Thursday, March 22, 2012

Single Judge Application, Parrish v. Shinseki, 24 Vet.App. 391, 401(2011); Fed.R. Evid. 803(4)

Excerpt from decision below: "cf. FED. R. EVID. 803(4) (recognizing that statements made for the purpose of medical treatment generally are reliable)." ======================= "With regard to the lack of discussion by the 2008 VA examiner about military service and whether or not a major depressive disorder might have been a likely diagnosis in the period immediately after WWII, there is no per se requirement that a medical examiner restate any particular facts in his report. See Parrish v. Shinseki, 24 Vet.App. 391, 401 (2011) ("[I]t is the Board, not medical examiners, that has the duty to . . . [provide] a statement of reasons or bases."(citing Gabrielson v. Brown, 7 Vet.App. 36, 40 (1994))); see also D'Aries v. Peake, 22 Vet.App. 97, 103-04 (2008) (holding that a medical opinion is adequate where it is based upon the veteran's medical history, examinations, and also describes the disability in sufficient detail, and holding that 2 whether a medical opinion is adequate is a finding of fact, which the Court reviews for clear error). ====================== ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS No. 10-3627 THOMAS W. GOODALL, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before KASOLD, Chief Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. KASOLD, Chief Judge: Veteran Thomas W. Goodall appeals through counsel a November 30, 2009, decision of the Board of Veterans' Appeals (Board) that denied disability compensation for depression, to include as secondary to headaches, because the depression was not service connected. Mr. Goodall seeks reversal arguing that the Board erred by (1) failing to address an in-service head injury, (2) relying on his lay testimony to diagnose the onset of his depression, (3) providing and relying on an inadequate medical examination, and (4) failing to address whether his depression is related to his service-connected migraine headaches. The Secretary disputes these arguments. Single-judge disposition is appropriate. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons set forth below, the Board's decision will be affirmed. The record of proceedings does not support Mr. Goodall's arguments. As to his first argument, although the Board did not address an in-service head injury from the 1940s and any connection between that event and his current depression, Mr. Goodall fails to note any evidence of record indicating or suggesting any such nexus and he fails to demonstrate that the Board erred by not addressing such a nexus. See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (appellant bears burden of demonstrating error on appeal); see also Robinson v. Peake, 21 Vet.App. 545, 522 (2008) (Board errs when it fails to address issues reasonably raised by the record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). Contrary to his second argument, the record is replete with medical evidence supporting the Board's finding that Mr. Goodall's depression began many years after service and was not related to service. To the extent Mr. Goodall contends that medical examiners cannot rely on the history of symptoms provided by a patient in support of an opinion on etiologyof a mental condition, he cites no support for such a proposition; indeed, the law is to the contrary, see Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (noting general competence of laypersons to testify as to symptoms but not medical diagnosis); Espiritu v. Derwinski, 2 Vet.App. 492, 494-95 (1992) (stating that a layperson generally can provide an account of symptoms but not a diagnosis that requires medical knowledge); cf. FED. R. EVID. 803(4) (recognizing that statements made for the purpose of medical treatment generally are reliable). In support of his third argument, Mr. Goodall notes that the January 2008 VA examination report relied on by the Board did not address his military service in 1946 and 1947 or the likelihood of a World War II diagnosis of major depressive order. He also contests the competency of the medical examiner. As to competency, Mr. Goodall did not raise this issue below and he points to nothing in the record that might have raised the issue below; he also otherwise fails to establish any basis for questioning the competencyof the examiner. See Bastien v. Shinseki, 599 F.3d 1301, 1307 (Fed. Cir. 2010) (Board not required to present affirmative evidence of competency in absence of specific reasons for challenging competency); Rizzo v. Shinseki, 580 F.3d 1288, 1291 (Fed. Cir. 2009) (applying the presumption of regularity to VA examiner competency); Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (stating that Board is entitled to assume competency of VA examiner and appellant bears the burden of persuasion otherwise). With regard to the lack of discussion by the 2008 VA examiner about military service and whether or not a major depressive disorder might have been a likely diagnosis in the period immediately after WWII, there is no per se requirement that a medical examiner restate any particular facts in his report. See Parrish v. Shinseki, 24 Vet.App. 391, 401 (2011) ("[I]t is the Board, not medical examiners, that has the duty to . . . [provide] a statement of reasons or bases."(citing Gabrielson v. Brown, 7 Vet.App. 36, 40 (1994))); see also D'Aries v. Peake, 22 Vet.App. 97, 103-04 (2008) (holding that a medical opinion is adequate where it is based upon the veteran's medical history, examinations, and also describes the disability in sufficient detail, and holding that 2 whether a medical opinion is adequate is a finding of fact, which the Court reviews for clear error). Here, the Board found that the VA examiner reviewed Mr. Goodall's claims file, which included service sick and morning call reports, as well as private medical records. However, as also found by the Board, the examiner noted that Mr. Goodall reported that his feelings of depression began 8 to 10 years prior to the VA examination – which is some 40 or so years after service. Overall, the examiner opined that Mr. Goodall's depression was not related to service. As noted above, nothing prevents an examiner from weighing the reported symptoms of a patient when rendering an opinion. See Jandreau and Espiritu, both supra. Moreover, Mr. Goodall fails to demonstrate that the 2008 VA examiner's opinion was predicated on incomplete or erroneous facts. Indeed, the Board found that there was no evidence of depression prior to the time stated by Mr. Goodall, and based on the record of proceedings, that finding is plausible and not clearly erroneous. See Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) ("'A 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.'"(quoting United States v. U.S.GypsumCo., 333 U.S. 364, 395 (1948))); see also Hilkert, supra. Contrary to Mr. Goodall's final argument, the Board discussed whether his migraine headaches were the cause of his depression. Indeed, the record medical reports generally addressed whether Mr. Goodall's current depression might be related to his service-connected headaches. The Board discussed several private medical opinions, but noted that none reflected an opinion that Mr. Goodall's depression was due to his headaches; the Board also noted some internal inconsistencies in some of the private reports. Moreover, the Board noted that the 2008 VA examiner also did not attribute Mr. Goodall's depression to his headaches; rather, he opined that Mr. Goodall's depression was due to his loneliness and feelings of uselessness. Overall, the Board's statement is understandable and faciliative of judicial review. See Allday v. Brown, 7 Vet.App. 517, 527 (1995) (holding that the Board's statement "must be adequate to enable claimant to understand the precise basis for the Board's decision, as well as to facilitate review in this Court"). Upon consideration of the foregoing, November 30, 2009, decision of the Board is AFFIRMED. DATED: March 8, 2012 3 Copies to: Gregory Chandler, Esq. VA General Counsel

Single Judge Application, Board Impermissible Medical Conclusion in Guise of Board Opinion, Colvin v. Derwinski, 1 Vet.App. 171, 172 (1991); Kahana v. Shinseki, 24 Vet.App. 428, 434 (2011)

Excerpt from decision below: "When the Board reaches a medical conclusion, however, it must base its conclusion on "independent medical evidence" rather than "provide [its] own medical judgment in the guise of a Board opinion." Colvin v. Derwinski, 1 Vet.App. 171, 172 (1991); see also Kahana v. Shinseki, 24 Vet.App. 428, 434 (2011). The appellant argues that the Board's rejection of Dr. Jabbour's GAF score violates Colvin. Appellant's Br. at 13. The Court agrees. If the Board had merely taken the objective findings from the two medical examination reports and applied them to the rating code to determine that only a 5 30% disability rating is warranted, it would have been well within its role as factfinder. See Owens, supra. If the Board had explained how the examiners' findings, along with the other evidence of the record, weighed more heavily in favor of a 30% disability rating than Dr. Jabbour's assignment of a GAF score of 40 weighed in favor of a 50% disability rating, it would still have been well within its role as factfinder. Id.; see also 38 C.F.R. § 4.2 (2011) ("It is the responsibility of the rating specialist to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating mayaccurately reflect the elements of disability present."). The Board, however, takes the additional step of stating without corroboration from independent medical authority that Dr. Jabbour's assignment of a GAF score of 40 is incorrect while the VA examiner's GAF score of 63 is correct. R. at 8. The Board has in essence assigned its own GAF score in this case, which, as the appellant argues, constitutes a medical determination in violation of Colvin.2 The Court, therefore, finds that the Board's statement of reasons or bases supporting denial of a disability rating in excess of 30% is inadequate. See 38 U.S.C. § 7104(d)(1); Allday, Caluza, and Gilbert, all supra." ================================= ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 10-2593 PEDRO S. LOPEZ, 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: Theappellant,PedroS. Lopez, appealsthroughcounselaJuly30, 2010, BoardofVeterans'Appeals (Board)decisionthatdeniedhim entitlementto aninitial disabilityrating in excess of 30% forpost-traumatic stress disorder (PTSD) and entitlement to a total disabilityrating based on individual employability resulting from a service-connected disability (TDIU). Record of Proceedings (R.) at 3-13. This appeal is timely, and the Court has jurisdiction to review the Board's decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, the Court will vacate the Board's decision 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 January 1957 until September 1983. R. at 4, 596. The record reveals that the appellant served two tours of dutyin Vietnam, where he sustained, in separate incidents, combat wounds to his abdomen and to his face. R. at 77, 456, 538, 637. The record further reveals that his abdominal wound required surgery. R. at 538. In May 1986, the VA regional office (RO) found his disability service connected and assigned him a 30% disability rating for both "[s]tatus [post operative] wounding of the abdomen" and a splenectomy. The RO also found service-connected residuals of a shell fragment wound to his left cheek and malaria, but assigned a noncompensable disability rating for those disorders. R. at 538-39. In April 2008, the appellant underwent a computed tomography (CT) scan. R. at 124-25. The resulting report reveals that the appellant was suffering from abdominal pain and a bowel obstruction, and had undergone "[m]ultiple previous surgeries." R. at 124- 25. Also in April 2008, the appellant filed a claim for PTSD. R. at 480. In May 2008, private physician Hassan Jabbour examined the appellant and diagnosed him with chronic PTSD and recurrent major depressive disorder. R. at 78-79. Dr. Jabbour assigned the appellant a Global Assessment of Functioning (GAF) score of 40.1 R. at 79. In June 2008, the appellant was provided a VA medical examination. R. at 462-70. The appellant reported to the examiner that he retired because he had an anxiety attack resulting from workplace noises like the ringing of the telephone. R. at 463, 468-70. The examiner diagnosed the appellant with PTSD and assigned him a GAF score of 63. R. at 468. The examiner concluded that the episode that triggered the appellant's retirement was related to his PTSD. R. at 468-69. In July 2008, the RO granted the appellant disability compensation for PTSD and assigned him a 30% disability rating. R. at 449-52. In May 2009, the appellant submitted an application for TDIU stating that he stopped working full-time in May 2006 and stopped working altogether in June 2007. R. at 342-43. In his application, the appellant stated that he was unable to maintain gainful employment because "I have pains in my knees, joints and down to my feet." R. at 342. The appellant submitted lay statements from two coworkers and a supervisor relating that he was forced to retire in July 2007 because of leg pain. R. at 344-46. In July 2009, the RO denied the appellant entitlement to TDIU. R. at 100-01. The Board, in its July 30, 2010, decision here on appeal, denied the appellant entitlement to an initial disability rating in excess of 30% for PTSD and entitlement to TDIU. The Board, in its discussion of the appellant's PTSD claim, acknowledged that Dr. Jabbour assigned the appellant a The GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See DIAGNOSTICANDSTATISTICALMANUALOF MENTAL DISORDERS 32 (4thed. 1994). 2 1 GAF score of 40. R. at 8. The Board found, however, that the symptoms reported and the conclusions reached by both Dr. Jabbour and the June 2008 VA examiner are more consistent with the GAF score of 63 assigned by the VA examiner. Id. The Board determined that the appellant's PTSD symptoms "have most nearly approximated mild through the claims period." Id. The Board also found that the appellant's PTSD "resulted in some mild impairment to employment" but had not rendered the appellant unemployable, and that the appellant suffered from only mild impairment in his social functioning. R. at 8-9. The Board concluded that the appellant's PTSD "most nearly approximates the criteria associated with the currently assigned 30 percent [disability] rating." R. at 9. In its discussion concerning the appellant's application for TDIU, the Court acknowledged that the record indicates that the appellant is unemployable, but found that the record "does not establish that the [appellant] is unemployable due to service-connected disabilities." R. at 10. The Board determined that the medical evidence of record does not support a finding that the appellant is unemployable as a result of his PTSD, and that "the record contains no other medical evidence of unemployability due to any of the [appellant's] service-connected disabilities." R. at 10-11. Regarding his PTSD claim, the appellant first argues that the Board failed to provide an adequate statement of reasons or bases for its determination that the objective and subjective evidence collected by both Dr. Jabbour and the June 2008 VA examiner is more consistent with the GAF score of 63 assigned by the examiner than the GAF score of 40 assigned by Dr. Jabbour. Appellant's Brief (Br.) at 8-13. The appellant next argues that the Board provided an inadequate statement of reasons or bases supporting its determination that VA fulfilled its duty to assist despite not contacting Dr. Jabbour to request that he clarify his medical opinion. Id. at 13-18. Regarding his application for TDIU, the appellant argues that the Board failed to adequately consider the findings in the June 2008 VA examiner's report. Id. at 18-22. The appellant also asserts that the Board should have considered how his service-connected abdominal disabilities affect his employability. Id. at 22-24. 3 II. ANALYSIS A. PTSD The Board's assignment of a disability rating is a finding of fact that the Court reviews under the "clearly erroneous" standard of review. See Johnston v. Brown, 10 Vet. App. 80, 84 (1997). A finding of material fact is clearly erroneous when the Court, after reviewing the entire evidence, "is left with the definite and firm conviction that a mistake has been committed." United States v. U.S. Gypsum Co., 333 U.S. 364, 365 (1948); see also Gilbert v. Derwinski, 1 Vet. App. 49, 52 (1990). When deciding a matter, however, the Board must include in its decision a written statement of the reasons or bases for itsfindings andconclusions,adequateto enablean appellant to understand the precise basis for the Board's decision as well as to facilitate review in this Court. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert, 1 Vet. App. at 56-57 (1990). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of anymaterial evidence favorable to the claimant. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995); Gilbert, 1 Vet.App. at 57. 1. Appellant's GAF Scores The appellant argues that the Board erred in determining that the GAF score of 63 assigned by the June 2008 VA examiner more accurately reflects the findings of both the examiner and Dr. Jabbour than Dr. Jabbour's assignment of a GAF score of 40. Appellant's Br. at 8-13. The Board found that "overall" the appellant's GAF scores "established the presence of mild PTSD symptoms." R. at 7. The Board acknowledged that a GAF score of 40 is "consistent with some impairment in reality testing or major impairment in several areas," but concluded that " this assigned GAF score is not consistent with the objective findings of the examination." R. at 8. The Board explained that the appellant was noted to complain of nightmares, flashbacks, anxiety, and a depressed mood, but his insight, judgment, and cognition were fully intact and normal. The [ appellant] deniedexperiencinganyhallucinations,suicidalor homicidal ideation, andtherewas no evidence of psychosis or delusions. In addition, when the [appellant] was examined a month later during a VA psychiatric examination, a GAF score of 63, consistent with mild symptoms, wasassigned. The [appellant] reported substantially similar symptoms to the VA examiner as had been recorded during the May 2008 4 private examination, and the GAF score of 63 is more consistent with both physicians' findings and examination reports. Thus, while the [appellant's] GAF scores have ranged from 40 to 63, the Board finds that the symptoms resulting from his service-connected PTSD have most nearly approximated mild throughout the claims period. R. at 8. The Board assigned a disability rating for the appellant's PTSD pursuant to 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411 (2009). Under DC 9411, a 50% disability rating is warranted if the appellant demonstrates "[o]ccupational and social impairment with reduced reliability and productivity," while a 30% disability rating is warranted if the appellant demonstrates only "[o]ccupational and social impairment with occasional decrease in work efficiency and intermittent periods of inabilityto perform occupational tasks." For each disabilityrating level, the DC includes a list of potential symptoms that is neither required nor exclusive. Mauerhan v. Principi, 16 Vet.App. 436, 442 (2002) (holding that the symptoms listed in the DC are" not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating"). GAF scores may be considered in assigning the appropriate disability rating under DC 9411, but they are not the dispositive element in rating the level of impairment. See Caluza, 7 Vet.App. at 506. "It is the responsibility of the [Board], not this Court, to assess the credibility and weight to be given to evidence." Owens v. Brown, 7 Vet.App. 429, 433 (1995); see also Washington v. Nicholson, 19 Vet.App. 362, 367-68 (2005). When, as in this case, there is a difference of opinion between two medical examiners, the Board is free to favor one medical opinion over another as long as it provides an adequate statement of reasons or bases explaining its determination. Id. at 435. When the Board reaches a medical conclusion, however, it must base its conclusion on "independent medical evidence" rather than "provide [its] own medical judgment in the guise of a Board opinion." Colvin v. Derwinski, 1 Vet.App. 171, 172 (1991); see also Kahana v. Shinseki, 24 Vet.App. 428, 434 (2011). The appellant argues that the Board's rejection of Dr. Jabbour's GAF score violates Colvin. Appellant's Br. at 13. The Court agrees. If the Board had merely taken the objective findings from the two medical examination reports and applied them to the rating code to determine that only a 5 30% disability rating is warranted, it would have been well within its role as factfinder. See Owens, supra. If the Board had explained how the examiners' findings, along with the other evidence of the record, weighed more heavily in favor of a 30% disability rating than Dr. Jabbour's assignment of a GAF score of 40 weighed in favor of a 50% disability rating, it would still have been well within its role as factfinder. Id.; see also 38 C.F.R. § 4.2 (2011) ("It is the responsibility of the rating specialist to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present."). The Board, however, takes the additional step of stating without corroboration from independent medical authority that Dr. Jabbour's assignment of a GAF score of 40 is incorrect while the VA examiner's GAF score of 63 is correct. R. at 8. The Board has in essence assigned its own GAF score in this case, which, as the appellant argues, constitutes a medical determination in violation of Colvin.2 The Court, therefore, finds that the Board's statement of reasons or bases supporting denial of a disability rating in excess of 30% is inadequate. See 38 U.S.C. § 7104(d)(1); Allday, Caluza, and Gilbert, all supra. 2. Duty To Seek Clarification The appellant asserts that, "if the Board believed a GAF score of 40 was not supported by the findings in Dr. Jabbour's May 2008 examination report, the Board was required to 'return the report as inadequate'and to seek clarification as to the severityof the [ appellant's] PTSD symptoms." Appellant's Br. at 16 (quoting 38 C.F.R. § 4.2 (2010)). Pursuant to 38 C.F.R. § 4.2, "[i]f a diagnosis is not supported by the findings on the examination report or if the report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes." In Savage v. Shinseki, 24 Vet.App. The Court notes that the Secretary, in his brief, methodically listed the evidence found in the two examiners' reports and demonstrated how the evidence indicates that the Board's conclusion that a disability rating in excess of 30% is not warranted " notwithstanding the GAF score of 40." Secretary's Br. at 6-8. The Secretary's analysis is preciselythe type of analysis that meets the Board's reasons-or-bases standard without violating Colvin. The Court, however, cannot accept the Secretary's attempt to mitigate the Board's failure to provide an adequate statement of reasons or bases. See Martin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144, 156 (1991) ("'[L]itigating positions' are not entitled to deference when they are merely appellate counsel's 'post hoc rationalizations' for agency action, advanced for the first time in the reviewing court."). 6 2 259, 269-70 (2011), the Court found that the duty imposed by § 4.2 is not limited to VA medical examination reports. The Court held: [W]hen VA concludes that a private medical examination report is unclear or insufficient in some way, and it reasonably appears that a request for clarification . . . could provide relevant information that is otherwise not in the record and cannot be obtained in some other way, the Board must either seek clarification from the private examiner or the claimant or clearlyand adequatelyexplain whysuch clarification is unreasonable. Savage, 24 Vet.App. at 269. The Court made it clear, however, that the Board's duty to clarify private medical opinions is limited and will not arise in most instances. Id. at 270. The Court held that the duty to request clarification of private examination reports "is not as broad as the mandate to clarify VA examination reports when such reports meet the rather general conditions set forth in § 4.2." Id. The Court explained that VA's duty only arises in "those instances in which the missing information is relevant, factual, and objective – that is, not a matter of opinion – and where the missing evidence bears greatly on the probative value of the private examination report." Id. Illustrating this concept, the Court determined that the Board erred in Savage by its failure to consider seeking clarifications from private examiners to determine whether a certain specific medical test was used in preparing examination reports. 24 Vet.App. at 272. The Court described this evidence as "an objective fact not subject to interpretation or opinion that can easilybe obtained by contacting the private examiners." Id. The Board determined that Dr. Jabbour's conclusion that the appellant's condition warrants a GAF score of 40 is not consistent with his objective findings. R. at 8. The appellant has failed to demonstrate, and the Court can find no evidence, that there is "missing evidence" concerning Dr. Jabbour's opinion that is "not a matter of opinion" but is, rather, " relevant, factual, and objective." Savage, 24 Vet.App. at 270. Rather, the Board seems to have considered Dr. Jabbour's opinion complete, and the point of confusion is his assignment of a GAF score, which, as the appellant has argued successfully above, is a "matter of [medical] opinion" and not a lack of clarity due to an objective factual gap. Id. The Court, therefore, finds that the Board committed no error in failing to consider whether it should seek clarification of Dr. Jabbour's May 2008 opinion. The appellant also extends his argument under 38 C.F.R. § 4.2 and Savage to a set of treatment notes from Dr. Jabbour dating from July 2008 until September 2009. Appellant's Br. at 7 17-18; R. at 71-76. The appellant argues that "because these private medical opinions provided favorable medical evidence that was 'not otherwise included in the record,' the Board was required to seek clarification of these opinions." Appellant's Br. at 14, 17. The appellant does not address the standard set forth in Savage and, consequently, fails to demonstrate why the Board had a duty to either seek clarification or explain why it did not. Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (holding that the appellant bears the burden of demonstrating error on appeal). The Court finds no error in the Board's decision not to discuss whether VA had a duty to seek clarification of these treatment records. 3. Other Arguments The appellant does not make any other specific arguments about the Board's consideration of his PTSD claim. However, at several points in his brief, the appellant insinuates that the Board offered an inadequate statement of reasons or bases for the probative value it assigned to Dr. Jabbour's opinion (beyond the GAF score considered above), the probative value it assigned to Dr. Jabbour's treatment notes, and for its findings in general. See Appellant's Br. at 14, 17. To the extent that the appellant is raising these additional arguments, he has not developed them to a sufficient degree for the Court to consider them. See Coker v. Nicholson, 19 Vet.App. 439, 442 (2006) ("The Court requires that an appellant plead with some particularitythe allegation of error so that the Court is able to review and assess the validity of the appellant's arguments."), rev'd on other grounds sub nom. Coker v. Peake, 310 F. App'x 371 (Fed. Cir. 2008) (per curiam order); see also Locklear v. Nicholson, 20 Vet.App. 410, 416 (2006) (holding that the Court will not entertain underdeveloped arguments); Hilkert, 12 Vet.App. at 151. B. TDIU Pursuant to 38 C.F.R. § 4.16(a) (2011), TDIU is warranted when a veteran who is unable to secure or follow a substantially gainful occupation because of service- connected disabilities has either one service-connected disability rated at least 60% disabling or multiple service-connected disabilities yielding a combined rating of 70% (with at least one of those disabilities rated 40% or more). The Board determined that the appellant's service-connected disabilities satisfy the percentage requirement for TDIU. R. at 10. The Board also determined that the appellant is currently unemployable. R. at 10-11. The issue upon which the appellant's case hinges, therefore, 8 is whether his unemployability is due to his service-connected disabilities. The Board analyzed evidence that potentially reveals that the appellant is unemployable as a result of his service-connected PTSD, as well as other evidence that potentially reveals that the appellant is unemployable as a result of a non-service-connected knee and lower extremity disorder. Id. When, as here, a veteran is unemployable and suffers from a combination of service-connected and non-service-connected disabilities, "a determination concerning unemployability . . . must be made on the basis of service-connected disabilities alone." Pratt v. Derwinski, 3 Vet.App. 269, 272 (1992); see also Hatlestad v. Brown, 5 Vet.App. 524, 529 (1993). In Pratt, the Court further explained: Even if . . . the [Board] determined that appellant's unemployability was a result of his age and non-service-connected . . . condition, its task was not finished. The [Board] was required to decide, without regard to the non-service- connected disabilities or his age, whether appellant's service-connected disabilities are sufficiently incapacitating as to render him unemployable. Id.; see also Van Hoose v. Brown, 4 Vet.App. 361, 363 (1993) (holding that, in adjudicating TDIU, "neither appellant's non-service-connected disabilities nor his advancing age may be considered"). The appellant argues that the Board's statement of reasons or bases for its rejection of his application for TDIU is inadequate because the Board failedto adequatelyconsider the findings of the June 2008 VA examiner, including whether symptoms identified by the examiner may be related to the appellant's service-connected disabilities. Appellant's Br. at 18-24. 1. June 2008 VA Examination The appellant argues that theBoarddid not provideanadequatestatementof reasons or bases for accepting the June 2008 examiner's findings for the purpose of denying his PTSD claim but rejecting the examiner's findings to the extent they support his claim for TDIU. Appellant's Br. at 18-20, 22. In considering the June 2008 examination report, the Board stated: During the June 2008 VA psychiatric examination, the [appellant] reported that he retired from his job following an anxiety attack brought on bythe ringing phones and heavy workload. While the VA examiner found that the [appellant's] anxiety attack at work was due to PTSD, the examiner alsoconcluded that the [appellant's] decrease in employment functioning was due to his increased stress from serving as his wife's primary caretaker and from his hospitalization for obstructed bowel. The examiner did not find that the [appellant] was unemployable due to PTSD, and the record 9 contains no other medical evidence of unemployabilitydue to anyof the [ appellant's] service-connected disabilities. R. at 10-11; see R. at 468-49. The appellant's assertion that the Board "rejected" the June 2008 examiner's findings is incorrect. The Board considered the examiner's findings and found they did not support an award of TDIU, which it is entitled to do. See Owens, supra. The appellant, however, raises additional issues regarding the Board's consideration of this evidence that reveal Board error. As the appellant notes, the Board relied on the appellant's statements in his application for TDIU and the statements submitted by his coworkers and supervisor to conclude that the appellant is "unemployable due to non-service-connected arthritis of the lower extremities." R. at 11. The appellant argues that the Board inappropriately relied on this evidence, rather than the June 2008 examination report, to reach its conclusion that TDIU is not warranted. Appellant's Br. at 19. The Board, throughout its discussion of the appellant's application for TDIU, misconstrues and misapplies the Court's caselaw regarding when an appellant is unemployable as a result of both service-connected and non-service-connected disabilities. Pursuant to Pratt, the Board may, as it did here, determine that the appellant's unemployabilityis due to a non- service-connected condition. 3 Vet.App. at 272. However, once it has done so, it must consider, without taking into account the appellant's non-service-connected condition, whether his service-connected disabilities are independently sufficient to render him unemployable. Id. In this case, the Board weighed evidence of unemployability for his service-connected disorders against the evidence of unemployability for his non-service-connected disorders to reach its conclusion, and did not engage in the kind of analysis contemplated by Pratt. Moreover, the Board concluded that the record "does not establish that [ the appellant's] inability to maintain gainful employment is due solely to service- connected disabilities." R. at 10 (emphasis added). Theappellant's unemployabilityneednotbe"duesolely"to his service-connected disorders. Rather, the appellant's service-connected disorders, considered alone, should be sufficiently severe that they might render him unemployable even in the absence of non-service- connected disabilities. Pratt, 3 Vet.App. at 272. For these reasons, the Court finds the Board's statement of reasons or bases supporting its conclusion concerning the appellant's application for 10 TDIU to be inadequate. See 38 U.S.C. § 7104(d)(1); Allday, Caluza, and Gilbert, all supra. 2. Additional Symptoms The appellant next argues that the Board's statement that the appellant's " decrease in employmentfunctioningwasdueto hisincreasein stressfrom servingashiswife's primarycaretaker and from his hospitalization for an obstructed bowel" fails to take into account whether "stress" or "an obstructed bowel" may themselves be related to a service-connected disorder. Appellant's Br. at 21-24 (citing R. at 11). The Board's finding arises from a statement in the June 2008 examination report. The examiner noted that the appellant has suffered from "mild PTSD symptoms for many years, but managed to function well at home and at work." R. at 469. The examiner then stated that the "stress of serving as primary caretaker of wife, along with recent hospitalization due to obstructed bowel aremore likelyas not responsible for decline in functioning." Id. The appellantasserts that, contrary to the Board's interpretation of these statements, the examiner determined that the appellant's "PTSD symptoms had increased because of his wife's illness and a recent hospitalization for a stomach disorder." Appellant's Br. at 21. The Court, however, finds no reason to dispute the Board's conclusions. The examiner made the comments at issue while considering the " extent to which disorders other than PTSD are independently responsible for impairment in psychological adjustment/life quality." R. at 469. The appellant has not demonstrated, therefore, that the Board is clearly erroneous in interpreting the examiner's findings to mean that the appellant's functioning declined as a result of stress and an obstructed bowel rather than that the appellant's stress and obstructed bowel caused his PTSD to worsen. The Court finds no error on this point. To the extent that the appellant has made any additional argument concerning the Board's consideration of his reported stress, it is not clear enough for the Court to discern. See Coker, Hilkert, and Locklear, all supra. Therefore, the Court finds that the Board did not err in failing to discuss whether the stress identified by the June 2008 examiner is related to a service-connected disorder. The Court's disposition defeats any argument the appellant has raised linking his obstructed bowel to his PTSD. The Court does, however, agree with the additional argument raised by the appellant that neither the Board nor the June 2008 VA examiner considered whether his obstructed 11 bowel is related to his service-connected residuals of a stomach wound and splenectomy. Appellant's Br. at 22-24. The Secretary merely asserts that the appellant is not service-connected for an obstructed bowel disorder and is not responsive to the appellant's argument.3 Secretary's Br. at 12-13. The report from the appellant's April 2008 CT scan reveals that the appellant was suffering from a distended stomach, distended small bowel loops, gallbladder wall thickening and/or pericholecystic fluid, and a small amount of fluid in the mesentery. R. at 124. The test results were "suspicious for small bowel obstruction." R. at 125. According to the appellant's May 1986 rating decision, after suffering his abdominal wound, he underwent both a splenectomy and a resection of the colon and jejunum. R. at 538. The appellant later complained of pain in his stomach and chest. Id. An x-ray demonstrated that he had a "large amount of retained gastric content which could be due to gastric outlet obstruction." Id. His abdomen contained a "massive" surgical scar and "multiple" smaller scars. Id. The Board has a duty to address all issues reasonably raised either by the appellant or by the contents of the record. See Robinson v. Peake, 21 Vet.App. 545, 552-56 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); see also Brannon v. West, 12 Vet. App. 32, 34 (1998). The record appears to reveal that the appellant suffered significant trauma to a large portion of his abdomen, including his small bowel, as a result of his in-service combat wounds. The Board, therefore, should have discussed whether his service-connected abdominal disorders had any relation to the obstructed bowel disorder that it found contributed to his decrease in employability. The Board's statement of reasons or bases is thus inadequate. See 38 U.S.C. § 7104(d)(1); Allday, Caluza, and Gilbert, all supra. 3. Other Matters In his brief, the appellant lists a number of findings from the June 2008 examiner's report that the Board did not explicitly consider. Appellant's Br. at 20. The appellant, however, makes no argument that the Board's failure to consider that evidence is in error. To the extent that he is 3 The Court has warned the Secretary that failure to address all arguments may result in the Court determining those points are conceded. MacWhorter v. Derwinski, 2 Vet.App. 655, 656 (1992). 12 attempting to make an argument to that effect, it is not developed to a degree sufficient for the Court to consider it. See Coker, Hilkert, and Locklear, all supra. Finally, the Court notes that on remand, the appellant is free to submit additional evidence and argument on the remanded matters, and the Board is required to consider any such relevant evidence and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002) (stating that, on remand, the Board must consider additional evidence and argument in assessing entitlement to benefit sought); Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). The Court has held that "[a] remand is meant to entail a critical examination of the justification for the decision." Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991). The Board must proceed expeditiously, in accordance with 38 U.S.C. § 7112 (requiring Secretary to provide for "expeditious treatment" of claims remanded by the Court). III. CONCLUSION After consideration of the appellant's and Secretary's pleadings, and a review of the record, the Board's July 30, 2010, decision is VACATED, and the matter is REMANDED to the Board for further proceedings consistent with this decision. DATED: March 16, 2012 Copies to: Virginia A. Girard-Brady, Esq. VA General Counsel (027) 13