Some Pain-reliving Medicines Linked to Hearing Loss

Full article at: Popular Pain-relieving Medicines Linked to Hearing Loss in Women Excerpt: "According to a new study by researchers at Brigham and Women's Hospital (BWH), women who took ibuprofen or acetaminophen two or more days per week had an increased risk of hearing loss. The more often a woman took either of these medications, the higher her risk for hearing loss. Also, the link between these medicines and hearing loss tended to be greater in women younger than 50 years old, especially for those who took ibuprofen six or more days per week. There was no association between aspirin use and hearing loss. The study will be published in the September 15, 2012 issue of the American Journal of Epidemiology."

Pensions for Veterans Over 65 yrs.

Excerpt from article: A Little-Known Benefit for Aging Veterans By SUSAN SELIGER September 19, 2012 "“What people don’t know is that when wartime veterans turn 65, the V.A. automatically classifies them as ‘totally disabled,’ ” Ms. Burak said. And if they meet income and asset criteria, they are eligible for a basic pension." ============ VA Veterans Pension Program "What is VA Pension for Veterans? Pension is a benefit paid to wartime Veterans who have limited or no income, and who are age 65 or older, or, under 65, and are permanently and totally disabled, or, a patient in a nursing home, or, are recieiving Social Secruity disability payments."

September 2012, VA's Claim Backlog at 895,248

Full article at: VA’s claims backlog continues to push 900,000 Excerpt: "On Sept. 17, the department reported it had 895,248 compensation and pension entitlement claims pending, with 592,792, or 66 percent, pending for more than 125 days. In sheer numbers, this marks a marginal improvement since April, when VA reported what veterans groups described as a staggering backlog of claims -- 897,566. Though officials managed to whittle that backlog down by 2,318 claims during the past six months, the number of claims pending for more than 125 days edged up 1.2 percent during that period."

Clinical Trial Involving Limb Muscle Repair, Seeking Participants

Traumatic Limb Muscle Loss Clinical Trials, please contact Allyson LaCovey at 412-624-5308 or lacoveya2@upmc.edu. More information about the trial can be found on this study recuitment flyer, at the trial website, or Dr. Badylak's laboratory website. Trial Website: Traumatic Limb Muscle Loss Clinical Trials "Musculotendinous Tissue Unit Repair and Reinforcement (MTURR) with the Use of Biologic Scaffolds for Patients Suffering From Severe Skeletal Muscle Injury We are conducting a research study to help us improve the surgical treatment of people who have suffered a severe loss of muscle and/or tendon tissue as a result of an injury to their arms or legs. You will undergo a standard reconstructive surgical procedure that is performed at UPMC hospitals to repair muscle and tendon tissue. During this surgical procedure, you also will receive an extracellular matrix (ECM), a material that functions outside of the body's cells to lay a framework to provide structural support for cells to grow on. This matrix has been developed to strengthen and reinforce the surgically repaired muscle tendons, and it provides a structural framework to support the growth of new tissue and blood vessels in that area. The ECM has been approved by the Food and Drug Administration as an "implantable device." It is made from cow tissue and composed mostly of collagen (a naturally occurring protein in our bodies). In this study, an FDA-approved ECM device will be used during the surgical repair procedure. The operative procedure for this study is considered a research procedure. The goal of this research study is to observe how each person’s injuries heal over time, and to measure changes in the functional ability of the repaired limb during a six-month, postsurgical follow-up period. We plan to enroll in the study approximately 40 adults, male or female, civilian or military personnel, 18 to 60 years of age."

Single Judge Application, 38 C.F.R. 3.304(f)(5); Personal Assault; Behavioral Changes; Menegassi v. Shinseki, 638 F.3d 1379, 1382 (Fed. Cir. 2011):

Excerpt from decision below: "38 C.F.R. § 3.304(f)(5), which states: If a [PTSD] claim is based on in-service personal assault, evidence from sources other than the veteran's service records may corroborate the veteran's account of the stressor incident. Examples of such evidence include, but are not limited to: records from . . . mental health counseling centers . . . or physicians . . . and statements from family members . . . . Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression . . . ; or unexplained economic or social behavior changes. . . . VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. 38 C.F.R. § 3.304(f)(5). In Menegassi v. Shinseki, 638 F.3d 1379, 1382 (Fed. Cir. 2011) the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that under § 3.304(f)(5), " medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated." See also Patton, 12 Vet.App. at 280 (rejecting the requirement that "something more than medical nexus evidence is required to fulfill the requirement for 'credible supporting evidence'" in personal-assault cases (quoting Cohen v. Brown, 10 Vet.App. 128, 145 (1997))). Accordingly, the Federal Circuit held that a favorable medical opinion diagnosing PTSD must be weighed against all other evidence of record for purposes of determining whether a claimed in-service sexual assault has been corroborated. Menegassi, 638 F.3d at 1382 n.1." ============================ ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 10-0376 ROBERT R. WAYNE, APPELLANT, V. ERIC K. SHINSEKI, Before SCHOELEN, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. SCHOELEN, Judge: The appellant, Robert R. Wayne, appeals through counsel an October 19, 2009, Board of Veterans' Appeals (Board) decision that denied his claim for entitlement to service connection for post-traumatic stress disorder (PTSD). Record of Proceedings (R.) at 3-11. This appeal is timely, and the Court has jurisdiction to review the Board's decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, the Court will vacate the October 19, 2009, Board decision and remand the matter for further proceedings consistent with this decision. I. BACKGROUND The appellant served on active duty in the U.S. Air Force from October 1962 to June 1965. R. at 574. The present appeal stems from the appellant's February 2003 claim for entitlement to service connection for PTSD resulting from an alleged in-service sexual assault that occurred on August 5, 1964. R. at 653-70, 713-28. The appellant's service medical records (SMRs) are silent regarding the claimed assault. However, an SMR from that night shows that the appellant reported to sick call at 0300 hours with a laceration over his right eye, which required sutures, and a small laceration inside his mouth. R. at 669. Although the SMR contains a note that the appellant fell in his room, the appellant has stated that he did not tell the doctors the truth because his attackers had threatened to kill him if he reported the incident. R. at 30, 116, 141, 169, 213, 667. The appellant's medical records show that in July1966 he reported a "long historyof nervous problems associated with chest pain and weight gain." R. at 630. He was treated at the Iroquois Center for Human Development for severe depression and anxiety from June 1976 through December 1979. R. at 502, 504. Treatment records from 1993 through 1994 also show that he received treatment for major depressive disorder. R. at 310-44. The appellant was diagnosed with PTSD from military sexual trauma in 2002 and received individual psychotherapy at the Topeka, Kansas, VA Medical Center. R. at 687-92, 701-04, 708-12; see also R. at 40- 137, 255-86. Although the appellant has stated that he did not know the identity of his attackers (R. at 30, 170, 220), an April 2007 VA psychiatrist's note includes a notation that the "[patient] found out that his attacker from the military is dead and has stopped feeling like he needs to have a gun in his pick up." R. at 95. In 2003, the appellant submitted lay statements from his wife and daughter who related that the appellant told them about the in-service assault in, approximately, 1981. R. at 663-65, 725-27. The appellant's claim was denied in October 2004, then he initiated an appeal to the Board. R. at 204-07, 233-36, 237-49, 287-98. In July 2007, the Board remanded the matter for additional evidentiary development, including a VA PTSD examination. R. at 155-60. The Board's remand instructions included the direction that, if the appellant is diagnosed with PTSD, the examiner is asked to review the veteran's complete case file, and if feasible, . . . provide an opinion as to whether or not the veteran's behavior after August 5, 1964, is consistent with a reaction to a sexual assault. (The Board notes that the veteran's military performance reports showed improvement in the period after the date of the alleged assault, and that the veteran has averred that he was repeatedly counseled by his sergeant and threatened with formal disciplinary proceedings.) R. at 158-59. The appellant underwent a VA PTSD examination in July 2008, wherein he reported the details of the in-service assault, including that he did not know the identity of his attackers. R. at 29- 35. The examiner diagnosed the appellant with "[PTSD], chronic, military sexual trauma; major depressive disorder, severe, with psychotic features (due to [PTSD])." R. at 34. The examiner noted that she was asked to opine "whether the appellant's level of military performance after August 5[, 2 1964,] could be consistent with PTSD ([m]ilitary [s]exual [t]rauma)" and provided the following response: Symptoms patient [is] experiencing [are] consistent with PTSD (military sexual trauma)[.] [H]e has been treated for these symptoms in VA bydifferent providers for years. According to [the Diagnostic and Statistic Manual for Mental Disorders (4th ed. 1994) (DSM-IV),] PTSD symptoms can appear[] not necessarily after trauma. PTSD can havedelayed onset when symptoms could appearlater after stressful event happened. Mr. Wayne['s] PTSD symptoms are caused by military sexual trauma. R. at 35. In its October 19, 2009, decision here on appeal, the Board denied the appellant's claim of entitlement to service connection for PTSD. R. at 3-11. The Board acknowledged that there was evidence of a diagnosis of PTSD and a link, established bythe recent medical examination, between the appellant's current symptoms and an in-service sexual trauma. R. at 11. The Board denied the claim,however,becauseit foundnocrediblesupportingevidencethattheclaimedin- servicestressor occurred. Id. This appeal followed. II. ANALYSIS The appellant argues that the Board's finding that there is no credible supporting evidence that the claimed in-service stressor occurred is clearly erroneous and requires reversal. Appellant's Brief (Br.) at 9-16. Alternatively, the appellant argues that remand is warranted for the Board to provide an adequate statement of reasons or bases for its decision. Id. at 16-19. The appellant also argues, in the alternative, that a remand is warranted for VA to fulfill its duty to assist. Id. at 19-20. The Secretary concedes that a remand is warranted for VA to fulfill its duty to assist and requests that the Court not address the appellant's argument for reversal. Secretary's Br. at 6-9. In the alternative, the Secretary argues that the Board's decision is not clearly erroneous and is supported by an adequate statement of reasons or bases. Id. at 9-14. A. Applicable Law To establish service connection for PTSD, a claimant must present (1) evidence of a current diagnosis of PTSD; (2) "a link, established by medical evidence, between current symptoms and an in-service stressor"; and (3) "credible supporting evidence that the claimed in-service stressor occurred." 38 C.F.R. § 3.304(f) (2011). Because "veterans face unique problems documenting their 3 claimed stressor in personal assault cases," the Secretary has "'provided for special evidentiary- development procedures' in those cases." Bradford v. Nicholson, 20 Vet.App. 200, 204 (2006) (quoting Patton v. West, 12 Vet.App. 272, 280 (1999)). These special procedures are detailed in 38 C.F.R. § 3.304(f)(5), which states: If a [PTSD] claim is based on in-service personal assault, evidence from sources other than the veteran's service records may corroborate the veteran's account of the stressor incident. Examples of such evidence include, but are not limited to: records from . . . mental health counseling centers . . . or physicians . . . and statements from family members . . . . Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression . . . ; or unexplained economic or social behavior changes. . . . VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. 38 C.F.R. § 3.304(f)(5). In Previous HitMenegassiNext Hit v. Previous HitShinsekiNext Hit, 638 F.3d 1379, 1382 (Fed. Cir. 2011) the U.S. In Menegassi v. Shinseki, 638 F.3d 1379, 1382 (Fed. Cir. 2011) the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that under § 3.304(f)(5), "medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated." See also Patton, 12 Vet.App. at 280 (rejecting the requirement that "something more than medical nexus evidence is required to fulfill the requirement for 'credible supporting evidence'" in personal-assault cases (quoting Cohen v. Brown, 10 Vet.App. 128, 145 (1997))). Accordingly, the Federal Circuit held that a favorable medical opinion diagnosing PTSD must be weighed against all other evidence of record for purposes of determining whether a claimed in-service sexual assault has been corroborated. Menegassi, 638 F.3d at 1382 n.1. The Court reviews the Board's factual determination as to the sufficiency of corroborative evidence of the in-service stressor under the "clearly erroneous" standard of review. See 38 U.S.C. § 7261(a)(4); Sizemore v. Principi, 18 Vet.App. 264, 270 (2004) (citing Pentecost v. Principi, 16 Vet.App. 124, 129 (2002)) (regarding corroborative evidence). A finding of fact is clearly erroneous when the Court, after reviewing the entire evidence, "is left with the definite and firm 4 conviction that a mistake has been committed." United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); see also Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990). The Board must also provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for its decision, as well as 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 this requirement, 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). B. The Appellant's Argument for Reversal This Court has held that "reversal is the appropriate remedy when the only permissible view of the evidence is contraryto the Board's decision." Gutierrez v. Principi, 19 Vet.App. 1, 10 (2004) (citing Johnson v. Brown, 9 Vet.App. 7, 10 (1996)). 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." Tucker v. West, 11 Vet.App. 369, 374 (1998). Because the appellant has requested reversal as the remedy in this case, and only argues alternatively for remand, the Court will address the appellant's arguments for reversal first. See Mahl v. Principi, 15 Vet.App. 37, 38 (2001) (per curiam order) ( holding that "if the proper remedy is a remand, there is no need to analyze and discuss all the other claimed errors that would result in a remedy no broader than a remand" (emphasis added)). The appellant argues that the Board's finding that there is no credible supporting evidence that the claimed in-service stressor occurred is clearly erroneous because the 2008 VA medical examiner made a contrary finding. Appellant's Br. at 10. The Secretary attempts to refute this argument and incorrectly argues that "[a]n opinion by a mental health professional based on post[]serviceexamination ofa claimant cannot be used to establish occurrence of in-servicestressor, for purposes of service connection for PTSD." Secretary's Br. at 13 ( citing Cohen, 10 Vet.App. at 128). Although a mental-health professional's postservice examination generally cannot be used to establish the occurrence of an in-service stressor, Cohen, 10 Vet.App. at 145, the Court has found 5 the rule in Cohen not operative where the stressor arises from a personal assault. Patton, 12 Vet.App. at 280. Even assuming there was any doubt as to the applicability of Cohen in sexual assault cases, the Federal Circuit's recent decision in Menegassi, 638 F. 3d at 1382, clearly held that the Secretary's regulation, 38 C.F.R. § 3.304(f)(5), permits medical opinion evidence to corroborate an in-service stressor. See also 67 Fed. Reg. 10,330 (Mar. 7, 2002) (stating that "[o]pinions given by [medical or mental health] professionals are not binding upon VA, but instead are weighed along with all the evidence provided"). NotwithstandingtheSecretary'serroneous statementofthelaw,theCourt doesnot agreewith the appellant's interpretation of the 2008 medical examiner's opinion and therefore reversal is not warranted. See Gutierrez and Johnson, both supra. The appellant argues that the examiner "corroborated the assault by stating that [the appellant's] symptoms, particularly his flashbacks and nightmares, were consistent with such an assault." Id. at 15 (citing R. at 34). While it is true that the examiner attributed the appellant's current symptoms to the alleged in- service assault, the examiner did not answer the salient question posed, i.e., whether the appellant's behavior following August 5, 1964, is consistent with a reaction to a sexual assault. R. at 159. In this regard, the Court notes that both the examiner and the Board incorrectly stated that the examiner was asked to opine "whether the [v]eteran's level of military performance after the date of the alleged rape could be consistent with his having experienced the sexual trauma."1 R. at 8; see also R. at 35. However, as noted above, the Board's 2007 remand instructions posed a broader question, i.e., "whether or not the veteran's behavior after August 5, 1964, is consistent with a reaction to a sexual assault." R. at 158-59; see Stegall v. West, 11 Vet.App. 268, 271 (1998) (holding that a remand by the Board confers on the veteran, as a matter of law, the right to compliance with the remand orders, and the Board itself errs when it fails to ensure compliance with the terms of such a remand). This distinction is significant because a "deterioration in work performance" is only one example of behavior changes that may constitute credible evidence of the stressor. See 38 C.F.R. § 3.304(f)(5). The Court further notes that not only did the examiner misconstrue the question she was asked, but she also failed to answer even this narrow question. See R. at 35. 1 6 The Court therefore finds that the examiner's failure to answer the question whether the appellant's behavior following August 5, 1964, is consistent with a reaction to a sexual assault renders the report inadequate. See Barr v. Nicholson, 21 Vet.App. 303, 311 ( 2007) (holding that "once the Secretary undertakes the effort to provide an examination when developing a service- connection claim, . . . he must provide an adequate one"); see also Nieves- Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008) (noting that "a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two"); Stefl v. Nicholson, 21 Vet.App. 120, 124-25 (2007) (stating that the Board may not assess the probative value of "a mere conclusion by a medical doctor"). When a report is confusing or incomplete, the Board should remand the case for clarification or obtain a new report. See Bowling v. Principi, 15 Vet.App. 1, 12 (2001) (citing 38 C.F.R. § 19.9(a) (2000) when holding that the Board has a duty to remand a case "[i]f further evidence or clarification of the evidence or correction of a procedural defect is essential for a proper appellate decision"). Accordingly, because the VA medical examiner's report is inadequate, the Court finds that the appropriate remedyis to remand the matter to the Board for further development. See Barr, Tucker, and Stegall, all supra. C. The Board's Statement of Reasons or Bases 1. The 2008 Examiner's Report The Court notes that even if the VA medical examiner had opined, one way or the other, whether the appellant's behavior was consistent with an in-service assault, the Board would not have been bound by the examiner's determination. Rather, as noted by the Federal Circuit in Menegassi, "the submission of a medical opinion, pursuant to 38 C.F.R. § 3.304(f)(5), does not preclude the Board from making a factual determination regarding the weight to be given that opinion." 638 F.3d at 1382 n.1. In the instant case, the Board attempted to rehabilitate the examiner's opinion by stating that she "indirectly answered th[e] question [posed] bynoting that the [v] eteran's (current) symptoms are consistent with PTSD, and not[ing] that the DSM[-]IV PTSD symptoms can appear not necessarily after trauma, but can have delayed onset." R. at 8-9 (emphasis added). This is problematic for two reasons. First, the Court is unable to understand how the examiner's general statement that PTSD symptoms can have "delayed onset" answers the true question that was posed, i.e., "whether or not 7 the veteran's behavior after August 5, 1964, is consistent with a reaction to a sexual assault." R. at 159. Second, the Board's discussion of the examiner's report stopped short of drawing any conclusion whether it corroborated the in-service stressor, which was part of the purpose for the examination. Hence, even assuming the Court did not find the examiner's report inadequate, the Board's statement of reasons or bases fails to provide an adequate discussion of the probative weight of the doctor's opinion for the Court to review. See Hensley v. West, 212 F.3d 1255, 1263 (Fed. Cir. 2000) (stating that "appellate tribunals are not appropriate fora for initial fact finding"); Owens v. Brown, 7 Vet.App. 429, 433 (1995) (holding that the Board is responsible for assessing the credibility and weight of evidence and that the Court may overturn the Board's decision only if it is clearly erroneous); see also Allday, Caluza, and Gilbert, all supra. 2. The Appellant's Lay Statements The Court will also address the Board's discussion of the appellant's lay evidence because it necessarily relates to any subsequent medical opinion that is based upon those laystatements. See Coburn v. Nicholson, 19 Vet.App. 427, 432 (2006) ("[R]eliance on a veteran's statement renders a medical report incredible only if the Board rejects the statements of the veteran."); Kowalski v. Nicholson,19 Vet.App. 171, 179-80 (2005) (holding that the Board may not disregard a medical opinion solely on the rationale that the medical opinion was based on a history given by the veteran); Reonal v. Brown, 5 Vet.App. 458, 460-61 (1993) (stating that Board may reject a medical opinion based on facts previously found to be inaccurate); see also Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) (holding that Board may not reject a veteran's lay testimony merely because it is not corroborated by contemporaneous medical records). Undoubtedly, as the finder of fact, it is the Board's province to determine the credibility and probative weight of the evidence before it. Washington v. Nicholson, 19 Vet.App. 362, 367-68 (2005 ); Owens, supra. Here, the Board noted that there was an inconsistency between the appellant's statements that he did not know the identity of his attackers, and "elsewhere in the record, where he indicates that he learned that his assailant had died, so he no longer needed to carry a gun." R. at 10. The Board then found that "this sort of inconsistency regarding what he knew leads the Board to find a lack of credibility." Id. Without more, the Court is unable to discern whether the Board's credibility finding is limited solely to whether the appellant knew the identity of his attackers, or whether the Board has 8 discounted the appellant's lay statement's entirely based on this single notation in a medical record. Hence, on remand, the Board must provide a clearer statement regarding its assessment of the appellant's layevidence and provide an adequate statement of reasons or bases for its rejection of any such favorable evidence. See Allday, Caluza, and Gilbert, all supra. D. The Appellant's Remaining Arguments Because the Court has determined that remand is the appropriate remedy, the Court will not at this time address the remaining arguments and issues raised bythe 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. On remand, the appellant is free to submit additional evidence and argument on the remanded matters, and the Board is required to consider any such 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 October 19, 2009, Board decision is VACATED and the matter is REMANDED for further proceedings consistent with this decision. DATED: July 18, 2011 Copies to: Katy S. Clemens, Esq. VA General Counsel (027) 9

Single Judge Application, 38 C.F.R. 3.304(f)(5); Behavioral Changes One Type of Relevant Evidence; Menegassi v. Shinseki, 638 F. 3d 1379, 1382 (Fed. Cir. 2011)

Excerpt from decision below: "The Board rejected the statements from the appellant's family members because "none of these individuals has claimed to witness any personal assault that took place in service, and these statements were submitted seventeen years following the [v]eteran's separation from her second period of active duty." R. at 23. However, the statements submitted by the appellant's brother and sister-in-law addressed behavioral changes in the appellant between the time she joined the military and the time she returned from Spain. See R. at 386-87, 407-08, 812, 816. Evidence of behavioral changes is "one type of relevant evidence" that may corroborate the appellant's account of the in-service stressor. 38 C.F.R. § 3.304(f)(5)." ============================ "Furthermore, this Court has stated that "[i]f in the process of identifying these potential sources [under §3.304 (f)(5)], a claimant provides the name or names of any persons who allegedly perpetrated the assault or the names of any potential witnesses, the Secretary's reasonable efforts to assist, as required under section 5103A(a), may also include attempting to assist the claimant in obtaining statements from these persons." Forcier v. Nicholson 19 Vet.App. 414, 422 (2006) (citing Patton, 12 Vet.App. at 280-81). The Court notes that on at least two occasions, the appellant provided names of people to whom she contemporaneously reported her in-service stressors. See R. at 378, 404-05. During her June 2008 testimony before the RO, while explaining the April 1983 assault at the softball field at Portsmouth Naval Hospital, she identified the month and year of the attack, and the name of the chief to whom she described the incident. See R. at 378. When she described being beaten by her husband for not hiding his alcohol well enough, she explained that she told her husband's petty officer and his wife. See R. at 404-05. Based on these descriptions,including the names and ranks of the individuals who might have knowledge of the event, the Board erred in concluding that the Secretary satisfied his duty to assist where he made no effort to help the appellant corroborate her stressor. See Forcier, 19 Vet.App. at 422 (finding the duty to assist had been satisfied where the Board had ordered the RO to "pursue all available avenues to assist [the veteran] in locating anyone identified for a statement regarding the claimed incident, including the two sergeants he had identified by name")." ============================ ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 11-3621 BC, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before SCHOELEN, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. SCHOELEN, Judge: The appellant, through counsel,appeals the February9, 2011, decision of the Board of Veterans' Appeals (Board) that denied entitlement to disability compensation for an acquired psychiatric disorder, to include post-traumatic stress disorder ( PTSD). Record of Proceedings (R.) at 3-24. This appeal is timely and the Court has jurisdiction to review the Board's decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons that follow, the Court will vacatetheFebruary9,2011, Boarddecisionandremandthematterforfurtherproceedings consistent with this decision. I. BACKGROUND The appellant served in the U.S. Navyfrom October 1982 to October 1986, and from August 1990 to June 1991, with additional Reserve service. R. at 175, 982, 1491. In April 1984, the appellant married a fellow Navyservicemember and requested to be transferred to the naval hospital in Rota, Spain, where the appellant's spouse was assigned. R. at 438. The appellant was thereafter transferred. R. at 452. The appellant gave birth to her first child in December 1984. R. at 559. The narrative summarystates that during delivery she underwent a "third degree midline episiotomy and repair." Id. Theappellant's June1986separationphysicaldid not note anypsychological conditions. R. at 588-89. In October 1986, the appellant declined reenlistment and requested release from active duty and returned to the United States. R. at 416. Medical examination reports from December 1987, February 1990, and June 1991 did not note any psychological conditions. R. at 594-95, 599-600, 609-10. A September 1998 psychiatric consult report indicates that the appellant " entered treatment because of severe depression which she has been experiencing for four years since her left hand was caught in machinery at work." R. at 1443. The doctor diagnosed her with "[ m]ajor depression, single episode, moderate." Id. A January 2001 private treatment report indicates that the appellant suffers from "reflex sympathetic dystrophy" following surgery after her hand injuryNext Hit in 1994. R. at 1414. The report further stated that the appellant and her husband were having " difficulties" and that he tried to make "her into a stronger person but recently threatened to divorce her." Id. The appellant reported a history of childhood sexual and physical abuse by her stepfather. R. at 1415. She was diagnosed with depression, not otherwise specified. Id. A further January2001 psychiatric evaluation, following a hospitalization for the appellant's severe major depression related to use of Oxycontin, noted chronic pain with subsequent reflex sympathetic dystrophy; depression; family stresses including trouble with her marriage; and "past trauma with residual symptoms exacerbated by her pain and the trauma of the injuries and subsequent reflex sympathetic dystrophy and chronic pain." R. at 1289. The doctor noted that the appellant "suffered physical and sexual abuse from a stepfather and felt betrayed by her mother who rejected the [appellant's] complaints abouttheabuse." R. at 1290. The appellant was diagnosed with "[m]ajor depression, recurrent, with winter exacerbations, currently in partial remission" and "PTSD." Id. The doctor's diagnostic impressions noted that the appellant had a "complex pattern of PTSD" and "recurrent major depression with seasonal exacerbation." Id. He further noted that "[b]oth the depression and the PTSD have been exacerbated by the chronic pain syndrome and secondary disability reflex sympathetic dystrophy" and that her " exacerbation of depression may have been related in part to the Oxycontin." Id. 2 In an April 2001 progress note, the doctor noted that the appellant admitted that she "tends not to let her physicians know how she is doing" because she does not want to complain. R. at 1291. The doctor opined that "[i]t becomes clear as I get to know her that she has some maladaptive coping traits related to her chronic illness that involve not wanting to complain and withdrawing from contact and some sense of defeat." Id. A May 2001 psychiatric treatment note indicates that the appellant was admitted to the hospital for "suicidal and homicidal ideation." R. at 1333. The doctor noted that the appellant "has had significant problems with jealousy about another woman that has been working with her husband, and the woman has been very forthright about wanting her husband." Id. The doctor also indicated that the appellant had been "somewhat secretive with her physicians about some of her problems." Id. A mental status examination noted that the appellant had " bad dreams, flashbacks, recurrent intrusive memories, and some exaggerated startle response episodically." R. at 1334. She was diagnosed with major depression, PTSD, and chronic pain. Id. In May 2004, the appellant filed a claim for disability compensation for PTSD, arguing that its onset was 1985. R. at 1052. A June 2004 VA psychiatrynote states that the appellant "continues to suffer chronic PTSD symptoms secondaryto significant sexual trauma while in the [U.S.] Navy." R. at 1023-24, 1045. In August 2004, the regional office (RO) denied the appellant's claim for PTSD based on a lack of evidence of in-service sexual trauma. R. at 1018-21. The appellant did not appeal the denial. In January 2005, the RO requested that the appellant complete a PTSD questionnaire, but there is no evidence in the record that she responded. R. at 1010-11. The appellant again filed a claim for disability compensation for PTSD in November 2006. R. at 990-1009. Accompanying the claim were three letters from her treating VA psychiatrist, which stated that the appellant's "depressive symptoms and PTSD symptoms originated following a sexual trauma and abuse she sustained while in the Navy." R. at 984-88. In February 2007, the appellant submitted a personal trauma PTSD questionnaire. R. at 964-71. She explained that her former husband, a member of the U.S. Navy, had physically and sexually assaulted her while they were serving in Spain. In a separate February 2007, 11-page statement the appellant again described her former husband's physical abuse, and described in greater detail what occurred while they were assigned to Spain: 3 I had not know[n] about the anger and rage [my former husband] could show until I married him and was stationed in Spain. I had no one to turn to. The command was very small and he made friends easily. He began to offer me sexually to [ one of his friends] . . . . I gave birth to our first child Dec[ember] 1984 in Rota Spain. During delivery I suffered a [third] degree laceration and rectal sphin[c]ter prolapse . . . . [T]wo weeks of forced sexual advances by spouse . . . result[ed] in the sutures in my episiotomy ripping open. R. at 950. She also explained that her husband repeatedly slapped her and choked her. R. at 952. The appellant and her daughter lived in a hotel during the appellant's final two weeks of duty in Spain, and returned to the United States in December 1986. R. at 956. Additionally, the appellant described being accidently stuck with two contaminated needles while she was stationed at Portsmouth Naval Hospital. R. at 944. She also described being assaulted by a U.S. Navy "chief" on a softball field while other enlisted U.S. Navy service members watched. R. at 944-46. In April 2007, the RO reopened the appellant's claim for entitlement to disability compensation for PTSD, but denied the claim on its merits. R. at 898-902. The appellant submitted a Notice of Disagreement (NOD) in May 2007. R. at 894. In August 2007, the RO issued a Statement of the Case, which confirmed and continued denial of the appellant's claim for disability compensation for PTSD. R. at 835-49. After the RO received the appellant's NOD, the RO received medical records from the Batavia VA medical center (VAMC). R. at 850-80. The records indicate an assessment of PTSD, "chronic with delayed onset." R. at 850. Additionally, the records state that the appellant "continues to present as a domestic violence victim" and that she has "chronic PTSD related to her 17 year historyof severe domestic violence byher spouse, including physical, emotional, psychological, and sexual abuse." R. at 857, 864. The records also note that the appellant had "preexisting trauma history due to experienc[ing] severe child abuse, including physical, emotional, and sexual abuse in her family by her stepfather." R. at 864. An April 2007 list of future appointments included a February 2008 appointment with the Women's Residential Program at the Batavia VAMC. R. at 866. In February 2008, the RO received statements from the appellant's brother and sister-in-law. Her brother stated that they were "raised to be strong, independent, and responsible persons. But [he] had watched that person disappear in [the appellant's] case." R. at 816. He explained: 4 When [appellant] finished high school she went into the military it seemed she had [found] her calling[,] but things changed after that point. We did not hear much from her for about 2-3 years. The next time we were together was when she returned [from] Spain with a husband and two young children. This is when I really had a chance to see the change in [the appellant]. The stories [she] came home with were unbelievable to me as to how her life had changed. . . . She was very paranoid she seemed to think everyone was out to get her and she was never wrong no matter the situation. She became very combative with all of her family members over the slightest of issues. . . . We tried to help in bringing her husband . . . home for a weekend to see his family [which] brought to our attention the situation with [the appellant's husband] having an affair. R. at 816. Her brother further explained that after the appellant moved to Maryland he found her "unable to cope with day to day issues and activities" and that a short while later she "was on a continuous [downward] trend" and that she would often call for advice because she was unable to make a decision on her own." Id. The appellant's brother also explained that after the appellant and her husband moved to Idaho, he "wanted to bring another woman in to live in [appellant's] home and share him between the two of them." Id. He explained that eventually the appellant "moved to a shelter to try and help herself and two of her children." R. at 818. The appellant's sister-in-law also wrote a letter to VA, explaining that she had known the appellant for 25 years and that [w]hen [she] first met [the appellant] she displayed a strong sense of self-being as well as a very strong personality. She was very decisive and secure in her decisions. [The appellant] returned from Spain where her husband and she herself were stationed in the Navy. She and her two children stayed with my in-laws while her husband [] went [away] to school in Colorado. During this time [the appellant] was very over-protective of her children to the point of paranoia. . . . My husband [] and I thought it was the stress of being away from her husband with two children. We purchased a ticket for [her husband] to come home on a weekend to visit as a surprise for [the appellant]. When we called him he refused to come home citing that he was going hunting. After [the appellant's husband] called [the appellant] about the surprise she begged us to never interfere with [her husband's] plans again. I was very surprised myself at her complete terror that we would ask [the appellant's husband] to change his plans again. R. at 812. Additionally, the appellant's sister-in-law stated that she had witnessed the appellant's husband trying to strangle the appellant, and the appellant's daughter informed the sister-in-law that 5 the appellant's husband beat the children and the appellant and that he had insisted that the appellant should kill herself "because she was useless." R. at 814. The appellant perfected her appeal to the Board in April 2008. R. at 792. In June 2008, the RO received a letter from the appellant's treating VA social worker, in which he stated that he had been treating the appellant since October 2007 and that she was in active treatment for PTSD "secondary to military sexual trauma that she experienced during her military tour of duty." R. at 740. The social worker explained that the appellant had completedtwo segments of residential care at Batavia VAMC. Id. He opined that the appellant continued to suffer from the symptoms of PTSD "that is specifically related to the events that occurred to her during her military service." Id. The appellant testified before an RO hearing in June 2008. R. at 373-411. She testified that she was receiving mental health treatment from the Buffalo VAMC. R. at 376. She explained that she had been married to her husband from 1984 to 2003, and that he "taught me how our life was going to be and how he was the head of the household and things were going to be his way. If I even tried to change it there was hell to pay." R. at 384. She provided detailed testimony as to various incidents of domestic violence and sexual assault she suffered while in service, at the hands of her husband, including his giving her as a "gift" to his friends. R. at 378- 411. After discussing the incident where her husband hit her for not hiding his alcohol well enough in their luggage, she explained that she did not report her husband's abuse because "[i]t was the way [she] was raised. That you find the good in everybody and [she] kept looking for the good and [she] couldn't believe that this could[] be the man [she] met and [she] married and had children with." R. at 386. The appellant further explained: I was working in the Pediatric Clinic and [my husband] came and got me and there was a filing cabinet out [] where records were kept and it said in huge letters FAR. I didn't know what they meant. He pulled me out of my clinic and said you see that cabinet and I said yeah and he said our files will never be in it. Well, later on I learned they were Family Advocacy Records. They were families that were in abusive situations. And he told me in no uncertain terms ours would never be in there. So no matter what he did ours weren't going in there. R. at 391. However, during her RO hearing testimony the appellant explained that she had told Petty Officer Jeff Connor and his wife Lisa Connor about what happened right before the couple left 6 Spain. R. at 404-05. At the hearing, the appellant's brother testified that when she returned from Spain the appellant was not the same person she had been before she joined the Navy. R. at 386-87, 407-08. He explained that when she returned from Spain, she "could not make her own decisions so somebody always had to tell her what to do or, I mean basic things. . . . [ The appellant's former husband] would just tell her exactly what he wanted and how to do it." R. at 387. During the hearing, the appellant also detailed the incident that occurred in April 1983 at the softball field at Portsmouth Naval Hospital. R. at 377-78. She stated that she reported the incident to "Chief Beeler," but that nothing was done. R. at 378. In March 2009, VA received a November 2008 letter from the appellant's treating psychiatrist, stating that the appellant has been diagnosed with chronic and severe PTSD, related to sexual trauma and abuse she sustained while she was serving in the U.S. Navy. R. at 355. The same month, the RO received an April 2002 psychological evaluation of the appellant's family prepared inconjunction with divorceproceedings, specificallyfordeterminingthebestparentingarrangement for the appellant's children. R. at 261-351. The evaluation, based on interviews with family members and psychological testing for the adults, indicated that the appellant's husband "tends to be somewhat competitive and needs to see himself as masculine. He probably prefers to view women in subservient roles. Interpersonally, he is likely to be intolerant and insensitive, and others may find him rather crude, coarse, or narrow-minded." R. at 315. The psychologist noted that two of the couple's three children lived with the appellant "in a location that they wished not to be disclosed" to their father, the appellant's husband. R. at 269. The appellant told the psychologists that she had not left her husband earlier because of her religious upbringing and Navy training that taught her to "do what [she] is told." R. at 271. The appellant's oldest daughter described her father as "aggressive and physically abusive." R. at 291. The appellant's son explained that he initially lived with his father to "avoid a spankin[g]," but his father would not let him see his mother on weekends, so ultimately he decided to live with the appellant. R. at 309. Also in March 2009, the appellant's oldest daughter submitted a statement to the RO discussing the family dynamic. R. at 179-238. She stated that her father often hit her younger sister and that he would pull her "up and down the stairs" by her hair, would hold her down by her hair to 7 the point that "chunks of hair would be missing from her head." R. at 181. She also explained that her father forced her to tell her school counselor that she had lied when she told the counselor that her father spanked her sister a lot. R. at 191. She further described being beaten with a belt when she was 15 years old and being punched in the face by her father. R. at 199. In June 2009, the RO again denied the appellant's claim. R. at 53-56. The Board issued the February 2011 decision currently before the Court. R. at 3-24. In its decision, the Board found that the duty to assist was satisfied because "[t]he [v]eteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained." R. at 10. It also found that an examination was not warranted because the record "does not show a verified [in-service] stressor or any evidence of [in-service] psychiatric complaints, treatment, or diagnosis." R. at 9. The Board also discussed that "[t]here was no indication in the service treatment records [(STRs)] that either of [the appellant's] pregnancies resulted from sexual assault. In fact, STRs include no evidence of trauma that could not be verified or explained as due to an event other than sexual trauma." R. at 14. The Board found that the preponderance of the evidence was against finding that any non-PTSD psychiatric disability was related to service, citing the absence of psychiatric complaints or treatment in the service medical records (SMRs) and the seven-year gap betweentheappellant's separationfromserviceand the first documentation of a psychiatric disorder. R. at 19. With regard to PTSD, the Board noted that "[n]either the service personnel records nor the [SMRs] from service document any in-service personal assault. Records show that the [v]eteran was married and had children during her period of service." R. at 21. After discussing the VA diagnosis of PTSD related to in-service physical and sexual trauma, the Board noted "that the PTSD diagnos[e]s have been based solely on statements from the Veteran, and that it [is] not supported byevidence of a confirmed in-service stressor." R. at 22. The Board indicated that it was "pertinent that the [v]eteran never reported any incidents of [in-service] assault until after she originally filed a claim for entitlement to service connection in June 2004." Id. In finding that the record did not corroborate the appellant's accounts of her husband's assaults, the Board cited the absence of documentation in the service records that the appellant had reported the assaults or "instigated proceedings against her alleged attacker." R. at 23. 8 The Board, after noting their competence, rejected the statements made by the appellant's family members because "none of these individuals has claimed to witness any personal assault that took place in service, and these statements were submitted seventeen years following the [v]eteran's separation from her second period of active duty." Id. The Board found the VA medical opinions that the appellant's PTSD was caused by in-service assault unpersuasive because the providers did not have access to the claims file prior to rendering their opinions, and "[ e]ven if they did . . . it is clear that the record does not contain evidence to verify that a personal assault occurred." R. at 25. II. ANALYSIS To establish service connection for PTSD, a claimant must present (1) evidence of a current diagnosis of PTSD; (2) evidence of an in-service stressor, with credible supporting evidence that the claimed in-service stressor occurred; and (3) evidence of a causal nexus between the current symptomatology and the in-service stressor. 38 C.F.R. § 3.304(f)(2012); see Cohen v. Brown, 10 Vet.App. 128, 138 (1997). When a claim for PTSD is based on a noncombat stressor, "the noncombat veteran's testimony alone is insufficient proof of a stressor." Moreau v. Brown, 9 Vet.App. 389, 396 (1996). In claims for PTSD based on an in-service personal assault, "evidence from sources other than the veteran's service records may corroborate the veteran's account of the stressor incident." 38 C.F.R. §3.304(f)(5); see Bradford v. Nicholson, 20 Vet.App. 200, 205 (2006). The types of corroborating evidence include, but are not limited to " records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy." 38 C.F.R. § 3.304(f)(5). Additionally, "[e]vidence of behavior changes following the claimed assault is one type of relevant evidence that maybe found in these sources." 38 C.F.R. § 3.304(f)( 5). Evidence indicating a change in behavior includes, "but is not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social changes." 38 C.F.R. § 3.304(f)(5). The Court reviews the Board's factual determination as to the sufficiency of corroborative 9 evidence of the in-service stressor under the "clearly erroneous" standard of review. See 38 U.S.C. § 7261(a)(4); Sizemore v. Principi, 18 Vet.App. 264, 270 (2004) (citing Pentecost v. Principi, 16 Vet.App. 124, 129 (2002)) (regarding corroborative evidence). 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 (1984); see also Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990). A. Adequate Statement of Reasons or Bases The Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for its decision, as well as 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 this requirement, 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). Whatever the type of evidence, it is the Board's province to determine its credibility and weight. See Washington v. Nicholson, 19 Vet.App. 362, 367-68 (2005); Wood v. Derwinski, 1 Vet.App. 190, 193 (1991). The credibility of a witness can be impeached by a showing of interest, bias, inconsistent statements, or, to a certain extent, bad character. See Caluza, 7 Vet.App. at 511. The Board rejected the statements from the appellant's family members because "none of these individuals has claimed to witness any personal assault that took place in service, and these statements were submitted seventeen years following the [v]eteran's separation from her second period of active duty." R. at 23. However, the statements submitted by the appellant's brother and sister-in-law addressed behavioral changes in the appellant between the time she joined the military and the time she returned from Spain. See R. at 386-87, 407-08, 812, 816. Evidence of behavioral changes is "one type of relevant evidence" that may corroborate the appellant's account of the in-service stressor. 38 C.F.R. § 3.304(f)(5). Consequently, the Board failed to provide an adequate statement of reasons or bases for rejecting the statements made by the appellant's family members without discussing their belief that the appellant's behavior changed between the time she entered the military and she returned from Spain. Caluza, 7 Vet.App. at 506. 10 The Board further erred when it found the appellant's statements regarding her in-service physical and sexual abuse had no probative value because they were inconsistent, specifically because the appellant did not report the in-service assault until after she filed a claim for entitlement to service connection in June 2004. R. at 22. Although it is true that the appellant only discussed childhood physical and sexual trauma during psychiatric treatment she received prior to June 2004, the Board failed to address the appellant's testimony that while she was married she was afraid to report the sexual and physical abuse she suffered from her husband. The appellant remained married until July 2002. R. at 1006, 1055. The appellant testified that her husband controlled her behavior and threatened her if she told anyone of his actions. See R. at 384 ( testimony from the appellant that her husband taught her that "he was the head of the household and things were going to be his way. If [she] tried to change it there was hell to pay."); R. at 387 (testimony that the appellant's husband was controlling and that she was not allowed to make decisions); R. at 391 ( testimony about her husband threatening that their family would never appear in the Family Advocacy Records); R. at 812 (letter from the appellant's sister-in-law stating that the appellant was "afraid for her children and herself" and describing fear that the appellant showed after her husband was asked to visit by her brother). Nor did the Board discuss that psychological testing performed during the appellant's divorce proceedings showed that the appellant's husband needed to "see himself as masculine" and that he preferred to "view women in subservient roles, that interpersonally, he is likely to be intolerant and insensitive, and others may find him rather crude, coarse, or narrow-minded." R. at 315. Additionally, the Board did not discuss the evidence from the appellant's mental health providers from 2001, who stated that she had "maladaptive copingtraits related to her chronicillness that involve not wanting to complain, withdrawing from contact and some sense of defeat" and that the appellant had been "somewhat secretive with her physicians about some of the problems." R. at 1291, 1333. Therefore, the Board erred by not providing an adequate statement of reasons or bases that provided reasons for its rejection of evidence favorable to the appellant. Caluza, 7 Vet.App. at 506. Furthermore, the Board relied on the fact that the appellant's STRs do not document any personal assault. The Board stated that the "[r]ecords show that the [v] eteran was married and had children during her period of service"; that the appellant never " instigated proceedings against her 11 alleged attacker"; and that there was no notation that her pregnancy was the result of sexual assault; therefore, "the evidence does not support the assertion that she was sexually assaulted by the one who fathered the child." R. at 21-23. The Court is not persuaded by the Board's reasoning. Although the appellant's service medical records do not report that her pregnancy was the result of personal assault, they do not contradict her claimed in-service stressor that she was physically and sexually abused by her husband. Buczynski v. Shinskei, 24 Vet.App. 221, 224 (2011) ("When assessing a claim, the Board may not consider the absence of evidence as substantive negative evidence."); see Patton v. West, 12 Vet.App. 272, 277 (1999) (acknowledging VA Adjudication Procedures Manual's recognition that, "[b]ecause assault is an extremely personal and sensitive issue, many incidents of personal assault are not officially reported"). There is no medical reason why a doctor would be expected to comment on how a woman became pregnant, especially if the father of the child is her husband, making it less likely that the appellant's medical records would report assault. See Buczynksi, 24 Vet.App. at 224. The Court finds no more availing the Secretary's argument that the Board "appears to have misstated its intended finding" and "should be reasonably read to relate its finding that the only evidence from the same . . . period [as the alleged in-service abuse] leans toward a finding that [the a]ppellant was trying to become pregnant by her husband." Secretary's Brief (Br.) at 23 n.10 (emphasis in original). Although the appellant's medical records do not directly prove that the appellant was sexually assaulted by her husband, the Board cannot dismiss the appellant's assertions that she was sexually and physicallyassaulted, simply because she asserts it was her husband who assaulted her. Therefore, the Board's statement of reasons and bases is inadequate to enable this Court to perform judicial review. See 38 U.S. C. § 7104(d)(1); see also Allday and Gilbert, both supra. Because the Board provided an inadequate statement of reasons and bases for its conclusions that the appellant's account of her in-service physical and sexual assault was not credible, failed to address evidence regarding behavioral changes, and relied on the lack of evidence in the appellant's service medical records, the Court will vacate the Board's findings and remand the matter for further proceedings. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Tucker v. West, 11 Vet.App. 369, 374 (1998) ("[W]here 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 12 inadequate, a remand is the appropriate remedy."). B. Duty To Assist 1. Corroborating In-Service Stressor The Secretary has a duty to assist pursuant to 38 U.S.C. § 5103A(a), under which he must make "reasonable efforts to assist a claimant in obtaining the evidence necessary to substantiate the claimant's claim for a benefit under a law administered by the Secretary." If, however, the evidence obtained indicates that there is no reasonable possibility that further assistance would substantiate the claim, "VA will discontinue providing assistance in obtaining evidence for a claim." 38 U.S.C. § 5103A(a); see Wensch v. Principi, 15 Vet.App. 362, 368 (2001) (holding that when there is extensive factual development in a case that indicates no reasonable possibility that any further assistance would aid the appellant in substantiating his claim, the Veterans Claims Assistance Act of 2000 (VCAA) does not apply). Here, the Board found that VA had fulfilled the duty to assist because it " had made reasonable efforts to obtain any pertinent records as well as all relevant records adequately identified by the [v]eteran." R. at 9. The Board continued by explaining that VA sent the appellant a PTSD questionnaire "asking for information or evidence other than service records or evidence of behavior changes that may constitute credible supporting evidence of an in-service stressor." Id. The appellant argues that the Board failed in its duty to assist because the RO should have requested records from VA psychiatric treatment at the Buffalo and Batavia VAMCs. Appellant's Br. at 12. She asserts that the post-July 2007 treatment records are relevant because they might "contain findings that would confirm the in-service assault bythe [a]ppellant's former husband." Id. at 13. The Secretary responds that "given that the Board rejected [the a] ppellant's claims of having suffered personal assault in service, there is no reason to believe that treatment records dated after July 2007 would have any tendency to substantiate her claim." Secretary's Br. at 10-11. After finding error in the Board's assessment of the appellant's credibility, the Court disagrees with the Secretary. In this case, the appellant is missing corroboration of her in-service stressor to substantiate her PTSD claim. Medical opinion evidence can by submitted for use in determining whether the occurrence of a stressor is corroborated. See Menegassi v. Shinseki, 638 F. 3d 1379, 1382 (Fed. Cir. 13 2011). In its decision, the Board discounted all PTSD diagnoses because they were based on statements made by the appellant. R. at 22. Therefore, if the medical records identified by the appellant provide an opinion about her in-service stressor, such as the record of the doctor commenting on the family's statements that the appellant's behavior changed after her first period of service, the records might corroborate of the appellant's in-service stressor. See Menegassi, 638 F.3d at 1382. Additionally, as noted above, the Court has vacated the Board's determination that the appellant was not credible in reporting her in-service physical and sexual assault. Therefore, the Board erred in dismissing all the PTSD diagnoses because they were based on statements by the appellant. See id. Consequently, the Board erred by finding that it fulfilled its duty to assist. 38 U.S.C. § 5103A(a). Furthermore, this Court has stated that "[i]f in the process of identifying these potential sources [under §3.304 (f)(5)], a claimant provides the name or names of any persons who allegedly perpetrated the assault or the names of any potential witnesses, the Secretary's reasonable efforts to assist, as required under section 5103A(a), may also include attempting to assist the claimant in obtaining statements from these persons." Forcier v. Nicholson 19 Vet.App. 414, 422 (2006) (citing Patton, 12 Vet.App. at 280-81). The Court notes that on at least two occasions, the appellant provided names of people to whom she contemporaneously reported her in-service stressors. See R. at 378, 404-05. During her June 2008 testimony before the RO, while explaining the April 1983 assault at the softball field at Portsmouth Naval Hospital, she identified the month and yearof the attack, and the name of the chief to whom she described the incident. See R. at 378. When she described being beaten by her husband for not hiding his alcohol well enough, she explained that she told her husband's petty officer and his wife. See R. at 404-05. Based on these descriptions, including the names and ranks of the individuals who might have knowledge of the event, the Board erred in concluding that the Secretary satisfied his duty to assist where he made no effort to help the appellant corroborate her stressor. See Forcier, 19 Vet.App. at 422 (finding the duty to assist had been satisfied where the Board had ordered the RO to "pursue all available avenues to assist [the veteran] in locating anyone identified for a statement regarding the claimed incident, including the two sergeants he had identified by name"). 14 The Court's analysis does not end with a conclusion that the Board committed error; rather, the Court is required to determine whether the appellant was prejudiced by the Board's error. 38 U.S.C. § 7261(b)(2) (requiring the Court to "take due account of the rule of prejudicial error"); Shinseki v. Sanders, 556 U.S. 396, 414 (2009). Here, the Secretary argues that any error in not seeking additional records is nonprejudicial because the appellant lacks credible evidence of an in- service stressor or event to which such disability could be linked. Secretary's Br. at 10. The Court disagrees. The Court has vacated the Board's credibility determination. With the Secretary's assistance, the appellant may have been able to provide credible evidence of her in-service stressor, therefore, the error is prejudicial. 2. Providing Medical Examination The Secretary's duty to assist requires that VA provide a medical examination to a claimant when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, Previous HitinjuryNext Hit, or disease occurred in service, or for certain diseases, manifestation of the disease during an applicable presumptive period for which the claimant qualifies; and (3) an indiction that the disability or persistent or recurrent symptoms of the disability may be associated with the veteran's service or with another service-connected disability; but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet.App. 79, 81 ( 2006); 38 C.F.R. § 3.159(c) (4)(i) (2012). "The Board's ultimate conclusion that a medical examination is not necessary pursuant to section 5103A(d)(2) is reviewed under the 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law' standard of review." McLendon, 20 Vet.App. at 81 (quoting 38 U.S.C. § 7261(a)(3)(A)). In Menegassi, 638 F.3d at 1382, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that under § 3.304(f)(5), "medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated." See also Patton, 12 Vet.App. at 280 (rejecting the requirement that "something more than medical nexus evidence is required to fulfill the requirement of 'credible supporting evidence'" in personal- assault cases (quoting Cohen, 10 Vet.App. at 145)). Accordingly, the Federal Circuit held that a favorable medical opinion diagnosing PTSD must be weighed against all other evidence of record for purposes of determining 15 whethera claimed in-service sexual assault has been corroborated. Menegassi, 638 F.3d at 1382 n.1. Here, the Board found that the appellant was not entitled to an examination because the "evidence of record does not show a verified in[-]service stressor or any evidence of in[-]service psychiatric complaints, treatments or diagnosis." R. at 9-10. The Board found that any medical opinion linking a currently diagnosed psychiatric disorder, to include PTSD, to service would be "speculative at best." Id. The appellant argues that "[a]lthough a verified in-service stressor is required for an award of PTSD service connection . . . all that is necessary to satisfy the pertinent requirement for the provision of a VA examination is evidence of 'an event, Previous HitinjuryNext Document, or disease in service.'" Appellant's Br. at 13 (quoting 38 C.F.R. § 3.159(c)(4)(i)(B)). She further argues that her brother and sister-in-law both stated that her behavior changed during her first period of service; sincestatementsmadebyfamilymembersdocumentingbehaviorchangesduringservicec to verify an in-service assault, then she has submitted evidence that an event happened in service. Appellant's Br. at 14. The Secretary argues that an examination is not warranted because the Board found that a medical examination "would not provide any reasonable possibility of assisting her in substantiating her claim." Secretary's Br. at 6. The Court disagrees. As noted above, the Board erred when it failed to provide an adequate statement of reasons and bases for rejecting both family statements about the change in her behavior and the appellant's assertions that during service she was physically and sexually assaulted by her husband. Therefore, after properly determining the probative value of the appellant's and her family members' statements about her in-service physical and sexual assault, the Board should reevaluate the need for a VA medical examination. See McLendon, 20 Vet.App. at 81-86 (describing the circumstances in which the Secretary must provide a VA medical examination and noting that the nexus prong is a "low threshold"). C. Other Arguments Based on the Court's disposition of this case, the Court finds that it is not necessaryto address any of the appellant's additional arguments. See Best v. Principi, 15 Vet. App. 18, 20 (2001) (per curiam order) (holding that "[a] narrow decision preserves for the appellant an opportunity to argue those claimed errors before the Board at readjudication, and, of course, before this Court in an appeal, should the Board rule against him"). 16 On remand,the appellant is free to submit additional evidence and argument on the remanded matters, and the Board is required to consider any such 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). 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 the 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 February 9, 2011, decision is VACATED and the matter is REMANDED for further proceedings consistent with this decision. DATED: September 14, 2012 Copies to: Glenn R. Bergmann, Esq. VA General Counsel (027) 17

Single Judge Application, Mitchell v. Shinseki, 25 Vet.App. 32 (2011); 38 C.F.R. 4.40, 4.45; Pain Functional Loss

Excerpt from decision below: "In addition, VA is required to account for loss of motion due to pain on use when evaluating the functional loss of the musculoskeletal system and the joints. Mitchell v. Shinseki, 25 Vet.App. 32 (2011); DeLuca, supra; 38 C.F.R. §§ 4.40 (2012), 4.45 (2012)." "The appellant argues, in part, that the 20% disability rating assigned by the Board "does not consider 'function[al] loss' due to pain on movement as required by 38 C.F.R. [§] 4.40." Appellant's Informal Br. at 1. As noted above, the Board stated that the General Formula for Diseases and Injuries of the Spine applies objective criteria that "factor in functional loss due to pain, stiffness, and radiation," and that "[a]s a result, 38 C.F.R. §§ 4.40 and 4.45, as interpreted by DeLuca [ ], are not for application." R. at 9 (citing only 38 C.F.R. § 4.71a). The Secretary's argument tracks the Board's language. Sec'y Br. at 9. The part of the rating schedule cited by the Board and the Secretary begins with the statement, "With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease . . ." and is followed by the specific criteria required for the various disability ratings that are available. 38 C.F.R. § 4.71a (2012)(governing diagnostic codes 5235-5243). However, the Court's prior decisions do not support the Board's and the Secretary's position that §§ 4.40 and 4.45, as interpreted by DeLuca (and more recently by Mitchell), are never applicable in the context of these diagnostic codes. See Cullen v. Shinseki, 24 Vet.App. 74, 85 (2010) ("When rating disabilities of joints, including the spine, the Board must discuss any additional limitations a claimant experiences due to pain, weakness, or fatigue." (citing DeLuca) (emphasis added))1; but see Johnston v. Brown, 10 Vet.App. 80, 84-85 (1997) (explaining that remand was not required even though the Board did not consider functional loss due to pain because the appellant was already receiving the maximum disability rating for limitation of motion available under the diagnostic code at issue, 5215). Therefore, because the appellant was not receiving the maximum disability rating for limitation of motion under diagnostic 1. In Cullen, the Secretary conceded that remand was required based on the Board's inadequate statement of reasons or bases concerning the application of DeLuca to Mr. Cullen's thoracic spine disability. Cullen, 24 Vet.App. at 84-85. The Court notes, for informational purposes only, that in an unrelated appeal adjudicated by a single judge, the Secretary conceded remand based on the Board's inadequate discussion of §§ 4.40 and 4.45 in the context of diagnostic code 5242. Dickenson v. Shinseki, No. 10-690, 2011 WL 2694690, at *4 (Vet. App. July 13, 2011); see also Bohn v. Peake, No. 06-1333, 2008 WL 563390, at *2 (Vet. App. February 19, 2008) (noting that the Secretary conceded that DeLuca applied to diagnostic codes 5235-5243). 4 code 5242, the Board was obligated to discuss the issue of functional loss and its failure to do so renders its statement of reasons or bases inadequate." ============================ ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 11-1646 VERTIE H. BALLARD, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before MOORMAN, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. MOORMAN, Judge: The appellant, Vertie H. Ballard, appeals pro se a January 28, 2011, Board of Veterans' Appeals (Board) decision that denied her claim of entitlement to an increased disabilityratingfor post-operative degenerative disc disease (DDD) of the thoracolumbar spine with lumbar radiculopathy (low back disorder), currently rated as 20% disabling. Record (R.) at 3-16. The Board also remanded the issue of entitlement to a total disability rating based on individual unemployability (TDIU), and that issue is not before the Court at this time. See Breeden v. Principi, 17 Vet.App. 475 (2004). Ms. Ballard filed an informal brief and the Secretary filed a brief. This appeal is timely, and the Court has jurisdiction pursuant to 38 U.S.C. § 7252(a). A single judge may conduct this review. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). The Court will vacate the Board's decision. I. BACKGROUND Ms. Ballard served on active duty in the U.S. Army from August 1965 to December 1966. R. at 3. In November 2006, she submitted a claim for entitlement to service connection for a low back disorder. Secretary's (Sec'y) Brief (Br.) at 2 (citing R. at 726, which is not in the record of proceedings before the Court). In January 2008, a VA regional office (RO) granted entitlement to service connection for a low back disorder and granted a 20% disability rating, effective November 2006. R. at 221-23. In February 2008, Ms. Ballard requested an increased disability rating. In April 2008, VA provided a medical examination. R. at 182-91. Ms. Ballard did not report any flare-ups in pain, but she did state that her condition was getting worse. R. at 183. She noted problems with lifting, pushing, and bending at work prior to her retirement and said that she could only do chores for a few minutes at a time. Id. She also reported that she had a history of fatigue, decreased motion (due to pain with bending over), stiffness, spasms, and pain. R. at 184. On examination, the examiner noted that Ms. Ballard exhibited spasms and tenderness. R. at 185. The examiner found Ms. Ballard's active range of motion to be from 0 to 35 degrees of flexion with pain beginning at 35 degrees and no additional limitation of motion on repetitive use and from 0 to 15 degrees of extension with pain beginning at 15 degrees and no limitation of motion on repetitive use. R. at 188. The examiner diagnosed her with "DDD/DJD [(degenerative joint disease)] of lumbar spine [with] radiculopathy of the bilateral lower extremities" and stated, "Please refer to the history for veteran's description of effects on [her] occupation and daily activities." R. at 190. In August 2008, the RO issued a rating decision that continued the 20% disability rating and denied TDIU. R. at 9. The RO also granted service connection for sensory deficit of each lower extremity for the neurological manifestations of the disorder and assigned a separate 10% disability rating for each. Id. In the decision here on appeal, the Board found that Ms. Ballard's low back disability was not manifested by ankylosis, incapacitating episodes, or range of motion on forward flexion of 0 to 30 degrees or less. R. at 4, 8 (discussing the April 2008 VA examination report results). In reaching its decision, the Board noted that the General [Rating] Formula [For Diseases and Injuries of the Spine] applies strictly objective criteria which specifically factor in functional loss due to pain, stiffness, and radiation. As a result, 38 C.F.R. §§ 4.40 and 4.45, as interpreted by DeLuca v. Brown, 8 Vet.App. 202 (1995), are not for application. R. at 9 (citing 38 C.F.R. § 4.71a). Therefore, the Board concluded, Ms. Ballard was not entitled to a disability rating in excess of 20% under 38 C.F.R. § 4.71a, Diagnostic Code 5242. On appeal, Ms. Ballard argues that it is not clear how the Board decided to rate her back disability at a 20% disability rating. She argues that the April 2008 VA examination report found 2 that her back condition had gotten worse and that she was forced to quit her job because of it in 2005. She argues that the 20% rating does not contemplate her functional loss or consider the side effects of her medication or the fact that she is receiving Social Security disability based on her VA medical records. II. ANALYSIS Before deciding a claim, the Board is required to consider all relevant evidence of record and to consider and discuss in its decision 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 addition, the Board is required to provide a written statement of the reasons or bases for its findings and conclusions, adequate to enable an appellant to understand the precise basis for the Board's decision as well as to facilitate review in this Court. 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995 ); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990). To comply with this requirement, the Board must analyze the credibilityand probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Gilbert, 1 Vet.App. at 57. Pursuant to 38 C.F.R. § 4.71a, DC 5242, the following ratings are warranted for a low back disorder such as the appellant's in this case: [F]orward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine . . . . . . . . . . . . . . . . . . . . . . . . . . 40[%] ... Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; . . . or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; . . . or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20[%] 3 In addition, VA is required to account for loss of motion due to pain on use when evaluating the functional loss of the musculoskeletal system and the joints. Mitchell v. Shinseki, 25 Vet.App. 32 (2011); DeLuca, supra; 38 C.F.R. §§ 4.40 (2012), 4.45 (2012). The appellant argues, in part, that the 20% disability rating assigned by the Board "does not consider 'function[al] loss' due to pain on movement as required by 38 C.F. R. [§] 4.40." Appellant's Informal Br. at 1. As noted above, the Board stated that the General Formula for Diseases and Injuries of the Spine applies objective criteria that "factor in functional loss due to pain, stiffness, and radiation," and that "[a]s a result, 38 C.F.R. §§ 4.40 and 4.45, as interpreted by DeLuca [ ], are not for application." R. at 9 (citing only 38 C.F.R. § 4.71a). The Secretary's argument tracks the Board's language. Sec'y Br. at 9. The part of the rating schedule cited by the Board and the Secretary begins with the statement, "With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease . . ." and is followed by the specific criteria required for the various disability ratings that are available. 38 C.F.R. § 4.71a (2012) (governing diagnostic codes 5235-5243). However, the Court's prior decisions do not support the Board's and the Secretary's position that §§ 4.40 and 4.45, as interpreted by DeLuca (and more recently by Mitchell), are never applicable in the context of these diagnostic codes. See Cullen v. Shinseki, 24 Vet.App. 74, 85 (2010) ("When rating disabilities of joints, including the spine, the Board must discuss any additional limitations a claimant experiences due to pain, weakness, or fatigue." (citing DeLuca) (emphasis added))1 ; but see Johnston v. Brown, 10 Vet.App. 80, 84-85 (1997) (explaining that remand was not required even though the Board did not consider functional loss due to pain because the appellant was already receiving the maximum disability rating for limitation of motion available under the diagnostic code at issue, 5215). Therefore, because the appellant was not receiving the maximum disability rating for limitation of motion under diagnostic In Cullen, the Secretary conceded that remand was required based on the Board's inadequate statement of reasons or bases concerning the application of DeLuca to Mr. Cullen's thoracic spine disability. Cullen, 24 Vet.App. at 84-85. The Court notes, for informational purposes only, that in an unrelated appeal adjudicated by a single judge, the Secretary conceded remand based on the Board's inadequate discussion of §§ 4.40 and 4.45 in the context of diagnostic code 5242. Dickenson v. Shinseki, No. 10-690, 2011 WL 2694690, at *4 (Vet. App. July 13, 2011); see also Bohn v. Peake, No. 06-1333, 2008 WL 563390, at *2 (Vet. App. February 19, 2008) (noting that the Secretary conceded that DeLuca applied to diagnostic codes 5235-5243). 1 4 code 5242, the Board was obligated to discuss the issue of functional loss and its failure to do so renders its statement of reasons or bases inadequate. The Court is required by statute to determine whether the appellant was prejudiced by the Board's error. 38 U.S.C. § 7261(b)(2) (requiring the Court to "take due account of the rule of prejudicial error"); Shinseki v. Sanders, 556 U.S. 396, 414 (2009). Here, the Court notes that the April 2008 VA examination report includes multiple statements regarding different aspects of functional loss. R. at 182-91 (e.g., problems lifting, pushing, and bending; limited ability to do chores; history of fatigue, decreased motion due to pain when bending over, stiffness, spasms). On the other hand, she reported no flare-ups in pain, and the examiner found no additional limitation of motion due to pain or on repetitive use. Id. The Court also notes that there are many additional medical records in the record before the Court, but that most appear to date from approximately August 2008 or earlier. Faced with these circumstances, and by the fact that the Board did not address this issue at all (and incorrectly stated it was not obligated to do so), the Court cannot conclude that the Board's error was nonprejudicial. Therefore, the Court will vacate the Board's decision and remand the matter for the Board to provide an adequate statement of reasons or bases. In light of the Court's disposition, the Court need not address Ms. Ballard's other contentions. See Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam order) ("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."). On remand, the appellant may present, and the Board must consider,any additional evidence and argument in support of the matters remanded. Kay v. Principi, 16 Vet.App. 529, 534 (2002). This matter is to be provided expeditious treatment on remand. 38 U.S.C. § 7112. III. CONCLUSION Upon consideration of the foregoing analysis, the record on appeal, and the briefs of the parties, the Court will VACATE the Board's January 28, 2011, decision and REMAND the matter for further adjudication consistent with this decision. DATED: August 31, 2012 5 Copies to: Vertie H. Ballard VA General Counsel (027) 6

Single Judge Application, Kahana v. Shinseki, 24 Vet.App. 428 (2011); Impermissible Medical Conclusion

Excerpt from decision below: "The Board reasoned that because the appellant sought medical attention for other ailments, "[i]t is logical to conclude that a reasonable person, who had access, would seek medical attention [for his gastrointestinal symptoms] if it were required." Id. The appellant contends that the Board's reasoning violates the Court's holdings in Colvin v. Derwinski, 1 Vet.App. 171 (1991), overruled on other grounds by Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 7 1998), and Kahana v. Shinseki, 24 Vet.App. 428 (2011). Appellant's Br. at 18-19. The Court agrees. In Kahana, the veteran's SMRs and separation examination report did not contain any notation of a right knee injury. The Board determined that the veteran's statements of an in-service knee injury were not credible because, "[g]iven that a right [anterior cruciate ligament] tear is quite a significant injury, one would expect to see at least some documentation of it in the [SMRs]" and "one would expect that the [veteran] would have mentioned [it] on his report of medical history at separation." Id. at 434 (internal quotation marks omitted). The Court held that, in finding the veteran's lay statements not credible "based on its determination that a particular injury, which is alleged to have occurred in service, is of the type that should have been documented in the service records and was not," the Board impermissibly made "a medical determination as to the relative severity, common symptomatology, and usual treatment of an . . . injury without citing to any independent medical evidence to corroborate its finding" in violation of Colvin. Id. Essentially, that is what the Board did in this case. The Board based its conclusion that the appellant's testimony was not credible on its belief that his alternating bouts of constipation and diarrhea were of such severity that they "required medical treatment" and that the appellant would have been expected to report these symptoms to the Army physician when he sought treatment for his right knee injury. These are medical determinations that are generally outside the competency of the Board, and the Board provided no independent medical evidence to support them. See id. at 434. The Board violated Colvin by providing a medical opinion on the nature and course of an injury without supporting that opinion with independent medical evidence." ============================ ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 11-2324 JARED P. MARSH, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before SCHOELEN, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. SCHOELEN, Judge: The appellant, Jared P. Marsh, appeals through counsel an April 15, 2011, Board of Veterans' Appeals (Board) decision that denied entitlement to disability compensation benefits for diverticulitis, chronic bowel disorder, manifested by recurring constipation, diarrhea, and a ruptured bowel. Record (R.) at 3-18. The Board also remanded a disabilitycompensation claimforhypertensivevasculardiseaseforfurtherdevelopment. Therefore, this claim is not before the Court. See Hampton v. Gober, 10 Vet.App. 481, 483 (1997). Both parties have filed briefs. This appeal is timely, and the Court has jurisdiction to review the Board's decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). The Court will vacate the Board decision and remand the matters for further adjudication. I. BACKGROUND The appellant had active service in the U.S. Army from February 2, 2004, to May 5, 2007, with a deployment to Iraq from January 25, 2006, to November 11, 2007, where he served as a tank crewman. R. at 577, 128. He was awarded the Combat Action Badge, Global War on Terrorism Service Medal, Iraq Campaign Medal, Army Service Ribbon, and Overseas Service Ribbon. R. at 577. The Combat Action Badge is one of the military decorations that VA recognizes as evidence of participation in combat. VA ADJUDICATION PROCEDURES MANUAL M21-1 MANUAL REWRITE (MANUAL M21-1MR), pt. IV, subpt. 11, 1.D. 13(e). In March 2007, an Army medical evaluation board recommended the appellant's discharge from the service because of a medial collateral ligament right knee injury sustained during service, with chronic pain and instability, for which he underwent right knee arthroscopy. R. at 690-92. The appellant also injured his back during service. R. at 691, 667. The appellant did not report a history of intestinal problems on his entry examination, and no gastrointestinal disorder was found on his entrance examination. R. at 669-72. His service medical records (SMRs) do not show any treatment or diagnosis for a gastrointestinal disorder. R. at 663-68, 669-72, 673-77, 678-81, 690-92. In a report of medical history at separation, the appellant denied having any recurring intestinal issues, and no gastrointestinal or bowel abnormalities were found on his separation examination. R. at 663-65, 666- 68. On June 2, 2007, a month after being discharged from service, the appellant was hospitalized for complaints of increasing abdominal discomfort. R. at 289-93. An examination revealed diminished bowel sounds with definite right lower and midline tenderness, positive, very mild rebound, and no guarding or masses. Id. After a computed tomography (CT) scan revealed abnormalities in the appellant's colon, he underwent exploratory surgery, after which he was diagnosed with "pneumoperitoneum[1 ] with peritonitis[2 ] with perforated sigmoid colon and phlegmonous mass in the sigmoid colon." R. at 305-07. To treat this condition, the appellant had a sigmoid colon resection and placement of a sigmoid colostomy3 and Hartmann pouch. Id. After a Pneumoperitoneum is the presence of air in the peritoneum (sac that lines the abdomen) that is attributed to disease. STEDMAN'S MEDICAL DICTIONARY (27th ed. 2000) 1353, 1412 [hereinafter STEDMAN'S]. 2 1 Peritonitis is inflammation of the peritoneum. STEDMAN's at 1353. A colostomy is an artificial connection between the colon and the skin. STEDMAN'S at 2 3 383. pathology report was concluded, the appellant was diagnosed with diverticulosis,4 acute diverticulitis,5 perforated diverticulum, and acute peritonitis. R. at 309, 311. Two months later, the appellant underwent a colostomy reversal with resection and low anterior anastomosis.6 R. at 473. The diagnosis was colostomy, status post perforated diverticulitis. R. at 469. In June 2007, the appellant filed a claim for disability compensation benefits for a perforated colon with colostomy. R. at 1216-42. The appellant laterexplained that while he was in Iraq, he "was exposed to very extreme conditions [including] extreme heat, dehydration, poor fiber intake and the inability to use the restroom when needed, [leading] to many bowel problems." R. at 542. He noted that "IVs [intravenous solutions] were a regular routine upon returning from missions [and] I was often constipated" but also suffered from occasional diarrhea. Id. In September 2007, the appellant underwent a VA examination, leading to a diagnosis of "remote history of diverticulitis with perforation of sigmoid colon requiring surgical intervention (partial colon resection) without residual and with zero to minimal functional effect." R. at 394. In October 2007, the RO denied entitlement to service connection for diverticulitis and a chronic bowel disorder. R. at 821-29, 344-60, 277-79. The appellant appealed this decision to the Board. R. at 540-46. To support his claim, he submitted a January 2008 report from James R. Campbell, D.O., his private physician, whoopinedthathis diverticultis and subsequent surgerywere related to service. R. at 314-17. Dr. Campbell stated: Jared gives a history of being trained by the army and deployed to Iraq . . . when complications arose due to harsh conditions. Working in an extremely stressful war environment, the patient suffered conditions resulting in extreme heat dehydration, problems with diet, including a poor fiber intake and the inability to adequately use the restroom when need. This over a period of time during his stay in Iraq developed Diverticulosis is the presence of a number of diverticula (herniations of mucosa of the colon). STEDMAN'S at 532. Diverticulitis is an inflammation of the diverticulum (pouch or sac opening from the gut), especially of the small pockets in the wall of the colon that fill with stagnant fecal material and become inflamed. STEDMAN's at 532. Anterior anastomosis refers to a surgical technique to create an opening from the sigmoid colon to the rectal stump. ATLAS OF PELVIC SURGERY, http://www surgery.com (last visited Aug. 16, 2012). 3 6 5 4 in[to] significant bowel problems where IVs were required for his dehydration upon returning to mission. He complained of being often constipated with alternating occasional diarrhea which was further complicated byhis inability to reach restroom facilities. R. at 315-17. Dr. Campbell noted the appellant's subsequent intestinal surgery and further opined: [I]n review of the records and the timing of this unfortunate development it is my opinion that this incident resulted from an adverse environment suffered during his tour in Iraq war theatrewith the above mentioned problems of dehydration, poor diet, inability to access restrooms in combination with the dehydration resulting in colon problems and pressure creating the diverticuli. Development of the diverticuli in the sigmoid colon would not be a common finding in a 25-26 year old without additional adverse conditions contributing[,] which I believe were related to his service connection during the Iraq war. Subsequent experience is that this patient has suffered with this major surgery, infection, complications, colostomy, reversal colostomy that results in this patient having in essence a post traumatic stress response as well as significant depression upon interview. R. at 317-19. The appellant underwent a June 2008 VA examination. The examiner diagnosed the appellant with a history of diverticulitis with perforation of sigmoid colon requiring partial colon resection without residuals. R. at 394. The VA examiner opined that the " ruptured diverticulus with consequent pneumoperitoneum requiring surgical intervention is less likely as not (less than 50/50 probability) caused by or a result of lack of adequate hydration, fibrous foods while deployed to Iraq during military service." R. at 408. As a rationale for his opinion, the VA examiner noted that "there is no documentation of problems of constipation, abdominal pain or incidents of need for IV hydration while in Iraq. On his separation physical he indicates that he is in good health." Id. Additionally, the VA examiner noted that the perforation of the appellant's colon mayhave occurred because he took laxatives for his condition, which may have further stressed his intestinal system resulting in the rupture. Id. In April 2011, the BVA rendered the decision on appeal. R. at 3-13. The Board denied the claims after concluding that the appellant's diverticulits, and chronic bowel disorder were not incurred or aggravated during service. R. at 5. 4 II. ANALYSIS A. Inadequate Examination The appellant argues that the June 2008 VA opinion, relied on by the Board, was inadequate becausetheexaminerfailedto considertheappellant's description ofhis in- servicesymptomatology. Appellant's Brief(Br.)at22-23. Additionally, theappellantarguesthattheBoardgaveaninadequate statement of reasons or bases for relying on the VA examiner's opinion that the appellant's diverticulitis was not related to service over that of Dr. Campbell's opinion that the appellant's condition was related to service. Appellant's Br. at 23-28. "It is the responsibility of the [Board], not this Court, to assess the credibility and weight to be given to evidence." Owens v. Brown, 7 Vet.App. 429, 433 (1995). The Board is free to favor one medical opinion over another as long as the Board provides adequate reasons or bases for doing so. Id. at 435. However, a medical opinion that the Board relies upon must be adequate. A medical examination "is adequate where it is based upon consideration of the veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's 'evaluation of the claimed disability will be a fully informed one.'" see Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet.App. 405, 407- 08 (1994) (quoting Green v. Derwinski, 1 Vet.App. 121, 124 (1991))). Additionally, the opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions." Stefl, 21 Vet.App. at 124-25. "If a diagnosis is not supported by the findings on the examination report or if the report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes," 38 C.F.R. § 4.2 ( 2012). See Stegall, 11 Vet.App. 270-71 (remanding matter where VA examination was inadequate under § 4.2); Hicks v. Brown, 8 Vet.App. 417, 422 (1995) (concluding that an inadequate medical examination frustrates judicial review). Whether a medical examination report is adequate is generallya finding of fact that the Court reviews under the "clearly erroneous" standard of review. See 38 U.S.C. § 7261(a)(4); Nolen v. Gober, 14 Vet.App. 183, 184 (2000). 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 5 Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990). Here, the Board explained that the June 2008 VA examiner's opinion that the appellant's condition was not related to service was "entitled to the most weight regarding the diagnosis and etiology of the [appellant's] diverticulitis and a chronic bowel disorder " because the VA examiner provided "a full and complete rationale for his opinion, " and his opinion was "based upon an evaluation of the appellant, " including a "thorough examination" of the appellant and "review of the claims folder." R. at 18. The June 2008 medical examiner concluded that the appellant's diverticulitis and bowel disorder were not related to service because there was an absence of documentation in the SMRs of his symptoms. It is clear that the VA examiner relied on the absence of corroborating evidence in the SMRs of specific complaints of diarrhea and constipation. In considering the nature of an appellant's disability, a VA examiner should consider the appellant's description of his symptomatology. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (finding that a medical examination that ignores lay assertions regarding symptomatology is of little probative value); Barr v. Nicholson, 21 Vet.App. 303, 311 (2007) (finding an examination inadequate where the examiner failed to consider the appellant's assertions of symptomatology); Dalton v. Nicholson, 21 Vet.App. 23, 39 (2007) (finding a medical examination inadequate where the examiner "impermissibly ignored the appellant's lay assertions that he had sustained a back injury during service"). The Court agrees with the appellant that the Board erred in relying on inadequate medical opinion. B. Credibility of Appellant's Testimony The appellant argues that the Board improperly determined that his testimony regarding his in-servicesymptoms ofconstipation andalternatingdiarrheais not credible. Appellant's Br.at14-19. The Board is obligated to determine the credibilityof layevidence. See Buchanan, 451 F.3d at 1337. In conducting this analysis, the Board can consider possible bias and conflicting statements. Id. When considering documents submitted by a veteran, the Board may also consider "internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the veteran." Caluza v. Brown, 7 Vet.App. 498, 511 (1995). Special rules apply when considering the lay testimony of a combat veteran. Under 6 38 U.S.C. § 1154(b), where a veteran "engaged in combat with the enemy in active service . . . the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence of aggravation." See also 38 C.F.R. § 3.304(d) (2012) ( implementing regulation for section 1154(b), stating that "[s]atisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances . . . of such service even though there is no official record of such incurrence or aggravation"). Section 1154(b) does not eliminate the need for medical nexus evidence; it merely reduces the burden of presenting evidence of incurrence or aggravation of an injury or disease incurred in or aggravated by combat service. See Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996). Even when the combat presumption applies, a " veteran seeking compensation must still show the existence of a present disability and that there is a causal relationship between the present disability and the injury, disease, or aggravation of a preexisting injury or disease incurred during active duty." Shedden, 381 F.3d at 1167. As with any determination, the Board must explain the reasoning behind its credibility determinations. Its statement of reasons or bases must be adequate to enable an appellant to understand the precise basis for the Board's decision, and to facilitate informed review in this Court. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert, 1 Vet.App. at 57. To comply with this requirement, 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. See Caluza, 7 Vet.App. at 506. Here, the appellant testified regarding his in-service symptoms of alternating bouts of constipation and diarrhea. The Board found this testimony was not credible because there "were no such complaints of these symptoms in the appellant's SMRs despite evidence that he sought medical care for other disabilities." R. at 11. The Board reasoned that because the appellant sought medical attention for other ailments, "[i]t is logical to conclude that a reasonable person, who had access, would seek medical attention [for his gastrointestinal symptoms] if it were required." Id. The appellant contends that the Board's reasoning violates the Court's holdings in Colvin v. Derwinski, 1 Vet.App. 171 (1991), overruled on other grounds by Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 7 1998), and Previous DocumentKahanaNext Hit v. Shinseki, 24 Vet.App. 428 (2011). Appellant's Br. at 18-19. The Court agrees. In Previous HitKahanaNext Hit, the veteran's SMRs and separation examination report did not contain any notation of a right knee injury. The Board determined that the veteran's statements of an in-service knee injury were not credible because, "[g]iven that a right [anterior cruciate ligament] tear is quite a significant injury, one would expect to see at least some documentation of it in the [SMRs]" and "one would expect that the [veteran] would have mentioned [it] on his report of medical history at separation." Id. at 434 (internal quotation marks omitted). The Court held that, in finding the veteran's lay statements not credible "based on its determination that a particular injury, which is alleged to have occurred in service, is of the type that should have been documented in the service records and was not," the Board impermissibly made "a medical determination as to the relative severity, common symptomatology, and usual treatment of an . . . injury without citing to any independent medical evidence to corroborate its finding" in violation of Colvin. Id. Essentially, that is what the Board did in this case. The Board based its conclusion that the appellant's testimony was not credible on its belief that his alternating bouts of constipation and diarrhea were of such severity that they "required medical treatment" and that the appellant would have been expected to report these symptoms to the Army physician when he sought treatment for his right knee injury. These are medical determinations that are generally outside the competency of the Board, and the Board provided no independent medical evidence to support them. See id. at 434. The Board violated Colvin byproviding a medical opinion on the nature and course of an injury without supporting that opinion with independent medicalevidence. Therefore, the Court concludes that the Board erred in determining that the appellant was not credible on that basis. See Previous HitKahanaNext Document, 24 Vet.App. at 435; Colvin, 1 Vet.App. at 175. The Board also erred by failing to apply the combat presumption set forth in 38 U.S.C. § 1154(b). The appellant was awarded the Combat Action Badge for his service in the Persian Gulf. The VA recognizes this medal as evidence that the recipient is a combat veteran and entitled to the benefit of the section 1154(b) presumption. MANUALM21-1MR, pt. IV, subpt. 11, 1.D. 13(e). The testimony of combat veterans is entitled to more favorable treatment than lay testimony submitted by noncombat veterans. See Arms v. West, 12 VetApp. 188, 195-97 (1999). In creating the combat presumption,Congressrecognizedthatin combatsituations militaryrecordkeepingmaybedeficient 8 because records that are normally kept might not have been created or may have been destroyed. Id. Because of the likelihood of incomplete record keeping, statements by combat veterans as to in-service symptoms are entitled to special weight. Id. Here, the appellant not only testified regarding his symptoms, but he also explained that he received IVs from medics in the field to treat his dehydration. R. at 29-31. He further testified that the medic occasionally gave him medication for his constipation and diarrhea. R. at 30. He stated that combat soldiers were only seen by the doctor on the base if they were experiencing a medical problem that could not be treated by the unit medic. R. at 30. It is not surprising that in a combat situation there would be no record of the appellant complaining of alternating bouts of constipation or diarrhea. Despite the appellant's Combat Action Badge and his testimony of the combat conditions under which he served, the Board failed to apply section 1154(b) to his claims. The failure to do so was error. III. CONCLUSION After consideration of the appellant's and the Secretary's briefs, and a review of the record, the Board's April 15, 2011, decision is VACATED and the matters are REMANDED for further adjudication consistent with this decision. DATED: August 31, 2012 Copies to: Virginia A. Girard-Brady, Esq. VA General Counsel 9