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