Friday, April 20, 2012

Single Judge Application, Vocational Rehab., Entitlement to Full Explanation; Freeman v. Shinseki, 24 Vet.App. 404, 417 (2011)

Excerpt from decision below: "Further, although the Secretary is correct that the Court reviews the Board's determination that a vocational goal is not reasonably feasible under the "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" standard of review, Kandik v. Brown, 9 Vet.App. 434, 438 (1996) (citing 38 U.S.C. § 7261(a)(3)(A)), that highly deferential standard does not relieve the Board of its duty to provide an adequate statement of reasons or bases for its application of the detailed VA regulations governing the award of vocational rehabilitation benefits. See Freeman v. Shinseki, 24 Vet.App. 404, 417 (2011) (holding that an appellant would "be entitled to a full explanation . . . of the reasons or bases for the Board's decision" regarding the Secretary's discretionary appointment of a particular fiduciary). ============= ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 11-0425 ABDULLAH SHABAZZ, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before HAGEL, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. HAGEL, Judge: Abdullah Shabazz appeals through counsel an October 12, 2010, Board of Veterans' Appeals (Board) decision denying entitlement to vocational rehabilitation benefits and training as a paralegal (non-lawyer legal assistant). Record (R.) at 3-16. Mr. Shabazz's Notice of Appeal was timelyand the Court has jurisdiction to review the Board decision pursuant to 38 U.S.C. § 7252(a). The parties neither requested oral argument nor identified issues that theybelieve require a precedential decision of the Court. Because the Board's statement of reasons or bases for its decision was inadequate, the Court will vacate the October 12, 2010, Board decision and remand the matter for readjudication consistent with this decision. I. FACTS Mr. Shabazz served on active duty in the U.S. Army from May 1955 to October 1958. He currentlyhas a 20% combined disability rating for a left wrist strain and residuals of fractures of two bones of the left hand. Although all documents relevant to the claim are not contained in the record of proceedings, it appears that Mr. Shabazz has been seeking vocational rehabilitation benefits since at least 1984. Mr. Shabazz's most recent claim for vocational rehabilitation benefits began in June 2001, when he expressed interest in training to become a paralegal. However, in July 2002, a VA regional office denied Mr. Shabazz's claim for vocational rehabilitation benefits and training as a paralegal. Specifically, the regional office found that it was not reasonably feasible for Mr. Shabazz to complete a two-year paralegal certification program offered by a local community college because (1) the job outlook for certified paralegals in the local market was poor given the surplus of attorneys seeking similar employment; (2) he failed to complete previous VA vocational rehabilitation programs; and (3) "were he to complete such a program successfully, he would be 67 years of age upon program completion." R. at 2138. Mr. Shabazz filed a timely Notice of Disagreement with that decision, stating that he had been accepted into the aforementioned paralegal training program at the community college and requesting a hearing to determine whether he was entitled to "immediate financial support to meet [his] academic goal and requirements." R. at 549. He subsequently perfected his appeal. In April 2009, Mr. Shabazz was afforded a hearing before a Board member.1 At that time, Mr. Shabazz testified that he previously submitted a letter to VA from attorney Alan D. Eisenberg stating that he would hire Mr. Shabazz as a paralegal once he completed the training program. Mr. Shabazz also stated that he had another, similar letter from attorney Alfred Albertson, but that he forgot to bring it with him to the hearing. At the conclusion of the hearing, the Board member indicated that he would leave the record open for 30 days so that Mr. Shabazz could submit any additional documents that he had in his possession. However, Mr. Shabazz failed to do so. Nevertheless, in August 2009, the Board remanded his claim for further development. In January 2010, a VA vocational counselor reevaluated the feasibility of Mr. Shabazz's vocational goal of becoming a paralegal. The counselor noted that Mr. Shabazz's "interests, aptitudes[,] and abilities" were consistent with those of a paralegal and that his "general medical condition" would not "limit him physically in the usual activities of a paralegal." R. at 2481. However, the counselor also explained that Mr. Shabazz had "a troubling legal history," including 1 It is unclear from the parties' briefs and the record of proceedings why it took nearly six years to schedule the requested hearing. See R. at 549 (September 2002 Notice of Disagreement), 524-28 (March 2003 Statement of the Case), R. at 73 (references to a June 2006 Supplemental Statement of the Case, a July 2006 VA Form 9, and an October 2006 certification of the appeal to the Board), 143-84 (transcript from the April 2009 Board hearing). 2 multiple felony convictions for forgery and dealing in false securities, which made "finding gainful employment as a paralegal . . . remote at best," particularly considering the limited local job market for paralegals. R. at 2482. The counselor confirmed this hypothesis with the regional counsel at the local regional office, who stated that Mr. Shabazz's "'propensity toward not being honest' would be a barrier to securing employment in the legal arena generally, and that VA would not hire a paralegal with an extensive legal history." Id. Finally, the counselor noted that Mr. Shabazz would face "[a]dditional projected difficulties" because he had been unemployed for over 10 years, with "significant restriction on employability resulting from his age of 72." R. at 2483. Therefore, the counselor concluded that it was not reasonably feasible for Mr. Shabazz to achieve his occupational goal of obtaining employment as a certified paralegal. InOctober2010,the Board issued the decision currentlyonappeal, whichdeniedentitlement to vocational rehabilitation benefits and training as a paralegal. The Board reviewed the evidence of record and noted that, in the April 2009 Board hearing, Mr. Shabazz indicated that he "submitted to his counselor two letters from local attorneys who stated that they would hire [him] in a[n] apprenticeship program," but that "[those] letters are not of record nor have they been mentioned in VA counselor reports." R. at 11. The Board then acknowledged Mr. Shabazz's " legal history of convictions for fraud, misrepresentation, and unsatisfied judgments" and noted that "the applicable state law does permit denial of employment if the felony convictions are substantially related to the job" and that "[a] national paralegal association and the Wisconsin State Bar both support the denial of licensure as a paralegal to those convicted of crimes of moral turpitude." R. at 15-16. In light of those barriers, the Board concluded that it was not reasonably feasible for Mr. Shabazz to secure employment as a paralegal. II. ANALYSIS A. Duty To Assist Mr.Shabazz firstargues thattheBoard's determination thatVAsatisfiedits dutyto assist was clearlyerroneousbecauseVAgenerally,andtheBoardmemberspecifically, wererequiredto inform him that the attorney letters that he referenced at the April 2009 Board hearing were not in the record. The Court disagrees. 3 1. Duties of a VA Hearing Officer "Upon request, a claimant is entitled to a hearing at anytime on anyissue involved in a claim within the purview of part 3 of [title 38 of the Code of Federal Regulations.]" 38 C.F.R. § 3.103(c)(1) (2011). "It is the responsibility of the [VA] employee or employees conducting the hearings to explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant's position [ on appeal]." 38 C.F.R. § 3.103(c)(2). This provision "imposes . . . two distinct duties on the hearing officer . . . : The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked." Bryant v. Shinseki, 23 Vet.App. 488, 492 (2010) (per curiam). These requirements are designed "'[t]o assure clarity and completeness of the hearing record.'" Thomas v. Nicholson, 423 F.3d 1279, 1285 (Fed. Cir. 2005) (quoting 38 C.F.R. § 3.103(c)(2) ( 2005)); see also Bryant, 23 Vet.App. at 499. The Court notes that, on August 23, 2011, VA published a final rule " amending its hearing regulations to clarify that the provisions regarding hearings before the Agency of Original Jurisdiction do not apply to hearings before the Board of Veterans' Appeals," effective on that date. 76 Fed. Reg. 52572–75 (Aug. 23, 2011). This amendment was intended to make "clarifying changes" to reflect VA's intent to differentiate between the duties owed to claimants by hearing officers at the agency of original jurisdiction and Board members. See id. In this case, the Court need not reach the question of whether VA's recent amendment to § 3.103(c)(2) applies retroactively because, even assuming that it did not, Mr. Shabazz's arguments would lack merit. Specifically, Mr. Shabazz does not argue that the Board member failed to fully explain anyissues related to his claim, but rather asserts that the Board member failed to suggest that he submit evidence–i.e., the letters from attorneys stating that theywould hire him upon completion of his paralegal training–that was not in the record. However, the fatal flaw with this argument is that a hearing officer is onlyrequired to suggest that a claimant submit evidence that "mayhave been overlooked," not evidence that is simplymissing from the record. 38 C.F.R. § 3.103(c)(2) (emphasis added). Indeed, Mr. Shabazz concedes that § 3.103(c)(2) would not applyin his case because "[t]his situation does not involve [him] overlooking the evidence" because he was aware of the existence of the attorney letters and their importance to his claim. Appellant's Br. at 9; see R. at 153 (Mr. 4 Shabazz's testimony indicating that a vocational rehabilitation counselor previously told him to obtain such letters to substantiate his claim). Rather, Mr. Shabazz argues only that "the spir[i]t of 38 C.F.R. § 3.103(c)(2), as well as fundamental due process considerations, would requirethe Board member to suggest to him that he resubmit [the attorney letters]." Id. at 10. However, Mr. Shabazz does not cite any precedent for his argument that the Court should expand the duties of a hearing officer beyond those specificallyenumerated in § 3.103(c)(2), and the Court is unpersuaded by his vague and unsupported due process and fairness arguments. See Locklear v. Nicholson, 20 Vet.App. 410, 416 (2006) (holding that the Court will not entertain underdevelopedarguments);Brewerv.West,11Vet.App.228,236(1998)( explainingthattheCourt need not consider "mere assertions of constitutional impropriety for which [ the appellant] has not provided any legal support"). The Court therefore concludes that, even assuming that the amendment to § 3.103(c)(2) is not retroactive, Mr. Shabazz has failed to carry his burden of demonstrating that the Board member violated any duty imposed by that regulation. See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (holding that the appellant has the burden of demonstrating error), aff'd per curiam, 232 F.3d 908 (Fed. Cir. 2000) ( table). 2. VA's General Duty To Obtain Records "The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit under a law administered by the Secretary." 38 U.S.C. § 5103A(a)(1). This duty includes making " reasonable efforts to obtain relevant records (including private records) that the claimant adequately identifies to the Secretary and authorizes the Secretary to obtain." 38 U.S.C. § 5103A(b)(1). If the Secretary is unable to obtain all of the records sought, the Secretary must provide notice to the claimant that "identif[ies] the records that the Secretary was unable to obtain," "briefly explain[s] the efforts that the Secretary made to obtain those records," and "describe[s] any further action to be taken by the Secretary with respect to the claim." 38 U.S.C. § 5103A(b)(2). These requirements also apply to private documents. The Court reviews the Board's determination that VA satisfied its duty to assist under the "clearly erroneous" standard of review. Nolen v. Gober, 14 Vet.App. 183, 184 (2000). "A factual finding 'is "clearly erroneous" when although there is evidence to support it, the reviewing court on 5 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)). Here, Mr.Shabazz testified that he had a letterfrom attorneyAlbertson that he forgot to bring with him to the hearing, and the Board member directed that the record be held open for 30 days to allow him to submit it. Nevertheless, Mr. Shabazz did not do so. On appeal, Mr. Shabazz argues that his failure to submit the letter from attorney Albertson compelled VA to obtain it on his behalf. To accept this argument would be to impose on VA a quiescent duty to obtain records known to the claimant and within the claimant's exclusive possession that springs to life upon the claimant's inaction. However, "[t]he duty to assist is not always a one-way street" and a claimant seeking assistance "cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet.App. 190, 193 (1991). The duty to assist is just that: a requirement that VA assist the claimant in obtaining evidence to substantiate a claim, not a requirement that VA produce that evidence while the claimant rests on his laurels. Accordingly, the Court concludes that the Board's determination that VA satisfied its duty to assist Mr. Shabazz in obtaining the letter from attorney Albertson was not clearly erroneous. See Nolen, 14 Vet.App. at 184. Mr. Shabazz also testified that he had previously submitted a similar letter from attorney Eisenberg to his VA vocational rehabilitation counselor. Unlike the letter from attorney Albertson that Mr. Shabazz did not submit to VA and therefore had no reason to believe was in the record before the agency, Mr. Shabazz's testimony establishes that he believed that the letter from attorney Eisenberg was alreadyin the record and would therefore be considered bythe Board. Consequently, Mr. Shabazz argues that VA had a duty to assist him in obtaining that letter once the Board determined that it was not in the record. The Court notes that, aside from cursory references to 38 U.S.C. § 5103A( a) and (b), Mr. Shabazz does not cite any legal precedent in support of his argument. Rather, Mr. Shabazz merely asserts that "VA could easily have informed [him]" that the letter from attorney Eisenberg was not in the record before the agencyand that "[i]t is hardly an undue burden on VA to expect it to provide this minimal assistance." Appellant's Br. at 10; Appellant's Reply Br. at 4. Even assuming, as Mr. 6 Shabazz contends, that it would be "easy" for VA to review the record to determine whether it contains evidence that a claimant believes is in the record and inform the claimant of that missing evidence, Mr. Shabazz has failed to identify any statute, regulation, or legal precedent that requires VA to do so. The Court reminds Mr. Shabazz that "[t]he duty to assist is not boundless in its scope." Golz v. Shinseki, 590 F.3d 1317, 1320 (Fed. Cir. 2010). Absent any citation to legal authority supporting the requested extension of the duty to assist, the Court concludes that Mr. Shabazz has failed to carry his burden of demonstrating that the Board's determination that VA satisfied its duty to assist him in obtaining the letter from attorney Eisenberg was clearly erroneous. See Nolen, 14 Vet.App. at 184; Hilkert, 12 Vet.App. at 151. The Court has made it clear that, especially in a case where the appellant is represented by an attorney, the Court is not required to address an underdeveloped argument. See Locklear v. Nicholson, 20 Vet.App. 410, 416 ( 2006); cf. Redondo- Borges v. U.S. Dept. of Hous. & Urban Dev., 421 F.3d 1, 6 (1st Cir. 2005) (" Even during appellate review of a [dismissal for failure to state a claim], which takes place under a set of plaintiff-friendly guidelines, the reviewing court cannot be expected to 'do counsel's work, create the ossature for the argument, and put flesh on its bones.'" (quoting U.S. v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990))). The failures mentioned above place this case in that category. B. Reasons or Bases Mr. Shabazz next argues that the Board's statement of reasons or bases for its decision was inadequatebecausetheBoardfailedto considerevidencepotentiallyfavorableto his claimandfailed to explain why a barrier to employability rendered his vocational goal not reasonably feasible. The Court agrees. 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 enablea claimant to understand the precise basis for the Board's decision, as well as to facilitate review in this Court. Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). To comply with this requirement, the Board must analyze the credibilityand probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 7 1996) (table). The Board may commit error requiring remand when it fails to provide an adequate statement of its reasons or bases. See Gilbert, 1 Vet.App. at 57. Although Mr. Shabazz makes numerous arguments regarding the adequacy of the Board's statement of reasons or bases, the Court is persuaded by his argument that the Board failed to consider evidence that he was performing volunteer legal work for a civil rights organization under the supervision of licensed attorneys. Specifically, Mr. Shabazz notes that there is evidence in the record indicating that he conducts legal research and drafts correspondence to clients. These tasks are similar to those routinely performed by paralegals and it appears that Mr. Shabazz's criminal history was not a barrier to his securing such employment, albeit on a volunteer basis. The Board's decision rests primarily, if not solely, on the determination that Mr. Shabazz's particular vocational goal–i.e., qualification as a paralegal–is not reasonably achievable when considering the circumstance of his previous criminal record. This finding makes the evidence that he would be hired by two lawyers and that he currently works as a paralegal on a volunteer basis particularly probative regarding the issue of whether his criminal record is a barrier to the reasonable feasibility of employment. Accordingly, this evidence is potentially favorable to Mr. Shabazz's claim and the Board, therefore, was required to consider and discuss it in determining whether his vocational goal of becoming a certified paralegal was reasonably feasible. See Caluza, 7 Vet.App. at 506. The Board's failure to do so renders its statement of reasons or bases inadequate and, therefore, the Court concludes that vacatur and remand is warranted.2 See Tucker v. West, 11 Vet.App. 369, 374 (1998); Gilbert, 1 Vet.App. at 57. Further, although the Secretary is correct that the Court reviews the Board's determination that a vocational goal is not reasonably feasible under the "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" standard of review, Kandik v. Brown, 9 Vet.App. 434, 438 (1996) (citing 38 U.S.C. § 7261(a)(3)(A)), that highlydeferential standard does not relieve the Board of its duty to provide an adequate statement of reasons or bases for its 2 As noted above, Mr. Shabazz has raised other arguments relating to the Board's statement of reasons or bases for its decision. However, because the Court is remanding Mr. Shabazz's claim and the Board will necessarily render a new decision on remand, the Court need not address those arguments at this time. 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."). 8 application of the detailed VA regulations governing the award of vocational rehabilitation benefits. See Freeman v. Shinseki, 24 Vet.App. 404, 417 (2011) (holding that an appellant would "be entitled to a full explanation . . . of the reasons or bases for the Board's decision" regarding the Secretary's discretionary appointment of a particular fiduciary). Lastly, the Board placed great importance on the opinion of VA's regional counsel that Mr. Shabazz's vocational goal of becoming a certified paralegal would not be reasonably feasible in light of his criminal record. However, this opinion is only referenced in the January 2010 VA vocational counselor's report and is not contained in the record before the agency or the record of proceedings in this appeal. Therefore, the Court concludes that the Board erred in relyingon that opinion because it did not notify Mr. Shabazz that it would consider that extrinsic evidence and did not provide him with an opportunity to submit contrary evidence or argument. See Thurber v. Brown, 5 Vet.App. 119, 126 (1993); 38 C.F.R. § 20.903 (2011). On remand, Mr. Shabazz is free to submit additional evidence and argument in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order), and, in particular, is encouraged to submit the letters from attorneys Albertson and Eisenberg if they are still in his possession. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). "A remand is meant to entail a critical examination of the justification for the decision" by the Board. Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991). In addition, the Board shall proceed expeditiously, in accordance with 38 U.S.C. § 7112 (expedited treatment of remanded claims). III. CONCLUSION Upon consideration of the foregoing, the October 12, 2010, Board decision is VACATED and the matter is REMANDED for readjudication consistent with this decision. DATED: March 27, 2012 Copies to: Daniel G. Krasnegor, Esq. VA General Counsel (027) 9

Single Judge Application, Massie v. Shinseki, 25 Vet.App. 123, 131-32 (2011); 38 CFR 3.157(b)

Excerpt from decision below: "Accordingly, this Court has previously held that, unless the evidence of record demonstrates the veteran's intent to seek benefits for a particular disability, the mere existence of medical evidence referencing the disability, such as that cited by Mr. 9 Hester, does not raise an informal claim for such benefits. See Criswell v. Nicholson, 20 Vet.App. 501, 503–04 (2006). The only exception to this rule is that, pursuant to regulation, certain medical records demonstrating a worsening in a veteran's disability that is already service connected may constitute an informal claim for an increased disability rating for that disability. See 38 C.F.R. § 3.157(b) (2011); see also Massie v. Shinseki, 25 Vet.App. 123, 131-32 (2011) (discussing the requirements of § 3.157(b)). ================ ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 10-3072 ANTE HESTER, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before HAGEL, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. HAGEL, Judge: Ante Hester, who is self-represented,1 appeals a December 17, 2009, Board of Veterans' Appeals (Board) decision2 denying entitlement to an initial disability rating for a cervical spine disability in excess of 20% from December 14, 1993, to August 16, 2001, and in excess of 60% from August 16, 2001, onward.3 Mr. Hester's Notice of Appeal was timely and the Court has jurisdiction to review the Board decision pursuant to 38 U.S.C. § 7252(a). The parties neitherrequestedoralargumentnor identified issues that theybelieve requireaprecedentialdecision 1 Mr. Hester's principal brief was submitted through counsel, but the Court issued an order granting his former counsel's motion to withdraw on September 22, 2011. The Board's decision was issued on December 17, 2009. Mr. Hester subsequently filed a motion for reconsideration, which was denied by the Board on September 8, 2010. The Board also granted entitlement to VA benefits for a left elbow disability. However, on appeal, Mr. Hester presents no argument related to this aspect of the Board decision and the Court therefore deems any such argument abandoned. See Grivois v. Brown, 6 Vet.App. 136, 138 (1994) (issues or claims not argued on appeal are considered abandoned). The Board also remanded the issue of entitlement to a total disability rating based on individual unemployability for further development. Because the Board has not yet issued a final decision regarding this issue, the Court does not have authority to consider it at this time. See 38 U.S.C. § 7252 (providing that the Court may only review final decisions of the Board); see also Howard v. Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000) (holding that a Board remand does not constitute a final decision that may be appealed (citing 38 C.F.R. § 20.1100(b)(1999))). 3 2 of the Court. Because the Board provided an adequate statement of reasons or bases for its decision, the Court will affirm the September 2010 Board decision. I. FACTS Mr. Hester served on active duty with the U.S. Army from October 1993 to December 1993. He was discharged from active duty after a medical board determined, in October 1993, that he did not meet medical fitness standards for enlistment due to the residuals of a preexisting left elbow fracture"with intermittent symptoms ofnumbnessand tinglingin the ulnar nervedistribution aswell as the middle finger on the left hand" that occasionally spread to the index finger. Record (R.) at 1735. The medical board noted that, a week prior to its determination, Mr. Hester fell and subsequently "developed some muscle spasm on the left side of his neck." R. at 1735. In January 1994, shortly after his separation from active duty, Mr. Hester filed a claim for VA benefits for a neck injury resulting from the in-service fall. Mr. Hester was provided a VA muscles examination in April 1994. After a physical examination and the interpretation of x-rays taken at that time, the examiner diagnosed Mr. Hester with a left neck muscle strain and ruled out cervical radiculopathy.4 In June 1994, a VA regional office awarded Mr. Hester VA benefits for a left neck muscle strain, evaluated as 10% disabling, effective January 1994. Mr. Hester filed a Notice of Disagreement with this decision in November 1994 and, in December 1994, the regional office issued a Statement of the Case continuing the previous determination. In January 1995, Mr. Hester submitted a statement requesting a personal hearing and notification of what further action would be taken. VA medical records from 1996 indicate that Mr. Hester sought treatment for various problems. A January 1996 VA treatment note reflects that Mr. Hester reported intermittent headaches with photophobia, the sensation of seeingblackdots, andpressure. Theimpression atthat time was probable vascular headaches. A March 1996 VA treatment note reflects continued complaints of headaches and blurry eyesight. A VA treatment note from September 1996 indicates Radiculopathy is "disease of the nerve roots, such as from inflamation or impingement by a tumor or bony spur." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1571 (32d ed. 2012) [ hereinafter "DORLAND'S"]. 4 2 that Mr. Hester complained of neck pain with right arm numbness. The only assessment was neck pain. A VA neurological clinic note from October 1996 indicates that Mr. Hester reported headaches, tingling in both of his hands, and numbness in his right arm. Mr. Hester told the examiner that his headaches had plagued him since childhood and caused some visual problems, but no nausea or vomiting. The examiner's impression was variable headaches and numbness and tingling on both hands. Peripheral neuropathy5 and cervical radiculopathy were ruled out. Mr. Hesterwasaffordeda VA joints examination in February1997. The examiner noted that computedtomographyscansofMr.Hester'sheadperformedin February1996werenegativeandthat nerve conduction velocity studies performed on his left upper extremity in March 1995 were negative for radiculopathy, neuropathy, and carpal tunnel disease. After physical examination, the examiner diagnosed a chronic strain of the cervical spine. In June 1997, the regional office issued a rating decision denying a disability rating in excess of 10% for a left neck muscle strain. Although not entirely clear, it appears that the regional office made this determination in the context of a new claim for an increased disability rating. There is no indication that Mr. Hester appealed this decision, meaning it became final. A November 2000 VA physical therapy initial evaluation report reflects that Mr. Hester complained of increased pain in his spine described as "intermittent and . . . localized to the left upper trapezius muscle with some radiation into the upper cervical spine, radiating into the occiput as well as to the parietal lobe, experiencing the pain as headaches." R. at 1589. The assessment at that time was "signs and symptoms of [a] left upper trapezius strain." R. at 1589. A March 2001 VA x-ray report contained an impression of cervical spondylosis. A subsequent VA treatment note from May 2001 reflects that Mr. Hester complained of recent loss of balance and continuing headaches, neck pain, and neck spasms. The impression was (1) cervical spondylosis, (2) myofascial6 pain, and (3) headaches secondary to the cervical spondylosis and myofascial pain, or of another etiology. Peripheral neuropathy, or polyneuropathy, is "neuropathy of several peripheral nerves simultaneously." DORLAND'S at 1491. Neuropathy is "a functional disturbance or pathological change in the peripheral nervous system, sometimes limited to noninflammatory lesions as opposed to those of neuritis." Id. at 1268. The term "myofascial" means "pertaining to or involving the fascia surrounding and associated with muscle tissue." DORLAND'S at 1223. 6 5 3 In August 2001, Mr. Hester submitted a statement "requesting a current review of [his] present condition as it relates to spondylosis, facial pain[,] and migraine headaches." R. at 1480. The regional office treated this statement as a claim for an increased disability rating for his service- connected left neck muscle strain and initial claims for VA benefits for cervical spondylosis and myofascial pain with headaches, both secondary to his service-connected left neck muscle strain. Each of these claims was denied by the regional office in a June 2002 rating decision. The claims for benefits for myofascial pain with headaches and cervical spondylosis were both denied because there was no evidence that they were related to the service-connected left neck muscle strain or that the conditions manifested in service. Mr. Hester filed a Notice of Disagreement with this decision in December 2002. Mr. Hester was afforded VA spine examinations in September 2002 and July 2003, during which range of motion testing was conducted and magnetic resonance imaging and electromyography testing results were reviewed. The September 2002 examiner diagnosed Mr. Hester with "[c]ervical spondylosis with foraminal stenosis" and the July 2003 examiner assessed him with "[i]ntervertebral dis[c] syndrome with radicular symptoms and cervical spondylosis with foraminal stenosis." R. at 1347, 977. The July 2003 examiner further opined that "it is at least as likely as not that the continued progression of [Mr. Hester's] symptoms are related to the onset of symptoms in service." R. at 977. Separate Statements of the Case were issued in October 2002 (continuing to deny an increased disability rating for a service-connected left neck muscle strain) and September 2003 (continuing to deny, among other claims, Mr. Hester's claim for VA benefits for myofascial pain with headaches). Also in September 2003, a decision review officer granted Mr. Hester's claim for benefits for cervical spine spondylosis and assigned a 10% disability rating, effective August 16, 2001. This award of benefits was made in addition to the existing award of benefits for a left neck muscle strain. Mr. Hester filed a Notice of Disagreement with this decision later that month. In November 2003, Mr. Hester submitted a statement indicating that he "[d] isagree[ed] with all of the [i]ssue[s] on appeal" and that he wanted "a decision on all [of his] [i]ssue[s]." R. at 770, 771. 4 In March 2004, a decision review officer issued another decision. At the outset, the decision review officer noted that other issues remained pending following the issuance of Statements of the Case, including Mr. Hester's claim for benefits for myofascial pain syndrome with headaches. The decision reviewofficerfoundthatMr.Hester's service- connectedleftneckmusclestrainandcervical spondylosis should betreatedasonedisabilityandthat"[t]he evaluation of cervical spondylosis with chronic muscle strain of the left neck [was] increased to 60% disabling effective August 16, 2001." R. at 587. The decision review officer rated this condition pursuant to the rating criteria for intervertebral disc syndrome, 38 C.F.R. § 4.71a, Diagnostic Code 5293 ( 2001).7 In establishing this disability rating, the decision review officer relied on "[m]edical evidence show[ing] significant impairment in the neck and left arm with lesser symptoms in the right arm," and stated that the 60% disability rating "include[d] all neurological symptoms in the arms." R. at 587. In October 2007, Mr. Hester requested revision of the June 1994 regional officedecision that awarded benefits for a left neck muscle strain and assigned a 10% disability rating, alleging that that decision was tainted by clear and unmistakable error. After further development, in July 2009 the Board dismissed this motion as untimely because it found that Mr. Hester's January 1995 statement regarding his neck claim was filed "within the one year appeals period from the denial of the claims" and was sufficient to demonstrate his intent to pursue an appeal of the issues decided in the June 1994 regional office decision. R. at 166. Accordingly, the Board found that the regional office mistakenly "failed to certify the issues to the Board, . . . the Board . . . never [took] any action," and the appeal therefore remained open. R. at 166. The Board remanded Mr. Hester's claim for benefits for a left neck muscle strain for further development and readjudication. In October 2009, the regional office issued a Supplemental Statement of the Case continuing to deny an initial disability rating for a service-connected left neck muscle strain in excess of 10% for the period between December 14, 1993, and August 16, 2001, whenMr. Hester's disabilityrating was increased to 60%. The following month, Mr. Hester appealed to the Board, arguing that, because his appeal remained open, the effective date for the March 2004 award of a 60% disability rating should have been effective from the date of his claim. 7 Becausethediagnosticcriteriachanged duringthependencyofMr. Hester'sappeal, thedecisionreviewofficer determined that the previous version would result in a higher disability rating,and therefore applied it. 5 TheBoardissuedthe decision now on appeal in December 2009. The Board framedtheissue before it as Mr. Hester's entitlement to an initial disability rating for a "cervical spine disability" in excess of 10% for the period from December 14, 1993 (the date Mr. Hester filed a claim for a neck injury), to August 16, 2001 (the effective date established by the March 2004 decision for a 60% disability rating for cervical spondylosis with chronic muscle strain of the left neck). R. at 94. II. ANALYSIS 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, as well as to facilitate review in this Court. See Gilbert v. Derwinski, 1 Vet.App. 49, 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 to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). The Board may commit error requiring remand when it fails to provide an adequate statement of its reasons or bases. See Gilbert, 1 Vet.App. at 57. Mr. Hester argues that the Board's reasons or bases for its decision were inadequate in four respects, all of which pertain to the disability rating established prior to August 16, 2001. A. Extraschedular Consideration First, Mr. Hester contends that the Board failed to adequately explain its determination that referral for extraschedularconsideration was not warranted for the period of time prior to August 16, 2001. Consideration of whether a claimant is entitled to an extraschedular rating is a three-step inquiry. Thun v. Peake, 22 Vet.App. 111, 115 (2008), aff'd, 572 F.3d 1366 ( Fed. Cir. 2009). The first step is to determine whether the "evidence before VA presents such an exceptional disability picture that the availableschedular evaluations for that service-connected disabilityare inadequate." Id. If the adjudicator determines that this is so, the second step of the inquiryrequires the adjudicator to "determine whether the claimant's exceptional disability picture exhibits other related factors," 6 such as marked interference with employment or frequent periods of hospitalization. Id. at 116. Finally, if the first two steps of the inquiry have been satisfied, the third step requires the adjudicator to refer the claim to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether an extraschedular rating is warranted. Id. TheBoardconcludedthat,priorto August16,2001,Mr.Hester's"service- connectedcervical spine disability manifest[ed] with pain and limitation of motion, with associated neurological symptoms of sensorydeficit." R. at 112. However, the Board further concluded that its examination of Mr. Hester's symptoms and the relevant schedular criteria reflected that "these symptoms are contemplated by the rating criteria." R. at 112. The Board therefore concluded that referral for extraschedular consideration was not warranted. Mr. Hester argues that, by discussing only his symptoms of pain, limitation of motion, and neurological sensory deficits, the Board ignored evidence suggesting that, prior to August 2001, he alsosufferedfromsymptoms suchasheadaches,blurredvision, lossofbalance, andmyofascialpain. He further asserts that there is evidence that these symptoms may be attributable to his service- connected neck condition, including the May 2001 VA treatment note that included an assessment of headaches possibly secondary to the cervical spondylosis or myofascial pain. Accordingly, he contends that the Board should have discussed whether these symptoms warranted referral for extraschedular consideration. The Court disagrees. The record indicates that, since Mr. Hester filed a statement in August 2001 requesting review of his condition as it relates to myofascial pain and migraine headaches, the regional office has recognized a separate claim for disability compensation benefits for a condition characterized by such symptoms, including as secondary to Mr. Hester's service-connected neck/cervical spine condition. The record further indicates that the regional office denied this claim in June 2002, that Mr. Hester filed a Notice of Disagreement with this decision, and that the regional office issued a Statement of the Case continuing to deny this claim in September 2003. The Court notes that, in November 2003, Mr. Hester filed a statement expressing that he "[d]isagree[ d] with all of the [i]ssue[s] on appeal" and requesting "a decision on all [his] [i]ssue[s]." R. at 770, 771. In January 2012, the Court issued an order directing "the Secretary to supplement the record of proceedings with all documents pertaining to VA's adjudication of the claim for benefits for 7 myofascial pain syndrome with headaches" in an effort to better assess the status of this claim. Hester v. Shinseki, U.S. Vet. App. No. 10-3072 (Jan. 20, 2012, order).8 Although the Secretaryfiled a supplemental record of proceedings in February 2012, the evidence contained in this supplement is either duplicative of that already contained in the original record of proceedings or simply does not relate to Mr. Hester's claim for benefits for myofascial pain with headaches. The Court is therefore left to assume that VA has taken no further adjudicatory action on this claim since the September 2003 Statement of the Case. The Court is troubled by this state of affairs, given Mr. Hester's November2003statementthatappearsto request appellatereview of all issues thenpending in appellate status, which would presumablyinclude the denial of his claim for myofascial pain with headaches. Nevertheless, because the issue of the denial of benefits on that claim is not currently before the Court, the Court makes no finding at this time regarding whether the November 2003 statement constituted a Substantive Appeal, since the Court would lack jurisdiction to do so. Regardless, it is apparent from the record that VA has determined that Mr. Hester's myofascial pain, headaches,and attendant symptoms are attributable to a disabilityseparate from his service-connected cervical spine disability, and that this disability is not secondary to the cervical spine disability or otherwise related to his service. This being so, these symptoms are not pertinent to the service-connected cervical spine disability that is at the heart of this appeal and the Board was therefore not required to discuss them when conducting an extraschedular analysis. See 38 C.F.R. § 3.321 (2011) (expresslystating that extraschedular evaluation should compensate for "the average earning capacity impairment due exclusively to the service-connected disability or disabilities" (emphasis added)); see also 38 U.S.C. § 7104(d)(1) (providing that the Board must provide a statement of its reasons or bases for its findings and conclusions only " on . . . material issues of fact and law presented on the record" (emphasis added)); Caluza, 7 Vet.App. at 506 (stating that the Board's obligation to explain its determinations requires it to explain its rejection of any material evidence that is favorable to the claimant). In reaching this conclusion, the Court emphasizes that The Court also offered Mr. Hester an opportunity to supplement the record with any documents he felt were relevant but had not been included in the supplement filed by the Secretary, see Hester v. Shinseki, U.S. Vet. App. No. 10-3072 (Mar. 15, 2012, order), but, on March 20, 2012, he filed a response indicating that he had nothing more to add. 8 8 the propriety of the regional office's determination that Mr. Hester's disorder characterized as myofascial pain with headaches is not service connected is simply not before the Court at this time. In light of this discussion, the Court concludes that Mr. Hester has not carried his burden of demonstrating error in the Board decision now on appeal. See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (holding that appellant has the burden of demonstrating error), aff'd per curiam, 232 F.3d 908 (Fed. Cir. 2000) (table). B. Claims Reasonably Raised by the Record Mr. Hesternext argues that the Board's statement of reasons or bases was inadequate because "the decision on appeal fails to explain why the evidence of headaches, blurred vision, and loss of balance—and evidence that these problems are associated with service- connected cervical spine disability—were not additional claims reasonably raised by the record." Appellant's Br. at 15. This argument is not compelling. First, and as noted above, the record reflects that VA has recognized and adjudicated a claim for myofascial pain syndrome with headaches since Mr. Hester filed his August 2001 statement requesting a review of his condition as manifested by facial pain and headaches. Because VA has recognized and adjudicated such a claim, Mr. Hester's argument that the Board should have discussed the possibility that evidence of headaches raised a separate claim is without merit. To the extent that Mr. Hester's argument is that VA should have recognized the possibility of a claim for a separate condition manifested by blurred vision and loss of balance, in support of this argument, he cites only to various medical records documenting these symptoms. However, it is now well established that an intent to apply for benefits is an essential element of any claim, whether formal or informal, and that such intent must be expressed in writing. See Brokowski v. Shinseki, 23 Vet.App. 79, 84 (2009) (explaining that "the essential requirements of any claim, whether formal or informal," are "(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing"); see also 38 C.F.R. § 3.1(p) (2011) (defining a "claim" as "a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement"). Accordingly, this Court has previously held that, unless the evidence of record demonstrates the veteran's intent to seek benefits for a particular disability, the mere existence of medical evidence referencing the disability, such as that cited by Mr. 9 Hester, does not raise an informal claim for such benefits. See Criswell v. Nicholson, 20 Vet.App. 501, 503–04 (2006). The only exception to this rule is that, pursuant to regulation, certain medical records demonstrating a worsening in a veteran's disability that is already service connected may constitute an informal claim for an increased disability rating for that disability. See 38 C.F.R. § 3.157(b) (2011); see also Massie v. Shinseki, 25 Vet.App. 123, 131-32 (2011) (discussing the requirements of § 3.157(b)). Here, Mr. Hester has not cited any evidence reflecting his written intent to seek benefits for blurred vision or loss of balance. Instead, he has cited only medical records documenting these symptoms. Because these records alone could not, as a matter of law, have raised initial claims for VA benefits for conditions characterized bysuch symptoms, the Board was not obligated to consider and discuss this possibility. See Criswell, 20 Vet.App. at 503-04; see also 38 U.S.C. § 7104(d)(1) (requiring the Board to consider only the "material issues of . . . law presented on the record"). C. Evidence of Right Upper Extremity Neurological Symptoms Next, Mr. Hester argues that the Board ignored evidence that, prior to August 2001, he exhibited neurological symptoms in not just his left upper extremity, but also his right upper extremity. He contends that the Board was required to consider evidence of neurological symptoms in his right upper extremity because it is favorable insomuch as it may have resulted in a higher schedular rating. The Board considered several diagnostic codes under which Mr. Hester's condition could be rated for the period prior to August 16, 2001, including the rating criteria for intervertebral disc syndrome, 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2001). At that time, Diagnostic Code 5243 provided for: a 60% disability rating for pronounced intervertebral disc syndrome "with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to [ the] site of [the] diseased disc, [with] little intermittent relief"; a 40% disability rating for severe symptoms characterized by "recurring attacks[] with intermittent relief"; a 20% disability rating for moderate symptoms characterized by "recurring attacks"; and a 10% disability rating for mild symptoms. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2001). 10 The Board concluded that, even if it were to evaluate Mr. Hester's condition pursuant to this diagnostic code, the evidence of record prior to August 16, 2001, did not demonstrate that his symptoms were any more than moderate. Mr. Hester argues that, in reaching this conclusion, the Board considered only evidence of neurological symptoms such as tingling and numbness in his left hand and arm and ignored evidence suggesting that he also experienced such symptoms in his right hand and arm. However, Mr. Hester ignores that the Board expresslyconsidered the results of reflex testing conductedbyvariousmedicalexaminersbetweenApril1994andAugust 14,2001, thatcumulatively suggested that his "reflexes were 2+ and symmetrical, bilaterally, at all times." R. at 112 (emphasis added). Accordingly, although the Board did not explicitly state that the record contained some evidence that Mr. Hester experienced numbness in his right upper extremity, it did base its determination on reflex testing that addressed the neurological impact of Mr. Hester's condition on both of his upper extremities. Under these circumstances, the Court concludes that the Board adequately discussed the evidence of record pertaining to neurological symptoms Mr. Hester experiences in his bilateral upper extremities. D. Effective Dates Finally, Mr. Hester argues that the Board failed to adequately discuss the ramifications of its July 2009 determination that his initial claim for benefits for a neck muscle strain remained in appellate status. More specifically, he contends that the Board failed to discuss how this determination impacted the establishment of an effectivedate for the increased 60% disabilityrating awarded by a decision review officer in March 2004. It appears that his contention is that, because the decision review officer established an effective date for this increased disability rating based on the mistaken presumption that Mr. Hester's August 2001 statement was a new claim for an increased disability rating, he is entitled to an effective date prior to August 2001 for the increased disability rating as a result of the Board's July 2009 decision. This argument is unpersuasive. The Board adequately explained its determination that Mr. Hester was not entitled to a disability rating in excess of 20% prior to August 16, 2001. Specifically, the Board stated that, because Mr. Hester's appeal involved the appropriate initial disability rating, it was giving "consideration . . . to 'staged ratings' (different percentage ratings for different periods of time since 11 the effective date of service connection)." R. at 112 (citing Fenderson v. West, 12 Vet.App. 119 (1999). The Board further found that "the weight of the credible evidence demonstrate[d] that [Mr. Hester's] cervical spine disability . . . warranted a 20[%] rating but no more for the period prior to August 16, 2001, and no more than 60[%] for the initial rating period since August 16, 2001." R. at 112. This finding was based on a lengthy analysis of the medical evidence of record prior to August 16, 2001, and Mr. Hester does not contend that the Board clearly erred in assessing this evidence and assigning no more than a 20% disability rating for this period under the schedular criteria. Accordingly, the Court concludes that the Board adequatelyexplained its decision to assign staged ratings. Further, this explanation clearly indicated that the Board was aware of the import of its July 2009 finding that Mr. Hester's claim remained in appellate status. III. CONCLUSION Upon consideration of the foregoing, the September 8, 2010, Board decision is AFFIRMED. DATED: April 17, 2012 Copies to: Ante Hester VA General Counsel (027) 12

Single Judge Application, Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010); VA's Duty to Obtain Relevant Records

Excerpt from decision below: "C. VA's Duty To Obtain Relevant Records The Secretary has a duty to assist claimants in developing their claims. 38 U.S.C. § 5103A. The duty to assist includes the duty to make "reasonable efforts to obtain relevant records," as long as the claimant "adequately identifies" those records to the Secretary and authorizes the Secretary 9 to obtain them. 38 U.S.C. § 5103A(b)(1); see also Loving v. Nicholson, 19 Vet.App. 96, 102 (2005). In the case of claims for disability compensation, the Secretary's assistance shall include obtaining"[t]he claimant's service medical records and, if the claimant has furnished the Secretary information sufficient to locate such records, other relevant records pertaining to the claimant's active military, naval, or air service that are held or maintained bya governmental entity."38 U.S.C. § 5103A(c)(1). If the records are maintained by a Federal department or agency, "efforts to obtain those records shall continue until the records are obtained unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile." 38 U.S.C. § 5103A(b)(3); 38 C.F.R. § 3.159(c)(2) (2011). If the Secretary is unable to obtain those records after making reasonable efforts to do so, the Secretary must notify the claimant of that fact. See 38 U.S.C. § 5103A(b)(2); 38 C.F.R. § 3.159(e). The Board's determination that VA has satisfied the duty to assist is reviewed under the "clearly erroneous" standard of review. Hyatt v. Nicholson, 21 Vet.App. 390, 395 (2007). As always, the Board is required to include in its decision 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; that statement must be adequate to enable an appellant to understand the precise basis for the Board's decision, as well as to facilitate informed review in this Court. See 38 U.S.C. § 7104(a), (d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert, 1 Vet.App. at 56-57. In the decision here on appeal, the Board found that VA satisfied its duty to assist because VA "made reasonable efforts to assist the [v]eteran in obtaining evidence necessary to substantiate his claim," and the "[v]eteran has not identified any other evidence which has not been obtained." R. at 8. However, in reaching this conclusion, the Board did not discuss the Department of the Air Force memoranda indicating that "in some cases, standard practice was to maintain records" of occupational exposure in individual health, unit, or installation records" (R. at 265, 338), and that "in early cases . . . the DD Form 1141 . . . [was] maintained in the military medical record or by the local unit, and [was] not forwarded for inclusion in the central repository" (R. at 361). This failure is significant given the Board's reliance on (1) the absence of a DD 1141 in the record and its "presum[ption]" that one was not prepared for the appellant; and (2) its selective reliance on a 10 portion of the same November 2004 memorandum stating that the "registry was the single repository for occupational radiation exposure monitoring for all Air Force personnel." R. at 12. The Department of the Air Force memoranda (R. at 265, 338) adequately identified an additional repository for records that VA had identified as necessary to substantiate the appellant's claim and cautioned that the "inability . . . to locate a record should not be considered as conclusive evidence that an occupational exposure" to radiation and nonionizing radiation did not occur. SeeGolz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010) (identifying "relevant records" for purposes of VA's duty to assist as "those records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the veteran's claim"). Yet, the record on appeal does not indicate that VA conducted a search for unit or installation records, nor did the Board make any finding that there was "no reasonable possibility" that the records could help substantiate the appellant's claim for benefits or that "such records do not exist or that further efforts to obtain those records would be futile." See 38 U.S.C. §§ 5103A(a)(2),(b)(3); see also 38 C.F.R. § 3.159(c)(2). The Board's failure to explain why a further search was not necessary – particularly in light of its "presum[ption]" of no ionizing radiation exposure (R. at 12) and its failure to adjudicate this theory of entitlement – renders its statement of reasons or bases inadequate. See 38 U.S.C. § 7104(d); see also Allday and Gilbert, both supra. Nonetheless, the Court is required to "take due account of the rule of prejudicial error." 38 U.S.C. § 7261(b)(2); see Shinseki v. Sanders, 129 S. Ct. 1696, 1704 (2009) (noting that the statute requiring this Court to "take due account of prejudicial error [] requires the Veterans Court to apply the same kind of 'harmless error' rule that courts ordinarily apply in civil cases"). Regarding the theory of entitlement adjudicated in the Board's decision – entitlement based on exposure to nonionizing radiation – the Secretary persuasively argues that any error is not prejudicial because the Board relied on the medical opinions of record, which noted that the appellant denied any acute symptoms of high level RFR exposure and, even assuming low-level exposure, the evidence did not establish a relationship between the appellant's claimed disabilities and exposure to low levels of RFR. Secretary's Br. at 20; see R. at 138-46, 184, 249-54. In his reply brief, the appellant argues that "the level of exposure, high or otherwise, cannot be determined due to the [A]gency's inadequate 11 development." Reply Br. at 15. However, his response misses the mark. In other words, the appellant fails to demonstrate how remand to obtain records confirming the amount of exposure would assist in substantiating the appellant's claim when the scientific and medical evidence of record fails to identify a relationship between low-level exposure and the appellant's disabilities, and the appellant has denied any acute symptoms of high-level exposure. As a result, the Court concludes that the appellant has not carried his burden of demonstrating prejudicial error. However, because the Board did not make any similar adverse finding with regard to the relationship, if any, between the appellant's current disabilities and exposure to ionizing radiation, the Court cannot conclude that the error is not prejudicial with regard to this theory of entitlement. Therefore, because the Court has determined that the Board erred when it failed to adjudicate a theory of entitlement based on exposure to ionizing radiation, on remand the Board must determine whether the Secretary's duty to assist requires VA to search for the pertinent records with regard to this theory, and if no additional search is warranted, the Board must provide an adequate statement of reasons or bases for its determination. =========== ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 10-3273 LEANDER WORKMAN, 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, Leander Workman, through counsel appeals a July 30, 2010, Board of Veterans' Appeals (Board or BVA) decision that denied VA disabilitycompensation for macular degeneration as a result of nonionizing radiation exposure and bronchial mucosa associated lymphoma tissue (B-MALT) status post left lung lobectomy as a result of nonionizing radiation exposure. Record of Proceedings (R.) at 3-18. This appeal is timely, and the Court has jurisdiction to review the Board's decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Both parties filed briefs, and the appellant filed a replybrief. Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, the Court will affirm in part and vacate in part the July 30, 2010, Board decision, and remand the vacated matters for further proceedings consistent with this decision. I. BACKGROUND The appellant served honorably on active duty in the U.S. Air Force from January 1954 to December 1957 and from July 1958 to June 1962. R. at 1234-35. He was diagnosed with possible small cell carcinoma in January 1995. R. at 975, 1178. After the appellant underwent a left lung upper lobectomy, his diagnosis was changed to bronchial mucosa associated lymphoid tissue lymphoma. R. at 988. A February 1995 oncology report indicates that he had a complete resection of the tumor and that there was no evidence of metastasis. Id. A July 1999 optometry consult note indicates a diagnosis of age-related macular degeneration, refractive error, and possible glaucoma. R. at 1204-05. In June 1999, the appellant submitted a claim for disability compensation for "lung cancer residuals"and "macular degeneration," whichherelatedto radiation exposure in service. R. at 1230- 33. An undated telephone "report of contact" indicates that VA personnel contacted the appellant to obtain specifics regarding his in-service radiation exposure and that he reported being "exposed to microwaves due to his MOS [military occupational specialty] for 8 y[ ears]. He was stationed in compounds where there were radar dishes." R. at 1229. An October 2000 Department of the Air Force memorandum indicates that the Air Force requested information from the U.S. Air Force Radiofrequency Radiation ( RFR) Overexposure Repository, which resulted in "no information confirming any exposure to RFR." R. at 362. The memorandumalsoindicatesthat"[e]pidemiological studies providenoclearevidenceofdetrimental effects in humans from chronic exposure to RFR and it has not been linked to cancer." Id. However, the memorandum does indicate that "[o]cular damage was found in individuals who were exposed to RFR 'well in excess' of the limits, and at levels and duration to cause thermal heating of the eye." Id. In a September 2001, rating decision, the Louisville, Kentucky, regional office (RO) denied disability compensation for macular degeneration and B-MALT, to include as a result of exposure to ionizing radiation. R. at 837-42. The appellant filed a Notice of Disagreement (R. at 822-32) and submittedstatementsdescribinghisexposuretohigh-poweredAircraftControl & Warning(AC&W) radar radiation via "FPS-3 Early Warning Search Radar and FPS-6 Height Finding Radar" and "similar more powerful" radarequipment (R. at 751-52). He reported the following assignments and exposure during service: (1) From June 1954 to December 1957, he was stationed at the 784th AC&W Radar Squadron, where hewasexposedto earlywarningsearch and height finding radar that swept past his operations building three times every minute; (2) from July 1958 to February 1959, he was stationed at Shaw Air Force Base, where he used similar equipment and his operations' building was adjacent to radar dishes that were 15 feet above ground and swept radiation past the 2 building three times every minute; (3) from February 1959 to February 1962, he was stationed in Spain where he was exposed to newer, more powerful radar equipment that was only 15 to 20 feet above his work area and also swept radiation past the operations room three times everyminute; and (4) from February1962 to June 1962, he was stationed at Sweetwater, Texas, where he was exposed to radar dishes that were located a few hundred feet from the operations' building. Id. The appellant also asserted that he recalled "attending various training sessions when radiological and biological threats were explained and radiation badges were shown and explained to us. My recollection is we were told radiation badges would onlybe issued to us in the event of possible hostile nuclear action." R. at 751. In a May 2002 Statement of the Case (SOC), the RO continued to deny disability compensation for macular degeneration and B-MALT, because the evidence failed to show "exposure to ionizing radiation during service" or that either condition was caused or aggravated by military service. R. at 793-808 (emphasis added). In June 2003, the appellant submitted a letter from Dr. Charles Lahr who opined, based on literature provided to him by the appellant and the appellant's duties in the military, that the appellant's diagnosed cancer and macular degeneration are more likely than not residuals of his RFR exposure. R. at 736. In a December 2003 decision, the Board remanded the claims to the RO for additional development, which it characterized as claims for B-MALT and macular degeneration, both secondary to RFR or microwave radiation. R. at 579-87. In describing the appellant's claim, the Board stated that the appellant "does not contend and the evidence does not show that he was exposed to ionizing radiation" and that he "can[]not be considered a radiation-exposed veteran due to participation in as radiation risk activity." R. at 582. Nonetheless, based on the appellant's statements relating that he worked around or near radar equipment, the Board decided that another attempt should be made to ascertain whether he was exposed to RFR during service, and if so, his estimated exposure. R. at 582-85. In response to the RO's request for a "record of exposure of ionizing radiation," a November 2004 Department of the Air Force memorandum indicates that its queryof the U.S. Air Force Master RadiationExposureRegistry(MRER)found"noexternalorinternalexposuredata" ontheappellant. 3 R. at 361 (emphasis added). The memorandum also indicates that although the MRER is the "single repository for occupational radiation exposure monitoring for all Air Force personnel," and their records date to 1947, "there appear to have been cases where early records, especially the DD Form 1141, were maintained in the military medical record or by the local unit, and were not forwarded for inclusion in the central repository." Id. In February 2006, the Department of the Air Force provided an additional response, which indicates that it was unable to reconstruct a precise dose estimate for the appellant based on his duties as a radar technician because there was no "exposure data for the particular radar system" he worked with, "nor the detailed information on his duties that would be required for such an estimate." R. at 359. The memorandum noted that "[i]t is recognized that occupational exposures thatcouldresult from radarsystems includenon-ionizingradiation intheformof[ RFR]andionizing radiation in the form of x-rays from RFR generating sources, such as klystroms." Id. (emphasis added). With respect to RFR, the memorandum noted that the consensus of scientific advisory bodies is that there are no long-term effects (including cancer) from low- level exposures. Id. With respect to ionizing radiation exposure, the memorandum noted that "[t]he potential for ionizing radiation exposure when working near some radar systems does exist, but we are unable to judge what specificexposures mayhave resulted. It is recognized that high exposures to ionizing radiation may increase long-term risks of cancer." Id. AseparateFebruary2006memorandumfromtheAirForceInstituteforOccupationalHeal (AFIOH) indicates that a search of the MRER and "all records currently maintained by this organization" was negative. R. at 338. Although the MRER contains " occupational radiation exposure records generated from 1947 to the present," the memorandum indicates that [i]n some cases, standard practice was to maintain records of occupational radiation exposure in individual health, unit, or installation records. We no have no way of determining if records of those types exist. Therefore, absence of a record in the MRER should not be considered as conclusive evidence that an occupational exposure to radiation did not occur. Id. 4 In June 2006, the AFIOH provided another negative response for records of " occupational microwave and [RFR] exposures." R. at 265. However, this memorandum also indicates that "[i]n some cases, standard practice was to maintain records of occupational microwave and [RFR] exposures in individual health, unit or installation records" and that the AFIOH has "no way of determining if records of those type exist. Therefore, the inability for us to locate a record should not beconsideredas conclusive evidence that an occupational exposureto non- ionizing radiation did not occur." Id. (emphasis added). The appellant was provided a compensation and pension examination in October 2006. R. at 249-54. The examiner opined that the appellant's B-MALT was not caused by or a result of RFR exposure. R. at 254. The examiner indicated that he reviewed the literature provided by the appellant, which showed "little relationship" to low-level RFR exposure and was primarily related to "overdose high exposure situations." Id. With respect to high-level exposure, the examiner stated that "extrapolation from high dose or over[]exposure to RFR to low dose RFR is not possible" and that "[w]hen asked by the BVA judge if the veteran had ever had any of the symptoms of overdose in his literature he answered no to all questions asked." Id. The examiner concluded, based on the current information available, that there is no "conclusive evidence of a relationship between RFR and cancer" and noted that the appellant denied any symptoms of overdose mentioned in the literature. R. at 252, 254. In June 2008, the Board requested an independent medical examination (IME) to determine whether it is "at least as likely as not that the claimed lung changes and macular degeneration are due to [RFR] or microwave radiation exposure during the veteran's period of active service." R. at 189- 91. In January 2009, the examiner opined that it was unlikely that the appellant's development of primarypulmonarylymphomaresultedfromhis exposureto nonionizing radiation. R. at 184. Based on his review of the scientific literature, the examiner indicated that the appellant's lymphoma accounts for less than 1% of all lymphomas and that there have been no recorded instances in the literature of its specific association with nonionizing radiation. Id. Because the January 2009 examiner failed to opine regarding the appellant's macular degeneration, the Board requested another IME in August 2009. R. at 159-62. In October 2009, the 5 examiner opined that the appellant's macular degeneration was less likely than not related to his military service, including RFR. R. at 138-46. The examiner reasoned that "[ t]here is no substantiated proof of cumulative effects from long-term low-level exposure to [RFR] in the peer- reviewed literature" and that the "onlyproven effects . . . are thermal." R. at 137. He also noted that high doses produce acute symptoms and signs and that the appellant testified that he had "none of the symptoms of acute high-level radiofrequency/microwave exposure." R. at 137-38. In the decision here on appeal, the Board denied disability compensation for macular degeneration and B-MALT as a result of exposure to nonionizing radiation. R. at 3-18. Although the appellant's service records confirmed his duties as a radar operator, the Board found that the record contained no evidence of ionizing radiation exposure or the claimed high levels or even low levels of RFR exposure. R. at 5, 10, 12, 17. Additionally, in determining that the preponderance of the evidence was against the appellant's claim, the Board found Dr. Lahr's favorable opinion not probative and assigned greater probative weight to the findings made by the VA examiner and the January and October 2009 IMEs. R. at 13-18. II. ANALYSIS A. The Parties' Arguments On appeal, the appellant argues that the Board erred when it found no evidence of in-service exposureto ionizingornonionizingradiation andrejectedtheappellant'slayevidenceasnot credible regarding his proximity to radar equipment. Appellant's Brief (Br.) at 12- 16. The appellant also argues that VA failed to fulfill its duty to assist, the Board ignored evidence indicating that radar systems emit both ionizing and nonionizing radiation, and the Board provided an inadequate statement of reasons or bases to deny his claims. Id. at 16-19, 22-24. He argues that the Board erred when it failed to require development of his claim based on exposure to ionizing as well as nonionizing radiation, and argues that remand is required for an additional search of local unit and installation records, whichtheAirForcememorandaindicatedmightcontainrecordsofoccupational radiation exposure. Id. at 5, 16-19; see R. at 265, 361 (November 2004 and June 2006 memoranda). 6 The appellant also asserts that he submitted sufficient information relevant to calculating a dose estimate, but that VA failed to obtain an estimate. Id. at 7-11. In addition, because the record was inadequately developed, the appellant asserts, the IMEs are inadequate because they are based on the presumption of low exposure or no exposure to nonionizing radiation and fail to opine on any matters pertinent to exposure to ionizing radiation related to x-rays from RFR-generating sources. Id. at 12, 19-22; see R. at 359 (February 2006 memorandum). Finally, the appellant argues that the Board applied the wrong legal standard when it denied his claim. Id at 24. The Secretaryargues that the Board correctlydetermined that the appellant's claims were not predicated on any alleged exposure to ionizing radiation and that the record nevertheless did not contain evidence of any such exposure. Secretary's Br. at 8-9. The Secretary also argues that the Board plausibly determined that the evidence did not confirm exposure to high or low doses of nonionizing radiation, and that the appellant fails to identify any evidence that contradicts or otherwise questions the plausibility of its interpretation of the evidence. Id. at 13-14. To the extent that the appellant challenges the Board's dismissal of lay evidence as not credible, the Secretary contends that the Board merely found the evidence not credible as to nexus, and not as to his proximity to radar equipment in service. Id. at 16-17. Finally, the Secretaryargues that VA satisfied its duty to assist, the medical nexus opinions are adequate, and the Board did not apply an incorrect legal standard. Id. at 18-22. In his reply brief, the appellant argues that he had no duty to specifically plead an ionizing radiation theory and that the Board's finding no evidence of ionizing radiation exposure is both erroneous and demonstrative that the issue was raised bythe record. ReplyBr. at 1-7. The appellant also refutes the Secretary's contentions that the duty to assist did not require VA to conduct an additional search for records. Reply Br. at 10-15. B. Reasonably Raised Theory Based on Exposure to Ionizing Radiation 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). As noted above, the parties disagree whether the appellant or the record reasonably raised entitlement to disability compensation benefits based 7 on exposure to ionizing radiation. Contrary to the Secretary's suggestion, the Court finds that this is not a situation where Board is being asked to "assume the impossible task of inventing and rejecting every conceivable argument in order to produce a valid decision." Secretary's Br. at 8 (quoting Robinson, 21 Vet.App. at 553). Initially, the Court observes that the appellant's application did not specify the type of radiation he was exposed to during service and the RO initially adjudicated his claim based on exposure to ionizing radiation. R. at 793-808 (May 2002 SOC); 837-42 ( September 2001 rating decision); 1230-33 (application for benefits). In addition, the February 2006 Department of the Air Force memorandum recognized that "occupational exposures that could result from radar systems include non-ionizing radiation in the form of [RFR] and ionizing radiation in the form of x-rays from RFR generating sources, such as klystroms." R. at 359 (emphasis added ); see Schafrath v. Derwinski, 1 Vet.App. 589, 592-93 (1991) (Board is required to consider all evidence of record and to discuss in its decision all "potentially applicable" provisions of law and regulation.). The Secretary argues at great length that the appellant's submissions and arguments confirm that he was asserting entitlement to benefits based on exposure only to nonionizing radiation, and that the appellant's reliance on the February 2006 memorandum is misplaced because it fails to demonstrate that the appellant was personally exposed to such radiation. Secretary's Br. at 10-11. The Court is not persuaded by the Secretary's arguments because, as noted, the RO initially adjudicated entitlement to benefits based on exposure to ionizing radiation, and the Secretary does not identifyanyaffirmative evidence indicating that the appellant abandoned this ionizing-exposure theory of entitlement. See Roebuck v. Nicholson, 20 Vet.App. 307, 313 ( 2006) (recognizing that a claimant can raise "multiple means of establishing entitlement to a benefit for a disability, [even] if the theories all pertain to the same benefit for the same disability"). The Secretary also argues that any error in failing to adjudicate this theory is harmless because the record is devoid of anyevidence of actual exposure to ionizing radiation. Id. at 13. This argument also lacks merit because the Board "presumed" that no DD Form 1141, Record of Occupational Exposure to Ionizing Radiation, was prepared for the appellant based the Department of the Air Force's assertion that it found no exposure data regarding the appellant. R. at 12. 8 However, as discussed in more detail below, the Board failed to discuss evidence indicating that there have been instances where the DD Forms 1141 were not forwarded to the central repository, but were maintained in the military medical record or by the local unit ( see R. at 361 (November 2004 memorandum)), and there is no indication that VA searched the military unit records. Based on the foregoing, the Court concludes that the Board's characterization of the issue on appeal as a claim for benefits "due to non-ionizing radiation" and its finding that "this claim is not based on ionizing radiation exposure" is clearlyerroneous. 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. Gypsum Co., 333 U.S. 364, 395 (1948))); see also Robinson v. Peake, supra. In addition, because there is no indication that VA ordered a search for unit records to determine whether a DD Form 1141 was maintained for the appellant outside of the central repository, the Board's determination that there is no evidence of exposure to ionizing radiation appears to have been based on an inadequate record. Therefore, the Court will remand this issue for further development and adjudication consistent with this decision. In pursuing his case on remand, the appellant is free to submit additional evidence and argument on the remanded matters, and the Board is required to consider anysuch relevant evidence 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). C. VA's Duty To Obtain Relevant Records The Secretary has a duty to assist claimants in developing their claims. 38 U.S.C. § 5103A. The duty to assist includes the duty to make "reasonable efforts to obtain relevant records," as long as the claimant "adequately identifies" those records to the Secretary and authorizes the Secretary 9 to obtain them. 38 U.S.C. § 5103A(b)(1); see also Loving v. Nicholson, 19 Vet.App. 96, 102 (2005). In the case of claims for disability compensation, the Secretary's assistance shall include obtaining "[t]he claimant's servicemedical records and, if the claimant has furnishedtheSecretaryinformation sufficient to locate such records, other relevant records pertaining to the claimant's active military, naval, or air service that are held or maintained bya governmental entity." 38 U.S.C. § 5103A(c)(1). If the records aremaintained bya Federal department or agency, "efforts to obtain those records shall continue until the records are obtained unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile." 38 U.S.C. § 5103A(b)(3); 38 C.F.R. § 3.159(c)(2) (2011). If the Secretary is unable to obtain those records after making reasonable efforts to do so, the Secretary must notify the claimant of that fact. See 38 U.S.C. § 5103A(b)(2); 38 C.F.R. § 3.159(e). The Board's determination that VA has satisfied the duty to assist is reviewed under the "clearly erroneous" standard of review. Hyatt v. Nicholson, 21 Vet.App. 390, 395 (2007). As always, the Board is required to include in its decision 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; that statement must be adequate to enable an appellant to understand the precise basis for the Board's decision, as well as to facilitate informed review in this Court. See 38 U. S.C. § 7104(a), (d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert, 1 Vet.App. at 56-57. In the decision here on appeal, the Board found that VA satisfied its duty to assist because VA "made reasonable efforts to assist the [v]eteran in obtaining evidence necessary to substantiate his claim," and the "[v]eteran has not identified any other evidence which has not been obtained." R. at 8. However, in reaching this conclusion, the Board did not discuss the Department of the Air Force memoranda indicating that "in some cases, standard practice was to maintain records" of occupational exposure in individual health, unit, or installation records" ( R. at 265, 338), and that "in early cases . . . the DD Form 1141 . . . [was] maintained in the military medical record or by the local unit, and [was] not forwarded for inclusion in the central repository" (R. at 361). This failure is significant given the Board's reliance on (1) the absence of a DD 1141 in the record and its "presum[ption]" that one was not prepared for the appellant; and (2) its selective reliance on a 10 portion of the same November 2004 memorandumstating that the "registrywas the single repository for occupational radiation exposure monitoring for all Air Force personnel ." R. at 12. The Department of the Air Force memoranda (R. at 265, 338) adequately identified an additional repository for records that VA had identified as necessary to substantiate the appellant's claim and cautioned that the "inability . . . to locate a record should not be considered as conclusive evidence that an occupational exposure" to radiation and nonionizing radiation did not occur. See Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010) (identifying " relevant records" for purposes of VA's duty to assist as "those records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the veteran's claim"). Yet, the record on appeal does not indicate that VA conducted a search for unit or installation records, nor did the Board make any finding that there was "noreasonable possibility" that the records could help substantiate the appellant's claim for benefits or that "such records do not exist or that further efforts to obtain those records would be futile." See 38 U.S.C. §§ 5103A(a)(2),( b)(3); see also 38 C.F.R. § 3.159(c)(2). The Board's failure to explain why a further search was not necessary – particularly in light of its "presum[ption]" of no ionizing radiation exposure (R. at 12) and its failureto adjudicate this theory of entitlement – renders its statement of reasons or bases inadequate. See 38 U.S.C. § 7104(d); see also Allday and Gilbert, both supra. Nonetheless, the Court is required to "take due account of the rule of prejudicial error." 38 U.S.C. § 7261(b)(2); see Shinseki v. Sanders, 129 S. Ct. 1696, 1704 ( 2009) (noting that the statute requiring this Court to "take due account of prejudicial error [] requires the Veterans Court to apply the same kind of 'harmless error' rule that courts ordinarily apply in civil cases"). Regarding the theory of entitlement adjudicated in the Board's decision – entitlement based on exposure to nonionizing radiation – the Secretarypersuasivelyargues that anyerror is not prejudicial because the Board relied on the medical opinions of record, which noted that the appellant denied any acute symptoms of high level RFR exposure and, even assuming low-level exposure, the evidence did not establish a relationship between the appellant's claimed disabilities and exposure to low levels of RFR. Secretary's Br. at 20; see R. at 138-46, 184, 249-54. In his replybrief, the appellant argues that "the level of exposure, high or otherwise, cannot be determined due to the [ A]gency's inadequate 11 development." Reply Br. at 15. However, his response misses the mark. In other words, the appellant fails to demonstrate how remand to obtain records confirming the amount of exposure would assist in substantiating the appellant's claim when the scientific and medical evidence of record fails to identifya relationship between low-level exposure and the appellant's disabilities, and the appellant has denied any acute symptoms of high-level exposure. As a result, the Court concludes that the appellant has not carried his burden of demonstrating prejudicial error. However, because the Board did not make any similar adverse finding with regard to the relationship, if any, between the appellant's current disabilities and exposure to ionizing radiation, the Court cannot conclude that the error is not prejudicial with regard to this theory of entitlement. Therefore, because the Court has determined that the Board erred when it failed to adjudicate a theory of entitlement based on exposure to ionizing radiation, on remand the Board must determine whether the Secretary's duty to assist requires VA to search for the pertinent records with regard to this theory, and if no additional search is warranted, the Board must provide an adequate statement of reasons or bases for its determination. D. Adequacy of IMEs and the Board's Assessment of Evidence The appellant argues that VA obtained and the Board relied on inadequate IMEs because the examiners (1) did not have sufficient information regarding the appellant's actual exposure, and assuming those records are not available, VA failed to obtain data sufficient to make a dose estimate calculation, and (2) the examiners failed to offer an opinion based on his exposure to ionizing radiation. Appellant's Br. at 19-22. He also argues that the Board inappropriately afforded less weight to Dr. Lahr's medical opinion because it was based on the appellant's "unsusbtantiated claim of high level exposure to RFR" when the IMEs were based on an unsubstantiated claim of no exposure or low exposure. Id. at 20. The Secretary asserts that the appellant's argument lacks merit because it is predicated on the condition that the Secretary violated his duty to assist with respect to obtaining records relevant to radiation exposure. Secretary's Br. at 21. The Court agrees. With regard to the appellant's claim based on exposure to nonionizing radiation, the appellant's arguments fail for the same reason the Court found no prejudice concerning VA's failure to search for unit or installation records. The lack of actual exposure data is not fatal to the adequacy 12 of the examiners' opinions because they found no association between low- level exposure to RFR and the appellant's claimed disabilities, and although the literature indicated a relationship to high- level exposure, the appellant denied any symptoms of overdose or acute high level RFR exposure. See R. at 139 (October 2009 IME noting that the appellant "testified that he had none of the symptoms of acute high-level radiofrequency/microwave exposure" and concluding that "it is less likely than not that [his] military service, including radiofrequency radiation, is [r]elated to his macular degeneration"); R. at 184 (finding no instances of "specific association" in the literature between the appellant's lymphoma and nonionizing radiation); see also R. at 252, 254 (October2006 VA examiner's finding that there is "no conclusive evidence of a relationship between RFR and cancer" and noting that the appellant denied any symptoms of overdose mentioned in the literature). In light of these findings, the Court cannot say that the Board's assignment of greater probative worth to the October 2006 VA examination and the January and October 2009 IMEs was clearly erroneous. See Washington v. Nicholson, 19 Vet.App. 362, 367-68 ( 2005) (it is the Board's duty, as factfinder, to determine the credibility and weight to be given to the evidence); Owens v. Brown, 7 Vet.App. 429, 433 (1995) (holding that the Board is responsible for assessing the credibility and weight of evidence and that the Court may overturn the Board's decision only if it is clearly erroneous). Nor has the appellant demonstrated error in the Board's finding that Dr. Lahr's favorable opinion was not probative because his opinion was based on the appellant's unsubstantiated claim of high-level exposure and did not contain any rationale for his conclusions. See Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 300 (2008) ("Part of the Board's consideration of how much weight to assign [a medical opinion] is the foundation upon which the medical opinion is based."); see also Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007) ( medical opinion should "support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Because the appellant's claim based on a theory of exposure to ionizing radiation is being remanded for adjudication, the Court will not address the appellant's argument that the IMEs are inadequate because the examiners failed to address whether his disabilities are related to exposure to ionizing radiation. See Mahl v. Principi, 15 Vet.App. 37, 38 (2001) ( per curiam order) (holding 13 that "if the proper remedy is a remand, there is no need to analyze and discuss all the other claimed errors that would result in a remedy no broader than a remand"); see also Best v. Principi, 15 Vet.App. 18, 19 (2001) (per curiam order) (holding that the Court generally decides cases on the narrowest possible grounds and therefore is not required to rule upon other allegations of error in effecting a remand). E. The Appellant's Remaining Arguments The appellant also argues that the Board erred when it found his lay evidence not "credible" and failed to explain whyhis statements that he worked in proximity to radar systems for eight years and his descriptions of those radar systems can be viewedas untruthful or inconsistent with the facts. Appellant's Br. at 13-14. The Secretary argues that the Board did not find the lay evidence of his proximity to radar equipment not credible. Secretary's Br. at 17. Even assuming that the Board erred, the Secretary argues that any error was necessarily harmless. Id. The Court agrees. Undoubtedly, the appellant's proximity and duration of exposure to the radar equipment is relevant to whether he was exposed to RFR-generating sources. See Hyatt, 21 Vet.App. at 396 (defining "relevant evidence" as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence"). However, as discussed above, the Board denied the appellant's claim because the evidence of record shows no relationship between the appellant's disabilities and low levels of RFR exposure, and the appellant denied symptoms of acute high- level RFR or microwave exposure. R. at 14-16. As a result, the Court finds that the appellant has not demonstrated that any error was prejudicial. See Sanders, supra. Finally, the appellant argues that the Board applied the wrong legal standard when it required a preponderance of the evidence to establish a relationship between the appellant's claimed exposure to RFR and his claimed disabilities. Appellant's Br. at 24; Reply Br. at 1. The Secretary argues that "when read in the context of the surrounding Board discussion" it is clear that the Board "intended to convey that it found the preponderance of the evidence to weigh against a finding of nexus, and not that it required nexus to be shown by a preponderance of the evidence." Secretary's Br. at 22. 14 There can be no dispute that the Board stated that "[e]ven assuming some exposure to low levels of RFR . . . the preponderance of the evidence fails to establish a relationship to the claimed radiation exposure and the [v]eteran's development of macular degeneration and a broncial mucosa disorder." R. at 13. The Court agrees with the appellant that the Board's statement suggests that a nexus had not been established by a preponderance of the evidence. However, the Court does not review the Board's statements in isolation. Rather, it is clear from the Board's assessment of the evidence, which the appellant has not shown to be clearly erroneous, that the Board (1) found Dr. Lahr's favorable opinion not probative; (2) assigned greater weight to the findings of the VA examiner and the IMEs; and (3) ultimately concluded that "the preponderance of the evidence is against the claims." R. at 13-18 (emphasis added). As a result, while the Board may have noted an incorrect standard, the Court will not require a remand when the Board's analysis demonstrates that it applied the correct legal standard when it found the preponderance of the evidence against the claim. III. CONCLUSION After consideration of the appellant's and the Secretary's pleadings, and a review of the record, the Board's July 30, 2010, decision is AFFIRMED IN PART and VACATED IN PART and the vacated matter is REMANDED to the Board for further proceedings consistent with this decision. DATED: April 13, 2012 Copies to: Sandra E. Booth, Esq. VA General Counsel (027) 15