Single Judge Application, Case Similar to Shade v. Shinseki, 24 Vet.App.(2010)

Excerpt from decision below: "If the Board construes "raises a reasonable possibility of substantiating the claim" as a requirement that the appellant submit his own medical nexus evidence to reopen his claim, even though he has provided new and material evidence concerning any other missing element, it would force the veteran to provide medical nexus evidence to reopen his claim so that he could be provided with a medical nexus examination by VA. Id. at 119-21 (emphasis supplied) (citations omitted). This case presents a situation similar to the facts of Shade itself. See id. at 119-22. As in Shade, the RO originally denied the appellant's claim for failing to establish two of three necessary elements. See id. at 111; R. at 263. Thereafter, as in Shade, the appellant proffered new, competent evidence to establish the element of a current PTSD diagnosis – a positive PTSD screen – which was one of the reasons the claim was originally denied. R. at 205, 263. Such evidence, as explained in Shade, 24 Vet.App. at 121, suffices to reopen the appellant's PTSD claim because it relates to and serves to substantiate the claim's unestablished present diagnosis element. See Cohen, 10 Vet.App. at 138; see also 38 C.F.R. § 3.156(a). By effectively proceeding directly to the merits of the appellant's claim, the Board not only fails to correctly apply the mandate of section 3.156(a), but it also deprives the appellant the opportunity to further develop evidence of the unestablished in-service stressor element. Cf. Shade, 24 Vet.App. at 120 (reasoning that if a claimant is required to submit his own medical nexus evidence to substantiate an unestablished element of the claim, "it would force the veteran to provide medical nexus evidence to reopen his claim so that he could be 6 provided with a medical nexus examination by VA"). The Secretary cites to no caselaw for the proposition that the Board's erroneous analysis of the materiality of the positive PTSD screening is nonprejudicial because the appellant purportedly failed to proffer sufficient material evidence to advance a separate element of his PTSD claim. What is more, the Secretary failed to acknowledge or notify the Court of the intervening authority in Ervin v. Shinseki, 24 Vet.App. 318, 324 (2011)(applying to pending cases an amendment that permitted establishment of an in-service stressor via a veteran's lay testimony that the stressor is related to "fear of hostile military or terrorist activity"), and its impact on the disposition of the new-and-material- evidence issue in this case. Irrespective of Ervin, the appellant has proffered sufficiently new and material evidence to reopen his PTSD claim and obtain the full benefit of VA's duty to assist. See Shade, 24 Vet.App. at 119-21. Accordingly, the Court will reverse the Board's finding on this issue and remand the matter to permit further development and evaluation of the merits in accordance with Ervin." ========================================================== ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 10-0096 JOHN W. WILLIAMS, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before SCHOELEN, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. SCHOELEN, Judge: The appellant, veteran John W. Williams, appeals through counsel a September 29, 2009, Board of Veterans' Appeals (Board) decision that denied his claim for entitlement to service connection for vision disorder, right ear hearing loss, pinched nerves, gout, and a disorder manifested by constipation. Record of Proceedings (R.) at 3- 19. The Board decision also rejected the appellant's claim for entitlement to service connection for post-traumatic stress disorder (PTSD) based on new and material evidence. R. at 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. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, the Court will affirm in part, reverse in part, and vacate in part the Board's decision and remand the matter for further adjudication. I. BACKGROUND The appellant served on active duty in the U.S. Army from February 1969 to October 1970, with service in Vietnam. R. at 529. In 1996, the appellant filed a claim for entitlement to service connection for a back injury. R. at 429-32. As evidence, the appellant submitted private medical records documenting treatment he received for various back ailments in 1990 and 1991. R. at 448, 455, 481. The VA regional office (RO) denied the appellant's claim because "th[e] condition neither occurred in nor was caused by service." R. at 418. The RO explained that the appellant's service medical records did not indicate complaints of back problems or treatment for a back injury. Id. Instead, the relevant treatment reports, accordingto the RO, suggested that the appellant first injured his back when he slipped and fell on ice in January 1989. Id.; see also R. at 448. The RO's decision became final after the appellant failed to appeal the RO's September 1997 Statement of the Case (SOC). R. at 379-85. In May 2000, the appellant was hospitalized with complaints of nightmares, auditory and visual hallucinations, depression, and sleep disturbances. R. at 339-42, 351-65. The appellant reported having suicidal and homicidal ideation less than two weeks prior. Id. The appellant also stated that he was previously diagnosed with PTSD. R. at 345; see also R. at 350. The appellant was referred to a psychiatrist for further evaluation. R. at 365. Several times during his May 2000 hospital stay, the appellant reported other ailments to his examiners. The appellant reported bowel problems and sometimes bleeding from his rectum. R. at 364. The appellant also stated that the sun hurt his eyes and that he saw color spots. R. at 354, 365. One physician speculated that the appellant's color spots may be considered a visual hallucination. R. at 365. In June 2000, the appellant filed a claim seeking service connection for his PTSD. R. at 372- 76. The appellant submitted a letter from an acquiantance who described his behavior upon returning from Vietnam, his "hyper and paranoid" attitude, and sleeping problems. R. at 330-31. The appellant also submitted a PTSD questionnaire in which he identified his drinking problem and alcohol-related disciplinary action as having contributed to his PTSD. R. at 318-19. The appellant denied that any casualties or injuries caused his PTSD. R. at 319. In September 2001, the RO denied entitlement to service connection because no evidence demonstrated an in-service stressor and "there [was] no evidence to show a diagnosis of PTSD." R. at 263. The appellant failed to appeal this decision and thus it became final. InJuly2004,theappellantfiledanother claim,seekingserviceconnection forpinchednerves and gout. R. at 250. The appellant also sought to reopen his PTSD claim. Id. The only location for treatment of these conditions the appellant identified was the Fayetteville, North Carolina VA 2 hospital. R. at 250, 254-55. The appellant also stated that he'd been receiving Social Security Administration (SSA) disabilitybenefits since 1997. R. at 240, 248; see also R. at 175. The medical records obtained from the Fayetteville VA hospital indicated that he had been diagnosed with depression and that his PTSD screen indicated PTSD. R. at 175, 205. In November 2004, the RO denied the appellant's claims. R. at 145-50. The RO found no evidence of a medical diagnosis or treatment for pinched nerves or gout. R. at 146-48. The RO also found that, although medical records from the Fayetteville VA hospital were new, they were not material because they failed to evidence a diagnosis of PTSD or corroborate an in-service stressor. R. at 149-50. In March 2005, the appellant asserted new claims for constipation, right-ear hearing loss, and poor vision. R. at 138. After the appellant failed to submit any further evidence, the RO adjudicated and denied all of his claims in December 2005. R. at 114-20. The appellant filed a Notice of Disagreement in April 2006. R. at 109. The RO in turn issued its Statement of the Case in January 2007. R. at 81-103. That same month, the appellant filed an appeal to the Board and requested a hearing. R. at 77-79. At the appellant's July 2009 hearing, he stated that his right-ear hearing loss "comes from firing a weapon while [he] was in the war," and that his hearing loss " progressed ever since I been out of service." R. at 28-29. The appellant confirmed that he had not been provided an audiological examination. Id. When questioned about his vision disorder, the appellant exclaimed "I see . . . blurry spots sometime[s]. My sight goes almost blind and it comes back." R. at 30. A private physician, according to the appellant, stated that his vision was "not good." R. at 31. The appellant continued: "I also have a sleeping disorder, I have nights w[h]ere I see different things. I see different visions and stuff in my sleep. I have nightmares." R. at 30. The appellant remarked that he did not know whether the blurry spots or visions were due to PTSD. Id. The appellant also admitted that he had no "other medical diagnosis associated with [his] eyes," but he alleged that his current eye problems developed in service. R. at 32. The appellant also claimed that his constipation began in service and continued to this day. R. at 33. The appellant conceded, however, that no specific disorder was diagnosed in connection with his constipation. Id. The appellant also denied seeing a physician for the problem, but testified 3 that he used Dulcolax to alleviate his symptoms. R. at 34. Proceeding to the gout claim, the appellant testified that he was diagnosed with gout in service and has suffered with the pain since that time. R. at 40. Regarding his pinched-nerves claim, the appellant stated that "I got four pinched nerves and a twisted spine" while in service. R. at 42. The appellant confirmed that he was receiving treatment for his pinched nerves at the Fayetteville VA Hospital. R. at 43. Turning to the PTSD claim, the hearing officer asked the appellant to identify a specific trauma or stressor. R. at 44. The appellant responded: "Well, well, just a, just the total experience of being over there in a, in a war zone and stuff and uh, the things I seen, I guess I developed it like that." Id. When asked for specifics, he answered: "Dead bodies, uh a bunch of bombing, explosions." Id. The appellant advised the Board member that, while in Vietnam, he had been stationed at Tiger Hill and Cam Ranh Bay. R. at 46. The Board's September 2009 decision denied all of the appellant's claims. R. at 3-19. The Board concluded that the in-service and postservice records did not establish a diagnosis for the alleged right-ear hearing loss, constipation, gout, and pinched-nerve conditions. R. at 9-11. Absent evidence of such conditions, the Board found further development futile. R. at 10. The Board also determined apart from a notation of poor vision that in-service and postservice medical records were devoid of evidence of an eye injury. R. at 11. Regarding the PTSD claim, the Board found that while the medical records were new, they were not material because "they provide[d] no support for the occurrence of the claimed in-service stressors or that PTSD has been definitively diagnosed." R. at 15. With regard to the notation of PTSD by a Fayetteville VA hospital physician, the Board reasoned "that the medical reference of PTSD contained in the record is based solely on history reported by the Veteran," and that "the primary psychiatric diagnosis [was] apparently associated with depression." Id. The Board further explained that the appellant's testimony was "vague . . . (seeing dead bodies and being near explosions during service)," and that he had not " revealed useful information which would aid VA in verifying his claimed in service stressor." Id. Given that the appellant had been found to have not engaged in combat, the Board viewed the appellant's statements as "not [] sufficient to establish the occurrence of the alleged stressor." Id. This appeal followed. 4 II. ANALYSIS A. New and Material Evidence: PTSD The appellant contends that the Board erred in refusing to reopen his PTSD claim. Appellant's Brief (Br.) at 6-8. First, the appellant argues that the Board erred in deciding that the positive PTSD screen was not material because the primary psychiatric diagnosis of the report in question was depression. Appellant's Br. at 7; see also R. at 15. In essence, the appellant maintains that the positive PTSD screen was sufficient to reopen the claim because it related to an unestablished fact necessaryto substantiate the claim. See 38 C.F.R. § 3. 156(a) (2011). Second, the appellant maintains that the Board erred in finding that his lay testimony was vague, unhelpful, and ultimately would not "aid in the verification of any claimed in-service stressor." R. at 15; see also Appellant's Br. at 7. The appellant submits that corroboration does not require an overly detailed account of a stressor event, contrary to the Board's prescription. Appellant's Br. at 8. In response, the Secretary acknowledges that the Board "impermissibly" skipped "the reopening phase and [went] straight to adjudication on the merits," but argues that such "error is immaterial[] because the evidence submitted does nothing to corroborate any purported in-service stressor." Secretary's Br. at 12. Specifically, the Secretary asserts that the appellant's lay testimony of an in-service stressor – his observance of "dead bodies, uh a bunch of bombing, explosions" and the "total experience of being over there in a, in a war zone" – was insufficiently precise to demonstrate an in-service stressor, and therefore to prompt additional development to determine whether an in-service stressor occurred. Secretary's Br. at 13. Without such precise evidence, the Secretary reasons, any error by the Board in evaluating the positive PTSD screening is immaterial. Secretary's Br. at 12-13. To be eligible for service connection for PTSD, a claimant must satisfy" three elements": (1) A medical diagnosis of PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor. Cohen v. Brown, 10 Vet.App. 128, 138 (1997). In this case, the original decision denying service connection for PTSD explained that the appellant failed to provide evidence of an in-service stressor, but also that the "there [was] no evidence to show a diagnosis of PTSD." R. at 263. As the Secretary would have it, the Board need not reopen this 5 claim unless the appellant proffers new evidence that relates to both unestablished elements identified by the original decision as the basis for denial: (1) Evidence of a PTSD diagnosis; and (2) evidence of an in-service stressor. Secretary's Br. at 12. This is not the law. In Shade v. Shinseki, 24 Vet.App. 110, 119-20 (2010), the claimant submitted evidence of a present diagnosis of a chronic skin disorder as qualifying to reopen his claim for service connection. The Board there reasoned that "because the newly submitted evidence pertained only to the unestablished fact of a current diagnosis, but not to the other unestablished fact of a nexus between that diagnosis and service, the evidence submitted by the appellant was not new and material." Id. The Shade court disabused the Board of this faulty logic: The threshold established by § 3.156(a) requires the Board to analyze whether the new evidence presented "raises a reasonable possibility of substantiating the claim." If the Board construes "raises a reasonable possibility of substantiating the claim" as a requirement that the appellant submit his own medical nexus evidence to reopen his claim, even though he has provided new and material evidence concerning any other missing element, it would force the veteran to provide medical nexus evidence to reopen his claim so that he could be provided with a medical nexus examination by VA. Id. at 119-21 (emphasis supplied) (citations omitted). This case presents a situation similar to the facts of Shade itself. See id. at 119-22. As in Shade, the RO originally denied the appellant's claim for failing to establish two of three necessary elements. See id. at 111; R. at 263. Thereafter, as in Shade, the appellant proffered new, competent evidence to establish the element of a current PTSD diagnosis – a positive PTSD screen – which was one of the reasons the claim was originally denied. R. at 205, 263. Such evidence, as explained in Shade, 24 Vet.App. at 121, suffices to reopen the appellant's PTSD claim because it relates to and serves to substantiate the claim's unestablished present diagnosis element. See Cohen, 10 Vet.App. at 138; see also 38 C.F.R. § 3.156(a). By effectively proceeding directly to the merits of the appellant's claim, the Board not only fails to correctly apply the mandate of section 3.156(a), but it also deprives the appellant the opportunity to further develop evidence of the unestablished in-service stressor element. Cf. Shade, 24 Vet.App. at 120 (reasoning that if a claimant is required to submit his own medical nexus evidence to substantiate an unestablished element of the claim, "it would force the veteran to provide medical nexus evidence to reopen his claim so that he could be 6 provided with a medical nexus examination by VA"). The Secretary cites to no caselaw for the proposition that the Board's erroneous analysis of the materiality of the positive PTSD screening is nonprejudicial because the appellant purportedly failed to proffer sufficient material evidence to advance a separate element of his PTSD claim. What is more, the Secretary failed to acknowledge or notify the Court of the intervening authority in Ervin v. Shinseki, 24 Vet.App. 318, 324 (2011)(applying to pending cases an amendment that permitted establishment of an in-service stressor via a veteran's lay testimony that the stressor is related to "fear of hostile military or terrorist activity"), and its impact on the disposition of the new-and-material- evidence issue in this case. Irrespective of Ervin, the appellant has proffered sufficiently new and material evidence to reopen his PTSD claim and obtain the full benefit of VA's duty to assist. See Shade, 24 Vet.App. at 119-21. Accordingly, the Court will reverse the Board's finding on this issue and remand the matter to permit further development and evaluation of the merits in accordance with Ervin. B. Disorder Manifested by Constipation The appellant contends that the Board failed to provide adequate reasons or bases for its decision to deny service connection for a disorder manifested by constipation. Appellant's Br. at 10-12. Specifically, the appellant contends that the Board failed to explain why he was not competent to observe and therefore diagnose constipation. Appellant's Br. at 10-11. Furthermore, the appellant argues that, because he was referred to a psychiatrist on the same dayhe complained of constipation, "[t]he record raises some question as to whether gastrointestinal complaints may be related to" his PTSD claim, and thus such claims should be remanded together. Appellant's Br. at 11. In response, the Secretary argues first that, although constipation is a disorder capable of being observed bya layperson, it is not a "disability" for which a claimant maybe service connected. Secretary's Br. at 19-20. Second, the Secretary notes that the physician who referred the appellant to a psychiatrist did not connect his constipation to his psychiatric symptoms and, in any event, constipation may be considered separately from PTSD and therefore should not be remanded for joint consideration. Secretary's Br. at 20-21. The Board determined that service connection for a disorder manifested byconstipation was unwarranted because the appellant "[n]ever received [a] competent medical diagnos[i]s" and also 7 lacked "competent medical evidence which [would] causally relate[] [any diagnosis] to service." R. at 9-10. However, the Board failed to acknowledge and discuss the appellant's lay testimony at the July 2009 hearing that his constipation began "after basic training" and continued to the present or complaints of constipation the appellant registered during treatments before he filed his claim. R. at 33, 364; see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that lay evidence maybe used to diagnose a condition where a layperson is competent to identifythe medical condition). The Board did not address whether the appellant was competent to identify his constipation and whether his lay statements would be sufficient to establish service connection. The Secretary maintains that the Board's failure was irrelevant because VA does not recognize a constipation "disability" for which the appellant may be service connected. Secretary's Br. at 20. However, the Board did not articulate this position, either. Instead, the Board treated the claim as thoughit could be service connected, repeatedlyreferring to it as " residuals of constipation" and "a disorder manifested by constipation." R. at 9-10. Furthermore, as the appellant submits, irritable bowel syndrome is a disability of which constipation is a symptom and which the appellant may presumably be competent to diagnose, see 38 C.F.R. § 4.114, Diagnostic Code 7319 (2011), but because the Board also failed to address this issue as well, the Court may not speculate. See Jandreau, 492 F.3d at 1377 ("Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans' Court."). In any case, the Board failed to provide adequate reasons and bases for its failure to discuss this evidence, see Allday v. Brown, 7 Vet.App. 517, 527 (1995), and vacatur and remand is warranted. On remand, consistent with the duty to assist articulated in McLendon v. Nicholson, 20 Vet.App. 79, 81 (2006), the Board must consider whether an examination is warranted to dispose of this claim. The Court will accordingly forego discussion of the appellant's remaining theory of Board error. See Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam). C. Vision Disorder The appellant next argues that the Board erred in failing to find that VA's duty to assist was breached when the Board hearing officer failed to suggest that the appellant obtain private medical records pertaining to his purported vision disorder. Appellant's Br. at 12. The Secretary responds 8 that, even assuming the Board member improperly failed to suggest evidence, the appellant was not prejudiced by any error because the private medical records only involved poor eye sight and the provision of reading glasses, neither of which are conditions eligible for service connection. Secretary's Br. at 22-23. While it is true, as the appellant notes, that the Board member did not advise the appellant to obtain his private medical records pertaining to his vision problems, the appellant has not demonstrated that the Board member had a duty to suggest evidence. Since this Court decided Bryant v. Shinseki, 23 Vet.App. 488, 498 (2010), VA amended 38 C.F.R. §§ 3.103, 20.706 to reflect that the duty to suggest evidence was limited to "hearings conducted before the VA office having original jurisdiction over the claim." The Board committed no error, in turn, in failing to ascribe a breach of the duty to suggest evidence to the Board hearing officer. Even if the duty to suggest evidence remained binding on Board members, however, the duty is nevertheless subject to the rule of prejudicial error. See Bryant, 23 Vet.App. at 498. As such, as the Secretary argues, the Court must consider "whether the appellant was prejudiced by the Board's errors." Id. Here, the appellant confirmed that his private physician merely advised that he would need glasses to assist with refractive error. R. at 30-31 (private physician "said my vision [is] not good" and that the appellant "need[ed] glasses"). Because refractive error is not a "disease[] or injur[y]" eligible for service connection, see 38 C.F.R. § 3.303(c) (2011 ), the failure to suggest evidence in support of such a condition does not prejudice the appellant. See Bryant, 23 Vet.App. at 499 (indicating that the failure to suggest relevant evidence is the touchstone of prejudicial error). Thus, even if the Board hearing officer were so obligated, any failure to suggest evidence would not be a remandable error. The appellant also claims that the record suggests that his claim for vision disorder is inextricably intertwined with his PTSD claim, and therefore his vision disorder claim should be remanded along with his PTSD claim. Appellant's Br. at 12-13. The appellant fails to explain how his vision claim is inextricably intertwined with his PTSD claim, however,and thus fails to carry his burden of providing adequate support for his argument. See Locklear v. Nicholson, 20 Vet.App. 410, 416 (2006) (holding that the Court will not entertain underdeveloped arguments); Coker v. Nicholson, 19 Vet.App. 439, 442 (2006), rev'd on other grounds sub nom. Coker v. Peake, 310 F. 9 App'x 371 (Fed. Cir. 2008) (stating that an appellant must "plead with some particularity the allegation of error so that the Court is able to review and assess the validity of the appellant's arguments"). The Court must, therefore, reject this argument and affirm the portion of the Board's decision regarding the appellant's claim for vision disorder. D. Depression The appellant argues that the Board failed to explain why his effort to reopen his PTSD claim was not regarded as encompassing a new claim for service connection for depression in light of his acknowledged depression diagnosis. Appellant's Br. at 10. Because, as discussed above, the Court is reversing the Board's decision on the appellant's PTSD claim and remanding the matter to allow adjudication on the merits, the Board must also determine whether the appellant in fact asserted a claim for entitlement to service connection for depression, consistent with Clemons v. Shinseki, 23 Vet.App. 1, 5 (2009). The Court will therefore forego discussion of this argument. See Best,15 Vet.App. at 20. E. Pinched Nerves and Right-Ear Hearing Loss The appellant argues that the Board failed to explain why the record evidence of right-ear hearing loss does not entitle the appellant to a medical examination. Appellant's Br. at 13-14. The Secretary agrees with the appellant and argues in favor of remand. Secretary's Br. at 28-29. Similarly, the parties agree that the Board failed to address whether the appellant's evidence of treatment for various back ailments in 1990 and 1991 is relevant to his claim for pinched nerves, and that the Board erroneously failed to procure his SSA records, which appear relevant to his pinched nerves claim. Appellant's Br. at 14; Secretary's Br. at 27. Accordingly, the Court will remand both claims. F. SSA Records The appellant argues that the Board erroneously failed to obtain his SSA records with respect to his constipation, vision disorder, and gout claims.1 Appellant's Br. at 14-15. The Secretary responds that the Board was not required to procure SSA records for claims other than those for 1 The appellant also seeks procurement of his SSA records to support his PTSD, right ear hearing loss, and pinched nerves claims, but because the Court is remanding these claims, he is free to argue before the Board the relevance of his SSA records to such claims. 10 which the appellant was receiving benefits. Secretary's Br. at 24-26. The Board's duty to obtain Federal records is limited to Federal records for which there is reason to believe that such records "may give rise to pertinent information." Golz v. Shinseki, 590 F.3d 1319, 1323 (Fed. Cir. 2010). The evidence demonstrates that the appellant received SSA benefits "for back problems" (R. at 175), but there is no indication that the Board evaluated whether the appellant's SSA records may give rise to information pertinent to his constipation, vision disorder, and gout claims. Absent an adequate discussion by the Board of the grounds for failing to obtain the appellant's SSA records for the aforementioned claims, a remand is warranted. See Allday, 7 Vet.App. at 527. III. CONCLUSION After consideration of the appellant's and the Secretary's pleadings, and a review of the record, the September 29, 2009, Board decision is AFFIRMED IN PART, REVERSED IN PART, VACATED IN PART and the reversed and vacated matters REMANDED for further adjudication. DATED: December 29, 2011 Copies to: Jeany Mark, Esq. VA General Counsel (027) 11

Single Judge Application, DeLisio v. Shinseki, 25 Vet.App. 45, 53(2011); Apparent and Potential Claim, Referring to Affected Body Part

Excerpt from decision below: "Although his filing appears to only raise the issue of service connection on a direct basis, VA is not constrained by that theory. See DeLisio v. Shinseki, 25 Vet.App. 45, 53(2011) ("[E]ven if a claimant believes that his condition is related to service in a particular way, his claim is not limited solely to one theory of service connection."). Indeed, "upon the filing of a claim for benefits, the Secretary generally must investigate the reasonably apparent and potential causes of the veteran's condition and theories of service connection that are reasonably raised by the record or raised by a sympathetic reading of the claimant's filing." Id. =================================== "The Court disagrees. Mr. Canuto's claim was one for a "right leg (injury) condition" (R. at 284 ); as the Board noted, he did not provide anydetails as to the condition other than his theory that the condition – whatever that may be – was directly service related. Just as the Board is not limited to his theory of service connection, see DeLisio, supra, the Board is also not limited to only those conditions that may be the result of a right leg "injury." Especially because the claim was phrased in such broad terms, the Court concludes that Mr. Canuto's right leg claim may reasonably encompass varicose veins and edema. See DeLisio, 25 Vet.App. at 53 (noting that an appellant sufficiently files a claim by referring to the affected body part)." ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 11-2472 HONORATO D. CANUTO, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before DAVIS, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. DAVIS, Judge: U.S. Navy veteran Honorato D. Canuto appeals through counsel from a June 15, 2011, Board of Veterans' Appeals (Board) decision that denied him entitlement to service connection for "residuals of a right leg injury."1 Record (R.) at 9. For the reasons stated below, the Court will set aside the Board's June 2011 decision and remand the matter for further proceedings consistent with this decision. I. ANALYSIS Mr. Canuto first argues that the Board clearly erred in its determination that Mr. Canuto did not suffer from a current right leg disability. Specifically, he contends that he "suffers from several disabilities of the right leg that have been attributed to his service-connected heart disease" including varicose veins, edema, or a venuous insufficiency (which encompasses both varicose veins and 1 The Board also remanded the issue of entitlement to a total disability rating based on individual employability and deferred adjudication of the issue of an initial compensable evaluation for hypertension. Those matters are not before the Court at this time. See 38 U.S.C. § 7266 (stating that the Court reviews only final decisions of the Board); see also Howard v. Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000). edema) (Appellant's Brief (Br.) at 7), but the Board only considered whether he suffered from a disability that could be directly connected to an in-service injury. In response, the Secretary contends that Mr. Canuto only "sought service connection for a 'right leg (injury)' – not secondary service connection for residuals of arteriosclerotic heart disease." Secretary's Br. at 8. He asserts that the characterization of the condition as an "injury" (as opposed to a "disease") that was sustained in service, his reference to supporting evidence from his service records, and his failure to expressly raise the possibility of secondary serviceconnection in his filings are fatal to his plea before the Court for an expansive reading of his claim for disability benefits. In this case, Mr. Canuto filed a claim for disability benefits for a " right leg (injury) condition."2 R. at 284. Although his filing appears to only raise the issue of service connection on a direct basis, VA is not constrained by that theory. See DeLisio v. Shinseki, 25 Vet.App. 45, 53(2011) ("[E]ven if a claimant believes that his condition is related to service in a particular way, his claim is not limited solely to one theory of service connection."). Indeed, "upon the filing of a claim for benefits, the Secretary generally must investigate the reasonably apparent and potential causes of the veteran's condition and theories of service connection that are reasonably raised by the record or raised by a sympathetic reading of the claimant's filing." Id. Here, the Board determined that Mr. Canuto was not suffering from a right leg disability that is related to an injury in service. It appears, however, that the Board may have erred in limiting Mr. Canuto's claim as one for direct service connection. In its decision, the Board specifically noted that "[t]he only diagnosis of any disorder of the right leg (other than symptoms attributed to his service[-]connected coronary artery disease) appears in September 2008 medical records." R. at7(emphasis added). Mr. Canuto asserts that those "symptoms" to which the Board referred were varicose veins and edema, both of which may be separately compensable under the diagnostic code (DC). See 38 C.F.R. § 4.104, DC 7120, 7121 (2011). Contrary to Mr. Canuto's contention, the Board's analysis does not identify those conditions that may be secondarily related to coronary artery disease. If the "symptoms" are indeed varicose veins and edema, because the record raised the issue of secondary service connection for those compensable conditions, the Board should have considered whether 2 The Court notes that the Secretary failed to include the word "condition" when quoting from Mr. Canuto's claim. 2 service connection was warranted. As it stands, the Board's rationale is insufficient to facilitate judicial review of this matter, and remand is required. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995). In so ordering, the Court notes the Secretary's objection that Mr. Canuto's claim for a right leg "injury" may not encompass conditions such as varicose veins and edema. The Court disagrees. Mr. Canuto's claim was one for a "right leg (injury) condition" (R. at 284); as the Board noted, he did not provide any details as to the condition other than his theory that the condition – whatever that may be – was directly service related. Just as the Board is not limited to his theory of service connection, see DeLisio, supra, the Board is also not limited to only those conditions that may be the result of a right leg "injury." Especially because the claim was phrased in such broad terms, the Court concludes that Mr. Canuto's right leg claim may reasonably encompass varicose veins and edema. See DeLisio, 25 Vet.App. at 53 (noting that an appellant sufficiently files a claim by referring to the affected body part). Mr. Canuto also argues that he has "a claim for tender scars (including of the right leg) that has been pending since at least June 1988" (Appellant's Br. at 8), and that the Board should have considered whether he suffers from a "current disability" of a tender scar of the right leg. It appears that this argument was not presented to the Board in the first instance, which would be better able to determine whether the matter had been previously adjudicated and properly appealed between 1988 and the present. See Maggitt v. West, 202 F.3d 1370, 1377-78 (Fed. Cir. 2000) (holding that the Court has discretion to remand issues presented for the first time on appeal). Consequently, on remand,the Board should determine whether the issue of a "tender scar" requires Board adjudication. II. CONCLUSION On consideration of the foregoing, the Court SETS ASIDE the Board's June 15, 2011, decision as to service connection for residuals of a right leg injury and REMANDS that matter for further proceedings consistent with this decision. On remand, Mr. Canuto is free to submit additional evidence and raise any other additional arguments to the Board, and the Board must address such evidence and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Board 3 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). DATED: January 5, 2012 Copies to: Amy F. Fletcher, Esq. VA General Counsel (027) 4