Tuesday, September 11, 2012

Single Judge Application, Service Connection; 38 C.F.R. 3.304(d); 38 U.S.C. 1154(b)

Excerpt from decision below: "Special rules apply when considering the lay testimony of a combat veteran. Under 6 38 U.S.C. § 1154(b), where a veteran "engaged in combat with the enemy in active service . . . the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence of aggravation." See also 38 C.F.R. § 3.304(d) (2012) (implementing regulation for section 1154(b), stating that "[s]atisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances . . . of such service even though there is no official record of such incurrence or aggravation"). Section 1154(b) does not eliminate the need for medical nexus evidence; it merely reduces the burden of presenting evidence of incurrence or aggravation of an injury or disease incurred in or aggravated by combat service. See Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996)." =========================== ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 11-2324 JARED P. MARSH, 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, Jared P. Marsh, appeals through counsel an April 15, 2011, Board of Veterans' Appeals (Board) decision that denied entitlement to disability compensation benefits for diverticulitis, chronic bowel disorder, manifested by recurring constipation, diarrhea, and a ruptured bowel. Record (R.) at 3-18. The Board also remanded a disabilitycompensation claimforhypertensivevasculardiseaseforfurtherdevelopment. Therefore, this claim is not before the Court. See Hampton v. Gober, 10 Vet.App. 481, 483 (1997). Both parties have filed briefs. This appeal is timely, and the Court has jurisdiction to review the Board's decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). The Court will vacate the Board decision and remand the matters for further adjudication. I. BACKGROUND The appellant had active service in the U.S. Army from February 2, 2004, to May 5, 2007, with a deployment to Iraq from January 25, 2006, to November 11, 2007, where he served as a tank crewman. R. at 577, 128. He was awarded the Combat Action Badge, Global War on Terrorism Service Medal, Iraq Campaign Medal, Army Service Ribbon, and Overseas Service Ribbon. R. at 577. The Combat Action Badge is one of the military decorations that VA recognizes as evidence of participation in combat. VA ADJUDICATION PROCEDURES MANUAL M21-1 MANUAL REWRITE (MANUAL M21-1MR), pt. IV, subpt. 11, 1.D. 13(e). In March 2007, an Army medical evaluation board recommended the appellant's discharge from the service because of a medial collateral ligament right knee Previous DocumentinjuryNext Hit sustained during service, with chronic pain and instability, for which he underwent right knee arthroscopy. R. at 690-92. The appellant also injured his back during service. R. at 691, 667. The appellant did not report a history of intestinal problems on his entry examination, and no gastrointestinal disorder was found on his entrance examination. R. at 669-72. His service medical records (SMRs) do not show any treatment or diagnosis for a gastrointestinal disorder. R. at 663-68, 669-72, 673-77, 678-81, 690-92. In a report of medical history at separation, the appellant denied having any recurring intestinal issues, and no gastrointestinal or bowel abnormalities were found on his separation examination. R. at 663-65, 666- 68. On June 2, 2007, a month after being discharged from service, the appellant was hospitalized for complaints of increasing abdominal discomfort. R. at 289-93. An examination revealed diminished bowel sounds with definite right lower and midline tenderness, positive, very mild rebound, and no guarding or masses. Id. After a computed tomography (CT) scan revealed abnormalities in the appellant's colon, he underwent exploratory surgery, after which he was diagnosed with "pneumoperitoneum[1 ] with peritonitis[2 ] with perforated sigmoid colon and phlegmonous mass in the sigmoid colon." R. at 305-07. To treat this condition, the appellant had a sigmoid colon resection and placement of a sigmoid colostomy3 and Hartmann pouch. Id. After a Pneumoperitoneum is the presence of air in the peritoneum (sac that lines the abdomen) that is attributed to disease. STEDMAN'S MEDICAL DICTIONARY (27th ed. 2000) 1353, 1412 [hereinafter STEDMAN'S]. 2 1 Peritonitis is inflammation of the peritoneum. STEDMAN's at 1353. A colostomy is an artificial connection between the colon and the skin. STEDMAN'S at 2 3 383. pathology report was concluded, the appellant was diagnosed with diverticulosis,4 acute diverticulitis,5 perforated diverticulum, and acute peritonitis. R. at 309, 311. Two months later, the appellant underwent a colostomy reversal with resection and low anterior anastomosis.6 R. at 473. The diagnosis was colostomy, status post perforated diverticulitis. R. at 469. In June 2007, the appellant filed a claim for disability compensation benefits for a perforated colon with colostomy. R. at 1216-42. The appellant laterexplained that while he was in Iraq, he "was exposed to very extreme conditions [including] extreme heat, dehydration, poor fiber intake and the inability to use the restroom when needed, [leading] to many bowel problems." R. at 542. He noted that "IVs [intravenous solutions] were a regular routine upon returning from missions [and] I was often constipated" but also suffered from occasional diarrhea. Id. In September 2007, the appellant underwent a VA examination, leading to a diagnosis of "remote history of diverticulitis with perforation of sigmoid colon requiring surgical intervention (partial colon resection) without residual and with zero to minimal functional effect." R. at 394. In October 2007, the RO denied entitlement to service connection for diverticulitis and a chronic bowel disorder. R. at 821-29, 344-60, 277-79. The appellant appealed this decision to the Board. R. at 540-46. To support his claim, he submitted a January 2008 report from James R. Campbell, D.O., his private physician, whoopinedthathis diverticultis and subsequent surgerywere related to service. R. at 314-17. Dr. Campbell stated: Jared gives a history of being trained by the army and deployed to Iraq . . . when complications arose due to harsh conditions. Working in an extremely stressful war environment, the patient suffered conditions resulting in extreme heat dehydration, problems with diet, including a poor fiber intake and the inability to adequately use the restroom when need. This over a period of time during his stay in Iraq developed Diverticulosis is the presence of a number of diverticula (herniations of mucosa of the colon). STEDMAN'S at 532. Diverticulitis is an inflammation of the diverticulum (pouch or sac opening from the gut), especially of the small pockets in the wall of the colon that fill with stagnant fecal material and become inflamed. STEDMAN's at 532. Anterior anastomosis refers to a surgical technique to create an opening from the sigmoid colon to the rectal stump. ATLAS OF PELVIC SURGERY, http://www surgery.com (last visited Aug. 16, 2012). 3 6 5 4 in[to] significant bowel problems where IVs were required for his dehydration upon returning to mission. He complained of being often constipated with alternating occasional diarrhea which was further complicated byhis inability to reach restroom facilities. R. at 315-17. Dr. Campbell noted the appellant's subsequent intestinal surgery and further opined: [I]n review of the records and the timing of this unfortunate development it is my opinion that this incident resulted from an adverse environment suffered during his tour in Iraq war theatrewith the above mentioned problems of dehydration, poor diet, inability to access restrooms in combination with the dehydration resulting in colon problems and pressure creating the diverticuli. Development of the diverticuli in the sigmoid colon would not be a common finding in a 25-26 year old without additional adverse conditions contributing[,] which I believe were related to his service connection during the Iraq war. Subsequent experience is that this patient has suffered with this major surgery, infection, complications, colostomy, reversal colostomy that results in this patient having in essence a post traumatic stress response as well as significant depression upon interview. R. at 317-19. The appellant underwent a June 2008 VA examination. The examiner diagnosed the appellant with a history of diverticulitis with perforation of sigmoid colon requiring partial colon resection without residuals. R. at 394. The VA examiner opined that the " ruptured diverticulus with consequent pneumoperitoneum requiring surgical intervention is less likely as not (less than 50/50 probability) caused by or a result of lack of adequate hydration, fibrous foods while deployed to Iraq during military service." R. at 408. As a rationale for his opinion, the VA examiner noted that "there is no documentation of problems of constipation, abdominal pain or incidents of need for IV hydration while in Iraq. On his separation physical he indicates that he is in good health." Id. Additionally, the VA examiner noted that the perforation of the appellant's colon mayhave occurred because he took laxatives for his condition, which may have further stressed his intestinal system resulting in the rupture. Id. In April 2011, the BVA rendered the decision on appeal. R. at 3-13. The Board denied the claims after concluding that the appellant's diverticulits, and chronic bowel disorder were not incurred or aggravated during service. R. at 5. 4 II. ANALYSIS A. Inadequate Examination The appellant argues that the June 2008 VA opinion, relied on by the Board, was inadequate becausetheexaminerfailedto considertheappellant's description ofhis in- servicesymptomatology. Appellant's Brief(Br.)at22-23. Additionally, theappellantarguesthattheBoardgaveaninadequate statement of reasons or bases for relying on the VA examiner's opinion that the appellant's diverticulitis was not related to service over that of Dr. Campbell's opinion that the appellant's condition was related to service. Appellant's Br. at 23-28. "It is the responsibility of the [Board], not this Court, to assess the credibility and weight to be given to evidence." Owens v. Brown, 7 Vet.App. 429, 433 (1995). The Board is free to favor one medical opinion over another as long as the Board provides adequate reasons or bases for doing so. Id. at 435. However, a medical opinion that the Board relies upon must be adequate. A medical examination "is adequate where it is based upon consideration of the veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's 'evaluation of the claimed disability will be a fully informed one.'" see Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet.App. 405, 407- 08 (1994) (quoting Green v. Derwinski, 1 Vet.App. 121, 124 (1991))). Additionally, the opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions." Stefl, 21 Vet.App. at 124-25. "If a diagnosis is not supported by the findings on the examination report or if the report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes," 38 C.F.R. § 4.2 ( 2012). See Stegall, 11 Vet.App. 270-71 (remanding matter where VA examination was inadequate under § 4.2); Hicks v. Brown, 8 Vet.App. 417, 422 (1995) (concluding that an inadequate medical examination frustrates judicial review). Whether a medical examination report is adequate is generallya finding of fact that the Court reviews under the "clearly erroneous" standard of review. See 38 U.S.C. § 7261(a)(4); Nolen v. Gober, 14 Vet.App. 183, 184 (2000). A finding of fact is clearly erroneous when the Court, after reviewing the entire evidence, "is left with the definite and firm conviction that a mistake has been committed." United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948 ); see also 5 Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990). Here, the Board explained that the June 2008 VA examiner's opinion that the appellant's condition was not related to service was "entitled to the most weight regarding the diagnosis and etiology of the [appellant's] diverticulitis and a chronic bowel disorder " because the VA examiner provided "a full and complete rationale for his opinion, " and his opinion was "based upon an evaluation of the appellant, " including a "thorough examination" of the appellant and "review of the claims folder." R. at 18. The June 2008 medical examiner concluded that the appellant's diverticulitis and bowel disorder were not related to service because there was an absence of documentation in the SMRs of his symptoms. It is clear that the VA examiner relied on the absence of corroborating evidence in the SMRs of specific complaints of diarrhea and constipation. In considering the nature of an appellant's disability, a VA examiner should consider the appellant's description of his symptomatology. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (finding that a medical examination that ignores lay assertions regarding symptomatology is of little probative value); Barr v. Nicholson, 21 Vet.App. 303, 311 (2007) (finding an examination inadequate where the examiner failed to consider the appellant's assertions of symptomatology); Dalton v. Nicholson, 21 Vet.App. 23, 39 (2007) (finding a medical examination inadequate where the examiner "impermissibly ignored the appellant's lay assertions that he had sustained a back injury during service"). The Court agrees with the appellant that the Board erred in relying on inadequate medical opinion. B. Credibility of Appellant's Testimony The appellant argues that the Board improperly determined that his testimony regarding his in-servicesymptoms ofconstipation andalternatingdiarrheais not credible. Appellant's Br.at14-19. The Board is obligated to determine the credibilityof layevidence. See Buchanan, 451 F.3d at 1337. In conducting this analysis, the Board can consider possible bias and conflicting statements. Id. When considering documents submitted by a veteran, the Board may also consider "internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the veteran." Caluza v. Brown, 7 Vet.App. 498, 511 (1995). Special rules apply when considering the lay testimony of a combat veteran. Under 6 38 U.S.C. § 1154(b), where a veteran "engaged in combat with the enemy in active service . . . the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence of aggravation." See also 38 C.F.R. § 3.304(d) (2012) (implementing regulation for section 1154(b), stating that "[s]atisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances . . . of such service even though there is no official record of such incurrence or aggravation"). Section 1154(b) does not eliminate the need for medical nexus evidence; it merely reduces the burden of presenting evidence of incurrence or aggravation of an injury or disease incurred in or aggravated by combat service. See Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996). Even when the combat presumption applies, a "veteran seeking compensation must still show the existence of a present disability and that there is a causal relationship between the present disability and the injury, disease, or aggravation of a preexisting injury or disease incurred during active duty." Shedden, 381 F.3d at 1167. As with any determination, the Board must explain the reasoning behind its credibility determinations. Its statement of reasons or bases must be adequate to enable an appellant to understand the precise basis for the Board's decision, and to facilitate informed review in this Court. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert, 1 Vet.App. at 57. To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Caluza, 7 Vet.App. at 506. Here, the appellant testified regarding his in-service symptoms of alternating bouts of constipation and diarrhea. The Board found this testimony was not credible because there "were no such complaints of these symptoms in the appellant's SMRs despite evidence that he sought medical care for other disabilities." R. at 11. The Board reasoned that because the appellant sought medical attention for other ailments, "[i]t is logical to conclude that a reasonable person, who had access, would seek medical attention [for his gastrointestinal symptoms] if it were required." Id. The appellant contends that the Board's reasoning violates the Court's holdings in Colvin v. Derwinski, 1 Vet.App. 171 (1991), overruled on other grounds by Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 7 1998), and Kahana v. Shinseki, 24 Vet.App. 428 (2011). Appellant's Br. at 18-19. The Court agrees. In Kahana, the veteran's SMRs and separation examination report did not contain any notation of a right knee injury. The Board determined that the veteran's statements of an in-service knee injury were not credible because, "[g]iven that a right [anterior cruciate ligament] tear is quite a significant injury, one would expect to see at least some documentation of it in the [SMRs]" and "one would expect that the [veteran] would have mentioned [it] on his report of medical history at separation." Id. at 434 (internal quotation marks omitted). The Court held that, in finding the veteran's lay statements not credible "based on its determination that a particular injury, which is alleged to have occurred in service, is of the type that should have been documented in the service records and was not," the Board impermissibly made "a medical determination as to the relative severity, common symptomatology, and usual treatment of an . . . injury without citing to any independent medical evidence to corroborate its finding" in violation of Colvin. Id. Essentially, that is what the Board did in this case. The Board based its conclusion that the appellant's testimony was not credible on its belief that his alternating bouts of constipation and diarrhea were of such severity that they "required medical treatment" and that the appellant would have been expected to report these symptoms to the Army physician when he sought treatment for his right knee Previous HitinjuryNext Hit. These are medical determinations that are generally outside the competency of the Board, and the Board provided no independent medical evidence to support them. See id. at 434. The Board violated Colvin byproviding a medical opinion on the nature and course of an Previous HitinjuryNext Document without supporting that opinion with independent medicalevidence. Therefore, the Court concludes that the Board erred in determining that the appellant was not credible on that basis. See Kahana, 24 Vet.App. at 435; Colvin, 1 Vet.App. at 175. The Board also erred by failing to apply the combat presumption set forth in 38 U.S.C. § 1154(b). The appellant was awarded the Combat Action Badge for his service in the Persian Gulf. The VA recognizes this medal as evidence that the recipient is a combat veteran and entitled to the benefit of the section 1154(b) presumption. MANUALM21-1MR, pt. IV, subpt. 11, 1.D. 13(e). The testimony of combat veterans is entitled to more favorable treatment than lay testimony submitted by noncombat veterans. See Arms v. West, 12 VetApp. 188, 195-97 (1999). In creating the combat presumption,Congressrecognizedthatin combatsituations militaryrecordkeepingmaybedeficient 8 because records that are normally kept might not have been created or may have been destroyed. Id. Because of the likelihood of incomplete record keeping, statements by combat veterans as to in-service symptoms are entitled to special weight. Id. Here, the appellant not only testified regarding his symptoms, but he also explained that he received IVs from medics in the field to treat his dehydration. R. at 29-31. He further testified that the medic occasionally gave him medication for his constipation and diarrhea. R. at 30. He stated that combat soldiers were only seen by the doctor on the base if they were experiencing a medical problem that could not be treated by the unit medic. R. at 30. It is not surprising that in a combat situation there would be no record of the appellant complaining of alternating bouts of constipation or diarrhea. Despite the appellant's Combat Action Badge and his testimony of the combat conditions under which he served, the Board failed to apply section 1154(b) to his claims. The failure to do so was error. III. CONCLUSION After consideration of the appellant's and the Secretary's briefs, and a review of the record, the Board's April 15, 2011, decision is VACATED and the matters are REMANDED for further adjudication consistent with this decision. DATED: August 31, 2012 Copies to: Virginia A. Girard-Brady, Esq. VA General Counsel 9

Single Judge Application, Records Considered; 38 C.F.R. 3.159(c)(1); Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010)

Excerpt from decision below: "Mr. Moore argues that VA failed in its duty to assist him because it did not obtain employment and medical records that would support his claim. VA has a duty to assist a veteran in the development of claims, including assisting in the procurement of evidence necessary to substantiate a claim for benefits. 38 U.S.C. § 5103A(a). This duty is detailed in 38 C.F.R. § 3.159(c)(1) (2012): Upon receipt of a substantially complete application for benefits, VA will make reasonable efforts to help a claimant obtain evidence necessary to substantiate the claim. . . . VA will make reasonable efforts to obtain relevant records not in the custody of a Federal department or agency, to include records from State or local governments, private medical care providers, current or former employers, and other non-Federal governmental sources. Such reasonable efforts will generally consist of an initial request for the records and, if the records are not received, at least one follow-up request. On his 2001 application for benefits, Mr. Moore stated that he lost 30 days of work while employed at the City of Savannah as a result of MS. R. at 350. There is no indication in the record that VA attempted to obtain these employment records. In 2005, and again during a 2010 Board hearing, Mr. Moore stated that approximately five years after service the Department of Defense terminated him from his job at Fort Stewart because he was medically unfit. R. at 29, 273. There is no indication in the record that VA attempted to obtain those records. These records pertain to Mr. Moore's medical condition during the seven-year period following his release from service, making them relevant to the pivotal issue of the claim. See Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010) (only those 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" need be requested). VA made no effort to obtain the records, despite the fact that they were identified as employment records with the Department of Defense and the City of 2 Savannah, and Mr. Moore identified the approximate periods he was employed at each.1 ============================ ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 11-1812 CLIFFORD MOORE, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before DAVIS, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. DAVIS, Judge: U.S. Army veteran Clifford Moore appeals through counsel from an April 25, 2011, Board of Veterans' Appeals (Board) decision that denied service connection for multiple sclerosis (MS) and an acquired psychiatric disorder. For the reasons that follow, the Court will set aside the April 2011 Board decision, and remand the matter for further adjudication. I. BACKGROUND Mr. Moore currently suffers from MS; this is undisputed by the Secretary. In June 2002, the regional office denied service connection for Mr. Moore's MS, and that decision became final. Record (R.) at 4, 9. The Board here found that new and material evidence had been submitted to reopen the claim and then denied it on the merits. The unresolved matter in this case is when Mr. Moore's MS began to manifest. Mr. Moore separated from the Army in 1970. The first diagnosis of MS in the record is dated 1984, 14 years afterseparation. R. at 600. The Secretary's regulation states that, regardless of whetherthecondition was diagnosed, if MS became manifest to a degree of 10% or more within seven years from the date of separation from service, it is considered to have been incurred in service. 38 C.F.R. § 3.307(a)(3) (2012). The Board found that Mr. Moore's MS "is not shown to have been manifested within seven years from his active service discharge or to be casually [sic] related to active service." R. at 3. Mr. Moore disputes this finding on the basis that he began suffering symptoms of MS as early as when he first began serving in the Army and that he had ongoing complications related to MS thereafter. II. ANALYSIS Mr. Moore argues that VA failed in its duty to assist him because it did not obtain employment and medical records that would support his claim. VA has a duty to assist a veteran in the development of claims, including assisting in the procurement of evidence necessary to substantiate a claim for benefits. 38 U.S.C. § 5103A(a). This duty is detailed in 38 C.F.R. § 3.159(c)(1) (2012): Upon receipt of a substantially complete application for benefits, VA will make reasonable efforts to help a claimant obtain evidence necessary to substantiate the claim. . . . VA will make reasonable efforts to obtain relevant records not in the custody of a Federal department or agency, to include records from State or local governments, private medical care providers, current or former employers, and other non-Federal governmental sources. Such reasonable efforts will generally consist of an initial request for the records and, if the records are not received, at least one follow-up request. On his 2001 application for benefits, Mr. Moore stated that he lost 30 days of work while employed at the City of Savannah as a result of MS. R. at 350. There is no indication in the record that VA attempted to obtain these employment records. In 2005, and again during a 2010 Board hearing, Mr. Moore stated that approximately five years after service the Department of Defense terminated him from his job at Fort Stewart because he was medically unfit. R. at 29, 273. There is no indication in the record that VA attempted to obtain those records. These records pertain to Mr. Moore's medical condition during the seven-year period following his release from service, making them relevant to the pivotal issue of the claim. See Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010) (only 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" need be requested). VA made no effort to obtain the records, despite the fact that they were identified as employment records with the Department of Defense and the City of 2 Savannah, and Mr. Moore identified the approximate periods he was employed at each.1 The Court, therefore, concludes that VA did not satisfy its duty to assist Mr. Moore in obtaining records relevant to his claim, and a remand is necessary for the Board to do so. Mr. Moore also argues that VA failed in its duty to assist him in obtaining a medical examination to determine whether his MS should be service connected. The Secretarymust provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing . . . certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service . . . but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet.App. 79, 81 (2006). As to the first factor, there is no dispute that Mr. Moore currently suffers from MS. As to the second factor, the Court is remanding the claim for VA to obtain relevant records regarding whether evidence exists that his symptoms manifested during the seven years following his discharge. As to the third factor, the Court has explained that this presents a low threshold. Id. at 83. Although the Board found no indication that Mr. Moore's current MS may be associated with his service, the Board failed to consider whether the fact that Mr. Moore's vision deteriorated during service may have been an early symptom of his MS. The diagnostic code (DC) for MS directs VA to consider impairment of vision in rating MS. 38 C.F.R. § 4.124a (2012). Mr. Moore's separation examination noted myopia, while his induction examination reflected perfect vision. R. at 633, 645. The Board stated in its decision that "[h]is visual deficit was attributed to an objectively demonstrated refractive error of the eye." R. at 10. There is no medical report in the record that The Board identified inconsistencies with Mr. Moore's reports of dates of employment with the Department of Defense. In one document he stated he was terminated from employment as a plumber at Fort Stewart. R. at 273. In another document he stated he was employed at Hunter Army Airfield as an engineer and draftsman on a temporary basis for seven months. R. at 589-90. These two periods of employment appear to be unrelated. Additionally, the Board cited to no inconsistency with Mr. Moore's reports of employment with the City of Savannah, leaving no reason those records could not be requested. 1 3 contains this conclusion, however. This statement, therefore, is a medical opinion that the Board is prohibited from making. See Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991). Because the Court is remanding the claim for further development, the Board must re- evaluate,basedonanyinformationobtainedonremand,whetheramedicalexamination is necessary. Onremand,theBoardmaynot substituteitsownmedicalopinion forindependent medical evidence. Id. The Board also denied service connection for Mr. Moore's psychiatric disorder as caused or aggravated by his MS. R. at 16. Because the Court is remanding the claim for MS, the claim for psychiatric disorder secondary to MS will also be remanded. III. CONCLUSION On consideration of the foregoing, the April 25, 2011, Board decision is SET ASIDE and REMANDED to the Board for further readjudication consistent with this decision. On remand, Mr. Moore will be free to submit additional evidence and argument in support of his claims, and the Board is required to consider any such evidence and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). A final decision by the Board following the remand herein ordered will constitute a new decision that, if adverse, maybe appealed to this Court on the filing of a new Notice of Appeal with the Court not later than 120 days after the date on which notice of the Board's new final decision is mailed to Mr. Moore. See Marsh v. West, 11 Vet.App. 468, 472 (1998). DATED: August 31, 2012 Copies to: Robert V. Chisholm, Esq. VA General Counsel (027) 4