secretary's argument is not availing because he does not provide any support for his assertion that the competing diagnoses are based on the same symptomatology and it was not the basis provided by the Board for its determination that the rating decision and notice letter provided "notice sufficient enough for the [v]eteran to know that service connection for a psychiatric disorder including chronic anxiety or a depressive neurosis had been denied." R. at 17; see Martin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144, 156 (1991) ("'[L] itigation positions' are not entitled to deference when they are merely appellate counsel's 'post hoc rationalizations' for agency action advanced for the first time in the reviewing court."). The Board stated: Clearly, on this record, the RO found that the current nervous condition was diagnosed as a schizoid personality disorder and denied the [v]eteran's claim on the basis that it was not considered to be a disease or injury under the applicable legislation. Such language, thus, informed the [v]eteran that the RO had determined that he did not have either a specific anxiety disorder or depressive neurosis that was present in or could be linked to service. To the extent that the [v]eteran did not identify any specific psychiatric diagnosis in connection with his initial claim, it would be reasonable that VA did not . . . 6 expressly discuss an innocentlyacquired psychiatric disorder in connection with that decision. R. at 15. Despite the apparent clarity that the Board discerns from the 1971 rating decision, it remains entirely unclear to the Court what information in the rating decision the Board regards as alluding to the appellant's overall psychiatric disabilityin such a waythat the appellant reasonablycould have inferred that the RO determined he did not have a specific anxiety disorder or depressive neurosis that was present in or could be linked to service. See Adams, 568 F.3d at 963 (finding that a Board decision that noted it reviewed all the medical reports and the affidavit, and concluded that the evidence did not disclose active rheumatic fever or other cardiac pathology during service, "'reasonably informed the appellant that a claim for any heart condition, including endocarditis, was denied'" (quoting Adams v. Peake, No. 06-0095, 2008 WL 2128005, slip op. at 6 (Vet. App. Feb. 20, 2008) (emphasis added)) and (finding the facts in Deshotel similar because " the regional office noted, when it granted [VA benefits] for a head injury, that the claimant's medical examination showed no evidence of psychiatric symptom[s]," and "[u]nder those circumstances, a reasonable veteran would have known that his claim for disability compensation for a psychiatric disorder was denied")); cf. Ingram, 21 Vet.App. at 247-48 (finding that "when Mr. Ingram was informed that his claim for pension benefits was denied because his condition was 'not established as permanent,' he had no reason to know how a disability compensation claim based on section 1151 might have been decided by the regional office"). Because the notice documents relied upon by the Board fail to mention either diagnosis, or the evidence related thereto, and, unlike a schizoid personality disorder, anxiety disorders and depressive neurosis are compensable disabilities, the Board needs to explain what "language" reasonably put the appellant on notice that the RO determined he did not have an anxiety disorder or depressive neurosis. Compare 38 C.F.R. § 3.303(c) (1971) (providing that "personalitydisorders and mental deficiency as such are not diseases or injuries within the meaning of applicable legislation" and, therefore, are not compensable) with 38 C.F.R. § 4.132, Diagnostic Codes 9400 (anxiety reaction), 9405 (depressive reaction) and 9406 (providing the general rating formula for psychoneurotic disorders) (1971); see also Cogburn, 24 Vet.App. at 216 (instructing the Board to 7 consider on remand "whether a reasonable person would have been put on notice that his 1974 claim for a 'severe nervous condition' and any informal claim for schizophrenia were adjudicated by the November 1985 Board decision that denied compensation benefits for post- traumaticstressdisorder [(PTSD)]" based on legal criteria unique to PTSD). Although the Court is mindful of the lengthy procedural history of this case, the Court nonetheless concludes that the Board's failure to provide an adequate statement of reasons or bases frustrates judicial review. Therefore, remand is required. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that remand is the appropriate remedy "where the Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate"). On remand, the Board must discuss the four factors identified in Cogburn, supra, in determining whether the appellant's 1971 claim was finally adjudicated in the November 22, 1971, rating decision. Given this disposition, the Court will not at this time address the remaining arguments and issues raised by the appellant. See Best v. Principi, 15 Vet.App. 18, 20 (2001). "A narrow decision preserves for the appellant an opportunity to argue those claimed errors before the Board at the readjudication, and, of course, before this Court in an appeal, should the Board rule against him." Id. Nonetheless, the Court notes that the appellant argues here on appeal that as a result of his mental impairment in 1971, he would not have been able to infer that his claims were implicitly denied in the November 1971 rating decision. Appellant's Br. at 15-20. In essence, he argues that notice that "requires the analytical skills of a 'reasonable' person is inadequate to inform one whose ability to think rationally is impaired." Id. at 17; see Adams, 568 F.3d at 961 ("[T]he implicit denial rule is, at bottom, a notice provision."); Thurber v. Brown, 5 Vet.App. 119, 123 (1993) ("The entire thrust of the VA's nonadversarial claims system is predicated upon a structure which provides for notice and an opportunity to be heard at virtually every step in the process."). Although the Court will not address this argument in the first instance, the Court observes that the Board stated that "[t]here is no suggestion in the record that the [v]eteran was incompetent for VA purposes or otherwise mentally incapable of pursuing a timely appeal" in 1971. R. at 18. As noted by the appellant (Appellant's Br. at 19), the record contains a letter from his treating psychotherapist who opined, based on the appellant's mental condition in 1971, that he "could not have proactively 8 responded to VA's denial of his claim." R. at 551-53. This is potentially favorable evidence that the Board must weigh and assess when considering the appellant's arguments. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995) (the Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). B. CUE in the November 22, 1971, Rating Decision Because the appellant's assertion of CUE in the November 22, 1971, rating decision is inextricably intertwined with the question whether the rating decision implicitly denied claims for "chronic anxiety" and "depressive neurosis" or whether the claims have remained pending since 1971, the Court will also vacate the Board's determination that there was no CUE in the November 22, 1971, rating decision. See Harris v. Derwinski, 1 Vet.App. 180, 183 ( 1991) (holding that where a decision on one issue could have a "significant impact" upon another, the two claims are inextricably intertwined),overruled on other grounds by Tyrues v.Shinseki, 23 Vet. App.166(2009). In pursuing these matters on remand, the appellant is free to submit additional evidence and argument on the remanded matters, and the Board is required to consider anysuch relevant evidence and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002) (stating that, on remand, the Board must consider additional evidence and argument in assessing entitlement to benefit sought); Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). The Court has held that "[a] remand is meant to entail a critical examination of the justification for the decision." Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991). The Board must proceed expeditiously, in accordance with 38 U.S.C. § 7112 (requiring Secretary to provide for "expeditious treatment" of claims remanded by the Court). III. CONCLUSION After consideration of the appellant's and the Secretary's pleadings, and a review of the record, the Board's March 16, 2011, decision is VACATED and the matter is REMANDED for further proceedings consistent with this decision. DATED: May 1, 2012 9 Copies to: Ronald Fradkin VA General Counsel (027) 10