Friday, August 3, 2012

Single Judge Application Horn v. Shinseki, No. 10-0853, 2012 WL 2355544 (Vet. App. June 21, 2012)

Excerpts from decision below: "These statements imply that the examiner was relying on the absence of objective evidence of aggravation, which comes close to shifting the burden to the veteran to show an increase in disability during service. See Horn v. Shinseki, No. 10-0853, 2012 WL 2355544, at *6-7 (Vet. App. June 21, 2012) (noting that "there is no requirement of a specific injury or trauma in order for the preexisting condition to have been aggravated . . . . [and that i]t is the lack of aggravation that the Secretary must prove, not lack of an injury"). Under these circumstances, the Court concludes that a remand is permissible for the Board to obtain clarification from the VA examiner. See Adams, supra; see also Horn, 2012 WL 2355544, at *11-12 (interpreting Adams, supra, as distinguishing between those cases where clarification of the medical evidence is required necessitating remand, and those cases where there is an obvious insufficiency of the evidence warranting reversal); Daves v. Nicholson, 21 Vet.App. 46, 51 (2007) (when medical examination report is susceptible to multiple fair but inconsistent meanings, the Board errs by not seeking clarification). "Second, the January 2003 examiner did not provide any supporting rationale for opining that service" may at times have caused some temporary aggravation of his symptoms[,] but no long-term problems." R. at 850; see Horn, 2012 WL 2355544, at *7 (indicating in the context of evaluating whether the Secretary's proof is sufficient to rebut the presumption of soundness that "there is no reason that the Court should not 10 follow its caselaw that . . . an unexplained conclusory [medical] opinion is entitled to no weight in a service-connection context (citing Nieves-Rodriguez, 22 Vet.App. at 304)). "Instead, a plain reading of his report shows that he simply adopted the January 2003 examiner's opinion, which lacks supporting analysis. See R. at 465 (noting that the "[January 2003 examiner] stated that there was intermittent aggravation of his left foot disorder, but that there was no permanent damage"). Because the January 2003 and October 2004 opinions are insufficient to meet the Secretary's burden, the Court will vacate the Board's decision and remand the matter with instructions that the Board seek clarification from the January 2010 medical examiner addressing whether the appellant's preexisting foot condition was aggravated by service. See Adams and Horn, both supra. ============================ ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 11-1556 BOBBY L. NEAL, 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: Theproseappellant,BobbyL.Neal, appeals aJanuary12,2011, Board of Veterans' Appeals (BVA or Board) decision that denied VA disability compensation benefits for a left foot disorder. Record of Proceedings (R.) at 3-37. This appeal is timely, and the Court has jurisdiction to review the Board's decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Both parties filed briefs. Single-judge disposition is appropriate. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, the Court will vacate the Board's decision and remand the matter for further proceedings consistent with this decision. I. BACKGROUND The appellant served on active duty in the U.S. Army from August 1966 to June 1968. R. at 1550. At his January 1966 enlistment examination, the appellant denied any prior "foot trouble" and a clinical evaluation indicated that his feet were "normal." R. at 1510-11, 1519. During basic training, the appellant twice sought treatment for "sore ankles." R. at 1502. He was provided ace bandages and instructed for seven days not to run, march, or stand for prolonged periods. Id. His servicemedicalrecords (SMRs) areotherwisesilent for complaints or treatment related to his ankles and feet. R. at 1501-38. At separation, the appellant again denied any " foot trouble" and his feet were evaluated as "normal." R. at 1506-09, 1512-13. In January 1994, the appellant filed a claim for disability compensation for "aggravation to left foot toes that w[ere] cut prior to service." R. at 1491-94. A June 1994 neurological examination noted that the appellant "has some localized problems in the left foot, which has not changed. In association with this he has occasional discomfort in the left foot and has a small area where he doesn't feel things normally." R. at 1456. The examiner stated that the appellant's "sensory examination reveal[ed] no deficits proximally or distally with the exception of a little area mainly on the sole of the left foot[,] which dates back to his childhood problem." Id. In April 1995, the appellant testified that he had trouble with his left foot during basic training. R. at 1420. He explained that he had problems running and related it to an accident that occurred when he was 14 or 15 years old and his foot slipped under a lawn mower cutting three of his toes. Id. The appellant stated that his toes have been stiff since the accident and have not grown, and described his foot as deformed. R, at 1421. In July1999 and April 2000 statements, the appellant requested that the regional office(RO) obtain his treatment records from the VA hospital in Jackson, Mississippi, and adjudicate his claim for a foot condition. R. at 1226, 1256. In June 2000, the RO issued a rating decision denying the appellant's claim. R. at 1220-25. In August 2000, the appellant filed a Notice of Disagreement in which he asserted that his claim for a left foot condition dated back to his "original claim," explaining that he had filed a claim for "aggravation to the left foot, which was an injury before [he] was drafted in 1966." R. at 1201-02. The appellant also indicated that he stated that his "foot was verytender" during his induction examination and that he went on sick call during basic training and in Germany. R. at 1202. After the RO issued a Statement of the Case (R. at 1166-77) that continued to denyhis claim, the appellant submitted a Substantive Appeal in which he asserted that "[i]t is very clear that my foot was injured prior to service and that while in service my foot injury was aggravated even more, due to stress of combat." R. at 959-60; see also R. at 1157. The appellant submitted additional evidence and argument in August 2002, including a July 2002 VA podiatry clinic note indicating that the appellant presented with " a rigid deformity of the second, third, and fourth digits as a result of a severe laceration." R. at 890. The examining 2 podiatrist noted that the "[p]atient was told because of [A]rmy-issued boots in training[,] area has worsen[ed] to the point that the only option is probably surgical fusion of the toes." Id. The podiatrist assessed "[c]ontracted foot, neuroma secondary to trauma" and opined that the appellant "should be service-connected for injury because of training during active duty stage would have resulted [sic] a severe aggravation of this condition." Id. The appellant underwent a compensation and pension examination of his left foot in January 2003. R. at 849-50. The VA examiner recorded the appellant's history of injuring his left foot prior to military service: "At the age of 14 or 15 he got his left foot caught in a lawn mower and sustained a deep laceration of the plantar aspect of the left forefoot and toes." R. at 849. The examiner indicated that the "flexor tendons of the second, third, and fourth toes were severed and not repaired" resulting in a loss of motion and tenderness within the scar. Id. He further recorded the appellant's report that wearing military boots caused pain in his foot and that he sometimes experienced "swelling in the region of the first metatarsophalangeal joint." Id. Following review of the claims file, x-rays of the left foot, and a physical examination, the examiner's impression was "[s]taus post severe laceration, plantar aspect of the left forefoot and toes," "[s] tatus post traumatic arthritis, interphalangeal joints of the second and fourth toes," "[s]tatus post fusion of the interphalangeal joints of third toe," and "[n]euroma, scar of left forefoot." R. at 849. The examiner also provided the following comments: Although the patient had an extensive laceration of the left forefoot, it left him with no deformities which would interfere with wearing of normal shoes. . . . The injury definitely occurred at the age of 14 or 15, prior to his entrance into military service. Military service may at times have caused some temporary aggravation of his symptoms but no long-term problems. The patient has had no injuries to his foot since discharge from the service. In conclusion, I believe that it is more likely than not that the injury sustained at the age of 14, prior to his entry into the service, is the cause of his current left foot condition with low long-term aggravation resulting from his military duty. R. at 849-50. In May 2003, the appellant submitted another opinion by a private physician, who noted the appellant's allegations of significant left foot pain and swelling as a result of wearing military boots 3 in service. R. at 841. Following a physical examination and review of x- rayevidence, the physician noted that the appellant had significant pain with palpation, limited range of motion, diminished sensation, a positive Tinel sign, lateral plantar nervelesion, secondaryto nerve entrapment of the left foot, and post-traumatic arthritis in the joint. Id. The physician opined: This condition is related to service, especially with the military service requirements and conditions at the time, which caused aggravation of the pain and has made the pain into a chronic situation. In conclusion, I believe that this injury is military relatedsecondaryto combatboot wear,especiallywithrunningin the1960's Vietnam era. Id. In a May 2004 decision (R. at 486-94), the Board noted that although the medical evidence "appeared to support the veteran's contentions of in-service aggravation of his left foot disorder, the Board [was] not satisfied that such evidence [was] sufficient for a grant of service connection" based on the 2003 examiner's statement regarding "temporary aggravation" and the fact that the medical reports failed to discuss the lack of foot symptomatology for more than 20 years after service. R. at 488. As a result, the Board remanded the appellant's claim for additional development, including a VA medical examination, "to evaluate the nature, severity, and etiology" of the appellant's foot disorder. R. at 491-92. In October 2004, a VA physician provided an opinion, but no medical examination, addressing whether the appellant's foot condition preexisted service or was aggravated by service. R. at 465. The report indicates that the appellant had been examined in January 2003 and that an additional examination "would not add any further substance or support to the requested opinion seeing this is based upon historical information obtained from review of the claims folder." Id. Regarding preexistence, the examiner noted that "[t]he veteran freely admits that the initial injury to his foot occurred while a teenager from a lawn mower accident." Id. Regarding aggravation, the examiner noted that the January 2003 examiner "stated there was intermittent aggravation of his left foot disorder, but that there was no permanent damage. Other than that, that would occur as a result of the natural process of the disease." Id. Finally, with regard to postservice events or diseases, 4 including aging, that may have contributed to worsening of the left foot disorder, the examiner stated: There is no evidence of record of anyspecific event or disease. However, the natural process of ageing over the 30 years following . . . service has contributed to the increasing symptoms of pain within the left foot. On review of the opinions of the . . . podiatrist of [July 2002 and May2003], it is noted that both have opined that they felt the shoes worn while in service permanently aggravated the condition to the extent that he now has more pain secondary to a neuroma than he would have had he not have had to wear the militaryshoes. There is no objective evidence in the service record of any permanent damage occurring while on active duty. Also, the development of a neuroma, 30 years post exposure to service, intermittent aggravation would not be consistent with the natural process of the disease. It is far more likely than not that the natural process of ageing has lead [to] the development of the neuroma which is now the primary source of the veteran's symptomatology in his left foot. Id. At a February 2005 Board hearing, the appellant testified that the doctors who treated him for his preservice injury to his left foot were deceased and that he did not "know if it would be possible if somebody would have those records." R. at 441-42. Following the hearing, the Board denied the appellant's claim in an April 2005 decision (R. at 418-36), which was subsequently vacated pursuant to a June 2006 joint motion for remand (JMR). See R. at 407-15 (remanding because (1) the Board failed to apply the correct standard when determining that the second prong of the presumption of soundness had been rebutted,and (2) the Board erred when it relied on Maxson v. West, 12 Vet.App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000)). The Board issued another decisionin February2007denyingtheappellant's claim. R. at 366- 83. That decision was also appealed to the Court, and vacated and the matter remanded pursuant to the parties' July 2008 JMR. R. at 316-22 (remanding the case for (1) the Board to obtain a medical examination in compliance with its May 2004 remand order, (2) the examiner to consider all evidence concerning continuity of symptomatology, and (3) the Board to consider whether the appellant is a combat veteran pursuant to 38 U.S.C. § 1154(b)). InJanuary2010,theappellantunderwentacompensation andpensionexamination ofhis left foot. R. at 42-44. The examiner noted that he reviewed the claims file, documented the appellant's 5 reported preservice injury to his left foot, and conducted a physical examination. Id. The examiner also noted the appellant's assertions that (1) during high school he was unable to run or participate in sports as a result of pain associated with running, (2) he sought medical attention during basic training, (3) after discharge "his foot did about like it did [sic] before he went in the military," and (4) he continues to have chronic pain, which varies in severity. R. at 42. The examiner's impression was "[s]tatus post remote trauma of left foot with traumatic arthritis and fusion of the proximal interphalangeal joints of the second, third, and fourth toes," and "[n] euroma of left foot." R. at 43. Regarding preexistence, the examiner opined that "the claimed foot disorder clearly and unmistakably preexisted his active service." R. at 43-44. Regarding aggravation, the examiner stated: I cannot document that the left foot disorder was permanently aggravated or worsened during his period in the military. As previously noted by the examiner from 2003, there was probablyintermittent aggravation of his left foot, but there was no permanent damage. For VA purposes, temporary or intermittent flare ups of a[] preexisting injuryor disease arenot sufficient to beconsideredaggravation in service unless the underlying condition, as contrasted to the symptoms, is worsened. R. at 44. In response to the question whether "the left foot disorder [was] incurred during active service or did it become manifest to a compensable degree within a 1 year period of his discharge," the examiner stated that "it is far more likely than not that his left foot disorder preexisted his entry into the service. I am unable to document that he had a permanent worsening of his left foot condition based upon a review of the record." Id. Finally, with regard to whether the left foot condition is clearly and unmistakably related to any postservice event or disease, including aging, the examiner stated: The left foot disorder is not related to any post[]service event or disease, but again is related to the original injury which he sustained as a teenager and it is again noted that I can find no evidence that his left foot condition was permanently worsened by any incident or occurrence in the military. Id. In the decision here on appeal, the Board denied VA disability compensation benefits for a leftfootdisorderbasedonits findingthattheappellantclearlyand unmistakablyentered servicewith 6 a preexisting foot disorder and the evidence clearly and unmistakably established that his condition did not undergo an increase in severity during service. R. at 5. This appeal followed. II. ANALYSIS A. Presumption of Soundness Pursuant to 38 U.S.C. § 1111, "every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination." Thus, when no preexisting condition is noted upon entry into service, the veteran is presumed sound. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). This presumption can only be overcome by clear and unmistakable evidence that the injury or disease preexisted service and was not aggravated by service. See 38 U. S.C. § 1111; Wagner, supra; see also Jordan v. Nicholson, 401 F.3d 1296, 1298 (Fed. Cir. 2005). " Clear and unmistakable evidence" means that the evidence "'cannot be misinterpreted and misunderstood, i.e., it is undebatable.'" Quirin v. Shinseki, 22 Vet.App. 390, 396 (2009) (quoting Vanerson v. West, 12 Vet.App. 254, 258-59 (1999)). When an injury or disease has been shown to have existed before acceptance and enrollment to military service, it will be considered to have been aggravated in service, unless the Secretary establishes, by clear and unmistakable evidence, either that there was no increase in disability during service or that any increase in disability was due to the "natural progress" of the preexisting disease or injury. See 38 U.S.C. § 1111; Wagner, supra; see also Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006) ("To satisfy the second requirement for rebutting the presumption of soundness, the government must rebut a statutory presumption of aggravation by showing, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was 'due to the natural progression' of the condition."). The Court reviews de novo a Board decision concerning the adequacy of the evidence offered to rebut the presumption of soundness. Quirin, 22 Vet.App. at 396. However, the U.S. Court of Appeals for the Federal Circuit has stated that in reviewing the legal sufficiency of rebuttal evidence, this Court may employ the "arbitrary, capricious, an abuse of discretion, or otherwise not 7 in accordance with law" standard of review because it subsumes de novo review of questions of law. Kent v. Principi, 389 F.3d 1380, 1383 (Fed. Cir. 2004). It is undisputed thattheappellant's militaryentrancedocumentsdid not noteanyfootdisorder and therefore the presumption of soundness applies. R. at 9; see Wagner, supra. It is also undisputed that the first prong of the presumption of soundness was rebutted – that the evidence clearly and unmistakably established that the appellant's left foot disorder preexisted service. R. at 9. In its decision, the Board noted that the appellant acknowledged that he lacerated his left foot in his early teens and that the various medical opinions of record related the appellant's current foot disorder to his preservice injury. R. at 9-10; see Doran v. Brown 6 Vet. App. 283, 286 (1994) (concluding, "as a matter of law, that the presumption of soundness was rebutted by clear and unmistakable evidence consisting of [the] appellant's own admissions . . . of a preservice [disability]"); see also Harris v. West, 203 F.3d 1347, 1349 (Fed. Cir. 2000). The remaining issue is whether the Government established by clear and unmistakable evidence that the appellant's preexisting foot condition did not undergo an increase in severity during service or that any increase was due to the natural progress of the disease. Wagner, supra. On appeal, the appellant argues that he has experienced foot pain since the militaryand notes that two podiatrists have stated that he should be service connected for his foot problem. Appellant's Informal Brief (Br.) at 1-2. The appellant is correct that both the July 2002 and May2003 examiners related the appellant's foot condition to service. However, in addressing the numerous medical opinions of record, the Board found that both favorable opinions were of minimal probative value for various reasons, including that neither examiner provided any supporting rationale for his opinion. R. at 17-18; see Stefl v. Nicholson, 21 Vet.App. 120, 124-25 ( 2007) (holding that the Board may not rely on a medical examiner's conclusory statements if they lack supporting analysis); see also Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008) (noting that " a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two"). Based on a review of the medical opinions and the Board's statement of reasons or bases, the Court cannot say that the Board's determination was clearly erroneous. See Owens v. Brown, 7 Vet.App. 429, 433 (1995) (holding that the Board is responsible 8 for assessing the credibility and weight of evidence and that the Court may overturn the Board's decision only if it is clearly erroneous). Nonetheless, in the context of the presumption of soundness, there is no requirement that the claimant submit evidence of aggravation becausetheburdenfalls on the Government to establish no aggravation. Wagner, supra. Relying primarilyon the January2010, October 2004, and January 2003 VA medical opinions, the Board concluded that evidence clearlyand unmistakablyestablished that the appellant's foot disorder was not aggravated by service. R. at 10- 19. Regarding the January 2010 medical opinion, the Board stated that the examiner "unequivocally concluded that the current left foot disorder clearly and unmistakably existed prior to service, and did not undergo any permanent worsening. The examiner acknowledged that there may have been temporary flare ups during service, but unequivocally found that the [v]eteran's disability did not permanently worsen during service." Id. The Court cannot agree with the degree of clarity assigned the January 2010 medical examiner's opinion. Although the examiner stated that "the claimed foot disorder clearly and unmistakably preexisted service" his statements regarding aggravation contain sufficient ambiguity that is was error for the Board to rely on the examiner's opinion without seeking further clarification. See Adams v. Principi, 256 F.3d 1318, 1321-22 (Fed. Cir. 2001) (affirming this Court's conclusion that remand was the appropriate remedy where there was a lack of clarity in the medical evidence and the Board should have sought clarification to resolve the VA examiner's intent). The examiner stated:"Icannotdocument thattheleftfootdisorderwaspermanentlyaggravatedorworsenedduring his period in the military. As previously noted by the examiner from 2003, there was probably intermittent aggravation of his left foot, but there was no permanent damage." R. at 44 (emphasis added). Viewed one way, the examiner's statement could be read as opining that the appellant's foot did not undergo any worsening during service and together with the other evidence of record could support the Board's conclusion that the Secretary satisfied his burden to overcome the presumption of soundness. However, the examiner's statement – "I cannot document" – could also be viewed as an inability to opine whether the appellant's foot underwent a permanent worsening during service. Although the examiner referred to the 2003 examiner's conclusion that there was "no 9 permanent damage," he twice more referred to his own inability "to document" and "find . . . evidence that [the appellant's] left foot was permanently worsened by an incident or occurrence in the military." R. at 44. These statements imply that the examiner was relying on the absence of objective evidence of aggravation, which comes close to shifting the burden to the veteran to show an increase in disability during service. See Horn v. Shinseki, No. 10-0853, 2012 WL 2355544, at *6-7 (Vet. App. June 21, 2012) (noting that "there is no requirement of a specific injury or trauma in order for the preexisting condition to have been aggravated . . . . [and that i]t is the lack of aggravation that the Secretary must prove, not lack of an injury"). Under these circumstances, the Court concludes that a remand is permissible for the Board to obtain clarification from the VA examiner. See Adams, supra; see also Horn, 2012 WL 2355544, at *11-12 (interpreting Adams, supra, as distinguishing between those cases where clarification of the medical evidence is required necessitating remand, and those cases where there is an obvious insufficiency of the evidence warranting reversal); Daves v. Nicholson, 21 Vet.App. 46, 51 (2007) (when medical examination report is susceptible to multiple fair but inconsistent meanings, the Board errs by not seeking clarification). The Court is cognizant thattherecordcontainstwoadditionalVAopinions, theJanuary2003 and October 2004 reports, which also address this issue. Although the Board relied on the three medical reports to determine that the Secretary satisfied his burden to rebut the presumption of soundness, the Court finds the Secretary's proof insufficient without the January 2010 examiner's opinion. First, as conceded by the Board, the January 2003 opinion left open "some room, albeit minor, for doubt as to whether aggravation might have occurred" and the examiner's use of the phrase "more likely than not" is insufficient to meet the clear and unmistakable evidence standard. R. at 19; see also R. at 18 (noting that the examiner seemed to concede " 'low long-term aggravation'" but indicating that the examiner "likely meant 'no' instead of 'low'"). Second, the January 2003 examiner did not provide any supporting rationale for opining that service" may at times have caused some temporary aggravation of his symptoms[,] but no long-term problems." R. at 850; see Horn, 2012 WL 2355544, at *7 (indicating in the context of evaluating whether the Secretary's proof is sufficient to rebut the presumption of soundness that "there is no reason that the Court should not 10 follow its caselaw that . . . an unexplained conclusory [medical] opinion is entitled to no weight in a service-connection context (citing Nieves-Rodriguez, 22 Vet.App. at 304 )). In this regard, the Court notes that the Board may not discount favorable medical evidence that is conclusory, yet favor another medical opinion that also fails to provide any rationale for its conclusion. Third, the October 2004 examiner did not provide an independent opinion regarding aggravation. Instead, a plain reading of his report shows that he simply adopted the January 2003 examiner's opinion, which lacks supporting analysis. See R. at 465 (noting that the "[January 2003 examiner] stated that there was intermittent aggravation of his left foot disorder, but that there was no permanent damage"). Because the January 2003 and October 2004 opinions are insufficient to meet the Secretary's burden, the Court will vacate the Board's decision and remand the matter with instructions that the Board seek clarification from the January 2010 medical examiner addressing whether the appellant's preexisting foot condition was aggravated by service. See Adams and Horn, both supra. B. The Appellant's Remaining Arguments Given this disposition, the Court will not at this time address the remaining arguments and issues raised by the appellant. See Best v. Principi, 15 Vet.App. 18, 20 ( 2001). "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." Id. In pursuing the matter on remand, the appellant is free to submit additional evidence and argument on the remanded matters, and the Board is required to consider anysuch relevant evidence 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). 11 III. CONCLUSION After consideration of the appellant's and the Secretary's pleadings, and a review of the record, the Board's January 12, 2011, decision is VACATED and the matter is REMANDED for further proceedings consistent with this decision. DATED: July 5, 2012 Copies to: Bobby L. Neal VA General Counsel (027) 12

Single Judge Application McNair v. Shinseki, 25 Vet.App. 98 (2011); Informed Consent; 38 C.F.R. § 3.361(d)(1)(ii)

Excerpt from decision below: "In response, the Secretary argues that the Board's decision should be vacated and the matter remanded to the Board because its statement of reasons or bases is inadequate. Specifically, the Secretary argues that the Board did not analyze whether the informed consent process was adequate under 38 C.F.R. § 3.361(d)(1)(ii). The Secretary also notes that the Board decision was issued approximately six months prior to the issuance of this Court's decision in McNair, which held that the failure to advise a patient of a foreseeable risk does not defeat a finding of informed consent if a "reasonable person in similar circumstances would have proceeded with the medical treatment even if informed of the foreseeable risk." Id. at 107. Upon review of the record, the Court is persuaded that remand to the Board is necessary in this instance. On remand, the Board must expressly discuss, and provide an adequate statement of reasons or bases for its conclusions: (1) whether acquiring brachial neuritis due to an influenza vaccination was a reasonably foreseeable event; (2) whether Mr. Kelly gave informed consent; and (3) the application of McNair to its findings." =========================== ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 11-2387 ANTHONY J. KELLY, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before MOORMAN, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. MOORMAN, Judge: The appellant, Anthony J. Kelly, appeals through counsel a May 10, 2011,BoardofVeterans'Appeals (Board) decisionthatdeniedentitlementtocompensation pursuant to 38 U.S.C. § 1151 for additional left arm disability due to VA medical treatment in October 1998. Record (R.) at 3-18. Mr. Kelly and the Secretary each filed a brief. This appeal is timely, and the Court has jurisdiction pursuant to 38 U.S.C. § 7252(a). A single judge may conduct this review. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). Based on the following analysis, the Court will vacate the Board's decision and remand this appeal for further adjudication in light of this Court's holding in McNair v. Shinseki, 25 Vet.App. 98 (2011), and the Secretary's concessions regarding the Board's inadequate statement of reasons or bases. In the decision here on appeal, the Board found that Mr. Kelly, who had served on active duty in the U.S. Marine Corps from August 1966 to August 1968, received an influenza vaccination at the VA medical center (VAMC) in San Francisco, California, in October 1998. R. at 1145, 2. The Board also found that Mr. Kelly acquired "left brachial neuritis" as a result of that vaccination.1 R. Brachial neuritis, also known as neuralgic amyotrophy, is defined as "pain across the shoulder and upper arm, withatrophyand paralysisof the musclesof the shoulder girdle." DORLAND'SILLUSTRATEDMEDICALDICTIONARY 1263, 70 (32d ed 2012). 1 at 4. Finally, the Board found that Mr. Kelly's disabilitydid not result from carelessness, negligence, lack of proper skill, error in judgment, or similar incidence of fault on the part of VA and "the result was the ordinary risk of the treatment provided." R. at 5; see R. at 16 ( finding that Mr. Kelly's brachial neuritis was a reasonably foreseeable event). Therefore, the Board denied compensation under 38 U.S.C. § 1151. Mr. Kelly present two arguments on appeal. First, he argues that VA failed to obtain his informed consent to the vaccination because it did not disclose the risk of acquiring brachial neuritis. Second, in the alternative, he argues that the risk of acquiring brachial neuritis was not a reasonably foreseeable risk within the meaning of VA regulations and that he is entitled to compensation even if he gave informed consent. He seeks reversal of the Board's decision. In response, the Secretary argues that the Board's decision should be vacated and the matter remanded to the Board because its statement of reasons or bases is inadequate. Specifically, the Secretary argues that the Board did not analyze whether the informed consent process was adequate under 38 C.F.R. § 3.361(d)(1)(ii). The Secretary also notes that the Board decision was issued approximately six months prior to the issuance of this Court's decision in McNair, which held that the failure to advise a patient of a foreseeable risk does not defeat a finding of informed consent if a"reasonable person in similar circumstances would have proceeded with the medical treatment even if informed of the foreseeable risk." Id. at 107. Upon review of the record, the Court is persuaded that remand to the Board is necessary in this instance. On remand, the Board must expressly discuss, and provide an adequate statement of reasons or bases for its conclusions: (1) whether acquiring brachial neuritis due to an influenza vaccination was a reasonably foreseeable event; (2) whether Mr. Kelly gave informed consent; and (3) the application of McNair to its findings. Given this disposition, the Court will not at this time address the remaining arguments and issues raised by Mr. Kelly. See Best v. Principi, 15 Vet.App. 18, 20 (2001 ) ("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."). In pursuing the matter on remand, Mr. Kelly is free to submit additional evidence and argument on the remanded matters, and the Board is required to consider any such relevant evidence and 2 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. Upon consideration of the foregoing, the Board's May 10, 2011, decision is VACATED and this matter is REMANDED to the Board for action consistent with this decision. DATED: July 26, 2012 Copies to: Ronald L. Smith, Esq. VA General Counsel (027) 3

Single Judge Application McNair v. Shinseki, 25 Vet.App. 98, 105 (2011); 38 U.S.C. § 7104(d)(1)

Excerpt from decision below: "The Board has a "duty to make credibility determinations and otherwise weigh all of the evidence submitted, including lay evidence, and to adequately explain the reasons or bases for its assignment of weight and ultimate determinations." McNair v. Shinseki, 25 Vet.App. 98, 105 (2011); see also 38 U.S.C. § 7104(d)(1)." =========================== ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 11-0807 WILLIAM C. MANN, 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: William C. Mann appeals through counsel a January 4, 2011, Board of Veterans' Appeals (Board) decision that denied entitlement to VA benefits for an acquired psychiatric disorder. Mr. Mann's Notice of Appeal was timely and the Court has jurisdiction to review the Board decision pursuant to 38 U.S.C. § 7252(a). Neither party requested oral argument, nor have the parties identified issues that they believe require a precedential decision of the Court. Because the Board clearly erred in concluding that VA satisfied its duty to assist and failed to provide an adequate statement of reasons or bases regarding the credibility of certain lay statements Mr. Mann offered in support of his claim, the Court will vacate the January2011 Board decision and remand the matter for further development and readjudication consistent with this decision. I. FACTS Mr. Mann served on active duty in the U.S. Navy from July 1971 to May 1972. At his entrance examination in July 1971, no psychiatric abnormalities were noted and Mr. Mann denied a history of "[n]ervous trouble of any sort." Record (R.) at 366. In an April 1972 letter, a Naval medical officer informed Mr. Mann's commanding officer that Mr. Mann had " been evaluated by psychiatry and found to have a personality disorder." R. at 128. The letter further stated that, after a short trial period following this diagnosis, Mr. Mann had not shown improvement and was "an ideal candidate for an administrative discharge." R. at 128. Accordingly, the following month Mr. Mann was discharged as unsuitable for enlistment due to a character and behavior disorder. At his separation examination in May 1972, no psychiatric problems were noted and Mr. Mann again denied "nervous trouble of any sort." R. at 369. Post-service private medical records reflect that Mr. Mann sought treatment for and was diagnosed with panic attacks and anxiety in April 1996, May 1998, and September 1998. At a February 1999 VA psychiatric outpatient evaluation, Mr. Mann reported that he experienced panic attacks since age 18 and a VA progress note from August 1999 reflects continued complaints of anxiety and panic attacks. In February2000, Mr. Mann filed a claim for VA benefits for a nervous disorder. This claim was denied by a VA regional office in a March 2001 rating decision from which Mr. Mann filed a Notice of Disagreement and appealed to the Board. In his Substantive Appeal, Mr. Mann stated that he had medical appointments and treatment for his condition at the Naval Hospital in Jacksonville, Florida, between September 1971 and December 1971 and requested that VA obtain these records. In April 2005, the Board remanded Mr. Mann's claim for further development. Specifically, the Board noted that only inpatient mental health records from the Jacksonville Naval Hospital had been requested, but that Mr. Mann appeared to "describ[e] out[]patient mental hygiene records" that had to be specifically requested from the National Personnel Records Center. R. at 243. Accordingly, the Board ordered the appeals management center to "request [ that] the National Personnel Records Center . . . conduct a search for the period of October 1971 to February 1972 for records of [Mr. Mann's] mental hygiene treatment at the Naval Hospital, Jacksonville, Florida." R. at 244. The record of proceedings indicates that, later that month, the appeals management center requested inpatient clinical records pertaining to mental hygiene treatment Mr. Mann received at the Jacksonville Naval Hospital between October 1, 1972, and February 28, 1972. The response received was that "searches of []Naval Hosp[ital]–Jacksonville, Fl[orida ][] for []1972[] were conducted, but no records were located." R. at 223 (emphasis added). 2 In May 2007 and July 2008, Mr. Mann submitted statements in support of his claim, continuing to assert that he experienced panic attacks while in service and received treatment for these episodes at the Jacksonville Naval Hospital. He also stated that this condition led to his discharge from the U.S. Navy and that he continued to have panic attacks after service. In his July 2008 statement, Mr. Mann specifically stated that he received treatment at the Jacksonville Naval Hospital "between Sept[ember] 1[,] 1971[,] through Dec[ember] 31[,] 1971." R. at 188. In July 2009, the Board issued another decision, again remanding Mr. Mann's claim to the appeals management center for further development. The Board found that, [a]lthoughtherecordsassociatedwith[Mr. Mann's] in- servicepsychiatricevaluation no longer exist, it is clear that he did undergo psychiatric evaluation in service. In addition, [Mr. Mann] has provided both competent and credible testimony regarding the incurrence of panic attacks and nervousness during service, and as to the continuation of such symptoms after his separation from service. . . . Because [Mr. Mann] is not competent to relate his in-service symptoms to his currently diagnosed psychiatric disorder, and any such relationship remains unclear to the Board, the Board finds that a VA examination is necessary in order to fairly decide [ his] claim. R. at 166-67 (internal citation omitted). Accordingly, the Board ordered the appeals management center to obtain a VA psychiatric examination and directed that [t]he examiner should specificallyoffer an opinion as to whether it is at least as likely as not . . . that any psychiatric disorder demonstrated during the pendency of the appeal, to include, but not limited to[,] anxiety, depression, and schizophrenia, is related to [Mr. Mann's] military service, or developed within one year of his discharge from service in May 1972. R. at 167. The Board further directed that, "[i]n doing so, the examiner must acknowledge and discuss any lay evidence of continuity of symptomatology." R. at 167. Subsequently, Mr. Mann was afforded a VA psychiatric examination in September 2009. The examiner diagnosed Mr. Mann with a panic disorder and opined that it was at least as likely as not related to his service. The examiner noted that this opinion was based on the reported history of Mr. Mann's panic disorder and symptoms, but that he had not yet reviewed the claims file. In November 2009, after reviewing the claims file, the examiner added an addendum, stating that Mr. Mann had been diagnosed with a personalitydisorder in serviceand opining that the diagnosed panic disorder was "less likely as not caused by or the result of his active military duty." R. at 115. 3 In December 2009, Mr. Mann submitted another statement in support of his claim, stating that, although he was diagnosed with a personality disorder in service, his symptoms had always been the same and he believedthat his in-service difficulties were related to a panic disorder that was misdiagnosed at the time. In a March 2010 decision, the Board found the September 2009 VA psychiatric examination report with November2009 addendum inadequate because, "inrenderinghis addendum opinion, the examiner did not discuss [Mr. Mann's] lay statements of in-service treatment for panic attacks and continuity of panic attacks since service." R. at 63. The Board found that it remained "unclear . . . whether [Mr. Mann's] panic and anxiety are related to his active service, including whether they are related to his in-service diagnosis of a personality disorder." R. at 64. The Board therefore remanded the claim so that a new medical opinion could be obtained and again directed that the examiner "acknowledge and discuss anylayevidence of continuityof symptomatology, such as [Mr. Mann's] contentions that his current symptomatology is the same as that shown in service." R. at 64. In June 2010, a new VA psychiatric examination was conducted. The examiner noted that, in February1999, Mr. Mann reported panic attacks since the age of 18. During the examination, Mr. Mann reported that he began to experience panic attacks in "A school" during his training as an airman apprentice and that he was then experiencing them daily. R. at 50. The examiner diagnosed Mr. Mann with a not otherwise specified anxiety disorder. He then opined that Mr. Mann's panic disorder was "less likely as not . . . caused by or a result of [his] military service." R. at 53. In support of this opinion, the examiner stated that Mr. Mann's "service medical records do not support his claim of having experienced panic attacks in the military" in that "[h] is discharge [r]eport of [m]edical [h]istoryform indicated [he] denied all psychiatricsymptoms," and "[t]here are no records to support ongoing treatment for psychiatric symptoms since his discharge." R. at 53. In January2011, the Board issued the decision now on appeal. The Board concluded that the VA satisfied its duty to assist Mr. Mann because "all relevant, identified, and available evidence ha[d] been obtained, and VA ha[d] notified [him] of any evidence that could not be obtained." R. at 6. The Board then concluded that the most probative evidence of record regarding whether Mr. Mann's currently diagnosed anxiety disorder with panic attacks was related to his service was the 4 November2009 and June 2010VAexaminers'unfavorableopinions. TheBoard stated that "it [was] apparent that the physicians from the latter VA examinations did not find [ Mr. Mann's] claim of panic attacks in service to be credible and neither does the Board." R. at 9. In particular, the Board concluded that "[i]t does not seem likely that [Mr. Mann] would have panic attacks in service but deny nervous trouble of any sort in the [r]eport of [m]edical [h]istory and have a normal psychiatric evaluation at the service separation examination." R. at 9. The Board therefore denied Mr. Mann's claim. II. ANALYSIS A. Duty to Assist Although the issue was not expressly raised by Mr. Mann, the Court sua sponte concludes that the Board clearly erred in concluding that VA satisfied its duty to assist in this case. As noted above, on two occasions Mr. Mann informed VA that he received outpatient treatment for his panic attacks and/or anxiety at the Jacksonville Naval Hospital between September 1971 and December 1971. The Board, in its April 2005 decision, recognized that no search had been conducted for outpatientrecordsfromthatfacility, andthereforedirectedtheappealsmanagementcenterto attempt to obtain these records from the National Personnel Records Center, though the Board mistakenly characterized the relevant period as October 1971 to February 1972. Despite this remand order and Mr. Mann's statements regarding the relevant time frame, the record of proceedings indicates that VA never conducted a search for outpatient records from the Jacksonville Naval Hospital dated between September 1971 and December 1971. Instead, it appears that the appeals management center, due to what was likely a typographical error, requested mental hygiene records from that facility from October 1972 to February 1972. The response from the National Personnel Records Center indicates that it conducted a search for all relevant records from 1972, likely because it was confused by the dates provided by the appeals management center. In any event, it is evident that no search for these records has ever been conducted for the time period Mr. Mann said was relevant, October 1971 through December 1971. Because VA's duty to assist requires it to make reasonable efforts to obtain all records held by a governmental entity that are relevant to the claim, pertain to the claimant's military service, and 5 areadequatelyidentified bythe claimant, 38U.S.C. §5103A(c)(1),andbecause the record presented to the Court in this appeal indicates that VA erred in its attempt to obtain the relevant outpatient treatment records for the period of time provided by Mr. Mann, the Court concludes that the Board clearlyerred in finding that VA satisfied its dutyto assist. See Nolen v. Gober, 14 Vet.App. 183, 184 (2000) (holding that the Court reviews the Board's determination that VA satisfied its duty to assist under the "clearly erroneous" standard of review). Accordingly, the Court will vacate the Board's decision and remand this matter for further development and readjudication. On remand, the Board must ensure that VA attempts to obtain records of any outpatient mental hygiene treatment Mr. Mann received at the Jacksonville Naval Hospital between September 1, 1971, and February 28, 1972.1 The Board must ensure that VA makes as many requests as necessary to obtain these records and that it only discontinues its efforts when it concludes that continued efforts would be futile. See 38 C.F.R. § 3.159(c)(2) (2012). If this occurs, VA must advise Mr. Mann of its conclusion that the records do not exist or are not in the possession of the National Personnel Records Center and must provide him with the notice outlined in 38 U.S.C. § 5103A(b)(2), which contains unique provisions mandated by Congress. Additionally, on remand, Mr. Mann is free to submit additional evidence and argument in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). 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). The Board shall proceed expeditiously, in accordance with 38 U.S.C. § 7112 (expedited treatment of remanded claims). B. Other Arguments Presented by Mr. Mann Although the Court has already determined that remand is necessary, the Court will address Mr. Mann's remaining arguments. See Quirin v. Shinseki, 22 Vet.App. 390, 396 (2009) (holding It is unclear to the Court why, in its April 2005 remand order, the Board directed the appeals management center to attempt to obtain outpatient records dated throughFebruary 28, 1972, given that Mr. Mann's statements (at least those contained in the record of proceedings) identified the relevant dates as September 1971 through December 1971. However, the Board presumably had reason to order the appeals management center to include in its records request January and February 1972, so, on remand, the Board should ensure that the records search include those months. 1 6 that, to provide guidance to the Board, the Court may address an appellant's other arguments after determining that remand is warranted). First, Mr. Mann argues that the Board failed to ensure compliance with its own March 2010 remand instructions, in violation of this Court's decision in Stegall v. West, 11 Vet.App. 268, 271 (1998). Specifically, he notes that the Board ordered that a new VA psychiatric examination be conducted and directed the examiner to "acknowledge and discuss any lay evidence of a continuity of symptomatology, such as [Mr. Mann's] contentions that his current symptomatology is the same as that shown in service." R. at 64. Mr. Mann contends that the VA examiner who conducted the subsequent June 2010 psychiatric examination "at no point . . . consider[ ed] the lay evidence of record." Appellant's Brief (Br.) at 10. He also appears to contend that the examiner was required to accept his laystatements regardingthe onset of his symptoms and their continuitysince separation from service because the Board found those statements to be competent and credible in its July 2009 decision. Although the June 2010 examiner did not expressly discuss each of Mr. Mann's lay statementsthenofrecordthatpertainedto symptoms ofanxietyandpanicattacksthatheexperienced in service and continuously since that time, as outlined above, the examiner noted Mr. Mann's February1999 statement that he experienced panic attacks since the age of 18, and Mr. Mann turned 18 approximately two months after his separation from active duty service. See R. at 71 (listing Mr. Mann's date of birth as June 29, 1954, and the date of his separation from active duty as May 4, 1972). Further, the examiner noted that, during the examination itself, Mr. Mann reported that he began to experience daily panic attacks during his training as an airman apprentice, which is consistent with other lay statements Mr. Mann made prior to the June 2010 examination. Finally, in offering his opinion, the VA examiner discussed these lay statements in the context of other evidence of record, including Mr. Mann's denial of psychiatric problems at his discharge. Accordingly, the Court concludes that the VA examiner substantially complied with the Board's March 2010 directive that he "acknowledge and discuss any lay evidence of a continuity of symptomatology," including Mr. Mann's assertions that his current symptoms are the same as those he experienced in service. R. at 64; see Dyment v. West, 13 Vet.App. 141, 146–47 (1999) (holding 7 that it is substantial compliance with remand orders, not absolute compliance, that is required by Stegall). Further, there is simply nothing in the Board's March 2010 remand instructions that suggests that the examiner was required to accept the veracity of Mr. Mann's lay statements in formulating his opinion. Accordingly, the Court concludes that the Board's reliance on that opinion in the decision now on appeal was not in contravention of this Court's holding in Stegall. Nevertheless, if, on remand, the treatment records from the Jacksonville Naval Hospital are obtained, the Board will be required to provide Mr. Mann with a new VA psychiatric examination that considers these records or explain why a new examination is not required for VA to comply with its duty to assist Mr. Mann. See Duenas v. Principi, 18 Vet.App. 512, 517-18 (2004) (citing Tucker v. West, 11 Vet.App. 369, 374 (1998) and explaining that, when the Board considers whether a medical examination or opinion is necessary under 38 U.S.C. § 5103A(d) and 38 C.F. R. § 3.159(c)(4), it must provide a written statement of the reasons or bases for its conclusion, pursuant to 38 U.S.C. § 7104(d)(1)); Green v. Derwinski, 1 Vet.App. 121, 124 (1991) (describing an adequate medical examination as one that is "thorough and contemporaneous" and considers prior medical examinations and treatment). The Court does, however, find merit in Mr. Mann's second argument, which is that the Board failed to adequately explain why it found his lay statements regarding the in-service onset and continuity of his panic attacks and anxiety to be "both competent and credible" in its July 2009 decision, R. at 167, but not credible in the decision now on appeal. R. at 9. The only explanation provided by the Board for this reversal is that "[i]t does not seem likely that [Mr. Mann] would have panic attacks in service but denynervous trouble of anysort in the [r] eport of [m]edical [h]istoryand have a normal psychiatric evaluation at the service separation examination ." R. at 9-10. However, Mr.Mann's separationexaminationreport, whichincludedclinicallynormalpsychiatricfindings and Mr. Mann's denial of problems with nerves, was of record in July 2009 when the Board found Mr. Mann's lay statements to be credible. Further, although the Board, in the decision now on appeal, also noted that the examiner did not appear to find Mr. Mann's lay statements regarding the in- service onset and continuity of his symptoms to be credible, the examiner's opinion was likewise based on the separation examination report and the absence of "records to support ongoingtreatment 8 for psychiatric symptoms since [Mr. Mann's] discharge." R. at 53. In other words, it was also based on evidence that was already part of or missing from the record in July 2009, when the Board found Mr. Mann's statements credible. The Board has a "duty to make credibility determinations and otherwise weigh all of the evidence submitted, including lay evidence, and to adequately explain the reasons or bases for its assignment of weight and ultimate determinations." McNair v. Shinseki, 25 Vet.App. 98, 105 (2011); see also 38 U.S.C. § 7104(d)(1). The explanation must be adequate to enable the claimant to understand the precise basis for the Board's decision and to facilitate review in this Court. See Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). If the Board's explanation does not meet this standard, the Court must vacate the Board's decision and remand for the Board to provide an adequate statement of reasons or bases. Id. The Court concludes that the Board did not adequately explain its reasons or bases for determining that Mr. Mann's laystatements pertainingto the in-service onset of his panic attacks and nervousness and the continuity of these symptoms lacked credibility given that the Board did not (1) acknowledge that, in July 2009, it expressly found those same statements to be both competent and credible or (2) explain what evidence added to the record since that time altered its impression of the credibility of those statements. This deficiency hinders judicial review, requiring the Court to vacate the Board decision. See id. On remand, the Board must reassess the credibility of Mr. Mann's lay statements and, if it finds them to lack credibility, explain what evidence added to the record since the July 2009 Board decision undercut the credibility of these statements. III. CONCLUSION Upon consideration of the foregoing, the January4, 2011, Board decision is VACATED and the matter is REMANDED for furtherdevelopment and readjudciation consistent with this decision. DATED: July 27, 2012 Copies to: Robert V. Chisholm, Esq. VA General Counsel (027) 9