Wednesday, October 3, 2012

Single Judge Application, Horn v. Shinseki, 25 Vet.App. 231, 236 (2012); Presumption of Soundness

Excerpt from decision below: "However, the 2010 Board addressed the presumption of soundness and noted that the 1977 Board found that RP "was not shown to be present until subsequent to his period of service," such that the presumption of soundness is not for application. Record (R.) at 17; see R. at 18 ("As to the allegations that the presumption of soundness was not rebutted, the [1977] Board specifically denied service connection as not being incurred in service . . . ."); see also Horn v. Shinseki, 25 Vet.App. 231, 236 (2012) ("In order to invoke the presumption of soundness, a claimant must show that he or she suffered from a disease or injury while in service."). ============================ ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS No. 10-4319 ROY A. PICKETT, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before KASOLD, Chief Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. KASOLD, Chief Judge: Veteran Roy A. Pickett appeals through counsel a November 19, 2010, decision of the Board of Veterans' Appeals (Board) that found no clear and unmistakable error (CUE) in a 1977 Board decision denying benefits for retinitis pigmentosa (RP). Mr. Pickett argues that the 2010 Board should have found CUE in the 1977 Board's (1) failure to address the presumption of soundness or aggravation, (2) interpretation of the evidence, and (3) failure to address presumptive service connection. The Secretary disputes these arguments. On April 19, 2012, the Court issued a memorandum decision affirming the Board decision. On May 8, Mr. Pickett filed a motion for reconsideration or, in the alternative, panel review, and thereaftertheSecretaryfiledanopposition to Mr.Pickett'smotion. Single- judgedispositionremains appropriate. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons stated below, the motion for reconsideration will be granted, the April 19, 2012, memorandum decision will be withdrawn and this decision issued in its stead, and the November 19, 2010, Board decision on appeal will be affirmed. The 2010 Board found, inter alia, that (1) the 1977 Board decision did not contain any error constituting CUE, such that no correction of any error would have resulted in a manifestly different outcome for Mr. Pickett's claim, and (2) Mr. Pickett's assertions of CUE amounted to a mere disagreement with how the facts were weighed, which the Board stated could not constitute CUE. As further discussed below, Mr. Pickett fails to demonstrate that these findings are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." See Joyce v. Nicholson, 19 Vet.App. 36, 42-43 (2005) (Board decisions on CUE motions are reviewed under the "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" standard). First, Mr. Pickett argues that the 2010 Board should have found CUE in the 1977 Board's failure to address the presumption of soundness (38 U.S.C. § 1111) or aggravation (38 U.S.C. § 1153). However, the 2010 Board addressed the presumption of soundness and noted that the 1977 Board found that RP "was not shown to be present until subsequent to his period of service," such that the presumption of soundness is not for application. Record (R.) at 17; see R. at 18 ("As to the allegations that the presumption of soundness was not rebutted, the [1977] Board specificallydenied service connection as not being incurred in service . . . ."); see also HornNext Document v. Shinseki, 25 Vet.App. 231, 236 (2012) ("In order to invoke the presumption of soundness, a claimant must show that he or she suffered from a disease or injury while in service."). Moreover, although the 2010 Board did not explicitly address the presumption of aggravation, it found that RP was not noted upon entry to service, such that section 1153 is inapplicable. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004) (noting that section 1153 applies "if a preexisting disorder is noted upon entry into service"). Although Mr. Pickett notes in support of his first argument that a 1975 Statement of the Case (SOC) and 1976 Supplemental Statement of the Case (SSOC) found that RP preexisted service and was not aggravated in service beyond its normal progression, he fails to identify where in the record below he asserted that the 1977 Board decision contained CUE because it did not hold the same view of the evidence as the underlying SOC and SSOC. See Andre v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2002) (noting that each specific theory of CUE must be the subject of a Board decision before this Court can exercise jurisdiction over it); Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (holding that appellant bears burden of demonstrating error on appeal). Even if he had raised that assertion below, it nevertheless is well established that statements in decisions underlying a Board decision are subsumed by that Board decision, and only the findings of that Board decision are subject to revision based on CUE. See Brown v. West, 203 F.3d 1378, 1381 ( Fed. Cir. 2000) (noting 2 that, where a VA decision is subsumed by a Board decision, a claimant must demonstrate CUE in the Board decision). Also in support of his first argument, Mr. Pickett identifies a notation of nightblindness upon his entry to service and asserts that night blindness is a symptom of RP, and thus argues that the presumption of aggravation should have been applied. However, he fails to demonstrate that he raised this alleged relationship between night blindness and RP to the 2010 Board. See Andre and Hilkert, both supra. Moreover, although he notes in his motion for reconsideration that the 1972 Merck Manual characterizes night blindness as a symptom of RP, this does not establish that RP was present when he entered service or during service and, at best, suggests that the claim may not have been fully developed, which would not demonstrate CUE. See Caffrey v. Brown, 6 Vet.App. 377, 387 (1994) (noting that the Secretary's failure to fulfill the duty to assist cannot constitute CUE). Second, Mr. Pickett argues that the 2010 Board should have found CUE in the 1977 Board's interpretation of the evidence. Specifically, he contends that the evidence before the 1977 Board compelled a conclusion manifestly different from the 1977 Board's conclusion that RP was not incurred or aggravated in service. However, as the 2010 Board noted, there is sufficient evidence supporting the 1977 Board's conclusion, to wit: (1) Mr. Pickett's service medical records did not reflect a diagnosis or notation of RP, (2) his separation eye evaluation was normal, (3) he was first diagnosed with RP nine months after service, and (4) the March 1977 medical opinion found no relationship between RP and service. Although Mr. Pickett contends that the March 1977 medical opinion should be read as implicitly finding that RP manifested in service, a fair reading of the opinion reflects that it did not address the issue of in-service manifestation,1 such that Mr. Pickett's view is not the onlypermissible interpretation of the March 1977 medical opinion. See Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) ("'Where there are two permissible views of the evidence, the factfinder's choice between The opinion states: "Did the veteran have a separate acquired macular pathology aside from his [RP] in 1970? . . . No. The description of the macular findings are entirely typical of [RP]." R. at 1665. Considering that Mr. Pickett left service in March 1970 with a normal separation eye evaluation and was first diagnosed with RP in December 1970, it appears that the examiner is stating that Mr. Pickett exhibited findings typical of RP as of the examination in December 1970. The opinion then continues: "[RP] is a hereditary disease . . . . [The data does not suggest that] service contributed in any way to Mr. Pickett's unfortunate deterioration of vision. His eyes would be in the same condition whether he were in the Navy during this time or not." R. at 1665. This sentence also does not answer the question of when Mr. Pickett's RP symptoms first manifested. 1 3 them cannot be clearly erroneous.'" (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573- 74 (1985))); see also Joyce, 19 Vet.App. at 48 (demonstrating CUE requires showing that the original decision is counter to the "only[ ] permissible view of the evidence"). Further, even reading the March 1977 medical opinion as implicitlyfinding that RP was present in service, the 2010 Board nevertheless noted that the 1977 Board relied on a composite of bases for finding no in-service manifestation, see supra, such that Mr. Pickett does not demonstrate that the evidence compelled a manifestlydifferentoutcome. See Sondel v. West,13Vet.App.213,221(1999)( demonstrating CUE requires showing that the correction of an error "would manifestly have changed the outcome of the case").2 To the extent Mr. Pickett argues that the medical opinions are the most probative on the question of in-service manifestation, there is no requirement that the 1977 Board give greater weight to postservice medical opinions than the in-service medical records noting no RP on entry, during, or on exit from service. See Washington v. Nicholson, 19 Vet.App. 362, 367- 68 (2005) (Board has the dutyto determine the credibilityand probative weight of the evidence); cf. Buczynski v. Shinseki, 24 Vet.App. 221, 224 (2011) (Board may not rely on the absence of actual evidence, but may rely on the existence of substantive negative evidence). Also in furtherance of his view that the March 1977 medical opinion implicitly found RP present in service, Mr. Pickett contends that the 2010 Board mischaracterized an August 1974 medical opinion and the March 1977 medical opinion as conflicting. However, a fair reading of the 2010 Board opinion reflects that its characterization of these opinions as " conflicting" referred to the issue of whether RP was "related" to service, and the record reflects that the two opinions certainly differ on the question of the relationship between RP and service. R. at 17. Mr. Pickett also contends that the 2010 Board should have found CUE in the 1977 Board's interpretation oftheevidencebecausethe1977Boardcharacterized anAugust 1974medicalopinion stating that RP "was present . . . in service and probably progressed" (R. at 1734), as an opinion that RP "was probably present . . . in service" (R. at 1661). However, he fails to identify where he raised this specific assertion of CUE to the Board. See Andre and Hilkert, both supra. Moreover, even if he had raised it, Mr. Pickett fails to demonstrate that the misplacement of an adverb ("probably") in Contrary to Mr. Pickett's allegation in his motion for reconsideration, the Court is not acting as a factfinder by noting these alternative bases of Board reliance. 2 4 the summary of evidence is the type of error constituting CUE, see Sondel and Hilkert, both supra; rather,his mischaracterization argumentconstitutesameredisagreementwiththeBoard's evaluation and weighing of the evidence, which generallycannot constitute CUE. Compare Russell v. Principi, 3 Vet.App. 310, 313 (1992) (en banc) (claimant "must assert more than a disagreement as to how the facts were weighed or evaluated"), with Amberman v. Shinseki, 570 F.3d 1377, 1382 (Fed. Cir. 2009) (noting that "CUE maybe found based upon an error of fact," e.g., " identifying an error in how [the previous decisionmaker] initially weighed evidence," if the other CUE requirements are satisfied); see also Joyce, 19 Vet.App. at 48 (finding of fact is clearly and unmistakably erroneous when counter to the "only [ ] permissible view of the evidence"). Overall, Mr. Pickett fails to demonstrate that the 2010 Board's findings regarding the 1977 Board's interpretation of the evidence were clearly erroneous, or that the 2010 Board's conclusions on this matter were arbitrary, capricious, an abuse of discretion of otherwise not in accordance with law. See Hilkert, supra; cf. Fugo v. Brown, 6 Vet.App. 40, 44 (1993) ("[S] imply to claim CUE on the basis that previous adjudications had improperly . . . evaluated the evidence can never rise to the stringent definition of CUE."). Third, Mr. Pickett argues that the 2010 Board should have found CUE in the 1977 Board's failure to address presumptive service connection. However, he fails to identify where in the record he asserted that the 1977 Board committed CUE by not addressing presumptive service connection. Accordingly, he fails to demonstrate that the 2010 Board erred by not addressing this assertion of CUE. See Andre and Hilkert, both supra. Overall, Mr. Pickett fails to demonstrate that the 2010 Board decision finding no CUE in the April 1977 Board decision is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, or that the 2010 Board's statement of reasons or bases in support of its decision is inadequate. See Joyce and Hilkert, both supra; see also Allday v. Brown, 7 Vet.App. 517, 527 (1995) (Board's 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"). Accordingly, the November 19, 2010, Board decision on appeal is AFFIRMED. DATED: September 24, 2012 5 Copies to: Theodore C. Jarvi, Esq. VA General Counsel (027) 6

Single Judge Application, Kahana v. Shinseki, 24 Vet.App.428, 434-35 (2011)Board's Inferences from Medical Evidence Can't Exceed Layperson's

Excerpt from decision below: "Accordingly, the Court will vacate the Board's determination that the appellant was not exposed to Agent Orange and, therefore, not entitled to service connection for diabetes or hypertension secondary to diabetes. On remand, the Board must re-weigh the evidence of record in light of the discussion above, including whether an expert is necessary to opine on the likelihood of the appellant developing his diagnosed conditions independent of Agent Orange exposure. See Kahana v. Shinseki, 24 Vet.App.428, 434-35 (2011) (holding that the Board cannot make inferences from medical evidence that are beyond the competence of a layperson); cf. Stefl, 21 Vet.App. at 124 (noting that "whether the claimed condition has manifested itself in an unusual manner" is an issue that maybe addressed bya medical opinion in an appropriate case)." ============================ ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 11-1129 ROBERT L. TRUSTY, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before LANCE, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. LANCE,Judge: Theappellant,RobertL.Trusty,throughcounsel,appeals aJanuary4, 2011, Board of Veterans' Appeals (Board) decision that denied his claims for entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure, and entitlement to service connection for peripheral neuropathy and hypertension, to include as secondary to diabetes. Record (R.) at 3-18. Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). This appeal is timely, and the Court has jurisdiction over the case pursuant to 38 U.S.C. §§ 7252(a) and 7266. For the reasons that follow, the Court will vacate the Board's January4, 2011, decision as to the appellant's claims for diabetes and hypertension and remandthose issues for further development. The decision will otherwise be affirmed. I. FACTS The appellant served in the U.S. Army from March 20, 1968, to November 13, 1970, including service in South Korea from April 9, 1969, to May 8, 1970. R. at 536, 620. In June 2005, 35 years after service, he filed a claim for entitlement to service connection for diabetes mellitus due to herbicide exposure, as well as claims for peripheral neuropathy and hypertension. R. at 429-38. Also in June 2005, the appellant submitted a statement to VA, detailing his claimed exposure to herbicides, indicating that he had been assigned to the "7th Supply and Transport unit, Company A, Camp Casey, Korea" as a supply clerk. R. at 457. He stated that he was involved with handling, moving, bagging, storing, and managing, direct exchange of militaryclothing saturated at times of herbicide liquid spray, diesel fuel, solvents, that damaged clothing, boots, under garments, for direct exchange for new . . . . Our unit also had partial full and empty barrels of solvents, marked with band markings of discolored red or yellowish orange of at the time of unknown substance which was stored in the sa[l]vage yard of our supply office area. At occasions I was order to empty and dump unknown chemical along fence row of salvage yard to kill weeds. Which being exposed to saturated clothing and unknown contents of barrels encountered while working at the supply sa[l]vage yard that caused my diabetes, tingling of my fingers and hands . . . . R. at 457. On June 20, 2005, the appellant was seen by a VA physician assistant (PA) for an Agent Orange exam. R. at 424-28. The PA recorded the appellant's history of exposure to Agent Orange and other herbicides and noted "unsure if was directly sprayed or ate food/water sprayed w AO." R. at 425. The PA observed paresthesia of the second through fifth fingers of both hands "x several yrs" and noted that the appellant had performed repetitive work. R. at 426. The PA assessed the appellant with Agent Orange exposure, as well as cystic acne, diabetes, hypertension, and suspected carpal tunnel syndrome. R. at 427. An August 2005 VA psychiatric consultation note states that the appellant reported having been exposed to Agent Orange while in service. R. at 424. In August 2007, following additionaldevelopment, theappellanttestifiedataBoard hearing. R. at 219-29. In his testimony, the appellant stated that he had been told that some of the clothing he processed in service had been "soaked with weed killer" and that he did not use any protective clothing or gloves when handling those items. R. at 223. He also reiterated his statements that he had been ordered to spray an "unidentified liquid substance" to control weeds, which his sergeant stated was an herbicide. R. at 223-24. The Board issued a decision in January 2008 that, in part, denied entitlement to service connection for diabetes, hypertension, and peripheral neuropathy. The appellant appealed that decision to this Court, which issued a decision in January 2010 vacating the Board's January 2008 decision. R. at 32-34. The Court held that the 2008 decision was "woefully deficient" with respect to the Board's finding that the appellant had not been exposed to Agent Orange while in service, as the Board improperly limited its analysis to whether the appellant 2 had served in a unit entitled to a presumption of exposure to Agent Orange without discussing whether his lay testimony of exposure to Agent Orange or another herbicide was credible. R. at 32- 33. The Court also rejected the Board's assertion that medical evidence was required to demonstrate actual exposure to Agent Orange. R. at 33. On January 4, 2011, the Board issued the decision here on appeal. R. at 3- 18. In it, the Board again denied entitlement to diabetes, peripheral neuropathy, and hypertension. Id. The Board also acknowledged that the appellant had submitted "a December 2008 VA treatment record reflecting a diagnosis of chloracne, 'secondary to Agent Orange exposure,'" and referred the issue of service connection for chloracne to the regional office. R. at 5 ( quoting R. at 179). With respect to the issue of whether the appellant had been exposed to Agent Orange, the Board found that As the Veteran did not serve in . . . one of the specified units in South Korea that have been determined to have been exposed to herbicides, to include Agent Orange, within the relevant time frame, he is not presumed to have been exposed to herbicides . . . during such service; moreover, actual exposure to such herbicides, within the meaningof the governingauthority, has not persuasivelybeenestablished. R. at 5. The Board discussed the appellant's lay testimony, but it found that the Veteran lacks competence to determine that . . . he was actually exposed to Agent Orange, as such a matter is not within his personal knowledge. By contrast, the [Department of Defense (DOD)] is competent to determine whether a member of the Veteran's unit, serving at Camp Casey from April 1969 to May 1970 and performing those duties typical of a supply clerk serving in the Veteran's unit, was potentially exposed to Agent Orange. R. at 12. The Board reasoned that "the fact that the DOD specified those units whose members' duties [] would have potentially exposed them to Agent Orange in Korea . . . and did not include any supply battalions, including the Veteran's unit, tends to weigh against a finding of actual herbicide exposure." R. at 13. The Board found "no other objective, persuasive evidence that the Veteran was exposed to Agent Orange in service, as alleged," and accordingly denied his claim. R. at 13. II. ANALYSIS A. Exposure to Agent Orange The appellant argues that the Board erred when it determined that he had not been exposed to Agent Orange while in service. Appellant's Brief (Br.) at 12-26. In particular, the appellant 3 asserts that the Board improperly discounted his lay testimony solely on the basis that his unit was not part of the list of units presumed to have been exposed to Agent Orange. R. at 13-14. He also contends that the Board failed to consider medical evidence reflecting diagnoses of skin conditions due to Agent Orange as evidence of exposure to Agent Orange. Appellant's Br. at 19-21. In response, the Secretary argues that, as the appellant did not serve in the Korean Demilitarized Zone (DMZ) and "there is no competent evidence of record which establishes herbicide exposure," the Board did not err in its determination that the appellant is not entitled to service connection for his diabetes as secondary to Agent Orange exposure. Secretary's Br. at 3-4. In support of his argument, the Secretary cites to VA's Adjudication Procedures Manual (M21- 1MR), part IV, subpart ii, chapter 2, section C.10.p, which includes a list of units identified by the DOD as having served in or near the DMZ between April 1, 1968, and August 31, 1971, that are presumed to have been exposed to Agent Orange. Secretary's Br. at 6-8. The Secretarycontends that the Board did not err, as "the DOD determination that [the appellant's] unit was not presumptively exposed to Agent Orange constitutes positive evidence that his unit was not exposed to Agent Orange." Secretary's Br. at 9. After reviewing the record, the Court holds that the Board failed to provide an adequate statement of reasons or bases in support of its determination that the appellant was not exposed to Agent Orange when in service. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 56–57 (1990). The record contains numerous pieces of evidence supporting the appellant's lay testimony that he handled herbicide-laced clothing and sprayed herbicides at Camp Casey. For example, neither party disputes the fact that Camp Casey was the installation closest to the Korean DMZ during the presumptive period and that several of the units entitled to presumptive exposure belonged to the same command structure, the 7th Infantry Division, as the appellant's unit.1 The Court additionally notes that the 7th Infantry Division as a whole was also based out of Camp Casey, which could corroborate the appellant's lay testimony. See, e.g., Chronological History, 7TH INFANTRY DIVISION, http://www.carson.army.mil/UNITS/F7ID/F7ID_History.htm (last visited August 23, 2012); see also Brannon v. Derwinski, 1 Vet.App. 314, 316 (1991) (courts may take judicial notice of facts of universal notoriety); Smith v. Derwinski, 1 Vet.App. 235, 238 (1991) ("Courts may take judicial notice of facts not subject to reasonable dispute." (citing FED. R. EVID. 201(b))). 1 4 Further,thereis medicalevidencein therecordlinkingtheappellant's skin condition to Agent Orange exposure. See, e.g., R. at 179 (December 2, 2008, dermatologynote noting that the appellant "has been treated for Agent Orange-related chloracne"), 293 (noting that the appellant suffered from cystic acne "which he has had since serving in Korea" and assessing " CHLORACNE as a secondary effectof AO exposure"). Although the appellant'sclaimforserviceconnection forhis skin condition is not on appeal, the Court notes that chloracne is among the conditions entitled to presumptive service connection for veterans exposed to Agent Orange. See 38 C.F.R. § 3.309(e)(2012). The fact that the appellant has multiple conditions entitled to presumptive service connection on the basis of Agent Orange exposure mayalso support the appellant's claimofexposure. However, the likelihood that an individual would develop both of these conditions without having been exposed to Agent Orange or a similar dioxin-containing chemical is likely an issue beyond the competence of the Board. In contrast, the only evidence supporting the Board's determination is the DOD list of units presumed to have been exposed to Agent Orange. Although the Court agrees with the Secretarythat the DOD is generally competent to determine which units were exposed to Agent Orange, there is nothing that indicates that the list is meant to be exhaustive. See, e.g., M21-1MR, pt. IV, subpt. ii, ch. 3, sec. C.10.o (directing additional development for claims of Agent Orange exposure for veterans who served outside the presumptive times and/or units); see also Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994) (noting that a claimant is not barred from seeking direct service connection merely because of the potential availability of presumptive service connection for the same condition); Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007) (nexus opinion was inadequate when physician mistakenly assumed veteran's condition could not be service connected because it was not on list of conditions for which presumptive service connection was available). In other words, given that the Secretary's own procedures acknowledge that a veteran could have been exposed to Agent Orange in units other than those entitled to a presumption of exposure, the Board's negative use of that presumptive list was in error. This is particularly troublesome in light of the Court's prior remand, which expressly directed the Board to determine the credibility of the appellant's laytestimonynotwithstanding that his unit was not entitled to presumptiveexposure. See R. at 32-34. 5 Accordingly, the Court will vacate the Board's determination that the appellant was not exposed to Agent Orange and, therefore, not entitled to service connection for diabetes or hypertension secondary to diabetes. On remand, the Board must re-weigh the evidence of record in light of the discussion above, including whether an expert is necessary to opine on the likelihood of the appellant developing his diagnosed conditions independent of Agent Orange exposure. See Previous DocumentKahanaNext Document v. Shinseki, 24 Vet.App.428, 434-35 (2011) (holding thattheBoard cannot make inferences from medical evidence that are beyond the competence of a layperson); cf. Stefl, 21 Vet.App. at 124 (noting that "whether the claimed condition has manifested itself in an unusual manner" is an issue that maybe addressed bya medical opinion in an appropriate case). Should the Board determine that the appellant was exposed to Agent Orange or that service connection for diabetes is otherwise warranted, it must also determine whether he is entitled to service connection for hypertension secondary to his diabetes. The appellant is free to submit additional evidence and argument, including the arguments raised in his briefs to this Court, in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order), and the Board must consider any such evidence or argument submitted. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). In particular, the appellant may wish to submit "buddystatements" from other service members assigned to his unit or other evidence corroborating his claim of exposure to Agent Orange. The Board shall proceed expeditiously, in accordance with 38 U.S.C. §§ 5109B, 7112 (requiring Secretary to provide for " expeditious treatment" of claims remanded by Board or Court). B. Diagnosis of Peripheral Neuropathy The appellant also challenges the Board's finding that he does not currently suffer from peripheral neuropathy. Appellant's Br. at 26-28. Specifically, he argues that the Board erred that he was not entitled to a medical examination, as his report of tingling in his fingers was sufficient to trigger VA's duty to assist. Id. The Court is not persuaded by the appellant's argument. VA must provide a medical opinion or examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the 6 disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medicalevidence on file for the Secretaryto make a decision on the claim. McLendon v. Nicholson, 20 Vet.App. 79, 81 (2006); see 38 U.S.C. § 5103(A)( d)(2); 38 C.F.R. § 3.159(c)(4)(i) (2012). Where, however, the evidence is sufficient for the Board to decide a claim, it is not required to provide a medical examination. McLendon, 20 Vet.App. at 84. As the Board explained in its decision, the record does not contain a diagnosis of peripheral neuropathy. R. at 16. Indeed, the only medical evidence of record addressing the appellant's reports of paresthesia appears to relate those symptoms to carpal tunnel syndrome. See R. at 426-27; see also R. at 350 (noting "no known diabetic complications"). Further, although not directlyaddressed bythe Board, but see R. at 6 ("There is no competent evidence or opinion indicating that the Veteran currently has a diagnosis of peripheral neuropathy."), the appellant presents no evidence that, as a layperson, he is competent to diagnose himself with peripheral neuropathyor to relate that condition to his diabetes. Cf. McLendon, supra. In short, the appellant has failed to meet his burden of demonstrating error in this regard, and the Court will affirm the Board's decision on this matter. See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (holding that the appellant bears the burden of demonstrating error on appeal), aff'd per curiam, 232 F.3d 908 (2000) ( table). Should the appellant obtain a diagnosis of peripheral neuropathy, he is free to submit a request to reopen his claim on the basis of new and material evidence. III. CONCLUSION After consideration of the parties' briefs and a review of the record, the Board's January 4, 2011, decision is VACATED as to the appellant's claims for entitlement to service connection for diabetes mellitus and hypertension, and those matters are REMANDED for readjudication. The Board decision is otherwise AFFIRMED. DATED: September 13, 2012 7 Copies to: Virginia A. Girard-Brady, Esq. VA General Counsel (027) 8

Single Judge Application, Pain Causes Limitation of Motion; 38 C.F.R. 4.40; Mitchell v. Shinseki, 25 Vet.App. 32, 38 (2011)

Excerpts from decision below: "Pain on motion must be taken into account when rating a disability based on limitation of motion, even where there is compensable loss as a result of limitation of motion. DeLuca v. Brown, 8 Vet.App. 202, 205-06 (1995). However, to receive disability compensation for painful motion, that pain must result in functional loss – i.e., limitation in the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination [,] or endurance." 38 C.F.R. § 4.40 (2012); see Mitchell v. Shinseki, 25 Vet.App. 32, 38 (2011). In other words, "although pain may cause functional loss, pain itself does not constitute functional loss" that is compensable for VA benefit purposes. Mitchell, 25 Vet.App. at 37. ============== "However, the Board's accounting of the evidence is imprecise. That is, although it is true that none of the examiners found flexion to be less than 40 degrees, both the December 2007 and November 2009 examiners indicated that the appellant experienced pain throughout the range of motion. R. at 53, 267-68. Neither examiner made an initial finding as to the degree of range-of-motion loss due to pain on use as required by DeLuca. Thus, although both examiners noted no additional limitation after repetitive use, it is unclear from the reports whether and at what point during the range of motion the appellant experienced any limitation of motion that was specifically attributable to pain. 9 When faced with a similarly deficient examination report in Mitchell, supra, the Court vacated the Board's decision and remanded the matter for a further medical examination. 25 Vet.App. at 44 (holding that because the examiner failed "to address any range-of-motion loss specifically due to pain and any functional loss during flare-ups, the examination lacks sufficient detail necessary for a disability rating, and should have been returned for the required detail to be provided, or the Board should have explained why such action was not necessary"); see also Bowling, supra. The same result is warranted here. The record demonstrates that in a December 2006 examination the appellant complained that he had difficulty standing, lifting, and bending, and that he experienced flareups that lasted between four and five days, and in a December 2007 examination he complained that he suffered flareups lasting up to one day. R. at 268, 409. Additionally, the appellant described daily constant pain in November 2009. R. at 52. Although the December 2006 examiner differentiated between the appellant's range of motion with and without pain, indicating that flexion was limited 15 degrees as a result of pain, the December 2007 and November 2009 examiners did not provide this level of detail, i.e., they did not indicate at what point during the appellant's range of motion he experienced limitation of motion or functional loss attributable to pain on motion. Because the examiners did not adequately address additional range-of-motion loss as a result of pain or functional loss during flareups, the Board should have returned the reports as inadequate or explained why such action was not necessary. See Mitchell and Bowling, both supra." ================== ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 11-2084 JOHN H. TURNER, 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 pro se appellant, John H. Turner, appeals a March 8, 2011, Board of Veterans' Appeals (Board) decision that denied entitlement to a disability rating in excess of 20% for residuals of low back strain with degenerative changes and degenerative disc disease of the lumbar spine. Record of Proceedings (R.) at 3-16. This appeal is timely, and the Court has jurisdiction to review the Board's decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Both parties filed briefs. Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, the Court will modify that part of the Board's decision that referred, rather than remanded, the issue of entitlement to a total disability rating based on individual unemployability (TDIU). Additionally, because the Board relied on an inadequate medical examination to deny a disability rating in excess of 20%, the Court will vacate the Board's decision and remand the matter for further proceedings consistent with this decision. I. BACKGROUND The appellant served honorably on active duty in the U.S. Air Force from May 1971 to August 1991. R. at 4, 1088. In May 1992, the Columbia, South Carolina, VA regional office (RO) determined that the appellant's low back strain with subjective complaints of pain was related to service, but assigned a noncompensable rating, effective September 1, 1991. R. at 530-34. Over the years, the RO increased to 20% the appellant's disability rating. See R. at 518-27 (March 1993 Statement of the Case granting a 10% disability rating, effective September 1, 1991), 423-31 (February 2002 rating decision granting a 20% disability rating, effective January 17, 2002). In October 2006, the appellant asserted that his back condition had gotten worse and requested that VA re-evaluate his 20% disability rating and schedule him for a compensation and pension examination. R. at 421-22. In a December 2006 letter, the RO informed the appellant of the information and evidence necessary to support his claim for increased compensation. R. at 414- 20. Under a section entitled, "What do we still need from you?" the letter stated: [Y]ou may submit evidence showing that your service-connected residuals of low back strain, with degenerative changes and degenerative disc disease of the lumbar spine has increased in severity. This evidence may be a statement from your doctor containing the physical and clinical findings, the results of any laboratory tests or x- rays, and that dates of examinations and tests. R. at 414. The letter further informed the appellant that VA would make " reasonable efforts" to obtain "[r]elevant records not held byanyFederal agency," and that "[t]his mayinclude records from State or localgovernments, privatedoctorsandhospitals, or current or formeremployers." R. at 417. The letter also advised the appellant that if the evidence was not in his possession, he must provide VA with sufficient information for VA to request it from the person or agencypossessing it, and that if VA was unable to obtain the information, he would be notified; however, the letter ultimately explained that it was the appellant's responsibility to make sure VA received all requested records that were not in the possession of a Federal department or agency. Id. Also in December 2006, the appellant underwent a VA spine examination. R. at 408-10. The examiner noted that the appellant complained of "lower lumbar midline pain[,] which sometimes radiate[d] into the left groin and anterior thigh." R. at 408. The appellant denied numbness and "any acute incapacitating episodes in the last 12 months in which a physician prescribed bedrest." Id. The appellant indicated that his "low back affects his usual occupation [as an auto mechanic] in that it limits his lifting and standing" and that "[p] erhaps 4 - 5 days per month he will have some increase in his low back pain which might be characterized as a flare-up [and d]uring that time, he wears a lumbar support as an assistive device." R. at 409. The examiner noted 2 that lumbosacral spine and sacroiliac x-rays yielded normal results, diagnosed "[l]umbar strain" and "[d]egenerative joint disease of the left hip," and reported the following physical findings: The lumbar spine flexes to 75 degrees without pain and to 90 degrees with pain. After repetitive use, lumbar flexion is limited to 75 degrees because of pain. Extension is to 30 degrees with end-of-range pain, right lateral flexion to 25 degrees with end-of-range pain, left lateral flexion to 30 degrees with end-of- range pain, and rotation to 45 degrees in both directions with end-of- range pain. After repetitive use, only flexion is further reduced as described above. There is no spasm on palpating the back. He does have some tenderness in the mid to lower lumbar midline. Straight legraisingis negative bilaterally. Neurologically, motor strength and tone and light touch sensation are normal in both lower extremities. The deep tendon reflexes are 2+ in all four extremities. His gait is normal. Id. In January 2007, the appellant submitted a "[Veterans Claims Assistance Act (VCAA)] Notice Response" in which he indicated that he did not have any additional information or evidence to submit "other than what I attached." R. at 391. Attached to the letter was an August 2005 private medical record from Colonial Family Practice, in which the examiner noted the appellant's complaints of ongoing low back pain. R. at 392. Later that month, the RO continued the appellant's 20% disability rating. R. at 381-87. The appellant filed a timely Notice of Disagreement and later perfected an appeal to the Board. R. at 284-85, 290-311, 380. The appellant underwent another spine examination in December 2007. R. at 267-69. Although he denied any incapacitating episodes of back pain within the preceding 12 months, the appellant reported that he stopped working in May 2007 as a result of " health problems" and that he had experienced difficulty bending and lifting when he was working. R. at 268. He related that he suffered activity-related flareups that could last up to one day, requiring him to rest and take medication. Id. The examiner performed a physical examination which revealed, in part, that the appellant "could flex his back to 40 degrees, extend to 10 degrees, laterally flex to 10 degrees and rotate to 5 degrees bilaterally. All motion appeared painful but not additionally limited following repetitive use on this examination." R. at 267-68. The examiner diagnosed "[ d]egenerative disk disease of the lumbar spine with clinical evidence of radiculopathy in the left lower extremity." R. at 268-69. 3 In January 2008, an examiner of the appellant's peripheral nerves noted that the appellant complained of low back pain with radiation into his left leg, but found that his complaint did "not conform to the distribution of any particular peripheral nerve or nerve root." R. at 265. After conducting a physical examination, the examiner's impression was that the appellant "has chronic lowbackpainsecondarytohis age- relateddegenerativeosteoarthritisofthelumbarspine,"but found "no evidence of a radiculopathy or neuropathy present in th[e] examination ." R. at 266. InApril2008,theRO issuedaSupplementalStatementoftheCase(SSOC), whichcontinued the appellant's 20% disability rating, and in June 2008, the RO sent the appellant another letter informing him what the evidence must show to establish entitlement to an increased evaluation. R. at 215-21, 223-28. After receiving additional VA treatment records dated April to May 2008 (R. at 184-85), the RO issued another SSOC in August 2008 denying a higher rating because although the medical records revealed complaints of low back pain, they provided no objective clinical findings to establish that the appellant's condition warranted a higher evaluation ( R. 205-08). In May 2009, the appellant testified at a Board hearing that he had received treatment only from VA for his back. R. at 130. In support of his claim for increased compensation, the appellant stated that his condition worsened "[t]o the point that [he] can[not] maintain a job." R. at 131. He added that it had been over a year since he was able to hold a steady job sufficient to take care of his bills. R. at 133. The Board subsequently issued a decision in July 2009 (R. at 120-27) remanding the appellant's claim for further development, including "an appropriate VA examination to determine the nature, extent, frequency[,] and severity of any orthopedic and neurologic impairment related to the [v]eteran's back disability" (R. at 125). In addition, the Board instructed that the examiner (1) "identify all back pathology found to be present," (2) "state whether the back disability has been productive of incapacitating episodes," (3) "discuss the nature and severity of any right or left-sided radiculopathyor neuropathy of the lower extremities found to be present," and (4) "state whether the left hip arthritis is related to the service-connected disability." R. at 125-26. Later that month, the Appeals Management Center (AMC) sent the appellant a letter informing him of the evidence he could submit to show that his disability increased in severity. R. at 66-80. The letter also requested that he "complete, sign, and return a VA Form 21-4142, 4 Authorization and Consent to Release Information to the Department of Veterans Affairs, for each non-VA provider and medical care facility that treated you for your condition." R. at 67. The appellant underwent a neural disorder examination in October 2009. R. at 51. During the examination, the appellant reported low back pain going to the left hip, pain on the left knee, and some tingling of both feet. Id. Physical examination revealed that he walked with a limp, favoring the left lower extremity, but that the limp was "more in connection with his left hip replacement." Id. Deep tendon reflexes were 2+ in both knees and ankles and he had a normal sensory examination. Id. The examiner's impression was lumbosacral spondylosis with no signs of radiculopathy. Id. The appellant also underwent a third spine examination in November2009. R. at 52-55. The appellant indicated that his hip pain improved significantlyafter his recent total hip replacement, but continued to complain of daily constant low back pain with radiation to the bilateral lower extremities. R. at 52. However, he also indicated that there had not been anyincapacitating episodes over the last 12 months in which a physician prescribed bed rest. Id. Regarding functional impairment, the appellant reported that he was retired "mainly because of his back condition," but denied flareups or interference with activities of daily living. R. at 53. The examiner noted that a physical examination of the appellant's lumbar spine revealed that "he had flexion to 55 degrees, extension to 10 degrees, lateral flexion to 20 degrees bilaterally[,] and rotation to 30 degrees bilaterally, all of which were with pain throughout and his range of motion was not additionally limited in the form of repetitive use on this examination." "[d]egenerative disc disease of the lumbar spine, severe." Id. In March 2010, the RO issued an SSOC, which continued the appellant's 20% disability rating. R. at 42-50. The Board issued the decision here on appeal on March 8, 2011. R. at 3-16. Initially, the Board noted that the appellant reported during his November 2009 examination that he was unable to work mainly because of his back and that he was service- connected for multiple disabilities, including his hip. R. at 4. Noting that the issue of TDIU had not been adjudicated, the Board "referred it to the RO for appropriate action." Id. Regarding the appellant's entitlement to a disability rating in excess of 20% for residuals of low back strain with degenerative changes and Id. The examiner diagnosed 5 degenerative disc disease of the lumbar spine, the Board found that the criteria for a higher disability rating had not been met. This appeal followed. II. ANALYSIS The pro se appellant (1) asserts that the Board failed to obtain his " civilian doctor records," and (2) seeks a 100% disability rating, asserting that his "back pain will not allow [him] to work a normal job." Informal Brief (Br.) at 1-2. The Secretaryresponds that (1) the Board plausibly denied entitlement to a disability rating in excess of 20%, (2) VA satisfied its duty to assist, and (3) the Court lacks jurisdiction over the issue of TDIU. Secretary's Br. at 15-24. A. Law The assignment of a disability rating is a factual finding that the Court reviews under the "clearly erroneous" standard of review. Johnston v. Brown, 10 Vet.App. 80, 84 (1997). A finding of material fact is clearlyerroneous 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 Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990). In rendering a decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision as well as to facilitate review in this Court. 38 U.S.C. § 7104( d)(1); see Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert, 1 Vet.App. at 56-57. 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. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Under the General Rating Formula for Diseases and Injuries of the Spine, a 20% disability rating is warranted when the following limitations are found: Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to 6 result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5242 (2012). A disabilityrating of 30% is warranted when "[f]orward flexion of the cervical spine [is limited to] 15 degrees or less; or, favorable ankylosis of the entire cervical spine [is present]." Id. A 40% evaluation is warranted where forward flexion of the thoracolumbar spine is 30 degrees or less; or there is favorable ankylosis of the entire thoracolumbar spine. Id. Pain on motion must be taken into account when rating a disability based on limitation of motion, even where there is compensable loss as a result of limitation of motion. DeLuca v. Brown, 8 Vet.App. 202, 205-06 (1995). However, to receive disability compensation for painful motion, that pain must result in functional loss – i.e., limitation in the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination [,] or endurance." 38 C.F.R. § 4.40 (2012); see Previous DocumentMitchellNext Hit v. Shinseki, 25 Vet.App. 32, 38 ( 2011). In other words, "although pain may cause functional loss, pain itself does not constitute functional loss" that is compensable for VA benefit purposes. Previous HitMitchellNext Hit, 25 Vet.App. at 37. B. VA's Duty To Assist 1. 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 to obtain them. 38 U.S.C. § 5103A(b)(1); see also Loving v. Nicholson, 19 Vet.App. 96, 102 (2005). 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). In the decision here on appeal, the Board noted that the appellant's service treatment records and VA medical records had been associated with the claims file, and that VA provided numerous medical examinations, which provided the Board sufficient information to make an informed decision. R. at 16. Accordingly, the Board determined no further assistance was required to fulfill VA's duty to assist. Id. 7 The appellant asserts that VA failed to obtain his "civilian doctor records." Informal Br. at 1. However, he fails to provide any identifying information or otherwise assert that he authorized the Secretary to obtain the records on his behalf. As a result, the Court is unable to review or assess the merits of the appellant's argument. See Coker v. Nicholson, 19 Vet.App. 439, 442 (2006) ("The Court requires that an appellant plead with some particularitythe allegation of error so that the Court is able to review and assess the validity of the appellant's arguments."), rev'd on other grounds sub nom. Coker v. Peake, 310 F. App'x 371 (Fed. Cir. 2008) (per curiam order); see also Locklear v. Nicholson, 20 Vet.App. 410, 416 (2006) (holding that the Court will not entertain underdeveloped arguments); Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) ( holding that the appellant bears the burden of demonstrating error on appeal). Nonetheless, the Court observes that the record demonstratesthat VA repeatedlyinformed the appellantthat he should provideVAwith information regarding treatment for his back condition and that VA would make reasonable efforts to obtain the records if the appellant requested VA to do so. R. at 67, 220, 414, 417. In addition, although the appellant had submitted an August 2005 "new patient visit" form from a private physician, the appellant subsequently testified at the May 2009 Board hearing that he received treatment for his back only from VA. R. at 130, 392. Based on the foregoing, and in the absence of an adequately developed argument, the Court cannot conclude that the Secretary failed to fulfill his duty to assist by failing to obtain records that were adequately identified and which he was authorized to obtain. See Loving, supra. 2. Duty To Provide an Adequate Medical Examination Pursuant to 38 U.S.C. § 5103A(d), the Secretary's duty to assist also includes "providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim." "[O]nce the Secretary undertakes the effort to provide an examination, . . . he must provide an adequate one." Barr v. Nicholson, 21 Vet.App. 303, 311 (2007). An 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 (1994) (quoting Green v. Derwinski, 1 Vet.App. 121, 124 (1991))). Under 38 C.F.R. § 4.40, "[i]t is 8 essential that the examination on which ratings arebased adequatelyportraythe anatomical damage, and the functional loss." The Court has held that in order to adequately portray the functional loss of musculoskeletal disabilities, the examination must not only "express an opinion on whether pain couldsignificantlylimit functionalabilityduringflare-upsorwhenthe[joint] isusedrepeatedlyover a period of time," but should also, if feasible, express any resultant loss in range of motion due to pain and weakness during flareups or with repetitive use in terms of the degree of additional range of motion loss. DeLuca, 8 Vet.App. at 206. If an examination report contains insufficient 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 also Bowling v. Principi, 15 Vet.App. 1, 12 (2001); DeLuca, 8 Vet.App. at 206 (finding examination inadequate where the examiner did not consider "functional loss on use or due to flare-ups"). "Whether a medical opinion is adequate is a finding of fact, which this Court reviews under the 'clearly erroneous' standard." D'Aries v. Peake, 22 Vet.App. 97, 104 (2008). Here, the record demonstrates that the appellant was provided several spine examinations during the pendency of his claim for a higher disability rating. R. at 52- 55, 267-69, 408-10. In its decision, the Board discussed the applicable DCs and summarized the medical evidence of record, noting symptoms such as pain on motion and limitation of flexion and extension. R. at 5-12. The Board found that a disability rating in excess of 20% based upon limitation of motion was not warranted because "flexion has never been shown to be less than 40 degrees, even taking into account pain on motion" and "although the [appellant] report[ed] that he experiences flare-ups, the examiners found that there was no additional limitation of motion on repetitive use, to include due to pain." R. at 12-13. However, the Board's accounting of the evidence is imprecise. That is, although it is true that none of the examiners found flexion to be less than 40 degrees, both the December 2007 and November 2009 examiners indicated that the appellant experienced pain throughout the range of motion. R. at 53, 267-68. Neither examiner made an initial finding as to the degree of range-of-motion loss due to pain on use as required by DeLuca. Thus, although both examiners noted no additional limitation after repetitive use, it is unclear from the reports whether and at what point during the range of motion the appellant experienced anylimitation of motion that was specifically attributable to pain. 9 When faced with a similarly deficient examination report in Previous HitMitchellNext Document, supra, the Court vacated the Board's decision and remanded the matter for a further medical examination. 25 Vet.App. at 44 (holding that because the examiner failed "to address any range-of-motion loss specifically due to pain and any functional loss during flare-ups, the examination lacks sufficient detail necessary for a disability rating, and should have been returned for the required detail to be provided, or the Board should have explained why such action was not necessary"); see also Bowling, supra. The same result is warranted here. The record demonstrates that in a December 2006 examination the appellant complained that he had difficultystanding, lifting, and bending, and that he experienced flareups that lasted between four and five days, and in a December 2007 examination he complained that he suffered flareups lasting up to one day. R. at 268, 409. Additionally, the appellant described dailyconstant pain in November 2009. R. at 52. Although the December 2006 examiner differentiated between the appellant's range of motion with and without pain, indicating that flexion was limited 15 degrees as a result of pain, the December 2007 and November2009 examiners did not provide this level of detail, i.e., theydid not indicate at what point during the appellant's range of motion he experienced limitation of motion or functional loss attributable to pain on motion. Because the examiners did not adequately address additional range- of-motion loss as a result of pain or functional loss during flareups, the Board should have returned thereports asinadequate or explained whysuch action was not necessary. SeeMitchell andBowling, both supra. Inasmuch as the Board relied on medical examinations that were inadequate for rating purposes, the Board's finding that the duty to assist was satisfied is clearlyerroneous. Therefore, the Court will vacate the Board's decision and remand the matter for further proceedings consistent with this decision. Given that the appellant's claim for increased compensation has been pending since 2006, on remand the Board is reminded to consider the applicability of staged ratings. See Hart v. Mansfield, 21 Vet.App. 505, 510 (2007) (holding that staged ratings are appropriate in rating-increase claims "when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings"). 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 10 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. TDIU To the extent that the appellant asserts that his back pain prevented him from working a "normal job" and seeks "an increase of 100%," the Secretaryargues that the Board referred the issue of TDIU to the RO and the Court "presumably" lacks jurisdiction over the matter. Secretary's Br. at 22-24. The Court disagrees. The Court recently held in Young v. Shinseki, that the Court "has jurisdiction over an appeal of a decision of the Board that denies a part of a claim for benefits and decides to refer, rather than remand, for adjudication another part (or condition) or theory in support of that same claim, and our jurisdiction extends not only to the denied part of the claim but also to the referral decision." 25 Vet.App. 201, 202 (2012). With regard to claims for increased compensation, the Court clarified in Rice v. Shinseki, that "a request for TDIU, whether expressly raised by the veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, . . . [including] as part of a claim for increased compensation." 22 Vet.App. 447, 453-54 (2009). Thus, "[o]nce a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability, . . . VA must consider TDIU." Roberson v. Shinseki, 251 F.3d 1378, 1384 (Fed. Cir. 2001). Accordingly, because the Court has jurisdiction over the Board's decision denying a part of the appellant's claim for benefits – a higher schedular disability rating – the Court has jurisdiction to address the propriety of referring, rather than remanding, to the RO another part of the same claim – for TDIU. See Young and Rice, both supra. Here the appellant filed a claim for increased compensation, and as acknowledged by the Board, the issue of TDIU was raised by the record. See R. at 4 (stating that the appellant reported 11 during his November 2009 examination "that he was unable to work mainly due to his back"). Because the issue of TDIU is not a separate claim for benefits when it is raised as part of a veteran's claim for increased compensation, the Court concludes that the Board erred when it referred, rather than remanded, the issue of TDIU to the RO stating that it "still ha[d] not been adjudicated." Id.; see Jarrell v. Nicholson, 20 Vet.App. 326, 332 (2006) (en banc) ("Once the Board has jurisdiction over a claim, . . . it has the authority to address all issues related to that claim, even those not previously decided by the RO." (emphasis added)). Therefore, the Court will modify the Board's decision to reflect remand, rather than referral, of the issue of TDIU. See Young, supra; see also Manlincon v. West, 12 Vet.App. 238, 240-41 (1999) (exercising jurisdiction and vacating Board decision because the Board erred by referring rather than remanding a claim for dependency and indemnity compensation that was in "appellate status"). III. CONCLUSION After consideration of the appellant's and the Secretary's pleadings, and a review of the record, that part of the Board's March 8, 2011, decision that referred the issue of entitlement to TDIU is MODIFIED to reflect remand. The Board's decision denying entitlement to a disability rating in excess of 20% is VACATED and the matter is REMANDED for furtherproceedings consistent with this decision. DATED: September 13, 2012 Copies to: John H. Turner VA General Counsel (027) 12