Single Judge Application, De Perez v. Derwinski, 2 Vet.App. 85, 86 (1992); Liberally Construe Pro Se Submisions; Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011)

Excerpt from decision below "Thus, the Court concludes that Mr. Rayford's informal brief sufficiently demonstrates an intent to appeal those denied claims and will consider the foregoing arguments. See De Perez v. Derwinski, 2 Vet.App. 85, 86 (1992) (liberally construing the pro se appellant's informal brief to include arguments regarding, inter alia, the Board's failure to apply potentially applicable statutes and regulations); see also Calma v. Brown, 9 Vet.App. 11,15(1996)(providing examples of instances in which the Court has liberally construed documents submitted by pro se appellants)." ========================== "Rather than examining whether Mr. Rayford's lay statements were competent evidence of a diagnosis of a current right leg or right knee disorder and of a nexus between his claimed disorders and service,the Board engaged in the very analysis prohibited by Davidson and Jandreau, summarily rejecting his statements as incompetent based on his status as a layperson. R. at 9, 12; see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011) (concluding that "the Board's categorical rejection and failure to analyze and weigh . . . lay evidence in accordance with established precedent renders its 6 statement of reasons or bases inadequate"). Thus, the Court concludes that the Board erred in considering and weighing Mr. Rayford's lay statements. This error was prejudicial to his claims for service connection for right leg, right knee, and right shoulder disorders because the Board did not find that there was any other, independent reason to discount or reject Mr. Rayford's lay statements.2 See 38 U.S.C. § 7261(b)(2) (requiring the Court to "take due account of the rule of prejudicial error"); Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (explaining that "the burden of showing that an error is harmful normally falls upon the party attacking the agency's determination")." ======================== ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 11-3324 LESTER RAYFORD, JR., APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before BARTLEY, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. BARTLEY, Judge: Veteran Lester Rayford, Jr., who is self-represented, appeals an October 17, 2011, decision of the Board of Veterans' Appeals (Board) denying entitlement to service connection for right leg, right knee, and right shoulder disorders.1 Record (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). Single-judge disposition is appropriate in this case as the issues are of "relative simplicity" and "the outcome is not reasonably debatable." Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons that follow, the Court will vacate the October 17, 2011, Board decision and remand the matter for readjudication consistent with this decision. The Board also remanded the issues of entitlement to service connection for a left hip disorder and a compensable evaluation for tinea pedis of the right foot. Because those issues are not the subject of a final Board decision, the Court will not consider them at this time. See Breeden v. Principi, 17 Vet.App. 475, 478 (2004); see also Part II.A, infra. 1 I. FACTS Mr. Rayford served on active duty in the U.S. Army from April 1970 to November 1971, including service in Vietnam. R. at 387. His service medical records reflect complaints of right shoulder tenderness and a self-reported history of foot trouble. R. at 277, 288. In January 2002, a VA regional office (RO) awarded Mr. Rayford service connection for tinea pedis of the right foot and assigned a noncompensable evaluation. R. at 158-63. He filed a timelyNotice of Disagreement with that decision. R. at 157. In August 2004, prior to perfectingthat appeal, Mr. Rayford filed a claim for service connection for hip, right leg, and right shoulder disorders. R. at 139. Two months later, he submitted a statement to VA asserting that he had injured his right knee and right shoulder in Vietnam when jumping out of a helicopter, which the RO construed as a claim for service connection for a right knee disorder. R. at 131. After further development, the RO issued a rating decision in June 2005 denying entitlement to service connection for hip, right leg, right knee, and right shoulder disorders and continuing his noncompensable evaluation for tinea pedis of the right foot. R. at 106-09. Mr. Rayford disagreed with that decision and subsequently perfected his appeal to the Board. R. at 75-77, 100-03. In June 2009, he attended a VA skin examination and was diagnosed with erosio blastomyces interdigitalis. R. at 57-58. However, "[n]o tinea pedis" was present at that time. R. at 58. InOctober2011,theBoardissuedthedecision currentlyon appeal, which denied entitlement to service connection for right leg, right knee, and right shoulder disorders and remanded the issues of entitlement to service connection for a left hip disorder and a compensable evaluation for tinea pedis of the right foot. R. at 3-16. This appeal followed. II. ANALYSIS A. Left Hip Disorder and Tinea Pedis of the Right Foot As an initial matter, the Court notes that Mr. Rayford submitted an informal brief that, in response to question two of the informal brief form, indicated that he wished to appeal the Board's determinations regarding his entitlement to service connection for a left hip disorder and a compensable evaluation for tinea pedis of the right foot. See Appellant's Brief (Br.) at 1 (Question: "If there is more than one issue on the front page of the Board . . . decision, which one(s) are you 2 appealing?" Answer: "Tinea pedis of the right foot. Left hip disorder."). However, the Board, in its October 2011 decision, remanded those issues to the RO. R. at 13-16. The Court may review only final decisions of the Board. See 38 U.S.C. § 7266(a); Jarrell v. Nicholson, 20 Vet.App. 326, 331 (2006) (en banc). A Board remand does not constitute a final decision of the Board appealable to the Court. See Howard v. Gober, 220 F. 3d 1341, 1344 (Fed. Cir. 2000); Breeden, 17 Vet.App. at 478; 38 C.F.R. § 20.1100(b) (2012). Thus, the Court lacks jurisdiction to consider Mr. Rayford's arguments with respect to the remanded issues of entitlement to service connection for a left hip disorder and a compensable evaluation for tinea pedis of the right foot. See Appellant's Br. at 1 (arguing that the Board failed to consider that he underwent a left hip replacement in January 2011 and did not obtain medical records from a December 2011 foot examination). Mr. Rayford of course remains free to present any arguments regarding VA's development of those claims to the RO on remand. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). B. Right Leg, Right Knee, and Right Shoulder Disorders Mr. Rayford's responses to questions five, six, and seven on the informal brief form include assertions of error that would applyto the right leg, right knee, and right shoulder disorders that were denied by the Board. He argued that the Board failed to consider that he engaged in combat as an infantryman, sustained numerous unreported injuries in service, and cannot work because of his conditions. See Appellant's Br. at 2. Consistent with VA's duty to sympathetically read the pleadings of self-represented appellants, see Szemraj v. Principi, 357 F. 3d 1370, 1371 (Fed. Cir. 2004); Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001), the Secretary, in an alternative argument, addressed the merits of the right leg, right knee, and right shoulder disorder claims, arguing for affirmance of the Board decision on those claims. Thus, the Court concludes that Mr. Rayford's informal brief sufficiently demonstrates an intent to appeal those denied claims and will consider the foregoing arguments. See De PerezNext Document v. Derwinski, 2 Vet.App. 85, 86 (1992) (liberally construingthe pro se appellant's informal brief to includearguments regarding, inter alia, the Board's failureto applypotentiallyapplicablestatutes and regulations); see also Calma v. Brown, 9 Vet.App. 11,15(1996)(providingexamples ofinstances inwhichtheCourt hasliberallyconstrueddocuments submitted by pro se appellants). 3 Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a nexus between the claimed in-service injury or disease and the current disability. See 38 U.S.C. § 1110; Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); 38 C.F.R. § 3.303 (2012). The Board's determination regarding entitlement to service connection is a finding of fact that the Court reviews under the "clearly erroneous" standard of review. 38 U.S.C. § 7261(a)(4); see Russo v. Brown, 9 Vet.App. 46, 50 (1996). "A factual finding 'is "clearly erroneous" when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992) ( quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). In rendering its decision, the Board is required to provide a written statement of the reasons or bases for its "findings and conclusions[ ] on all material issues of fact and law presented on the record." 38 U.S.C. § 7104(d)(1). The statement must be adequate to enable a claimant to understand the precise basis for the Board's decision and to facilitate review in this Court. See Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). Mr. Rayford's arguments that the Board failed to consider that he engaged in combat and sustained numerous unreported injuries in service both pertain to the second element of service connection–i.e., whether he incurred or aggravated an injury or disease in service. See 38 U.S.C. § 1154(b) (requiring VA, in the case of a veteran who engaged in combat, to accept as sufficient proof of an in-service occurrence or aggravation of an injury or disease " satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service"). To the extent that this argument is directed at the Board's denial of his claim for service connection for a right shoulder disorder, the Board found that the record contained evidence of an in-service right shoulder injury sufficient to satisfythat element of service connection. R. at 11 ("The Veteran's service treatment records reflect complaints of and treatment for right shoulder pain during service. Thus, there is evidence of a right shoulder disability during active duty service."). Once the Board made that finding, it was not required to further discuss whether section 1154(b) applied to Mr. Rayford's right shoulder claim or 4 whetherhe suffered anyunreported right shoulder injuriesin servicebecauseneither argument could result in substantiating the other elementsof serviceconnection (medical diagnosis and linkage) that the Board found lacking in this case. See Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996) ("Section 1154(b) does not create a statutory presumption that a combat veteran's alleged disease or injury is service-connected."). Thus, the Court concludes that the Board did not err in failing to discuss those arguments with respect to Mr. Rayford's claim for service connection for a right shoulder disorder. The Board, however, found that there was no evidence of right leg or right knee injuries or diseases in service. Therefore, to the extent that Mr. Rayford presented evidence that he engaged in combat and thatevidencewas"consistent with the circumstances,conditions, or hardships of such service,"theBoardwas required to accept his statements of unreported right lowerextremityinjuries in service as competent evidence sufficient to satisfy the second element of service connection. 38 U.S.C. § 1154(b); see Maxson v. Gober, 230 F.3d 1330, 1332-33 (Fed. Cir. 2000) (outlining the three-part test for applying section 1154(b)). Mr. Rayford not only raised to the Board the issue of his entitlement to the benefit of section 1154(b), but the record also contains evidence reflecting combat service. See R. at 77 (Substantive Appeal stating that he was a " combat soldier" and asserting that he injured his lower extremities jumping out of helicopters ), 387 (Form DD-214 indicating that Mr. Rayford was awarded the Combat Infantryman Badge (CIB )); VA Adjudication Procedures Manual 21-1MR, pt. III, subpt. IV, ch. 4, § H.29.c. (listing receipt of the CIB as evidence of personal participation in combat); see also Army Regulation 600-8-22 § II, 8-6 (explaining that, to receive the CIB, a soldier must, inter alia, be "[a]ssigned to an infantry unit during such time as the unit is engaged in active ground combat" and "[a]ctively participate in such ground combat"). The Board was therefore required to consider and discuss whether the favorable combat veteran rule applied to his claims for service connection for right leg and right knee disorders and its failure to do so constitutes error. See 38 U.S.C. § 7104(a) ( requiring the Board to consider and discuss all evidence of record and all "applicable" provisions of law and regulation); Robinson v. Peake, 21 Vet.App. 545, 553 (2008) (holding that the Board errs when it fails to consider issues or theories raised either by the appellant or by the evidence of record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). Thus, the Court concludes that vacatur and remand are 5 warranted for those claims. See Tucker v. West, 11 Vet.App. 369, 374 ( 1998) ("Where the Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate, a remand is the appropriate remedy."). The Board also erred in analyzing Mr. Rayford's laystatements that he currentlysuffers from right leg and right knee disorders and that those disorders, as well as his currently diagnosed right shoulder strain, are related to service. Although the Board acknowledged that Mr. Rayford had presented lay evidence on each of those matters, the Board rejected that evidence as incompetent because Mr. Rayford is a layperson. R. at 9, 12. Specifically, the Board stated that "[m]edical diagnosis and causation involve questions that are beyond the range of common experience and common knowledge and require the special knowledge and experience of a trained physician" and found that Mr. Rayford was not competent to diagnose a medical condition or provide a nexus opinion because "he is not a physician." R. at 9, 12 (citing Grottveit v. Brown, 5 Vet.App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992)). The Board, however, is not permitted to categorically reject evidence of a diagnosis or nexus as incompetent solelybecause it comes from a layperson. To the contrary, the U.S. Court of Appeals for the Federal Circuit has repeatedly held that, in certain circumstances, lay evidence alone is sufficient to establish the first and third elements of service connection. See Davidson, 581 F.3d at 1316 (holding that this Court erred in categorically stating that a valid medical opinion was required to establish nexus and in rejecting the appellant's nexus evidence because she was a layperson); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (expressly rejecting this Court's holding that competent medical evidence is required when the determinative issue involves either medical etiologyor a medical diagnosis and outlining the instances when lay evidence is competent and sufficient to establish a diagnosis of a condition). Rather than examining whether Mr. Rayford's lay statements were competent evidence of a diagnosis of a current right leg or right knee disorder and of a nexus between his claimed disorders and service,the Board engaged in the very analysis prohibited by Davidson and Jandreau, summarily rejecting his statements as incompetent based on his status as a layperson. R. at 9, 12; see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011) (concluding that "the Board's categorical rejection and failure to analyze and weigh . . . lay evidence in accordance with established precedent renders its 6 statement of reasons or bases inadequate"). Thus, the Court concludes that the Board erred in considering and weighing Mr. Rayford's lay statements. This error was prejudicial to his claims for service connection for right leg, right knee, and right shoulder disorders because the Board did not find that there was anyother, independent reason to discount or reject Mr. Rayford's laystatements.2 See 38 U.S.C. § 7261(b)(2) (requiring the Court to "take due account of the rule of prejudicial error"); Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (explaining that " the burden of showing that an error is harmful normally falls upon the party attacking the agency's determination"). Vacatur and remand of his claims for service connection for right leg, right knee, and right shoulder disorders are therefore warranted. See Davidson and Jandreau, both supra; see also Tucker, 11 Vet.App. at 374. Accordingly, the Court need not address Mr. Rayford's argument that the Board failed to consider that he cannot work because of his right leg, right knee, and right shoulder disorders because that argument cannot result in a remedy more favorable than vacatur and remand. See Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam order ) ("A narrow decision preserves for the appellant an opportunity to argue those claimed errors before the Board at the readjudication, and, of course, before this Court in an appeal, should the Board rule against him."). Of course, Mr. Rayford remains free to present that argument, as well as any additional arguments and evidence, to the Board on remand in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). See Kay, 16 Vet.App. at 534. The Court reminds the Board that "[a] remand is meant to entail a critical examination of the justification for [the Board's] decision," Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991), and must be performed in an expeditious manner in accordance with 38 U.S.C. § 7112. The Court notes that the Board also found that Mr. Rayford's lay statements of continuous right leg and right knee symptoms since service were not credible. R. at 9. However, the Board limited that credibility finding only to those statements, implicitly finding that the remainder of the cited lay evidence was credible (including other lay statements of a nexus between his current right lower extremity symptoms and service). R. at 9, 12. 2 7 III. CONCLUSION Upon consideration of the foregoing, the October 17, 2011, Board decision is VACATED and the matter is REMANDED for readjudication consistent with this decision. DATED: September 28, 2012 Copies to: Lester Rayford, Jr. VA General Counsel (027) 8

Single Judge Application, Horn, 25 Vet.App. at 236; Presumption of Soundness

Excerpts from decision below: "The presumption of soundness relates to the second service-connection element–the showing of an in-service incurrence or aggravation of a disease or injury. Holton v. Shinseki, 557 F.3d 1362, 1367 (Fed. Cir. 2009); Horn, 25 Vet.App. at 236. Pursuant to the second element, a claim must be based either on an injury or disease incurred in service or an injury or disease aggravated in service." ============================= "As this Court recently held in Horn, the second service connection element is satisfied where the first presumption of soundness rebuttal prong is not satisfied (clear and unmistakable evidence of a preexisting condition) or the second prong is not satisfied (clear and unmistakable evidence of no in-service aggravation of the preexisting condition) and there is "any occurrence of injury or disease during service." Horn, 25 Vet.App. at 236. In Horn, the Court held that an unexplained conclusion or medical judgment on a service medical examination board (MEB) report, without more, cannot constitute clear and unmistakable evidence of lack of aggravation to rebut the presumption of soundness. Id. at 240-43." ============================= ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 11-1377 ALDO P. MAESTRI, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before MOORMAN, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. MOORMAN, Judge: The appellant, through counsel, appeals from a March 17, 2011, decision of the Board of Veterans' Appeals (Board) that denied entitlement to service connection for a back disability and a bilateral foot disability. Both parties filed briefs. The appellant argues that the Board erred in applying the presumption of soundness, and the Secretaryconcedes that the April 2005 VA medical examination report regarding the appellant's spine is deficient ("equivocal") because the examiner essentially required that the asserted in-service incident causing injury be verified in the medical records. The Secretary advocates a remand of the back disability claim and an affirmance of the Board denial of service connection for the appellant's foot disabilityclaim. This appeal is timely and the Court has jurisdiction over the appeal pursuant to 38 U.S.C. § 7252(a). Single-judge disposition is appropriate. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons set forth below, the Board's March 2011 decision will be vacated in part and both claims will be remanded for correct implementation of the presumption of soundness under HornNext Hit v. Shinseki, 25 Vet.App. 231 (2012), and further development consistent with this decision. I. FACTS The appellant served on active duty in the U.S. Army from April 1944 to November 1944. Record (R.) at 491. The appellant's entrance examination, of which only an incomplete copy was obtained because his records were presumed destroyed byfire (R. at 10), noted no mental or physical defects and described the appellant's feet as normal. R. at 262-63. A May 1944 service medical record (SMR) noted that the appellant complained of having pain in his back and feet for manyyears and no history of injury or treatment. R. at 255. On his November 1944 separation examination report, the appellant noted, in the section of the report entitled " STATEMENT AND MEDICAL HISTORY OF EXAMINEE," "backache[,] 5-6 yrs. Never hospitalized" and "[w] eak feet, 5 yrs. Never hospitalized." R. at 253. In the same section of the report, the appellant noted that both conditions existed prior to service ("EPTS") and were aggravated by military service ("AMS"). Id. Although the examiner interpreted bilateral foot x-rays as normal (R. at 254), under the heading "Feet"the examiner recorded: "metatarsalgia, bilateral, moderate [to] severe, causeundetermined." R. at 253. The examiner also indicated that there were no musculoskeletal defects. Id. The examiner answered "yes" in a box in response to the question, "In your opinion does [the] individual meet physical and mental standards for discharge?" R. at 253. The cause of separation is noted as "Below minimum physical standards for induction with no suitable assignment." R. at 257. In April 1986, the appellant filed claims for service connection for a back condition and a bilateral foot condition. R. at 988-91. The regional office (RO) denied the claims in May 1986. R. at 986-87. The appellant filed a timely Notice of Disagreement the following month (R. at 981- 82), but did not file a Substantive Appeal after the RO issued a Statement of the Case in July 1986 (R. at 977-80). In July 2002, the appellant requested that his claims be reopened. R. at 904-18. The RO determined that new and material evidence had not been presented to reopen his claims for service connection for back and bilateral foot conditions. R. at 857-60. The appellant perfected an appeal. R. at 824-25, 848. The Board remanded the appellant's claims in June 2004. R. at 804-13. The appellant underwent a VA spine examination in April 2005. R. at 714-16. Theappellant complained of pain in the low back and reported that a tree fell on his tent in basic training and that 2 he was hit on the head and left shoulder. R. at 715. Spine x-rays revealed degenerative disc disease at multiple levels. R. at 716. The examiner opined: On relation of service connection to back, there appears to be a wide difference between the patient's history and the patient's medical records. I also note the results of a psychiatric examination on this question in the past. If the patient's history is regarded without reference to the records, then he has a claim that he developed back pain from the time of the injury occurring in basic training and it has been present until the present time. If the records are to be believed, then the [ appellant] had a pre-existing back pain and there is no service record of exacerbation. Again if the medical records and the prior investigations are to be considered, then it is not as likely as not that [his] current complaints of pain in his back and his diagnosis of degenerative disc disease are service connected. Id. The appellant also underwent a VA foot examination in April 2005. R. at 708-09. He complained of bilateral foot pain and that he could not walk due to foot and back pain. R. at 708. The appellant denied any overt history of foot trauma. R. at 708. The physical examination of the appellant's feet demonstrateddiscomfort,pain,andstiffnessin themetatarsalheadsandhammertoes. Id. Bilateral foot x-rays revealed foot arthritis and hammertoes, right worse than left. R. at 709. The examiner opined that the appellant's claims file did not reveal that arthritis or hammertoes were present before service, had their onset during service, or were caused by any incident in service. Id. She further opined that the claims file did not reveal that the appellant " sustained anysymptoms that were permanent or worsening of his condition [while in service]." Id. She therefore opined that the appellant's "[c]urrent foot disability was most likely a natural progression." Id. In June 2007, the Board reopened the appellant's claims for service connection for back and bilateral foot disabilities and denied the claims on the merits. R. at 498- 512, 514. In October 2008, the Court remanded the Board's 2007 decision pursuant to a joint motion for remand. R. at 455, 456- 62. The Board remanded the appellant's claim for the RO to obtain the appellant's Social Security Administration (SSA) records in February 2009. R. at 430-35. In October 2009, the Board again denied the appellant's claims. R. at 145-57. In October 2010, the Court remanded the Board's 2009 decision pursuant to a joint motion for remand. R. at 53, 61-66. On March 17, 2011, the Board denied the appellant's claims. R. at 3-16. 3 This appeal followed. Subsequent to the filing of briefs, the appellant filed a notice of supplemental authorities on June 22, 2012, informing the Court of its decision in Previous HitHornNext Hit, supra. II. ANALYSIS TheBoardfoundthepresumptionofsoundnessapplicableto theappellant's claimsfor a back disability and a bilateral foot disability, due to the factual finding that there is no documented notation of such disabilities upon the appellant's entrance to service. R. at 10-11; see 38 U.S.C. § 1111. The parties do not dispute this finding. The Board further found that the presumption of soundnesswasnot rebuttedbecause clear and unmistakable evidencedid notdemonstratethataback or foot disability preexisted service. R. at 11-12. The Board accordingly found that the appellant's claim was one based on incurrence of an injury or disease in service. R. at12 (citing Wagner v. Principi, 370 F.3d 1089, 1094-96 (Fed. Cir. 2004). Inconsideringserviceconnection in this regard,theBoardnotedthe appellant's assertion that his current disabilities stem from injuries he suffered in service when he was struck by a falling tree branch during a hurricane. R. at 12. The Board determined, however, that, even accepting the appellant's description ofthis incidentascredible, therewasinsufficientmedicalevidence of a nexus between the appellant's current conditions and service. R. at 12-14. The Board relied on the 2005 VA foot and spine medical opinions, which it found were adequate for purposes of determining service connection. Id. The appellant argues, in part, that the Board erred in finding that there was no clear and unmistakable evidence that his back and bilateral foot conditions preexisted service. Appellant's Brief (Br.) at 12-18. The appellant also argues that his preexisting conditions were aggravated by serviceandthatthe2005 VA medical opinions with respect to these conditions wereinadequatewith respect to the issue of aggravation. Appellant's Br. at 17, 22-25; R. at 708-09, 714-16. While the appellant does not clearly express the legal consequences that he believes flow from these arguments, he cannot be arguing that the presumption of soundness has been rebutted because such rebuttal would defeat his claims. Generally, to establish service connection for a present disability, "the veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present 4 disability and the disease or injury incurred or aggravated during service." Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The presumption of soundness relates to the second service-connection element–the showing of an in-service incurrence or aggravation of a disease or injury. Holton v. Shinseki, 557 F.3d 1362, 1367 (Fed. Cir. 2009); Previous HitHornNext Hit, 25 Vet.App. at 236. Pursuant to the second element, a claim must be based either on an injury or disease incurred in service or an injury or disease aggravated in service. Aggravation can only be shown if the disease or injurypreexisted service. Wagner, 370 F.3d at 1093 (noting that aggravation claims are premised on the existence of a preexisting injury). "The presumption of soundness strongly favors the conclusion that any occurrence of injury or disease during service establishes that the in-service medical problems were incurred in the line of duty, that is, during active service and not as a result of the service member's own misconduct." Previous HitHornNext Hit, 25 Vet.App. at 236. The statutory presumption of soundness provides that when no medical condition is noted upon a wartime veteran's entryinto service, the veteran is presumed to have been in sound condition upon entry to service, subject, however, to rebuttal. 38 U.S.C. § 1111; Wagner, 370 F.3d at 1093. The presumption can be rebutted where the Secretary meets his burden to show that clear and unmistakable evidencedemonstratesthatacondition both preexisted serviceandwasnot aggravated by service. Id. at 1096. Where, as here, the Board specifically found that the presumption of soundness applies and has not been rebutted, we do not interpret the appellant's brief as arguing that the presumption of soundness is rebutted. Becausethepresumptionofsoundnessis not rebutted, theappellant'sclaimcanonlybebased on incurrence of an injuryor disease in service, as opposed to in-service aggravation of a preexisting condition. This is true even if, as the appellant argues, he has a preexisting condition but rebuttal of the presumption of soundness fails. The Board correctly recognized that the court in Wagner explained that, in this circumstance, section 1111 has the effect of converting a claim based on aggravation into a claim based on incurrence. R. at 12; Wagner, 370 F.3d at 1096 (holding that 38 U.S.C. § 1111 "essentially had the effect of converting an aggravation claim into one for [incurrence] where the government [fails to] show a lack of aggravation of a preexisting condition 5 byclear and unmistakable evidence.")1 ; seealso Joycev.Nicholson,443F.3d.845,847-48(Fed. Cir. 2006) ("Our decision in Wagner made clear that, under the wartime service regime, there is onlyone claim for a disability not noted upon entry - a claim for [incurrence]."). Here, the Board's implicit finding that the appellant's service from April 1944 to November 1944 was during wartime is not challenged by the parties. See 38 C.F.R. § 3.2(d) (2012) (designating the World War II period of war from December 7, 1941, through December 31, 1946). Further, the parties do not dispute the Board's finding that neither a foot nor a back condition was noted upon the appellant's entryinto service and its determination that the presumption of soundness therefore applies. R. at 10-11. The Board's conclusion in this regard is not undermined by the fact that the record contains only part of the appellant's entrance examination and that the remainder may have been destroyed by fire. See Quirin v. Shinseki, 22 Vet.App. 390, 397 n.5 (2009) (it would be purelyspeculativetosuggestthatanydestroyedrecordscontainevidenceofapreexis). Under the circumstances here, where the Board found that the presumption of soundness has not been rebutted, and the SMRs and service separation examination report show the existence of an injury or disease, the appellant is entitled to the benefit of the presumption of soundness, i.e., the establishment of an in-service incurrence of a back and foot condition. As this Court recentlyheld in Previous HitHornNext Hit, the second service connection elementis satisfied where the first presumption of soundness rebuttal prong is not satisfied (clear and unmistakable evidence of a preexisting condition) or the second prong is not satisfied (clear and unmistakable evidence of no in-service aggravation of the preexisting condition) and there is "any occurrence of injury or disease during service." Previous HitHornNext Hit, 25 Vet.App. at 236. In Previous HitHornNext Hit, the Court held that an unexplained conclusion or medical judgment on a service medical examination board (MEB) report, without The U.S. Court of Appeals for the Federal Circuit used the term "service- connected disability" here. However, the court clearly was referring to a claim based on service incurrence of an injury or disease. At the outset of its analysis, the court noted the statutory definition of "service-connected" as a disability that was "incurred or aggravated" in the line of duty. Wagner, 370 F.3d at 1093. It then stated: "In other words, a claim may either be for a service-connected disability or for aggravation of a preexisting disease or injury." Id. The court explained: "For sake of convenience, we use the term "service-connected" herein to refer to a disability that is wholly service-connected, as opposed to an aggravation claim." Id. at n.5. The court elaborated on its concept of " wholly service-connected" later in its decision: "This means that no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded." Id. at 1096. In Joyce v. Nicholson, this Court interpreted the Wagner decision similarly, stating that if the presumption of soundness applies, "then 'the veteran's claim is one for service connection [based on incurrence in service].'" 19 Vet.App. 36, 46 (2005) (alteration in original) (quoting Wagner, 370 F.3d at 1096). 1 6 more, cannot constitute clear and unmistakable evidence of lack of aggravation to rebut the presumption of soundness. Id. at 240-43. There, the induction examination report contained no notation of a hip condition or other defect of the lower extremities, an SMR noted hip pain during the first three weeks of training, and the MEB report stated that the veteran was medically fit for retention under then-current medical fitness standards but diagnosed Legg- Calve-Perthes disease, indicating with an "X" that the condition existed prior to service and was not aggravated by active duty and recommended separation from service "for Convenience of the Government." Id. at 233- 34. In Previous HitHornNext Hit, as here, the Secretary did not meet its burden to satisfy the standard required for rebutting the presumption of soundness statute. There is a notation in Mr. Maestri's SMRs that he was being seen for current complaints ("cc.") of pain in his feet and back and that he had "pain in feet and back for many years" but had no "inj[ury]" and no treatment. R. at 255 (May 1944 SMR). The examiner's findings included "tenderness over both heels" and other notations that are illegible but refer to his inside heels and his back. Id. A November 1944 "Report of Physical Examination of Enlisted Personnel Prior to Discharge,ReleasefromActiveDutyorRetirement," whichwascompletedapproximately7months after the appellant's entry into service, reflected that the appellant reported "backache – 5-6 years. Never hospitalized" and "weak feet, 5 yrs. Never hospitalized." R. at 253. On the same form, the examiner noted that the appellant met the physical and mental standards for discharge. Id. And, although no musculoskeletal defects were noted, the examiner reported, as to the appellant's feet, "metatarsalgia, bilateral, moderate to severe, cause undetermined." Id. A November 1944 "Report of Separation" noted the cause of separation as: "Below minimum physical standards for induction with no suitable assignment." R. at 257. The appellant submitted a post-service statement asserting that he was in excellent health prior to military induction and disputing the notations on service medical records reflecting that he reported having back and feet problems for 5 to 6 years. R. at 695. Another statement of the appellant noted that he developed back and feet problems while in service and that he was "100% fit and healthy" when he entered service. R. at 981. VA medical examination notes reflected that appellant reported experiencing pain in his feet while walking during training but denying any overt history of foot trauma. R. at 708. 7 With respect to incurrence of an injury or disease in service, the Board noted that "the Veteran attributes his current back and bilateral foot disabilities to injuries he suffered during training and when struck by a falling tree branch during a hurricane in service." R. at 12. The Board stated: "[E]ven if the Board was to accept, as credible, the Veteran's description of in-service injury, the claims must be denied on the basis of medical nexus to service." R. at 12. Regardless of credibility, because the appellant is entitled to the benefit of the presumption of soundness and there is some evidence of an in-service incurrence of injury, he has established the second element of both his service connection claims.2 Regarding whether the evidence establishes that the appellant's current back and foot disabilities are related to service, the Board erred in requiring that there be a diagnosed in service either a "back or foot disability" or a "diagnosed pathology underlying the Veteran's complaints." R. at 13. The Board stated: "Significantly, as indicated, no actual back or foot disability was then shown; and, as noted, complaints of pain alone, do not constitute a disabilityfor VA purposes." R. at 13. This statement is contrary to application of the presumption of soundness to this case that entitles the appellant to having established an in-service incurrence for both his back and foot conditions. There is nothing to preclude a medical examiner from establishing that the appellant's current problems with his back and feet are related to the pain and injury that have been established as being incurred in service. The Board confused the issue of whether the appellant has a current "disability" with the issue of whether the appellant incurred an injury or disease in service. And, for purposes of establishing service incurrence, the second element of a service connection claim, a "disability" in service is not required; an injury is sufficient. Moreover, the Board was not free to interpret the in-service medical notation of metatarsalgia as representing " complaints of pain alone" without supporting medical evidence. R. at 11; Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that the Board may not reject medical evidence in the record based on its own unsubstantiated medical conclusions). The Court notes that the Board, in granting service connection in 2007 for a head condition, accepted as a factual finding the existence of the falling tree branch incident. R. at 498-512. Such a finding is consistent with service incurrence of an event established through application of the presumption of soundness for the appellant's feet and back. 2 8 In this regard, the Board also erred in using its aforementioned statement to preclude finding a nexus to service. The Board stated: "Hence, this evidence [(in-service notations on SMRs and establishedincurrence)] cannotprovidepersuasivesupportforafindingthatsubsequentlydiagnosed back and foot disabilities are medically related to service, to include on the basis of in-service aggravation of pre-existing problems (pain)." Id. This statement is a medical conclusion that the Board is not capable of making and violates the principle from Colvin that the Board may not make unsubstantiated medical conclusions. Significantly, as argued by the appellant, the Board erred in relying on the April 2005 VA medical examination reports because they were inadequate. Appellant's Br. at 25-28; R. at 14. The Court agrees. The Court first notes that the Board summarily rejected the appellant's argument that the 2005 VA opinions were inadequate based solely on the Board's statement that the appellant did not present or identify "any contrary medical evidence or opinion that, in fact, supports the claim." R. at 14. The reason provided by the Board on this point is not apposite or dispositive of the argument made. If VA has provided a medical examination of the appellant, pursuant to 38 U.S.C. § 5103A, VA is obligated to provide an adequate one. The Secretary's duty to assist a claimant includes, among other things, "providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim." 38 U.S.C. § 5103A(d)(1); 38 C.F.R. § 3.159(c)(4) (2012). "[O]nce the Secretary undertakes the effort to provideanexaminationwhendevelopingaservice-connectionclaim,evenifnot statutorilyobligated to do so, he must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided." Barr v. Nicholson, 21 Vet.App. 303, 311 (2007); see also Bowling v. Principi, 15 Vet.App. 1, 12 (2001)) (where an examination report is inadequate, the Board should remand the case to the RO for further development); Ardison v. Brown, 6 Vet.App. 405, 407 (1994) (holding that an inadequate medical examination frustrates judicial review). Here, the central question is whether it is as likely as not that the appellant's current foot and back disabilities are related to service. The 2005 VA medical examiners failed to provide an opinion as to the likelihood that the appellant's present back and bilateral foot disabilities are causally related to service, assuming that the appellant suffered an in-service incurrence of injury to his feet and back. See Previous HitHornNext Document, 25 Vet.App. at 244-45 (holding that the presumption of soundness applied, 9 reversing the Board's finding that service did not aggravate the veteran's preexisting Legg-Perthes's disease, remanding for development on the other service-connection issues, and remanding with the direction that "any VA medical examiner(s) must assume that the appellant aggravated his Legg- Perthes's disease during service."); R. at 708-09 (April 2005 VA medical report pertaining to feet); R. at 714-16 (April 2005 VA medical report pertaining to the appellant's back). As such, the Board's finding that the 2005 VA medical examination reports are adequate and probative is clearly erroneous. See D'Aries v. Peake, 22 Vet.App. 97, 103 (2008) (noting that whether a medical opinion is adequate is a finding of fact, which the Court reviews under the " clearly erroneous" standard). The Court therefore vacates the Board's denial of service connection for the appellant's present back and foot disabilities and leaves undisturbed the Board's favorable findings that the presumption of soundness applied and was not rebutted. The Board is directed to enter a finding that the appellant had met the element of service incurrence for both a back and foot injury. The Court will remand for development on the other service-connection issues. On remand, the Board and VA medical examiner(s) must assume that the appellant incurred an injury to his back and feet during service. On remand, the Board must consider all potential theories of service connection, including continuity of symptomatology, and account for the lay evidence of record. See 38 U.S.C. § 7104(d)(1); 38 C.F.R. § 3.303(b) (2012). On remand, the appellant is free to submit additional evidence and argument on the remanded claims for entitlement to service connection for disabilities of the back and feet, which the Board must consider when readjudicating his claims. See Kay v. Principi, 16 Vet.App. 529, 534 (2002); Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). The Board and the RO must provide expeditious treatment of this matter on remand. See 38 U.S.C. §§ 5109B, 7112. III. CONCLUSION Uponconsideration oftheforegoinganalysis, therecordonappeal, theparties'pleadings, and the March 17, 2011, Board decision, the Court leaves undisturbed the Board's determination, with respect to both claims for service connection for a back disability and for a foot disability, that the presumption of soundness, under 38 U.S.C. § 1111, is applicable and is not rebutted. The Court 10 directs that the Board enter a finding of in-service incurrence of a back and foot injury. The remainder of the Board's decision is VACATED and the matters are REMANDED for further development consistent with this decision. DATED: October 2, 2012 Copies to: Virginia A. Girard-Brady, Esq. VA General Counsel (027) 11