Single Judge Application, Cline v. Shinseki, ___ Vet. App. ___ , No. 10–3543, 2012 WL 3524832 (August 16, 2012); Retroactivity of Amendments to 3.156(c)

Excerpt from decision below: "The Court concludes that its recent holding in Cline v. Shinseki, ___ Vet. App. ___ , No. 10–3543, 2012 WL 3524832 (August 16, 2012), controls here.1 In Cline, the Court found that the Board erred in retroactively applying amended § 3.156(c)(2)'s exception to deny the appellant entitlement to an earlier effective date for his service-connected PTSD. Id. at *9. Therefore, given that the appellant submitted his claim to reopen prior to October 2006, when amendments to § 3.156(c), including the addition of subsection (c)(2), took effect, the Court is compelled in this case to conclude that the Board erred in retroactively applying that regulation's exception. The Secretary's argument that the Board decision should be affirmed because the Board made a finding of fact that the appellant was not diagnosed with PTSD prior to 1999 is mistaken. As noted in Cline, the version of § 3.156(c) in effect prior to October 2006 authorizes an effective date as early 1 The Court notes that, although Cline was issued subsequent to briefing in this matter, neither party advised the Court of this case. See U.S. Vet.App. R. 30(b) ("When pertinent and significant authority comes to the attention of a party after the party's brief has been filed or after oral argument but before the decision, a party shall promptly file notice with the Clerk, and serve all other parties.") 3 as the date of the original claim, up to the date of the claim to reopen, and application of the regulation requires a retroactive evaluation of the disability. Cline, 012 WL 3524832, at *5 (citing Vigil v. Peake, 22 Vet.App. 63, 65 (2008)). ============================ ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 11-2843 MICHAEL G. ADAMS, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before LANCE, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. LANCE, Judge: The appellant, Michael G. Adams, through counsel, appeals a May 24, 2011, Board of Veterans' Appeals (Board) decision that denied his claim for an effective date prior to February 18, 1999, for the grant of service connection for post- traumatic stress disorder (PTSD). Record (R.) at 3-21. Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). This appeal is timely, and the Court has jurisdiction over the case pursuant to 38 U.S.C. §§ 7252(a) and 7266. For the reasons that follow, the Court will vacate the May24, 2011, decision and remand the matter for further proceedings consistent with this decision. I. FACTS The appellant served in the U.S. Armyfrom November 1967 to March 1971. See R. at 1086- 87. In the decision on appeal, the Board denied an effective date earlier than February 18, 1999, for the award of service connection for PTSD. R. at 19. The Board noted that the regional office (RO) received the appellant's original claim for entitlement to service connection for delayed stress syndrome on January 6, 1983, and denied entitlement to service connection for bipolar disorder, schizotypal personality disorder, and PTSD in August 1983. R. at 4-5. The Board then noted that the appellant filed a claim to reopen his claim for service connection for PTSD in February 1999, which was eventually granted in May 2008. The appellant was assigned an effective date of February 18, 1999, the date VA received his request to reopen the claim. R. at 4. The Board determined that, since VA received unit histories of the 669th Transportation Company and 523rd Transportation Company subsequent to the 1983 rating decision, the application of 38 C.F.R. § 3.156(c) (2012), as amended in 2006, must be considered. Id. However, the Board found that the veteran failed to provide sufficient information for VA to identify and obtain the unit records in 1983, relying on § 3.156(c)(2). R. at 13. The Board also found that the appellant's entitlement to service connection did not arise until September 1999. R. at 14. It further found, that "the Veteran does not have PTSD," and noted "[the Board] is being asked to assume a fact that it is not in accord with (that the Veteran has a disability related to his military service)." R. at 13-14. II. ANALYSIS The appellant argues that the Board failed to consider and correctly apply the provisions of 38 C.F.R. § 3.156(c) when assigning the effective date for his PTSD. Appellant's Brief (Br.) at 8; ReplyBr. at 8. Specifically, the appellantcontendsthattheBoarderroneouslyapplied the provisions of 38 C.F.R. § 3.156(c)(2) (2012) and should have reconsidered his original claim. Appellant's Br. at 5-6. The Secretary responds that the Board's determination that the appellant failed to provide sufficient information to identify the unit records used to verify his stressor at the time the original 1983 claim was decided is not clearly erroneous. Secretary's Br. at 6-7, 13-14. The Secretary also asserts that the Board found that an earlier effective date was not warranted under § 3.156(c)(3) because the evidence failed to show that he had a diagnosis of PTSD until September 1999, which is a basis independent of its reliance on § 3.156(c)(2). Secretary's Br. at 14. The appellant responds that the "minimal" discussion by the Board of the provisions of § 3.156(c)( 3) did not constitute an independent basis for denying reconsideration of the claim and that the finding of fact was made without VA having reconsidered the claim and without the retroactive evaluation required by the provisions of § 3.156(c)(4). Reply Br. at 6-7. InJune2005,theSecretaryproposedto amend§3.156(c)" toestablishclearerrulesregarding reconsideration of decisions on the basis of newly discovered service department records." 70 Fed. Reg. 35,388, 35,388 (June 20, 2005). Amendments to § 3.156(c) became effective on October 6, 2 2006, and were not expressly made retroactive. See 71 Fed. Reg. 52,455 ( Sept. 6, 2006). If VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. 38 C.F.R. § 3.156(c)(1) (2012). However, under the 2006 amendment, paragraph (c)(1) does not apply to records that VA could not have obtained when it decided the claim because the claimant failed to providesufficient informationfor VA to identifyand obtain the records. 38 C.F.R. § 3.156(c)(2). Retroactivity is not favored by the law, and " congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result." Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988). In Princess Cruises, Inc. v. United States, the United States Court of Appeals for the Federal Circuit announced three factors that the Court must weigh to determine whether a regulation should be given retroactive effect: (1) "'the natureand extent of the change of the law;'"(2)" 'thedegreeofconnection between the operation of the new rule and a relevant past event,'" and "'familiar considerations of fair notice, reasonable reliance, and settled expectations.'" 397 F.3d 1358, 1364 (Fed. Cir. 2005) ( quoting Landgraf v. USI Film Products, 511 U.S. 244, 270 (1994)). The Court concludes that its recent holding in ClineNext Hit v. Shinseki, ___ Vet. App. ___ , No. 10–3543, 2012 WL 3524832 (August 16, 2012), controls here.1 In Previous HitClineNext Hit, the Court found that the Board erred in retroactively applying amended § 3.156(c)(2)'s exception to deny the appellant entitlement to an earlier effective date for his service-connected PTSD. Id. at *9. Therefore, given that the appellant submitted his claim to reopen prior to October 2006, when amendments to § 3.156(c), including the addition of subsection (c)(2), took effect, the Court is compelled in this case to conclude that the Board erred in retroactively applying that regulation's exception. TheSecretary's argumentthattheBoarddecisionshould beaffirmedbecausetheBoardmade a finding of fact that the appellant was not diagnosed with PTSD prior to 1999 is mistaken. As noted in Previous HitClineNext Hit, the version of § 3.156(c) in effect prior to October 2006 authorizes an effective date as early 1 The Court notes that, although Previous HitClineNext Hit was issued subsequent to briefing in this matter, neither party advised the Court of this case. See U.S. Vet.App. R. 30(b) ("When pertinent and significant authority comes to the attention of a party after the party's brief has been filed or after oral argument but before the decision, a party shall promptly file notice with the Clerk, and serve all other parties.") 3 as the date of the original claim, up to the date of the claim to reopen, and application of the regulation requires a retroactive evaluation of the disability. Previous HitClineNext Document, 2012 WL 3524832, at *5 (citing Vigil v. Peake, 22 Vet.App. 63, 65 (2008)). Here, the Board found that the Secretary had fulfilled his duty to assist and that no further medical examination was warranted. See R. at 19. However, this finding was predicated, at least in part, on the Board's conclusion that § 3.156(c) was precluded in this case, on the improper grounds that an exception under § 3.156(c)( 2) (2012) applied. As 38 C.F.R. § 3.156(c) (2005) applies, a retroactive evaluation of the disability is mandated. Id. The duty to assist now may require the development of evidence regarding when the appellant first suffered from PTSD or the extent to which he suffered from PTSD prior to the date of his claim to reopen. See 38 U.S.C. § 5103A(a)(1) (requiring the Secretary to "make reasonable efforts to assist a claimant by obtaining evidence necessary to substantiate" the claim); cf. Chotta v. Peake, 22 Vet.App. 80, 84-85 (2008) (the duty to assist requires VA to assess whether a disability can be rated based upon the available evidence; if not, VA must determine whether a medical opinion, including a retrospective opinion, "is necessary to make a decision on the claim.") Therefore, the Court will vacate and remand the matter for the Board to apply 38 C.F.R. § 3.156(c) (2005). The Board must determine the proper effective date for the appellant's PTSD award, regardless of the date on which he provided sufficient information for VA to obtain the service department records, and which may be the date of the original claim or the date on which entitlement arose, whichever is later. See Mayhue v. Shinseki, 24 Vet.App. 273, 279 (2011). C. Other Factual Findings In regard to the Board's factual findings, that "the Veteran does not have PTSD" and "it is being asked to assume a fact that it is not in accord with (that the Veteran has a disability related to his military service)," these issues were not before the Board in the decision on appeal and, accordingly, the Board erred in making the findings. See Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002) (stating that the rule of finality is designed to " preclude repetitive and belated readjudication of veterans' benefits claims"); Juarez v. Peake, 21 Vet.App. 537 (2008) (Court must vacate Board findings if Board had no jurisdiction to make them); see also DiCarlo v. Nicholson, 20 Vet.App. 52, 55 (2006) (Board lacks jurisdiction to make findings on issues that are not on appeal); Bissonette v. Principi, 18 Vet.App. 105, 110 (2004) (collateral estoppel or issue preclusion 4 mayprevent relitigation of an issue of fact or law alreadydecided). If VA believes that the appellant was improperly granted service connection for PTSD, it may initiate a severance determination to the appropriate VA RO, alleging clear and unmistakable error in the rating decision granting service connection, while affording the appellant all required due process procedures. See 38 U.S.C. § 5109A(c) ("Review to determine whether clear and unmistakable error exists in a case may be instituted by the Secretary on the Secretary's own motion or upon request of the claimant."); 38 C.F.R. 3.105(d) ("Service connection will be severed only where evidence establishes that it is clearly and unmistakably erroneous. . . . When severance of service connection is considered warranted, a rating proposing severance will be prepared setting forth all material facts and reasons"). However, VA may not functionally sever benefits without following the applicable procedure, by ignoring findings favorable to the veteran in a prior, final decision awarding benefits. On remand, the appellant is free to submit additional evidence and argument, including the arguments raised in his briefs to this Court, in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order), and the Board must consider any such evidence or argument submitted. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Board shall proceed expeditiously, in accordance with 38 U.S.C. §§ 5109B, 7112 (requiring Secretary to provide for "expeditious treatment" of claims remanded by Board or Court). III. CONCLUSION After consideration of the appellant's and the Secretary's briefs, and a review of the record, the Board's May 24, 2011, decision is VACATED and the matter is REMANDED to the Board for further proceedings consistent with this decision. DATED: October 9, 2012 Copies to: Kenneth M. Carpenter, Esq. VA General Counsel (027) 5

Single Judge Application, Horn v. Shinseki, 25 Vet.App. 231, 235 (2012); Presumption of Soundness

Excerpts from decision below: "To be clear, the aggravation prong of the presumption of soundness requires VA to rely on affirmative evidence that there was no aggravation. Horn v. Shinseki, 25 Vet.App. 231, 235 (2012) (stating that "VA may not rest on the notion that the record contains insufficient evidence of aggravation," and the Secretary's failure "to produce clear and unmistakable evidence of lack of aggravation" entitles a claimant to a finding of in-service aggravation of the preexisting condition)." ============================= "Where, as here, the burden is on the Government to prove by clear and unmistakable evidence lack of aggravation, and VA has had a full opportunity to develop the record, "the Court's role is . . . to assess whether the Secretary has succeeded in carrying his burden." See Horn, 25 Vet.App. at 243. If, as the Court concludes in this case, for reasons set forth more fully below, the Secretary fails to carry his burden of proving lack of aggravation by clear and unmistakable evidence, "reversal, not remand, is . . . the appropriate remedy." Id. (holding that reversal is the appropriate remedy where the Secretary has failed to carry his burden of proving lack of aggravation)." ============================= "In this case, the only affirmative evidence of record relied on by the Board to establish lack of aggravation is the June 2010 VA examiner's report. See R. at 11-12; see also Douglas v. Shinseki, 23 Vet.App. 19, 24 (2009) ("[T]he Secretary's authority to develop a claim necessarily includes the authority to collect and develop evidence that might rebut the presumption of service connection."). However, a review of the June 2010 examiner's opinion reveals that the examiner's opinion does not rise to the level of clear and unmistakable evidence. See Horn, 25 Vet.App. at 242 (Court's assessment of the sufficiency of a physician's report concerning lack of aggravation is "a significant part of what the Court does on de novo review"). First and foremost, the only rationale provided by the June 2010 VA examiner to support his conclusion that the appellant's right club foot was not aggravated by service shows that the examiner relied on the absence of objective evidence of aggravation –particularly, the lack of notation in the service medical records of an injury or event. See R. at 73 (stating that the appellant's "right club 8 foot is less likely as not permanently aggravated . . . as there is no evidence of any in-service injury and/or event in the [service medical record] . . . to support any acute findings on x[-]rays or physical examination that altered the NATURAL history or progression")." ============================= "As the Court noted in Horn, reliance on the absence of record evidence of worsening is flawed because it "effects an impermissible burden shift" to the veteran to show an increase in disability during service. 25 Vet.App. at 239. In addition, the examiner did not provide a medical explanation for his conclusion, supported by extant medical knowledge and the facts of record. See id. at 240 (indicating in the context of evaluating whether the Secretary's proof is sufficient to rebut the presumption of soundness that "there is no reason that the Court should not follow its caselaw that ... an unexplained conclusory [medical] opinion is entitled to no weight in a service-connection context (citing Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 304 (2008))). As a result, the Court concludes that the June 2010 opinion is inadequate and Board erred in relying on the examination." ============================= ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 11-1831 JERRY L. YARBROUGH, 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 pro se appellant, Jerry L. Yarbrough, appeals a May 31, 2011, Board of Veterans' Appeals (BVA or Board) decision that denied VA disability compensation benefits for a right club foot. Record of Proceedings (R.) at 3-15. This appeal is timely, and the Court has jurisdiction to review the Board's decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Both parties filed briefs. Single-judge disposition is appropriate. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). Because the Secretary failed to carry his burden to rebut the aggravation prong of the presumption of soundness, the Court will reverse the Board's May 2011 decision insofar as it pertains to the rebuttal of the aggravation prong of the presumption of soundness and remand the matter for further proceedings consistent with this decision. I. BACKGROUND The appellant served on active duty in the U.S. Army from September 5, 1967, to October 10, 1967. R. at 246. His August 1967 enlistment examination included no indication of any foot disorder. R. at 223-24. During the first week of basic training, on September 11, 1967, the appellant reported that he was "unable to walk [and] run because of [a] problem [ with] right foot." R. at 219. A September 11, 1967, podiatrynote indicates that the appellant wasborn with a right foot deformity that was treated with braces. Id. The podiatrist noted that the appellant walked on the outer border of the right foot, with the inside highly elevated, and recommended a medical evaluation board (MEB). Id. The MEB examination export noted under the section entitled " history of present illness," that the "[p]atient has pain in right foot as a result of birth deformity, partially corrected, resulting in pain on marching, running, jumping[,] and preventing him from meeting training requirements." R. at 214. After conducting a physical examination and obtaining x-rays of the right foot, which revealed "marked lateral deviation of callous metatarsus varus ," the examiner diagnosed residuals of clubfoot deformity. Id. Because the appellant did not meet induction standards, the MEB recommended that he be considered for separation for a condition that "[ EPTS (existed prior to service)]" and was "not service aggravated." R. at 215. In October 2008, the appellant filed a claim for disability compensation for "aggravation of right club foot." R. at 264-75. In support of his claim, the appellant submitted a June 2008 statement from his treating physician, Dr. Roberts. R. at 282. Dr. Roberts noted the appellant's history as having been born with a right club foot, which was not surgically corrected, but that after extensive strengthening and therapy, he was able to walk without a limp and participate in high school sports without any difficulty. Id. He also noted the appellant's report that he injured his right foot during basic training, when, "[u]pon jumping, his right foot hit the edge of [a] pit hyperextending the foot causing acute pain." Id. The appellant reported that he has had a limp since that time that has not resolved. Id. Dr. Roberts's physical examination revealed "varus of the forefoot with decreased dorsiflexion and severe degenerative changes to the carpal metacarpal joints." Id. He noted that the appellant's foot is adducted and inverted, and that he walks on the outside of the foot. Id. In conclusion, Dr. Roberts opined that "it is at least as likely as not that the service treatment, marching, crawling, etc. could have actually aggravated his right club foot." Id. In February 2009, the regional office (RO) issued a rating decision denying the appellant's claim. R. at 172-77. The appellant filed a timely Notice of Disagreement ( R. at 158-61), the RO issued a Statement of the Case (96-110), and the appellant perfected an appeal to the Board (R. at 94-95). The appellantalso submitted an additional statement from Dr. Roberts, dated October 2009, in which Dr. Roberts stated that he was submitting the letter to clarify his earlier statement. R. at 88. The content of his statement, however, is identical to that of the June 2008 letter, except for the 2 degree of certainty expressed in his conclusion, i.e., Dr. Roberts opined that the appellant's "right foot condition was at least as likely as not aggravated beyond its normal progression by some event or injury in the service." Id. In June 2010, the appellant underwent a compensation and pension examination of his right foot. R. at 64-80. The examination report indicates that the examiner reviewed the appellant's claims file and medical records, including Dr. Roberts's October 2009 statement; took a medical history from the appellant, including his assertion that he was born with a right club foot and sustained an injury to his right foot during basic training; and conducted a physical examination of his feet. In conclusion, the examiner stated: [A]fter a review of medical records, taking a history, performing a physical examination and a review of the medical literature[,] the [v]eteran's pre[] existing congenital right club foot is less likely as not permanently aggravated by in-service activities, injuries and/or events and is at least as likely as not permanently aggravated by his post service activities, injuries, and/or events, occupation, and the normal process of aging as there is no evidence of any in-service injury and/or event in the [service medical record] to include the evaluation of 9/8/67 to support any acutefindings onx[-]rays orphysicalexaminationthatalteredtheNATURALhistory or progression of his congenital condition. In addition, the [v]eteran did not seek care for his pre[]existing congenital right club foot condition for more than 40 years after military service. Id. Finding the VA examiner's opinion the most probative evidence of record, the RO issued a Supplemental Statement of the Case in July 2010 that continued to deny the appellant's claim. R. at 60-63. The appellant and his wife thereafter testified at an April 2011 Board hearing. R. at 19-29. The appellant testified that he was born with a right club foot, but denied anyproblems or limitations of activity prior to service. R. at 21, 25. The appellant also described a night exercise during basic training where he sustained an injury to his foot. R. at 27. He stated that the doctor sent him back to his barracks and informed him that he would receive a medical discharge. R. at 28. The appellant's wife testified that she met her husband in August 1965 and married him in June 1967. R. at 22. She stated that she did not notice any problems with his foot before he entered the military and that he had played baseball and basketball in school, worked on a farm, driven a 3 tractor, and plowed fields. R. at 23. She testified that the appellant informed her by telephone that he injured his foot in service and described her observations of his pain following service. R. at 23- 24 (stating that the appellant did not complain about his foot before service, but complained of pain and required daily rest after service). On May 31, 2011, the Board issued the decision here on appeal denying VA disability compensation benefits for a right club foot. The Board found that the appellant clearly and unmistakably entered service with a preexisting foot disorder and that the evidence clearly and unmistakably established that his condition was not aggravated by service. R. at 4. This appeal followed. II. ANALYSIS Pursuant to 38 U.S.C. § 1111, "every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination." Thus, when no preexisting condition is noted upon entry into service, the veteran is presumed sound. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). This presumption can only be overcome by clear and unmistakable evidence that the injury or disease preexisted service and was not aggravated by service. See 38 U. S.C. § 1111; Wagner, supra; see also Jordan v. Nicholson, 401 F.3d 1296, 1298 (Fed. Cir. 2005). " Clear and unmistakable evidence" means that the evidence "'cannot be misinterpreted and misunderstood, i.e., it is undebatable.'" Quirin v. Shinseki, 22 Vet.App. 390, 396 (2009) (quoting Vanerson v. West, 12 Vet.App. 254, 258-59 (1999)). When an injury or disease has been shown to have existed before acceptance and enrollment to military service, it will be considered to have been aggravated in service, unless the Secretary establishes, by clear and unmistakable evidence, either that there was no increase in disability during service or that any increase in disability was due to the "natural progress" of the preexisting disease or injury. See 38 U.S.C. § 1111; Wagner, supra; see also Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006) ("To satisfy the second requirement for rebutting the presumption of soundness, the government must rebut a statutory presumption of aggravation by showing, by clear and unmistakable evidence, either that (1) there was no increase in disability 4 during service, or (2) any increase in disability was 'due to the natural progression' of the condition."). To be clear, the aggravation prong of the presumption of soundness requires VA to rely on affirmative evidence that there was no aggravation. Horn v. Shinseki, 25 Vet.App. 231, 235 (2012) (stating that "VA may not rest on the notion that the record contains insufficient evidence of aggravation," and the Secretary's failure "to produce clear and unmistakable evidence of lack of aggravation" entitles a claimant to a finding of in-service aggravation of the preexisting condition). Therefore, where evidence to establish a preservice baseline for a preexisting condition is lacking, the Secretary may attempt to carry his evidentiary burden with a post[] service medical opinion that discusses 'the character of the particular injury or disease,' 38 C.F.R. § 3.304(b)(1) in relation to the available evidence. In certain cases, the nature of a preexisting disease or injury may imply an extremely low likelihood of aggravation by a limited period of even intense physical training. See 38 C.F.R. § 3.303(c). If a physician is able to support such a conclusion with a suitable medical explanation, supported byextant medical knowledge and the facts of record, such an opinion might constitute or contribute to clear and unmistakable evidence of lack of aggravation. Id. at 243. TheCourt reviewsdenovoaBoarddecisionconcerningtheadequacyoftheevidenceoffered to rebut the presumption of soundness. Quirin, 22 Vet.App. at 396. However, the U.S. Court of Appeals for the Federal Circuit has stated that in reviewingthe legal sufficiencyof rebuttal evidence, this Court may employ the "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" standard of review because it subsumes de novo review of questions of law. Kent v. Principi, 389 F.3d 1380, 1383 (Fed. Cir. 2004). A. Preexistence Prong of the Presumption of Soundness In this case, it is undisputed that the appellant's militaryentrance documents did not note any foot disorder and therefore the presumption of soundness applies. R. at 9; see Wagner, supra. It is also undisputed that the first prong of the presumption of soundness was rebutted – that the evidence clearly and unmistakably established that the appellant's right club foot preexisted service. R. at 10; see also R. at 21, 25 (appellant's hearing testimonyadmitting that he was born with a right club foot); R. at 64-80, 88, 282 (Dr. Roberts's June 2008 and October 2009 statements, and the VA examiner's June2010report, allindicatingthattheappellant's right clubfootpreexisted militaryservice);Harris 5 v. West, 203 F.3d 1347, 1349 (Fed. Cir. 2000) (concluding that the presumption of soundness may be rebutted by clear and unmistakable evidence consisting of "records made 'prior to, during, or subsequent to service' concerning the inception of the disease"); Doran v. Brown 6 Vet.App. 283, 286 (1994) (concluding, "as a matter of law, that the presumption of soundness was rebutted byclear and unmistakable evidence consisting of [the] appellant's own admissions . . . of a preservice [disability]"). Thus, the remaining issue is whether VA established by clear and unmistakable evidence that the appellant's preexistingfootcondition did not undergoanincreasein severityduring service or that any increase was due to the natural progress of the disease. See Wagner and Hood, both supra. B. Aggravation Prong of the Presumption of Soundness 1. The Parties' Arguments On appeal, the appellant requests that the Court "grant [VA disability compensation] for aggravation." Informal Brief (Br.) at 2. He asserts that he was "found fit for full duty with the condition[,] . . . could not complete training[,] and ha[s] suffered from [ the] date of injury to today." Id. The Secretaryconstrues the appellant's argument as a request for reversal of the Board's decision, but asserts that remand, rather than reversal, is the appropriate remedyin this case because the Board provided an inadequate statement of reasons or bases for its evaluation of the appellant's lay evidence. Secretary's Br. at 5-9. Specifically, the Secretary concedes that the Board (1) failed to adequately explain its reasons for finding the appellant and his wife not competent to opine whether his preexisting foot disorder was aggravated by service, and (2) improperlyfound the appellant's lay evidence concerning an in-service injury not credible merely because it was not accompanied by contemporaneous medical evidence. Id. 2. The Secretary's Concession of Error and the Appropriate Remedy The Court will accept the Secretary's concession of Board error. It is clear from a review of the Board's decision that the Board improperly found the appellant and his wife not credible regarding the allegation that he sustained an injury in service solely because of the "lack of corroborative evidence in the service treatment records." See R. at 14; see also Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (holding that "the Board cannot determine that 6 lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). Additionally,the Board failed to explain adequatelywhythe appellant and his wife were not competent to testifythat his preexisting foot disorder was aggravated byservice. See R. at 13-14; see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) ( noting that whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed bythe Board); Kahana v. Shinseki, 24 Vet.App.428, 435 (2011) (holding that"theBoard's categorical rejection and failure to analyze and weigh the appellant's lay evidence in accordance with established precedent renders its statement of reasons or bases inadequate"). Notwithstanding the Court's agreement with the Secretary's admission of error, the Court disagrees with the Secretary's contention that remand is the appropriate remedy. Although it is generally true that remand, not reversal, 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), the general rule is not for application in this case. Where, as here, the burden is on the Government to prove by clear and unmistakable evidence lack of aggravation, and VA has had a full opportunity to develop the record, "the Court's role is . . . to assess whether the Secretary has succeeded in carrying his burden." See Horn, 25 Vet.App. at 243. If, as the Court concludes in this case, for reasons set forth more fully below, the Secretary fails to carry his burden of proving lack of aggravation by clear and unmistakable evidence, "reversal, not remand, is . . . the appropriate remedy." Id. (holding that reversal is the appropriate remedy where the Secretary has failed to carry his burden of proving lack of aggravation). 3. Evaluation of the Secretary's Evidence The Board began discussing the evidence pertinent to whether the evidence showed no aggravation duringservicebyreviewingtheappellant's servicetreatmentrecordsandnotingthatthey were "negative for objective evidence of anyin-service injuryto the right foot." R. at 11. The Board further noted that the postservice record was negative for any objective evidence of right foot problems until 2008 and found that the lack of documentation weighed heavily against the claim. See id. The Board then proceeded to review Dr. Roberts's opinions but ultimately concluded that 7 his opinions were not probative because they were based on an incomplete medical history and Dr. Roberts failed to explain why he changed the degree of probability expressed in his opinion, i.e., noting that the June 2008 statement contained an equivocal conclusion, whereas the October 2009 statement was more definitive. R. at 11-13. Finally, the Board noted the June 2010 examiner's conclusions and found them to be "the only competent and credible evidence of record" demonstrating that the appellant's right club foot was not aggravated byhis militaryservice, and that the record therefore contained clear and unmistakable evidence showing that the appellant's preexisting right club foot was not aggravated by his military service. R. at 13. The Board's analysis is fatally flawed for a number of reasons. First, the Board improperly afforded significant weight to the absence of objective evidence of an in- service injury. As the Court noted in Previous HitHornNext Hit, "[i]t is the lack of aggravation that the Secretary must prove, not lack of an injury." 25 Vet.App. at 239. Second, regardless of whether the appellant submitted sufficient evidence of aggravation, ultimately the burden is on the Secretary to prove lack of aggravation. See id. at 242 (stating that "the veteran has no burden to produce evidence of aggravation[,] . . . [i]nstead, the evidence of lack of aggravation produced by the Secretary must rise to the level of clear and unmistakable evidence on its own merit, without reference to any countervailing evidence"). In this case, the only affirmative evidence of record relied on by the Board to establish lack of aggravation is the June 2010 VA examiner's report. See R. at 11-12; see also Douglas v. Shinseki, 23 Vet.App. 19, 24 (2009) ("[T]he Secretary's authority to develop a claim necessarily includes the authority to collect and develop evidence that might rebut the presumption of service connection."). However, a review of the June 2010 examiner's opinion reveals that the examiner's opinion does not rise to the level of clear and unmistakable evidence. See Horn, 25 Vet.App. at 242 (Court's assessment of the sufficiency of a physician's report concerning lack of aggravation is "a significant part of what the Court does on de novo review"). First and foremost, the only rationale provided by the June 2010 VA examiner to support his conclusion that the appellant's right club foot was not aggravated by service shows that the examiner relied on the absence of objective evidence of aggravation –particularly, the lack of notation in the service medical records of an injury or event. See R. at 73 (stating that the appellant's "right club 8 foot is less likely as not permanently aggravated . . . as there is no evidence of any in-service injury and/or event in the [service medical record] . . . to support any acute findings on x[-]rays or physical examination that altered the NATURAL history or progression"). As the Court noted in Horn, reliance on the absence of record evidence of worsening is flawed because it "effects an impermissible burden shift" to the veteran to show an increase in disability during service. 25 Vet.App. at 239. In addition, the examiner did not provide a medical explanation for his conclusion, supported by extant medical knowledge and the facts of record. See id. at 240 (indicating in the context of evaluating whether the Secretary's proof is sufficient to rebut the presumption of soundness that "there is no reason that the Court should not follow its caselaw that ... an unexplained conclusory [medical] opinion is entitled to no weight in a service-connection context (citing Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 304 (2008))). As a result, the Court concludes that the June 2010 opinion is inadequate and Board erred in relying on the examination. Therefore, on de novo review, the Court finds that the Secretary has failed to carry his burden to prove lack of aggravation by clear and unmistakable evidence. Accordingly, the Court will reverse the Board's finding that the aggravation prong of the presumption of soundness was rebutted. See Horn, 25 Vet.App. at 243-44 ( remand is inappropriate in the face of medical evidence that is plainly insufficient to rebut the presumption of soundness). The Board is directed to enter a finding that the appellant's preexisting right club foot was aggravated in service. Of course, in orderto obtain disabilitycompensation, theappellantmust still demonstrate a nexus between his current disability and the in-service aggravation. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (holding that although 38 U.S.C. § 105(a) "establishes a presumption that the disease or injury incurred during active duty is service-connected, the veteran seeking compensation must still show the existence of a present disability and that there is a casual relationship between the present disability and the injury, disease, or aggravation of a preexisting injury or disease incurred during active duty"). The Court will therefore remand the case for development and adjudication of this issue. In pursuing the matter on remand, the appellant is free to submit additional evidence and argument on the remanded matters, and the Board is required to consider anysuch relevant evidence 9 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,theCourt REVERSES the Board's May31, 2011, decision that the presumptionofsoundness had been rebutted, directs that the finding of in-service aggravation of the right club foot be entered, and REMANDS the matter for further development consistent with this decision. DATED: October 17, 2012 Copies to: Jerry L. Yarbrough VA General Counsel (027) 10

PTSD and Cardiovascular Disease, Medical Treatise and Possible Argument

In a single judge decision, Kaye v. Shinseki, No. 11-1013, the court stated that: "Dr. Ross seems unaware of the thorough studies linking PTSD and cardiovascular disease that were part of the record" The court goes on to order a remand. The studies to which the court was referring included a VA study entitled Risk of selected cardiovascular diseases and posttraumatic stress disorder among former World War II prisoners of war, see abstract below. The veteran in this case argued that the Board violated its duty to assist and Barr because "it relied upon an inadequate medical opinion, which ignored VA studies linking PTSD and heart problems. The studies are significant, as they refute the examiner’s contention that PTSD was not a risk factor for ischemic heart disease, and also render the examiner’s opinion as based upon a faulty factual premise." VA has relied, in prior cases, on a 2003 study finding an increased risk of hypertension and chronic heart disease among World War II veterans diagnosed with PTSD, and a 1997 study finding that Vietnam veterans diagnosed with PTSD had an increased risk of developing circulatory disease. See 69 Fed. Reg. 60,083, 60,087 (Oct. 7, 2004) (Interim Final Rule). If you are seeking PTSD caused heart disease claim, it might be of benefit to get these studies into the record, and read the veterans brief in this case. ===================================== Ann Epidemiol. 2006 May;16(5):381-6. Epub 2005 Jul 1. Risk of selected cardiovascular diseases and posttraumatic stress disorder among former World War II prisoners of war. Kang HK, Bullman TA, Taylor JW. Source U.S. Department of Veterans Affairs, Environmental Epidemiology Service, 810 Vermont Ave Washington, DC 20420, USA. han.kang@hq.med.va.gov Abstract PURPOSE: American World War II (WWII) prisoners of war (POWs) suffered both mental and physical deprivation while interned. The long-term health consequences of the internment were studied for an increased risk of cardiovascular diseases and posttraumatic stress disorder (PTSD). METHODS: This study evaluated healthcare utilization data for 10 years (1991-2000) from Veterans Affairs (VA) and non-VA healthcare providers for 19,442 former WWII POWs and 9728 non-POW controls. The risk of diseases was approximated by odds ratios adjusted for race and age. RESULTS: Collectively, former POWs had statistically significant increased risk of PTSD, and those POWs with PTSD also had statistically significant increased risks of cardiovascular diseases including hypertension and chronic ischemic heart disease when compared to both non-POWs and POWs without PTSD. CONCLUSIONS: Among former WWII POWs, risk of cardiovascular disease is related to having PTSD. PMID: 15994096 [PubMed - indexed for MEDLINE]

Procopio v. Shinseki, No. 11-1253(Decided October 16, 2012); Hearing Officer Duties; 38 C.F.R. 3.103(c)(2)(2010); Bryant, 23 Vet.App. at 496-97

Excerpts from decision below: "Accordingly, because the Board member in the instant case did not explain that Mr. Procopio's claims could only be substantiated by submitting evidence of in-service exposure to herbicides and a nexus between that exposure and his current disabilities (the missing elements in his claims), the Court concludes that the Board member failed to discharge her duty to fully explain the outstanding issues under § 3.103(c)(2). 23 Vet.App. at 496 ("[W]hen the [regional office] has denied a disability claim because there is no current disability, no nexus to service, or no incident in service, etc., then . . . the Board hearing officer's explanation and discussion should be centered on these issues.")." ============================= "Specifically, Mr. Procopio's representative at the hearing requested that the record before the agency be held open for 60 days to allow Mr. Procopio to submit another nexus opinion from Dr. Grado that was based on a review of his service records because VA had determined that Dr. Grado's previous opinions based on his statements were inadequate to demonstrate a nexus. R. at 43-44. At that point, the Board member should have interjected, explaining that a nexus opinion alone would be insufficient to substantiate his claims without evidence of in-service exposure to herbicides, which generally cannot be provided by a private doctor decades after the alleged exposure. Further, the Board member should have recognized that, if Mr. Procopio is able to establish in-service exposure, he would be entitled to presumptive service connection for prostate cancer and diabetes mellitus type II under 38 C.F.R. § 3.309(e), alleviating the need for a nexus opinion. Yet, the Board member did not alert Mr. Procopio that he was overlooking evidence of inservice exposure to herbicides. Instead, the Board member violated § 3.103(c)(2) by allowing Mr. Procopio to proceed under the assumption that submitting a nexus opinion alone would be sufficient to substantiate his claims–even though the hearing testimony indicated otherwise–and by failing to suggest evidence that he could submit to demonstrate exposure. See Bryant, 23 Vet.App. at 496 9 (explaining that a hearing officer "must not only be familiar with the claims file but also be engaged in the hearing process"); 38 C.F.R. § 3.103(c)(2) (stating that the purpose of the regulation is to "assure [the] clarity and completeness of the hearing record"). ============================= "A Statement of the Case is a document that "a hearing officer should have encountered in his review of the record, [that] will likely assist . . . in identifying the outstanding issues. Bryant, 23 Vet.App. at 496, n. 3." ============================= Second, the Secretary's argument that the issuance of a pre-hearing Statement of the Case cures a Board member's failure to suggest the submission of overlooked evidence essentially eviscerates the duty required by § 3.103(c)(2). If the Secretary's argument were correct, then every claimant would have actual knowledge of the evidence necessary to substantiate a claim at the time of a Board hearing because Statements of the Case precede Substantive Appeals to the Board, see 38 U.S.C. § 7105, and the Board member, therefore, would never be obligated to perform that duty. Cf. Cuevas v. Principi, 3 Vet.App. 542, 548 (1992) (holding that a pre-hearing notice letter identifying the evidence necessary to substantiate a claim was not sufficient to satisfy § 3.103(c)(2)). Consequently, the Court must reject the Secretary's proposed prejudicial error analysis because it renders a portion of § 3.103(c)(2) a legal nullity. See, e.g., Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (rejecting the Secretary's proffered interpretation because it "would render portions of the statutes and regulations [governing claims for VA benefits] meaningless")." 10 ============================= "Based on the foregoing, the Court concludes that the Board member conducting the September 2010 video conference hearing did not comply with her duties to apprise Mr. Procopio of the elements of his claims that still needed to be proven and to suggest the submission of evidence thereof that he might have overlooked. See Bryant, 23 Vet.App. at 496-97. As explained above, the Board member made no efforts to explain to Mr. Procopio that he needed to submit evidence regarding his in-service exposure to herbicides, despite testimony indicating that he was unaware that this element of his claims remained outstanding and that he was confused about what evidence was necessary to substantiate his claims. See id. at 499 (explaining that "prejudice arises from the failure of the hearing officer to assure the 'clarity and completeness of the hearing record,' and the lost additional opportunity to try and submit such evidence before [the] claim [is] finally adjudicated"(quoting 38 C.F.R. § 3.103(c)(2))) (internal citations omitted). Therefore, vacatur and remand is warranted. See Tucker v. West, 11 Vet.App. 369, 374 (1998). ============================= UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 11-1253 ALFRED PROCOPIO, JR., APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. On Appeal from the Board of Veterans’ Appeals (Decided October 16, 2012 ) Glenn R. Bergmann and Thomas Polseno, both of Bethesda, Maryland, were on the brief for the appellant. Karen Hartridge, Appellate Attorney, with whom Will A. Gunn, General Counsel; R. Randall Campbell, Assistant General Counsel; and Carolyn F. Washington, Deputy Assistant General Counsel, all of Washington, D.C., were on the brief for the appellee. Before KASOLD, Chief Judge, and HAGEL and SCHOELEN, Judges. HAGEL, Judge: Alfred Procopio, Jr., appeals through counsel a March 16, 2011, Board of Veterans' Appeals (Board) decision denying entitlement to VA benefits for prostate cancer and diabetes mellitus type II with edema, both to include as secondary to herbicide exposure. Record (R.) at 3-15. Mr. Procopio's Notice of Appeal was timely, and the Court has jurisdiction to review the Board decision pursuant to 38 U.S.C. § 7252(a). Because the Board member conducting the September 2010 hearing did not comply with 38 C.F.R. § 3.103(c)(2) (2010), the Court will vacate the March 16, 2011, Board decision and remand the matter for readjudication consistent with this decision. I. FACTS Mr. Procopio served on active duty in the U.S. Navy from September 1963 to August 1967, including service on board the U.S.S. Intrepid off the coast of Viet Nam.1 R. at 862-63, 1025. Mr. Procopio filed claims for VA benefits for diabetes mellitus and prostate cancer in October 2006 and October 2007, respectively. R. at 694-97, 999-1015. Specifically, Mr. Procopio asserted that those conditions were caused by his exposure to herbicides in service while aboard the U.S.S. Intrepid in "the Gulf of Tonkin and on the southern coast of Vietnam," which "was responsible for launching aircraft that sprayed . . . Agent Orange." R. at 696, 1009. A VA regional office attempted to obtain records to verify his allegations, but the National Personnel Records Center indicated that no such records existed. R. at 836. Consequently, in March 2009, the regional office sent Mr. Procopio a letter requesting additional information and evidence pertaining to his exposure to herbicides in service. R. at 368-75. In response, Mr. Procopio submitted a statement indicating that, while aboard the U.S.S. Intrepid, he "quite frequently handled [herbicides] and the aircraft and equipment that was used to spray these chemicals" and drank "water that was pulled from the Gulf [of Tonkin] and 'purified' through co-distillation. . . ." R. at 362. He also submitted an undated study funded by the Australian Department of Veterans' Affairs (hereinafter the Royal Australian Navy study) indicating that "evaporative distillation [of seawater] may allow [dioxin] . . . to enter water supplies and to concentrate in the distillate," which "provides evidence that contamination via water may have been an important pathway for contamination of [Royal Australian Navy] personnel with [dioxin] on board ships." R. at 366. In April 2009, the regional office denied Mr. Procopio's claims. R. at 354-60. He filed a timely Notice of Disagreement with that decision and included a May 2009 treatment note from his private physician, Dr. Gordon Grado, who opined that Mr. Procopio's conditions were associated with exposure to Agent Orange on the flight deck of the U.S.S. Intrepid and from water collected 1VA maintains a list of U.S. Navy and Coast Guard ships in operation off the coast of Viet Nam whose crew members were presumed to be exposed to Agent Orange. See U.S. Navy and Coast Guard Ships in Vietnam, U.S. DEP'T OF VETERANS AFFAIRS, http://www.publichealth.va.gov/exposures/agentorange/shiplist/index.asp (last visited June 4, 2012). The Court takes judicial notice of the fact that the U.S.S. Intrepid is not included on that list. See Smith v. Derwinski, 1 Vet.App. 235, 238 (1991) ("Courts may take judicial notice of facts not subject to reasonable dispute."(citing FED. R. EVID. 201(b))); Brannon v. Derwinski, 1 Vet.App 314, 316-17 (1991). 2 from evaporators on that ship. R. at 339-43. In October 2009, the regional office issued a Statement of the Case that continued to deny Mr. Procopio's claims because there was "no record that [he was] exposed to Agent Orange" and the U.S.S. Intrepid carried "A-1 Skyraiders used for bombing and rocketing targets–not spraying Agent Orange." R. at 308. Mr. Procopio subsequently perfected his appeal. R. at 281. In September 2010, Mr. Procopio testified at a Board video conference hearing about his inservice exposure to herbicides. R. at 41-50. At that time, Mr. Procopio submitted a May 2010 treatment note from Dr. Grado that included an impression of "Agent [O]range exposure in Vietnam as [a] Blue Water Sailor" 2 and a treatment plan to "[s]upport [his] history of Agent Orange exposure in [the] military, as I have had many other patients who were 'Blue Water Sailors' with Agent Orange exposure while off-shore in Vietnam." R. at 34. Mr. Procopio subsequently submitted an October 2010 letter from Dr. Grado opining: "If Mr. Procopio was off the coast of Vietnam when Agent Orange was being used and he was therefore exposed to Agent Orange, then [his] prostate cancer can be associated with his Agent Orange exposure." R. at 22. In March 2011, the Board issued the decision currently on appeal, which denied entitlement to VA benefits for prostate cancer and diabetes mellitus type II with edema, both to include as secondary to herbicide exposure. R. at 3-15. Specifically, the Board considered and rejected the Royal Australian Navy study as "too general in nature" and Dr. Grado's opinions as "conditional." R. at 12. II. PARTIES' ARGUMENTS On appeal, Mr. Procopio essentially posits three arguments. First, he argues that the Board hearing officer violated her duty to "explain fully the issues and suggest the submission of evidence which the claimant may have overlooked" under 38 C.F.R. § 3.103(c)(2) (2010) and Bryant v. Shinseki, 23 Vet.App. 488, 496 (2010). Second, he asserts that the Board provided inadequate reasons or bases for finding that Mr. Procopio was not exposed to herbicides via water distillation 2In VA parlance, the term "blue water" refers to those veterans who served on ships in the waters off the coast of Viet Nam, whereas the term "brown water" refers to those veterans who served on vessels in the muddy, inland waterways of Viet Nam. See generally Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). 3 aboard the U.S.S. Intrepid. Third, he argues that the Secretary violated the duty to assist by failing to request that the Joint Service Records Research Center verify his exposure to herbicides and failing to make reasonable efforts to discover the method of water distillation used by U.S. Navy ships. The Secretary disputes each of these arguments. First, he argues that the Board hearing officer adequately explained that exposure to herbicides was the issue on appeal and that Mr. Procopio had actual knowledge of the evidence necessary to substantiate his claim. Second, he contends that the Board adequately addressed the evidence of record, including the Royal Australian Navy study, in support of its finding that Mr. Procopio was not exposed to herbicides. Third, he argues that a Joint Service Records Research Center request is not required by the VA Benefits Adjudication Procedure Manual Rewrite (M21-1MR) in U.S. Navy ship cases and that there is no reasonable possibility of substantiating Mr. Procopio's claim through further investigation regarding water distillation. III. ANALYSIS A. Hearing Officer Duties Mr. Procopio argues that the Board member who conducted the September 2010 video conference hearing failed to comply with the duties outlined in 38 C.F.R. § 3.103(c)(2) because she "asked no pertinent questions," "failed to explain that the chief factual issue in the case was whether [he] had actually been exposed to herbicide agents while serving aboard the U.S.S. Intrepid off the coast of Vietnam," and did not "suggest to [him] that he submit evidence" demonstrating such exposure. Appellant's Brief (Br.) at 9 (italics added). The Secretary responds that, "[b]ecause [Mr. Procopio] has maintained throughout the course of his appeal that he was exposed to [Agent Orange] aboard the [U.S.S. Intrepid], it borders on absurd to presume that [he] was unaware of the need to submit evidence showing he had actually been exposed to herbicide agents in service." Secretary's Br. at 9-10. The Secretary also contends that "any failure by the hearing officer to explain the need for evidence of direct herbicide exposure was harmless because the record demonstrates that [Mr. Procopio] had actual knowledge of the evidence necessary to substantiate his claim." Id. at 10. In his reply brief, Mr. Procopio asserts that his hearing testimony confirms that he was not aware that 4 he needed to submit evidence, other than Dr. Grado's opinions and his own lay statements, "that he had been in direct bodily contact with a substance that could reasonably be identified as Agent Orange." Appellant's Reply Br. at 1. 1. Applicable Law & Regulatory History Section 3.103(c)(2) provides, in pertinent part: "It is the responsibility of the employee or employees conducting the hearings to explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant's position." 38 C.F.R. § 3.103(c)(2). As the Court explained in Bryant, this regulation imposes "two distinct duties" on hearing officers: (1) "a duty to fully explain the issues still outstanding that are relevant and material to substantiating the claim," and (2) a duty to "suggest that a claimant submit evidence on an issue material to substantiating the claim when the record is missing any evidence on that issue or when the testimony at the hearing raises an issue for which there is no evidence in the record." 3 23 Vet.App. at 492, 496. Of particular importance to this appeal, the Court held that those duties applied with equal force to VA employees conducting hearings at the agency of original jurisdiction and the Board. Id. at 497-500. The Secretary had an opportunity to appeal the Court's decision in Bryant to the U.S. Court of Appeals for the Federal Circuit, but elected not to do so. Rather, VA responded to that decision by publishing an August 2011 rule "amending its hearing regulations to clarify that the provisions regarding hearings before the Agency of Original Jurisdiction . . . do not apply to hearings before the Board of Veterans' Appeals. . . ." 76 Fed. Reg. 52,572, 52,572 (Aug. 23, 2011). VA explained that the Court's reliance in Bryant on Douglas v. Derwinski, 2 Vet.App. 435 (1992), which held that § 3.103(c) applied to Board hearings, was misplaced because that case was decided in the context of a different regulatory scheme. Id. at 52,573. Namely, pursuant to the regulations in effect at the time that Douglas was decided, "if an appellant chose to have a hearing before employees of the [agency of original jurisdiction] acting as a hearing agency for the Board, then he or she was not entitled to a subsequent hearing before a Board Member." Id. (citing 38 C.F.R. § 19.160 (1991)). 3The purpose of those duties is to "assure [the] clarity and completeness of the hearing record," a critical and sometimes marginalized component of a claimant's right to a fair and full adjudication before VA. 38 C.F.R. § 3.103(c)(2); see Bryant, 23 Vet.App. at 499. 5 Shortly after Douglas, VA "amended its hearing regulations to terminate the practice of [agency of original jurisdiction] personnel holding appellate hearings on the Board's behalf" because VA determined that "'a clear demarcation should exist between the conduct of hearings by the Board and hearings conducted by [Veterans Benefits Administration] employees at regional offices.'" Id.(quoting 58 Fed. Reg. 27,934, 27,934 (May 12, 1993)). According to VA, that 1993 amendment "reflected VA's intent to clearly distinguish hearings before [agencies of original jurisdiction] from hearings before the Board, including the duties of the respective VA personnel conducting the hearing," despite the fact that the final rule implementing that amendment did not mention § 3.103(c)(2). Id.; see also 58 Fed. Reg. at 27,934. Nevertheless, following that 1993 amendment, it became "standard VA practice and procedure" to apply § 3.103 only to hearings before the agency of original jurisdiction, and to apply 38 C.F.R. § 20.706 to hearings before the Board. 76 Fed. Reg. at 52,572. At that time, § 20.706 did not contain any explicit reference to the duties to fully explain the outstanding issues and to suggest the submission of overlooked evidence contained in § 3.103(c)(2). See 38 C.F.R. § 20.706 (1993) (requiring the presiding Board member, among other things, to "assure that the course of the hearing remains relevant to the issue, or issues, on appeal"). Following Bryant, VA amended § 3.103(c)(2) and § 20.706 to reflect its intent and practice with respect to hearings. VA explained that its amendment "merely clarifies current procedures for obtaining and conducting a hearing on a claim for VA benefits before the VA agency of original jurisdiction or the Board," "does not create new procedure," and represents "no substantive change." 76 Fed. Reg. at 52,573. Therefore, on August 23, 2011, VA promulgated the amended rule without notice and comment and it became effective that same day. See 5 U.S.C. § 553(b)(A) (exception to the notice-and-comment rulemaking requirements for "interpretive rules, general statements of policy, or rules of agency organization, procedure, or practice"); 76 Fed. Reg. at 52,572. However, in April 2012, VA rescinded the August 2011 amendment because it determined that it should have been promulgated through the notice-and-comment procedure outlined in 5 U.S.C. §§ 553(b)-(c). 77 Fed. Reg. 23,128 (Apr. 18, 2012). VA explained that notice-and-comment rule making was required because the amendment "altered the language [of § 3.103(c)(2)] upon which the Bryant Court relied." Id. According to VA, this April 2012 rule was meant "to 6 return the regulations to the language in effect before August 23, 2011." Id. The rescission of that amendment became effective June 18, 2012. 77 Fed. Reg. at 23, 128. In light of these regulatory changes post-Bryant, both parties were ordered to file supplemental memoranda of law on which version of § 3.103(c)(2) is applicable to this case. Both parties asserted that the version of § 3.103(c)(2), as applied in Bryant, is for application here. See Secretary's Memorandum of Law (Mem.) at 2 ("As the Board hearing in this case took place in 2010, well before 38 C.F.R. § 3.103(c)(2) was amended in [August] 2011, the Secretary asserts that 38 C.F.R § 3.103(c)(2)[, as applied in Bryant,] is applicable to the Board hearing in this case."); Appellant's Mem. at 8-10 (noting that the August 2011 amended rule "does not apply to the March 16, 2011, Board decision on appeal," and that [§] 3.103(c)(2) as discussed in Bryant is for application"). The Court agrees. See Abington Memorial Hosp. v. Heckler, 750 F.2d 242, 244 (3d Cir. 1984) ("[V]acating or rescinding invalidly promulgated regulations has the effect of reinstating prior regulations." (citing Action on Smoking & Health v. Civil Aeronautics Board, 713 F.2d 795, 797 (D.C. Cir. 1983))); see Paulsen v. Daniels, 413 F.3d 999, 1008 (9th Cir. 2005) ("The effect of invalidating an agency rule is to reinstate the rule previously in force."); see also Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988) ("[A]dministrative rules will not be construed to have retroactive effect unless their language requires this result."); Ervin v. Shinseki, 24 Vet.App. 318, 322 (2011) ("If [the Secretary] did expressly speak to the temporal reach of the regulation, then the Court should apply the regulation as indicated by the language of the regulation."). Accordingly, the Court concludes that the Board member conducting Mr. Procopio's September 2010 video conference hearing was obligated to fully explain the outstanding issues in Mr. Procopio's appeal and suggest the submission of evidence that he might have overlooked. See Bryant, 23 Vet.App. at 492. 2. Application of § 3.103(c)(2) to Mr. Procopio's Appeal It is undisputed that Mr. Procopio's claims were denied by the regional office because of a lack of competent evidence of (1) in-service exposure to herbicides and (2) a nexus between any such exposure and his current disabilities. R. at 266-78, 288-309, 354-60. Therefore, pursuant to § 3.103(c)(2), the Board member was obligated to explain those issues to Mr. Procopio and to 7 suggest the submission of evidence relevant to those issues that he might have overlooked. See Bryant, 23 Vet.App. at 496-97. However, the Board member failed to do so. Specifically, after administering an oath to Mr. Procopio and announcing that the record would be held open for 60 days to allow him to submit additional evidence, the Board member turned the hearing over to Mr. Procopio's representative and did not ask any questions or otherwise comment on his appeal. In fact, after the veterans service organization representative finished eliciting testimony from Mr. Procopio, the Board member stated that she had no questions for Mr. Procopio and that she understood his contentions. R. at 49. She then thanked them both and concluded the hearing. R. at 49-50. Despite the Board member's minimal participation in the hearing, the Secretary asserts that the Board member complied with her duty to fully explain the outstanding issues in Mr. Procopio's claims because she stated at the outset of the hearing that the issues on appeal were entitlement to benefits for prostate cancer and diabetes mellitus, to include as a result of exposure to herbicides. R. at 42. However, the Court in Bryant held that a similarly generic statement of the scope of the claims was insufficient to satisfy § 3.103(c)(2). 23 Vet.App. at 497 (holding that the Board member's statement that the issues on appeal included entitlement to benefits for bilateral hearing loss, tinnitus, squamous cell carcinoma, and frostbite of both feet did not satisfy § 3.103(c)(2) because the Board member did not inform the appellant that the outstanding elements necessary to substantiate those claims were proof of current disabilities and medical nexuses). Accordingly, because the Board member in the instant case did not explain that Mr. Procopio's claims could only be substantiated by submitting evidence of in-service exposure to herbicides and a nexus between that exposure and his current disabilities (the missing elements in his claims), the Court concludes that the Board member failed to discharge her duty to fully explain the outstanding issues under § 3.103(c)(2). 23 Vet.App. at 496 ("[W]hen the [regional office] has denied a disability claim because there is no current disability, no nexus to service, or no incident in service, etc., then . . . the Board hearing officer's explanation and discussion should be centered on these issues."). Next, with respect to the Board member's duty to suggest the submission of evidence that Mr. Procopio might have overlooked, the Secretary argues that any failure in that regard was harmless because "the record demonstrates that [Mr. Procopio] had actual knowledge of the evidence necessary to substantiate his claim." Secretary's Br. at 10 (citing Mayfield v. Nicholson, 8 19 Vet.App. 103, 121 (2005) (holding that no prejudice exists where a claimant had actual knowledge of the evidence necessary to substantiate his claim), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006)). In support of this argument, the Secretary notes that Mr. Procopio has consistently asserted and submitted evidence that he was exposed to herbicides aboard the U.S.S. Intrepid, his veterans service organization representative asked him during the hearing whether he was "exposed chemically" to herbicides in service (R. at 47), and the October 2009 Statement of the Case explained that "both the [Royal Australian Navy] study and Dr. Grado's medical opinion . . . were not in themselves sufficient to prove that he had actually been exposed to herbicide agents in service" (Secretary's Br. at 11). This argument, however, is misplaced for several reasons. First, the Secretary is conflating the duty to fully explain the outstanding issues with the duty to suggest the submission of overlooked evidence. Even assuming that the foregoing evidence demonstrates that Mr. Procopio was aware that he needed to submit evidence of in-service exposure to herbicides and a nexus between that exposure and his current disabilities, his testimony clearly reflects that he was unaware of what type of evidence was necessary to prove those elements. Specifically, Mr. Procopio's representative at the hearing requested that the record before the agency be held open for 60 days to allow Mr. Procopio to submit another nexus opinion from Dr. Grado that was based on a review of his service records because VA had determined that Dr. Grado's previous opinions based on his statements were inadequate to demonstrate a nexus. R. at 43-44. At that point, the Board member should have interjected, explaining that a nexus opinion alone would be insufficient to substantiate his claims without evidence of in-service exposure to herbicides, which generally cannot be provided by a private doctor decades after the alleged exposure. Further, the Board member should have recognized that, if Mr. Procopio is able to establish in-service exposure, he would be entitled to presumptive service connection for prostate cancer and diabetes mellitus type II under 38 C.F.R. § 3.309(e), alleviating the need for a nexus opinion. Yet, the Board member did not alert Mr. Procopio that he was overlooking evidence of inservice exposure to herbicides. Instead, the Board member violated § 3.103(c)(2) by allowing Mr. Procopio to proceed under the assumption that submitting a nexus opinion alone would be sufficient to substantiate his claims–even though the hearing testimony indicated otherwise–and by failing to suggest evidence that he could submit to demonstrate exposure. See Bryant, 23 Vet.App. at 496 9 (explaining that a hearing officer "must not only be familiar with the claims file but also be engaged in the hearing process"); 38 C.F.R. § 3.103(c)(2) (stating that the purpose of the regulation is to "assure [the] clarity and completeness of the hearing record"). This is not to say that the Board member was required to preadjudicate Mr. Procopio's claim. As the Court explained in Bryant, "[p]readjudication or the weighing of conflicting evidence . . . is not required for a hearing officer to determine that evidence is not in the record with regard to a particular, material element of the claim." 23 Vet.App. at 493. Here, the regional office explicitly stated in its October 2009 Statement of the Case that there is "no record of [Mr. Procopio's] purported exposure to herbicides in service." R. at 309. A Statement of the Case is a document that "a hearing officer should have encountered in his review of the record, [that] will likely assist . . . in identifying the outstanding issues. Bryant, 23 Vet.App. at 496, n. 3. As such, the Board member did not need to weigh the evidence of record to determine that a letter regarding nexus alone would not substantiate Mr. Procopio's claim. Thus, the Board member should have informed Mr. Procopio that the issue of in-service exposure to herbicides was being overlooked, and the Board member's failure to do so thus constitutes error. See id. at 493-94 (explaining that a Board member "cannot ignore a lack of evidence in the record on a material issue and not suggest its submission, unless the record (or the claimant at [the] hearing) clearly shows that such evidence is not available"). Second, the Secretary's argument that the issuance of a pre-hearing Statement of the Case cures a Board member's failure to suggest the submission of overlooked evidence essentially eviscerates the duty required by § 3.103(c)(2). If the Secretary's argument were correct, then every claimant would have actual knowledge of the evidence necessary to substantiate a claim at the time of a Board hearing because Statements of the Case precede Substantive Appeals to the Board, see 38 U.S.C. § 7105, and the Board member, therefore, would never be obligated to perform that duty. Cf. Cuevas v. Principi, 3 Vet.App. 542, 548 (1992) (holding that a pre-hearing notice letter identifying the evidence necessary to substantiate a claim was not sufficient to satisfy § 3.103(c)(2)). Consequently, the Court must reject the Secretary's proposed prejudicial error analysis because it renders a portion of § 3.103(c)(2) a legal nullity. See, e.g., Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (rejecting the Secretary's proffered interpretation because it "would render portions of the statutes and regulations [governing claims for VA benefits] meaningless"). 10 Based on the foregoing, the Court concludes that the Board member conducting the September 2010 video conference hearing did not comply with her duties to apprise Mr. Procopio of the elements of his claims that still needed to be proven and to suggest the submission of evidence thereof that he might have overlooked. See Bryant, 23 Vet.App. at 496-97. As explained above, the Board member made no efforts to explain to Mr. Procopio that he needed to submit evidence regarding his in-service exposure to herbicides, despite testimony indicating that he was unaware that this element of his claims remained outstanding and that he was confused about what evidence was necessary to substantiate his claims. See id. at 499 (explaining that "prejudice arises from the failure of the hearing officer to assure the 'clarity and completeness of the hearing record,' and the lost additional opportunity to try and submit such evidence before [the] claim [is] finally adjudicated"(quoting 38 C.F.R. § 3.103(c)(2))) (internal citations omitted). Therefore, vacatur and remand is warranted. See Tucker v. West, 11 Vet.App. 369, 374 (1998). B. Other Arguments Although the Court has already determined that remand is necessary, the Court will nevertheless address Mr. Procopio's remaining arguments. See Quirin v. Shinseki, 22 Vet.App. 390, 396 (2009) (holding that the Court may address an appellant's other arguments after determining that remand is warranted to provide guidance to the Board). 1. Reasons or Bases Mr. Procopio contends that the Board provided an inadequate statement of reasons or bases for its determination that he was not exposed to herbicides in service. Specifically, Mr. Procopio points to a particular passage in the Board decision discussing "a similar Australian study" that VA previously reviewed and determined was insufficient to support an extension of the presumption of exposure to herbicides to similarly situated veterans, and asserts that "the Board's error was essentially [adjudicating] whether the evidence presented by [Mr. Procopio] was sufficient to warrant presumptive service connection for all veterans in his circumstances, rather than direct service connection based on the unique facts of his claim." Appellant's Br. at 12 (emphasis in original). This argument is not supported by the record. 11 Although Mr. Procopio is correct that the cited passage pertains to presumptive service connection, he ignores the fact that the Board separately considered whether the Royal Australian Navy study that he submitted was sufficient to demonstrate exposure to herbicides in service for the purposes of establishing direct service connection and determined that it was not. To that end, the Board recited the law with respect to the probity of medical treatise evidence and noted that "[t]he article in the current case does not provide statements for the facts of [Mr. Procopio]'s specific case"–namely, it did "not show to any degree of specificity that [he] was exposed to Agent Orange while drinking water on the [U.S.S. Intrepid]." R. at 12. Consequently, the Board concluded that the Royal Australian Navy study was "too general in nature to provide, alone, the necessary evidence to show that [Mr. Procopio] was exposed to Agent Orange while onboard [that ship]." Id.; see also Haas v. Peake, 525 F.3d 1168, 1194 (2008) (noting VA scientists' and experts' problems with the Royal Australian Navy study, as enumerated in 73 Fed. Reg. 20,566, 20,568 (Apr. 16, 2008)). Because the foregoing discussion was sufficient to enable Mr. Procopio to understand the precise basis for the Board's decision and to facilitate review in this Court, the Court concludes that the Board's statement of reasons or bases was not inadequate in that regard. See Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). 2. Duty To Assist Mr. Procopio also argues that the Board's determination that VA satisfied its duty to assist him in substantiating his claims was clearly erroneous because VA (1) "failed to comply with its own procedures for investigating claimed exposure to herbicides in service outside of the landmass of Vietnam," and (2) made "no effort . . . to confirm whether the water distillation method described 12 in the [Royal] Australian Navy stud[y] was used aboard the U.S.S. Intrepid."4 Appellant's Br. at 15, 19 (italics added). With respect to Mr. Procopio's first contention, the M21-1MR directs the regional office, "[i]n all cases where a [v]eteran claims that he/she served on a ship that stored or transported herbicides," to place in the veteran's claims file a copy of the memorandum prepared by the Joint Service Records Research Center stating that it "has no evidence to support [an allegation] of herbicide exposure based solely on shipboard service." M21-1MR, pt. IV, subpt. II, ch. 2, § C-10(l). Although the Secretary concedes that this memorandum was not placed in Mr. Procopio's claims file, Mr. Procopio fails to demonstrate prejudice. See Shinseki v. Sanders, 556 U.S. 396, 410 (2009) (appellant bears burden of demonstrating prejudice on appeal). The memorandum is intended to serve as a "substitute for individual inquiries to the [VA Compensation and Pension] Service's Agent Orange mailbox and to the [Joint Service Records Research Center]" because the Joint Service Records Research Center "has found no evidence that indicates Navy . . . ships transported tactical herbicides from the United States to the Republic of Vietnam or that ships operating off the coast of Vietnam used, stored, tested, or transported tactical herbicides," "cannot document or verify that a shipboard Veteran was exposed to tactical herbicides based on contact with aircraft that flew over Vietnam or equipment that was used in Vietnam," and "can provide no evidence to support a Veteran's claim of exposure to tactical herbicide agents while serving aboard a Navy . . . ship during the Vietnam era." M21-1MR, pt. IV, subpt. II, ch. 2, §§ C-10(l), (m). Consequently, any remand to the Board to place that memorandum in Mr. Procopio's claims file or for a Joint Service Records Research Center request would be futile because it has already been determined that no such records exist. See Soyini v. Derwinski, 1 Vet.App. 540, 546 4The Court notes that Mr. Procopio does not argue that the Board had a duty to seek clarification of Dr. Grado's October 2010 letter. See Savage v. Shinseki, 24 Vet.App. 259, 270 (2011) (holding that VA has a duty to clarify ambiguous private medical opinions in limited circumstances, where "the missing information is relevant, factual, and objective"); Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 300 (2008) (explaining that the Court's prior case law "establish[es] that the content of information and evidence received by VA may require an appropriate response, consistent with the duty to assist"); Daves v. Nicholson, 21 Vet.App. 46, 51-52 (2007) ("Where . . . the medical examiner specifically states that a medical opinion cannot be provided without information not currently available, the Secretary's duty to assist requires that the Secretary determine whether that information may be reasonably obtained, and if so, to make efforts to obtain it. . . ."). Therefore, the Court deems any such argument abandoned. See Grivois v. Brown, 6 Vet.App. 136, 138 (1994) (holding that issues or claims not argued on appeal are considered abandoned). 13 (1991) (holding that the Court need not order a remand based on a technical error of law where a remand would unnecessarily impose additional burdens on the Board with no benefit flowing to the veteran). Therefore, the Court concludes that Mr. Procopio has failed to carry his burden of demonstrating that VA committed prejudicial error in failing to include that memorandum in his claims file. See 38 U.S.C. § 7261(b)(2) (requiring the Court to "take due account of the rule of prejudicial error"); Sanders, supra; Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004). With respect to his second contention, Mr. Procopio acknowledges that VA previously had made an inquiry and was "unable to obtain official confirmation . . . from the Department of Defense" that any U.S. Navy ships used that process, 73 Fed. Reg. 20,363, 20,364 (Apr. 15, 2008), but nevertheless argues that he "fails to see why the U.S. Navy, pursuant to a clear request based on the facts of this particular case, would be unable to determine whether the U.S.S. Intrepid utilized [that] type of water distillation. . . ." Appellant's Reply Br. at 5 (italics added). Although this may be true, he fails to identify–and the record does not reflect–where in the record he requested that VA obtain information as to whether the U.S.S. Intrepid used the evaporative distillation process described in the Royal Australian Navy study. He also fails to demonstrate why, given the response to VA's generic request regarding use of that process by U.S. Navy ships, VA should have submitted an additional, more tailored, request for information, specific to the U.S.S. Intrepid. See Robinson v. Peake, 21 Vet.App. 545, 552 (2008) (Board must address all issues raised by the claimant or reasonably by the record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); see also 38 U.S.C. § 5103A(b)(1) ("[T]he Secretary shall make reasonable efforts to obtain relevant records (including private records) that the claimant adequately identifies to the Secretary . . . ."(emphasis added)); Hilkert v. West, 12 Vet.App. 149, 151 (1999) (en banc) aff'd per curiam, 232 F.3d 908 (Fed. Cir. 2000) (table). Of course, in light of the need to remand this matter, Mr. Procopio may pursue this matter on remand. See Kay v. Principi, 16 Vet.App. 529, 534 (2002) (noting that, on remand, claimants may present, and the Board must consider, any additional evidence and argument in support of remanded matters). On remand, Mr. Procopio is free to submit additional evidence, including the types of alternative evidence of herbicide exposure identified in his reply brief, and argument in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). See Kay, supra. 14 "A remand is meant to entail a critical examination of the justification for the decision" by the Board.Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991). In addition, the Board shall proceed expeditiously, in accordance with 38 U.S.C. § 7112 (expedited treatment of remanded claims). IV. CONCLUSION Upon consideration of the foregoing, the March 16, 2011, Board decision is VACATED and the matter is REMANDED for readjudication consistent with this decision. 15

Single Judge Application, De Perez v. Derwinski, 2 Vet.App. 85, 86 (1992); Liberally Construe Pro Se Submisions; Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011)

Excerpt from decision below "Thus, the Court concludes that Mr. Rayford's informal brief sufficiently demonstrates an intent to appeal those denied claims and will consider the foregoing arguments. See De Perez v. Derwinski, 2 Vet.App. 85, 86 (1992) (liberally construing the pro se appellant's informal brief to include arguments regarding, inter alia, the Board's failure to apply potentially applicable statutes and regulations); see also Calma v. Brown, 9 Vet.App. 11,15(1996)(providing examples of instances in which the Court has liberally construed documents submitted by pro se appellants)." ========================== "Rather than examining whether Mr. Rayford's lay statements were competent evidence of a diagnosis of a current right leg or right knee disorder and of a nexus between his claimed disorders and service,the Board engaged in the very analysis prohibited by Davidson and Jandreau, summarily rejecting his statements as incompetent based on his status as a layperson. R. at 9, 12; see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011) (concluding that "the Board's categorical rejection and failure to analyze and weigh . . . lay evidence in accordance with established precedent renders its 6 statement of reasons or bases inadequate"). Thus, the Court concludes that the Board erred in considering and weighing Mr. Rayford's lay statements. This error was prejudicial to his claims for service connection for right leg, right knee, and right shoulder disorders because the Board did not find that there was any other, independent reason to discount or reject Mr. Rayford's lay statements.2 See 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, 409 (2009) (explaining that "the burden of showing that an error is harmful normally falls upon the party attacking the agency's determination")." ======================== ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 11-3324 LESTER RAYFORD, JR., APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before BARTLEY, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. BARTLEY, Judge: Veteran Lester Rayford, Jr., who is self-represented, appeals an October 17, 2011, decision of the Board of Veterans' Appeals (Board) denying entitlement to service connection for right leg, right knee, and right shoulder disorders.1 Record (R.) at 3-16. 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 in this case as the issues are of "relative simplicity" and "the outcome is not reasonably debatable." Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons that follow, the Court will vacate the October 17, 2011, Board decision and remand the matter for readjudication consistent with this decision. The Board also remanded the issues of entitlement to service connection for a left hip disorder and a compensable evaluation for tinea pedis of the right foot. Because those issues are not the subject of a final Board decision, the Court will not consider them at this time. See Breeden v. Principi, 17 Vet.App. 475, 478 (2004); see also Part II.A, infra. 1 I. FACTS Mr. Rayford served on active duty in the U.S. Army from April 1970 to November 1971, including service in Vietnam. R. at 387. His service medical records reflect complaints of right shoulder tenderness and a self-reported history of foot trouble. R. at 277, 288. In January 2002, a VA regional office (RO) awarded Mr. Rayford service connection for tinea pedis of the right foot and assigned a noncompensable evaluation. R. at 158-63. He filed a timelyNotice of Disagreement with that decision. R. at 157. In August 2004, prior to perfectingthat appeal, Mr. Rayford filed a claim for service connection for hip, right leg, and right shoulder disorders. R. at 139. Two months later, he submitted a statement to VA asserting that he had injured his right knee and right shoulder in Vietnam when jumping out of a helicopter, which the RO construed as a claim for service connection for a right knee disorder. R. at 131. After further development, the RO issued a rating decision in June 2005 denying entitlement to service connection for hip, right leg, right knee, and right shoulder disorders and continuing his noncompensable evaluation for tinea pedis of the right foot. R. at 106-09. Mr. Rayford disagreed with that decision and subsequently perfected his appeal to the Board. R. at 75-77, 100-03. In June 2009, he attended a VA skin examination and was diagnosed with erosio blastomyces interdigitalis. R. at 57-58. However, "[n]o tinea pedis" was present at that time. R. at 58. InOctober2011,theBoardissuedthedecision currentlyon appeal, which denied entitlement to service connection for right leg, right knee, and right shoulder disorders and remanded the issues of entitlement to service connection for a left hip disorder and a compensable evaluation for tinea pedis of the right foot. R. at 3-16. This appeal followed. II. ANALYSIS A. Left Hip Disorder and Tinea Pedis of the Right Foot As an initial matter, the Court notes that Mr. Rayford submitted an informal brief that, in response to question two of the informal brief form, indicated that he wished to appeal the Board's determinations regarding his entitlement to service connection for a left hip disorder and a compensable evaluation for tinea pedis of the right foot. See Appellant's Brief (Br.) at 1 (Question: "If there is more than one issue on the front page of the Board . . . decision, which one(s) are you 2 appealing?" Answer: "Tinea pedis of the right foot. Left hip disorder."). However, the Board, in its October 2011 decision, remanded those issues to the RO. R. at 13-16. The Court may review only final decisions of the Board. See 38 U.S.C. § 7266(a); Jarrell v. Nicholson, 20 Vet.App. 326, 331 (2006) (en banc). A Board remand does not constitute a final decision of the Board appealable to the Court. See Howard v. Gober, 220 F. 3d 1341, 1344 (Fed. Cir. 2000); Breeden, 17 Vet.App. at 478; 38 C.F.R. § 20.1100(b) (2012). Thus, the Court lacks jurisdiction to consider Mr. Rayford's arguments with respect to the remanded issues of entitlement to service connection for a left hip disorder and a compensable evaluation for tinea pedis of the right foot. See Appellant's Br. at 1 (arguing that the Board failed to consider that he underwent a left hip replacement in January 2011 and did not obtain medical records from a December 2011 foot examination). Mr. Rayford of course remains free to present any arguments regarding VA's development of those claims to the RO on remand. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). B. Right Leg, Right Knee, and Right Shoulder Disorders Mr. Rayford's responses to questions five, six, and seven on the informal brief form include assertions of error that would applyto the right leg, right knee, and right shoulder disorders that were denied by the Board. He argued that the Board failed to consider that he engaged in combat as an infantryman, sustained numerous unreported injuries in service, and cannot work because of his conditions. See Appellant's Br. at 2. Consistent with VA's duty to sympathetically read the pleadings of self-represented appellants, see Szemraj v. Principi, 357 F. 3d 1370, 1371 (Fed. Cir. 2004); Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001), the Secretary, in an alternative argument, addressed the merits of the right leg, right knee, and right shoulder disorder claims, arguing for affirmance of the Board decision on those claims. Thus, the Court concludes that Mr. Rayford's informal brief sufficiently demonstrates an intent to appeal those denied claims and will consider the foregoing arguments. See De PerezNext Document v. Derwinski, 2 Vet.App. 85, 86 (1992) (liberally construingthe pro se appellant's informal brief to includearguments regarding, inter alia, the Board's failureto applypotentiallyapplicablestatutes and regulations); see also Calma v. Brown, 9 Vet.App. 11,15(1996)(providingexamples ofinstances inwhichtheCourt hasliberallyconstrueddocuments submitted by pro se appellants). 3 Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a nexus between the claimed in-service injury or disease and the current disability. See 38 U.S.C. § 1110; Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); 38 C.F.R. § 3.303 (2012). The Board's determination regarding entitlement to service connection is a finding of fact that the Court reviews under the "clearly erroneous" standard of review. 38 U.S.C. § 7261(a)(4); see Russo v. Brown, 9 Vet.App. 46, 50 (1996). "A factual finding 'is "clearly erroneous" when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992) ( quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). In rendering its decision, the Board is required to provide a written statement of the reasons or bases for its "findings and conclusions[ ] on all material issues of fact and law presented on the record." 38 U.S.C. § 7104(d)(1). The statement must be adequate to enable a claimant to understand the precise basis for the Board's decision and to facilitate review in this Court. See Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). Mr. Rayford's arguments that the Board failed to consider that he engaged in combat and sustained numerous unreported injuries in service both pertain to the second element of service connection–i.e., whether he incurred or aggravated an injury or disease in service. See 38 U.S.C. § 1154(b) (requiring VA, in the case of a veteran who engaged in combat, to accept as sufficient proof of an in-service occurrence or aggravation of an injury or disease " satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service"). To the extent that this argument is directed at the Board's denial of his claim for service connection for a right shoulder disorder, the Board found that the record contained evidence of an in-service right shoulder injury sufficient to satisfythat element of service connection. R. at 11 ("The Veteran's service treatment records reflect complaints of and treatment for right shoulder pain during service. Thus, there is evidence of a right shoulder disability during active duty service."). Once the Board made that finding, it was not required to further discuss whether section 1154(b) applied to Mr. Rayford's right shoulder claim or 4 whetherhe suffered anyunreported right shoulder injuriesin servicebecauseneither argument could result in substantiating the other elementsof serviceconnection (medical diagnosis and linkage) that the Board found lacking in this case. See Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996) ("Section 1154(b) does not create a statutory presumption that a combat veteran's alleged disease or injury is service-connected."). Thus, the Court concludes that the Board did not err in failing to discuss those arguments with respect to Mr. Rayford's claim for service connection for a right shoulder disorder. The Board, however, found that there was no evidence of right leg or right knee injuries or diseases in service. Therefore, to the extent that Mr. Rayford presented evidence that he engaged in combat and thatevidencewas"consistent with the circumstances,conditions, or hardships of such service,"theBoardwas required to accept his statements of unreported right lowerextremityinjuries in service as competent evidence sufficient to satisfy the second element of service connection. 38 U.S.C. § 1154(b); see Maxson v. Gober, 230 F.3d 1330, 1332-33 (Fed. Cir. 2000) (outlining the three-part test for applying section 1154(b)). Mr. Rayford not only raised to the Board the issue of his entitlement to the benefit of section 1154(b), but the record also contains evidence reflecting combat service. See R. at 77 (Substantive Appeal stating that he was a " combat soldier" and asserting that he injured his lower extremities jumping out of helicopters ), 387 (Form DD-214 indicating that Mr. Rayford was awarded the Combat Infantryman Badge (CIB )); VA Adjudication Procedures Manual 21-1MR, pt. III, subpt. IV, ch. 4, § H.29.c. (listing receipt of the CIB as evidence of personal participation in combat); see also Army Regulation 600-8-22 § II, 8-6 (explaining that, to receive the CIB, a soldier must, inter alia, be "[a]ssigned to an infantry unit during such time as the unit is engaged in active ground combat" and "[a]ctively participate in such ground combat"). The Board was therefore required to consider and discuss whether the favorable combat veteran rule applied to his claims for service connection for right leg and right knee disorders and its failure to do so constitutes error. See 38 U.S.C. § 7104(a) ( requiring the Board to consider and discuss all evidence of record and all "applicable" provisions of law and regulation); Robinson v. Peake, 21 Vet.App. 545, 553 (2008) (holding that the Board errs when it fails to consider issues or theories raised either by the appellant or by the evidence of record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). Thus, the Court concludes that vacatur and remand are 5 warranted for those claims. See Tucker v. West, 11 Vet.App. 369, 374 ( 1998) ("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, a remand is the appropriate remedy."). The Board also erred in analyzing Mr. Rayford's laystatements that he currentlysuffers from right leg and right knee disorders and that those disorders, as well as his currently diagnosed right shoulder strain, are related to service. Although the Board acknowledged that Mr. Rayford had presented lay evidence on each of those matters, the Board rejected that evidence as incompetent because Mr. Rayford is a layperson. R. at 9, 12. Specifically, the Board stated that "[m]edical diagnosis and causation involve questions that are beyond the range of common experience and common knowledge and require the special knowledge and experience of a trained physician" and found that Mr. Rayford was not competent to diagnose a medical condition or provide a nexus opinion because "he is not a physician." R. at 9, 12 (citing Grottveit v. Brown, 5 Vet.App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992)). The Board, however, is not permitted to categorically reject evidence of a diagnosis or nexus as incompetent solelybecause it comes from a layperson. To the contrary, the U.S. Court of Appeals for the Federal Circuit has repeatedly held that, in certain circumstances, lay evidence alone is sufficient to establish the first and third elements of service connection. See Davidson, 581 F.3d at 1316 (holding that this Court erred in categorically stating that a valid medical opinion was required to establish nexus and in rejecting the appellant's nexus evidence because she was a layperson); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (expressly rejecting this Court's holding that competent medical evidence is required when the determinative issue involves either medical etiologyor a medical diagnosis and outlining the instances when lay evidence is competent and sufficient to establish a diagnosis of a condition). Rather than examining whether Mr. Rayford's lay statements were competent evidence of a diagnosis of a current right leg or right knee disorder and of a nexus between his claimed disorders and service,the Board engaged in the very analysis prohibited by Davidson and Jandreau, summarily rejecting his statements as incompetent based on his status as a layperson. R. at 9, 12; see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011) (concluding that "the Board's categorical rejection and failure to analyze and weigh . . . lay evidence in accordance with established precedent renders its 6 statement of reasons or bases inadequate"). Thus, the Court concludes that the Board erred in considering and weighing Mr. Rayford's lay statements. This error was prejudicial to his claims for service connection for right leg, right knee, and right shoulder disorders because the Board did not find that there was anyother, independent reason to discount or reject Mr. Rayford's laystatements.2 See 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, 409 (2009) (explaining that " the burden of showing that an error is harmful normally falls upon the party attacking the agency's determination"). Vacatur and remand of his claims for service connection for right leg, right knee, and right shoulder disorders are therefore warranted. See Davidson and Jandreau, both supra; see also Tucker, 11 Vet.App. at 374. Accordingly, the Court need not address Mr. Rayford's argument that the Board failed to consider that he cannot work because of his right leg, right knee, and right shoulder disorders because that argument cannot result in a remedy more favorable than vacatur and remand. 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, should the Board rule against him."). Of course, Mr. Rayford remains free to present that argument, as well as any additional arguments and evidence, to the Board on remand in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). See Kay, 16 Vet.App. at 534. The Court reminds the Board that "[a] remand is meant to entail a critical examination of the justification for [the Board's] decision," Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991), and must be performed in an expeditious manner in accordance with 38 U.S.C. § 7112. The Court notes that the Board also found that Mr. Rayford's lay statements of continuous right leg and right knee symptoms since service were not credible. R. at 9. However, the Board limited that credibility finding only to those statements, implicitly finding that the remainder of the cited lay evidence was credible (including other lay statements of a nexus between his current right lower extremity symptoms and service). R. at 9, 12. 2 7 III. CONCLUSION Upon consideration of the foregoing, the October 17, 2011, Board decision is VACATED and the matter is REMANDED for readjudication consistent with this decision. DATED: September 28, 2012 Copies to: Lester Rayford, Jr. VA General Counsel (027) 8