President Obama Signs VA Burn Pit Registry Law, Sec 201

On Jan. 10, 2013, President Obama signed S. 3202 which requires VA to establish a burn pits registry for Veterans who may have been exposed to burn pits in Iraq or Afghanistan. VA will announce how to sign up once the registry is available. See http://news.yahoo.com/lawmakers-require-va-track-effects-burn-pits-085359722.html;_ylt=AwrHgFal5QNR1GkAJQKs0NUE;_ylu=X3oDMTNsYXJpbGhjBG1pdANUb3BTdG9yeSBGUARwa2cDNWUwNWE5ZWYtY2VhYS0zNTk1LTk1MjgtMDNjOTVhMWQyNDY5BHBvcwM3BHNlYwN0b3Bfc3RvcnkEdmVyAzM2YTk0YzBjLTY3YmQtMTFlMi05YzRiLTRmOTMyMTAzZjYwNw--;_ylg=X3oDMTFpNzk0NjhtBGludGwDdXMEbGFuZwNlbi11cwRwc3RhaWQDBHBzdGNhdANob21lBHB0A3NlY3Rpb25z;_ylv=3 By KEVIN FREKING, Associated Press VA Burn Pit website http://www.publichealth.va.gov/exposures/burnpits/index.asp S. 3202 One Hundred Twelfth Congress of the United States of America TITLE II—HEALTH CARE SEC. 201. ESTABLISHMENT OF OPEN BURN PIT REGISTRY. (a) ESTABLISHMENT OF REGISTRY.— (1) IN GENERAL.—Not later than one year after the date of the enactment of this Act, the Secretary of Veterans Affairs shall— (A) establish and maintain an open burn pit registry for eligible individuals who may have been exposed to toxic airborne chemicals and fumes caused by open burn pits; (B) include any information in such registry that the Secretary of Veterans Affairs determines necessary to ascertain and monitor the health effects of the exposure of members of the Armed Forces to toxic airborne chemicals and fumes caused by open burn pits; (C) develop a public information campaign to inform eligible individuals about the open burn pit registry, including how to register and the benefits of registering; and (D) periodically notify eligible individuals of significant developments in the study and treatment of conditions associated with exposure to toxic airborne chemicals and fumes caused by open burn pits. (2) COORDINATION.—The Secretary of Veterans Affairs shall coordinate with the Secretary of Defense in carrying out paragraph (1). (b) REPORT TO CONGRESS.— (1) REPORTS BY INDEPENDENT SCIENTIFIC ORGANIZATION.— The Secretary of Veterans Affairs shall enter into an agreement with an independent scientific organization to prepare reports as follows: (A) Not later than two years after the date on which the registry under subsection (a) is established, an initial report containing the following: (i) An assessment of the effectiveness of actions taken by the Secretaries to collect and maintain information on the health effects of exposure to toxic S. 3202—7 airborne chemicals and fumes caused by open burn pits. (ii) Recommendations to improve the collection and maintenance of such information. (iii) Using established and previously published epidemiological studies, recommendations regarding the most effective and prudent means of addressing the medical needs of eligible individuals with respect to conditions that are likely to result from exposure to open burn pits. (B) Not later than five years after completing the initial report described in subparagraph (A), a follow-up report containing the following: (i) An update to the initial report described in subparagraph (A). (ii) An assessment of whether and to what degree the content of the registry established under subsection (a) is current and scientifically up-to-date. (2) SUBMITTAL TO CONGRESS.— (A) INITIAL REPORT.—Not later than two years after the date on which the registry under subsection (a) is established, the Secretary of Veterans Affairs shall submit to Congress the initial report prepared under paragraph (1)(A). (B) FOLLOW-UP REPORT.—Not later than five years after submitting the report under subparagraph (A), the Secretary of Veterans Affairs shall submit to Congress the follow-up report prepared under paragraph (1)(B). (c) DEFINITIONS.—In this section: (1) ELIGIBLE INDIVIDUAL.—The term ‘‘eligible individual’’ means any individual who, on or after September 11, 2001— (A) was deployed in support of a contingency operation while serving in the Armed Forces; and (B) during such deployment, was based or stationed at a location where an open burn pit was used. (2) OPEN BURN PIT.—The term ‘‘open burn pit’’ means an area of land located in Afghanistan or Iraq that— (A) is designated by the Secretary of Defense to be used for disposing solid waste by burning in the outdoor air; and (B) does not contain a commercially manufactured incinerator or other equipment specifically designed and manufactured for the burning of solid waste.

Single Judge Application; Vocational Rehab.; 38 USC 3104(a); Is Commute Part of Rehabilitation Services

Excerpts from decision below: "The issue presented is not whether the act of riding a bicycle is integral to the training VA authorized, but whether a participant's commute home from VA vocational rehabilitation class is within the scope of the rehabilitation services provided by VA as described in section 3104(a) and addressed in Cottle. Given Mr. Conniff's arguments, the Board's statement that it is "manifestly obvious" that riding a bicycle is not an "essential activity or function" or a "necessary component" of VA vocational rehabilitation training (38 C.F.R. § 3.361(d)(3); R. at 13), not only mischaracterizes the veteran's argument, it also does not contain the reasoned analysis needed to support an ultimate conclusion as to the question and to enable review by this Court. See Gilbert, 1 Vet.App. at 56-57." ============================= "However, the Board concluded that there is no proximal causal connection between the veteran's conceded additional disability and an essential activity or function of the VA vocational rehabilitation program without adequate examination or explanation of whether an individual's commute to and from rehabilitation classes is an essential activity or necessary component of the vocational rehabilitation program and the scope of services listed in 38 U. S.C. § 3104. Therefore, the Board's conclusion as to proximate cause was premature–§ 3.361(b) informs VA's proximate 7 cause determination and is not irrelevant in this case. Therefore, the Board's failure to consider the "essential activity" language in light of section 3104(a) is not harmless error." ============================= ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 11-2131 AUGUSTINE P. CONNIFF, 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: Augustine P. Conniff served in the U.S. Army from March 1987 to May 1988. Record (R.) at 4. He now appeals through counsel from a May 31, 2011, decision of the Board of Veterans'Appeals (Board) that deniedentitlement to compensation under 38 U.S.C. § 1151 for multiple injuries, including status post bilateral wrist and forearm fractures, fractures of the 3rd, 4th, and 5th fingers, laceration of the knees, and laceration of the forehead,1 all claimed to have been sustained while in pursuit of a program of VA vocational rehabilitation.2 For the following reasons, the Court will set aside the Board's May 2011 decision and remand the case for readjudication consistent with this decision. There is also evidence in the record of "impaired brain function of moderate severity" (R. at 98), allegedly resulting from the same accident in which Mr. Conniff suffered the wrist and forearm fractures. R. at 96. The Board noted this evidence (R. at 9), but did not include brain damage in its description of the claim. The Board also referred a claim for entitlement to service connection for arthritis in the wrists and knees for development. Normally, the Court does not have jurisdiction over a referred claim. See Link v. West, 12 Vet.App. 39, 47 (1998) ("Claims that have been referred by the Board to the [VA regional office] are not ripe for review by the Court."). But see Young v. Shinseki, 25 Vet.App. 201 (2012) (en banc order) (Court has limited jurisdiction to review the propriety of referring rather than remanding a portion of a claim properly before the Court). Because Mr. Conniff raises no argument as to the propriety of the referral, the Court will give no further consideration to that matter. 2 1 I. FACTS Beginning in 2004, Mr. Conniff participated in aVAvocationalrehabilitationprogramunder title 38 U.S.C., chapter 31 (R. at 323, 719); the program included a course of study at Arkansas State University Mountain Home. See R. at 13. On June 7, 2007, after taking a test in connection with the vocational rehabilitation program, he was returning home on his bicycle and, while en route, an automobile struck him while he was entering an intersection crosswalk. R. at 331, 334, 337-38. His injuries included "[two] double breaks in the bones of each forearm, both wrists [] shattered, and . . . three broken fingers on the right (major) hand." R. at 719. He apparently also sustained a "large laceration superior left skull," which required 10 sutures. R. at 8. The driver of the automobile "was at fault for failure to yield and careless driving. [S]he was issued two citations." R. at 334 (police report). On June 25, 2007, Mr. Conniff submitted a claim for compensation for his injuries under 38 U.S.C. § 1151. The regional office denied the claim on the basis that "[ t]here [was] no action on the part of the VA that resulted in the accident that caused [the] additional disabilities and [the] travel from the site of VA's vocational rehabilitation training was not an act performed in [pursuit] of vocational training, that is, a required learning activity." R. at 292. On appeal to the Board, Mr. Conniff's representative argued that under Cottle v. Principi, 14 Vet.App. 329 (2001), "the phrase 'in the pursuit of a course of vocational rehabilitation' embraces a full programof rehabilitation[,] which includes educational, vocational, and employment services, and which ends when the veteran has been declared rehabilitated." R. at 137. He argued that "the injuries [Mr. Conniff] sustained while traveling on his way home . . . arose out of and in the course of his vocational rehabilitation [t]raining." Id. He cited a case from the Arkansas Supreme Court that granted worker's compensation benefits under a "coming and going" rule for an in-home assistant who used her own vehicle to travel to and from her patients' homes. The representative argued that like the plaintiff in that case, Mr. Conniff "was acting within the course of his employment with [the VA] Vocational Rehabilitation Training [Program] at the time his injuries were sustained." R. at 138. In the decision here on appeal, the Board found that "[r]iding a bicycle was not a necessary component of the training or services program authorized for the Veteran." R. at 5. The Board asserted that "[i]t is manifestly obvious that riding a bicycle was not an 'essential activity or function' 2 of [the] training, nor was it a 'necessary component' of the training he was receiving." R. at 13; see 38 C.F.R. § 3.361(d)(3) (2012). The Board reasoned that "[t]he VA training program did not cause the Veteran's injuries; misadventure and a careless driver of another vehicle on a public highway did." Id. The Board concluded that "[t]here is nothing in the law, regulations or court decisions which make VA an insurer with respect to injuries sustained via activities which are only tangentially connected with VA programs, such as traveling to and from such programs." Id. The Board interpreted the statute and regulation to exclude Mr. Conniff's claim under the proximate causation requirement. The Board concluded that: "[T]here is no proximal causal connection between the multiple injuries, involving the wrists, forearms, knees and left forehead, sustained in the June 2007 bicycle accident and an essential activity or function which was within the scope of the VA rehabilitation course." R. at 13. II. ANALYSIS A. Applicable Law and Regulations Under 38 U.S.C. § 1151(a), compensation "shall be awarded for a qualifying additional disability in the same manner as if such additional disability were service[ ]connected" if the disability was (a) . . . not the result of the veteran's willful misconduct and – (2) . . . was proximately caused [] by the provision of training and rehabilitation services by the Secretary (including by a service-provider used by the Secretary for such purpose under section 3115 of this title) as part of an approved rehabilitation program under chapter 31 of this title . . . . 38 U.S.C. § 1151(a). Thus, to obtain benefits under 38 U.S.C. § 1151(a), Mr. Conniff, who was participating in a VA vocational rehabilitation program, must show: (1) A " qualifying additional disability," (2) proximately caused by the provision of VA training and rehabilitation services under chapter 31. Id. To establish that the provision of training and rehabilitation services " proximately caused a veteran's additional disability . . . it must be shown that the veteran's participation in an essential activity or function of the training, services, or CWT (Compensated Work Therapy) provided or authorized by VA proximately caused the disability." 38 C.F.R. § 3.361(d)( 3) (emphasis added). 3 "It need not be shown that VA approved that specific activity or function, as long as the activity or function is generally accepted as being a necessary component of the training, services, or CWT program that VA provided or authorized." Id. (emphasis added). The regulation further states that "[t]he proximate cause of disability . . . is the action or event that directly caused the disability . . . as distinguished from a remote contributing cause." 38 C.F.R. § 3.361(d). The Board is required to consider all evidence of record and discuss all " potentially applicable" provisions of law and regulation. Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991); see 38 U.S.C. § 7104(a); Weaver v. Principi, 14 Vet.App. 301, 302 (2001) (per curiam order). In rendering its decision, the Board must also provide a statement of reasons or bases that is adequate to enable an appellant to understand the precise basis for that decision and to facilitate review in this Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990). To comply with these requirements, 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). The Court reviews the Board's interpretation of the statute and regulations de novo. See 38 U.S.C. § 7261(a); Martin v. Brown, 6 Vet.App. 272, 274 (1994). B. Summary of the Parties' Arguments Mr. Conniff argues, inter alia, that his commute fromhisVAvocationalrehabilitationclasses was "an essential activity or function" of that program. Appellant's Br. at 10-11. Mr. Conniff further argues that the Board erred in failing to fully address an argument raised below, to the effect that a rehabilitation program includes a panoply of services directed at rehabilitating a veteran, all of which are essential activities or functions of the training. Appellant's Br. at 9 (citing Cottle, supra). In Cottle, the Court construed a phrase in a former version of section 1151,3 which provided for benefits when a veteran was injured in "pursuit of a course of vocational rehabilitation." Id. at Section 1151 was amended in 1996; the amendment applied to cases filed on or after October 7, 1997. Cottle, 14 Vet.App. at 332. The amended language did not include the phrase "pursuit of a course of vocational rehabilitation." Because Mr. Conniff's claim was received by VA in June 2007 (R. at 11), the version of the statute considered in Cottle does not apply to Mr. Conniff's claim. However, the Cottle Court remarked: "We note that the current version of section 1151 provides for the same eligibility." Cottle, 14 Vet.App. at 337. Therefore, the Court perceives no alteration to the logic of the case inhering in the amendment to the statute. 3 4 332. The Court held that a veteran who injured his back while working for a city transit system while on a probationary period of employment obtained through a VA rehabilitation program, but who had not been certified as rehabilitated, had a claim for benefits under section 1151 because "employment services" was within the scope of the rehabilitation program. Id. at 337. Mr. Conniff argues that his Cottle argument, raised before the Board, "should have prompted a discussion of 38 U.S.C. § 3104(a)," which provides in part that the Secretary may provide participants in the VA vocational rehabilitation program with travel and incidental expenses and, in some cases, a special transportation allowance. Appellant's Br. at 9-10. Mr. Conniff also raises to this Court an argument submitted to the Board, " regarding the 'coming and going rule' under the Workers' Compensation Act."4 Appellant's Br. at 8-9; see also R. at 122, 124, 140-44. Mr. Conniff also implies that the Board erred by failing to mention a regulation requiring a "meticulous examination into all the circumstances . . . including a consideration of the time and place of the incident producing the injury," in order to determine the scope of the rehabilitation program (Appellant's Br. at 11-12).5 38 C.F.R. § 3.358(c)(5) (2012). The Secretary responds, inter alia, that nothing in Cottle pertained to the issue of whether a commute to or from a "course of vocational rehabilitation"was within the purview of section 1151. Secretary's Br. at 11. He concludes that the Board did not err in failing to discuss Cottle or the provisions of 38 U.S.C. § 3104, or alternatively, that the error was harmless because Mr. Conniff has not demonstrated that VA caused his additional disabilities. Id. at 12. C. Whether Veteran's Commute Home From a VA Vocational Rehabilitation Class is an Essential Activity or Function of the Vocational Rehabilitation Program Section 3104 of title 38, U. S. Code, which defines the "Scope of Services and Assistance" of the VA vocational rehabilitation program, provides in part: (a) Services and assistance which the Secretary may provide under this chapter, The Court has cautioned against importing regulations from another body of benefits law in the adjudication of VA claims. See Beaty v. Brown, 6 Vet.App. 532, 538 (1994) ("There is no statutory or regulatory authority for the determinative application of SSA [Social Security Administration] regulations to the adjudication of VA claims."). For this reason, the Court does not find that consideration of the "coming and going" rule under the Workers' Compensation Act to be of assistance in resolving this case. The Court will not further discuss this argument. Section 3.361 applies to claims received by VA after October 1, 1997. 38 C. F.R. § 3.361(a)(1). Section 3.358 applies to claims received by VA prior to October 1, 1997. 38 C.F.R. § 3.358(a) (2012). As the Board noted, Mr. Conniff's claim was received in June 2007. R. at 7. Therefore, his arguments based on § 3.358 are misplaced. 5 4 5 pursuant to regulations which the Secretary shall prescribe, include the following: ***** (13) Travel and incidental expenses under the terms and conditions set forth in section 111 of this title, plus, in the case of a veteran who because of such veteran's disability has transportation expenses in addition to those incurred by persons not so disabled, a special transportation allowance to defray such additionalexpensesduringrehabilitation,jobseeking, andtheinitialemployment stage. ***** (15) Services necessary to enable a veteran to achieve maximum independence in daily living. 38 U.S.C. § 3104. Mr. Conniff points out that this Court has stated that the purpose of chapter 31 benefits is "'to provide all services and assistance necessary to enable veterans . . . to become employable and to maintain suitable employment.'" Id. (quoting Cottle, 14 Vet.App. at 332). "Consequently," Mr. Conniff reasons, he "was entitled to reimbursement for travel and incidental expenses during his vocational rehabilitation." Appellant's Br. at 10. Mr. Conniff concludes "that transportation to and from courses provided as a part of a vocational rehabilitation program is an 'essential activity or function' of that program." Id. at 10-11. He adds: There is no question that had Mr. Conniff sought reimbursement for transportation expenses to and from his vocational courses, VA would have been obligated to pay him. Where, like here, a veteran uses a mode of transportation that does not have any costs associated with it, that does not eviscerate the fact that transportation to and from classes is an essential activity or function necessary for participation in the program. Therefore, because Mr. Conniff was participating in an essential activity or function of his vocational program at the time of his disabling injuries, he is entitled to compensation under the provisions of 38 U.S.C. § 1151 for his additional disability. Id. at 11. This argument presents the issue whether a commute home from a vocational rehabilitation program is to be regarded as within the scope of the services that VA provides in connection with such a program. The record shows that this argument was amply presented to the Board. See R. at 124-27, 135-39, 237. The Board's purported reasoning, that "[i]t is manifestly obvious that riding a bicycle was not an 'essential activity or function' of this training, nor . . . a 'necessary component' of the training he was receiving" (R. at 13), mischaracterized rather than confronted Mr. Conniff's 6 argument. The issue presented is not whether the act of riding a bicycle is integral to the training VA authorized, but whether a participant's commute home from VA vocational rehabilitation class is within the scope of the rehabilitation services provided by VA as described in section 3104(a) and addressed in Cottle. Given Mr. Conniff's arguments, the Board's statement that it is "manifestly obvious" that riding a bicycle is not an "essential activity or function" or a "necessary component" of VA vocational rehabilitation training (38 C.F.R. § 3.361(d)(3); R. at 13), not only mischaracterizes the veteran's argument, it also does not contain the reasoned analysis needed to support an ultimate conclusion as to the question and to enable review by this Court. See Gilbert, 1 Vet.App. at 56-57. The Court will therefore set aside the Board decision and remand the case. On remand, the Board should address whether the commute to and from rehabilitation classes that are part of a program of vocational rehabilitation is an essential activity or function or necessary component of the rehabilitation services furnished by VA, in view of the Court's decision in Cottle and 38 U.S.C. §§ 3104(a)(13) & (15). As to proximatecause,thepertinent regulation states that "[t]he proximate cause ofdisability . . . is the action or event that directly caused the disability . . . as distinguished from a remote contributing cause." 38 C.F.R. § 3.361(d). In assessing proximate causation in the context of the VA vocational rehabilitation program specifically, the regulation provides that "[t]o establish that the provision of training and rehabilitation services [ ] proximately caused a veteran's additional disability . . . it must be shown that the veteran's participation in an essential activity or function of the training . . . proximately caused the disability." 38 C.F.R. § 3.361( d)(3). Here, the Board concluded: "[T]here is no proximal causal connection between the multiple injuries, involving the wrists, forearms, knees and left forehead, sustained in the June 2007 bicycle accident and an essential activity or function which was within the scope of the VA rehabilitation course." R. at 13. However, the Board concluded that there is no proximal causal connection between the veteran's conceded additional disability and an essential activity or function of the VA vocational rehabilitation program without adequate examination or explanation of whether an individual's commute to and from rehabilitation classes is an essential activity or necessary component of the vocational rehabilitation program and the scope of services listed in 38 U. S.C. § 3104. Therefore, the Board's conclusion as to proximate cause was premature–§ 3.361(b) informs VA's proximate 7 cause determination and is not irrelevant in this case. Therefore, the Board's failure to consider the "essential activity" language in light of section 3104(a) is not harmless error. See 38 U.S.C. § 7261(b)(2) (requiring the Court to take due account of prejudicial error). Remand will provide the Board the opportunity to assess proximate causation after full consideration of the veteran's argument that a vocational rehabilitation participant's commute to and from rehabilitation classes is an essential activity or function of the program. On remand, Mr. Conniff will be free to submit additional evidence and argument in support of his claim, and the Board is required to consider any such evidence and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). A final decision by the Board following the remand herein ordered will constitute a new decision that, if adverse, may be appealed to this Court on the filing of a new Notice of Appeal with the Court not later than 120 days after the date on which notice of the Board's new final decision is mailed to the appellant. See Marsh v. West, 11 Vet.App. 468, 472 (1998). III. CONCLUSION Based on the foregoing, the Court SETS ASIDE the Board's May 31, 2011, decision with respect to the section 1151 claim and remands the matter for readjudication consistent with this decision. DATED: January 2, 2013 Copies to: Judy J. Donegan, Esq. VA General Counsel (027) 8

Single Judge Application, 3.303(b); Only Requires Consistent Postservice Reoccurrence of the Same Symptoms

Excerpt from decision below: "Second, the Board's statement that intermittent but continuous symptoms –i.e., back and hip pain that occurred "off and on" since service–can never establish continuity of symptoms under § 3.303(b) is overbroad. R. at 10. Contrary to the Board's finding, continuity of symptoms under § 3.303(b) does not require that postservice symptoms be constant; it requires only the consistent postservice reoccurrence of the same symptoms experienced in service. For example, an episodic disability that occurs repeatedly after service may be subject to service connection via continuity of symptoms under § 3.303(b). See, e.g., Vanderpool v. Derwinski, 3 Vet.App. 273, 277-78 (1992)(remanding for the Board to consider whether the veteran's episodic headaches could be service connected based on, inter alia, continuity of symptomatology). The record in this case contains evidence of such reoccurring, episodic symptoms, which the Board appears to have impermissibly rejected based on its misunderstanding of § 3.303(b). R. at 329 (September 2007 NOD describing "chronic" low back and bilateral hip conditions beginning in May 1986, which "continue[d] throughout [her] military career" and necessitated "continual care and treatment"), 171 (June 2008 report of a history of back and hip pain "off and on since the 1980s," with episodes lasting one week at a time), 279 (July2008 report of back and hip pain beginning in 2005 that "comes and goes"), 166 (August 2008 report of a "history of low back pain going to both hips since [the] 1980s"), 141-42(August 2008 physical therapy records reflecting "constant" low back pain that began in 2004),86-93 9 (May2009 Board hearing testimony reflecting back and hip pain since an in- service incident in 1986 and exacerbated by the birth of her second child in 2005), 41 (December 2009 VA medical examination noting "back pain on and off since 1986"). The Board's failure to properly consider that potentially favorable evidence thus constitutes error. See Caluza, 7 Vet. App. at 506." ============================ ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 11-3573 TABITHA L. LYLES, 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 Tabitha L. Lyles, who is self-represented, appeals a July 26, 2011, Board of Veterans' Appeals (Board) decision denying entitlement to service connection for a low back strain and a bilateral hip strain.1 Record (R.) at 3-13. 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. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons that follow, the Court will set aside the July 2011 Board decision and remand the matter for further development, if necessary, and readjudication consistent with this decision. I. FACTS Ms. Lyles served on active duty in the U.S. Navy from December 1985 to March 2006. R. at 1117. Her service medical records (SMRs) reflect treatment for hip and back pain, variously diagnosed as mild muscle strain and musculoligamentous back pain. R. at 878 (May1986 complaint The Board also remanded Ms. Lyles's claimfor service connection for carpal tunnel syndrome of the left wrist. Because a remand is not a final decision of the Board subject to judicial review, the Court does not have jurisdiction to consider that claim at this time. See Howard v. Gober, 220 F.3d 1341, 1344 ( Fed. Cir. 2000); Breeden v. Principi, 17 Vet.App. 475, 478 (2004); 38 C.F.R. § 20.1100(b) (2012). 1 of hip and low back pain), 876 (July 1992 complaint of low back pain), 775 (July 1999 report of a history of low back pain), 739 (October 2004 complaint of postpartum back pain), 886 (December 2005 report of a history of back spasms for which she did not seek treatment), 889-90 (December 2005 report of a history of recurrent back pain and back spasms since an August 2005 cesarean section). However, no spine or musculoskeletal abnormalities were noted upon her separation from service. R. at 820-22. In February 2007, within one year from separation from service, Ms. Lyles filed a claim for service connection for, inter alia, low back strain and bilateral hip pain. R. at 416-26. She underwent a VA medical examination for those conditions in April 2007. R. at 372-77. Ms. Lyles complained of low back pain, weakness, and stiffness, as well as bilateral hip pain, weakness, and instability (R. at 372-73), but x-rays taken at that time revealed a normal lumbar spine and hips (R. at 376-77). Based on those x-rays, as well as a physical examination, the examiner diagnosed Ms. Lyles with lumbar and bilateral hip strains. R. at 375. Later that month, a VA regional office (RO) issued a decision denying entitlement to service connection for a low back strain and bilateral hip strain. R. at 356-67. Ms. Lyles filed a timely Notice of Disagreement (NOD) with that decision in September 2007, in which she asserted that her low back and bilateral hip conditions were "chronic and severe in nature," began in May 1986 and "continue[d] throughout [her] military career," and necessitated " continual care and treatment." R. at 329. She subsequently perfected her appeal.2 In the meantime, in October 2007, Ms. Lyles sought treatment for bilateral hip pain of one year's duration. R. at 287. X-rays taken at that time revealed "[n]ormal hips,"and she was diagnosed with a "chronic sacroiliac sprain."3 R. at 289-90. The Court notes that the record of proceedings does not contain the pages cited in the Secretary's brief regarding the filing of a Substantive Appeal. See Secretary's Brief (Br.) at 4 (citing R. at 240-45). The Court advises the Secretary to take greater care in compiling the record of proceedings, particularly in appeals with self-represented appellants. See U.S. VET. APP. R. 28.1(a) (requiring the Secretary to prepare and file the record of proceedings). "Sacroiliac" "denot[es] the joint or articulation between the sacrum and ilium and the ligaments associated therewith." DORLAND'SILLUSTRATEDMEDICALDICTIONARY1662 (32d ed. 2012) [ hereinafter DORLAND'S]. The sacrum is "the triangular bone just below the lumbar vertebrae." Id. The "ilium" or "iliac bone" is "the expansive superior portion of the ox coxae (hip bone)." Id. at 1341. 3 2 2 During a June 2008 neurological examination, Ms. Lyles reported a history of low back pain "off and on since the 1980s," which "goes to both hips." R. at 171. She was diagnosed with intermittent cervical spine pain, intermittent low back pain with radiation to the hips, and a history of bursitis of both hips. R. at 173. The following month, Ms. Lyles sought further treatment for bilateral sacroiliac joint pain that "comes and goes," which began after the birth of her second child in 2005. R. at 279. She was diagnosed with a back strain in the sacroiliac region. R. at 280. In August 2008, Ms. Lyles underwent another neurological examination, wherein she reported a "history of low back pain going to both hips since [the] 1980s." R. at 166. A review of past x-rays revealed a normal cervical and lumbar spine, and Ms. Lyles was again diagnosed with intermittent cervical spine pain, intermittent low back pain with radiation to the hips, and a history of bursitis of both hips. R. at 167. Later that month, Ms. Lyles began a physical therapy program to treat her lumbago, which she described as a "constant" low back pain that began four years earlier.4 R. at 141-42. In May2009, Ms. Lyles was again treated for low back and hip pain. R. at 144. X-rays taken the following month indicated that her spine was normal. R. at 145. Later that month, Ms. Lyles testified at a Board hearing. R. at 67-101. She stated that her back and hip pain began in service in 1986 after she jumped onto a refueling probe, and was exacerbated by lifting and carrying boxes of paper. R. at 86-87. She further explained that her back pain became "debilitating" after the birth of her second child in 2005. R. at 87. Military doctors initiallycharacterized herincreasedsymptoms aspostpartumpain, despiteherreports ofhavingbeen "pricked with a needle during an epidural." R. at 88. According to Ms. Lyles, her low back and hip pain continued after service and she sought treatment for those conditions as early as September 2006. R. at 88-93. In November 2009, the Board issued a decision that, in pertinent part, remanded her claims for serviceconnection forlowbackandbilateral hip strains for furtherdevelopment, including a new VA medical examination addressing the etiology of those conditions. R. at 52-64. 4 Lumbago is "a nonmedical term for any pain in the lower back." DORLAND'S at 1076. 3 Ms. Lyles attended that examination in December 2009. R. at 41-44. After reviewing her claims file, obtaining a subjective medical history, and performing a physical examination, the examiner diagnosed Ms. Lyles with a lumbosacral strain, bilateral sacroiliac joint dysfunction, and bilateral trochanteric bursitis.5 R. at 41-42. The examiner opined that it was "less likely as not" that Ms. Lyles's low back and bilateral hip disabilities were incurred in or aggravated by service. R. at 43. The examiner provided the following rationale for his opinion: The service treatment records indicated the veteran complained of back spasms after her C-section, but do not necessary [sic] indicate the presence of a chronic ongoing problem with her back. There is no medical treatment since 09/07/1992 for low back pain during service. The veteran was also seen on one occasion for left hip pain, on 05/06/1986, and was diagnosed with a mild muscle strain. Thus, there is a lack of clinical evidence to support the veteran's claim that her low back and hip disabilities were incurred in or aggravated by service. R. at 43-44. In July 2011, the Board issued the decision currently on appeal, which denied entitlement to service connection for a low back strain and a bilateral hip strain. R. at 3-13. The Board first found that "any statements of record made by the Veteran claiming that her disabilities were the result of an injury in service are not competent evidence of her disorders' etiologies as the Veteran is a lay person without the medical expertise to render such a diagnosis." R. at 9- 10 (citing Espiritu v. Derwinski, 2 Vet.App. 492, 494-95 (1992)). The Board therefore afforded her statements "little weight," instead favoring the negative nexus opinion from the December 2009 VA medical examiner. R. at 10. The Board also found that Ms. Lyles's statements of continuing back and hip pain since service did not establish continuity of symptoms because " several treatment records indicate that her pain was 'off and on' rather than continuous since her discharge from active military service." Id. Consequently, the Board found that the preponderance of the evidence was against her claims. R. at 10-11. This appeal followed. 5 "Trochanteric" refers to the "hip region." DORLAND'S at 1618. 4 II. ANALYSIS A. Claims on Appeal Asan initial matter, the Court notes that Ms. Lyles's informalbriefreferstoclaimsforservice connection for carpal tunnel syndrome of the right wrist, chronic rhinitis, and chronic sinusitis, none of which were the subject of the Board decision currentlyon appeal. See Appellant's Br. at 1-2. Ms. Lyles was awarded service connection for carpal tunnel syndrome of the right wrist in September 2008 (R. at 207-14) and for chronic rhinitis (also claimed as chronic sinusitis) in November 2009 (R. at 52-64). The record does not indicate that she disagreed with the disability evaluations or effective dates assigned for those conditions and, therefore, those issues are not in appellate status. See Holland v. Gober, 10 Vet.App. 433, 436 (1997) (holding that a claimant must file an NOD following an award of service connection if he or she wishes to appeal the downstream elements of disability evaluation or effective date (citing Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997))). A review of the June 2011 brief that Ms. Lyles's veterans service organization representative submitted to the Board confirms that she did not wish to appeal any aspect of the decisions awarding service connection for carpal tunnel syndrome of the right wrist, chronic rhinitis, or chronic sinusitis. R. at 16-19 (failing to mention those conditions and listing the issues on appeal as "Did the agency of original jurisdiction (AOJ) err when it denied service connection for low back strain? Did the AOJ err when it denied service connection for bilateral hip strain? Did the AOJ err when it denied service connection for carpal tunnel syndrome of the left wrist?"); see Fenderson v. West, 12 Vet.App. 119, 130 (1999) (examining the contents of a brief submitted to the Board to discern whether certain issues had been appealed). Absent a final Board decision addressing the awards of service connection for carpal tunnel syndrome of the right wrist and chronic rhinitis (also claimed as chronic sinusitis), the Court lacks jurisdiction to address Ms. Lyles's arguments related to those claims. See Howard, 220 F.3d at 1344. Likewise, Ms. Lyles's informal brief also contains arguments pertaining to her claim for service connection for carpal tunnel syndrome of the left wrist, which was remanded by the Board. See Appellant's Br. at 1-2. As explained in footnote 1, supra, a Board remand is not a final decision of the Board over which the Court has jurisdiction. See Howard, 220 F.3d at 1344; Breeden, 5 17 Vet.App. at 478; 38 C.F.R. § 20.1100(b). Therefore, the Court is also precluded from addressing arguments related to that claim. The only claims that the Board finally decided in the July 2011 decision currently on appeal are for service connection for low back and bilateral hip strains. R. at 3- 13. The Court therefore has jurisdiction to review the Board's decision on those claims. B. Service Connection for Low Back and Bilateral Hip Strains Ms. Lyles asserts that the Board's statement of reasons or bases for its decision was inadequate. Specifically, she expresses confusion as to why her back and hip disabilities were not consideredchronicdisabilitiesunder38C.F.R.§3.303(b)andwhytheBoard rejectedherstatements of continuity of symptoms. See Appellant's Br. at 1-2. The Court agrees that the Board failed to adequately explain its findings on those issues. 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 disease or injury and the current disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). However, service connection may also be established by demonstrating chronicity or continuity of symptoms. See Rose v. West, 11 Vet.App. 169, 171 (1998); Savage v. Gober, 10 Vet.App. 488, 495-98 (1997); 38 C.F.R. § 3.303(b) (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 Swann v. Brown, 5 Vet.App. 229, 232 (1993). "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 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 Board's statement of reasons or bases must be adequate to enable a claimant to understand the precise basis for the Board's decision and to facilitate review in this Court. Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). To comply with this requirement, the 6 Board must analyze the credibilityand probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 ( 1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). The Board is also required to consider and discuss all applicable provisions of law and regulation in its decision. 38 U.S.C. § 7104(a); see Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991). 1. Chronicity In the instant case, the Board did not expressly address whether Ms. Lyles's back and hip disabilities were chronic disabilities subject to service connection under § 3.303(b), despite her assertions thatthosedisabilitieswerechronicanddespiteevidencethatreasonablyraisedthat. See Robinson v. Peake, 21 Vet.App. 545, 553 (2008) (holding that the Board is required to consider all theories of service connection that are reasonably raised by the claimant or the evidence of record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). Specifically, in the NOD that precipitated this appeal, Ms. Lyles described her low back and bilateral hip disabilities as "chronic and severe in nature." R. at 329. The record contains evidence of back and hip pain beginning in May 1986 and continuing throughout and after service (R. at 86-93, 141-42, 144, 166- 67, 171, 173, 279-80, 287, 739, 775, 876, 878, 886, 889-90), as well as a postservice diagnosis of a "chronic sacroiliac sprain" in October 2007 (R. at 289). See Savage, 10 Vet.App. at 495 (holding that "evidence contemporaneous with service or the presumption period or evidence that is post service or post presumption period may suffice" to establish a chronic disability). Although a "diagnosis including the word'[c]hronic'" in and of itself is not sufficient to establish that a condition is chronic, such a diagnosis, alongwith repeated manifestationsofadisabilityin service, is sufficient to raise the issue of service connection based on a theory of chronicity. 38 C.F.R. § 3.303(b) ("For the showing of chronic disease in service thereis required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word '[c]hronic.'"). The Court is unpersuaded by the Secretary's contention that "the medical evidence does not indicate that [Ms. Lyles]'s conditions could be considered chronic." Secretary's Br. at 12. That argument is premised on the Secretary's interpretation of the medical and lay evidence of record, 7 which amounts to nothing more than an impermissible post hoc rationalization for the Board's actions. See Doty v. United States, 53 F.3d 1244, 1251 (Fed. Cir. 1995) (" 'Courts may not accept appellate counsel's post hoc rationalizations for agencyaction. It is well established that an agency's action must be upheld, if at all, on the basis articulated bythe agencyitself.'" (quoting Motor Vehicle Mfrs. Ass'n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50 (1983))). Moreover,theSecretary's relianceontheDecember2009VAmedicalexaminer's conclusion that Ms. Lyles's treatment records "did not indicate 'a chronic ongoing problem with her back'" is misplaced because the examiner's opinion is equivocal as to the presence of a chronic disability. Secretary's Br. at 12 (quoting R. at 44). That opinion states that Ms. Lyles's servicetreatment records "do not necessar[il]y indicate the presence of a chronic ongoing problem with her back" (R. at 43-44 (emphasis added)), which implies equally that her service treatment records do not necessarily preclude a finding that her back disability is chronic. See Obert v. Brown, 5 Vet.App. 30, 33 (1993) (stating that a medical opinion stating that a claimant "may" have been showing symptoms implied that the claimant "may not" have been showing symptoms). Thus, the December 2009 VA medical opinion is speculative, and therefore inadequate, with regard to the issue of the presence of a chronic low back disability, and the Secretary may not rely on it to support his argument.6 See Bloom v. West, 12 Vet.App. 185, 187 (1999) (holding that a medical opinion phrased in speculative terms is inadequate); Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992) (same). Accordingly,theCourt concludes thattheBoardprovidedaninadequatestatementofreasons or bases for its decision to deny Ms. Lyles service connection for low back and bilateral hip strains because it failed to address the reasonably raised issue of whether those disabilities were chronic.7 The December 2009 VA medical opiniondoes not contain a similar discussion of whether Ms. Lyles's bilateral hip strain is a chronic disability. The Court notes that the Board addressed whether Ms. Lyles's lay statements established continuity of symptoms, whichitwould not have been required to do unless it found that her back and hip disabilities were not chronic. See 38 C.F.R. § 3.303(b) ("Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned."). Evenifthe Board's discussion of continuityof symptoms evinces an implicit finding that those disabilities were not chronic, the Court would nevertheless find the Board's statement of reasons or bases inadequate because it did not provide any explanation for this finding, including why it rejected the potentially favorable evidence of chronicity outlined above. See Caluza, 7 Vet.App. at 506. 7 6 8 See Previous DocumentMassieNext Document v. Shinseki, 25 Vet.App. 123, 129 (2011) (citing Robinson, 557 F.3d at 1362); Schafrath, 1 Vet.App. at 593; Gilbert, 1 Vet.App. at 57. 2. Continuity of Symptoms The Board found that the evidence of record did not establish continuity of Ms. Lyles's back and hip symptoms because she only "sporadically sought treatment for back and hip pain after service" and "several treatment records indicate that her pain was 'off and on' rather than continuous since her discharge from active military service." R. at 10. The Court discerns several errors in this analysis. First, "symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet.App. at 496. Therefore, to the extent that the Board focused on the continuity of Ms. Lyles's postservice treatment, rather than the continuity of her postservice back and hip pain, it committed error. Second, the Board's statement that intermittent but continuous symptoms–i.e., back and hip pain that occurred "off and on" since service–can never establish continuity of symptoms under § 3.303(b) is overbroad. R. at 10. Contrary to the Board's finding, continuity of symptoms under § 3.303(b) does not require that postservice symptoms be constant; it requires only the consistent postservice reoccurrence of the same symptoms experienced in service. For example, an episodic disability that occurs repeatedly after service may be subject to service connection via continuity of symptoms under § 3.303(b). See, e.g., Vanderpool v. Derwinski, 3 Vet.App. 273, 277-78 (1992)(remanding for the Board to consider whether the veteran's episodic headaches could be service connected based on, inter alia, continuity of symptomatology). The record in this case contains evidence of such reoccurring, episodic symptoms, which the Board appears to have impermissibly rejected based on its misunderstanding of § 3.303(b). R. at 329 (September 2007 NOD describing "chronic" low back and bilateral hip conditions beginning in May 1986, which "continue[d] throughout [her] military career" and necessitated "continual care and treatment"), 171 (June 2008 report of a history of back and hip pain "off and on since the 1980s,"with episodes lasting one week at a time), 279 (July 2008 report of back and hip pain beginning in 2005 that "comes and goes"), 166 (August 2008 report of a "history of low back pain going to both hips since [the] 1980s"), 141-42 (August 2008 physical therapy records reflecting "constant" low back pain that beganin 2004),86-93 9 (May2009 Board hearing testimonyreflecting back and hip pain since an in- service incident in 1986 and exacerbated by the birth of her second child in 2005), 41 (December 2009 VA medical examination noting "back pain on and off since 1986"). The Board's failure to properlyconsider that potentially favorable evidence thus constitutes error. See Caluza, 7 Vet. App. at 506. The Secretary argues that any error in the Board's continuity-of-symptoms analysis was harmless because, "even if [Ms. Lyles] had demonstrated continuity of symptomatology, she still needed to present competent, credible evidence of a link between this symptomatologyand service," which she failed to do. Secretary's Br. at 13 (citing Savage, 10 Vet.App. at 495-96). The Secretary's argument is incorrect for two reasons. First, in order to establish continuity of symptoms, a claimant must demonstrate "a nexus between the present disability and the postservice symptomatology" that has continued since service, not a nexus between the symptoms and service. Barr v. Nicholson, 21 Vet.App. 303, 307 (2007) (citing Savage, 10 Vet.App. at 495-96); 38 C.F. R. § 3.303(b) (when chronicityin serviceisnotadequatelysupported,continuityofsymptoms afterdischargeisrequired). Second, although the Board found that "the record does not contain a competent medical opinion linking the disabilities to the Veteran's military service" (R. at 10-11), that finding is premised on the Board's categorical rejection of Ms. Lyles's lay statements regarding the etiology of her current low back and bilateral hip disabilities. Specifically, the Board acknowledged Ms. Lyles's statements that those disabilities were the result of in-service injuries, but determined that she was not competent to provide an etiological opinion solely because she was a lay person. R. at 9-10 ("[A]ny statements of record made by the Veteran claiming that her disabilities were the result of an injury in service are not competent evidence of her disorders' etiologies as the Veteran is a lay person without the medical expertise to render such a diagnosis." (citing, inter alia, Espiritu, 2 Vet.App. at 494-95)); R. at 10 ("Because the Veteran is not professionally qualified to offer an etiological opinion, her statements are afforded little weight as to the cause of her back and hip disabilities."). This view, however, has been soundly rejected by this Court and the U.S. Court of Appeals for the Federal Circuit. See Davidson v. Shinseki, 581 F.3d 1313, 1316 ( Fed. Cir. 2009) (stating that a lay person is not categorically incompetent to opine as to a nexus between a current disability and service); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) ( rejecting as "too broad" theCourt'sconclusionthatmedicalevidenceis requiredwhenthedeterminativeissueinvolves either 10 medical etiologyor a medical diagnosis); Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011) (holding that the Board's "categorical rejection" of lay evidence as not competent to establish the cause of a disability rendered its statement of reasons or bases inadequate). The Board's failure to engage in the proper analysis as to the existence of nexus evidence undermines the Board's finding that Ms. Lyles had not presented evidence sufficient to connect her postservice back and hip symptoms with her current back and hip disabilities, see Savage, 10 Vet.App. at 497 ( holding that lay evidence may be competent to establish the necessary relationship between a current disability and continuing, postservice symptoms), and thus prevents the Court from concluding that the foregoing errors were harmless, see 38 U.S.C. § 7261(b)(2) (requiring the Court to "take due account of the rule of prejudicial error"). Consequently, the Court concludes that the Board's erroneous treatment of Ms. Lyles's lay statements regarding continuity of symptoms also rendered its statement of reasons or bases inadequate. See Caluza, 7 Vet.App. at 506; Gilbert, 1 Vet.App. at 57. Remand of her claims for service connection for low back and bilateral hip strains is therefore warranted. 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."). Onremand,Ms. Lylesisfreeto submit additional argument and evidence in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). See Kay v. Principi, 16 Vet.App. 529, 534 (2002). 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. III. CONCLUSION Upon consideration of the foregoing, the July 26, 2011, Board decision is SET ASIDE and the matter is REMANDED for furtherdevelopment, if necessary, and readjudication consistent with this decision. DATED: December 13, 2012 11 Copies to: Tabitha L. Lyles VA General Counsel (027) 12