Vet Claim Research

Panel Decision, Mendoza v. Shinseki, No. 11-2953, Mandamus Compelling DIC Award

2012-02-10T07:56:00.001-08:00

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMSNO. 11-2953ISABEL D. MENDOZA, PETITIONER,V.ERIC K. SHINSEKI,SECRETARY OF VETERANS AFFAIRS, RESPONDENT.Before HAGEL, MOORMAN, and SCHOELEN, Judges.O R D E ROn September 29, 2011, Isabel D. Mendoza, who is self-represented, filed a petition for extraordinary relief in the nature of a writ of mandamus, seeking an order from this Court compelling the VA regional office in Manila, Phillippines, to either issue an adverse rating decision from whichshe can appeal or award her dependency and indemnity compensation benefits. A panel was formed on December 14, 2011, to consider Mrs. Mendoza's petition and, on January 10, 2012, the panel issued an order holding Mrs. Mendoza's petition in abeyance for 45 days and directing the Secretary to apprise the Court of the status of Mrs. Mendoza's claim every 15 days. On January 30, 2012, the Secretary filed a response with supporting documentation indicating that Mrs. Mendoza was awarded dependency and indemnity compensation benefits by the regional office in a January 20, 2012, rating decision.This Court adheres to the case-or-controversy jurisdictional restraints provided for in Article III of the U.S. Constitution. See Mokal v. Derwinski, 1 Vet.App. 12, 13-15 (1990). When the relief requested in a petition has been obtained, the appropriate course of action is for the Court to dismiss the petition as moot. See Thomas v. Brown, 9 Vet.App. 269, 270-71 (1996) (per curiam order).Accordingly, because the response filed by the Secretary indicates that Mrs. Mendoza has now received the requested relief, the Court will dismiss the instant motion as moot. Id.Upon consideration of the foregoing, it isORDERED that the September 29, 2011, petition is DISMISSED.DATED: February 9, 2012 PER CURIAM.Copies to:Isabel D. MendozaVA General Counsel (027)

Single Judge Application, Arneson v. Shinseki, 24 Vet.App. 379, 388-89 (2011), Prejudice Where Error Could of Made Difference

2012-02-08T11:27:00.001-08:00

Excerpt from decision below:"Here, because the Board did not believe it had jurisdiction over the issue,it did not address whether there were facts supporting an award of TDIU between the periods that were adjudicated separately, and after the last adjudication for TDIU. Remand is warranted for the Board to addressthis matter in the first instance. See Arneson v. Shinseki, 24 Vet.App.379, 388-89 (2011) (finding prejudice where error could have made a difference in outcome); Tucker v. West, 11 Vet.App. 369, 374(1998)(remand is appropriate"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"); Webster v. Derwinski, 1 Vet.App. 155, 159 (1991) (Court is not to conduct de novo factfinding but rather to remand for the Board to find facts in the firstinstance, subject to later2review by Court)."========================----------------------------------------------------Designated for electronic publication onlyUNITED STATES COURT OF APPEALS FOR VETERANS CLAIMSNo. 10-3176ANTHONY G. HARRIS, APPELLANT,V.ERIC K. SHINSEKI,SECRETARY OF VETERANS AFFAIRS, APPELLEE.Before KASOLD, Chief Judge.MEMORANDUM DECISIONNote: Pursuant to U.S. Vet. App. R. 30(a),this action may not be cited as precedent.KASOLD, Chief Judge: Veteran Anthony G. Harris appeals pro se a July 14,2010, decisionof the Board of Veterans' Appeals (Board) that denied his claim for adisability rating in excess of20% for a right-knee disability from February 1 to October 14, 2005, andfrom January1, 2006, toFebruary 2, 2010, and determined it lacked jurisdiction over entitlementto total disability based onindividual unemployability (TDIU). Mr. Harris argues that the Board erredby (1) not properlyapplying 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5257 (2011) and DC 5003,and (2) not findingthat he has been totallydisabled since 2005. The Secretarydisputes thesecontentions. Single-judgedisposition is appropriate. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasonsstated below, the decision of the Board will be affirmed in part, and setaside in part, and the matterremanded for further adjudication.Although Mr. Harris argues that the Board did not properly apply DCs 5257and 5003, hefails to demonstrate how the Board misapplied these DCs, or that the Boarderred in its rating, anderror is not discerned on review of the record of proceedings. SeeJohnston v. Brown, 10 Vet.App.80, 84 (1997) (holding that the Board's decision regarding the degree ofdisability under the ratingschedule is a finding of fact subject to the "clearly erroneous" standardof review); Gilbert v.Derwinski, 1 Vet.App. 49, 52 (1990) ("'A finding is "clearly erroneous"when although there isevidence to support it, the reviewing court on the entire evidence isleft with the definite and firmconviction thatamistakehasbeencommitted.'"(quotingUnitedStatesv.U.S.GypsumCo., 333 U.S.364, 395 (1948))); see also Stankevich v. Nicholson, 19 Vet.App. 470, 472 (2006) (stating that "theCourt reviews the selection of a DC under the [']arbitrary-and-capricious['] standard of review").With regard to TDIU, the Board noted that Mr. Harris had March 2005 andJanuary 2007requests for TDIU denied in July 2006 and February 2008, respectively, andtheir denials were notappealed. The Board therefore concluded that it did not have jurisdictionover the issue. Althoughthe Board is correct with regard to the periods covered by the July 2006and February 2008decisions, such decision did not divest the Board of jurisdiction overtheissue of TDIU for the periodbetween July 2006 and January 2007 and after February 2008. This isbecause potential entitlementto TDIU is part of every claim for disability compensation. See Rice v.Shinseki, 22 Vet.App. 447,454-55 (2009) (TDIU "is part and parcel of the determination of theinitial rating for [a] disability").Although the Secretaryand the Board can separate parts of a claim anddevelop and adjudicate themseparately, see Fagre v. Peake, 22 Vet.App. 188, 191 n.4 (2008) (notingthe Secretary is free to"issu[e] separate Board decisions with regard to each,some,oralldisabilitiesclaimedbya veteran"),TDIU remains a component of an increased rating claim for any period notadjudicated separately,and the Board has jurisdiction over the issue as long as it hasjurisdiction over an increased ratingclaim, see Rice, supra. Evidence of unemployability subsequent to adecision denying TDIU andwhile a claim for increased benefits is still being processed may lead toan award of TDIU for thetime period under adjudication.Here, because the Board did not believe it had jurisdiction over the issue,it did not addresswhether there were facts supporting an award of TDIU between the periodsthat were adjudicatedseparately, and after the last adjudication for TDIU. Remand is warrantedfor the Board to addressthis matter in the first instance. See ArnesonNext Document v. Shinseki, 24 Vet.App.379, 388-89 (2011) (findingprejudice where error could have made a difference in outcome); Tucker v.West, 11 Vet.App. 369,374(1998)(remandis appropriate"wheretheBoardhasincorrectlyappliedthelaw,failedto providean adequate statement of reasons or bases for its determinations, or wherethe record is otherwiseinadequate"); Webster v. Derwinski, 1 Vet.App. 155, 159 (1991) (Court isnot to conduct de novofactfinding but rather to remand for the Board to find facts in the firstinstance, subject to later2review by Court).On remand, Mr. Harris may present, and the Board must consider, anyadditional evidenceand argument in support of the matter remanded. See Kay v. Principi, 16Vet.App. 529, 534 (2002).The remanded matter is to be provided expeditious treatment. See 38 U.S.C.§ 7112.Upon consideration of the foregoing, that part of the Board's July 14,2010, decision thatfound the Board did not have jurisdiction over TDIU is SET ASIDE and thematter REMANDEDfor further adjudication consistent with this opinion, and the remainderof the Board's decision isAFFIRMED.DATED: February 6, 2012Copies to:Anthony G. HarrisVA General Counsel (027)3

Court Order MISC. NO. 04-12, Prior 120 Day Violation Dismissals Now Appealable

2012-02-07T07:56:00.000-08:00

Excerpt from Court Order below:"Accordingly, it is ORDERED that, not later than 120 days after the date of this order, any appellant whose appeal was dismissed pursuant to Henderson I may move the Court to recall mandate premised on an argument that the time to file the Notice of Appeal in such case warrants equitable tolling under Bove."=====================================UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMSMISC. NO. 04-12IN RE: TIMELINESS OF APPEALS AND BOVE V. SHINSEKI, __ VET.APP. __, NO. 08-1468, 2011WL 6364587 (PER CURIAM ORDER DEC. 20, 2011).Before KASOLD, Chief Judge, and HAGEL, MOORMAN, LANCE,DAVIS, and SCHOELEN, Judges.O R D E RPursuant to 38 U.S.C. § 7264 (investing rule-making authority in the Court) and Rule 2 of the Court's Rules of Practice and Procedure (Rules) (Court may suspend its Rules), the Court has determined the need to issue a general order in light of two recent decisions fundamentally and uniquely affecting the Court's treatment of the 120-day filing period in which to file an appeal at the Court, as required by 38 U.S.C. § 7266(a). First, the U.S. Supreme Court determined in Henderson v. Shinseki, 131 S. Ct. 1197, 1206 (2011) (Henderson III), that the 120-day filing period is not ajurisdictional prerequisite to an appeal but rather an "important procedural rule." Second, this Court determined in Bove v. Shinseki, __ Vet.App. __, No. 08-1468, 2011 WL 6364587 (per curiam order Dec. 20, 2011), that the 120-day filing period is subject to equitable tolling within the parametersof the precedential decisions on equitable tolling that predated this Court's now-overruled decision in Henderson v. Peake, 22 Vet.App. 217 (2008) (Henderson I) (relying on Bowles v. Russell, 551 U.S. 205 (2007), and holding that the 120-day filing period was jurisdictional and not subject toequitable tolling), aff'd sub nom., Henderson v. Shinseki, 589 F.3d 1201 (Fed.Cir. 2009) (en banc)(Henderson II), rev'd, Henderson III.Subsequent to Henderson I and prior to Bove, a number of appeals were dismissed for untimely filing and lack of jurisdiction, without consideration of the appellants' equitable tolling arguments. Mandate has entered in many of those decisions. In the interests of justice, for any such appellant the Court will consider a motion to recall mandate premised on an argument that the time to file the Notice of Appeal in such case warrants equitable tolling under Bove, provided such motion and argument are filed within 120 days of this order. The appeals affected by this order were all dismissed by the Court between July 24, 2008, and December 20, 2011.Accordingly, it is ORDERED that, not later than 120 days after the date of this order, any appellant whose appeal was dismissed pursuant to Henderson I may move the Court to recall mandate premised on an argument that the time to file the Notice of Appeal in such case warrants equitable tolling under Bove. It is further ORDERED that, not later than 14 days after the filing of any motion pursuant to this order, the Secretary may file a response.DATED: February 7, 2012 PER CURIAM.[Clerk's Note: Motions to recall mandate should conform to Rule 27 of the Court's Rules of Practice and Procedure, and should be submitted via: (1) mail, personal delivery, or other delivery service; (2) fax to (202)501-5848; or (3) email to efiling@uscourts.cavc.gov.]

Single Judge Application, Kahana, 24 Vet.App. at 435, Board Inference of Medical Determination Must be Cited

2012-01-30T09:03:00.001-08:00

Excerpt from decision below;"However, this Court finds "the only permissible view of the evidence" is that the daughter's statement is a credible report supporting continuity of headaches dating back to service and rebutting the assertion that the veteran's complaints are a recent fabrication. Gutierrez v. Principi, 19 Vet.App. 1, 10 (2004) (citing Johnson v. Brown, 9 Vet.App. 7, 10 (1996)); see FED. R. EVID. 801(d)(1), supra.Furthermore, since the March 2010 remand, this Court has clarified thecircumstances under which the Board can properly draw an inference based on the absence of evidence. In Kahana v. Shinseki, 24 Vet.App. 428 (2011), it was noted that "when a Board inference results in a medical determination, the basis for that inference must be independent and it must be cited." Kahana, 24 Vet.App. at 435; see also id. at 438 (Lance, J., concurring) (discussing the distinction between cases in which there is a complete absence of any evidence to corroborate or contradict the testimony and cases in which there is evidence that is relevant either because it speaks directly to the issue or allows the Board as factfinder to draw a reasonable inference).In this case, the Board inferred that, because the appellant did not havedocumentation of seeking medical treatment for his headaches until decades after service, his lay testimony regarding a continuity of symptomatology was not credible.However, without independent medical confirmation that the appellant's headaches are the type for which treatment would likely have been sought, the Board's inference was improper."==============================================Skip navigationU.S. Court of Appeals for Veterans ClaimsView | Download | Details Previous document | Next document . 10-2827PadillaF_10-2827.pdfSearch Terms: KAHANA Author: lzobristCreationDate: 01/17/2012 13:22:26Creator: PScript5.dll Version 5.2.2ModDate: 01/27/2012 15:45:53Producer: Acrobat Distiller 9.4.6 (Windows)Title: C:\Users\lzobrist\Desktop\Yohan\Padilla 10-2827 MemDec Reverse.wpdX_XMPTK: Adobe XMP Core 4.2.1-c043 52.372728, 2009/01/18-15:08:04X_XMPMETA_XMP_CREATORTOOL: PScript5.dll Version 5.2.2X_XMPMETA_XMP_MODIFYDATE: 01/27/2012 15:45:53X_XMPMETA_XMP_CREATEDATE: 01/17/2012 13:22:26X_XMPMETA_XMP_METADATADATE: 01/27/2012 15:45:53X_XMPMETA_DC_FORMAT: application/pdfX_XMPMETA_DC_TITLE: C:\Users\lzobrist\Desktop\Yohan\Padilla 10-2827 MemDecReverse.wpdX_XMPMETA_DC_CREATOR: lzobristX_XMPMETA_PDF_PRODUCER: Acrobat Distiller 9.4.6 (Windows)X_XMPMETA_XMPMM_DOCUMENTID: uuid:77eb4523-8d0e-4156-9bf9-80a95c13ceb0X_XMPMETA_XMPMM_INSTANCEID: uuid:b9859de6-62e6-44d5-a7b7-1337870e77ca----------------------------------------------------Designated for electronic publication onlyUNITED STATES COURT OF APPEALS FOR VETERANS CLAIMSNO. 10-2827FUNDADOR PADILLA, APPELLANT,V.ERIC K. SHINSEKI,SECRETARY OF VETERANS AFFAIRS, APPELLEE.Before LANCE, Judge.MEMORANDUM DECISIONNote: Pursuant to U.S. Vet. App. R. 30(a),this action may not be cited as precedent.LANCE, Judge: The appellant, Fundador Padilla, through counsel, appeals anAugust 23,2010, Board of Veterans' Appeals (Board) decision that denied his claimfor entitlement to serviceconnection for residuals of a head injury. Record (R.) at 3-20. Single-judge disposition isappropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). Thisappeal is timely and theCourt has jurisdiction over the case pursuant to 38 U.S.C. §§ 7252(a)and 7266. For the reasons thatfollow, the Court will reverse the Board's August 23, 2010, decision andremand for VA to assigna disability rating and effective date.I. FACTSThe appellant served in the U.S. Army from February 1952 to September 1957.R. at 708.In December 1994, the appellant filed a claim for entitlement to serviceconnection for headachesas a result of a head injury suffered during basic training. R. at 681-84.The appellant has describedthe incident as a fall during basic training in which he hit the back ofhis head but did not report theinjury because he believed he would be thrown out of the service ifinjured. R. at 479-99, 570, 647,681. He states that he has had headaches regularly since that incident. Healso reported seekingtreatment for these headache while stationed in Germany and Japan, but hisservice medical records(SMRs) are presumed destroyed in the 1973 National Personnel RecordsCenter (NPRC) fire andare unavailable. R. at 479-99, 647, 661, 682.II. ANALYSISThis claim has been the subject of a lengthy adjudicative process,including three jointmotions for remand (December 2000, April 2006, and February 2008) and aremand from this Courtin March 2010. R. at 120-24, 277-84, 462-65; Padilla v. Shinseki, No. 08-2785, 2010 WL 1252145(March 20, 2010) (table). The March 2010 remand was issued for the Boardto consider the laystatement submitted by the appellant's daughter. Padilla, 2010 WL 1252145at *2. The Board, inthe decision on appeal, considered the daughter's lay statement butdetermined it did "not providea continuity of symptomatology." R. at 20.The Board found the daughter's statements not probative because: (1) thedaughter was bornseveral years after the incident occurred, possibly during the appellant'sactive duty service, and istherefore relying on hearsay evidence from her mother that an in-serviceincident occurred; (2) theappellant's daughter is not competent to diagnose the etiology of theappellant's headaches; (3) thestatement recalled events from 40 years' prior and was therefore ofquestionable accuracy; and (4)the daughter may be biased by familial relationship. R. at 19-20.The Board's analysis is faulty. First, it is an exception to the hearsayrule that the priorconsistent statements of the declarant may be admitted to rebut aninference of fabrication. FED. R.EVID. 801(d)(1). In this case, the Board found the appellant not crediblebecause, inter alia, nearly40 years passed before he sought medical treatment. R. at 18. The Courtconcludes that this hearsayevidence meets the exception and rebuts the Board's determination that theappellant's symptomswere a recent development. R. at 10. Second, the daughter's statement wasnot provided to confirm etiology, but rather to provide evidence supporting a continuity of symptomatology, and she is competent to report whether her father suffered from headaches, as the Board acknowledges. Id., Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay persons are generally competent to provide evidence on observable symptoms).Third, as the appellant's daughter was reporting a continuity ofsymptomatology, observed over the last 40 years and continuing to the present, she was not attempting to recall the specific details of a single incident that occurred 40 years ago. Thus, the Court is not persuaded that the2length of time the appellant's symptoms were observed is as subject to "the frailty of human memories" as the Board suggests. R. at 19. Fourth, while the Board may consider bias in assessing lay statements, Caluza v. Brown, 7 Vet.App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604(Fed. Cir. 1996) (table), the Board may not find lay statements incrediblemerely because they are provided by family members, as this would render all familial lay statements per se not credible, an absurd result.Because the Board did not find the daughter's lay statement probative, itdetermined that the appellant's own lay statement was still not probative. R. at 20. However, this Court finds "the only permissible view of the evidence" is that the daughter's statement is a credible report supporting a continuity of headaches dating back to service and rebutting the assertionthat the veteran's complaints are a recent fabrication. Gutierrez v. Principi, 19 Vet.App. 1, 10 (2004) (citing Johnson v. Brown, 9 Vet.App. 7, 10 (1996)); see FED. R. EVID. 801(d)(1), supra.Furthermore, since the March 2010 remand, this Court has clarified thecircumstances under which the Board can properly draw an inference based on the absence of evidence. In Kahana v. Shinseki, 24 Vet.App. 428 (2011), it was noted that "when a Board inference results in a medical determination, the basis for that inference must be independent and it must be cited." Kahana, 24 Vet.App. at 435; see also id. at 438 (Lance, J., concurring) (discussing the distinction between cases in which there is a complete absence of any evidence to corroborate or contradict thetestimony and cases in which there is evidence that is relevant eitherbecause it speaks directly to the issue or allows the Board as factfinder to draw a reasonable inference).In this case, the Board inferred that, because the appellant did not havedocumentation of seeking medical treatment for his headaches until decades after service, his lay testimony regarding a continuity of symptomatology was not credible.However, without independent medical confirmation that the appellant's headaches are the type for which treatment would likely have beensought, the Board's inference was improper. The Court concludes that whenthe daughter's lay testimony is combined with the appellant's, the preponderance of evidence is in the appellant's favor that an in-service injury occurred and that it is connected to service through a theory of continuity of symptomatology.Because the Board found the appellant's testimony incredible, it discounted as not probative any medical examinations supporting a nexus to service. R. at 10-11.However, as the Court3concludes that the daughter's and the appellant's lay statements arecredible, this objection is no longer valid. There is a medical opinion of record from May 2006 linking the appellant's headaches to his in-service trauma. R. at 18. Of the three remaining medical examinations of record, one found the appellant's headaches were not related to trauma, but did notconsider the claims file or provide a rationale, and the other two were inconclusive on the relationship between the appellant's headaches and his in-service incident, in part because the in-service incident had not been established as fact. R. at 133, 571, 651. The Court concludes that, in the absence of any other definitive medical opinions to the contrary, the 2006 medical opinion is probative. Therefore, the evidence is at least in equipoise as to the appellant's claim for entitlement to service connection for residuals of a head injury, and the Court will reverse the Board's August 23, 2010, decision and remand for VA to assign a disability rating and effective date.III. CONCLUSIONAfter consideration of the appellant's and the Secretary's briefs, and areview of the record,the Board's August 23, 2010, decision is REVERSED and the matter isREMANDED to the Boardfor further proceedings consistent with this decisionDATED: January 17, 2012Copies to:Judy J. Donegan, Esq.VA General Counsel (027)4

Federal Circuit, 38 C.F.R § 3.304(f) Amendments, Decided: January 20, 2012, Private Practitioner Reports

2012-01-20T13:35:00.001-08:00

Excerpt from decision below:"To the extent Petitioners contend that the VA must consider private practitioner’s reports in all circumstances, Congress has directly addressed that issue here and concluded only that the VA “may” accept such reports. Also, the new rule does not require a VA confirma-11 NATIONAL ORG OF VETERANS ADV v. VAtion of a medical examination by a private practitioner. As such, the rule is not in direct conflict with § 5125.======================================================"The statute is clear that the Secretary shall consider all medical evidence and give the benefit of the doubt to the claimant when there is an approximate balance of evidence. What is not expressed is what that consideration entails or what weight any given piece of evidence is to carry. Those questions were left to the Secretary to determine under 38 U.S.C. § 501(a). The new rule is an exercise of that authority, and it is not in conflict with § 5107(b). The new rule, moreover, does not actually pit one set of evidence against another. Rather, it provides several options for establishing service connection under either a VA examination or a private physician examination.=========================United States Court of Appeals for the Federal Circuit__________________________NATIONAL ORGANIZATION OF VETERANS’ ADVOCATES, INC.,Petitioner,v.SECRETARY OF VETERANS AFFAIRS,Respondent.__________________________PARALYZED VETERANS OF AMERICA,Petitioner,v.SECRETARY OF VETERANS AFFAIRS,Respondent.__________________________VETERANS OF MODERN WARFAREAND NATIONAL VETERANS LEGAL SERVICES PROGRAM,Petitioners,v.SECRETARY OF VETERANS AFFAIRS,Respondent.__________________________WOUNDED WARRIOR PROJECTAND VIETNAM VETERANS OF AMERICA,Petitioners,NATIONAL ORG OF VETERANS ADV v. VA 2v.SECRETARY OF VETERANS AFFAIRS,Respondent.__________________________2010-7136, -7139, -7142, 2011-7041__________________________On petition for review pursuant to 38 U.S.C. Section 502.______________________________Decided: January 20, 2012______________________________DAVID H. TENNANT, Nixon Peabody, LLP, of Rochester, New York, argued for petitioner. On the brief were RICHARD P. COHEN, National Organization of Veterans’ Advocates, Inc., of Washington, DC; and DOUGLAS J. ROSINSKI, Pillsbury Winthrop Shaw Pittman, LLP, of San Francisco, California.MICHAEL P. HORAN, Deputy General Counsel, Paralyzed Veterans of America, of Washington, DC, argued for petitioner. With him on the brief were WILLIAM S. MAILANDER, General Counsel, and JENNIFER A. ZAJAC, Assistant General Counsel.BARTON F. STICHMAN, National Veterans Legal Services Program, of Washington, DC, argued for the petitioners. Of counsel on the brief were STEPHEN B. KINNAIRD and SEAN D. UNGER, Paul Hastings Janofsky & Walker, LLP, of Washington, DC.3 NATIONAL ORG OF VETERANS ADV v. VASCOTT D. AUSTIN, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued respondent. With him on the brief were TONY WEST, Assistant Attor-ney General, JEANNE E. DAVIDSON, Director, and MARTIN F. HOCKEY, JR., Assistant Director. Of counsel on the brief were MICHAEL J. TIMINSKI, Deputy Assistant Gen-eral Counsel, and MARTIE ADELMAN, Attorney, of United States Department of Veterans Affairs, of Washington, DC.MICHAEL WISHNIE, Veterans Legal Services Clinic, of New Haven, Connecticut, for amici curiae. With him on the brief was JEFFREY SELBIN.__________________________Before NEWMAN, O’MALLEY, and REYNA, Circuit Judges.REYNA, Circuit Judge.The National Organization of Veterans Advocates, Paralyzed Veterans of America, Veterans of Modern Warfare and National Veterans Legal Services (collec-tively “Petitioners”) challenge a rule issued by the Secretary of Veterans Affairs (“Secretary”) amending 38 C.F.R § 3.304(f) with respect to claims for service-connected disability benefits for posttraumatic stress disorder (“PTSD”). Petitioners contend that the new rule is con-trary to existing statutes and arbitrary and capricious in nature. We conclude that the new rule is a permissible application of the statute by the Secretary and not in violation of any law or rule. We therefore deny the petition.IThe rule at issue here concerns PTSD. The Diagnostic and Statistical Manual of Mental Disorders, FourthNATIONAL ORG OF VETERANS ADV v. VA 4Edition (“DSM-IV”), classifies PTSD as an anxiety disor-der. A person may develop PTSD after exposure to a stress inducing event, such as threatened death or serious injury. Persons suffering from PTSD reexperience the traumatic event in several ways, including nightmares, flashbacks, and physiological or psychological reactions to stimuli reminiscent of the damaging experience. As a result, those suffering from PTSD may remove themselves from the world and those around them in an effort to avoid that which could trigger a response. Tragically, an estimated ten to thirty percent of United States Armed Services personnel will develop PTSD within a year of leaving combat. See Nat’l Council on Disability, Invisible Wounds: Serving Service Members and Veterans with PTSD and TBI 2-3 (Mar. 4, 2009), available at http://www.ncd.gov/publications/2009/March042009 (“Invisible Wounds”).The United States has deployed over 1.6 million troops in the recent wars in Iraq and Afghanistan. Id. at 8. Those conflicts have been characterized by guerilla warfare tactics and the inherent uncertainty that comes with it. Moreover, many troops have served multiple tours of duty with little respite in between. It is no sur-prise that these conditions are particularly likely to lead to increased incidences of PTSD. See id. at 21-23.The troops who return home and develop PTSD are often faced with more than reliving the horrors of war. Veterans with PTSD suffer from more chronic conditions and have shorter life spans than veterans without PTSD. PTSD has also been linked to higher divorce rates and joblessness. Id. at 18. Against this backdrop, the Secretary amended the Department of Veterans Affairs (“VA”) regulations to address the serious problem of troops returning home with PTSD.5 NATIONAL ORG OF VETERANS ADV v. VAIILike other injuries, veterans who suffer from service-connected PTSD are eligible for benefits. The Secretary has the authority to issue regulations which establish the requirements for veterans to qualify for service-connected PTSD injuries. 38 U.S.C. § 501(a). Specific rules govern the diagnosis of PTSD and the evidence required to con-nect a diagnosis to military service. Generally, a finding of PTSD service-connection requires three components: “medical evidence diagnosing the condition in accordance with § 4.125(a) of this chapter; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred.” 38 C.F.R. § 3.304(f).The VA proposed a rule on August 24, 2009, creating an additional situation where a veteran could establish PTSD service-connection without supporting evidence regarding the claimed in-service stressor. Stressor De-terminations for Posttraumatic Stress Disorder, 74 Fed. Reg. 42,617 (Aug. 24, 2009). That rule, codified at 38 C.F.R. § 3.304(f)(3), is at issue here:If a stressor claimed by a veteran is related to the veteran’s fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of posttraumatic stress disorder and that the veteran’s symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimedNATIONAL ORG OF VETERANS ADV v. VA 6in-service stressor. For purposes of this paragraph, “fear of hostile military or terrorist activity” means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or seri-ous injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran’s re-sponse to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror.The new rule has three features relevant to this challenge: one, it allows a veteran to establish PTSD without supporting evidence; two, the lower evidentiary standard only applies if a VA psychologist or psychiatrist, or one who has contracted with the VA, confirms the claimed-stressor supports the diagnosis; and three, it defines the veteran’s “fear of hostile military or terrorist activity” as involving a response characterized by “a psychological or psycho-physiological state of fear, helplessness, or horror.” Id. As explained by the Secretary at oral argument, the rule does not require a VA practitioner to confirm the diagnosis of PTSD. Rather, a VA practitioner is only required to confirm that the claimed-stressor supports the diagnosis.The VA explained that the rule was “intended to ac-knowledge the inherently stressful nature” of serving where “hostile military or terrorist activities [are] ongoing.” 74 Fed. Reg. at 42,617. The goal was “to facilitate the timely VA processing of PTSD claims by simplifying the development and research procedures that apply to7 NATIONAL ORG OF VETERANS ADV v. VAthese claims.” Id. Pursuant to procedure, the VA invited responses to the proposed rule and received 126 comments, including critiques, from various organizations, including Petitioners here.The VA responded to the comments but left the rule as proposed. 75 Fed. Reg. 39,843 (July 13, 2010). The majority of comments were aimed at the rule’s distinction between private psychologists and psychiatrists and those employed or associated with the VA. The comments suggested that the new rule should extend to all qualified practitioners. The VA declined to extend the rule beyond VA practitioners, explaining that PTSD diagnoses are “particularly complex.” Id. at 39,847. This complexity was only increased as the new rule added an extra wrinkle—the examiner would now also make the “forensic” determination that the claimed-stressor as described by the veteran was sufficient to support a PTSD diagnosis. See id.VA practitioners, the VA contended, were particularly able to make this forensic determination for several reasons: First, VA practitioners are given specific instruction on how to conduct PTSD examinations, including guidance materials and a certification process. Id. Second, the VA reviews the quality of its practitioners’ examinations, including taking steps to address identifiable problems with feedback and training. Id. Third, the VA provides VA associated practitioners with the veterans’ claims folders in connection with all mental-disorder examinations, including PTSD examinations. Id. The practitioners are in turn instructed that a PTSD diagnosis cannot occur without a review of the folder. In contrast, private practitioners do not have direct access to a veteran’s claims folder. Id. at 39,847-48. Fourth, the VA noted that limiting the rule to VA associated practitioners would “ensure standardization and consistency.” Id. atNATIONAL ORG OF VETERANS ADV v. VA 839,848. The consistency would be a product of both the large number of PTSD examinations performed by VA practitioners and the review of those examinations by the VA. Because the VA does not control the quality of private practitioners’ examinations, it could not ensure, manage, or develop the same level of quality and consistency. For these reasons, the VA opted to leave the rule as proposed. Id.Petitioners subsequently filed a timely petition to review the final rule. This court has jurisdiction to review the validity of the final rule under 38 U.S.C. § 502. The review is conducted in accordance with 5 U.S.C. § 706 of the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701 et seq.IIIWe examine the regulation here under the framework provided in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). First, we must determine “whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter . . . .” Id. at 842. Second, if “Congress has not directly addressed the precise question at issue,” we must determine if the Secretary’s regulation is “based on a permissible construction of the statute.” Id. at 843. The agency’s regulation will stand unless it is “arbitrary or capricious in substance, or manifestly contrary to the statute.” United States v. Mead Corp., 533 U.S. 218, 227 (2001).IVOn appeal, Petitioners assert that the new VA rule: (1) conflicts with statutes and regulations that require the VA to consider all medical evidence on a case-by-case basis, including evidence from private physicians, and9 NATIONAL ORG OF VETERANS ADV v. VAthat require the VA to give the veteran the benefit of the doubt when considering all evidence in the record; (2) improperly includes language that is not required in the DSM-IV; and (3) should be set aside as arbitrary and capricious on grounds that none of the VA’s proffered explanations provides a rational basis for excluding private doctors’ opinions. We address each argument in turn.A. The VA RuleThe Secretary issued the rule pursuant to 38 U.S.C. § 501(a). That statute provides the Secretary with the ability to prescribe all “necessary” and “appropriate” rules to carry out the laws administered by the VA, including “regulations with respect to the nature and extent of proof and evidence and the method of taking and furnishing them in order to establish the right to benefits under such laws . . . .” 38 U.S.C. § 501(a)(1). Congress’s delegation of authority here was broad. Nonetheless, Petitioners contend that the regulation is in conflict with several statutes and is therefore contrary to law. We disagree and find that Congress has not spoken on the precise issue addressed by the new rule.First, Petitioners contend that the regulation is contrary to 38 U.S.C. § 1154(a). Section 1154(a) requires that the Secretary’s regulations concerning veterans’ benefits claims give “due consideration” to “the places, types, and circumstances of such veteran’s service” including “all pertinent medical and lay evidence.” 38 U.S.C. § 1154(a). Petitioners contend that because the regulation allows for a PTSD service connection to be established based on a VA practitioner’s conclusion without corroborating evidence but not a private practitioner’s, the rule does not give “due consideration” to all medical evidence.NATIONAL ORG OF VETERANS ADV v. VA 10Petitioners’ argument reads too much into the phrase “due consideration.” Rather than directly addressing what “due consideration” entailed, Congress left that task to the Secretary. See id.; 38 U.S.C. § 501(a)(1). Under the regulation, a private practitioner’s examination will be considered along with a VA practitioner’s assuming there is also corroborating evidence of the claimed stressor. The new rule, however, provides a relaxed evidentiary stan-dard only where a VA practitioner concludes that the claimed-stressor occurred. Because the phrase “due consideration” is unambiguous and private examinations are considered in the normal course of a PTSD determination, the new rule cannot be said to directly conflict with § 1154(a).Second, Petitioners contend that the regulation is contrary to 38 U.S.C. § 5125, which provides that:For purposes of establishing any claim for benefits under chapter 11 or 15 of this title, a report of a medical examination administered by a private physician that is provided by a claimant in support of a claim for benefits under that chapter may be accepted without a requirement for confirmation by an examination by a physician employed by the Veterans Health Administration if the report is sufficiently complete to be adequate for the purpose of adjudicating such claim.The key word in the statute is “may.” The VA “may” accept a private physician’s report, but it does not have to. See id. To the extent Petitioners contend that the VA must consider private practitioner’s reports in all circumstances, Congress has directly addressed that issue here and concluded only that the VA “may” accept such reports. Also, the new rule does not require a VA confirma-11 NATIONAL ORG OF VETERANS ADV v. VAtion of a medical examination by a private practitioner. As such, the rule is not in direct conflict with § 5125.Third, Petitioners contend that the new rule is contrary to 38 U.S.C. § 5107(b), which provides that:The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the deter-mination of a matter, the Secretary shall give the benefit of the doubt to the claimant.The statute is clear that the Secretary shall consider all medical evidence and give the benefit of the doubt to the claimant when there is an approximate balance of evidence. What is not expressed is what that consideration entails or what weight any given piece of evidence is to carry. Those questions were left to the Secretary to determine under 38 U.S.C. § 501(a). The new rule is an exercise of that authority, and it is not in conflict with § 5107(b). The new rule, moreover, does not actually pit one set of evidence against another. Rather, it provides several options for establishing service connection under either a VA examination or a private physician examination.Petitioners also contend that the new rule is contrary to 38 C.F.R. § 4.125(a), which provides standards used in DSM-IV. Specifically, the regulation states that “[i]f the diagnosis of a mental disorder does not conform to DSM-IV or is not supported by the findings on the examination report, the rating agency shall return the report to the examiner to substantiate the diagnosis.” Id.NATIONAL ORG OF VETERANS ADV v. VA 12Under DSM-IV, PTSD may be diagnosed where an individual “witnessed” or “experienced” a serious physical threat to themselves or others and the person’s response is characterized by “intense fear, helplessness, or horror.” DSM-IV at 427-28. This is labeled criterion A. Id. at 427. In addition, the person will display symptoms of “persistent reexperiencing of the traumatic event.” Id. at 424. Those symptoms include, among others, “psychological distress” and “physiological reactivity,” and are listed under criterion B. Id. at 428. A diagnosis of PTSD requires that the individual meet the requirements of criteria A and B, as well as other requirements under criteria C, D, E, and F. Id. at 427-29.The new rule applies where, among other things, PTSD is alleged as the result of “fear of hostile military or terrorist activity.” 38 C.F.R. § 3.304(f)(3). That phrase is defined as involving a response characterized by “a psychological or psycho-physiological state of fear, helplessness, or horror.” Id.Petitioners raise two problems with the formulation in the new rule. First, Petitioners contend that that the terms “psychological” and “physiological” are not contemplated under criterion A in DSM-IV and that therefore the rule must fail. The regulation, though, merely merges the elements of criterion A with those of criterion B, where the terms do appear. Compare DSM-IV at 428 (“B. The traumatic event is persistently reexperienced in one (or more) of the following ways: . . . (4) intense psychological distress at exposure to internal or external cues . . . . (5) physiological reactivity on exposure to internal or exter-nal cues . . . .”) with 38 C.F.R. § 3.304(f)(3) (“a psychologi-cal or psycho-physiological state of fear, helplessness, or horror.”). That drafting choice does not render the new rule invalid.13 NATIONAL ORG OF VETERANS ADV v. VASecond, Petitioners contend that even if the complained-of phrase is viewed as incorporating the elements of criterion B, the regulation improperly restricts the range of acceptable symptoms under criterion B. This argument fails as well because the regulation does not necessarily have to be read as restricting the available symptoms of criterion B. In fact, the Secretary stated as much in the final notice. 75 Fed. Reg. at 39,846 (“Because the requirement that a claimed stressor relate to a veteran’s fear of hostile military or terrorist activity has no effect on the diagnostic criteria for PTSD, the requirement does not narrow the DSM-IV definition of PTSD.”). Even if the regulation were limiting, it would not be in conflict with 38 C.F.R. § 4.125(a). That regulation requires a diagnosis to conform to DSM-IV. A diagnosis of PTSD under the narrower reading of the new rule will necessarily conform to the broad requirements of DSM-IV. Therefore, there is no conflict.In summary, we have considered petitioners arguments and find that no existing statute or regulation specifically addresses the issue raised in the new rule so as to create a conflict or contradiction.B. The VA Rule Has a Rational BasisBecause Congress has not spoken directly to the issue raised in the rule, we must determine whether the regulation is otherwise permissible. Chevron, 467 U.S. at 843. Additionally, under the APA this court must set aside a regulation if we find it to be “arbitrary” or “capricious.” 5 U.S.C. § 706(2)(A). Although courts sometimes analyze a regulation under both the second step of Chevron and the APA independently, the issues raised will often overlap. See Shays v. Fed. Election Comm’n, 414 F.3d 76, 96-97 (D.C. Cir. 2005); Animal Legal Def. Fund, Inc. v. Glick-man, 204 F.3d 229, 234 (D.C. Cir. 2000). Where, as here,NATIONAL ORG OF VETERANS ADV v. VA 14a regulation will equally stand or fall under either review, a single analysis is appropriate.A regulation is not arbitrary or capricious if there is a “rational connection between the facts found and the choice made.” Motor Vehicle Mfrs. Ass’n. of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). This is a deferential standard of review. Regardless of our views, we must uphold the regulation if there is a rational basis for it on the record. Balt. Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 105 (1983) (“It is not our task to determine what decision we, as Commissioners, would have reached. Our only task is to determine whether the Commission has considered the relevant factors and articulated a rational connection between the facts and the choice made.”).At the heart of the Petitioners disagreement with the new rule is the distinction between private practitioners and VA associated practitioners. The VA provided reasons for this distinction during the rulemaking, as de-scribed above. Petitioners contend that these justifications ring hollow and that no reasonable rationale exists for the rule.First, Petitioners contend that there is no reasonable basis for the VA’s premise that VA practitioners are better trained than private practitioners. If quality assurance is the problem, Petitioners contend, the VA should instead focus on whether a given practitioner is qualified on an individual basis. Additionally, Petitioners question why the special guidance materials used by the VA cannot also be made available to all practitioners.Second, Petitioners question why, if reviews of examinations are deemed helpful, the VA cannot also review private practitioners’ examinations. Petitioners also15 NATIONAL ORG OF VETERANS ADV v. VAquestion the vagueness of the VA’s claimed review process.Third, Petitioners argue that the Secretary cannot rely on the VA’s access to the claims folder as a rational basis for distinguishing between private and VA practitioners. Petitioners note that there are other sources of relevant information concerning the veteran for practitioners to use in examinations. Petitioners point out that the private practitioner also has access to the claims folder through the veteran, who may request his own folder.Fourth, Petitioners disagree with the VA’s view that the distinction between private and VA practitioners is warranted due to allegedly increased consistency. Petitioners note that VA practitioner performance of many more PTSD examinations is a double-edged sword. Rather than resulting in greater quality, the increased number of examinations may, in fact, result in hastier, less thorough examinations.Petitioners argue that the VA simply cannot categorically distinguish between VA and private practitioners. This belief amounts only to a disagreement with the administrative rulemaking process generally. It is well accepted that administrative agencies may resolve generally applicable factual questions through rulemaking. See Am. Hosp. Ass’n v. N.L.R.B., 499 U.S. 606, 612 (1991) (noting that agencies may “rely on rulemaking to resolve certain issues of general applicability unless Congress clearly expresses an intent to withhold that authority”); see generally R. Pierce, Administrative Law Treatise §§ 7.5, 10.5 (5th ed. 2010). That the underlying logic for the rule “may not always be true” is not enough to render the rule invalid. See Barnhart v. Thomas, 540 U.S. 20, 29 (2003). As the Supreme Court has noted: “To generalizeNATIONAL ORG OF VETERANS ADV v. VA 16is to be imprecise. Virtually every legal (or other) rule has imperfect applications in particular circumstances.” Id. (emphasis in original).To be sure, Petitioners have ably demonstrated areas of weakness in the VA’s logic, in particular where the object of the rule is to provide better services to veterans with PTSD. Indeed, some of the VA’s logic, such as the belief that a large number of examinations will increase quality, could lead to the opposite conclusion. Additionally, Petitioners have proposed alternative methods that the VA could use to ensure that the examinations it receives are of sufficient quality, such as by reviewing the private practitioner’s examinations. Perhaps with the development of data or with more experience on the operation and effect of the new rule, for instance, on quality of care and the incidents of veteran’s seeking care, the VA could be convinced that these suggestions would ultimately best serve veterans.But “[w]hether or not we, if writing on a pristine page, would have reached the same set of conclusions is not the issue.” Assoc’d Fisheries of Me., Inc. v. Daley, 127 F.3d 104, 111 (1st Cir. 1997). The question presented here is whether there is a logical basis for the new rule, and we determine that such a basis exists. This court’s review of the Secretary’s rules is deferential, and a “reasoned” analysis is not necessarily an “unassailable” one. Ass’n of Pub. Safety Commc’ns Officials Int’l, Inc. v. Fed. Commc’n Comm’n, 76 F.3d 395, 400 (D.C. Cir. 1996). We cannot say that the VA’s rationale is without a logical basis, or is otherwise arbitrary and capricious.Based on the foregoing, we find that the new VA rule is a permissible application of statute and is not in violation of law. We also find that Petitioners’ remainingNATIONAL ORG OF VETERANS ADV v. VA17arguments are without merit. The petition is therefore DENIED.

Single Judge Application, Competence Determination Before Probability, Kahana v. Shinseki, 34 Vet.App. 428, 435 (2011)

2012-01-18T08:58:00.001-08:00

Excerpt from decision below: "The Board stated that the lay statements, "made many years after service,are outweighed by the more contemporaneous service treatment records showing no signs of a right shoulder condition, normal clinical evaluations of the upper extremities, and the Veteran's denial of having any shoulder problems." R. at 10. However, the Board did not make any specific findings as to the competence or credibility of the lay statements, which is required before determining which evidence is most probative. Kahana v. Shinseki, 34 Vet.App. 428, 435 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (stating that lay persons are generally competent to provide evidence on observable symptoms); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006)(noting that "the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence").=========================================Skip navigationU.S. Court of Appeals for Veterans ClaimsView | Download | Details Previous document | Next document . 10-3169ClaytonL_10-3169.pdfSearch Terms: KAHANA Author: lzobristCreationDate: 01/12/2012 09:59:29Creator: PScript5.dll Version 5.2.2ModDate: 01/17/2012 15:07:13Producer: Acrobat Distiller 9.4.6 (Windows)Title: C:\Users\lzobrist\Desktop\Yohan\Clayton 10-3169 MemDec Remand.wpdX_XMPTK: Adobe XMP Core 4.2.1-c043 52.372728, 2009/01/18-15:08:04X_XMPMETA_XMP_CREATORTOOL: PScript5.dll Version 5.2.2X_XMPMETA_XMP_MODIFYDATE: 01/17/2012 15:07:13X_XMPMETA_XMP_CREATEDATE: 01/12/2012 09:59:29X_XMPMETA_XMP_METADATADATE: 01/17/2012 15:07:13X_XMPMETA_DC_FORMAT: application/pdfX_XMPMETA_DC_TITLE: C:\Users\lzobrist\Desktop\Yohan\Clayton 10-3169 MemDecRemand.wpdX_XMPMETA_DC_CREATOR: lzobristX_XMPMETA_PDF_PRODUCER: Acrobat Distiller 9.4.6 (Windows)X_XMPMETA_XMPMM_DOCUMENTID: uuid:c966eb6b-4d6e-4bdd-82d1-a5a11e131c95X_XMPMETA_XMPMM_INSTANCEID: uuid:cdaacb3b-b9ab-43af-b88d-195bd8ffeb46----------------------------------------------------Designated for electronic publication onlyUNITED STATES COURT OF APPEALS FOR VETERANS CLAIMSNO. 10-3169LLOYD CLAYTON, APPELLANT,V.ERIC K. SHINSEKI,SECRETARY OF VETERANS AFFAIRS, APPELLEE.Before LANCE, Judge.MEMORANDUM DECISIONNote: Pursuant to U.S. Vet. App. R. 30(a),this action may not be cited as precedent.LANCE, Judge: The appellant, Lloyd Clayton, through counsel, appeals anAugust 27,2010, Board of Veterans' Appeals (Board) decision that denied his claimfor entitlement to serviceconnection for a right shoulder condition. Record (R.) at 3-11. Theappellant does not present anyargument concerning the denial of his request for a total disabilityrating based on individualunemployability. Accordingly, that request is deemed abandoned. See Ford v.Gober, 10 Vet.App.531, 535 (1997). Single-judge disposition is appropriate. See Frankel v.Derwinski, 1 Vet.App. 23,25-26 (1990). This appeal is timely and the Court has jurisdiction overthe case pursuant to38 U.S.C. §§ 7252(a) and 7266. For the reasons that follow, the Courtwill vacate the August 27,2010, decision and remand the matter for further proceedings consistentwith this decision.I. FACTSThe appellant served in the U.S. Army from July 1959 to July 1961, withprior service in theU.S. Army Reserves. R. at 472, 1101-20. His service medical records (SMRs)do not reflect ashoulder injury, and in his separation examination he denied ever having a "painful or 'trick'shoulder." R. at 1089 (capitalization omitted); see generally 1088-1149 (in-service medicalexaminations). However, at medical appointments in February 1997 and July1998 the appellantsought treatment for a painful right shoulder and told the treatingphysicians that he injured his rightshoulder while in the military. R. at 103, 124.In October 1999, the appellant filed a claim for entitlement to serviceconnection for a rightshoulder condition. R. at 1068-71. In personal statements to VA, providedduring the developmentof his claim, the appellant stated that he hurt his shoulder in theservice while playing football; thatthe shoulder has continued to bother him since the initial injury suchthat he has lost jobs due tolimitations of movement resulting from his injury; and that he did notpreviously submit a claimbecause he did not know that he was eligible to receive benefits for thistype of injury. See, e.g., R.at 22, 534-58, 569-72, 677-84. The appellant also submitted statementsfrom his wife and brothersupporting his assertion that he had trouble with his right shoulderdating back to service. R. at 702-03. After further development, which did not include a VA medical opinion,the Board ultimatelydenied the appellant's claim for service connection for a right shoulderdisability. This appealfollowed.II. ANALYSISThe appellant argues that the Board's reasons or bases are flawed becausethe Board failedto conduct a proper competency and credibility analysis of the appellant'slay statements and thosesubmitted by his family members and that, absent a determination that thelay statements of recordwere not credible or not competent, there is evidence of record that hisright shoulder disability maybe related to service such that the low threshold of McLendon is met and amedical nexus opinionis required. Appellant's Brief (Br.) at 3-4; see 38 U.S.C. § 5013A(d)(2);McLendon v. Nicholson,20 Vet.App. 79, 81-86 (2006); 38 C.F.R. § 3.159(c)(4) (2011). The Courtagrees.The Board is required to include in its decision a written statement ofthe reasons or basesfor its findings and conclusions on all material issues of fact and lawpresented on the record; thatstatement must be adequate to enable an appellant to understand theprecise basis for the Board'sdecision, as well as to facilitate informed review in this Court. 38 U.S.C.§ 7104(d)(1); Allday v.Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990). To complywith this requirement, the Board must analyze the credibility andprobative value of the evidence,account for the evidence that it finds to be persuasive or unpersuasive,and provide the reasons forits rejection of any material evidence favorable to the claimant. Caluza v.Brown, 7 Vet.App. 498,2506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table);Gabrielson v. Brown, 7 Vet.App.36, 39-40 (1994); Gilbert, supra.The Board stated that the lay statements, "made many years after service,are outweighed bythe more contemporaneous service treatment records showing no signs of aright shoulder condition,normal clinical evaluations of the upper extremities, and the Veteran'sdenial of having any shoulderproblems." R. at 10. However, the Board did not make any specific findingsas to the competenceor credibility of the lay statements, which is required before determiningwhich evidence is mostprobative. Previous DocumentKahanaNext Document v. Shinseki, 34 Vet.App. 428, 435 (2011); see alsoJandreau v. Nicholson,492 F.3d 1372, 1377 (Fed. Cir. 2007) (stating that lay persons aregenerally competent to provideevidence on observable symptoms); Buchanan v. Nicholson, 451 F.3d 1331,1337 (Fed. Cir. 2006)(noting that "the Board cannot determine that lay evidence lackscredibility merely because it isunaccompanied by contemporaneous medical evidence").The Board has not provided any indication that it finds the lay testimonyof record to beincompetent. Furthermore, in finding against the establishment of acontinuity of symptomatology,the Board stated that it found the appellant's February 1997 and July 1998statements to treatmentproviders, which the Board agrees contained assertions ofanin-serviceinjury,particularlyprobativebecause they were "provided during medical treatment," which suggests thatthe Board found thelay statements credible. R. at 10. This cursory discussion of the laystatements does not facilitatethis Court's review. It is not clear from the analysis provided why,absent an explicit finding thatthe lay statements are not credible, the statements asserting a history ofinjury dating back to serviceare "of great probative value," but do not meet the low McLendon thresholdindicating that a medicalnexus examination is warranted. R. at 10; see McLendon, 20 Vet.App. at 83.Therefore, remandis required for an adequate reasons or bases discussion that includes afull analysis of thecompetence and credibility of the lay testimony of record.On remand, the Board must explicitly discuss the competence andcredibility of theappellant's lay statements and those provided by his family members. TheBoard should considerthe appellant's testimony that he did seek treatment in-service for hisfootball injury. See, e.g., R.at 668. The Board should also discuss whether the appellant's 1998statement that he had shoulderpain for the previous year related to work might be consistent with an in-service injury that onlymanifests under strenuous use, particularly in light of the appellant'stestimony that he frequently3quit or was let go from manual labor employment that required the use ofhis shoulder, but did nothave pain with other tasks that did not involve his shoulder. See, e.g., R.at 534-557, 688-89.Finally, the Board should address the statements bythe appellant's familyincluding both their abilityto observe symptomatology and the extent that they are reporting paststatements by the veteran thatwould rebut an inference that his history of complaints is a recentfabrication. See FED. R. EVID.801(d)(1) (prior consistent statements of declarant may be admitted torebut inference offabrication).If the Board determines that the appellant's lay statements are competentand credible, amedical nexus opinion is required to determine whether the appellant'scurrent shoulder disabilityis related to his in-service football injury. As mentioned above, theMcLendon standard providesa low threshold for determining whether there is an indication that thedisability or persistent orrecurrent symptoms of a disability may be associated with the veteran'sservice. McLendon,20 Vet.App. at 83. This threshold encompasses a report of continuity ofsymptomatology that byitself is not strong enough to meet the requirements of 38 C.F.R. § 3.303(b), such as the reportsprovided by the appellant and his family, but nonetheless provides someindication of a link betweenthe current disability and the in-service event.On remand, the appellant is free to submit additional evidence andargument, including thearguments raised in his briefs to this Court, in accordance withKutscherousky v. West, 12 Vet.App.369, 372-73 (1999) (per curiam order), and the Board must consider anysuch evidence or argumentsubmitted.See Kay v. Principi, 16 Vet.App. 529, 534 (2002).The Board shall proceedexpeditiously, in accordance with 38 U.S.C. §§ 5109B, 7112 (requiringSecretary to provide for "expeditious treatment" of claims remanded by Board or Court).III. CONCLUSIONAfter consideration of the appellant's and the Secretary's briefs, and areview of the record, the Board's August 27, 2010, decision is VACATED and the matter is REMANDED to the Board for further proceedings consistent with this decision.DATED: January 12, 20124Copies to:Michael R. Viterna, Esq.VA General Counsel (027)5

Single Judge Application, Case Similar to Shade v. Shinseki, 24 Vet.App.(2010)

2012-01-12T09:48:00.001-08:00

Excerpt from decision below:"If the Board construes "raises a reasonable possibility of substantiatingthe claim" as a requirement that the appellant submit his own medical nexus evidence to reopen his claim, even though he has provided new and material evidence concerning any other missing element, it would force the veteran to provide medical nexus evidence to reopen his claim so that he could be provided with a medical nexus examination by VA. Id. at 119-21 (emphasis supplied) (citations omitted).This case presents a situation similar to the facts of Shade itself. See id. at 119-22. As in Shade, the RO originally denied the appellant's claim for failing to establish two of three necessary elements. See id. at 111; R. at 263. Thereafter, as in Shade, the appellant proffered new, competent evidence to establish the element of a current PTSD diagnosis – a positive PTSD screen – which was one of the reasons the claim was originally denied. R. at 205, 263. Such evidence, as explained in Shade, 24 Vet.App. at 121, suffices to reopen the appellant's PTSD claim because it relates to and serves to substantiate the claim's unestablished present diagnosis element. See Cohen, 10 Vet.App. at 138; see also 38 C.F.R. § 3.156(a). By effectively proceeding directly to the merits of the appellant's claim, the Board not only fails to correctly apply the mandate of section 3.156(a), but it also deprives the appellant the opportunity to further develop evidence of the unestablished in-service stressor element. Cf. Shade, 24 Vet.App. at 120 (reasoning that if a claimant is required to submit his own medical nexus evidence to substantiate an unestablished element of the claim, "it would force the veteran to provide medical nexus evidence to reopen his claim so that he could be6provided with a medical nexus examination by VA").The Secretary cites to no caselaw for the proposition that the Board'serroneous analysis of the materiality of the positive PTSD screening is nonprejudicial because the appellant purportedly failed to proffer sufficient material evidence to advance a separate element of his PTSD claim. What is more, the Secretary failed to acknowledge or notify the Court of the intervening authority in Ervin v. Shinseki, 24 Vet.App. 318, 324 (2011)(applying to pending cases an amendment that permitted establishment of an in-service stressor via a veteran's lay testimony that the stressor is related to "fear of hostile military or terrorist activity"), and its impact on the disposition of the new-and-material- evidence issue in this case.Irrespective of Ervin, the appellant has proffered sufficiently new andmaterial evidence to reopen his PTSD claim and obtain the full benefit of VA's duty to assist. See Shade, 24 Vet.App. at 119-21. Accordingly, the Court will reverse the Board's finding on this issue and remand the matter to permit further development and evaluation of the merits in accordance with Ervin."==========================================================----------------------------------------------------Designated for electronic publication onlyUNITED STATES COURT OF APPEALS FOR VETERANS CLAIMSNO. 10-0096JOHN W. WILLIAMS, APPELLANT,V.ERIC K. SHINSEKI,SECRETARY OF VETERANS AFFAIRS, APPELLEE.Before SCHOELEN, Judge.MEMORANDUM DECISIONNote: Pursuant to U.S. Vet. App. R. 30(a),this action may not be cited as precedent.SCHOELEN, Judge: The appellant, veteran John W. Williams, appeals throughcounsel aSeptember 29, 2009, Board of Veterans' Appeals (Board) decision thatdenied his claim forentitlement to service connection for vision disorder, right ear hearingloss, pinched nerves, gout,and a disorder manifested by constipation. Record of Proceedings (R.) at 3-19. The Board decisionalso rejected the appellant's claim for entitlement to service connectionfor post-traumatic stressdisorder (PTSD) based on new and material evidence. R. at 16. This appealis timely, and the Courthas jurisdiction to review the Board's decision pursuant to 38 U.S.C. §§7252(a) and 7266(a).Single-judge disposition is appropriate. Frankel v. Derwinski, 1 Vet.App.23, 25-26 (1990). For thefollowing reasons, the Court will affirm in part, reverse in part, andvacate in part the Board'sdecision and remand the matter for further adjudication.I. BACKGROUNDThe appellant served on active duty in the U.S. Army from February 1969 toOctober 1970,with service in Vietnam. R. at 529. In 1996, the appellant filed a claimfor entitlement to serviceconnection for a back injury. R. at 429-32. As evidence, the appellantsubmitted private medicalrecords documenting treatment he received for various back ailments in1990 and 1991. R. at 448,455, 481. The VA regional office (RO) denied the appellant's claimbecause "th[e] condition neitheroccurred in nor was caused by service." R. at 418. The RO explained thatthe appellant's servicemedical records did not indicate complaints of back problems or treatmentfor a back injury. Id.Instead, the relevant treatment reports, accordingto the RO, suggestedthat the appellant first injuredhis back when he slipped and fell on ice in January 1989. Id.; see also R.at 448. The RO's decisionbecame final after the appellant failed to appeal the RO's September 1997Statement of the Case(SOC). R. at 379-85.In May 2000, the appellant was hospitalized with complaints of nightmares,auditory andvisual hallucinations, depression, and sleep disturbances. R. at 339-42,351-65. The appellantreported having suicidal and homicidal ideation less than two weeks prior.Id. The appellant alsostated that he was previously diagnosed with PTSD. R. at 345; see also R.at 350. The appellantwas referred to a psychiatrist for further evaluation. R. at 365.Several times during his May 2000 hospital stay, the appellant reportedother ailments to hisexaminers. The appellant reported bowel problems and sometimes bleedingfrom his rectum. R. at364. The appellant also stated that the sun hurt his eyes and that he sawcolor spots. R. at 354, 365.One physician speculated that the appellant's color spots may beconsidered a visual hallucination.R. at 365.In June 2000, the appellant filed a claim seeking service connection forhis PTSD. R. at 372-76. The appellant submitted a letter from an acquiantance who describedhis behavior uponreturning from Vietnam, his "hyper and paranoid" attitude, and sleepingproblems. R. at 330-31.The appellant also submitted a PTSD questionnaire in which he identifiedhis drinking problem andalcohol-related disciplinary action as having contributed to his PTSD. R.at 318-19. The appellantdenied that any casualties or injuries caused his PTSD. R. at 319.In September 2001, the RO denied entitlement to service connection becauseno evidencedemonstrated an in-service stressor and "there [was] no evidence to show adiagnosis of PTSD." R.at 263. The appellant failed to appeal this decision and thus it becamefinal.InJuly2004,theappellantfiledanother claim,seekingserviceconnectionforpinchednervesand gout. R. at 250. The appellant also sought to reopen his PTSD claim.Id. The only locationfor treatment of these conditions the appellant identified was theFayetteville, North Carolina VA2hospital. R. at 250, 254-55. The appellant also stated that he'd beenreceiving Social SecurityAdministration (SSA) disabilitybenefits since 1997. R. at 240, 248; seealso R. at 175. The medicalrecords obtained from the Fayetteville VA hospital indicated that he hadbeen diagnosed withdepression and that his PTSD screen indicated PTSD. R. at 175, 205.In November 2004, the RO denied the appellant's claims. R. at 145-50. TheRO found noevidence of a medical diagnosis or treatment for pinched nerves or gout. R.at 146-48. The RO alsofound that, although medical records from the Fayetteville VA hospitalwere new, they were notmaterial because they failed to evidence a diagnosis of PTSD orcorroborate an in-service stressor.R. at 149-50. In March 2005, the appellant asserted new claims forconstipation, right-ear hearingloss, and poor vision. R. at 138. After the appellant failed to submit anyfurther evidence, the ROadjudicated and denied all of his claims in December 2005. R. at 114-20.The appellant filed aNotice of Disagreement in April 2006. R. at 109. The RO in turn issued itsStatement of the Casein January 2007. R. at 81-103.That same month, the appellant filed an appeal to the Board and requesteda hearing. R. at77-79. At the appellant's July 2009 hearing, he stated that his right-earhearing loss "comes fromfiring a weapon while [he] was in the war," and that his hearing loss "progressed ever since I beenout of service." R. at 28-29. The appellant confirmed that he had not beenprovided an audiologicalexamination. Id.When questioned about his vision disorder, the appellant exclaimed "I see. . . blurry spotssometime[s]. My sight goes almost blind and it comes back." R. at 30. Aprivate physician,according to the appellant, stated that his vision was "not good." R. at31. The appellant continued:"I also have a sleeping disorder, I have nights w[h]ere I see differentthings. I see different visionsand stuff in my sleep. I have nightmares." R. at 30.The appellant remarked that he did not know whether the blurry spots orvisions were dueto PTSD. Id. The appellant also admitted that he had no "other medicaldiagnosis associated with[his] eyes," but he alleged that his current eye problems developed inservice. R. at 32.The appellant also claimed that his constipation began in service andcontinued to this day.R. at 33. The appellant conceded, however, that no specific disorder wasdiagnosed in connectionwith his constipation. Id. The appellant also denied seeing a physicianfor the problem, but testified3that he used Dulcolax to alleviate his symptoms. R. at 34.Proceeding to the gout claim, the appellant testified that he wasdiagnosed with gout inservice and has suffered with the pain since that time. R. at 40.Regarding his pinched-nerves claim,the appellant stated that "I got four pinched nerves and a twisted spine"while in service. R. at 42.The appellant confirmed that he was receiving treatment for his pinchednerves at the FayettevilleVA Hospital. R. at 43.Turning to the PTSD claim, the hearing officer asked the appellant toidentify a specifictrauma or stressor. R. at 44. The appellant responded: "Well, well, just a,just the total experienceof being over there in a, in a war zone and stuff and uh, the things Iseen, I guess I developed it likethat." Id. When asked for specifics, he answered: "Dead bodies, uh abunch of bombing,explosions." Id. The appellant advised the Board member that, while inVietnam, he had beenstationed at Tiger Hill and Cam Ranh Bay. R. at 46.The Board's September 2009 decision denied all of the appellant's claims.R. at 3-19. TheBoard concluded that the in-service and postservice records did notestablish a diagnosis for thealleged right-ear hearing loss, constipation, gout, and pinched-nerveconditions. R. at 9-11. Absentevidence of such conditions, the Board found further development futile. R.at 10. The Board alsodetermined apart from a notation of poor vision that in-service andpostservice medical records weredevoid of evidence of an eye injury. R. at 11.Regarding the PTSD claim, the Board found that while the medical recordswere new, theywere not material because "they provide[d] no support for the occurrenceof the claimed in-servicestressors or that PTSD has been definitively diagnosed." R. at 15. Withregard to the notation ofPTSD by a Fayetteville VA hospital physician, the Board reasoned "that themedical reference ofPTSD contained in the record is based solely on history reported by theVeteran," and that "theprimary psychiatric diagnosis [was] apparently associated with depression."Id.The Board further explained that the appellant's testimony was "vague. . . (seeing deadbodies and being near explosions during service)," and that he had not "revealed useful informationwhich would aid VA in verifying his claimed in service stressor." Id.Given that the appellant hadbeen found to have not engaged in combat, the Board viewed the appellant'sstatements as "not []sufficient to establish the occurrence of the alleged stressor." Id. Thisappeal followed.4II. ANALYSISA. New and Material Evidence: PTSDThe appellant contends that the Board erred in refusing to reopen his PTSDclaim.Appellant's Brief (Br.) at 6-8. First, the appellant argues that the Boarderred in deciding that thepositive PTSD screen was not material because the primary psychiatricdiagnosis of the report inquestion was depression. Appellant's Br. at 7; see also R. at 15. Inessence, the appellant maintainsthat the positive PTSD screen was sufficient to reopen the claim becauseit related to anunestablished fact necessaryto substantiate the claim. See 38 C.F.R. § 3.156(a) (2011). Second, theappellant maintains that the Board erred in finding that his lay testimonywas vague, unhelpful, andultimately would not "aid in the verification of any claimed in-servicestressor." R. at 15; see alsoAppellant's Br. at 7. The appellant submits that corroboration does notrequire an overly detailedaccount of a stressor event, contrary to the Board's prescription.Appellant's Br. at 8.In response, the Secretary acknowledges that the Board "impermissibly"skipped "thereopening phase and [went] straight to adjudication on the merits," butargues that such "error isimmaterial[] because the evidence submitted does nothing to corroborateany purported in-servicestressor." Secretary's Br. at 12. Specifically, the Secretary asserts thatthe appellant's lay testimonyof an in-service stressor – his observance of "dead bodies, uh a bunchof bombing, explosions" andthe "total experience of being over there in a, in a war zone" – wasinsufficiently precise todemonstrate an in-service stressor, and therefore to prompt additionaldevelopment to determinewhether an in-service stressor occurred. Secretary's Br. at 13. Withoutsuch precise evidence, theSecretary reasons, any error by the Board in evaluating the positive PTSDscreening is immaterial.Secretary's Br. at 12-13.To be eligible for service connection for PTSD, a claimant must satisfy"three elements": (1)A medical diagnosis of PTSD; (2) credible supporting evidence that theclaimed in-service stressoractually occurred; and (3) medical evidence of a causal nexus betweencurrent symptomatology andthe specific claimed in-service stressor. Cohen v. Brown, 10 Vet.App. 128,138 (1997). In this case,the original decision denying service connection for PTSD explained thatthe appellant failed toprovide evidence of an in-service stressor, but also that the "there [was]no evidence to show adiagnosis of PTSD." R. at 263. As the Secretary would have it, the Boardneed not reopen this5claim unless the appellant proffers new evidence that relates to bothunestablished elementsidentified by the original decision as the basis for denial: (1) Evidenceof a PTSD diagnosis; and (2)evidence of an in-service stressor. Secretary's Br. at 12. This is not thelaw.In Shade v. Shinseki, 24 Vet.App. 110, 119-20 (2010), the claimantsubmitted evidence ofa present diagnosis of a chronic skin disorder as qualifying to reopen hisclaim for service connection. The Board there reasoned that "because the newly submitted evidence pertained only to the unestablished fact of a current diagnosis, but not to the other unestablished fact of a nexus between that diagnosis and service, the evidence submitted by the appellant was not new and material." Id. The Shade court disabused the Board of this faulty logic:The threshold established by § 3.156(a) requires the Board to analyzewhether the new evidence presented "raises a reasonable possibility of substantiating the claim."If the Board construes "raises a reasonable possibility of substantiatingthe claim" as a requirement that the appellant submit his own medical nexus evidence to reopen his claim, even though he has provided new and material evidence concerning any other missing element, it would force the veteran to provide medical nexus evidence to reopen his claim so that he could be provided with a medical nexus examination by VA. Id. at 119-21 (emphasis supplied) (citations omitted).This case presents a situation similar to the facts of Shade itself. See id. at 119-22. As in Shade, the RO originally denied the appellant's claim for failing to establish two of three necessary elements. See id. at 111; R. at 263. Thereafter, as in Shade, the appellant proffered new, competent evidence to establish the element of a current PTSD diagnosis – a positive PTSD screen – which was one of the reasons the claim was originally denied. R. at 205, 263. Such evidence, as explained in Shade, 24 Vet.App. at 121, suffices to reopen the appellant's PTSD claim because it relates to and serves to substantiate the claim's unestablished present diagnosis element. See Cohen, 10 Vet.App. at 138; see also 38 C.F.R. § 3.156(a). By effectively proceeding directly to the merits of the appellant's claim, the Board not only fails to correctly apply the mandate of section 3.156(a), but it also deprives the appellant the opportunity to further develop evidence of the unestablished in-service stressor element. Cf. Shade, 24 Vet.App. at 120 (reasoning that if a claimant is required to submit his own medical nexus evidence to substantiate an unestablished element of the claim, "it would force the veteran to provide medical nexus evidence to reopen his claim so that he could be6provided with a medical nexus examination by VA").The Secretary cites to no caselaw for the proposition that the Board'serroneous analysis of the materiality of the positive PTSD screening is nonprejudicial because the appellant purportedly failed to proffer sufficient material evidence to advance a separate element of his PTSD claim. What is more, the Secretary failed to acknowledge or notify the Court of the intervening authority in Ervin v. Shinseki, 24 Vet.App. 318, 324 (2011)(applying to pending cases an amendment that permitted establishment of an in-service stressor via a veteran's lay testimony that the stressor is related to "fear of hostile military or terrorist activity"), and its impact on the disposition of the new-and-material- evidence issue in this case.Irrespective of Ervin, the appellant has proffered sufficiently new andmaterial evidence to reopen his PTSD claim and obtain the full benefit of VA's duty to assist. See Shade, 24 Vet.App. at 119-21. Accordingly, the Court will reverse the Board's finding on this issue and remand the matter to permit further development and evaluation of the merits in accordance with Ervin.B. Disorder Manifested by ConstipationThe appellant contends that the Board failed to provide adequate reasonsor bases for its decision to deny service connection for a disorder manifested by constipation. Appellant's Br. at 10-12. Specifically, the appellant contends that the Board failed to explain why he was not competent to observe and therefore diagnose constipation. Appellant's Br. at 10-11.Furthermore, the appellantargues that, because he was referred to a psychiatrist on the same dayhecomplained of constipation,"[t]he record raises some question as to whether gastrointestinalcomplaints may be related to" hisPTSD claim, and thus such claims should be remanded together. Appellant'sBr. at 11.In response, the Secretary argues first that, although constipation is adisorder capable ofbeing observed bya layperson, it is not a "disability" for which aclaimant maybe service connected.Secretary's Br. at 19-20. Second, the Secretary notes that the physicianwho referred the appellantto a psychiatrist did not connect his constipation to his psychiatricsymptoms and, in any event,constipation may be considered separately from PTSD and therefore shouldnot be remanded forjoint consideration. Secretary's Br. at 20-21.The Board determined that service connection for a disorder manifestedbyconstipation wasunwarranted because the appellant "[n]ever received [a] competent medicaldiagnos[i]s" and also7lacked "competent medical evidence which [would] causally relate[] [anydiagnosis] to service." R.at 9-10. However, the Board failed to acknowledge and discuss theappellant's lay testimony at theJuly 2009 hearing that his constipation began "after basic training" andcontinued to the present orcomplaints of constipation the appellant registered during treatmentsbefore he filed his claim. R.at 33, 364; see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir.2007) (holding that layevidence maybe used to diagnose a condition where a layperson is competentto identifythe medicalcondition). The Board did not address whether the appellant was competentto identify hisconstipation and whether his lay statements would be sufficient toestablish service connection.The Secretary maintains that the Board's failure was irrelevant because VAdoes notrecognize a constipation "disability" for which the appellant may beservice connected. Secretary'sBr. at 20. However, the Board did not articulate this position, either.Instead, the Board treated theclaim as thoughit could be service connected, repeatedlyreferring to it as "residuals of constipation"and "a disorder manifested by constipation." R. at 9-10. Furthermore, asthe appellant submits, irritable bowel syndrome is a disability of which constipation is a symptom and which the appellant may presumably be competent to diagnose, see 38 C.F.R. § 4.114, Diagnostic Code 7319 (2011), but because the Board also failed to address this issue as well, the Court may not speculate. See Jandreau, 492 F.3d at 1377 ("Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans' Court.").In any case, the Board failed to provide adequate reasons and bases forits failure to discussthis evidence, see Allday v. Brown, 7 Vet.App. 517, 527 (1995), andvacatur and remand iswarranted. On remand, consistent with the duty to assist articulated inMcLendon v. Nicholson,20 Vet.App. 79, 81 (2006), the Board must consider whether an examinationis warranted to disposeof this claim. The Court will accordingly forego discussion of theappellant's remaining theory of Board error. See Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam).C. Vision DisorderThe appellant next argues that the Board erred in failing to find thatVA's duty to assist was breached when the Board hearing officer failed to suggest that the appellant obtain private medical records pertaining to his purported vision disorder. Appellant's Br. at 12.The Secretary responds8that, even assuming the Board member improperly failed to suggestevidence, the appellant was notprejudiced by any error because the private medical records only involvedpoor eye sight and theprovision of reading glasses, neither of which are conditions eligible forservice connection.Secretary's Br. at 22-23.While it is true, as the appellant notes, that the Board member did notadvise the appellant to obtain his private medical records pertaining to his vision problems, the appellant has not demonstrated that the Board member had a duty to suggest evidence. Since this Court decidedBryant v. Shinseki, 23 Vet.App. 488, 498 (2010), VA amended 38 C.F.R. §§3.103, 20.706 to reflect that the duty to suggest evidence was limited to "hearings conducted before the VA office having original jurisdiction over the claim." The Board committed no error, in turn, in failing to ascribe a breach of the duty to suggest evidence to the Board hearing officer.Even if the duty to suggest evidence remained binding on Board members,however, the duty is nevertheless subject to the rule of prejudicial error. See Bryant, 23 Vet.App. at 498. As such, as the Secretary argues, the Court must consider "whether the appellant was prejudiced by the Board's errors." Id. Here, the appellant confirmed that his private physician merely advised that he would need glasses to assist with refractive error. R. at 30-31 (privatephysician "said my vision [is] notgood" and that the appellant "need[ed] glasses"). Because refractive erroris not a "disease[] orinjur[y]" eligible for service connection, see 38 C.F.R. § 3.303(c) (2011), the failure to suggestevidence in support of such a condition does not prejudice the appellant.See Bryant, 23 Vet.App. at 499 (indicating that the failure to suggest relevant evidence is the touchstone of prejudicial error).Thus, even if the Board hearing officer were so obligated, any failure tosuggest evidence would not be a remandable error.The appellant also claims that the record suggests that his claim forvision disorder is inextricably intertwined with his PTSD claim, and therefore his vision disorder claim should be remanded along with his PTSD claim. Appellant's Br. at 12-13. The appellant fails to explain how his vision claim is inextricably intertwined with his PTSD claim, however,and thus fails to carry his burden of providing adequate support for his argument. See Locklear v. Nicholson, 20 Vet.App. 410, 416 (2006) (holding that the Court will not entertain underdeveloped arguments); Coker v.Nicholson, 19 Vet.App. 439, 442 (2006), rev'd on other grounds sub nom.Coker v. Peake, 310 F.9App'x 371 (Fed. Cir. 2008) (stating that an appellant must "plead withsome particularity the allegation of error so that the Court is able to review and assess the validity of the appellant's arguments"). The Court must, therefore, reject this argument and affirm the portion of the Board'sdecision regarding the appellant's claim for vision disorder.D. DepressionThe appellant argues that the Board failed to explain why his effort toreopen his PTSD claim was not regarded as encompassing a new claim for service connection for depression in light of his acknowledged depression diagnosis. Appellant's Br. at 10. Because, as discussed above, the Court is reversing the Board's decision on the appellant's PTSD claim and remanding the matter to allow adjudication on the merits, the Board must also determine whether the appellant in fact asserted a claim for entitlement to service connection for depression, consistent with Clemons v. Shinseki, 23 Vet.App. 1, 5 (2009). The Court will therefore forego discussion of this argument. See Best,15 Vet.App. at 20.E. Pinched Nerves and Right-Ear Hearing LossThe appellant argues that the Board failed to explain why the recordevidence of right-ear hearing loss does not entitle the appellant to a medical examination. Appellant's Br. at 13-14. TheSecretary agrees with the appellant and argues in favor of remand.Secretary's Br. at 28-29.Similarly, the parties agree that the Board failed to address whether theappellant's evidence oftreatment for various back ailments in 1990 and 1991 is relevant to hisclaim for pinched nerves, and that the Board erroneously failed to procure his SSA records, which appear relevant to his pinched nerves claim. Appellant's Br. at 14; Secretary's Br. at 27. Accordingly, the Court will remand both claims.F. SSA RecordsThe appellant argues that the Board erroneously failed to obtain his SSArecords with respect to his constipation, vision disorder, and gout claims.1Appellant's Br. at 14-15. The Secretary responds that the Board was not required to procure SSA records for claims other than those for1 The appellant also seeks procurement of his SSA records to support hisPTSD, right ear hearing loss, and pinched nerves claims, but because the Court is remanding these claims, he is free to argue before the Board the relevance of his SSA records to such claims.10which the appellant was receiving benefits. Secretary's Br. at 24-26.The Board's duty to obtain Federal records is limited to Federal recordsfor which there is reason to believe that such records "may give rise to pertinent information." Golz v. Shinseki, 590 F.3d 1319, 1323 (Fed. Cir. 2010). The evidence demonstrates that the appellant received SSA benefits "for back problems" (R. at 175), but there is no indication that the Board evaluated whether the appellant's SSA records may give rise to information pertinent to his constipation, vision disorder, and gout claims. Absent an adequate discussion by the Board ofthe grounds for failing toobtain the appellant's SSA records for the aforementioned claims, a remandis warranted. SeeAllday, 7 Vet.App. at 527.III. CONCLUSIONAfter consideration of the appellant's and the Secretary's pleadings, anda review of therecord, the September 29, 2009, Board decision is AFFIRMED IN PART,REVERSED IN PART,VACATED IN PART and the reversed and vacated matters REMANDED for furtheradjudication.DATED: December 29, 2011Copies to:Jeany Mark, Esq.VA General Counsel (027)11

Single Judge Application, DeLisio v. Shinseki, 25 Vet.App. 45, 53(2011); Apparent and Potential Claim, Referring to Affected Body Part

2012-01-12T08:02:00.001-08:00

Excerpt from decision below:"Although his filing appears to only raise the issue of service connection on a direct basis, VA is not constrained by that theory. See DeLisio v. Shinseki, 25 Vet.App. 45, 53(2011) ("[E]ven if a claimant believes that his condition is related to service in a particular way, his claim is not limited solely to one theory of service connection."). Indeed, "upon the filing of a claim for benefits, the Secretary generally must investigate the reasonably apparent and potential causes of the veteran's condition and theories of service connection that are reasonably raised by the record or raised by a sympathetic reading of the claimant's filing." Id.==================================="The Court disagrees.Mr. Canuto's claim was one for a "right leg (injury) condition" (R. at 284); as the Board noted, he did not provide anydetails as to the condition other than his theory that the condition – whatever that may be – was directly service related. Just as the Board is not limited to his theory of service connection, see DeLisio, supra, the Board is also not limited to only those conditions that may be the result of a right leg "injury." Especially because the claim was phrased in such broad terms, the Court concludes that Mr. Canuto's right leg claim may reasonably encompass varicose veins and edema. See DeLisio, 25 Vet.App. at 53 (noting that an appellant sufficiently files a claim by referring to the affected body part)."----------------------------------------------------Designated for electronic publication onlyUNITED STATES COURT OF APPEALS FOR VETERANS CLAIMSNO. 11-2472HONORATO D. CANUTO, APPELLANT,V.ERIC K. SHINSEKI,SECRETARY OF VETERANS AFFAIRS, APPELLEE.Before DAVIS, Judge.MEMORANDUM DECISIONNote: Pursuant to U.S. Vet. App. R. 30(a),this action may not be cited as precedent.DAVIS, Judge: U.S. Navy veteran Honorato D. Canuto appeals through counselfrom a June 15, 2011, Board of Veterans' Appeals (Board) decision that denied him entitlement to service connection for "residuals of a right leg injury."1 Record (R.) at 9. For the reasons stated below, the Court will set aside the Board's June 2011 decision and remand the matterfor further proceedings consistent with this decision.I. ANALYSISMr. Canuto first argues that the Board clearly erred in its determinationthat Mr. Canuto did not suffer from a current right leg disability. Specifically, he contends that he "suffers from several disabilities of the right leg that have been attributed to his service-connected heart disease" including varicose veins, edema, or a venuous insufficiency (which encompasses both varicose veins and1 The Board also remanded the issue of entitlement to a total disabilityrating based on individual employability and deferred adjudication of the issue of an initial compensable evaluation for hypertension. Those matters are not before the Court at this time. See 38 U.S.C. § 7266 (stating that the Court reviews only final decisions of the Board); see also Howard v. Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000).edema) (Appellant's Brief (Br.) at 7), but the Board only consideredwhether he suffered from a disability that could be directly connected to an in-service injury.In response, the Secretary contends that Mr. Canuto only "sought serviceconnection for a 'right leg (injury)' – not secondary service connection for residuals of arteriosclerotic heart disease."Secretary's Br. at 8. He asserts that the characterization of thecondition as an "injury" (as opposed to a "disease") that was sustained in service, his reference to supporting evidence from his servicerecords, and his failure to expressly raise the possibility of secondary serviceconnection in his filings are fatal to his plea before the Court for an expansive reading of his claim for disability benefits.In this case, Mr. Canuto filed a claim for disability benefits for a "right leg (injury)condition."2 R. at 284. Although his filing appears to only raise the issue of service connection on a direct basis, VA is not constrained by that theory. See DeLisio v. Shinseki, 25 Vet.App. 45, 53(2011) ("[E]ven if a claimant believes that his condition is related to service in a particular way, his claim is not limited solely to one theory of service connection."). Indeed, "upon the filing of a claim for benefits, the Secretary generally must investigate the reasonably apparent and potential causes of the veteran's condition and theories of service connection that are reasonably raised by the record or raised by a sympathetic reading of the claimant's filing." Id.Here, the Board determined that Mr. Canuto was not suffering from a rightleg disability that is related to an injury in service. It appears, however, that the Board may have erred in limiting Mr. Canuto's claim as one for direct service connection. In its decision, the Board specifically noted that "[t]he only diagnosis of any disorder of the right leg (other than symptoms attributed to his service[-]connected coronary artery disease) appears in September 2008 medical records." R. at7(emphasis added). Mr. Canuto asserts that those "symptoms" to which the Board referred were varicose veins and edema, both of which may be separately compensable under the diagnostic code (DC). See 38 C.F.R. § 4.104, DC 7120, 7121 (2011). Contrary to Mr. Canuto's contention, the Board's analysis does not identify those conditions that may be secondarily related to coronary artery disease. If the "symptoms" are indeed varicose veins and edema, because the record raised the issue of secondary service connection for those compensable conditions, the Board should haveconsidered whether2 The Court notes that the Secretary failed to include the word "condition"when quoting from Mr. Canuto's claim.2service connection was warranted. As it stands, the Board's rationale isinsufficient to facilitate judicial review of this matter, and remand is required. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995).In so ordering, the Court notes the Secretary's objection that Mr. Canuto's claim for a right leg "injury" may not encompass conditions such as varicose veins and edema.The Court disagrees.Mr. Canuto's claim was one for a "right leg (injury) condition" (R. at 284); as the Board noted, he did not provide any details as to the condition other than his theory that the condition – whatever that may be – was directly service related. Just as the Board is not limited to his theory of service connection, see DeLisio, supra, the Board is also not limited to only those conditions that may be the result of a right leg "injury." Especially because the claim was phrased in such broad terms, the Court concludes that Mr. Canuto's right leg claim may reasonably encompass varicose veins and edema. See DeLisio, 25 Vet.App. at 53 (noting that an appellant sufficiently files a claim by referring to the affected body part).Mr. Canuto also argues that he has "a claim for tender scars (including ofthe right leg) that has been pending since at least June 1988" (Appellant's Br. at 8), and that the Board should have considered whether he suffers from a "current disability" of a tender scar of the right leg. It appears that this argument was not presented to the Board in the first instance, which would be better able to determine whether the matter had been previously adjudicated and properly appealed between 1988 and the present. See Maggitt v. West, 202 F.3d 1370, 1377-78 (Fed. Cir. 2000) (holding thatthe Court has discretion to remand issues presented for the first time onappeal). Consequently, on remand,the Board should determine whether the issue of a "tender scar" requires Board adjudication.II. CONCLUSIONOn consideration of the foregoing, the Court SETS ASIDE the Board's June15, 2011,decision as to service connection for residuals of a right leg injury andREMANDS that matter forfurther proceedings consistent with this decision. On remand, Mr. Canutois free to submitadditional evidence and raise any other additional arguments to the Board,and the Board mustaddress such evidence and argument. See Kay v. Principi, 16 Vet.App. 529,534 (2002). The Board3shall proceed expeditiously, in accordance with 38 U.S.C. §§ 5109B,7112 (requiring Secretary toprovide for "expeditious treatment" of claims remanded by Board or Court).DATED: January 5, 2012Copies to:Amy F. Fletcher, Esq.VA General Counsel (027)4

Quattlebaum v. Shinseki, No. 09-3557 (Argued September 28, 2011 Decided January 5, 2012)Accrued Benefits, 38 U.S.C. 5121(c)

2012-01-11T08:46:00.001-08:00

Excerpt from decision below:B. PrejudiceAs noted above, Mrs. Quattlebaum asserts that she was prejudiced by the Board'smisunderstanding of the law. We agree. By improperly concluding that the statutory scheme prohibited a claim to reopen a prior denial of accrued benefits, the Board did not adjudicate whether she was entitled to accrued benefits, either via the 2001 original claim or the 2006 claim to reopen, and adjudication may lead to a successful outcome for Mrs. Quattlebaum. See Arneson v. Shinseki, 24 Vet.App. 379, 388-89 (2011) (finding prejudice where error could have made difference in outcome); see also supra note 1.==============================================UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMSNO. 09-3557PEGGY L. QUATTLEBAUM, APPELLANT,V.ERIC K. SHINSEKI,SECRETARY OF VETERANS AFFAIRS, APPELLEE.On Appeal from the Board of Veterans' Appeals(Argued September 28, 2011 Decided January 5, 2012)Kenneth M. Carpenter, of Topeka, Kansas, for the appellant. Peter J. Meadows, of Fort Lauderdale, Florida, was on the brief for appellant.James R. Drysdale, with whom Will A. Gunn, General Counsel; R. Randall Campbell,Assistant General Counsel; and Richard Mayerick, Deputy Assistant General Counsel, all of Washington, D.C., were on the brief for the appellee.Before KASOLD, Chief Judge, and MOORMAN and DAVIS, Judges.KASOLD, Chief Judge: Mrs. Peggy L. Quattlebaum, surviving spouse of World War IIveteran Cecil L. Quattlebaum, appeals through counsel a June 11, 2009, Board of Veterans' Appeals(Board) decision that denied her attempt to reopen a previously denied claim for accrued benefits.Mrs. Quattlebaum argues that the Board's statement that "finally denied claims for accrued benefits cannot be reopened once the [one-year] time period [of 38 U.S.C. § 5121(c)] expires" was an incorrect statement of law and not supported by adequate reasons or bases. Record (R.) at 7. The Secretary disputes this argument. For the reasons stated herein, we hold that there is no per se legal bar to reopening a denied accrued benefits claim. Because the Board decision on appeal rests solely on a misunderstanding of the law prejudicial to Mrs. Quattlebaum, it will be set aside and the matter remanded for further adjudication.I. BACKGROUNDMr. Quattlebaum served on active duty from September 1942 to February 1947. The record of proceedings reflects that, by letter dated August 9, 2000, the Montgomery, Alabama, VA regional office (RO) notified Mr. Quattlebaum that his claim for benefits for, inter alia, tremors of all fingers, twitching in finger, a heart condition, and a total disability rating for individual unemployability (TDIU) had been denied. Nevertheless, on October 20, 2000, and December 19, 2000, the RO continued to send Mr. Quattlebaum letters stating that "[w]e are still processing your application for COMPENSATION." R. at 51, 53. On December 29, 2000, Mr. Quattlebaum died.Mrs. Quattlebaum's claim for dependency and indemnity compensation (DIC), death pension, and accrued benefits was received by the RO on February 5, 2001. In a letter dated February 7, 2001, and still addressed to Mr. Quattlebaum, the RO acknowledged that "[w]e have received your application for benefits." R. at 55. In August 2001, the RO sent a letter to Mrs. Quattlebaum stating, inter alia, that "[a]n accrued benefit is any money VA owed Mr. Quattlebaum at the time of his death. We cannot approve your claim for accrued benefits because VA did not owe him any money." R. at 318. The RO attached to this letter a rating decision dated August 23, 2001, that denied her DIC claim and determined that eligibility to dependents' educational assistance was not established, but did not address her accrued benefits claim. Thereafter, Mrs. Quattlebaum filed a Notice of Disagreement (NOD) as to the denial of DIC and perfected an appeal that led to a November 2005 DIC award, effective from December 2000.1In January 2006, Mrs. Quattlebaum notified the RO that she had not received accrued 1 At oral argument, Mrs. Quattlebaum argued that her initial February 2001 claim for accrued benefits remains pending because the August 2001 rating decision did not address her claim for accrued benefits. This argument was notraised below or included in the briefing, and was presented by counsel for the first time at oral argument. Counsel attempted to justify this piecemeal litigation by explaining that he took over this case after the initial briefing had been submitted. Substitute counsels are reminded that, if they discover a new argument after the initial briefing, they generally must file a motion for leave to file a supplemental brief positing such argument, in order for the Court to consider it. See U.S. VET. APP. R. 27 (discussing applications for relief); cf. Fugere v. Derwinski, 1 Vet.App. 103, 105 (1990)("Advancing different arguments at successive stages of the appellate process does not serve the interests of the parties or the Court. Such a practice hinders the decision-making process and raises the undesirable specter of piecemeal litigation."). As discussed more fully in the text, infra at section III.B, remand is warranted in this case, Mrs. Quattlebaum can raise this issue below, and it will not be further addressed herein. See Maggitt v. West, 202 F.3d 1370, 1377-78 (Fed. Cir. 2000) (if Court has jurisdiction over a matter, issues presented for first time on appeal may be addressed, disregarded, or remanded back to Board for further development); Kay v. Principi, 16 Vet.App. 529, 534 (2002) (on remand, claimants may present, and the Board must consider, any additional evidence and argument in support of the matters remanded).2benefits, and asked the RO to review the file, determine whether her husband had a claim pending at the time of his death, and award any benefits due. The record of proceedings does not contain any notice to Mrs. Quattlebaum regarding how to substantiate her claim for accrued benefits or how to reopen her claim. Rather, in August 2006, the RO notified Mrs. Quattlebaum that her husband's claim had been denied pursuant to the August 9, 2000, letter, and advised her that, if she disagreed, she could file an NOD within one year. Mrs. Quattlebaum filed a timely NOD, identifying the December 2000 and February 2001 letters as evidence that a claim was pending at the time of her husband's death.A September 2007 Statement of the Case (SOC) restated that Mr. Quattlebaum had no pending claim at the time of his death, and also noted that accrued benefits were not warranted because the January 2006 claim had been submitted more than one year after her husband's death.Following Mrs. Quattlebaum's Substantive Appeal, the Board decision on appeal denied entitlement to accrued benefits. The Board reasoned that, because Mrs. Quattlebaum previously had been denied entitlement to accrued benefits, "her [January 2006] claim is essentially one to reopen." R. at 7. It further reasoned that "[t]he language in § 5121(c) is inconsistent with permitting consideration of a reopened claim received more than one year after death" and that "it is § 5121(c) which controls here, not § 5108." Id. The Board determined that, although Mrs. Quattlebaum's initial application met the section 5121(c) one-year filing requirement, her current claim "was filed more than five years after the Veteran's date of death" and therefore "does not meet the statutory requirement for paying accrued benefits." Id. This appeal followed.II. THE PARTIES' ARGUMENTSOn appeal, Mrs. Quattlebaum argues that the Board's statement that a surviving spouse cannot reopen an accrued benefits claim more than one year after the veteran's death was not supported by adequate reasons or bases and was not in accordance with law. She contends that the statutory scheme does not explicitly or implicitly exclude accrued benefits claims from being reopened, and asserts that 38 U.S.C. § 5121(c) can be read in harmony with 38 U.S.C. § 5108.During oral argument, Mrs. Quattlebaum asserted two counts of prejudice arising from the Board's misunderstanding of the law, to wit: (1) she was never informed of the evidence necessary to3substantiate her claim as required by 38 U.S.C. § 5103(a),2 such that she was deprived of a meaningful opportunity to participate in the processing of her claim, and (2) the Board, in rendering its erroneous decision on the law, never evaluated whether she had submitted new and material evidence.The Secretary argues that the Board correctly stated the law and that a surviving spouse cannot reopen an accrued benefits claim more than one year after the veteran's death because the statutory scheme does not permit the reopening of an accrued benefits claim. At oral argument, the Secretary further posited that an attempt to reopen an accrued benefits claim is an exercise in futility because an accrued benefits claim is based on the evidence "in the file at date of death" and such evidence cannot also constitute the "new and material" evidence required to reopen a claim. When confronted with the possibility that evidence could be both "in the file at date of death" and "new and material," the Secretary argued in the alternative that a motion for revision based on clear and unmistakable error (CUE) was the proper avenue for relief in such situations. The Secretary also asserts that Mrs. Quattlebaum has not demonstrated prejudice, because she merely asked for a review of the record and submitted no new and material evidence.III. DISCUSSIONA. Reopening Accrued Benefits ClaimsSection 5121 permits a surviving spouse to "stand in the shoes of the veteran and pursue his claim after his death" by filing an accrued benefits claim, Zevalkink v. Brown, 6 Vet.App. 483, 490 (1994), aff'd, 102 F.3d 1236 (Fed. Cir. 1996), so long as the surviving spouse files an application for accrued benefits "within one year after the [veteran's] date of death," 38 U.S.C. § 5121(c).32 The Secretary is required by 38 U.S.C. § 5103(a) to "inform the claimant of the information and evidence not of record (1) that is necessary to substantiate the claim, (2) that VA will seek to obtain, and (3) that the claimant is expected to provide," and further required by 38 C.F.R. § 3.159(b)(1) to "[4] request that the claimant provide any evidence in the claimant's possession that pertains to the claim." As an aside, this fourth requirement was repealed by the Secretary, effective May 30, 2008. See Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (notice of final rule amending § 3.159(b) and removing the fourth requirement of notice, because it "is not required by statute and is redundant of the three statutory requirements").3 In pertinent part, 38 U.S.C. § 5121 states:(a) Except as provided in sections 3329 and 3330 of title 31, periodic monetary benefits (other than4Additionally, if the application is incomplete at the time originally submitted, the Secretary must provide notification of the evidence necessary to complete the application, and an accrued benefits claimant has an additional year after such notification to submit that necessary evidence. Id.Section 5108 states that "[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim." 38 U.S.C. § 5108; see 38 C.F.R. § 3.156 (2011).The Board found the notion of reopening an accrued benefits claim pursuant to section 5108inconsistent with the one-year requirement of section 5121(c), reasoning that "accrued benefits [claims] cannot be reopened once the [one-year] time period expires." R. at 7. Succinctly stated, however, we see no such inconsistency.4 On its face, section 5121 in no way indicates a preclusionof reopening accrued benefits claims. Similarly, section 5108 on its face allows the reopening of any previously disallowed claim. Read together, an accrued benefits claim must be filed within one year after the veteran's date of death pursuant to section 5121(c), and an accrued benefits claim can be reopened upon the presenting of new and material evidence pursuant to section 5108.The Board also noted that the language of section 5121(c) regarding incomplete applications for accrued benefits – namely, that the Secretary must notify the claimant if an application is incomplete, and the claimant has one year thereafter to submit evidence completing the application – "indicates that once the specific time limit elapses, no accrued benefits will be paid if the requested evidence is ultimately submitted in an untimely matter." R. at 7. However, this discussion of insurance and servicemen's indemnity) under laws administered by the Secretary to which an individual was entitled at death under existing ratings or decisions or those based on evidence in the file at date of death (hereinafter in this section and section 5122 of this title referred to as "accrued benefits") and due and unpaid, shall, upon the death of such individual be paid . . . . . . . .(c) Applications for accrued benefits must be filed within one year after the date of death. If a claimant's application is incomplete at the time it is originally submitted, the Secretary shall notify the claimant of the evidence necessary to complete the application. If such evidence is not received withinone year from the date of such notification, no accrued benefits may be paid.4 Even if we perceived an inconsistency, we note that it is an appellate court's task "to construe the two statutes in a way that best resolves any possible conflict between them." Cathedral Candle Co. v. U.S. Int'l Trade Comm'n, 400 F.3d 1352, 1368 (Fed. Cir. 2005); see also Morton v. Mancari, 417 U.S. 535, 551 (1974) ("[W]hen two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective."); Terry v. Principi, 340 F.3d 1378, 1385 (Fed. Cir. 2003) ("When we construe a statute, we do so in the setting of the statutory scheme of which it is a part.").5incomplete applications is referring to applications that do not "establish that the claimant is within the category of persons eligible to receive accrued benefits." Hyatt v. Shinseki, 566 F.3d 1364, 1370 (Fed. Cir. 2009); see Evidence for Accrued Benefits, 67 Fed. Reg. 9638, 9639 (Mar. 4, 2002)(Secretary noting that the "evidence" to be submitted in section 5121(c) is "that information necessary to establish that the applicant for accrued benefits is the person eligible for and entitled to those benefits"). Once a claim is timely filed and an application is completed (i.e., status as a proper accrued benefits claimant is established), section 5121(c) in no way limits the submission of evidence pertaining to the merits of the accrued benefits claim or bars a claim to reopen.5Further, the Secretary's contention – that attempting to reopen an accrued benefits claim is an exercise in futility because an accrued benefits claim is based only on evidence "in the file at date of death," 38 U.S.C. § 5121(a), and therefore any new evidence submitted after death could not be considered and therefore would not be material to the claim – fails upon examination. This is because the Secretary has defined by regulation the phrase "evidence in the file at date of death,"38 U.S.C. § 5121(a), to include "evidence in VA's possession on or before the date of thebeneficiary's death, even if such evidence was not physically located in the VA claims folder on or before the date of death." 38 C.F.R. § 3.1000(d)(4) (2011). Thus, pursuant to this regulation, there may be circumstances – perhaps rare but certainly possible – where documents are in the Secretary's possession at the date of the veteran's death (and therefore are considered to be in the file at the date of death), yet have never been presented to the Agency decisionmakers. Any such document submitted to the decisionmaker subsequent to a denial of an accrued benefits claim would qualifyas "new" evidence pursuant to 38 C.F.R. § 3.156(a) ("New evidence means existing evidence not previously submitted to agency decisionmakers."), and might also be material if it (along with evidence previously in the record) "relates to an unestablished fact necessary to substantiate the claim. Id. ("Material 6 evidence . . . relates to an unestablished fact necessary to substantiate the5 It is undisputed that Mrs. Quattlebaum established her status as a proper accrued benefits claimant. Accordingly, we do not comment on whether a claimant who did not establish status as a proper accrued benefits claimant in the one-year period after notification can reopen the claim or whether "no accrued benefits may be paid."38 U.S.C. § 5121(c).6 Although evidence need only relate to an unestablished fact necessary to substantiate a claim in order to be deemed "material," 38 C.F.R. § 3.56, further evidentiary development generally is not permitted in accrued benefitsclaims, see 38 U.S.C. § 5121(a); 38 C.F.R. § 3.1000(d)(4).6claim."). For example, if evidence was in the possession of one RO at the date of death, and the surviving spouse's accrued benefits claim was submitted to and finally denied by another RO withoutknowledge of the evidence in the possession of the other RO, an accrued benefits claimant maysuccessfully reopen her claim with that evidence, if material.At oral argument, when confronted with the above possibility, the Secretary argued that the only proper avenue for obtaining relief in the circumstances described above is a motion for revision based on CUE. However, a CUE motion involves errors "based on the record . . . that existed" at the time of the previous decision, Russell v. Principi, 3 Vet.App. 310, 314 (1992) (en banc), while an attempt to reopen involves a supplement to the record that existed before the Agency decisionmaker, see 38 C.F.R. § 3.156(a). The situation of a claimant submitting evidence that was in the possession of the Secretary, but not previously in the claims file or before the decisionmaker, more closely aligns with the concept of reopening. Further, the CUE standard requires a claimant to demonstrate that the document "would manifestly have changed the outcome of the case," Sondel v. West, 13 Vet.App. 213, 221 (1999), imposing a significantly higher burden than that of demonstrating "a reasonable possibility of substantiating the claim," which is the new-and-material evidence standard. See Shade v. Shinseki, 24 Vet.App. 110, 117 (2010); see supra note 6. Thus, while a request for revision based on CUE is potentially one way to obtain accrued benefits when a timely claim for such benefits has been submitted but denied, that option does not preclude the option of seeking to reopen the claim based on new and material evidence.We also note that the Board's view, and the Secretary's argument, that a timely filed claim for accrued benefits, once denied and final, would not – as a matter of law – be subject to reopening, is inconsistent with the Secretary's position in the past. For example, in Moffitt v. Brown, 10 Vet.App. 214, 217 (1997), a surviving spouse filed an accrued benefits claim based on TDIU withinone year of her husband's death, which was finally denied in a 1987 Board decision. The spouse thereafter attempted to reopen the accrued benefits claim in 1991, but a 1994 Board decision found that no new and material evidence had been submitted since the 1987 decision. Id. at 222. On appeal, both the spouse and the Secretary argued that remand was warranted based on a newly service-connected kidney condition that "may constitute new and material evidence deemed to have been in the file at the date of death." Id. (internal quotation marks omitted). Rather than holding (as7the Secretary requests here) that the 1991 attempt to reopen was precluded by statute, the Court agreed that remand was warranted for the Board to readjudicate the accrued benefits claim based on TDIU in light of the kidney condition. Id.Further, in Wright v. Brown, 9 Vet.App. 300, 302-03 (1996), when a surviving spouse "submitted a document which could be interpreted as a claim alleging CUE . . . or, in the alternative, a request to reopen her [accrued benefits] claim" four years after a final Board denial, the Court did not hold (as the Secretary requests here) that such an attempt to reopen was precluded by statute.Rather, the Court stated that, "[t]o the extent that the document submitted . . . may be considered as a request to reopen," the spouse had failed to demonstrate new and material evidence. Id. at 303.While acknowledging that an agency's interpretation of a statute that it is charged with administering is subject to "some deference," Cathedral Candle Co., 400 F.3d at 1365, we also recognize that "'considerably less deference'" (Gose v. U.S. Postal Serv., 451 F.3d 831, 837-38 (Fed. Cir. 2006) (quoting Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 515 (1994)) is due to aninterpretation that is (1) articulated by appellate counsel, rather than promulgated formally by administrative officials, (2) inconsistent with previous agency positions, or (3) not a reflection of the "'specialized expertise'" of the agency, Cathedral Candle Co., 400 F.3d at 1367 (quoting U.S. v. Mead Corp., 533 U.S. 218, 234 (2001)). Here, deference to the Secretary's current interpretation of the statutory scheme is particularly unjustified, where (1) the Secretary has not identified any regulation, VA Office of General Counsel opinion, or Agency-wide pronouncement positing his current interpretation, (2) this current interpretation is inconsistent with positions previously taken in Moffitt and Wright, both supra, and (3) the Secretary has not articulated – and the Court cannot discern – how this interpretation reflects his specialized expertise. See Cathedral Candle Co., 400 F.3d at 1367; see also Gose, supra (citing Bowen v. Georgetown Univ. Hosp, 488 U.S. 204, 212(1988), and Inv. Co. Inst. v. Camp, 401 U.S. 617, 628 (1971)).In sum, as long as an accrued benefits claimant submits a claim within one year of the date of death of the veteran, the claim is timely. Once timely submitted and thereafter denied because accrued benefits are deemed not warranted, it is subject to being reopened if the claimant submits new and material evidence. Accordingly, we hold that the Board's determination that an accrued benefits claim cannot be reopened more than one year after the veteran's death is not in accordance8with law and will be reversed. See 38 U.S.C. § 7261(a)(3)(A) (Court shall hold unlawful and set aside decisions and conclusions "not in accordance with law").B. PrejudiceAs noted above, Mrs. Quattlebaum asserts that she was prejudiced by the Board'smisunderstanding of the law. We agree. By improperly concluding that the statutory scheme prohibited a claim to reopen a prior denial of accrued benefits, the Board did not adjudicate whether she was entitled to accrued benefits, either via the 2001 original claim or the 2006 claim to reopen, and adjudication may lead to a successful outcome for Mrs. Quattlebaum. See Arneson v. Shinseki, 24 Vet.App. 379, 388-89 (2011) (finding prejudice where error could have made difference in outcome); see also supra note 1.In this regard, we note that the record of proceedings reflects that Mrs. Quattlebaum attached two VA letters in support of her claim. These letters (1) indicate that Mr. Quattlebaum's claim was still being considered by the Secretary at the time of Mr. Quattlebaum's death, (2) were not mentioned in the August 2001 RO letter that stated that the RO "cannot approve your claim foraccrued benefits because VA did not owe [the veteran] any money" (R. at 318), and (3) appeared in the record of proceedings only once (as submitted by Mrs. Quattlebaum), indicating they may not have been in the record at the time of the August 2001 RO letter. Whether the August 2001 RO letter constituted a denial of the accrued benefits claim and whether these letters constitute new and material evidence are factual determinations to be made by the Secretary or the Board in the firstinstance. See Prillaman v. Principi, 346 F.3d 1362, 1367 (Fed. Cir. 2003) (concluding that new-and material-evidence determinations are factual determinations); Thompson v. Gober, 14 Vet.App. 187, 188 (2000) (per curiam) (stating that the Court "'should not simply [make] factual findings on itsown'" (quoting Hensley v. West, 212 F.3d 1255, 1263 (Fed. Cir. 2000))). Remand is warranted. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (stating that remand is appropriate "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").On remand, Mrs. Quattlebaum may present, and the Board must consider, any evidence to the extent otherwise permitted by law (see, e.g., 38 U.S.C. § 5121 and 38 C.F.R. § 3.1000(d)(4)), and any additional argument in support of the matter remanded. See Kay, 16 Vet.App. at 534. This9matter is to be provided expeditious treatment on remand. See 38 U.S.C. § 7112.IV. CONCLUSIONUpon consideration of the foregoing, the finding of the June 11, 2009, Board that an accrued benefits claim cannot as a matter of law be reopened more than one year after a veteran's death isREVERSED, and the decision of the Board denying Mrs. Quattlebaum's attempt to reopen her accrued benefits claim is SET ASIDE and the matters REMANDED for further development and readjudication consistent with applicable law and this decision.10

Federal Circuit, Guillory v. Shinseki, No. 2011-7047 (Decided: January 3, 2012)

2012-01-03T08:29:00.000-08:00

United States Court of Appeals for the Federal Circuit__________________________JOHN L. GUILLORY,Claimant-Appellant,v.ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS,Respondent-Appellee.__________________________2011-7047__________________________Appeal from the United States Court of Appeals for Veterans Claims in case no. 06-2926, Judge Lawrence B. Hagel.___________________________Decided: January 3, 2012___________________________MARK A. DELPHIN, Delphin Law Offices, PC, of Lake Charles, Louisiana, for claimant-appellant.SCOTT D. AUSTIN, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, United States Depart-ment of Justice, of Washington, DC, argued for respon-dent-appellee. With him on the brief were TONY WEST, Assistant Attorney General, JEANNE E. DAVIDSON, Direc-tor, and MARTIN F. HOCKEY, JR., Assistant Director. Of counsel on the brief were MICHAEL J. TIMINSKI, DeputyGUILLORY v. DVA 2Assistant General Counsel, and BRIAN D. GRIFFIN, Attor-ney, United States Department of Veterans Affairs, of Washington, DC.__________________________Before LINN, DYK, and REYNA, Circuit Judges.DYK, Circuit Judge.John L. Guillory (“Guillory”) appeals from a decision of the United States Court of Appeals for Veterans Claims (“Veterans Court”). The Veterans Court affirmed the Board of Veterans’ Appeals (“the Board”) decision finding no clear and unmistakable error (“CUE”) in decisions declining to award him additional special monthly com-pensation for aid and attendance retroactive to 1966. Guillory v. Shinseki, No. 06-2926, 2010 WL 4239763 (Vet. App. Oct. 28, 2010). We affirm.BACKGROUNDThis is the second appeal arising from this case and the background is set forth in more detail in this court’s previous decision. Guillory v. Shinseki, 603 F.3d 981, 984–86 (Fed. Cir. 2010) (“Guillory I”). In short, Guillory asserted that as a result of service-related injuries, he suffered, inter alia, complete loss of use of his entire right arm and of both legs from the waist down, as well as injuries to his buttocks, thighs, hips, and torso. He was honorably discharged on October 27, 1966. In a June 1967 regional office (“RO”) decision, Guillory was awarded, effective on the date of his discharge, compensa-tion at the total disability rate under 38 U.S.C. § 314(j) (1964),1 additional special monthly compensation at the1 At the time of Guillory’s first claim for disability compensation, the statutory provision governing disability compensation was found at 38 U.S.C. § 314 (1964). This provision was subsequently recodified at 38 U.S.C. § 1114.3 GUILLORY v. DVArate between subsections (l) and (m), and an award under subsection (k). The RO did not award Guillory aid and attendance because the law in 1967 required the veteran to have a special monthly compensation rating of (o) to be eligible. 38 U.S.C. § 314(r) (1964). In 1970, the RO determined that there was CUE in the 1967 decision and awarded Guillory special monthly compensation under subsection (m) based on the loss of use of his legs in addition to an award under subsection (k) for the loss of use of his right hand, retroactive to October 27, 1966. Guillory nonetheless fell short of the (o) rating required for aid and attendance at that time.Over the next decade, due to intervening changes in the law, Guillory’s rating increased two half-steps to the rate under subsection (n). In 1979, the law was amended to provide that a veteran is eligible for aid and attendance if he is entitled to receive either (1) at least the rate under subsection (o) or (2) the intermediate rate between sub-sections (n) and (o) (sometimes referred to as “(n ½)”) and a separate award under subsection (k). Veterans’ Disabil-ity Compensation and Survivors’ Benefits Amendments of 1979, Pub. L. No. 96-128, § 104, 93 Stat. 982, 984. Guillory’s case was not reviewed again until 1992, at which time the RO granted service connection for a sei-zure disorder and awarded Guillory a 100% disability rating. Because this additional independent disability qualified Guillory for a full-step increase in his special monthly compensation rating from (n) to (o) pursuant to 38 C.F.R. § 3.350(f)(4), and because he was receiving compensation under subsection (k), he was then eligibleDepartment of Veterans Affairs Codification Act, Pub. L. No. 102-83, § 5, 105 Stat. 378, 406 (1991). Throughout the opinion, we cite to the statutes applicable as of the date of the relevant RO decision.GUILLORY v. DVA 4for and was awarded aid and attendance under subsection (r), effective May 1991, the date of the seizure diagnosis.In September 2001, Guillory asserted a claim of CUE based on the RO’s failure to award him special monthly compensation for aid and attendance effective the date of his original rating in 1966. He appealed an adverse RO decision to the Board in 2003, making two specific claims for earlier entitlement to aid and attendance. First, Guillory argued that the date of onset for his seizure disorder was earlier than May 1991. Second, he argued that the ratings in the initial 1967 RO decision did not properly account for the loss of use of his right and left trunk through the knee and buttocks. The Board con-cluded in its 2003 decision that the various ratings deci-sions in Guillory’s case were not the product of CUE. On appeal, the Veterans Court remanded for further consid-eration of both of Guillory’s claims.In its 2006 remand decision, the Board again refused to assign an effective date for aid and attendance before May 1991, holding that there was no CUE in the refusal to grant an earlier effective date for his seizure disorder. The Board, however, did not specifically address Guillory’s second claim related to the additional injuries to his trunk and buttocks. On appeal, the Veterans Court held that it did not have jurisdiction over Guillory’s claims of CUE for the RO’s failure to independently rate him for his additional injuries because the issue had not been preserved.In Guillory I, we reversed the Veterans Court’s deci-sion that it lacked jurisdiction. 603 F.3d at 986–87. We held that Guillory had in fact always maintained, and the Board had addressed in its 2003 decision, “the contention that he was mistakenly rated independent of the seizure disorder, due to the loss of use of his right and left trunk5 GUILLORY v. DVAthrough knee and buttocks, thus entitling him to a higher rating retroactive to 1966.” Id. at 987. We remanded to the Veterans Court to address this claim on the merits. Id.On remand, the Veterans Court considered Guillory’s arguments but found that it was “clear from the Board’s discussion that the prior regional office decisions ac-counted for Mr. Guillory’s complaints regarding the loss of use of his right and left trunk through the knees, includ-ing the buttocks, when they evaluated his condition under subsection (m).” Guillory, 2010 WL 4239763, at *7. The Veterans Court held that because “Mr. Guillory’s argu-ments amount[ed] only to a disagreement with how the facts were weighed by the regional office,” “the Board’s finding of no clear and unmistakable error in the previous regional office decision[] [was] not ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,’ and [was] supported by an adequate statement of reasons or bases.” Id. at *8 (quoting 38 U.S.C. § 7261(a)(3)(A)).Guillory timely appealed the Veterans Court’s deci-sion, and jurisdiction is asserted under 38 U.S.C. § 7292(a).DISCUSSIONIAt the outset, the VA challenges our jurisdiction over this appeal. Pursuant to 38 U.S.C. § 7292(a), as amended in 2002, this court has appellate jurisdiction “with respect to the validity of a decision of the [Veterans] Court on a rule of law or of any statute or regulation . . . or any interpretation thereof . . . that was relied on by the Court in making the decision.” Despite the VA’s arguments to the contrary, Guillory makes arguments concerning theGUILLORY v. DVA 6interpretation of the governing disability compensation statutes and regulations in his favor. Because “the deci-sion below regarding a governing rule of law would have been altered by adopting the position being urged [by Guillory], this court has [‘rule of law’] jurisdiction to entertain the matter.” Wilson v. Principi, 391 F.3d 1203, 1208 (Fed. Cir. 2004) (quoting Morgan v. Principi, 327 F.3d 1357, 1363 (Fed. Cir. 2003)). Accordingly, this court may decide all relevant questions of law, 38 U.S.C. § 7292(d)(1), and legal determinations of the Veterans Court are reviewed de novo. Willsey v. Peake, 535 F.3d 1368, 1372 (Fed. Cir. 2008).IIThe issue is whether the Veterans Court correctly in-terpreted the disability compensation scheme in deter-mining that there was no CUE in the decision to deny Guillory aid-and-attendance benefits back to 1966, not whether the application of the law to the particular facts of this case was correct. See Willsey, 535 F.3d at 1372. In 1967, when Guillory first filed a claim for compensation under the VA’s disability compensation scheme, the statute governing aid and attendance provided: “If any veteran, otherwise entitled to the compensation author-ized under subsection (o) of this section . . . is in need of regular aid and attendance, he shall be paid, in addition to such compensation, a monthly aid and attendance allowance . . . .” 38 U.S.C. § 314(r) (1964). The VA does not dispute that, as early as 1966, the evidence demon-strated that Guillory was “in need of regular aid and attendance.” Resp’t-Appellee’s Br. 39. The parties dis-agree, however, as to whether the other statutory criteria were met at that time.Guillory makes two primary arguments that he met the statutory requirements for aid and attendance in 19677 GUILLORY v. DVAand thus that the initial 1967 RO decision was the prod-uct of CUE. First, Guillory argues that in 1967 he should have qualified for the rate under subsection (o), and thus aid and attendance, because he “suffered disability under conditions which would entitle him to two or more of the rates provided in one or more subsections (l) through (n) of [§ 314], no condition being considered twice in the determination.” 38 U.S.C. § 314(o) (1964). Specifically, he argues that he was entitled to at least two of the following rates: (1) a rate under subsection (l) for having lost a hand and a foot; (2) a rate under subsection (m) for having suffered the loss of use of “two extremities [his legs] . . . preventing natural . . . knee action with prosthe-sis in place”; and (3) a rate under subsection (n) for having lost “two extremities [i.e., his legs] so near the . . . hip as to prevent the use of a prosthetic appliance.”2 See id. § 314(l)–(n). Guillory asserts that, under a proper inter-pretation of subsection (o), these awards would not be duplicative.This issue turns on whether the restriction in subsec-tion (o) that “no condition be[] considered twice” should be interpreted to allow a veteran to recover separately for2 Guillory also alleges CUE in the 1967 RO decision because he was originally awarded for only the loss of use of one hand and one foot. This error, however, was al-ready corrected in subsequent RO decisions that found CUE in the 1967 decision, and Guillory was awarded benefits retroactively to October 27, 1966, the date of his discharge. See Guillory v. Peake, No. 06-2926, 2008 WL 5155291, at *1 (Vet. App. Dec. 9, 2008). When it is found that a decision by an RO contains CUE, it is “revised” to correct the error and it “has the same effect as if the decision had been made on the date of the prior decision.” 38 U.S.C. § 5109A(a)–(b). When the RO found CUE in its 1967 decision, the decision was effectively revised to no longer contain the error. Thus, the 1967 RO decision no longer contains this error alleged by Guillory.GUILLORY v. DVA 8the loss of use of his legs and the loss of use of his feet. The VA regulations interpreting this requirement in 1967 stated that “[d]eterminations must be based upon sepa-rate and distinct disabilities.” 38 C.F.R. § 3.350(e)(2) (1967).Concluding that the loss of use of a foot is a separate and distinct injury from the loss of use of the leg would allow any veteran who anatomically lost both of his legs under subsection (n) to automatically qualify for a higher rate under subsection (o) because he necessarily would also have anatomically lost both of his feet under subsec-tion (l). This would render part of subsection (n) meaning-less because veterans who anatomically lost both legs would always be covered by subsection (o). We also note that a separate regulation, in discussing the bilateral factor for combining disabilities, states: “The use of the term[] . . . ‘legs’ is not intended to distinguish between the . . . thigh, leg, and foot, but relates to the . . . lower ex-tremities as a whole.” 38 C.F.R. § 4.26(a) (1967). This distinction is equally applicable here. Thus, it is clear that an injury to a leg subsumes any injury to the foot, and that Guillory’s interpretation is in error. The Veter-ans Court did not err in holding that the loss of use of a foot is subsumed within, and not separate and distinct from, the loss of use of a leg.Guillory’s second argument is that in the 1967 RO de-cision he was not awarded for other injuries, particularly the loss of use of his buttocks, which should have entitled him to an additional half-step increase under 38 C.F.R. § 3.350(f)(3), thus putting him at the rate between subsec-tions (n) and (o) and entitling him to aid and attendance. To be eligible for a half-step increase, “the disability or disabilities independently ratable at 50 percent or more must be separate and distinct and involve different ana-tomical segments or bodily systems from the conditions9 GUILLORY v. DVAestablishing entitlement under 38 U.S.C. 314 (l) through (n).” 38 C.F.R. § 3.350(f)(3) (1967). Because Guillory was entitled to special monthly compensation under subsec-tion (m) based on the loss of use of his legs, there is a question here whether, under this regulation, an injury to the legs is “separate and distinct and involve[s] different anatomical segments” from injuries to buttocks, hips, and trunk.We need not resolve this question, though, since the premise of Guillory’s argument misinterprets the relevant statutes. Because Guillory’s claim requires a showing of CUE in the 1967 RO decision, we must assess his claim based on 1967 law. The law in 1967 required a rating under subsection (o) to qualify for aid and attendance. See 38 U.S.C. § 314(r) (1964). The law was not changed to allow aid and attendance based on an (n ½) + (k) rating until 1979. Veterans’ Disability Compensation and Sur-vivors’ Benefits Amendments of 1979, Pub. L. No. 96-128, § 104, 93 Stat. 982, 984. Thus, even if Guillory were entitled to an (n ½) rating in the 1967 RO decision based on an additional half-step increase for his additional injuries, an issue we do not decide, he still would not be eligible for aid and attendance at that time.Finally, we note that Guillory appears to urge on appeal two arguments not raised below. Guillory argues that awards should have been made in 1967 for the loss of use of both thighs, both buttocks, both hips, and the upper right torso, thus entitling him to two full-step increases to the rating under subsection (o) and, therefore, to aid and attendance. Guillory, however, did not raise this particular argument before the Veterans Court or the Board. So too the issue of whether Guillory was entitled to an additional half-step increase in 1979, after the statutory change, based on his buttocks or other injuries—thus giving him an award of (n ½) + (k) and entitling him toGUILLORY v. DVA10aid and attendance due to the intervening change in law—was not raised or addressed below, nor is it clear how such a claim would be supported by a CUE theory. Because these arguments were not raised below, we do not address them here. If Guillory wishes to pursue either of these theories, he must first raise them with specificity before the RO.All of Guillory’s remaining arguments are disagreements with how the facts were weighed or how the law was applied to the facts in this particular case, which we do not have jurisdiction to review. 38 U.S.C. § 7292(d)(2). Based on our interpretations of the statutes at issue, we see no error in the Veterans Court opinion and therefore affirm.AFFIRMEDCOSTSNo costs.

Panel Decision, Applicability and Waiver of 120-Day Filing Rule

2011-12-28T07:36:00.001-08:00

Excerpts from decision below;"Accordingly, we hold that the 120-day period is subject to equitable tolling within the parameters established by Bailey and its progeny, and the precedential decisions of this Court prior4to this Court's Henderson decision.======================================"II. CONCLUSIONFor the reasons stated above, thttp://veteranclaims.wordpress.com/wp-admin/post-new.php?post_type=posthe Court holds that the 120-day filing period in section 7266(a) is subject to equitable tolling within the parameters established by Bailey and its progeny, and the precedential decisions of this Court prior to this Court's Henderson decision, but that it is not subject to waiver or forfeiture by the Secretary."======================================UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMSNO. 08-1468ANTHONY BOVE, APPELLANT,ANDNO. 09-3758AQUEL RASHEED, APPELLANT,ANDNO. 10-2139ALFONSO LOPEZ, APPELLANT,ANDNO. 10-2622WESLEY L. KING, APPELLANT,V.ERIC K. SHINSEKI,SECRETARY OF VETERANS AFFAIRS, APPELLEE.Before KASOLD, Chief Judge, and MOORMAN and DAVIS, Judges.O R D E RAs a result of this Court's decision in Henderson v. Peake, 22 Vet.App. 217 (2008) (holdingthat the 120-day time limit to file a Notice of Appeal (NOA) was jurisdictional and not subject to equitable tolling), a significant number of appeals were dismissed for lack of jurisdiction due to the untimely filing of an NOA. Although Henderson was affirmed by the U.S. Court of Appeals for the Federal Circuit (Federal Circuit), 589 F.3d 1201 (Fed. Cir. 2009), the U.S. Supreme Court ultimately held that the 120-day time limit to file an NOA pursuant to 38 U.S.C. § 7266(a)1–although an important procedural rule–was not jurisdictional, 131 S. Ct. 1197, 1206 (2011). The Supreme Court1 "In order to obtain review by the Court of Appeals for Veterans Claims of a final decision of the Board of Veterans' Appeals, a person adversely affected by such decision shall file a notice of appeal with the Court within 120 days after the date on which notice of the decision is mailed pursuant to section 7104(e) of this title." 38 U.S.C. § 7266(a).expressed "no view" on the question of whether this rule was subject to equitable tolling. Id. at 1206, n.4. The case was remanded to the Federal Circuit, id. at 1206, and remanded without further comment by the Federal Circuit to this Court, 417 F. App'x 982 (Fed. Cir. 2011).These cases are consolidated for the sole purpose of addressing whether the 120-day filing period is subject to equitable tolling and, if so, whether the circumstances in each case warrant equitable tolling. See U.S. VET. APP. R. 3(e) ("Appeals may be consolidated by order of the Court on its own initiative or on a party's motion."). The facts, in short summary, follow.In Bove, subsequent to a November 9, 2007, Board decision, the pro se appellant filed an NOA at the regional office (RO) on January 14, 2008. At that time, he had 54 days remaining before his 120-day appeal period expired on March 10, 2008. The RO, however, did not forward the NOA to the Court until May 12, 2008, well after the 120-day period had expired. The Secretary moved to dismiss the appeal on July 23, 2008, for lack of jurisdiction and, in further briefing, expressly opposed equitable tolling (May 2009 Supplemental Memorandum of Law at 3-5). The appellant, through counsel, responded that this Court had jurisdiction to consider his appeal based on Santana-Venegas v. Principi, 314 F.3d 1293 (Fed. Cir. 2002) (accepting NOA submitted to the RO within the 120-day appeal period). See June 18, 2009, Appellant's Response to Mar. 12, 2009, Court Order at 4, 11. The Secretary did not thereafter respond. The Court dismissed the appeal based on a lack of jurisdiction, but the Federal Circuit vacated that dismissal after the Supreme Court's decision in Henderson. See 421 F. App'x 965 (Fed. Cir. 2011).In Rasheed, subsequent to a January 12, 2009, Board decision, the appellant filed through counsel an NOA at this Court on October 9, 2009, well after the 120-day period had expired. The Secretary moved to dismiss the appeal based on a lack of jurisdiction. Subsequently, the appellant asserted that his mental disabilities prevented him from timely filing his NOA and that thenotification he received regarding how to appeal was not properly tailored to his circumstances. The Secretary did not thereafter respond. The Court dismissed the appeal based on a lack of jurisdiction, but the Federal Circuit vacated that dismissal after the Supreme Court's decision in Henderson. See 424 F. App'x 953 (Fed. Cir. 2011).In Lopez, subsequent to a February 25, 2010, Board decision, the appellant filed through counsel an NOA at the Court on June 28, 2010, one business day after the expiration of the 120-day appeal period. He asserts that his mental disabilities prevented him from timely filing his NOA. Inbriefing subsequent to the Supreme Court's decision in Henderson, the Secretary generally asserts that section 7266(a) is subject to equitable tolling and that equitable tolling might be appropriate in this instance. The Court has not yet acted on Mr. Lopez's appeal.In King, subsequent to a March 8, 2010, Board decision, the pro se appellant filed an NOA at the RO on May 26, 2010. At that time, he had 41 days remaining before his 120-day appeal period expired on July 6, 2010. The RO, however, did not forward it to the Court until August 9, 2010, well after the 120-day period had expired. The Secretary presented no objection or comment as to whether the time to file should be equitably tolled. The Court dismissed the appeal based on lack of jurisdiction, but the appellant has filed for reconsideration.2We first discuss whether the 120-day period is subject to equitable tolling, and what weight should be accorded to the Secretary's position as to whether equitable tolling should be accorded in any given case. We thereafter address each of the cases consolidated herein.I. ANALYSISA. An Important Procedural RuleWhen creating the United States Court of Appeals for Veterans Claims and granting it jurisdiction to review decisions of the Board, Congress prescribed a 120-day period for appeals to this Court. See 38 U.S.C. § 7266(a).2 Initially viewed as a jurisdictional barrier to the exercise ofthis Court's authority to review Board decisions, see Butler v. Derwinski, 960 F.2d 139, 140-41 (Fed. Cir. 1992); Cleary v. Brown, 8 Vet.App. 305, 307 (1995), over time it was held to be a time limitation that could be equitably tolled. Bailey v. West, 160 F.3d 1360 (Fed. Cir. 1998) (en banc)(relying on Irwin v. Dep't of Vet. Affairs, 498 U.S. 89 (1990), and holding that equitable tolling generally was available in suits against the United States, unless Congress has expressed its intent to the contrary); see Jaquay v. Principi, 304 F.3d 1276 (Fed. Cir. 2002) (en banc).Subsequently, however, applying the Supreme Court's analysis in Bowles v. Russell, 551 U.S. 205 (2007) (finding that the time limitation set forth in 28 U.S.C. § 2107, regarding appeals from a district court to a court of appeals, was jurisdictional and not subject to equitable tolling), thisCourt determined that the Bowles analysis pre-empted Bailey and its progeny and held that the 120-day period is jurisdictional and not subject to equitable tolling. Henderson, 22 Vet.App. at 217-21.As noted above, the Federal Circuit agreed and explicitly overturned Bailey and its progeny. Henderson, 589 F.3d at 1220. In reversing the Federal Circuit, the Supreme Court specifically noted, inter alia, the unique statutory scheme of veterans benefits adjudication and the terms and placement of section 7266(a) within the Veterans' Judicial Review Act of 1988, Pub. L. No. 100-687, before ultimately concluding that the 120-day limit to file an appeal for judicial review is not jurisdictional.Henderson, 131 S. Ct. at 1204-07. Significantly, the Supreme Court also noted that section 7266(a) is "an important procedural rule" and explicitly expressed "no view" on the question of whether this rule is subject to equitable tolling. Id. at 1206, n.4.2 Although the typical filing period for civil-action appeals involving federal agencies in the federal courts is 60 days, see, e.g., Fed. R. App. P. 4(a)(1)(B) (providing that when the United States or an agency is a party, a notice of appeal may be filed by any party within 60 days after the judgment or order appealed from is entered); 5 U.S.C. § 7703(b)(1) ("any petition for review [shall be filed in the Federal Circuit and] must be filed within 60 days after the date the petitioner received notice of the final order or decision of the [Merit Systems Protection Board]"); 15 U.S.C.§ 77i(a) (providing for review of orders from Securities and Exchange Commission by the D.C. Circuit within 60 days after the entry of such order); 28 U.S.C. § 2344 ("Any party aggrieved by [a] final order [of specified agencies] may, within 60 days after its entry, file a petition to review the order in the court of appeals wherein venue lies."), Congressenacted a more liberal, 120-day time limit for filing at this Court. See Pub. L. No. 100-687 (1988); see also Bailey v. West, 160 F.3d 1360, 1369 (Fed. Cir. 1998) (Michel, J., concurring in the result) ("Both the Supreme Court and this court have long recognized that the disputes that arise in this system are subject to procedural and other rules that are distinctlyadvantageous to the veteran claimant" (citing, inter alia, Brown v. Gardner, 513 U.S. 115, 117-18 (1994))).3Although reversing one decision that, in turn, had reversed previous decisions generally has the effect of reinstating those previous decisions, see Wheeler v. John Deere Co., 935 F.2d 1090, 1096 (10th Cir. 1991) ("A judgment reversed by a higher court is 'without any validity, force oreffect, and ought never to have existed.'" (quoting Butler v. Eaton, 141 U.S. 240, 244 (1891))); see also Keller v. Hall, 111 F.2d 129, 131 (9th Cir. 1940), this is true only when the foundation of the other decisions is not disturbed, cf. Metropolitan Life Ins. Co. v. Ward, 470 U.S. 869, 891 (1985)(addressing whether a recent decision undermined the force of a previous case's analysis). Here, although Bailey and its progeny held that this Court's 120-day period was subject to equitable tolling, these cases did so without the benefit of the Supreme Court's analysis of section 7266(a)'s context within the Veterans' Judicial Review Act of 1988 and the unique statutory scheme of veterans benefits or the Supreme Court's explicit recognition that the 120-day period was an important procedural rule. In this context, and inasmuch as neither the Supreme Court nor the Federal Circuit in remanding this matter expressed a view as to whether section 7266(a) may be subject to equitable tolling, we examine anew to what degree, if any, this "important procedural rule" is subject to equitable tolling.B. Equitable Tolling and Section 7266(a)The doctrine of equitable tolling has generally established parameters, and over time decisions of the Federal Circuit and this Court have addressed those parameters in the context of appeals to this Court. Thus, for example, equitable tolling was not applied when failure to file was due to general negligence or procrastination. Rather, it was applied only when circumstancesprecluded a timely filing despite the exercise of due diligence, such as (1) a mental illness rendering one incapable of handling one's own affairs or other extraordinary circumstances beyond one's control, (2) reliance on the incorrect statement of a VA official, or (3) a misfiling at the regionaloffice or the Board. See, e.g., Brandenburg v. Principi, 371 F.3d 1362, 1364 (Fed. Cir. 2004) (NOA submitted to Board); Barrett v. Principi, 363 F.3d 1316, 1321 (Fed. Cir. 2004) (mental illness rendering one incapable of handling his own affairs); Santana-Venegas, 314 F.3d at 1298 (NOAsubmitted to RO); Bailey, 160 F.3d at 1365-68 (reliance on incorrect statement of VA official); McCreary v. Nicholson, 19 Vet.App. 324 (2005) (extraordinary circumstances), adhered to on reconsideration by 20 Vet.App. 86 (2006).From the time of the Bailey decision in 1998 through this Court's decision in Henderson, the Court has applied equitable tolling without any significant adverse consequences, such as "administrative complexity or unpredictable fiscal peril," reasons why we might otherwise determinethat the 120-day period should not be tolled when presented with circumstances that otherwise warrant equitable tolling. Bailey, 160 F.3d at 1365. Based on this observation, and the Federal Circuit's observation that "there is no reason to believe that Congress wanted to bar [the] application[of equitable tolling] to section 7266," id. at 1368, we perceive no valid reason for not permitting the 120-day period to be equitably tolled within the parameters established in Bailey and its progeny, and the precedential decisions of this Court prior to this Court's Henderson decision.Accordingly, we hold that the 120-day period is subject to equitable tolling within the parameters established by Bailey and its progeny, and the precedential decisions of this Court prior4to this Court's Henderson decision. In so holding, we are mindful that Congress has authorized the Court to prescribe its own rules of practice and procedure, see 38 U.S.C. § 7264, such that our holding today is subject to revision, pursuant to the Court's rule-making authority.C. Waiver or Forfeiture and Section 7266(a)Having held that the 120-day period is subject to equitable tolling, we turn to an issue of first impression. Specifically, because the Secretary generally agrees that equitable tolling might be applied in Lopez, presented no objection or comment as to equitable tolling in King, and objectedto equitable tolling in Bove and Rasheed with the understanding at the time that the time to file was jurisdictional, we must address whether tolling the 120-day period remains a matter for the Court to raise sua sponte and whether it is subject to waiver or forfeiture by the appellee. We note thatnonjurisdictional statutory time limitations subject to equitable tolling generally are subject to waiver and forfeiture. See Union Pacific R. Co. v. Bhd. of Locomotive Eng'rs and Trainmen, 130 S. Ct. 584, 596 (2009) (noting that nonjurisdictional rule "is ordinarily 'forfeited if the party asserting the rule waits too long to raise the point'" (quoting Kontrick v. Ryan, 540 U.S. 443, 456 (2004)); Day v. McDonough, 547 U.S. 198, 202 (2006) ("Ordinarily in civil litigation, a statutory time limitation isforfeited if not raised in a defendant's answer or in an amendment thereto [pursuant to the Federal Rules of Civil Procedure]. And we would count it an abuse of discretion to override a State's deliberate waiver of a limitations defense."). We further note that whether civil litigation has beeninitiated in a timely manner generally is an affirmative defense raised by an opposing party, as opposed to a matter sua sponte raised by the Court. See John R. Sand & Gravel Co. v. U.S., 552 U.S. 130, 133 (2008) (citing the Federal Rules of Civil Procedure and noting that "the law typically treatsa limitations defense as an affirmative defense . . . subject to rules of forfeiture and waiver"); but see Day, 547 U.S. at 202 (holding that a federal court may, "on its own initiative," dismiss a habeas petition as untimely where the State has miscalculated and not objected to the timeliness of the petition).However, we do not believe the general rule is for application in appeals to this Court.Unlike ordinary civil litigation, the appellee in appeals to this Court is always the same person–the Secretary of the Department of Veterans Affairs, who also is barred by statute from initiating an appeal to the Court. 38 U.S.C. § 7252. To hold that the Secretary could affirmatively or byforfeiture waive the 120-day filing period would cede some control of the Court's docket to the Secretary and permit arbitrary selection of which veteran's late filing he finds worthy of waiver, a process devoid of consistency, procedural regularity, and effective judicial review. See Baldwin County Welcome Center v. Brown, 466 U.S. 147, 152 (1984) ("'[I]n the long run, experience teaches that strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law.'" (quoting Mohasca Corp. v. Silver, 447 U.S. 807, 826(1980))); see also National RR Passenger Corp v. Morgan, 536 U.S. 101, 113 (2002) ("'Procedural requirements established by Congress for gaining access to the federal courts are not to be disregarded by courts out of a vague sympathy for particular litigants.'" (quoting Baldwin CountyWelcome Center, 466 U.S. at 152)). In a very real sense, permitting the Secretary to waive the time to appeal to the Court would give him unwarranted control over any late-filed appeal, a control he5otherwise is barred by statute from having. 38 U.S.C. § 7252 ("The Secretary may not seek review of any [Board] decision.").In addition, this Court specifically was formed as a federal appellate court–a judicial body independent of the Secretary–in reaction to the previous regime of complete control by the Secretary over the law governing VA benefits. See, e.g., H.R. REP. No. 100-963, at 26 (1988) ("The creationof [this Court] is intended to provide a more independent review by a body which is not bound by the [Secretary's] view of the law, and that will be more clearly preceived [sic] as one which has as its sole function deciding claims in accordance with the Constitution and the laws of the UnitedStates."). Permitting this "important procedural rule" to be enforced or waived at the discretion of the Secretary could lead to an appearance for litigants that this Court is not independent, but that theSecretary remains in control of the litigation.At a more system-wide level, the Court's sua sponte consideration of the timeliness of an appeal under section 7266(a) promotes judicial efficiency by encouraging the timely resolution of claims and providing finality to Board decisions within a reasonable time and fairness in applicationof the equitable tolling doctrine. In other words, the 120-day judicial appeal period "'implicat[es] values beyond the concerns of the parties.'" Day, 547 U.S. at 205-06 (quoting Acosta v. Artuz, 221 F.3d 117, 123 (2d Cir. 2000) ("The AEDPA statute of limitation promotes judicial efficiencyand conservation of judicial resources, safeguards the accuracy of state court judgments by requiring resolution of constitutional questions while the record is fresh, and lends finality to state court judgments within a reasonable time.")); see also John R. Sand, 552 U.S. at 133 (noting that somestatutes of limitations seek "to achieve a broader system-related goal, such as facilitating the administration of claims . . . or promoting judicial efficiency"). As the Federal Circuit has noted:[I]n order to get its work done, [the Court] must insist on strict compliance with its [R]ules. Violations of [the Rules] . . . are all too frequent. In addition to imposing an unfair burden on opposing parties, violations of our [R]ules also burden the[C]ourt. The [C]ourt must consider a large number of appeals each year. It can only conduct its work fairly and efficiently if counsel cooperate by abiding by the pertinent [R]ules.In re Violation of Rule 28(c), 388 F.3d 1383, 1385 (Fed. Cir. 2004).As to the Supreme Court precedents generally allowing waiver, these cases do so in the context of "ordinary civil litigation," governed by the Federal Rules of Civil Procedure (FRCP). See John R. Sand, 552 U.S. at 133 (noting that "the law typically treats a limitations defense as an affirmative defense . . . subject to rules of forfeiture and waiver," but citing the FRCP); Day, 547 U.S. at 202 (noting that "[o]rdinarily in civil litigation, a statutory time limitation is forfeited if not raised," but citing the FRCP). Pursuant to statute, this Court is not governed by the FRCP. See38 U.S.C. § 7264 ("The proceedings of the Court of Appeals for Veterans Claims shall be conducted in accordance with such rules of practice and procedure as the Court prescribes.").6Of particular note, and in contrast to procedures in ordinary civil litigation, our Rules do not envision complaints and answers thereto or affirmative defenses. See U.S. VET. APP. R. 28(outlining requirements for appellate briefing). Moreover, whereas proper dismissal of a case foruntimely filing in ordinary civil litigation puts an end to the matter, in the veteran-friendly claims adjudication process within VA, a claimant may seek (1) reconsideration by the Board at any time(38 U.S.C. § 7103), (2) to reopen his claim based on new and material evidence at any time(38 U.S.C. § 5108), (3) revision of an adverse decision at any time (38 U.S.C. §§ 5109A and 7111), or (4) equitable relief from the Secretary (38 U.S.C. § 503).Finally, we note that, in 1994, Congress explicitly amended section 7266 to authorize a notice of appeal as filed on the date it is postmarked by the United States Postal Service. 38 U.S.C. § 7266(c)(2); Pub. L. No. 103-446 (1994); see also Mapu v. Nicholson, 397 F.3d 1375 (Fed. Cir. 2005) (finding that section 7266(c)(2) excludes other common carriers' postmarks). Such action, in view of section 7264 (granting the Court to authority to promulgate rules of practice and procedure), reasonably reflects that it is the role of Congress and the Court, not the Secretary, to enforce or adjustthe "important procedural rule" prescribed by Congress in section 7266.Thus, for the reasons stated above, we hold that the 120-day time period in which to file an NOA is not a matter subject to waiver or forfeiture by the Secretary. Moreover, in addition to our holding above that the 120-day period is subject to equitable tolling within the parameters established by Bailey and its progeny, and the precedential decisions of this Court prior to this Court's Henderson decision, we further hold that this Court has the authority to address untimely filings and equitable tolling sua sponte, and may seek facts outside the record before the Board and independently weigh the facts to determine if equitable tolling is appropriate, in the same manner as the Court previously has considered equitable tolling. See Leonard v. Gober, 223 F.3d 1374, 1376(Fed. Cir. 2000) (acknowledging that determinations on the equitable tolling of section 7266(a)involve fact-finding by this Court, and holding that the Federal Circuit does not have jurisdiction to review such findings); McCreary, 19 Vet.App. at 332-34 (reviewing facts not before the Board to determine whether equitable tolling was appropriate).Because the 120-day period is not jurisdictional, however, we note that the untimely nature of a filing should be addressed before an appeal is submitted for decision. Cf. Breedlove v. Shinseki, 24 Vet.App. 7, 18 (2010) (noting that a case is submitted for decision "upon completion of thebriefing period"). Thus, while an untimely filing may be raised by the Secretary, it more often, as in the past, is likely to be identified by the Clerk of the Court, after which an appellant will be directed to show cause why the appeal should not be dismissed. See U.S. VET. APP. R. 3(a) ("Failureto timely file a Notice of Appeal in accordance with law will result in dismissal of the appeal."); Claiborne v. Nicholson, 19 Vet.App. 181, 182 (2005) (recognizing the practice of the Clerk to order appellants to show cause as to why untimely filed appeals should not be dismissed); see also Bowles, 551 U.S. at 212 n.4 (noting authority of the Clerk of the Supreme Court to actually dismiss untimely filed petitions for certiorari of an individual on death row). Any such appeal will be dismissed in the absence of showing that the untimely appeal warrants equitable tolling or that the appeal should be considered timely because, for example, the presumption of regularity in mailing did not attach7to the Board decision or because the presumption was rebutted, thus making the filing timely.D. The Circumstances in the Consolidated Appeals1. Bove v. ShinsekiIn Bove, the appellant filed an NOA with the RO well within the 120-day period, but the RO forwarded it to the Court after the 120-day period had expired. Pursuant to the equitable tolling principles laid out in Bailey and its progeny, an NOA filed within the 120-day period at the RO warrants equitable tolling. See Santana-Venegas, 314 F.3d at 1298; see also Brandenburg, 371 F.3d at 1364 (accepting NOA submitted to Board within the 120-day appeal period). As such, the appellant's appeal will be reinstated.2. Rasheed v. ShinsekiIn Rasheed, the appellant asserts that his schizophrenia prevented him from timely filing his NOA and that the notification he received regarding how to appeal was not properly tailored to his circumstances. Specifically relying on the Federal Circuit's decision in Barrett, 363 F.3d at 1316, the appellant argued that he "is similarly situated to the Veteran in Barrett." Jan. 11, 2010, Appellant's Response to Court's Order and Appellee's Motion to Dismiss at 2.Pursuant to the Federal Circuit's decision in Barrett, equitable tolling may be warranted if an untimely filing "was the direct result of a mental illness that rendered [a claimant] incapable ofrational thought or deliberate decision making, or incapable of handling [a claimant's] own affairs or unable to function in society." Barrett, 363 F.3d at 1321 (internal quotations omitted). Moreover, when represented by counsel, as is the case here, the appellant "must make an additional showingthat the mental illness impaired the attorney-client relationship." Id. In contrast to what is required to warrant equitable tolling, however, the appellant presents only bald assertions that his mental illness prevented him from filing his appeal, without any supporting evidence to demonstrate that he was incapable of functioning or making decisions due to mental illness, that his mental illness prevented him from filing his appeal or seeking the assistance of counsel, or that his mental disabilities were related directly to his untimely filing.Further, in support of his assertion that his appellate notice rights were inadequate because they were not tailored to his circumstances, the appellant relies on Vasquez-Flores v. Peake, 22 Vet.App. 37 (2008). However, Vasquez-Flores addressed the notice required by 38 U.S.C. § 5103 with regard to substantiating a claim and is inapposite with regard to notice addressing how to appeal a Board decision. Moreover, the specificity requirement recognized in this Court's decision in Vasquez-Flores was rejected subsequently by the Federal Circuit. Vasquez-Flores v. Shinseki,580 F.3d 1270 (Fed. Cir. 2009). In sum, the appellant fails to demonstrate that equitable tolling of the time to file his appeal is warranted, and his appeal will be dismissed.83. Lopez v. ShinsekiIn Lopez, the date of the mailing of the appellant's Board decision was February 25, 2010,such that the final day for appealing that decision pursuant to section 7266(a) was Friday, June 25,2010. The appellant's NOA was filed by his counsel and docketed by the Clerk of the Court as filed on Monday, June 28, 2010. Responding to the Court's order to show cause why his appeal should not be dismissed, the appellant does not dispute that he failed to file the NOA within the 120-dayjudicial-appeal period and requests that this Court equitably toll the filing deadline because he suffers from psychiatric disabilities that, he asserts, prevented him from timely filing his NOA. His assertion is supplemented by a letter from his treating psychiatrist, which states, inter alia, that (1) the appellant currently is diagnosed with avoidant personality disorder, major depressive disorder, obsessive compulsive disorder, and dependent personality disorder, (2) the appellant has "difficultyin making every day decisions without an excessive amount of advice and reassurance from others,"and (3) the appellant's disorders "caused him to over-think and procrastinate until this deadline waspassed." October 21, 2010, Response to Court Order at 4-5.The Secretary generally agrees that equitable tolling might be appropriate in this instance. See April 1, 2011, Secretary's Response at 10 (noting that this evidence "may be viewed as satisfying the Barrett test"). As stated above, however, the Barrett test requires a veteran to show that (1) "thefailure to file was the direct result of a mental illness that rendered him incapable of rational thought or deliberate decision making, or incapable of handling his own affairs or unable to function in society," and, when represented by counsel, that (2) "the mental illness impaired the attorney-client relationship." Barrett, 363 F.3d at 1321 (internal quotations omitted) (emphasis added). Notably, in Claiborne v. Nicholson, 19 Vet.App. 181, 187 (2005), this Court found that a physician's letters explaining, inter alia, that the claimant had a "severely impaired" ability to handle his own affairs did not meet Barrett's "high standard" for equitable tolling. Here, similar to Claiborne, the evidence does not demonstrate an incapability of functioning or decision making due to mental illness or animpairment in seeking the assistance of counsel, but rather a procrastination or difficulty in making decisions due to mental illness. As such, the evidence on its face does not meet the Barrett test.Nevertheless, in review of the actual filing in this case, we note that–although docketed bythe Clerk as filed on June 28, 2010–the NOA was attached to an e-mail sent on June 25, 2010. See E-Rule 2(c) ("For documents initiating a case . . . , such documents may also be filed by electronically attaching the document to an email sent to esubmission@uscourts.cavc.gov.").Although this e-mail (with attached NOA) was sent after the close of normal business hours on June 25, it was sent before midnight Eastern Time, such that this Court's Rules of Practice and Procedure and E-Rules deem the NOA filed on June 25. See E-Rule 5(c) ("To be timely filed on a specific date,electronic filing must be completed before midnight Eastern Time . . . ."); see also Rule 25(b)(3)("The Clerk shall use the actual date of receipt [of the e-mail] for filing purposes"). Further, although this e-mail was sent to an incorrect e-mail address at the Court (i.e., to efiling@uscourts.cavc.gov, rather than esubmission@uscourts.cavc.gov), we hold that the appellant substantially complied with E-Rule 2(c). To the extent that there is any lack of clarity in our Rules or there has been any confusion on this issue, our holding today clarifies the matter. Accordingly, we find that the appellant's NOA was timely filed on June 25, 2010, and his appeal will be accepted.94. King v. ShinsekiIn King, the appellant filed an NOA with the RO well within the 120-day period, but the RO forwarded it to the Court after the 120-day period had expired. As previously stated, an NOA filed within the 120-day period at the RO warrants equitable tolling. See Santana-Venegas, supra. As such, the appellant's motion for reconsideration will be granted, the Court's February 3, 2011, order dismissing the appeal will be revoked, and the appellant's appeal will be reinstated.II. CONCLUSIONFor the reasons stated above, the Court holds that the 120-day filing period in section 7266(a) is subject to equitable tolling within the parameters established by Bailey and its progeny, and the precedential decisions of this Court prior to this Court's Henderson decision, but that it is not subject to waiver or forfeiture by the Secretary.Upon consideration of the foregoing, it isORDERED, sua sponte, that the above-captioned cases are consolidated for the sole purposeof addressing whether the 120-day filing period is subject to equitable tolling, and, if so, whether thecircumstances in each case warrant equitable tolling. It is furtherORDERED that the appeal in Bove, No. 08-1468, is reinstated, and the Secretary's July 23,2008, motion to dismiss this appeal is denied. It is furtherORDERED that the Secretary, not later than 30 days after the date of this order, shall file anotice certifying that the appellant in Bove was served with a copy of the record before the agency(RBA), U.S. VET. APP. R. 10(a). It is furtherORDERED that, if any dispute arises as to the preparation or content of the RBA, theappellant in Bove, not later than 14 days after service of the RBA, shall file an appropriate motionwith the Court, U.S. VET. APP. R. 10(b). It is furtherORDERED that the appeal in Rasheed, No. 09-3758, is DISMISSED for untimely filing.It is furtherORDERED that the Secretary, not later than 30 days after the date of this order, shall file anotice certifying that the appellant in Lopez, No. 10-2139, was served with a copy of the RBA. Itis furtherORDERED that, if there is any dispute as to the preparation or content of the RBA, theappellant in Lopez, not later than 14 days after service of the RBA, shall file an appropriate motionwith the Court. It is further10ORDERED that the appellant's motion for reconsideration in King, No. 10-2622, is granted, and the February 3, 2011, order dismissing the appeal is revoked. It is furtherORDERED that, if there is any dispute as to the preparation or content of the RBA, the appellant in King, not later than 14 days after the date of this order, shall file an appropriate motionwith the Court.DATED: December 20, 2011 PER CURIAM.11

Panel Decision, Castellano v. Shinseki, No. 09-3386 (Argued June 28, 2011 Decided December 22, 2011), Substantive Right Regarding Reports of Hospitalization, Treatment or Examination Authorized by VA

2011-12-28T06:50:00.001-08:00

Excerpts from decision below;"For the reasons stated herein, we hold that (1) at the time Mrs. Castellano filed her claim, the Secretary authorized, inter alia, "[r]eports of hospitalization, treatment or examinations authorized by VA" to be deemed included in the file at the date of the veteran's death "even if such reports are not reduced to writing or are not physically placed in file until after death," VA ADJUDICATION PROCEDURES MANUAL M21-1 (M21-1), pt. VI, para. 5.06(c) (May 8, 2000), (2)this deemed inclusion was a substantive right that could not be eliminated except in accordance with law, (3) this substantive right was not eliminated properly until after Mrs. Castellano filed her claim and that change did not operate retroactively, and (4) Mrs. Castellano was entitled to the benefit of this right. We also hold, inter alia, that – although the Board is not per se prohibited from relying on many of the same reasons or bases supporting a previous Board decision that addressed the same matters but had been remanded for further adjudication – aBoard decision on appeal nevertheless must stand on its own statement of reasons or bases(whether reiterating what had been stated in a previous Board decision or not) and otherwise adequately address the issues raised below."========================================="Although it is best practice for the Board explicitly to note and specifically respond to each additional argument raised on remand, the Board sufficiently meets its duty under Kay when it adequately addresses the issues raised. See D'Aries v. Peake, 22 Vet.App. 97, 105(2008) (substantial compliance, not strict compliance, is required under Stegall); Dyment v. West, 13 Vet.App. 141, 146-47 (1999) (finding substantial compliance with remand order where, although examiner failed to presume exposure to asbestos, he "ultimately ma[d]e a determination as to whether asbestos contributed to [the claimant's] disability"); see also 38 U.S.C. § 7104(d)(1) (Board must adequately address "all material issues of fact and law presented on the record" (emphasis added)). Compare BLACK'S LAW DICTIONARY 907 (9th ed. 2009) [hereinafter BLACK'S] (defining "issue" as a "question of law or fact" or both), with BLACK'S at16121 (defining "argument" as a "statement that attempts to persuade").===========================================Concurring opinion:"Once we remove the Board's speculative determinations concerning the timing of the preparation of the report and consider the evidence in the record, it is clear that the Board erred when it found that the benefit of the doubt was "not implicated." This is precisely the scenario in which the determination as to when the report was prepared is "too close to call" and the benefit27of the doubt should have been afforded to the appellant. See Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001) ("[T]he benefit of the doubt rule may be viewed as shifting the 'risk of nonpersuasion' onto the VA to prove that the veteran is not entitled to benefits.").============================================UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMSNO. 09-3386MARGREIT CASTELLANO, APPELLANT,V.ERIC K. SHINSEKI,SECRETARY OF VETERANS AFFAIRS, APPELLEE.On Appeal from the Board of Veterans' Appeals(Argued June 28, 2011 Decided December 22, 2011)Norton Cutler and Michael Sink, of Denver, Colorado, for the appellant.Mark D. Vichich, with whom Will A. Gunn, General Counsel; R. Randall Campbell, Assistant General Counsel; and David L. Quinn, Deputy Assistant General Counsel, were on the brief, all of Washington, D.C., for the appellee.Before KASOLD, Chief Judge, and DAVIS and SCHOELEN, Judges.KASOLD, Chief Judge, filed the opinion of the Court. SCHOELEN, Judge, filed aconcurring opinion.KASOLD, Chief Judge: Margreit Castellano, surviving spouse of veteran Frederick C. Castellano, appeals through counsel that part of a July 7, 2009, decision of the Board of Veterans' Appeals (Board) that denied entitlement to (1) service connection for bipolar disorder, (2) service connection for Alzheimer's disease, (3) special monthly compensation (SMC)pursuant to 38 U.S.C. § 1114(s), and (4) a total disability rating based on individual unemployability (TDIU). Mrs. Castellano contends that the Board erred (1) in finding that a June 26, 2000, VA medical report and private nursing home records were not to be considered evidence in Mr. Castellano's claims file at the date of his death, (2) by not considering her arguments on remand, as evidenced by the Board's reissuing, in large part, the same statement of reasons or bases issued in a previous Board decision that had been remanded by the Court, and (3) in denying her claims. The Secretary disputes these arguments.For the reasons stated herein, we hold that (1) at the time Mrs. Castellano filed her claim, the Secretary authorized, inter alia, "[r]eports of hospitalization, treatment or examinations authorized by VA" to be deemed included in the file at the date of the veteran's death "even if such reports are not reduced to writing or are not physically placed in file until after death," VA ADJUDICATION PROCEDURES MANUAL M21-1 (M21-1), pt. VI, para. 5.06(c) (May 8, 2000), (2)this deemed inclusion was a substantive right that could not be eliminated except in accordance with law, (3) this substantive right was not eliminated properly until after Mrs. Castellano filed her claim and that change did not operate retroactively, and (4) Mrs. Castellano was entitled to the benefit of this right. We also hold, inter alia, that – although the Board is not per se prohibited from relying on many of the same reasons or bases supporting a previous Board decision that addressed the same matters but had been remanded for further adjudication – aBoard decision on appeal nevertheless must stand on its own statement of reasons or bases(whether reiterating what had been stated in a previous Board decision or not) and otherwise adequately address the issues raised below. Given these holdings and based on the record on appeal and applicable law, that part of the Board decision on appeal will be set aside and the matters remanded for further adjudication consistent with this decision.I. FACTSMr. Castellano served on active duty from April 1943 to October 1944. In October 1944, he was granted service connection for his mental condition, labeled at that time as "psychoneurosis." Record (R.) at 4196. Over time, Mr. Castellano's condition was labeled variously, including "personality disorder," "post-traumatic stress disorder" (PTSD), "mixed depression and anxiety with psychotic symptoms," "bipolar disorder," and "anxiety reaction." In the 1990s, Mr. Castellano also was diagnosed with Alzheimer's disease (also referred to in the record as "dementia" 1). On May 18, 2000, Mr. Castellano died. At the time of his death, he had pending adjudication an increased-rating claim for anxiety reaction (the regional office's (RO's)1 "Alzheimer disease (dementia)" is defined as "a general loss of cognitive abilities, including impairment of memory,as well as . . . disturbed planning, organizing, and abstract thinking abilities." DORLAND'S ILLUSTRATED MEDICALDICTIONARY 57, 492 (31st ed. 2007).2label for the psychoneurosis condition) and a claim for disability compensation for Alzheimer'sdisease, SMC, TDIU, and a psychiatric disorder other than anxiety reaction.Mrs. Castellano filed an accrued benefits claim on June 29, 2000. Her claim was deniedin a September 2005 Board decision, but Mrs. Castellano appealed. Pursuant to a joint motionfor remand (JMR), her claim was remanded for further adjudication of all matters exceptentitlement to accrued benefits for her husband's claim for increased benefits for serviceconnectedanxiety reaction, which Mrs. Castellano explicitly abandoned. Her claim was deniedagain in a December 2007 Board decision, but subsequently remanded by the Court pursuant toanother JMR. The 2009 Board decision here on appeal, inter alia, (1) found that a June 26, 2000,VA medical report of treatment or examination was prepared after Mr. Castellano's death andtherefore could not be deemed in his file at the date of his death, (2) noted that private nursinghome records also could not be considered in his file at the date of his death, and (3) maintainedits denial of benefits for bipolar disorder, Alzheimer's disease, SMC and TDIU, reiterating manyof the same reasons or bases supporting the December 2007 Board decision that had been remanded for further adjudication. This appeal followed.II. PARTIES' ARGUMENTSOn appeal, Mrs. Castellano argues that the June 26, 2000, VA medical opinion and private nursing home records should have been deemed by the Board to be in Mr. Castellano's claims file at the date of his death, pursuant to provisions in the 1992 M21-1 that she asserts were declared substantive law by Hayes v. Brown, 4 Vet.App. 353, 360 (1993). She also argues that the 2009 Board decision on appeal (1) failed to address her arguments on remand andreprinted its statement of reasons or bases from a previous decision, therefore violating its Stegall duty to readjudicate the matters remanded, see Stegall v. West, 11 Vet.App. 268, 271 (1998), (2) erred in not applying the benefit of the doubt and finding Mr. Castellano's Alzheimer's disease not aggravated by his service-connected anxiety disorder, (3) erred in notapplying the benefit of the doubt and finding that Mr. Castellano had no bipolar disorder, and (4) erred in denying SMC and TDIU, which are inextricably intertwined with the other matters.The Secretary contends that the M21-1 provisions relied on by Mrs. Castellano were revised on May 8, 2000, prior to her claim, and that she therefore was not entitled to the3application of the prior version. Moreover, he argues that the Board plausibly determined that the June 26, 2000, VA medical opinion was prepared after Mr. Castellano's death, and therefore was not constructively in the file at the date of his death. As to Mrs. Castellano's other issues,the Secretary argues that (1) Mrs. Castellano has failed to demonstrate the relevancy of the private nursing home records, (2) the Board substantially complied with its remand duties under Stegall, and (3) the Board plausibly rendered findings on Alzheimer's disease, bipolar disorder, SMC, and TDIU.III. DISCUSSIONA. Evidence in the File at Date of DeathAs discussed below, we agree with Mrs. Castellano that (1) at the time of her claim, the Secretary authorized certain documents to be deemed in the file at the date of the veteran's death, and (2) she is entitled to the benefit of that authorization. 1. APA and the M21-1 GenerallyThe Administrative Procedure Act (APA) mandates that Federal agencies publish their substantive rules, and amendments thereof, in the Federal Register, to provide notice to affected citizens and the opportunity to comment. See 5 U.S.C. §§ 552, 553; Morton v. Ruiz, 415 U.S. 199, 232 (1974) (APA provides that "administrative policies affecting individual rights andobligations be promulgated pursuant to certain stated procedures so as to avoid the inherently arbitrary nature of unpublished ad hoc determinations"). Although it was VA policy to comply voluntarily with the APA since 1972, VA was not otherwise required by law to comply with theAPA until the Veterans' Judicial Review Act (VJRA) became effective in September 1, 1989.Compare Administrative Procedure Act, Pub. L. No. 89-554 (1966) (excluding matters relating to "benefits" from the APA), with Veterans' Judicial Review Act, Pub. L. No. 100-687 (1988)(subjecting VA to the APA); see also 38 C.F.R. § 1.12 (1972) ("It is the policy of the Department of Veterans Affairs to afford the public general notice, published in the FederalRegister, of proposed regulatory development, and an opportunity to participate in the regulatory development in accordance with the provisions of the Administrative Procedure Act (APA). All written comments received will be available for public inspection.")). Thus, until passage of theVJRA, VA rules and regulations lived in "splendid isolation," generally unconstrained by4judicial review. Brown v. Gardner, 513 U.S. 115, 122 (1994); see Pub. L. 100-687 (permitting judicial review by this Court and the U.S. Court of Appeals for the Federal Circuit (Federal Circuit)).Given this unique history, it is not a surprise that substantive rules promulgated before the APA might be contained in the M21-1 or a directive, letter, or other document. See Buzinski v. Brown, 6 Vet.App. 360, 369 (1994) (noting that Rank v. Nimmo, 677 F.2d 692, 698 (9th Cir. 1982), held that "VA handbooks, circulars, and manuals" may have the "force and effect of law"if they prescribe substantive rules); Fugere v. Derwinski, 1 Vet.App. 103, 107 (1990) (the placement of a rule "in a procedural manual cannot disguise its true nature as a substantive rule"), aff'd, 972 F.2d 331 (Fed. Cir. 1992).Moreover, substantive rules promulgated prior to the statutory requirement that VA comply with the APA remain binding on the Secretary until they properly are revoked or amended. See Fugere, 1 Vet.App. at 110 (noting that a substantive rule may not be rescinded until the Secretary has "'published notice of his intention to rescind it, invited comment, put that comment . . . on the public record, and published a reasoned and reviewable explanation of his decision to rescind [it].'" (quoting Nat'l Wildlife Fed'n v. Watt, 571 F. Supp. 1145, 1156 (D.D.C. 1983))). This is consistent with procedural regularity and basic fair play required in adjudicating veterans' claims. See Thurber v. Brown, 5 Vet.App. 119, 123 (1993) (holding that veterans inparticular are entitled to "procedural regularity and basic fair play" in the adjudication of their claims); Fugere, 1 Vet.App. at 108 ("'Where the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures." (quoting Morton, 415 U.S. at 235)).2We also have held 2 that substantive procedural provisions favorable to a veteran and contained outside the Code ofFederal Regulations are binding on the Secretary even if promulgated after VA was required by law to comply with the APA. See McCormick v. Gober, 14 Vet.App. 39, 49 (2000) (requiring the Secretary to request copies of SMRs and VA medical records pursuant to the substantive "VBA Letter Immediate Development provisions" from 1999); Patton v. West, 12 Vet.App. 272, 282 (1999) (stating that the Board "cannot ignore provisions of the Manual M21-1 . . . that are favorable to a veteran" and applying an altered substantive manual provision from 1997). These holdings similarly stem from the fair process notion that the Secretary must adhere to his own policies when adjudicating veterans' claims. See Morton, 415 U.S. at 235 ("Where the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures. This is so even where the internal procedures are possibly more rigorous than otherwise would be required."); Thurber, supra; but see Guerra v. Shinseki, 642 F.3d 1046, 1050-51 (Fed. Cir. 2011) (acknowledging Secretary's position that the M21-1 is primarily "'an internal manual used to convey guidance to VA adjudicators [and]not intended to establish substantive rules beyond those contained in statutes and regulations.'" (quoting 72 Fed. Reg. 66,218 (Nov. 27, 2007)); Haas v. Peake, 525 F.3d 1168, 1197 (Fed. Cir. 2008) (same); Fournier v. Shinseki, 23 Vet.App. 480, 487-88 (2010) (same).5Of course, it is now clear that a properly promulgated regulation trumps an M21-1 provision or other VA directive that plainly is erroneous or inconsistent with regulation.Compare Smith v. Shinseki, 647 F.3d 1380, 1385 (Fed. Cir. 2011) ("VA interpretations of its own regulations in its Adjudication Procedures Manual [M21-1] are 'controlling' as long as they are not 'plainly erroneous or inconsistent with the regulation.'" (citing Thun v. Shinseki, 572 F.3d1366, 1369 (Fed. Cir. 2009) (quoting Auer v. Robbins, 519 U.S. 452, 461 (1997)))), Haas, 525 F.3d at 1197 (holding that an M21-1 inconsistent with regulation confers no rights on claimant), and Fournier, 23 Vet.App. at 487-88 (discussing Haas), with Cohen v. Brown, 10 Vet.App. 128, 139 (1997) ("Where the Manual M21-1 and the regulation overlap, the Manual M21-1 is irrelevant . . . . except where the Manual M21-1 is more favorable to the claimant.").2. Applicable Substantive Lawa. VA-Authorized Reports of Treatment At the time Mrs. Castellano filed her claim for accrued benefits on June 29, 2000, the law generally restricted the evidence that could be considered when adjudicating an accrued benefitsclaim to that which was "in the [veteran's] file at date of death." 38 U.S.C. § 5121. Exercising his authority to promulgate rules appropriate to carrying out the law, however, the Secretary authorized "[r]eports of hospitalization, treatment or examinations authorized by VA"[hereinafter "VA-authorized reports of treatment"] to be deemed in the file at date of death "even if such reports are not reduced to writing or are not physically placed in file until after death."3 M21-1, pt. VI, para. 5.25(a) (Sept. 21, 1992). This authorization dates back to at least 1985, before mandatory compliance with the APA. See M21-1, para. 56.24 (Sept. 5, 1985) ("Evidence 'in file' will be interpreted to include the following even if such reports are not reduced to writing or are not physically placed in file until after death: . . . Reports of hospitalization, treatment or examinations authorized by the VA.").In Hayes, this Court (1) recognized some confusion with the full scope of section 5121 as it related to evidence in the file at date of death, and (2) noted that "the Secretary has wide latitude in establishing departmental policy as to what post-date-of-death evidence may be3 This provision also authorized service department records, reports of VA hospitalization, reports of treatment or examinations in VA medical centers including those in outpatient treatment folders, and reports of autopsy made by VA on the date of death to be deemed included in the file at date of death. M21-1, pt. VI, para. 5.25(a) (Sept. 21, 1992).6considered." 4 Vet.App. at 360; see also Hyatt v. Shinseki, 566 F.3d 1364, 1370 (Fed. Cir. 2009)(noting that the decision in Hayes, supra, rested on a "perceived conflict between subsections (a) and (c) of § 5121," but that the perceived conflict was resolved with an amended regulation promulgated in November 2002). The Court also discussed regulatory § 3.1000(d)(4) and notedthat this section applied "only to evidence in the file at date of death and the death certificate and, does not, by its terms, contemplate the submission of any other post-death evidence." 4 Vet.App. at 358-59. The Court concluded that, "[t]o the extent that the[] Manual provisionsaffect what post-date-of-death evidence may be considered, they have the force of law as they affect a substantive right." 4 Vet.App. at 360 (quoting Fugere, 1 Vet.App. at 107) (internal quotation marks omitted). The Court also noted that the Secretary might consider clarifying his policy with regard to what evidence submitted after death could be considered when adjudicating an accrued benefits claim.Although the M21-1 was changed on May 8, 2000 (prior to the date Mrs. Castellano filed her claim), the changes made with regard to VA-authorized reports of treatment being deemedincluded in the file at date of death were cosmetic, such that notice and comment were not required. See Fugere, 1 Vet.App. at 110.4 As illustrated below, this language was moved to paragraph 5.06(c), with only a redundant phrase being removed. Specifically, the phrase "reports of treatment or examinations in VA medical centers including those in outpatienttreatment folders," was removed; it was redundant with the language authorizing VA reports of treatment or examination to be deemed included in the file at the date of death. Compare M21-1, pt. VI, para. 5.25(a) (Sept. 21, 1992) (emphasis added), to wit:a. Evidence in File at Date of Death. Evidence 'in file' includes thefollowing, even if such reports are not reduced to writing or are notphysically placed in file until after death: (1) Service department records;(2) Reports of VA hospitalization; (3) Reports of treatment orexaminations in VA medical center including those in outpatient treatmentfolders; (4) Reports of hospitalization, treatment, or examinationsauthorized by VA[;] and (5) Reports of autopsy made by VA on the dateof death,4 The Secretary ultimately promulgated a regulation that limited the evidence that could be included in the file at date of death to documents already in VA's possession, but he did not do this until November 27, 2002, well after Mrs. Castellano submitted her claim. See Evidence for Accrued Benefits, 67 Fed. Reg. 65,707 (Oct. 28, 2002); see also section III.A.3, infra.7with M21-1, pt. VI, para. 5.06(c) (May 8, 2000), to wit:c. Evidence in File at Date of Death. . . . Evidence 'in file' includes thefollowing, even if such reports are not reduced to writing or are notphysically placed in file until after death: (1) Service department records;(2) Reports of VA hospitalization; (3) Reports of hospitalization,treatment, or examinations authorized by VA; and (4) Reports of autopsymade by VA on the date of death.Accordingly, at the time Mrs. Castellano filed her claim, (1) the Secretary deemed VA authorized reports of treatment to be included in Mr. Castellano's claims file at the date of his death, (2) this deemed inclusion was a substantive rule promulgated prior to the APA and pursuant to the Secretary's statutory authority to promulgate rules, and (3) Mrs. Castellano was entitled to the benefit of this substantive rule.b. Evidence Identifying, Verifying, or Corroborating the Death Certificate 5In contrast to the May 2000 cosmetic changes made to paragraph 5.25(a) of the 1992 M21-1, paragraph 5.25(b) of the 1992 M21-1 underwent substantive change. Specifically, paragraph 5.25(b) was altered by narrowing the type of evidence accepted from that which corroborated any evidence in the file to that which corroborated the death certificate. Compare M21-1, pt. VI, para. 5.25(b) (Sept. 21, 1992) (emphasis added), to wit:b. Evidence Essentially Complete. The provisions of 38 CFR3.1000(d)(4) . . . provide for the acceptance of evidence after death forverifying or corroborating evidence 'in file' at death,with M21-1, pt. VI, para. 5.06(d) (May 8, 2000) (emphasis added), to wit:c. Evidence Essentially Complete. The provisions of 38 CFR3.1000(d)(4) . . . provide[s] for acceptance of evidence (includinguncertified statements) when considered in connection with theidentifying, verifying, or corroborative effect of the death certificate.Although our co 5 ncurring colleague questions the propriety and necessity of our addressing paragraph 5.25(b) of the 1992 M21-1 and its successor paragraph 5.06(d) of the 2000 M21-1 in this case, we note that Mrs. Castellano raised the applicability of these provisions by arguing that the postdeath evidence she submitted should be considered under paragraph 5.25(b) of the 1992 M21-1. See Appellant's Brief at 11-12 (noting that the doctor's report serves to "corroborate and verify information in [Mr. Castellano's] file at the date of his death," citing Hayes's discussion ofparagraph 5.25(b), and arguing that the nursing home records should also be considered part of the file). Moreover, this discussion illuminates the correct substantive law to be applied in further proceedings, given that, as we note infra at section III.A.3.b, Mrs. Castellano may present on remand evidence and argument in support of her position that the nursing home records should be considered in her claim pursuant to paragraph 5.06(d).8Although this was a substantive change, we note that – in contrast to paragraph 5.25(a), which makes no reference to a regulation or otherwise purports to be interpreting a regulation, see 67 Fed. Reg. 9,638 (Mar. 4, 2002) (proposed rule to amend § 3.1000(d)(4)) (noting that regulations prior "do not define the term 'evidence in the file'") – paragraph 5.25(b) explicitly purported to be implementing regulatory § 3.1000(d)(4), as did its successor provision of the M21-1, paragraph 5.06(d). Significantly, on its face, paragraph 5.25(b) plainly was inconsistent with § 3.1000(d)(4), which provided only for the acceptance of evidence for "identifying,verifying, or corroborative effect of the death certificate" (emphasis added), since at least 1972.Thus, the changes made in 2000 actually brought the language of paragraph 5.25(b) into conformance with regulatory § 3.1000(d)(4), the regulation that it explicitly purported to be implementing.Also of significance, the Court in Hayes never explicitly found the provisions of paragraph 5.25(b) to be substantive; rather, as noted above, the Court generally held that "[t]o the extent that these Manual provisions affect what post-date-of-death evidence may be considered, they have the force of law as they affect a substantive right." 4 Vet.App. at 360(quoting Fugere, 1 Vet.App. at 107) (internal quotation marks omitted). Although the Court noted that paragraph 5.25(b) cited regulatory § 3.1000(d)(4), it never addressed whether paragraph 5.25(b) of the M21-1 could stand in direct contravention of the very regulation on which it purportedly rested.Moreover, to the extent there may have been any understanding at the time Hayes issued that the M21-1 could trump a regulation that it purports to explain, it has been clarified that a properly promulgated regulation trumps an M21-1 provision or other VA directive that plainly is erroneous or inconsistent with regulation. See Smith, Haas, and Fournier, all supra.6 As such,6 Our concurring colleague takes issue with our interpretation of Smith, Haas, and Fournier. However, Smith states clearly that "VA interpretations of its own regulations in its Adjudication Procedures Manual [M21-1] are 'controlling' as long as they are not 'plainly erroneous or inconsistent with the regulation,'" 647 F.3d at 1385, and paragraph 5.25(b)clearly is an interpretation of regulation that plainly is inconsistent with that regulation. Similarly, in Haas, the Federal Circuit held that an M21-1 provision inconsistent with a regulation did "not confer any rights" on Mr. Haas because the Secretary's regulation was clear. 525 F.3d at at 1197; see also Fournier, 23 Vet.App. at 487 ("[Haas] indicated that when the Agency's interpretation of a statute is clear from existing regulations, any discrepancy between M21-1 and the regulations 'does not confer any rights' on a claimant."). Here, § 3.1000(d)(4) clearly provided for accepting evidence for the "corroborative effect of the death certificate," and paragraph 5.25(b) plainly was inconsistent with that language.Moreover, although our concurring colleague attempts to distinguish Haas by noting that the change in regulation in Haas postdated the M21-1 provision, Haas emphasized the regulation's clarity, not the regulation's date, as the key component in finding the M21-1 provision not binding. See 525 F.3d at 1197.9we conclude that Mrs. Castellano cannot rely on paragraph 5.25(b) of the 1992 M21-1 because it (1) plainly was inconsistent with the regulation that it purported to explain and (2) it was modified to comport with the regulation at the time she filed her claim. Therefore, paragraph5.06(d) of the May 8, 2000, M21-1, not paragraph 5.25(b) of the 1992 M21-1, applies to Mrs. Castellano's claim.3. The Board's Application of the Substantive Lawa. June 2000 VA Medical Report In the decision on appeal, the Board found that the June 2000 VA medical report was not requested until after Mr. Castellano's death, was not prepared until after Mr. Castellano's death,and therefore could not be considered in the adjudication of Mrs. Castellano's accrued benefitsclaim. In its discussion, the Board referenced both paragraph 5.06(c) of the May 8, 2000, M21-1, as well as the current version of 38 C.F.R. § 3.1000(d)(4) (2011), which was not in effect atthe time Mrs. Castellano filed her claim.(1) Application of Paragraph 5.06(c) of the May 8, 2000, M21-1In its application of paragraph 5.06(c), the Board clearly erred in finding that the June2000 VA medical report did not constitute a VA-authorized report of treatment deemed includedin the file at the date of death. See Butts v. Brown, 5 Vet.App. 532, 534 (1993) (en banc) (Courtreviews findings of fact under the "clearly erroneous" standard); Gilbert v. Derwinski,1 Vet.App. 49, 52 (1990) ("'A finding is "clearly erroneous" when . . . the reviewing court on theentire evidence is left with the definite and firm conviction that a mistake has been committed.'"(quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948))). There is no dispute onappeal that this report was authorized by VA; indeed, this was conceded at oral argument. It alsois undisputed that the report reflects the VA doctor's treatment and examination assessment ofthe disabilities from which Mr. Castellano suffered before he died, and provides an opinion ofthe etiology of his disabilities, such that it constitutes a report of treatment.Although the Board found that the report was both requested and prepared after death,nothing in paragraph 5.06(c) (or its predecessor, paragraph 5.25(b) of the 1992 M21-1) supportsa conclusion that such factors are a basis for excluding the report from being deemed in the fileat date of death. At the time of Mrs. Castellano's claim, paragraph 5.06(c)'s sole requirementsfor the document to be deemed included in the file at date of death were that the document was10(1) a report of treatment, (2) authorized by the VA, and (3) reduced to writing. The provisiondid not mandate that the report be requested or prepared before death.Moreover, although the Secretary argues that a doctor's unrecorded thoughts on the dateof a veteran's death cannot constitute a report in the file at date of death, the Secretary's argumentis a red herring. The substantive law at the time Mrs. Castellano filed her claim did not address adoctor's unrecorded thoughts and the state of a potential report at the time of death. Rather, thesubstantive law permitted a VA-authorized report of treatment – no matter what form it took atthe moment of the veteran's death – to be deemed included in the file once reduced to writingafter death. This is the case here 7 with the June 2000 report of treatment, which, although notrecorded until after the death of Mr. Castellano, was authorized by the Secretary to be written,and therefore authorized by the Secretary to be deemed in the file at the date of Mr. Castellano'sdeath.(2) Application of § 3.1000(d)(4) (2011)In rendering its decision, the Board also applied § 3.1000(d)(4) (2011).8 This applicationwas in error, however, because the regulation was not intended to be retroactive and itsretroactive application has an impermissible retroactive effect. See 38 U.S.C. § 7261(a)(3)(Court shall hold unlawful conclusions of Board "not in accordance with law"). The currentversion of § 3.1000(d)(4) was promulgated on November 27, 2002 – more than two years afterMrs. Castellano filed her claim – and limits evidence in the file at date of death to that whichwas in VA's possession, to wit:7 Our concurring colleague argues that this "holding appears to permit a VA report of treatment, that is requested andwritten many years after a veteran's death, to be deemed evidence in the file at the date of death." Post at 25. Ourholding, however, simply restates what the Secretary authorized in paragraph 5.25(a) of the 1992 M21-1 (and itscosmetically changed version, paragraph 5.06(c) of the 2000 M21-1), to wit: if he authorizes VA to prepare a post-dateof-death medical report, it will be deemed in the file at the date of death. We further note that as of November 27, 2002,the Secretary promulgated a regulation limiting the evidence deemed in the file at the date of death to that "in VA'spossession on or before the date of the beneficiary's death" (38 C.F.R. s 3.1000(d)(4) (2002); see 67 Fed. Reg. 65,707(Oct. 28, 2002)), such that VA reports requested or written after death are no longer deemed part of the file on the dateof death for accrued benefits claims.8 Although our concurring colleague states that our analysis of the retroactive application of § 3.1000(d)(4) (2011) isunnecessary because "the Secretary has not maintained that the regulation applies retroactively," Post at 28, we note thathe also has not maintained that it is not retroactive. Further, our review is of Board decisions, and the Board applied theregulation retroactively and considered it as a basis for not deeming the submitted evidence in the file at date of death(see R. at 11 (concluding that the "psychiatrist's report was not 'in VA's possession on or before the date of thebeneficiary's death'" (quoting § 3.1000(d)(4) (2011))). See 38 U.S.C. § 7252; see also 38 U.S.C. § 7261(a)(3) (Courtshall hold unlawful conclusions of Board "not in accordance with law").11Evidence in the file at date of death means evidence in VA'spossession on or before the date of the beneficiary's death, even ifsuch evidence was not physically located in the VA claims folderon or before the date of death.Although there is no dispute that this regulation applies to all claims filed after November 27,2002, see Hyatt, supra, applying the amended version of a regulation to an already pendingclaim is not "favored in the law" unless the Secretary expressly intends it to govern pending orprior claims, Rodriguez v. Peake, 511 F.3d 1147, 1152 (Fed. Cir. 2008) (quoting Landgraf v. USIFilm Prods., 511 U.S. 244, 246 (1994)); see Princess Cruises, Inc. v. United States, 397 F.3d1358, 1362 (Fed. Cir. 2005) ("'[C]ongressional enactments and administrative rules will not beconstrued to have retroactive effect unless their language requires this result.'" (quoting Bowen v.Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988))); Ervin v. Shinseki, 24 Vet.App. 318, 323(2011) (applying amended regulation to pending claim when Secretary's express intent wasclear).With regard to any intention by the Secretary to apply this amendment retroactively toclaims pending at the time the regulation was promulgated, none is evident in the promulgatingdocuments or elsewhere, see 67 Fed. Reg. 9,638 (Mar. 4, 2002) (proposed rule to amend§ 3.1000(d)(4) and remove provisions of VA Manual M21-1 inconsistent with amended§ 3.1000(d)(4)); Evidence for Accrued Benefits, 67 Fed. Reg. 65,707 (Oct. 28, 2002) (final ruleamending 38 C.F.R. § 3.1000(d)(4) and noting no comments submitted during notice-andcommentperiod), and the Secretary makes no such argument on appeal.To determine whether a regulation has an impermissible retroactive effect, we look to (1)the nature and extent of the change of the law, (2) the degree of connection between theoperation of the new rule and a relevant past event, and (3) familiar considerations of fair notice,reasonable reliance, and settled expectations. Rodriguez, 511 F.3d at 1153 (citing PrincessCruises, 397 F.3d at 1362-63). Moreover, in the context of veterans claims and benefits, ouranalysis is guided by the dictates of fair process. See Thurber, 5 Vet.App. at 123.Evaluating the Princess Cruises factors, we conclude that applying amended regulatory§ 3.1000(d)(4) in this instance has an impermissible retroactive effect. First, the extent of thechange in the law is significant. As discussed above, previous to November 27, 2002, thesubstantive law regarding evidence in the file at date of death permitted VA-authorized reports12of treatment reduced to writing after death nevertheless to be deemed included in the file at dateof death. This entitlement was eliminated by the 2002 amendment to § 3.1000(d)(4) (2002),limiting the evidence deemed included in the file at date of death to that which was in VA'spossession at date of death. Apparent on its face, and as recognized by the Secretary whenpromulgating the regulation in 2002, the amendment effected a change in a longstanding policy,rather than explain or clarify an already existing policy. See 67 Fed. Reg. 65,707 (indicating thatamended § 3.1000(d)(4) is a divergence from previous VA policy toward evidence in the file atdate of death). This amendment was more than a clarification; it was a substantive andsignificant change that limited evidence that previously could have been considered whenadjudicating an accrued benefits claim. Compare Princess Cruises, 397 F.3d at 1365 (findingthat a "strong and unprecedented" evidentiary presumption previously not found in statute orregulation constitutes a significant change in law), with Rodriguez, 511 F.3d at 1154 (noting thatclarification of an already existing policy does not constitute substantial change in the law).Second, the amended regulation is connected to a relevant past event. In addressing thiselement in Princess Cruises, the Federal Circuit noted that a recent U.S. Customs and BorderProtection ruling created an evidentiary presumption that could only be overcome by data thathad not been – and could no longer be – collected by the cruise line; thus, the presumption couldnot be overcome in that instance and was connected to a relevant past event. 397 F.3d at 1360-66. Here, Mrs. Castellano filed her claim and obtained the VA-authorized report when VAreports of treatment recorded after death still could be deemed in the file at date of death – priorto the regulation change in 2002. Similar to the situation in Princess Cruises, in Mrs.Castellano's case, an amended regulation created an evidentiary rule that cannot be overcome,because Mrs. Castellano cannot return to the time before her husband's death and submit thereport to the Secretary, as the amended regulation now requires. In other words, had she knownabout a future rule change that would be applied retroactively to exclude evidence obtained afterher husband's death, she and her husband could have acted differently by obtaining the reportbefore her husband's death. See Tarver v. Shinseki, 557 F.3d 1371, 1375 (Fed. Cir. 2009)(addressing whether claimant would have acted differently had she known about the rulechange).13Moreover, the change in law particularly is relevant to a past event – the collection ofevidence before Mr. Castellano's death (or lack thereof) – because the Secretary (who amendedthe regulation) bears partial responsibility in collecting relevant evidence pursuant to the duty toassist. Indeed, it would exceed the bounds of fairness due a veteran to permit the Board'sretroactive enforcement of an evidentiary standard that excludes certain evidence fromconsideration when the Secretary did not declare the regulation change to be retroactive when itwas promulgated, and the Secretary otherwise did not timely collect the evidence necessary tosurmount the retroactive evidentiary standard. Ultimately, because the evidence can no longerbe collected in a way that would surmount the retroactive evidentiary standard, that collectionopportunity is a relevant past event connected to the amended regulation. See id. (taking intoaccount "equitable considerations such as the posture of the case and the extent to which theparties have relied to their prejudice on the superseded rule" in evaluating whether there is aconnection to a relevant past event).We further note the stark difference between the facts in this case and the facts inRodriguez, 511 F.3d at 1156, that led the Federal Circuit in that case to permit retroactiveapplication of a change in regulation. In Rodriguez, when considering whether the change inregulation was connected to a relevant past event, the Federal Circuit explicitly noted that Mrs.Rodriguez had filed her claim prior to the caselaw that interpreted a statute in a mannerfavorable to Mrs. Rodriguez, such that Mrs. Rodriguez had not relied on the favorableinterpretation when she filed her claim. Id. at 1155 ("Rodriguez did not rely to her detriment onthe prior state of the law."). In that circumstance, the change in regulation reversing the effect ofthat caselaw was not related to a past event. Id. Here, as noted, Mrs. Castellano filed her claimand obtained the report when she was entitled by substantive law to have VA-authorized reportsdeemed included in the file at date of death. It is only the possible retroactive effect of laterchange in regulation that might preclude consideration of this report in adjudicating Mrs.Castellano's claim.Third, considering fair notice, reasonable reliance, and settled expectations, the Secretaryposited one policy toward evidence in the file at the date of death from at least 1985 to 2002, andthis Court found it to be substantive law. See Tarver, 557 F.3d at 1376 (examining Secretary'shistoric practice in evaluating settled expectations). Mrs. Castellano reasonably relied on that14law in gathering evidence for her claim and, after the Secretary first provided notice of asignificantly different law on March 4, 2002, see 67 Fed. Reg. 9638, well after Mrs. Castellanofiled her claim, there was nothing further she could do to have her evidence admitted. SeePrincess Cruises, 397 F.3d at 1366 ("[T]he imposition of an evidentiary [rule] that cannotpossibly be met strongly implicates fairness considerations."). The Secretary's consistent pastpractice is unlike the situation in Rodriguez, 511 F.3d at 1156, where a claimant could not havesettled expectations of a law because it had undergone "multiple changes." 511 F.3d at 1156.Accordingly, to the extent the Board rejected consideration of the June 2000 VA medicalreport based on the application of amended § 3.1000(d)(4), such application had animpermissibly retroactive effect. Overall, remand is warranted for the Board to consider thisreport in the adjudication of Mrs. Castellano's claim for accrued benefits. See Tucker v. West,11 Vet.App. 369, 374 (1998) (remand is appropriate "where the Board has incorrectly appliedthe law, failed to provide an adequate statement of reasons or bases for its determinations, orwhere the record is otherwise inadequate"); Webster v. Derwinski, 1 Vet.App. 155, 159 (1991)(Court is not to conduct de novo factfinding but rather to remand the matter for the Board to findfacts in the first instance).b. Private Nursing Home RecordsThe Board found that the private nursing home records postdated the period of careauthorized by VA, and Mrs. Castellano does not demonstrate – nor does the record ofproceedings reflect – clear error in that finding. See Hilkert v. West, 12 Vet.App. 145, 151(1999) (en banc) (appellant has burden of demonstrating error); Butts and Gilbert, both supra.Accordingly, these records postdating VA-authorized care could not be deemed in the file at dateof death under paragraph 5.06(c) of the May 8, 2000, M21-1.As to whether the records might be admissible under paragraph 5.06(d) of the May 8,2000, M21-1 because they identify, verify, or corroborate the death certificate, the Secretarygenerally notes that Mrs. Castellano fails to establish the relevance of these records to her claim.However, the Board failed to address whether these records could be considered undersubsection (d) and, in light of the need to remand for consideration of the June 2000 VA medicalreport and pursuant to the general rule that a claimant may submit new argument and evidenceon remand, Mrs. Castellano will have an opportunity on remand to establish the relevancy of15these private records. If so presented, the Board must discuss the issue. See Kay v. Principi, 16 Vet.App. 529, 534 (2002) (on remand, Board must consider any additional evidence and argument that the claimant presents in support of the matters remanded).B. Stegall and Substantial Compliance on RemandMrs. Castellano also contends that the July 2009 Board violated its Stegall duty to readjudicate her claim when it last was remanded by the Court pursuant to a JMR. See Stegall, 11 Vet.App. at 271 ("[A] remand by this Court to the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders."). More specifically, she argues that the reasons or bases in the July 2009 Board decision improperly replicated the reasons or bases of the December 2007 Board decision, which was vacated entirely by the December 2008 Court order pursuant to JMR.As we consistently have stated, the Board's duty upon remand is to consider any additional evidence and argument that the claimant presents on remand. Kay, supra. This duty applies to all matters remanded, regardless of whether they were the explicit bases for the remand. Moreover, the Board's duty on remand is not tied to whether the Board decision on appeal was set aside or vacated by the Court. See Leopoldo v. Brown, 4 Vet.App. 216, 219(1993) (remanding without vacating or setting aside Board decision, and noting that "appellant is free . . . to offer additional evidence" on remand); Ohland v. Derwinski, 1 Vet.App. 147, 150(1991) (remanding without vacating or setting aside the Board decision); Sammarco v. Derwinski, 1 Vet.App. 111, 114 (1991) (same).Although it is best practice for the Board explicitly to note and specifically respond to each additional argument raised on remand, the Board sufficiently meets its duty under Kay when it adequately addresses the issues raised. See D'Aries v. Peake, 22 Vet.App. 97, 105(2008) (substantial compliance, not strict compliance, is required under Stegall); Dyment v. West, 13 Vet.App. 141, 146-47 (1999) (finding substantial compliance with remand order where, although examiner failed to presume exposure to asbestos, he "ultimately ma[d]e a determination as to whether asbestos contributed to [the claimant's] disability"); see also 38 U.S.C. § 7104(d)(1) (Board must adequately address "all material issues of fact and law presented on the record" (emphasis added)). Compare BLACK'S LAW DICTIONARY 907 (9th ed. 2009) [hereinafter BLACK'S] (defining "issue" as a "question of law or fact" or both), with BLACK'S at16121 (defining "argument" as a "statement that attempts to persuade"). Further, if a claimant presents no new arguments on a remanded matter or merely recycles old arguments, there is no requirement that the Board employ different words to restate its decision. Rather, if the Board reconsiders the evidence and decides to reinstate its previous determination on a matter, it may replicate the language it employed previously.Here, as Mrs. Castellano notes, the July 2009 Board newly addressed the issue of the June 26, 2000, VA doctor's letter and whether it could be deemed in the file at date of death pursuant to § 3.1000(d)(4) (2011), but the July 2009 Board decision on appeal otherwise largely replicated the reasons or bases in the December 2007 Board decision. Mrs. Castellano alsocorrectly notes that she submitted additional written argument on the matters remanded that was not specifically addressed by the July 2009 Board in its statement. Although the Board did not specifically address much of the written argument she submitted, the written argument is contained in the record and the Board is presumed to have considered it. See Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007) (absent specific evidence indicating otherwise, there is a presumption that the Board considers all evidence of record). Moreover, although the July 2009 Board largely recycled the statement of the 2007 Board, the statement nevertheless addresses the very issues that Mrs. Castellano addressed in her additional written argument.Thus, for example, Mrs. Castellano argues that the 2009 Board did not address her argument that more probative weight should be granted to the VA chief psychiatrist's April 1999 opinion because of the doctor's status as chief psychiatrist and personal physician. Although the 2009 Board did not respond specifically as to the value of the doctor's status in its probative weight analysis, the Board addressed the probative value of the opinion vis-a-vis the other medical opinions and provided an adequate statement of reasons or bases for its assignment of weight to various opinions, which reflects an adequate discussion of the issue raised by Mrs. Castellano. See Owens v. Brown, 7 Vet.App. 429, 433 (1995) ("It is not error for the [Board] to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons [or] bases."); see also Allday v. Brown, 7 Vet.App. 517, 527(1995) (Board's statement "must be adequate to enable a claimant to understand the precise basis for the Board's decision, as well as to facilitate review in this Court"). In sum, Mrs. Castellano fails to show by specific evidence that the Board did not consider her written arguments, and17fails to demonstrate that the Board's statement of reasons or bases is not understandable or in some way frustrates judicial review. See Newhouse, Hilkert and Allday, all supra.C. Alzheimer's DiseaseMrs. Castellano further argues that the Board erred in finding Mr. Castellano's Alzheimer's disease not aggravated by his service-connected anxiety disorder. In support of its decision, the Board noted, inter alia, that (1) a February 1996 medical report stated that Mr. Castellano's Alzheimer's brought out his psychiatric symptoms, but did not state that hispsychiatric symptoms brought out his Alzheimer's, (2) an April 1996 medical report stated that Mr. Castellano's neuroses complicated his organic (personality) disorder and treatment, but did not state that the neuroses complicated Alzheimer's, (3) an April 1999 medical report stated thatMr. Castellano's psychiatric problems impacted his Alzheimer's, but such a statement was inconsistent with the earlier statement of the examiner in April 1996, and (4) a December 1999 medical report stated that anxiety does not cause Alzheimer's, and, although it also stated that anxiety can contribute to impaired functioning in individuals with Alzheimer's, "can" also implies "can not." However, because the June 26, 2000, medical report may alter the Board's determination on this issue, remand is warranted. See Arneson v. Shinseki, 24 Vet.App. 379, 389 (2011) (remand warranted where error could have altered Board's determinations).D. Bipolar DisorderMrs. Castellano further argues that the Board erred in finding that Mr. Castellano had no bipolar disorder. Succinctly stated, remand is warranted for the Board to consider the June 26, 2000, medical report in its determination as to whether service connection for bipolar disorder ora higher rating for Mr. Castellano's mental condition is warranted. See Arneson, supra.E. SMC and TDIUBecause they are inextricably intertwined with the remanded matters, the issues of SMC and TDIU also will be remanded. Cf. Tyrues v. Shinseki, 23 Vet.App. 166, 178-79 (2009)(remand generally appropriate when matter on appeal is "inextricably intertwined" with matters being adjudicated below), aff'd, 631 F.3d 1380 (Fed. Cir. 2011), vacated on other grounds, 132 S. Ct. 75 (2011).18F. RemandOn remand, Mrs. Castellano may present, and the Board must consider, any additionalargument in support of the matters remanded. See Kay, supra. These matters are to be providedexpeditious treatment on remand in accordance with 38 U.S.C. § 7112.IV. CONCLUSIONThat part of the July 7, 2009, Board decision on appeal is SET ASIDE and the mattersare REMANDED for further adjudication consistent with this opinion..SCHOELEN, Judge, concurring: Although I fully agree with the majority that the Boarddecision should be vacated and the matter remanded for consideration of the June 26, 2000, VAmedical report as "evidence in the file" at the time of the death of the veteran, Frederick C.Castellano, I write separately to address several concerns, including my disagreement with themajority's attempt, although through dicta, to deem Hayes v. Brown, 4 Vet.App. 353 (1993)overruled.A. Evidence in the File at Date of DeathPursuant to 38 U.S.C. § 5121(a), a veteran's surviving spouse may receive accruedbenefits consisting of "periodic monetary benefits . . . to which [the veteran] was entitled atdeath under existing ratings or decisions, or those based on evidence in the file at date of death. . . and due and unpaid." 38 U.S.C. § 5121(a) (emphasis added). In Hayes, the Court noted thatalthough section 5121(a) permits only evidence in the file at date of death, section 5121(c)"appear[ed] to contradict, or at least qualify, that provision" by permitting a claimant to submitinformation to complete the application. 4 Vet.App. at 360. Given this ambiguity, the Courtstated that "the Secretary ha[d] wide latitude in establishing department policy as to what postdate-of-death evidence may be considered." Id. Noting that the regulatory frameworkestablished to implement section 5121(a), (c) was "confusing at best," see 38 C.F.R.§ 3.1000(d)(4)(i)(1992),9 the Court nevertheless stated that it was "clear" that § 3.1000(d)(4), "on9 In 1992, the Secretary's regulation, provided as follows:(4) Evidence in the file at date of death . . . will be considered to have been met when there is on fileat the date of the veteran's death:(i) Notwithstanding § 3.200(b) evidence, including uncertified statements, which is essentially19its face, applie[d] only to evidence in the file at date of death and the death certificate and, d[id]not, by its terms contemplate the submission of any post-death evidence."10 Id. at 358.However, the Court also recognized that "[s]uperimposed on this regulation . . . [wa]s aconfusing array of provisions of the VA Manual, M21-1 . . . scattered amongst two chapters,regarding what post-date-of-death evidence [wa]s acceptable." Id. at 360 (citing VA Manual,M21-1, paras. 5.25, 27.08). The Court held that "[t]o the extent that these Manual provisionsaffect what post-date-of-death evidence may be considered, they have '"the force of law" . . . [asthey affect] a substantive right [of appellant to accrued benefits,] and . . . placement in aprocedural [M]anual cannot disguise [the] true nature [of these provisions] as . . . substantiverule[s].'" Id. (quoting Fugere v. Derwinski, 1 Vet.App. 103, 107 (1990)).What is clear from the Court's decision in Hayes, is that both 1992 M21-1 provisionsdiscussed by the majority, M21-1, part VI, para. 5.25(a), (b) (1992), were found to be"substantive rules," creating substantive rights, because they affected what post-date-of-deathevidence could be considered under § 5121(a). Thus, absent adherence to the APA notice-andcommentprocess and specific notice to the public of intent to revoke these substantiveprovisions, neither provision could be overturned. Fugere, 1 Vet.App. at 109-10 (setting asidethe Secretary's rescission of an M21-1 provision for failing to follow the APA notice-andcommentprocess), aff'd, 972 F.2d 331 (Fed. Cir. 1992).As relevant to this appeal, paragraph 5.25(a) provided that "[e]vidence 'in file'includes . . . ['[r]eports of hospitalization, treatment or examinations authorized by VA'], even ifsuch reports are not reduced to writing or are not physically placed in file until after death. M21-1, pt. VI, para. 5.25(a) (1992). Paragraph 5.25(b), entitled "[e]vidence [e]ssentially [c]omplete,"provided that[t]he provisions of 38 C.F.R. § 3.1000(d)(4) permit favorable action under38 U.S.C. § 5121 on the basis of the evidence as a whole when the evidence iscomplete and of such weight as to establish service connection or degree of disability for disease orinjury when substantiated by other evidence in file at date of death or when considered in connectionwith the identifying, verifying, or corroborative effect of the death certificate.38 C.F.R. § 3.1000(d)(4)(i) (1992).10 Contrary to the majority's view, the Court in Hayes explicitly stated that "the exceptions provided for by ¶ 5.25(a),(b) are not set forth in . . . § 3.1000(d)(4)" and, therefore, did consider whether para. 5.25(a) and (b) could stand in directcontravention of the regulation. Id. at 360; see section III.A.2.b, ante at 9.20essentially complete and in file at the time of death. . . . The cited regulationsalso provide for the acceptance of evidence after death for verifying orcorroborating evidence "in file" at death.M21-1, pt. VI, para. 5.25(b) (1992). Because paragraph 5.25(b) explicitly referenced theSecretary's regulation, and paragraph 5.25(a) did not, my colleagues state that paragraph 5.25(a)does not "purport[] to be interpreting a regulation." See section III.A.2.b, ante at 9. In addition,because they perceive paragraph 5.25(b) to directly conflict with the Secretary's pre-2002regulation, they conclude that the Secretary was permitted to amend the M21-1 provisionwithout adhering to the notice and comment process. They assert that since Hayes issued, "it hasbeen clarified that a properly promulgated regulation trumps an M21-1 provision or other VAdirective that plainly is erroneous or inconsistent with regulation." Section III.A.2.b, ante at 9(citing Smith v. Shinseki, 647 F.3d 1380 (Fed. Cir. 2011) and Haas v. Peake, 525 F.3d 1168,1197 (Fed. Cir. 2008).I disagree with the majority's classification of the two Manual M21-1 paragraphs becauseit is clear to me that both paragraph 5.25(a) and paragraph 5.25(b) reflect the Secretary'sdetermination regarding what post-date-of-death evidence is to be considered "evidence in the file."11 That paragraph 5.25(b) mentioned the regulation, and paragraph 5.25(a) did not, does not alter the fact that both paragraphs represented the Secretary's interpretation of 38 U.S.C. § 5121 and the evidentiary requirements for an accrued benefits claim, which the Secretary has conceded he had failed to establish by regulation until the 2002 regulatory change. The Secretary stated in his 2002 notice of proposed rulemaking that the then-current version of 38 C.F.R. § 3.1000(d)(4) failed to define the term "'evidence in the file'" but instead permitted VA "in certain instances . . . [to] accept identifying, corroborating[,] or verifying informationfrom the death certificate and evidence submitted with the claim for accrued benefits to support prima facie evidence already in the file." See Evidence for Accrued Benefits, 67 Fed. Reg. 9638, 9639 (Mar. 4, 2002) (emphasis added). Moreover, the Federal Circuit's recent discussion of Hayes in Hyatt v. Shinseki recognized this Court's "perceived conflict between subsections (a) and (c) of § 5121" and that VA clarified this "confusion" by regulation in 2002. 566 F.3d 1364, 11 Indeed the plain language of paragraph 5.25(a) reveals that it is the Secretary's interpretation of what constitutes"evidence in the file." It states: "Evidence in File at Date of Death. Evidence 'in file' includes the following . . . ." M21-1, pt. VI, para. 5.25(a) (emphasis added); see also M21-1, pt. VI, para. 5.23 (1992) (stating that "[e]ntitlment to [accrued benefits] must be based on evidence in file at date of death" and referencing para. 5.25(a)).211370 (Fed. Cir. 2009) (citing Evidence for Accrued Benefits, 67 Fed. Reg. 9638, 9639 (Mar. 4, 2002); Evidence for Accrued Benefits, 67 Fed. Reg. 65,707 (Oct. 28, 2002)). Thus, I believe that until 2002, when the Secretary formally published his intent to delete from the M21-1 those provisions that were inconsistent with his proposed definition of "evidence in the file at the date of death," both paragraph 5.25(a) and paragraph 5.25(b) remained valid substantive rules, which were applicable to the appellant's claim for accrued benefits filed in June 2000.I also disagree with the majority's reliance on Smith, Haas, and Fournier v. Shinseki, 23 Vet.App. 480, 487-88 (2010), for the proposition that "a properly promulgated regulation trumps an M21-1 provision . . . that plainly is erroneous or inconsistent with regulation." See section III.A.1, ante at 6. Although it is true that the Federal Circuit concluded that Mr. Haascould not rely on a 1991 M21-1 provision that was inconsistent with the Secretary's regulation –Haas is distinguishable because the Secretary's regulation, which was promulgated after a notice-and-comment process, went into effect in July 2001, one month before Mr. Haas filed his claim for disability compensation benefits. 525 F.3d at 1196. Because the Secretary had "formally taken a position that excluded Mr. Haas from the scope of the regulation" before his claim was filed, the Federal Circuit concluded that (1) Mr. Haas could not rely on the 1991 M21-1 provision, which was inconsistent with the later regulation, and (2) it was unnecessary for the Agency to conduct parallel rulemaking to amend the Agency's "interpretative statement" contained in the M21-1. Id. at 1196-97.Unlike the regulation in Haas, which was formally promulgated after the M21-1provision had already been in effect, the pre-2002 version of 38 C.F.R. § 3.1000(d)(4) had been in effect since at least 1970, thus pre-dating the M21-1 provision at issue here, and, as acknowledged by the Secretary in his 2002 notice of proposed rulemaking, failed to give meaning to "evidence in the file at the date of death" and the ambiguity created by 38 U.S.C. § 5121(a), (c). See 38 C.F.R. § 3.1000(d)(4) (1970); 67 Fed. Reg. at 9639. As discussed earlier, the Court in Hayes recognized the ambiguity and confusion surrounding what constituted "evidence in the file at date of death" and held that, to the extent paragraph 5.25 "affected whatpost-date-of-death evidence may be considered" it had the "'force of law'" and created a "substantive right." Hayes, 4 Vet.App. at 360. In this circumstance, VA's regulation, which had22been effect since at least 1970, cannot "trump," or otherwise invalidate, a subsequently created "substantive right."The majority's reliance on Smith and Fournier, both supra, is similarly misplaced because neither case involved a Manual M21-1 provision that created a substantive right. See Smith, 647 F.3d at 1384-85 (noting that VA's interpretative statement contained in its adjudication Manual was consistent with VA's TDIU regulation, which did not require the agency to consider the availability of work when determining entitlement to TDIU); Fournier, 23 Vet.App. at 487 (holding that the Manual M21-1 provision at issue did "not establish or alter the criteria for benefits but only illuminates a suggested procedural practice for VA adjudicators"). In Fournier, the Court also discussed the Federal Circuit's decision in Haas as indicating that "when an Agency's interpretation of a statute is clear from existing regulations, any discrepancy between M21-1 and the regulation 'does not confer any rights' on a claimant." 23 Vet.App. at 487 (2010) (emphasis added). As noted above, prior to 2002, the Secretary'sinterpretation of his statutory authority was anything but clear. See Hyatt, 566 F.3d at 1370; cf.Hayes, 4 Vet.App. at 361 (stating that "VA, at the earliest possible opportunity, may wish toclarify its policy as to what evidence submitted after death may be considered"); 67 Fed. Reg. at9639.For these reasons, I cannot agree with my colleagues' conclusion that the May 8, 2000,amendments to paragraph 5.25(b) were properly effectuated without adherence to the APA notice-and-comment process. Rather, I would conclude that the 1992 M21-1 provisions, specifically paragraph 5.25(a) and paragraph 5.25(b), remained valid substantive rules in accordance with the Court's decision in Hayes until 2002 when VA formally rescinded its Manual M21-1 provisions as "inconsistent" with the 2002 amendment to 38 C.F.R. § 3.1000(d)(4). See 67 Fed. Reg. at 9640, 65,707.In addition to noting my fundamental disagreement with the majority's analysis on this point, I would be remiss if I neglected to point out that the majority's discussion concerning paragraph 5.25(b) is not necessary to its decision and, therefore, in my opinion, amounts to nothing more than dicta. See BLACK'S LAW DICTIONARY 465 (7th ed. 1999) (defining "judicial dicta" as "[a]n opinion by a court on a question that is directly involved, briefed, and argued by counsel, and even passed on by the court, but that is not essential to the decision"); see also23Pelegrini v. Principi, 18 Vet.App. 112, 130 (2004) (Ivers, J., concurring in part and dissenting in part) (noting that "'[t]he danger of . . . dicta is that, although theoretically and technically not binding, practically, they give the appearance of carrying the cloak of judicial acceptance'"(quoting Lasovick v. Brown, 6 Vet.App. 141, 153 (1994)). Simply put, once my colleagues concluded that the Board clearly erred when it determined that the June 2000 report did not constitute a "VA-authorized report of treatment" such that it was error not to deem the report "evidence in the file at date of death," it was unnecessary to consider, only to reject, theappellant's alternative argument that the report should be considered because it serves to"summarize, corroborate[,] and verify evidence in file at the date of his death." Appellant's Brief(Br.) at 11-13 (citing Hayes, 4 Vet.App. at 360-61 and noting that the Board failed to addressthis argument). Because discussion of paragraph 5.25(b) was not essential to the Court'sdisposition, it is axiomatic that the majority's "holding" that Smith and Haas overturned Hayes isnot binding.To the extent that the majority relies on its analysis of the Secretary's May 2000 change to paragraph 5.25(b), see M21-1, pt. VI, para. 5.06(d) (Change 73 - May 8, 2000) (stating that "[t]he cited regulation provides for the acceptance of evidence . . . when considered in connection with the identifying, verifying, or corroborative effect of the death certificate"), to remand the question whether the veteran's private nursing home records may be deemed evidence in the file at the date of death pursuant to paragraph 5.06(d), I also note that this argument was not raised by the parties. Instead, the appellant argued that the nursing home records were "treatment records created prior to the veteran's death and it is entirely unclear why such relevant treatment records were not considered part of the veteran's file." Appellant's Br. at 12 n.6 (citing Hayes, 4 Vet.App. at 360-61, for the proposition that "hospitalization and treatment records may be considered constructively part of the veteran's file on the date of death for the purposes of adjudicating an accrued benefits claims even if not placed in the veteran's file prior to death"). The Board's reasons were unclear because the Board summarily stated that "records from Silver Ridge Village outside the period for which VA authorized and contractedfor treatment at that facility . . . cannot be considered in the context of the . . . appeal." R. at 8(emphasis added). I do not believe that the appellant's "reasons or bases" allegation of error reasonably raised any alternative basis for consideration of the records outside the authorized24period, and as argued by the Secretary, the appellant has not identified any record that the Board purportedly failed to consider that weighs in favor of her claim. Secretary's Br. at 16-17. The majority's discussion in this regard can only be viewed as a misguided attempt to render its discussion of paragraphs 5.25(b) (1992) and 5.06(d) (2000) relevant and essential to the Court's disposition in order to reach a desired result – deeming Hayes overruled.B. The Majority's Review of the Board's FindingsAs noted above, I agree that the June 26, 2000, report should be deemed evidence in the file at the time of the veteran's death and that this matter should be remanded to the Board for consideration of the report. I also agree that the basis for admitting the report is, as conceded bythe parties, that it constitutes a VA-authorized report of treatment. However, I write separately on this point to express my concern regarding the majority's broad interpretation of the Secretary's M21-1 provision, which permitted "[r]eports of hospitalization, treatment[,] orexaminations authorized by VA" to be considered "evidence 'in file' . . . even if such reports are not reduced to writing or are not physically placed in file until after death." M21-1, pt. VI, para. 5.25(a) (1992); see also M21-1, pt. VI, para. 5.06(c) (Change 73 - May 8, 2000). My concern is that my colleagues' conclusion that a VA-authorized report of treatment may be deemed evidence in the file, "no matter what form it took at the moment of the veteran's death," section III.A.3.a.(1), ante at 11, may suffer from the law of unintended consequences. That is, although it may not seem unreasonable, under the facts of this case, to deem a VA report of treatment that is reduced to writing five weeks after the veteran's death evidence in the file, the majority's holding appears to permit a VA report of treatment, that is requested and written many years after a veteran's death, to be deemed evidence in the file at the date of death. Such a broad interpretation of the Secretary's Manual M21-1 may have the unintended effect of openingPandora's box, possibly leading to a development of evidence in an accrued benefits claim that is not contemplated by statute. My concerns are augmented by the fact that the Secretary's current Manual M21-1 contains a similar provision that requires VA reports of hospitalization, examination, or treatment to be placed in the claims file "even if they are not reduced to writing . . . until after death," and therefore, the majority's holding may not be limited only to those cases that have been pending prior to the Secretary's 2002 amendment to 38 C.F.R. § 3.1000(d) and rescission of paragraph 5.06(c). See M21-1MR, pt. VIII, chs. 3, 1.f (2010).25Rather than broadly construe the Secretary's Manual M21-1 provision, I would have reviewed the Board's factual findings concerning when the report was requested and prepared and concluded that the Board clearly erred when it failed to afford the appellant the benefit of the doubt. See 38 U.S.C. § 5107(b) ("When there is an approximate balance of positive and negativeevidence regarding any issue material to the determination of a matter, the Secretary shall givethe benefit of the doubt to the claimant."); Mariano v. Principi, 17 Vet.App. 305, 313 (2003) (theCourt reviews the Board's application of the benefit of the doubt rule under the "clearlyerroneous" standard); 38 C.F.R. § 3.102 (2011) ("When, after careful consideration of allprocurable and assembled data, a reasonable doubt arises regarding service origin, the degree ofdisability, or any other point, such doubt will be resolved in favor of the claimant."). In short, Iagree with the appellant that the Board's conclusions concerning the preparation of the report arehighly speculative and are not based on any affirmative evidence in the record.In its decision, the Board found that the June 2000 treatment report was not requested orprepared prior to the veteran's death and, therefore, concluded that it could not be considered aspart of the accrued benefits claim. The Board observed that the veteran died on May 18, 2000,and that the report, dated June 26, 2000, indicated that it was prepared at the request of theveteran's wife and veteran's service representative (VSR). The Board also acknowledged that thereport was written in the present tense, which indicated that the physician thought the veteranwas still alive. The Board stated that there was no evidence to indicate when the psychiatristprepared the report, but expounded that assuming the veteran's wife requested the report, it was"highly unlikely" that the psychiatrist would have been asked to prepare the report prior to theveteran's death and have waited more than five weeks to reduce it to writing. R. at 10. Thus, theBoard concluded that the benefit of the doubt was "not implicate[d]" in the absence of anyevidence that the psychiatrist prepared the report before the veteran died. Id.To the extent the VSR may have requested the report, the Board stated that "it isreasonable to assume that the VSR would have delayed the [June 15, 2000, hearing] until thepsychiatrist's report was received," had it been requested before the veteran's death. Id.(emphasis added). Based on the foregoing, the Board found that "the VA psychiatrist's June2000 report was not requested until after the representative's Informal Hearing Presentation,26dated June 15, 2000 – almost one month after the Veteran had died – and so, a fortiori, thepsychiatrist's report could not have been prepared prior to his death." R. at 11."The Board's task [is] to make findings based on evidence of record – not to supplymissing facts." Beaty v. Brown, 6 Vet.App. 532, 536-37 (1994) (holding that the Board's findingthat "'with eye protection, these occupations ["farmwork and heavy equipment operation"] wouldstill be feasible' ha[d] no evidentiary basis in the record" and was clearly erroneous); see alsoTucker v. West, 11 Vet.App. 369, 374 (1998) (holding that the Board clearly erred when it reliedon its own medical speculation and noting that "[b]are assertions without identifying theunderlying factual basis for the conclusion are not sufficient"). In this case, what is clear fromthe face of the report is that it is dated June 26, 2000, five weeks after the veteran's death, andthat the veteran's wife and VSR requested the report. However, the fact that the report postdatesthe veteran's death is not dispositive because the Secretary's Manual M21-1 provision clearlycontemplates that evidence may be deemed in the file even though it is not reduced to writinguntil after death. Thus, as conceded by the Board, it is "possible" that the report was "prepared"prior to the veteran's death, but not reduced to writing until after death. R. at 10. This possibilityis bolstered by the fact that the VA doctor repeatedly referred to the veteran in the present tense,strongly suggesting that the physician believed that the veteran was alive when the report wasprepared. See, e.g., R. at 333 ("The patient's current GAF (Global Assessment of Functioning) isscored as 25.") and ("The patient is totally and permanently disabled and now requires totalnursing home care for supervision of his basic activities for daily living. He may benefit fromthe use of medications to control his emotional outbursts, confusion and disorientation. Hisprognosis is guarded.") (emphasis added). On the other hand, there is no factual basis in therecord to support the Board's conjecture that it is "highly unlikely" that it would take thephysician more than five weeks to reduce a report to writing nor is there any basis for theBoard's assumptions as to the VSR's thought process in preparing for and submitting an informalhearing presentation on June 15, 2000.Once we remove the Board's speculative determinations concerning the timing of the preparation of the report and consider the evidence in the record, it is clear that the Board erred when it found that the benefit of the doubt was "not implicated." This is precisely the scenario in which the determination as to when the report was prepared is "too close to call" and the benefit27of the doubt should have been afforded to the appellant. See generally Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001) ("[T]he benefit of the doubt rule may be viewed as shifting the 'risk of nonpersuasion' onto the VA to prove that the veteran is not entitled to benefits.").Thus, I would have concluded that the Board clearly erred when it failed to afford the appellant the benefit of the doubt to conclude that the VA psychiatrist prepared the report prior to the veteran's death and, therefore, the report should be deemed "evidence in the file" even though it was not reduced to writing until after the veteran's death.C. Retroactive Application of 38 C.F.R. § 3.1000(d)(4)The majority holds that the Board's application of § 3.1000(d)(4) was erroneous "because the regulation was not intended to be retroactive and its retroactive application has an impermissible retroactive effect." Section III.A.3.a.2, ante at 11. Although I generally agree that the Secretary's 2002 amendment to § 3.1000 was not intended to apply retroactively and that any such application would have an impermissible retroactive effect, I do not agree with the majority's analysis of the Princess Cruises factors. See section III.A.3.a.2, ante at 11-15; Princess Cruises, Inc. v. United States, 397 F.3d 1358, 1362-63 (Fed. Cir. 2005). I also do not believe that my colleagues' Princess Cruises analysis is necessary to the Court's disposition because the Secretary has not maintained that the regulation applies retroactively. See generally Evidence for Accrued Benefits, 67 Fed. Reg. 65,707 (Oct. 28, 2002) (indicating that the Secretary's amendment to § 3.1000 is effective "November 27, 2002"); Secretary's Br. at 14-15(citing 38 C.F.R. § 3.1000 (1999) as the applicable version of the regulation). Assuming the Board applied the current version of the regulation, I agree that such application was erroneous.Accordingly, for the foregoing reasons, I concur in the result reached by the Court, but must respectfully disagree with those portions of the majority's opinion discussed above. The Board's decision should be vacated and the matter remanded for the Board to consider the June 26, 2000, VA medical report.28

Single Judge Application, Treatment Records More Probative Than Compensation Records, Harvey v. Brown, 6 Vet.App. 390, 394 (1994); Probative Value of Conflicting Medical Opinions

2011-12-24T04:17:00.000-08:00

Excerpt from decision below:"In reaching its credibility determination, the Board found that the appellant's prior statements, which were made for treatment purposes, outweighed his more recent contentions regarding an in-service onset and continuous postservice symptoms, which were made for disability compensation purposes. R. at 11-13 (citing Harvey v. Brown, 6 Vet.App. 390, 394 (1994) (Board decision properly assigned more probative value to a private hospital record that included lay history that was made for treatment purposes than to subsequent statements made for compensation purposes)).Thus, the Board heavily relied on the appellant's reported history in a 1979 treatment note that his hallucinations began in 1978 (R. at 593-94) and the absence of any treatment records that reported a history of symptoms in service (R. at 11-12) to find his recent assertions of an in-serviceonset not credible. However, in finding the appellant not credible on this basis, the Board failed to account for a December 1984 treatment note in which the appellant reported that he "first" experienced psychiatric problems in71971 while he was in the military. R. at 666-68. The Secretary attemptsto downplay the significance of this evidence because the report does not state that the appellant experienced "hallucinations" in service. Secretary's Br. at 9-10. However, it is the Board's duty to analyze the credibility and probative value of the evidence and, as noted above, this duty is heightened in cases such as this where the appellant's service treatment records areunavailable. See Washington supra; see also R. at 6. Here, the Board found the appellant not credible, in part, because no postservice treatment reports included a history of "symptoms in service." R. at 11; see also R. at 13. This is clearly contrary to the December 1984 treatment note, which noted "psychiatric problems . . . in the military." R. at 666. On remand, the Board must account for this evidence and explain its probative worth when it assesses the appellant's credibility regarding the onset his psychiatric symptoms. See Washington, Allday, and Caluza, all supra. Additionally, because the Board relied on the appellant's report of a postservice onset in 1978 to find his assertion of treatment soon after service not credible, on remand the Board may need to examine whether its analysis regarding the onset of symptoms impacts its finding that the appellant was not credible when he reported that he sought treatment shortly after service and that the records are no longer available because of the physician's death. See R. at 13-14.2. Probative Value of Conflicting Medical OpinionsThe appellant argues that it was improper for the Board to discount Dr.Smith's favorable medical opinion because it was based on an "inaccurate history" reported by the appellant, yet find the VA examiner's opinion probative, when both examiners reviewed the same history and the same record, but drew different conclusions. Appellant's Br. at 9-10. The Secretary argues, contrary to the appellant's assertions, that the Board acknowledged that the appellant provided an "incorrect history" to the VA examiner. Secretary's Br. at 11. In support of this assertion, the Secretary relies on the following analysis:The history given by the [v]eteran in 1979 dates the onset of symptoms to1978, still over five years after service separation. . . . This more contemporaneous history given by the [v]eteran in 1979 for treatment purposes contradicts the [v]eteran's later contentions in October 2007 hearing testimony and at the June 2008 VA examination,which were made for VA disability compensation purposes, that he had had auditory hallucinations or other psychotic symptoms since service. R. at 12 (emphasis added); see Secretary's Br. at 12.8The appellant persuasively argues in his reply brief that the Secretary'sposition is untenable, that is, if the VA examiner also relied on an inaccurate history, as conceded by the Secretary, then the Board must explain why the inaccurate factual history impugns the bases for Dr. Smith's opinion but does not diminish the probative worth of the VA examiner's opinion.Reply Br. at 4-5. The Court agrees. It is true that "[a]n opinion based upon an inaccurate factual premise has no probative value." Reonal v. Brown, 4 Vet.App. 458, 461 (1993). The problem with the Board's analysis is that it failed to consistently apply this rule when it evaluated the conflicting medical opinions of record.That is, although the Board found the appellant's recent contentionsregarding the onset and continuity of psychiatric symptoms not credible, and relied on this credibility determination to render Dr. Smith's opinion worthy of little probative value, the Board failed to similarly discuss how itscredibility determination impacted its assessment of the VA examiner'sopinion, which was based on the same factual premise.Additionally, the Board failed to explain why the VA examiner's opinionwas "more probative" given the examiner's reliance on the appellant's statement that he had hallucinations prior to military service, which contradicts the Board's reliance on the appellant's reported history of a postservice onset in 1978. For this reason, the appellant argues that the Board erred when it relied on the VA examiner's "incomplete" opinion, which assumed a preservice onset. Appellant's Br. at10-11. The Secretary argues that the appellant's report of a history tothe VA examiner that was different than the history provided in other medical reports does not result in error by the examiner in taking the history and including it in the examination report. Secretary's Br. at 12. Although itmay have been proper for the examiner to record the appellant's history ofhaving had hallucinations prior to service, as noted above, the Board should have explained its reasons for finding the VA examiner's opinion "more probative" when it was clearly based on a history that was rejected by the Board.1 See R. at 105 ("While the day-to-day stress of military service may have exacerbated the1. The Board's reasons for finding the opinion probative are unclear because,in stating that it was relying on the opinion, the Board acknowledged that the examiner considered whether the stress in the military aggravated the appellant's preexisting psychotic symptoms (R. at 14), yet the Board proceeded to find that the appellant was not credible because postservice treatment records indicated that his symptoms began in 1978.9veteran's pre-existing psychotic symptoms, there is no clear evidencethat [] his military service has served as a long-term aggravating factor." (emphasis added)).The Court also agrees with the appellant that the Board failed to providean adequate statement of reasons or bases for assigning less probative weight to Dr. Smith's opinion because he "failed to discuss" the appellant's service separation notation that his nervousness was treated and improved. Appellant's Br. at 8-9; Reply Br. at 2-3."=====================================----------------------------------------------------Designated for electronic publication onlyUNITED STATES COURT OF APPEALS FOR VETERANS CLAIMSNO. 09-4329RONNY D. HAGEWOOD, APPELLANT,V.ERIC K. SHINSEKI,SECRETARY OF VETERANS AFFAIRS, APPELLEE.Before SCHOELEN, Judge.MEMORANDUM DECISIONNote: Pursuant to U.S. Vet. App. R. 30(a),this action may not be cited as precedent.SCHOELEN, Judge: The appellant, Ronny D. Hagewood, appeals through counselaNovember 10, 2009, Board of Veterans' Appeals (Board) decision that denieddisabilitycompensation benefits for a psychiatric disorder, to include depressionand schizophrenia. Recordof Proceedings (R.) at 3-20. The Board also dismissed the appellant'sclaim for disabilitycompensation benefits for a thoracolumbar spine disorder (R. at 8-9),which the appellant has notpursued on appeal. See Appellant's Brief (Br.) at 1. This appeal is timely,and the Court hasjurisdiction over the case pursuant to 38 U.S.C. §§ 7252(a) and 7266(a).Both parties filed briefs,and the appellant filed a reply brief. Single-judge disposition isappropriate. See Frankel v.Derwinski, 1 Vet.App. 23, 25-26 (1990). Because the Board failed toprovide an adequate statementof reasons or bases for it credibility determination and the relativeprobative weight it assigned tothe conflicting medical opinions of record, the Court will vacate theNovember 10, 2009, decisionand remand the mater for further proceedings consistent with this decision.I. FACTSThe appellant served honorablyin the U.S. Air Force from October 1968 toSeptember 1972.R. at 4, 737. "The only service treatment records available are the [appelant's] enlistment andseparation examinations, as well as the accompanying reports of medicalhistory." R. at 6. Nopsychiatric disorders were noted on his entrance examination. R. at 721-22.At his June 1972separation examination, the appellant reported that had "nervous trouble" (R. at 713), which theexaminer described as "[n]ervousness 1970 [as a result of] job tension,treated and improved, nocomp[lications] or seq[uelae]." R. at 714; see also R. at 716.Additionally, the examiner's reportof medical examination indicates that the appellant's psychiatricevaluation was "normal" and thathe suffered from no psychiatric disorder, including a "personalitydeviation." R. at 715.In December 1984, a VA regional office (RO) denied the appellant's claimfor compensationbenefits for a "nervous condition" based on its finding that "[s]chizophrenia was not incurred in oraggravated by [his] military service." R. at 697-99. In October 2005, theappellant submittedanother claim for compensation benefits for "schizophrenia" and "depression." R. at 486-96. InFebruary 2006, the RO denied entitlement to compensation benefits fordepression (R. at 473-75),and in April 2006 the RO found that the appellant failed to submit new andmaterial evidence toreopen a claim for entitlement to benefits for schizophrenia (R. at 207-10). The appellant timelyperfected an appeal to the Board (R. at 169-70, 173-93, 198-201), and inOctober 2007 testified ata Board hearing (R. at 128-46).The appellant testified that he was diagnosed with and treated for a "nervous disorder" in1971 while he was on active duty in Korea, which he attributed to "[s]tress." R. at 140, 142-43. Hedescribed his in-service "nervousness" as "feel[ing] like people wereplotting against me and doingthings against me." R. at 143. He also stated that he was "hearing voicesand things" and that thedoctor informed him that he "was working too hard." Id. He stated thatthis was the first time heexperienced something like this and that his symptoms had continued sinceservice. R. at 144. Healso indicated that he was first diagnosed with schizophrenia in "1978 –77" and that he wascurrently receiving treatment at the VA hospital for "schizophrenia anddepression." R. at 141.In April 2008, the Board reopened the appellant's claim, remanded thematter to provide theappellantaVApsychiatricexamination,anddirectedtheexaminertoidentifyallcurrentlydiagnosedpsychiatric disorders and opine whether the appellant's schizophrenia anddepression are at least aslikely as not related to service. R. at 112-27. On June 18, 2008, theappellant underwent acompensation and pension examination in which the examiner diagnosedschizophrenia, paranoid2type and depression, not otherwise specified. R. at 96-106. The VAexaminer's report indicates thathe reviewed the appellant's claims file and conducted a clinical interviewand a psychologicalexamination of the appellant. Id. The examiner noted that the appellant'sclaims file containedmultipletreatmentrecordsthatconfirmedhis longhistoryoftreatmentforschizophreniaandvaryinglevels of functioning over time. R. at 97. The examiner also noted thatthe appellant was "oftendescribed as being a poor historian." Id. Although he stated that "theappellant's ability to providea history has been variable," the examiner found him to be a "fairhistorian" at present. R. at 104-05.During the examination, the appellant reported that he experienced his "first hallucinations"at the age of 18, when he frequently worked overtime and began to "'hearthings' when fatigued."R. at 98. The appellant also reported that he "'cracked up'" while he wasstationed in Korea. Id. Theappellant described having the shakes, difficulty sleeping, and hearingthings. Id. He stated that atreating doctor informed him that he was "working too hard." Id. Theappellant also reported that"in the wake of his discharge" he received mental health treatment from Dr.Darcy Brown inNashville, Tennessee. R. at 100. Although the VA examiner was satisfiedthat the appellant'spresentation, self-report, and clinical history showed that the appellantmet the criteria forschizophrenia, paranoid type and depressive disorder, not otherwisespecified, the examiner statedthat the "course of [the appellant's] symptoms is less clear." R. at 105.In this regard, he noted thatthe appellant reported some symptoms of schizophrenia (auditoryhallucinations) prior to militaryservice and that he described them as worsening during service. Id. Theexaminer noted, however,that the appellant completed his tour of duty and that his "post-militaryclinical record indicate[d]a significant post-military decline in functioning." Id. The examinedstated, in pertinent part:While the day-to-day stress of military service may have exacerbated theveteran'spre-existing psychotic symptoms, there is no clear evidence that [] hismilitaryservice has served as a long-term aggravating factor. One could assertthat his pre[-]military hallucinatory experiences would have remitted or remainedcircumscribedwere it not for the stress of military service. However, given the normalpatterns ofemergence for schizophrenia . . . , and given the worsening of hispresentation afterhis service stress was removed, this is the weaker argument.R. at 105-06.With regard to the appellant's depressive disorder, the VA examiner notedthe appellant'sreport of a limited set of depressive symptoms during service, which hedescribed as "mild and3intermittent until his divorce in 1980." R. at 106. The examiner opined, "[b]ased on the availableevidence,"that the appellant's "[s]chizophrenia and [m]ood disorder [nototherwise specified] is lesslikely as not (less than 50/50) probability caused by or a result of hismilitary service." Id.In an October 2008 decision, the Board denied the appellant's claim. R. at62-67. Theappellant appealed to the Court and on June 5, 2009, the Court granted theparties' joint motion forremand. R. at 53-60. On remand, the appellant submitted a September 2009medical opinion byDr.Smith, a board-certified forensic psychiatrist, and written argument insupport of favoring Dr.Smith's opinion over the unfavorable June 2008 VA examiner's opinion. R.at 31-36, 39-44.After reviewing the "entire Record Before The Agency," Dr. Smith opinedthat "it is morelikelythan not that the veteran experienced his first psychotic breakwhile in Kunsan on active duty."R. at 35. Dr. Smith noted that the Diagnostic and Statistical Manual ofMental Disorders, FourthEdition (DSM-IV) states that "'[t]he model age of onset for[schizophreniain] men is between 18 and25 years'" and that the appellant "was 21 or 22 years of age in Kunsan." R.at 35. Dr. Smith alsostated that the DSM-IV indicates: (1) "Schizophrenia onset maybe abrupt orinsidious, with the slowand gradual development of a variety of signs and symptoms"; and (2) "'Most studies of the courseand outcome in Schizophrenia suggest that the course may be variable, withsome individualsdisplaying exacerbations and remissions, whereas others remain chronicallyill.'" R. at 35 (citingDSM-IV at 308-09). Dr. Smith stated that "[i]n reviewing the record, [he]did not find anyinconsistencies or evidence of exaggeration, or an attempt to deceiveexaminers on the part of [theappellant]." Id. With regard to whether the appellant experienced any pre-service symptoms, Dr.Smith stated that "[i]f he had any symptoms prior to active duty, which isnot clear, they were notto the degree that he needed to seek care." Id. With regard to hispostservice symptoms, Dr. Smithstated that "[s]ubsequent to his release from active duty he has had atypical course of[s]chizophrenia and continues to be treated to this day. His symptoms havewaxed and wanedthrough the years. This is one of the typical courses for this disorder."Id. Dr. Smith also opinedthat the appellant's depression is "most likely secondary to his chronic [s]chizophrenia, [because]comorbidity of the two is high." Id.In the November 10, 2009, decision here on appeal, the Board denied theappellant's claimfor compensation benefits for a psychiatric disorder, to includeschizophrenia and depression. R. at43-20. After weighing the conflicting medical opinions of record andfinding the appellant's layevidence not credible, the Board assigned less probative weight to Dr.Smith's opinion. R. at 13-16.The Board determined that Dr. Smith's opinion was less probative because (1) Dr. Smith onlydiscussed the favorable evidence of record and failed to discuss theappellant's separationexamination, whichnotedthathisnervousness was treated and improved; (2) Dr.Smith's conclusionthat the appellant's "testimony and contentions are consistent" was notsupported by the record; and(3) the bases for Dr. Smith's nexus opinion are an inaccurate historyreported by the appellant. R.at 15-16. The Board foundtheVA examiner's opinion against the claim moreprobative because "theVA opinion discussed all the evidence on file." R. at 15. The Boardexplained that its conclusionthat a psychiatric disorder was not chronic in service or continuous sinceservice was based onseveral factors, including the absence of chronic psychiatric disabilitycontained inthe[v]eteran'sJune1972serviceseparationmedicalhistoryandphysicalexaminationreports, the [v]eteran's own reported histories, post-service medicalevidence that donot show a chronic psychiatric disorder until several years after servicedischarge,and the nexus opinion against the claim.R. at 16-17. After weighing all the evidence, lay and medical, the Boardconcluded that thepreponderance of the evidence was against the appellant's claim. Id. Thisappeal followed.On appeal, the appellantargues that the Board's decision wasclearlyerroneous because therewas no plausible basis for the Board to favor the June 2008 VA examiner'sopinion over Dr. Smith'sopinion. Appellant's Br. at 5-12. In the alternative, the appellant arguesthat the Board failed toprovide an adequate statement of reasons or bases for the relativeprobative weight assigned to theconflicting medical opinions and for finding the appellant's statementsconcerning the onset,chronicity and continuity of his symptoms not credible. Id. at 12-16.The Secretary argues for affirmance of the Board's decision. Secretary'sBr. at 7-17. TheSecretary argues that the Board was permitted to favor one medical opinionover another, and thatthe Board provided an adequate statement of reasons or bases to supportits determination that theVA examiner's opinion was entitled to greater weight than Dr. Smith'sopinion. Id. at 7-14. TheSecretaryfurther argues that the Board's credibilitydetermination was notclearlyerroneous and thatthe Board adequately explained its reasons for finding the appellant notcredible. Id.5II. ANALYSISA. LawEstablishing service connection generally requires medical or, in certaincircumstances, layevidence of (1) a current disability; (2) incurrence or aggravation of adisease or injury in service;and (3) a nexus between the claimed in-service injury or disease and thecurrent disability. SeeDavidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v.West, 12 Vet.App. 247, 252(1999); Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78F.3d 604 (Fed. Cir. 1996)(table). A finding of service connection, or no service connection, is afinding of fact that the Courtreviews under the "clearly erroneous" standard. See Swann v. Brown, 5 Vet.App. 229, 232 (1993).A finding of material fact is clearly erroneous when the Court, afterreviewing the entire evidence,"is left with the definite and firm conviction that a mistake has beencommitted." United States v.U.S. Gypsum Co., 333 U.S. 364, 395 (1948); see also Gilbert v. Derwinski,1 Vet.App. 49, 52(1990).In rendering its decision, the Board must include a written statement ofthe reasons or basesfor its findings and conclusions on all material issues of fact and lawpresented on the record; thestatement must be adequate to enable an appellant to understand theprecise basis for the Board'sdecision, and to facilitate informed review in this Court. See 38 U.S.C. §7104(d)(1); Allday v.Brown, 7 Vet.App. 517, 527 (1995); Gilbert, 1 Vet.App. at 57. To complywith this requirement,the Board must analyze the credibility and probative value of the evidence,account for the evidenceit finds persuasive or unpersuasive, and provide the reasons for itsrejection of anymaterial evidencefavorable to the claimant. Caluza, 7 Vet.App. at 506; see also Washingtonv. Nicholson,19 Vet.App. 362, 367-68 (2005) (stating that it is the Board's duty, asfactfinder, to determine thecredibility and weight to be given to the evidence); Smith v. Derwinski, 1Vet.App. 235, 237-38(1991) (holding that "[d]etermination of credibilityof veteran's sworntestimonyis a function for theBoard"). When a veteran's service medical records (SMRs) have been lost ordestroyed, the Boardis "under a heightened duty to consider and discuss the evidence of recordand supply well-reasonedbases for its decision as a consequence of the missing SMRs." Washington,19 Vet.App. at 371. "Itis not error for the [Board] to favor the opinion of one competent medicalexpert over another whenthe Board gives an adequate statement of reasons or bases." Owens v. Brown,7 Vet.App. 429, 4336(1995). Such assessments will be overturned by this Court only if theyare "clearly erroneous." Id.;see also Gilbert, 1 Vet.App. at 52. "When there is an approximate balanceof positive and negativeevidence regarding any issue material to the determination of a matter,the Secretary shall give thebenefit of the doubt to the claimant." 38 U.S.C. § 5107(b); see alsoMariano v. Principi,17 Vet.App. 305, 313 (2003) (also referring to benefit of the doubt ruleas "equipoise standard"); 38C.F.R. § 3.102 (2011).B. The Board's Reasons and BasesIn the instant case, the Court agrees with the appellant that the Boardfailed to provide anadequate explanation for finding his contentions regarding the onset ofpsychiatric symptoms notcredible and for finding the VA examiner's opinion more probative than Dr.Smith's opinion. SeeOwens, supra. This failure renders the Board's statement of reasons ofreasons or bases inadequateto facilitate review; therefore, remand, not reversal, is the appropriateremedy. See Tucker v. West,11 Vet.App. 369, 374 (1998) (holding that remand is the appropriate remedy "where the Board hasincorrectly applied the law, failed to provide an adequate statement ofreasons or bases for itsdeterminations, or where the record is otherwise inadequate").1. The Board's Credibility DeterminationThe Court notes that a significant portion of the Board's analysis andassignment of relativeweight to the evidence hinged on its determination that the appellant wasnot credible. In reaching its credibility determination, the Board found that the appellant's prior statements, which were made for treatment purposes, outweighed his more recent contentions regarding an in-service onset and continuous postservice symptoms, which were made for disability compensation purposes. R. at 11-13 (citing Harvey v. Brown, 6 Vet.App. 390, 394 (1994) (Board decision properly assigned more probative value to a private hospital record that included lay history that was made for treatment purposes than to subsequent statements made for compensation purposes)).Thus, the Board heavily relied on the appellant's reported history in a 1979 treatment note that his hallucinations began in 1978 (R. at 593-94) and the absence of any treatment records that reporteda history of symptomsin service (R. at 11-12) to find his recent assertions of an in-serviceonset not credible. However,in finding the appellant not credible on this basis, the Board failed toaccount for a December 1984 treatment note in which the appellant reported that he "first" experienced psychiatric problems in71971 while he was in the military. R. at 666-68. The Secretary attemptsto downplay the significance of this evidence because the report does not state that the appellant experienced "hallucinations" in service. Secretary's Br. at 9-10. However, it is theBoard's duty to analyze thecredibility and probative value of the evidence and, as noted above, thisduty is heightened in casessuch as this where the appellant's service treatment records areunavailable. See Washington supra;see also R. at 6. Here, the Board found the appellant not credible, inpart, because no postservicetreatment reports included a history of "symptoms in service." R. at 11;see also R. at 13. This isclearly contrary to the December 1984 treatment note, which noted "psychiatric problems . . . in themilitary." R. at 666. On remand, the Board must account for this evidenceand explain its probativeworth when it assesses the appellant's credibility regarding the onset hispsychiatric symptoms. SeeWashington, Allday, and Caluza, all supra. Additionally, because the Boardrelied on the appellant'sreport of a postservice onset in 1978 to find his assertion of treatmentsoon after service not credible,on remand the Board may need to examine whether its analysis regarding theonset of symptomsimpacts its finding that the appellant was not credible when he reportedthat he sought treatmentshortly after service and that the records are no longer available becauseof the physician's death.See R. at 13-14.2. Probative Value of Conflicting Medical OpinionsThe appellant argues that it was improper for the Board to discount Dr.Smith's favorable medical opinion because it was based on an "inaccurate history" reported by the appellant, yet find the VA examiner's opinion probative, when both examiners reviewed the same history and the same record, but drew different conclusions. Appellant's Br. at 9-10. The Secretary argues, contrary to the appellant's assertions, that the Board acknowledged that the appellant provided an "incorrect history" to the VA examiner. Secretary's Br. at 11. In support of this assertion, the Secretary relies on the following analysis:The history given by the [v]eteran in 1979 dates the onset of symptoms to1978, still over five years after service separation. . . . This more contemporaneoushistorygiven bythe [v]eteran in 1979 for treatment purposes contradicts the [v]eteran's latercontentions in October 2007 hearing testimony and at the June 2008 VAexamination,which were made for VA disabilitycompensation purposes, thathe hadhad auditory hallucinations or other psychotic symptoms since service.R. at 12 (emphasis added); see Secretary's Br. at 12.8The appellant persuasivelyargues in his reply brief that the Secretary'sposition is untenable,that is, if the VA examiner also relied on an inaccurate history, asconceded by the Secretary, then the Board must explain why the inaccurate factual history impugns the bases for Dr. Smith's opinion but does not diminish the probative worth of the VA examiner's opinion.Reply Br. at 4-5. The Court agrees. It is true that "[a]n opinion based upon an inaccurate factual premise has no probative value." Reonal v. Brown, 4 Vet.App. 458, 461 (1993). The problem with the Board's analysis is that it failed to consistently apply this rule when it evaluated the conflicting medical opinions of record.That is, although the Board found the appellant's recent contentionsregarding the onset and continuity of psychiatric symptoms not credible, and relied on thiscredibilitydetermination to renderDr. Smith's opinion worthy of little probative value, the Board failed tosimilarly discuss how itscredibility determination impacted its assessment of the VA examiner'sopinion, which was basedon the same factual premise.Additionally, the Board failed to explain why the VA examiner's opinionwas "moreprobative" given the examiner's reliance on the appellant's statement thathe had hallucinations priorto military service, which contradicts the Board's reliance on theappellant's reported history of apostservice onset in 1978. For this reason, the appellant argues that theBoard erred when it reliedon the VA examiner's "incomplete" opinion, which assumed a preserviceonset. Appellant's Br. at10-11. The Secretary argues that the appellant's report of a history tothe VA examiner that wasdifferent than the history provided in other medical reports does notresult in error by the examinerin taking the history and including it in the examination report.Secretary's Br. at 12. Although itmay have been proper for the examiner to record the appellant's history ofhaving had hallucinationsprior to service, as noted above, the Board should have explained itsreasons for finding the VAexaminer's opinion "more probative" when it was clearly based on a historythat was rejected by theBoard.1See R. at 105 ("While the day-to-day stress of military service may haveexacerbated theThe Board's reasons for finding the opinion probative are unclear because,in stating thatit was relying on the opinion, the Board acknowledged that the examinerconsidered whether thestress in the military aggravated the appellant's preexisting psychoticsymptoms (R. at 14), yet theBoard proceeded to find that the appellant was not credible becausepostservice treatment recordsindicated that his symptoms began in 1978.91veteran's pre-existing psychotic symptoms, there is no clear evidencethat [] his military service hasserved as a long-term aggravating factor." (emphasis added)).The Court also agrees with the appellant that the Board failed to providean adequatestatement of reasons or bases for assigning less probative weight to Dr.Smith's opinion because he"failed to discuss" the appellant's service separation notation that hisnervousness was treated andimproved. Appellant's Br. at 8-9; ReplyBr. at 2-3. The Secretaryassertsthat the Court should rejectthis argument because although Dr. Smith mentioned the separationexamination "in passing," hefailed to explain how the service examination influenced his opinion.Secretary's Br. at 10-11.However, in discounting Dr. Smith's opinion onthisbasis,the Board did notexplain whyDr. Smith'sdiscussion regarding the nature of schizophrenia and how the schizophreniaplayed out in theappellant's case did not adequately address why the absence of apsychiatric diagnosis at dischargedid not alter his opinion that the appellant's schizophrenia began inservice. In this regard, the Courtnotes that Dr. Smith relied on the DSM-IV, which describes the course ofschizophrenia as being"'variable, with some individuals displaying exacerbations and remissions,whereas others remainchronically ill,'" and that the appellant's "symptoms have waxed and wanedthrough the years[,which] is one of the typical courses for this disorder." R. at 35. Asstated earlier, the Board ispermitted to favorthe opinion of one competent medical expert over anotherprovided that the Boardsupplies an adequate statement of reasons or bases for its conclusion. SeeOwens, supra. The Boarddid not do so here. Accordingly, the Court will remand the matter to theBoard. See Tucker andOwens, both supra.C. The Appellant's Remaining ArgumentsBecausetheCourt hasdeterminedthatremandis the appropriate remedyhere, theCourt neednot address each of the appellant's remaining arguments that would notresult in a broader remedy.See Mahl v. Principi, 15 Vet.App. 37, 38 (2001) (per curiam order) (holding that "if the properremedy is a remand, there is no need to analyze and discuss all the otherclaimed errors that wouldresult in a remedy no broader than a remand"); see also Best v. Principi,15 Vet.App. 18, 19 (2001)(per curiam order) (holding that the Court generallydecides cases on thenarrowest possible groundsand therefore is not required to rule upon other allegations of error ineffecting a remand). Inpursuing his case on remand, the appellant is free to submit additionalevidence and argument on the10remanded matters, and the Board is required to consider any such relevantevidence and argument.See Kay v. Principi, 16 Vet.App. 529, 534 (2002) (stating that, on remand,the Board must consideradditionalevidenceandargumentinassessingentitlementto benefit sought);Kutscherousky v.West,12 Vet.App. 369, 372-73 (1999) (per curiam order). The Court has held that"[a] remand is meant to entail a critical examination of the justification for the decision."Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991). The Board must proceed expeditiously, inaccordance with 38 U.S.C. § 7112 (requiring Secretary to provide for "expeditious treatment"of claimsremanded by the Court).III. CONCLUSIONAfter consideration of the appellant's and the Secretary's briefs, and a review of the record, the Board's November 10, 2009, decision is VACATED and the matter REMANDED for further proceedings consistent with this decision.DATED: December 12, 2011Copies to:Robin M. Webb, Esq.VA General Counsel (027)11

Single Judge Application, Flare-ups and Functional Loss; Mitchell v. Shineski, 25 Vet.App. 32, 44 (2011);

2011-12-23T10:06:00.001-08:00

Excerpt from decision below:"A functional loss results when ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination [,or] endurance" is inhibited. 38 C.F.R. § 4.40(2011). When assessing a veteran's level of disability, the examiner must "express an opinion on whether pain could significantly limit functional ability during flare-ups." DeLuca v. Brown, 8 Vet.App. 202, 206 (1995). If feasible, limitations of functional ability should be expressed in terms of additional limitation of motion. Id. In Mitchell v. Shineski, theCourt reinforced the principle that:[when an] examiner failed to address any range-of-motion loss specificallydue to pain and any functional loss during flare-ups, the examination lackssufficient detail necessary for a disability rating, and it should have been returned for the required detail to be provided, or the Board should have explained why such action was not necessary. 25 Vet.App. 32, 44 (2011) (holding that "pain alone does not constitute a functional loss under VA regulations" and was not a sufficient basis for a higher disability rating under diagnostic codes that evaluate limitation of range of motion).In this case, the examiner concluded:Except as noted in the history and examination above, there is no changein active or passive range of motion . . . [d]uring repeat motion testing and no additional losses of range of motion of the involved joints or spine due to pain, weakness, impaired endurance, fatigue, incoordination or flare-ups. R. at 206. The appellant asserts that the examiner, in so concluding, did not explain his likely limitations caused by pain during flareups. App. Br. at 19. The Court agrees. See R. at 203 ("Flares of increased pain can last minutes to hours and are variable in frequency.").Although painful motion is not limited motion for purposes of DC 5260, pain during flare-ups could produce a functional loss that entitles the veteran to additional compensation. See Mitchell, supra.Although the examiner tersely states that the appellant has no additional loss of range of motion due to flare-ups, the examiner wholly fails to "express an opinion on whether pain could significantly limit functionalability during flare-ups." DeLuca v. Brown, 8 Vet.App. at 206. Accordingly,the Board's reliance on this inadequate medical examination was clearly erroneous. See Nolen, supra.========================================----------------------------------------------------Designated for electronic publication onlyUNITED STATES COURT OF APPEALS FOR VETERANS CLAIMSNO. 10-0838MICHAEL SCOTT OSTER, APPELLANT,V.ERIC K. SHINSEKI,SECRETARY OF VETERANS AFFAIRS, APPELLEE.Before MOORMAN, Judge.MEMORANDUM DECISIONNote: Pursuant to U.S. Vet. App. R. 30(a),this action may not be cited as precedent.MOORMAN, Judge: The appellant, Michael Scott Oster, appeals throughcounsel twoJanuary 8, 2010, Board of Veterans' Appeals (Board) decisions. One Boarddecision deniedentitlement to increased disability ratings for lumbosacral strain,currently rated at 20% disabling,and a right knee disorder, currently rated at 10% disabling; deniedentitlement to service connectionfor a cervical disk disorder and for a left peroneal nerve palsy, both assecondary to service-connected lumbosacral strain; and denied entitlement to service connectionfor a left knee disorderas secondaryto service-connecteddisorders. Record (R.) at 19-49. The otherBoard decision deniedentitlement to a temporary total disability rating for convalescencepursuant to 38 C.F.R. § 4.30(2008) based on L4-L5 laminectomy/discectomy1with hospitalization from November 30, 2007,through December 2, 2007, and convalescence thereafter. R. at 3-17. TheBoard also remanded theappellant's claim of entitlement to service connection for a psychiatricdisorder. The Court does nothave jurisdiction over this remanded claim and will not address it further.See Kirkpatrick v.Nicholson, 417 F.3d 1361 (Fed. Cir. 2005).Laminectomy is the "excision of the posterior arch of a vertebra."DORLAND'S ILLUSTRATED MEDICALDICTIONARY 1003 (32d ed. 2012) [hereinafter DORLAND'S]. Discectomy (alsocalled "Diskectomy") is the "excision ofan intervertebral disk." DORLAND'S at 547.1The appellant and Secretary both filed briefs, and the appellant filed areply brief. Thisappeal is timely, and the Court has jurisdiction pursuant to 38 U.S.C. §§7252(a) and 7266(a) toreview the Board's decision. A single judge may conduct this reviewbecause the outcome in thiscase is controlled bythe Court's precedents and "is notreasonablydebatable." Frankel v. Derwinski,1 Vet.App. 23, 25-26 (1990). For the following reasons, the Court willvacate in part and affirm inpart the Board's January 2010 decisions.I. FACTSMr. Oster served on active duty in the U.S. Navy from June 1985 to April1988. R. at 1112.While in service, Mr. Oster injured his back after hitting it against aship mooring. R. at 30. Upondischarge, Mr. Oster reported: "I've had trouble with my right leg andlately with my left leg." R.at 1255. A discharge summaryof Mr. Oster's service medical records alsoindicates that he had focaltendinitis, tibial tuberosity, and patellar strain of the right knee. R.at 1254.In January 1993, Mr. Oster filed a claim of entitlement to serviceconnection for back andright knee injuries. R. at 1665-69. In April 1993, following a VA medicalexamination of Mr.Oster's back, a VA regional office (RO) granted entitlement to serviceconnection for chronic strainofthethoracicandlumbarspine,ratedat10%disabling,but deniedentitlementtoserviceconnectionfor a right knee disability. R. at 1656, 1658.Mr. Oster filed a Notice of Disagreement (NOD) with the rating decision inMay 1993,asserting that his "chronic strain of the thoracic and lumbar spine ismore severe than the ten percentrating" indicates and that he is entitled to service connection for hisright knee disability. R. at 1636.VA provided Mr. Oster with a Statement of the Case (SOC) in September 1993 (R. at 1632-35) andMr. Oster filed a timely Substantive Appeal to the Board, appealing theRO's disposition of his backcondition and right knee condition claims. R. at 1576-77.In November 1993, x-rays were taken of Mr. Oster's lumbar spine. The firstx-ray, taken at2:15 p.m., showed no evidence of spondylosis or spondylolysthesis, butnoted that spondylolysis2should be ruled out.2R. at 970. The second x-ray, taken at 2:44 p.m., presumably as a result ofthenotation on the first x-ray indicating that spondylolysis should be ruledout, showed questionableunilateral spondylolysis on the right at L-5. R. at 968.In October 1994, the RO issued a rating decision granting entitlement toservice connectionfor a right knee condition, rated at 10% disabling. R. at 1518-21. The ROalso denied an increasedrating for Mr. Oster's chronic thoracolumbar strain, rated at 10%disabling. Id. Mr. Oster appealedthe RO's denial of an increased rating for his back condition to the Board,and the Board also deniedentitlement to an increased rating. R. at 1333-41. Mr. Oster did notappeal that decision.In March 2004, Mr. Oster filed a claim for an increased rating of his lowback condition. R.at 1327-30. He underwent a VA medical examination in May 2004. R. at 974-76. He filed anincreased rating claim for his right knee condition in August 2004 (R. at1179) and underwent anOctober 2004 VA joints examination (R. at 1157-60).In December 2004, the RO deniedentitlement to serviceconnection for a leftknee condition,cervical spine condition, and peroneal nerve palsy of the left leg anddenied entitlement to increasedratings for a right knee condition and low back strain. R. at 1108-20. Mr.Oster filed an NOD inJanuary 2005. R. at 1080-81.Thereafter, Mr. Oster underwent a December 2005 VA examination forperoneal nervepalsy(R. at 826-28), a September 2006 VA examination of the right knee (R. at747-48), and a February2007 VA examination of the joints (R. at 684-87). He appealed the December2004 VA decisionto the Board (R. at 770-91), and in July 2007 he testified before theBoard (R. at 600-21). InDecember2007,theBoardremandedMr.Oster's claimsforfurtherdevelopment,specificallyforVAto obtain Social Security Administration (SSA) records; for VA to obtainprivate medical records;for VA to provide an examination of his knees, spine, and left legperoneal nerve; and for VA toundertake any further necessary development. R. at 565-72.In June 2008, Mr. Oster underwent a VA examination of his low back, rightknee, cervicalSpondylolysis is defined as "dissolution of a vertebra; a condition markedby platyspondylia, aplasia of thevertebral arch, and separation of the pars interarticularis." DORLAND'S at1754. Spondylosis is defined as "1. ankylosisof a vertebral joint. 2. degenerative spinal changes due to osteoarthritis." Id. Spondylolisthesis is defined as "forwarddisplacement (olisthy) of one vertebra over another, usually of the fifthlumbar over the body of the sacrum, or of thefourth lumbar over the fifth, usually due to a developmental defect in thepars interarticularis." Id.23spine, and peroneal left leg nerve palsy, the results of which arediscussed more thoroughly in theCourt's analysis. R. at 201-207. In January2010, the Board issued the twodecisions here on appeal.R. at 3-17, 19-49. The Court will address the appellant's specificcontentions below.II. ANALYSISA. Lumbosacral StrainThe appellant first argues that the Board relied on an inadequate VAmedical opinion andprovided an inadequate statement of reasons or bases when it denied anincreased disability ratingfor his service-connected lumbosacral strain. Appellant's (App.) Brief (Br.) at 9-12. Specifically,the appellant asserts that the Board erroneously relied upon a 2008 VAexamination in which theexaminer concluded that the appellant's current low back condition, whichrequired an L4-L5laminectomy/discectomyin 2007, is a new condition unrelatedtohis service-connectedlumbosacralstrain. App. Br. at 9-10.Pursuant to 38 U.S.C. § 5103A, the Secretary's duty to assist includes,in appropriate cases,the duty to conduct a thorough and contemporaneous medical examination. 38U.S.C. § 5103A; seeStefl v. Nicholson, 21 Vet.App. 120, 123 (2007); see also Green v.Derwinski, 1 Vet.App. 121, 124(1991). An examination "is adequate where it is based upon considerationof the veteran's priormedical history and examinations and also describes the disability, if any,in sufficient detail so thatthe Board's 'evaluation of the claimed disability will be a fully informedone.'" Stefl, 21 Vet.App.at 123 (quoting Ardison v. Brown, 6 Vet.App. 405, 407–08 (1994)); Green,1 Vet.App. at 124.It is amedicalexaminer's responsibilityto provideawell-supportedopinion sothattheBoardmay carry out its duty to weigh the evidence of record. Nieves–Rodriguezv. Peake, 22 Vet.App.295, 304 (2008) (concluding that medical opinion is not entitled to anyweight "if it contains onlydata and conclusions"); Stefl, 21 Vet.App. at 124 (stating that VA medicalopinion "must support itsconclusion with an analysis that the Board can consider and weigh againstcontrary opinions"). Asprovided byVA regulations, "accurate and fullydescriptivemedicalexaminations arerequired, withemphasis uponthe limitation of activityimposed bythe disabling condition,"38 C.F.R. § 4.1 (2011),and "[i]f a diagnosis is not supported by the findings on the examinationreport or if the report doesnot contain sufficient detail, it is incumbent upon the rating board toreturn the report as inadequate4for evaluation purposes," 38 C.F.R. § 4.2 (2011). See Stegall v. West,11 Vet.App. 268, 270–71(1998) (remanding matter where VA examination was inadequate under § 4.2);Hicks v. Brown,8 Vet.App. 417, 422 (1995) (concluding that an inadequate medicalexamination frustrates judicialreview). An examination report may be inadequate if it fails to discusssomething that is necessary.See 38 C.F.R. § 4.2. Further, the Court has held that "[a]n opinion basedupon an inaccurate factualpremise has no probative value." Reonal v. Brown, 5 Vet.App. 458, 461 (1993).The Board's determination of whether the Secretary has fulfilled his dutyto assist generallyis a finding of fact that the Court reviews under the "clearly erroneous"standard of review. SeeNolen v. Gober, 14 Vet.App. 183, 184 (2000); Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) (whenapplying the "clearly erroneous" standard, if, after reviewing the recordin its entirety, the Board'sfinding of fact is supported by a plausible basis, "'the [Court] may notreverse it even thoughconvinced that had it been sitting as trier of fact, it would have weighedthe evidence differently.'"(quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573–74 (1985)).Moreover, the Board must provide a statement of reasons or bases adequateto enable aclaimant to understand the precise basis for the Board's decision, as wellas to facilitate review in thisCourt. 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Simon v. Derwinski,2 Vet.App. 621, 622 (1992); Gilbert, 1 Vet.App. at 56–57. To comply withthis requirement, theBoard must analyze the credibilityand probative value of the evidence,account for the evidence thatit finds to be persuasive or unpersuasive, and provide the reasons for itsrejection of any materialevidence 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); Gabrielson v. Brown, 7 Vet.App. 36,39–40 (1994); Gilbert,supra.The Court agrees with the appellant's arguments that the examiner reliedon an inaccuratefactual premise and failed to discuss potentially important medicalevidence. The examiner stated:[M]edical records show that he [the appellant] had acute lumbar strainepisodes inthe past with negative imaging by x-ray in 1992 and 1994 and it was notuntil morerecently in 2004 that he was found to have anycomplication of his lumbarspine thenundergoing left L4-L5 diskectomy and excision with laminotomy in 2007. Hisdegenerative disk disease would not have been caused by resolving acutelumbarstrain but rather, again, more likely associated with his morbid obesityand longsitting as a truck driver. Therefore, his diagnosis for his lumbar spinealso is acute5lumbar strains, resolving, with degenerative disk disease secondary toagingaccelerated by chronic sitting and morbid obesity.R. at 207. As the appellant notes, the examiner failed to discuss that aNovember 1993 x-rayexamination showed "questionable spondylolysis on the right at L/5." R. at968. This medicalrecord conflicts with the examiner's assessment and, at the very least,warranted discussion by theexaminer. See Reonal and Stegall, both supra. Accordingly, the Court holdsthat this portion of the2008 VA medical examination is inadequate.AlthoughtheBoardnotedthattheexaminerfailedto discuss "possibleconflictingevidence."the Board nevertheless reasoned that the examination was highly probative.After summarizing themedical opinion, the Board stated:The Board notes some possibleconflictingevidencein the record, such asconflicting1993 X-rays of the lumbar spine, with cone-down-view X-rays of the lumbarspinein November 1993 provided an assessment of "[q]uestionable unilateralspondylolysis on the right at [L-5]," but a contrasting interpretation thesame day ofoblique-view x-rays of the lumbar spine produced a finding of "no evidenceofspondylosis or evidence of spondylo[li]sthesis when compared with films [ín April1993]," and that examiner assessing "normal oblique views of the lumbarspine."However, the bulk of the examination reports have generally not presentedfindingsorconclusionsthatcontradictedorprecludedthefindingsandconclusionsoftheJune2008 VA examiner.R. at 32. It appears that, in its strained effort to explain thisconflicting evidence, the Board hascreated a false implication that, on re-testing, the x-rays producednegative results, i.e., evidence thatthere was no spondylolysis. The record, however, reveals that the secondset of x-rays taken to ruleout an additional condition produced positive results, rendering false the2008 examiner's statementthat complications were not found until 2004. R. at 207.The Court therefore holds that the Board erred when it relied upon amedical examinationinadequate for purposes of rating the appellant lumbar spine disability,that the Board failed toprovide an adequate statement of reasons and bases for its rejection ofrelevant x-ray evidence, andthat these deficiencies have prejudiced the appellant. See 38 U.S.C. §7261(b)(2); Shinseki v.Sanders, 129 S.Ct. 1696, 1705 (2009) (noting that this Court is requiredto "take due account of therule of prejudicial error"); see also Nolen and Caluza, both supra.Consequently, the Court willvacate that portion of the Board's decision denying appellant's claim foran increased evaluation for6lumbosacral strain, currentlyrated at 20% disabling, and remand thematter for furtherdevelopment.B. Secondary Service Connection for Left Knee Condition, Cervical SpineDisorder, andPeroneal Nerve PalsyThe appellant also argues that the 2008 VA examination was inadequate forpurposes ofevaluating his claims of entitlement to service connection for left kneedisorder, cervical spinedisorder, and peroneal nerve palsy, all as secondary to service-connectedlumbosacral strain. App.Br. at 12-14. Specifically, he argues that the 2008 medical opinionerroneouslyconcluded that theseconditions were caused by the appellant's degenerative disc disease andnot his service-connectedlumbar strain, and the examiner provided an inadequate rationale for hisconclusion. App. Br. at 13.Secondaryservice connection is awarded for a "disability which isproximatelydue to or theresult of a service-connected disease or injury." 38 C.F.R. § 3.310(a) (2011). In this case, the 2008VA examiner was asked to render an opinion on whether the appellant's leftknee, cervical spine, andperoneal nerve palsy disorders were "caused by or made worse by service-connected low backdisability." R. at 201-02. Following physical examination, the examiner: (1) attributed theappellant's cervical spine strain to his obesity; (2) opined that his "peripheral nerve injury [ ] is notassociated with a spinal canal stenosis or foraminal stenosis;" and (3)diagnosed his left kneedisability as iliotibial (IT) band syndrome resulting from his obesity,inactivity, and career as a truckdriver. R. at 206-07. The examiner then opined that, because theappellant's lower back conditionis diagnosed as "acute lumbar strains, resolving, with degenerative diskdisease secondary to agingaccelerated by chronic sitting and morbid obesity . . . . the abovecomplaints of left knee, peronealnerve palsy left side and cervical spine are not made worse by a service-connected low backdisability on a not at least as likely as not basis." R. at 207. TheBoard's decision relied heavily onthis examination to deny entitlement to secondaryservice connection forthese claims. See R. at 45-47.Although the examiner notes alternative causes of the appellant'sdisabilities, including hisweight and occupation, the examiner's conclusion that these conditions arenot caused by or madeworse by the appellant's lumbar spine strain rests on the rationale thatthe appellant's lumbar spinestrains resolved, and that his current back disability is non-service-connected degenerative disk7disease. R. at 207. As discussed earlier, the examiner's rationaleconcerning the appellant's backcondition was inadequate. Therefore, the examiner's opinionregardingwhetherthese conditions arecaused by or made worse by his service-connected lumbar spine condition isalso inadequate.Because the Board supports its determination largely relying on this 2008VA examination, theBoard's decision denying these claims is clearly erroneous. See Nolen andGilbert, both supra.Accordingly, the Court will vacate the Board's decision and remand thesematters for furtherdevelopment.C. Direct Service Connection of the Left KneeThe appellant next argues that the 2008 examination was inadequate withregard to his claimof entitlement to direct service connection for left knee disability,because the examiner (1) ignoredthe appellant's post-service medical records showing complaints of kneepain beginning in service,and (2) ignored medical evidence showing degenerative changes in the leftknee. App. Br. at 14-15.Contrary to the first of these assertions, it appears that the examinerconsidered the appellant'scontention that his left knee pain began in service. R. at 203 (notingthat "he is fairly adamant thatthe onset was 'at the same time in service, I just did not complain untilI got out.'"). However, theCourt agrees with the appellant that the examiner failed to account fordegenerative changes foundin the medical records. First, the examiner incorrectly stated that theappellant's medical records donot show degenerative changes until May2006. R. at 203. However, a March2004 radiologyreportshows "degenerative changes of the left knee." R. at 780. Moreover, theexaminer failed to explainhow these degenerative changes relate to the examiner's diagnosis of ITband syndrome. Although"[a] medicalexaminer need notdiscuss allevidencefavorableto anappellant'sclaimwhenrenderingan opinion," the examination must contain sufficient detail, must beaccurate, and must be fullydescriptive. Roberson v. Shinseki, 22 Vet.App. 358, 366 (2009), aff'd, 607F.3d 809 (Fed. Cir.2010); see 38 C.F.R. §§ 4.1 and 4.2.Notwithstanding the VA examination's shortcomings, the appellant hasfailed to persuadethe Court that such an error has prejudiced his claim. See Hilkert v. West,12 Vet.App. 145, 151(1999) (en banc) ("An appellant bears the burden of persuasion on appealsto this Court."), aff'd percuriam, 232 F.3d 908 (Fed. Cir. 2000) (table); Berger v. Brown, 10 Vet.App.166, 169 (1997)("[T]he appellant . . . always bears the burden of persuasion on appealsto this Court."). In this case,8the Board determined that, although the appellant asserts that hedeveloped a left knee disability inservice, the record does not show in-service treatment or treatment foryears after. R. at 46. In short,the Board denied the claim because the evidence did not show an in-servicedisability; the Board didnot rely on the 2008 VA examination's nexus opinion when consideringdirect service connectionfor the left knee. Therefore, anyinadequacyin that VA examination did notprejudice the appellant.See Sanders, supra.D. Entitlement to an Increased Evaluation for Right Knee DisorderThe appellant argues that the Board failed to provide an adequatestatement of reasons orbases for concluding that he does not have additional functional loss inhis right knee due to pain,weakness, incoordination, fatigue, or loss of endurance caused by flare-ups. App. Br. at 18-19.Specifically, the appellant argues that the Board inappropriately reliedon the 2008 examinationreport that "contained no assessment of likely limitation of movementcaused by pain during flare-ups." App. Br. at 19. The Board's determinations regarding the degree ofimpairment of a disability,for purposes of rating, are findings of fact, reviewed under the "clearlyerroneous" standard ofreview. 38 U.S.C. § 7261(a)(4); see Francisco v. Brown, 7 Vet.App. 55, 57-58 (1994).In this case the Board did rely, in part, on the 2008 VA examination todetermine that theappellant suffers from "some limited pain, a slight limitation of motion. . . , and dysfunctionincluding as associated with iliotibial band syndrome." R. at 37. TheBoard found that theappellant's disability was most appropriately rated based on limitation offlexion under 38 C.F.R.§ 4.71a, Diagnostic Code (DC) 5260. R. at 37. This diagnostic codeprovides for a 10% disabilityrating where flexion is limited to 45 degrees. The Board explained that,based on the results of theJune 2008, February 2007, and October 2004 VA examinations, and aSeptember 2006 magneticresonance imaging (MRI), the appellant did not suffer any furtherfunctional loss due to "pain,weakness,incoordination, fatigue,orloss ofendurance,orbyflare-upsassociatedwiththeright kneepresent to any significantly disabling degree." Id. Therefore, the Boardcontinued the appellant's10%ratingbecausehis rightkneedisability"ismost closelyapproximatedasequivalentto limitationof flexion to not less than 45 degrees." R. at 37.The appellant's centralcontention is that the 2008 VA examinationinadequatelyassessed hisfunctional limitations. In particular, the appellant argues that theexaminer did not adequately9consider or assess the likely impact his pain on flare-ups would have onhis functional ability. App. Br. at 18-19.A functional loss results when ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination [,or] endurance" is inhibited. 38 C.F.R. § 4.40(2011). When assessing a veteran's level of disability, the examiner must "express an opinion on whether pain could significantly limit functional ability during flare-ups." DeLuca v. Brown, 8 Vet.App. 202, 206 (1995). If feasible, limitations of functional ability should be expressed in terms of additional limitation of motion. Id. In Mitchell v. Shineski, theCourt reinforced the principle that:[when an] examiner failed to address any range-of-motion loss specificallydue to pain and any functional loss during flare-ups, the examination lackssufficient detail necessary for a disability rating, and it should have been returned for the required detail to be provided, or the Board should have explained why such action was not necessary. 25 Vet.App. 32, 44 (2011) (holding that "pain alone does not constitute a functional loss under VA regulations" and was not a sufficient basis for a higher disability rating under diagnostic codes that evaluate limitation of range of motion).In this case, the examiner concluded:Except as noted in the history and examination above, there is no changein active or passive range of motion . . . [d]uring repeat motion testing and no additional losses of range of motion of the involved joints or spine due to pain, weakness, impaired endurance, fatigue, incoordination or flare-ups. R. at 206. The appellant asserts that the examiner, in so concluding, did not explain his likely limitations caused by pain during flareups. App. Br. at 19. The Court agrees. See R. at 203 ("Flares of increased pain can last minutes to hours and are variable in frequency.").Although painful motion is not limited motion for purposes of DC 5260, pain during flare-ups could produce a functional loss that entitles the veteran to additional compensation. See Mitchell, supra.Although the examiner tersely states that the appellant has no additional loss of range of motion due to flare-ups, the examiner wholly fails to "express an opinion on whether pain could significantly limit functionalability during flare-ups." DeLuca v. Brown, 8 Vet.App. at 206. Accordingly,the Board's relianceon this inadequate medical examination was clearly erroneous. See Nolen,supra.10Moreover, the Board does not cite to any evidence in the record providingan adequateassessment of the appellant's functional ability during flare-ups. TheOctober 2004 and February2007 VA medical examinations, relied upon by the Board, merely note thatthe appellant suffersfrom flare-ups without providing the opinion required by DeLuca. See R. at1157 (noting flare-upsduring cold and rainy weather); R. at 685 (noting that flare-ups occur 3or 4 times per week, last avariable amount of time, andresolvewithoutmedicaltreatment). Becausetheappellant has not beenafforded a medical examination that provides the required opinionregarding flareups, and becausethis has prejudiced his claim, the Court will remand the matter forfurther development. SeeSanders, supra.E. Entitlement to Temporary Total Disability Rating for ConvalescenceLastly, the appellant argues that his request for temporary totaldisability for convalescenceafter his 2007 L4-L5 laminectomy/discectomy surgery is "inextricablyintertwined" with the otherissues in this case; specifically, that this surgery was related to hisservice-connected lumbosacralstrain. App. Br. at 21-22. Therefore, the appellant argues, this issue canonly be resolved after theproper resolution of his lumbosacral strain claim. App. Br. at 22.TheBoard's decisiondeniedentitlementto atemporarytotaldisabilityratingunder38C.F.R.§ 4.30 solely on the grounds that the Board determined that the evidenceshowed that the appellant'sservice-connectedlumbosacralstrainhadresolvedandwasunrelatedtothelumbardegenerativdisease condition for which he underwent surgery. R. at 9. However, asdiscussed previously, indetermining that the appellant's current back condition is not related tohis service-connected backcondition, the Board relied on an inadequate medical examination. Becausethe Board's rationalewith regard to the current claim rests upon inadequate evidence, the Boardhas clearly erred in itsdetermination that the appellant was not entitled to a temporary totaldisability rating forconvalescence and the Court will remand the matter. See Nolen, supra.F. Remanded MattersThe Court has remanded the appellant's claims for: (1) entitlement to anincreased evaluationfor lumbosacral strain; (2) entitlement to secondary service connectionfor a left knee condition,cervical spine disorder, and peroneal nerve palsy; (3) entitlement to anincreased evaluation for aright knee disorder; and (4) entitlement to a temporary total disabilityrating for the convalescent11period following his laminectomy/discectomy surgery. On remand, the VAmust provide anexamination for these conditions that complies with VA's duty to assist.The appellant is free tosubmit additional evidence and raise any remaining arguments to the Board;the Board is requiredto consider them as it provides expeditious treatment of this matter. See38 U.S.C. § 7112; see alsoKay v. Principi, 16 Vet.App. 529, 534 (2002); Kutscherousky v. West, 12Vet.App. 369, 372 (1999)(per curiam order). Other arguments regarding the probative value of theMay 2004 and July 2004examinations are best addressed on remand. See Best v. Principi, 15 Vet.App. 18, 20 (2001) (percuriam) ("A narrow decision preserves for the appellant an opportunity toargue those claimed errorsbefore the Board at readjudication, and, of course, before this Court inan appeal, should the Boardrule against him.").III. CONCLUSIONBased on the foregoing analysis and a review of the record on appeal,those portions of theBoard's January 8, 2010, decisions denying entitlement to: an increasedevaluation for lumbosacralstrain; secondary serviceconnection for cervical disk disorder,left knee disorder,and peroneal nervepalsy; an increased evaluation for a right knee disorder; and temporarytotal disability rating forconvalescence are VACATED and REMANDED forfurtherexpeditious proceedingsconsistent withthis decision. The Board's remaining decisions are AFFIRMED.DATED: December 12, 2011Copies to:Sandra W. Wischow, Esq.VA General Counsel (027)12

Single Judge Application, Bartlett v. Shinseki, 24 Vet.App. 328 (2011); Clarified Definition of "hospital care"under 38 U.S.C. 1115

2011-12-23T09:38:00.001-08:00

Excerpt from decision below:"During the pendency of this appeal, the Court decided Bartlett v. Shinseki, 24 Vet.App. 328 (2011), which further clarified the definition of "hospital care"under 38 U.S.C. § 1115. 24 Vet.App. at 331-33. The Court held that "hospital care" is not limited to medical services and includesservices unique to the hospitalization of patients. Id. at 332. Moreover,the Court stated that the term "hospital care" "depend[s] on a variety of factors, including the nature of services, the degree of VA control over patient freedom, the mental and physical conditions of the patients, and the foreseeability of potential harms." Id. at 333.Here, the Board found that Mr. Breedlove's injury did not occur within thescope of "hospital care" because he was injured from an incident that was coincident with VA treatment and not from the treatment itself. However, under the lens of Bartlett, "hospital care" includes more than direct treatment. Consequently, this matter will be remanded for the Board to consider the application of Bartlett.============================================================----------------------------------------------------Designated for electronic publication onlyUNITED STATES COURT OF APPEALS FOR VETERANS CLAIMSNo. 08-3059BRENDA BREEDLOVE, APPELLANT,V.ERIC K. SHINSEKI,SECRETARY OF VETERANS AFFAIRS, APPELLEE.Before KASOLD, Chief Judge.MEMORANDUM DECISIONNote: Pursuant to U.S. Vet. App. R. 30(a),this action may not be cited as precedent.KASOLD, Chief Judge: Brenda Breedlove, surviving spouse of Charles L.Breedlove,appeals through counsel a September 9, 2008, decision of the Board ofVeterans' Appeals (Board)that denied accrued benefits for injuries Mr. Breedlove sustained from adoor malfunction at a VAhospital. Mrs. Breedlove argues that reversal is required because theBoard erred by (1) applyingthe incorrect legal standard to Mr. Breedlove's claim, (2) finding that Mr.Breedlove's injuries werethe result of an intervening cause, and (3) providing an inadequatestatement of reasons or bases forits reliance on two VA General Counsel Precedent Opinions and itsrejection of Mr. Breedlove's laytestimony. The Secretary disputes these contentions. Single-judgedisposition is appropriate.Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the followingreasons, the Board's decisionwill be set aside and the matter remanded for further adjudication.During the pendency of this appeal, the Court decided Bartlett v. Shinseki,24 Vet.App. 328 (2011), which further clarified the definition of "hospital care"under 38 U.S.C. § 1115. 24 Vet.App. at 331-33. The Court held that "hospital care" is not limited to medical services and includesservices unique to the hospitalization of patients. Id. at 332. Moreover,the Court stated that the term "hospital care" "depend[s] on a variety of factors, including the nature of services, the degree of VA control over patient freedom, the mental and physical conditions of the patients, and the foreseeability of potential harms." Id. at 333.Here, the Board found that Mr. Breedlove's injury did not occur within thescope of "hospital care" because he was injured from an incident that was coincident with VA treatment and not from the treatment itself. However, under the lens of Bartlett, "hospital care" includes more than direct treatment. Consequently, this matter will be remanded for the Board to consider the application of Bartlett. See 38 U.S.C. § 7252(a) (authorizing Court to remand as appropriate); Maggitt v. West, 2002 F.3d 1370, 1377-78 (Fed. Cir. 2000) (if the Court has jurisdiction over a claim, issues presented for the first time on appeal may be remanded to the Board for further development);Ohland v. Derwinski, 1 Vet.App. 147, 150 (1991) (remanding case to theBoard without vacating or setting aside Board decision on appeal).On remand, Mrs. Breedlove may present, and the Board must consider, anyadditional evidence and argument in support of the matters remanded. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). These matters are to be provided expeditious treatment on remand. See 38 U.S.C. § 7112.For the reasons stated above, the September 9, 2008, decision of the Boardis SET ASIDE and the matter REMANDED for further adjudication.DATED: December 16, 2011Copies to:Michael D. Maloney, Esq.VA General Counsel (027)2

Federal Circuit, Patrick v. Shinseki, No. 2011-7012(Decided: December 22, 2011);EAJA, Presumption of Soundness Rebutted by Clear and Unmistakable Evidence

2011-12-22T09:42:00.000-08:00

Excerpt from decision below:"Mrs. Patrick then appealed to this court. She argued that the presumption of soundness contained in 38 U.S.C. § 1111 can only be rebutted by clear and unmistakable evidence that: (1) a disease or injury existed prior to service; and (2) the disease or injury was not aggravatedPATRICK v. DVA 4by service. See Patrick I, 103 F. App’x at 384. We agreed. As we had recently explained in Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004), both the plain language and legislative history of section 1111 make clear that the presumption of soundness can only be rebutted by clear and unmistakable evidence both that a condition existed prior to service and that it was not aggravated by service. See Patrick I, 103 F. App’x at 384-85. Because the government had failed to establish that Patrick’s rheumatic heart disease was not aggravated by his military service, we vacated the 2002 Veterans Court decision and remanded for reconsideration of Mrs. Patrick’s claim. Id. at 385.================================================"In Wagner, we reviewed the legislative history of section 11113 in detail and concluded that Congress specifically intended “that a presumption of soundness would apply, even when there was evidence of a preexisting condition, if the government failed to show by clear and unmistakable evidence that a veteran’s preexisting condition was not aggravated.” 370 F.3d at 1096. 4"==================================================United States Court of Appeals for the Federal Circuit__________________________CAROLYN J. PATRICK,Claimant-Appellant,v.ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS,Respondent-Appellee.__________________________2011-7012__________________________Appeal from the United States Court of Appeals for Veterans Claims in case no. 08-10899.______________________Decided: December 22, 2011_______________________KENNETH M. CARPENTER, Carpenter, Chartered, of Topeka, Kansas, argued for claimant-appellant.KENNETH S. KESSLER, Attorney, Commercial Litiga-tion Branch, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With him on the brief were TONY WEST, Assistant Attorney General, JEANNE E. DAVIDSON, Director, and KIRK T. MANHARDT, Assistant Director. Of counsel on the brief were MICHAEL J. TIMINSKI, Deputy Assistant GeneralPATRICK v. DVA 2Counsel, United States Department of Veterans Affairs, of Washington, DC.__________________________Before NEWMAN, MAYER, and O’MALLEY, Circuit Judges.MAYER, Circuit Judge.Carolyn J. Patrick (“Mrs. Patrick”) appeals from a fi-nal judgment of the United States Court of Appeals for Veterans Claims (“Veterans Court”) denying her applica-tion for an award of attorney fees and expenses pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). See Patrick v. Shinseki, 23 Vet. App. 512 (2010) (“Patrick IV”). We reverse and remand.BACKGROUNDThis is the third time Mrs. Patrick has appealed to this court. The history of her claim seeking dependency and indemnity compensation is detailed in our previous decisions, see Patrick v. Nicholson, 242 F. App’x 695 (Fed. Cir. 2007) (“Patrick III”); Patrick v. Principi, 103 F. App’x 383 (Fed. Cir. 2004) (“Patrick I”), and need only be sum-marized here.Mrs. Patrick’s husband, James Curtis Patrick (“Pat-rick”), served on active duty in the United States Army from August 1958 through May 1959, when he was dis-charged due to rheumatic heart disease. Although Pat-rick’s heart condition was not noted during the medical examination he underwent prior to his entry into service, subsequent in-service exams revealed heart abnormali-ties.On May 26, 1959, Patrick filed a claim seeking ser-vice-connected benefits for rheumatic heart disease. The Board of Veterans’ Appeals (“board”) denied his claim, concluding that he had suffered from “many severe car-3 PATRICK v. DVAdiac symptoms” prior to his induction into service. Pat-rick subsequently filed several other claims seeking service-connected benefits for his heart disability, but all of these claims were denied.On January 29, 1985, Patrick died of an acute myo-cardial infarction. Soon thereafter, Mrs. Patrick filed an application with the Department of Veterans Affairs (“VA”) for dependency and indemnity compensation, alleging that her husband had died as a result of service-connected heart disease. See 38 U.S.C. § 1310 (authoriz-ing benefits for the surviving spouse of a veteran who dies from a service-connected disability). In a March 1986 decision, the board denied her claim, concluding that Patrick’s rheumatic heart disease was incurred prior to his military service and that “the clinical evidence in its entirety fails to demonstrate that [Patrick’s] antecedent rheumatic heart disease worsened during his short period of active service.”In 1992, Mrs. Patrick filed a claim to reopen the board’s 1986 decision, arguing that it contained clear and unmistakable error (“CUE”). She alleged that “if in fact [her husband’s] heart condition existed prior to [his] service . . . it worsened and was aggravated by service to the point of his being found unfit for duty and eventually discharge[d].” In 1999, however, the board denied Mrs. Patrick’s request to reopen her claim, and this decision was affirmed, in 2002, by the Veterans Court. See Patrick v. Principi, No. 99-916, 2002 U.S. App. Vet. Claims LEXIS 979 (Vet. App. Aug. 13, 2002).Mrs. Patrick then appealed to this court. She argued that the presumption of soundness contained in 38 U.S.C. § 1111 can only be rebutted by clear and unmistakable evidence that: (1) a disease or injury existed prior to service; and (2) the disease or injury was not aggravatedPATRICK v. DVA 4by service. See Patrick I, 103 F. App’x at 384. We agreed. As we had recently explained in Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004), both the plain language and legislative history of section 1111 make clear that the presumption of soundness can only be rebutted by clear and unmistakable evidence both that a condition existed prior to service and that it was not aggravated by service. See Patrick I, 103 F. App’x at 384-85. Because the government had failed to establish that Patrick’s rheumatic heart disease was not aggravated by his military service, we vacated the 2002 Veterans Court decision and remanded for reconsideration of Mrs. Patrick’s claim. Id. at 385.On remand, however, the Veterans Court failed to resolve the issue of whether the government had proven by clear and unmistakable evidence that Patrick’s rheumatic heart disease was not aggravated during his active military service. Instead, the court reaffirmed the 1999 board decision denying Mrs. Patrick’s CUE claim on the alternative ground that this court’s interpretation of section 1111, which had been articulated in both Wagner and Patrick I, should not be given retroactive effect in the context of a CUE claim. See Patrick v. Nicholson, No. 99-916, 2006 U.S. App. Vet. Claims LEXIS 39, at *26-27 (Vet. App. Feb. 1, 2006) (“Patrick II”). In support, the Veterans Court relied upon this court’s intervening decision in Jordan v. Nicholson, 401 F.3d 1296, 1298-99 (Fed. Cir. 2005), which held that the VA’s recent interpretation of 38 C.F.R. § 3.304, the implementing regulation for section 1111, did not have retroactive application in a CUE case. See Patrick II, 2006 U.S. App. Vet. Claims LEXIS 39, at *26.On appeal, this court reversed, concluding that the decision of the Veterans Court was based upon a “misreading of Jordan.” Patrick III, 242 Fed App’x at 697. We5 PATRICK v. DVAexplained that “Jordan addressed whether a change in the regulatory interpretation of a statute had retroactive effect on CUE claims, not whether [this court’s] interpre-tation of [a] statute . . . had retroactive effect on CUE claims.” Patrick III, 242 Fed App’x at 697. In Jordan, the question was whether retroactive effect should be given to the VA’s determination that section 3.304(b)1, the imple-menting regulation for section 1111, was invalid because it was inconsistent with section 1111. See Jordan, 401 F.3d at 1298-99; Patrick III, 242 Fed App’x at 697-98. In contrast, Mrs. Patrick’s claim did not involve the applica-1 In 1999, when the board denied Mrs. Patrick’s CUE claim, section 3.304(b) provided that the presump-tion of soundness could be rebutted merely by providing evidence that a particular injury or disease existed prior to service:The veteran will be considered to have been in sound condition when examined, accepted and en-rolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or mani-fest) evidence demonstrates that an injury or disease existed prior thereto. Only such conditions as are recorded in examination reports are considered as noted.38 C.F.R. § 3.304(b) (as in effect prior to May 4, 2005).In July 2003, prior to our decisions in Wagner and Patrick I, the General Counsel of the VA issued an opin-ion concluding that section 3.304(b) was invalid because it was inconsistent with section 1111, which requires clear and unmistakable evidence both that a condition existed prior to service and that it was not aggravated by service. See VA Op. Gen. Couns. Prec. 3-2003 (July 16, 2003), available at http://www.va.gov /ogc/docs/PREC3-2003.doc (“2003 VA General Counsel Opinion”); see also Wagner, 370 F.3d at 1092.PATRICK v. DVA 6tion of section 3.304, but was instead based directly on section 1111:The limited holding of Jordan does not apply to Mrs. Patrick’s case, for she never argued that the implementing regulation for § 1111 was invalid, that the VA’s change in the interpretation of the statute in its regulation was retroactive, or that the 1986 Board erroneously applied the imple-menting regulation. Indeed, the 1986 Board decision does not even refer to the implementing regulation for § 1111.Patrick III, 242 F. App’x at 698.We made clear, moreover, that “[u]nlike changes in regulations and statutes, which are prospective, our interpretation of a statute is retrospective in that it explains what the statute has meant since the date of enactment.” Patrick III, 242 F. App’x at 698. Because we concluded that the decision of the Veterans Court had been “neither in accordance with the law nor with our previous remand instructions,” we vacated the court’s decision and again remanded for a determination of whether the government could rebut section 1111’s presumption of soundness by providing clear and unmistak-able evidence that Patrick’s rheumatic heart disease had not been aggravated by his military service. Id.The Veterans Court thereafter remanded Mrs. Patrick’s claim to the board, which concluded that the government had failed to establish that Patrick’s heart disease was not aggravated by his military service. Accordingly, the board granted Mrs. Patrick’s claim for dependency and indemnity compensation.Mrs. Patrick then filed an application for attorney fees and expenses under the EAJA. On June 29, 2009,7 PATRICK v. DVAthe Veterans Court, in a single judge decision, denied Mrs. Patrick’s application. The court subsequently issued a reconsideration decision, which again denied Mrs. Patrick’s application for an EAJA award. The court stated that “when the statutory framework presents a confusing tapestry, the Secretary can be substantially justified in taking a position regardless of whether that position later turns out to be wrong.” Patrick IV, 23 Vet. App. at 515. The court determined, moreover, that because the VA’s position was supported by the court’s then-existing precedent, it “had a reasonable basis in law and fact.” Id. at 518. Mrs. Patrick filed a timely appeal to this court.DISCUSSIONWe have jurisdiction over appeals from the Veterans Court under 38 U.S.C. § 7292. Interpretation of the EAJA is a question of law, subject to de novo review. Kelly v. Nicholson, 463 F.3d 1349, 1352 (Fed. Cir. 2006). Although this court’s jurisdiction over appeals from the Veterans Court does not extend to challenges to factual determinations or the application of a statute or regulation to the facts of a particular case, see 38 U.S.C. § 7292(d), “[w]e have recognized . . . that where adoption of a particular legal standard dictates the outcome of a case based on undisputed facts, we may address that issue as a question of law,” Halpern v. Principi, 384 F.3d 1297, 1306 (Fed. Cir. 2004). Thus, the issue of whether the Veterans Court applied the correct legal standard in evaluating whether the government’s position was “substantially justified” for purposes of the EAJA is a legal determination that falls squarely within the scope of our appellate jurisdiction. Smith v. Principi, 343 F.3d 1358, 1361 (Fed. Cir. 2003).PATRICK v. DVA 8The essential objective of the EAJA2 is to ensure that litigants “will not be deterred from seeking review of, or defending against, unjustified governmental action be-cause of the expense involved.” Scarborough v. Principi, 541 U.S. 401, 407 (2004) (citations and internal quotation marks omitted). The statute plays a particularly important role in the uniquely pro-claimant system for adjudicating veterans’ claims:Removing [deterrents to seeking judicial review] is imperative in the veterans benefits context, which is intended to be uniquely pro-claimant, and in which veterans generally are not represented by counsel before the [regional office] and the board. [The] EAJA is a vital complement to this system designed to aid veterans, because it helps to ensure that they will seek an appeal when the VA has failed in its duty to aid them or has otherwise erroneously denied them the benefits that they have earned.Kelly, 463 F.3d at 1353 (citations omitted).2 In relevant part, the EAJA provides:Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.28 U.S.C. § 2412(d)(1)(A).9 PATRICK v. DVAUnder the EAJA, a prevailing party in litigation against the government is entitled to recover reasonable attorney fees and expenses “unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A). The government bears the burden of establishing that its position was substantially justified. Doty v. United States, 71 F.3d 384, 385 (Fed. Cir. 1995). The term “substantially justified” means that the government’s position was “justified in substance or in the main,” and had a “reasonable basis both in law and fact.” Pierce v. Underwood, 487 U.S. 552, 565 (1988) (citations and internal quotation marks omitted). The “position” of the government includes actions taken at the agency level as well as arguments made during litigation. Smith, 343 F.3d at 1361-62; see also Comm’r, Immigration & Naturalization Serv. v. Jean, 496 U.S. 154, 161-62 (1990) (“Any given civil action can have numerous phases. While the parties’ postures on individual matters may be more or less justified, the EAJA—like other fee-shifting statutes—favors treating a case as an inclusive whole, rather than as atomized line-items.”).I.The government can establish that its position was substantially justified if it demonstrates that it adopted a reasonable, albeit incorrect, interpretation of a particular statute or regulation. See Pierce, 487 U.S. at 566 n.2 (emphasizing that an erroneous position could be substantially justified “if a reasonable person could think it correct”). Where, however, the government interprets a statute in a manner that is contrary to its plain language and unsupported by its legislative history, it will prove difficult to establish substantial justification. See Role Models Am., Inc. v. Brownlee, 353 F.3d 962, 967 (D.C. Cir. 2004) (concluding that the government’s position was notPATRICK v. DVA 10substantially justified where “it was wholly unsupported by the text of the applicable regulations” (citations and internal quotation marks omitted)); Halverson v. Slater, 206 F.3d 1205, 1212 (D.C. Cir. 2000) (holding that the government’s position was not substantially justified where it was contrary to “the easily ascertainable plain meaning of” a statute); Marcus v. Shalala, 17 F.3d 1033, 1038 (7th Cir. 1994) (concluding that the government’s position was not substantially justified where it was “manifestly contrary to the [controlling] statute” (citations and internal quotation marks omitted)); Or. Natural Res. Council v. Madigan, 980 F.2d 1330, 1332 (9th Cir. 1992) (holding that the government’s position was not substantially justified where it was contrary to the “clear” language of a statute and its legislative history).Here, the VA denied Mrs. Patrick’s claim for depend-ency and indemnity compensation based upon an interpretation of section 1111 that was contravened by both the statute’s plain language and its legislative history. Section 1111 provides:[E]very veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service.38 U.S.C. § 1111 (emphasis added).The VA interpreted this provision to mean that the presumption of soundness could be rebutted by evidence that an injury or disease preexisted service, irrespective of whether there was clear and unmistakable evidence that the condition was not aggravated by service. As we11 PATRICK v. DVAexplained in Wagner, 370 F.3d at 1093, however, section 1111, on its face, requires that the presumption of sound-ness can be rebutted only by clear and unmistakable evidence that a preexisting condition was not aggravated by service. Indeed, while Wagner was pending in this court, the General Counsel of the VA issued an opinion acknowledging that “[t]he plain language of [section 1111] provides that the presumption of soundness is rebutted only if clear and unmistakable evidence establishes both that (1) the condition existed prior to service and (2) the condition was not aggravated by service.” 2003 VA Gen. Counsel Op. 2.The government points to nothing in the legislative history of section 1111 which could reasonably support the VA’s original determination that the presumption of soundness could be rebutted even absent clear and unmis-takable evidence that a veteran’s preexisting disability was not aggravated by service. To the contrary, the relevant legislative history makes clear that the VA’s original interpretation of the statute was incorrect. In Wagner, we reviewed the legislative history of section 11113 in detail and concluded that Congress specifically intended “that a presumption of soundness would apply, even when there was evidence of a preexisting condition, if the government failed to show by clear and unmistakable evidence that a veteran’s preexisting condition was not aggravated.” 370 F.3d at 1096. 43 Section 1111’s presumption of soundness standard was previously codified at 38 U.S.C. § 311. See Dep’t of Veterans Affairs Codification Act, Pub. L. No. 102-83, § 5(a), 105 Stat. 378, 406 (1991).4 Under a 1924 statute, the World War Veterans’ Act, ch. 320, § 200, 43 Stat. 607, 615 (1924), a veteran was conclusively presumed to be in sound condition, except asPATRICK v. DVA 12II.On appeal, the government does not dispute that the VA’s original interpretation of section 1111 was unsup-ported by either the statute’s plain language or its legislative history. The government argues, however, that the Veterans Court correctly determined that the VA’s position was substantially justified because that position was supported by that court’s then-existing precedent. 5to the conditions and infirmities noted at the time of his induction into service. See Wagner, 370 F.3d at 1094. In 1934, however, Congress enacted a new statute, applicable to veterans of World War I, which provided that a veteran was presumed to be in sound condition at induction into service, but that the presumption could be rebut-ted by clear and convincing evidence that a veteran’s condition or injury: (1) existed prior to his military ser-vice; and (2) was not aggravated by that service. See Independent Offices Appropriation Act, ch. 102, § 27, 48 Stat. 509, 524 (1934) (the “1934 Act”). Subsequently, Congress became concerned that World War II veterans—to whom the 1934 Act did not apply—were unjustifiably being denied benefits. See Wagner, 370 F.3d at 1095. It therefore passed legislation, in 1943, which specifically stated that the VA could only rebut the presumption of soundness if it provided clear and unmistakable evidence that a claimant’s preexisting condition was not aggravated by his military service. Id. at 1095-96 (citing S. Rep. No. 78-403, at 2, 6 (1943)).5 Mrs. Patrick argues that the position of the government was not substantially justified because the 1999 board decision denying her claim erroneously applied the presumption of aggravation under 38 U.S.C. § 1153, rather than the presumption of soundness under section 1111. We disagree. As the Veterans Court correctly noted, “[a] review of the 1999 Board decision reveals an analysis clearly focused on whether there existed clear and unmistakable evidence that the disability at issue, which was not noted on Mr. Patrick’s service entry ex-13 PATRICK v. DVAWe do not find this reasoning persuasive. We have repeatedly made clear that the substantial justification inquiry requires an analysis of the “totality of the circumstances” surrounding the government’s adoption of a particular position. Smith, 343 F.3d at 1362; Essex Elec-tro Eng’rs, Inc. v. United States, 757 F.2d 247, 253 (Fed. Cir. 1985); Bailey v. United States, 721 F.2d 357, 360 (Fed. Cir. 1983). Here, although the Veterans Court acknowledged this “totality of circumstances” standard, it improperly focused on only one factor—the fact that the court itself had previously upheld the VA’s erroneous interpretation of section 1111—in denying Mrs. Patrick’s EAJA application. See Patrick IV, 23 Vet. App. at 516 (concluding that the government’s position at the administrative stage had been substantially justified because it was supported by “then-existing precedent established by [the] VA and upheld by [the Veterans Court] concerning rebutting the presumption [of soundness] under section 1111”); id. at 518 (concluding that the government’s position at the litigation stage had “a reasonable basis in law and fact” because it “followed established [Veterans Court] precedent”).Whether or not the position adopted by the government comports with then-existing precedent on a particular issue is an undeniably important factor in the assessment of whether that position was substantially justified. See White v. Nicholson, 412 F.3d 1314, 1316-17 (Fed. Cir. 2005); Owen v. United States, 861 F.2d 1273, 1274 (Fed. Cir. 1988) (en banc). The fact that the Veter-ans Court had previously upheld the VA’s erroneous interpretation of section 1111 does not, however, resolveamination form, preexisted service, an analysis that would not have been necessary if the Board were applying [the presumption of aggravation under] section 1153.” Patrick IV, 23 Vet. App. at 517.PATRICK v. DVA 14the substantial justification inquiry. Pierce, 487 U.S. at 569 (“Obviously, the fact that one other court agreed or disagreed with the Government does not establish whether its position was substantially justified.”); Essex, 757 F.2d at 253 (rejecting the “single-factor approach” to determining whether the government’s position was substantially justified). “[T]he position of the United States is not shown to have been substantially justified merely because the government prevailed before the tribunal below,” for “[i]f that were the rule, attorney’s fees never could be awarded in favor of an appellant against the government.” Broad Ave. Laundry & Tailoring v. United States, 693 F.2d 1387, 1392 (Fed. Cir. 1982); Cmty. Heating & Plumbing Co. v. Garrett, 2 F.3d 1143, 1145 (Fed. Cir. 1993) (concluding that the government’s position was not substantially justified even where the Armed Services Board of Contract Appeals had found that position “convincing”); see also Role Models, 353 F.3d at 967 (holding that the government’s position was not substantially justified notwithstanding the fact that it had been accepted by the district court); Marcus, 17 F.3d at 1037-38 (concluding that where the government’s position was directly contrary to the plain language of the controlling statute, it was not substantially justified even where it had been accepted by courts in other circuits).“The totality of the circumstances, by its very description, does not exclude any valid issue from consideration.” White, 412 F.3d at 1317; see also Essex, 757 F.2d at 253. Here, however, the Veterans Court rejected Mrs. Patrick’s EAJA application without considering all of the pertinent factors surrounding the government’s erroneous denial of her claim for dependency and indemnity compensation. In particular, the court did not discuss, and apparently did not consider, the fact that the government had adopted an interpretation of section 1111 that was wholly15 PATRICK v. DVAunsupported by either the plain language of the statute or its legislative history.6 Cf. Fed. Election Comm’n v. Political Contributions Data, Inc., 995 F.2d 383, 387 (2d Cir. 1993) (emphasizing that “[i]t would be hard to imagine how it could be held that one had been ‘substantially justified’ in defying the will of Congress” by interpreting a statute in a manner contrary to its plain language and legislative history). While resolution of the question of whether to award attorney fees “should not result in a second major litigation,” Hensley v. Eckerhart, 461 U.S. 424, 437 (1983), a determination as to whether the government’s position was substantially justified requires a thorough evaluation of the legal and factual support for the position that it adopted, Chiu v. United States, 948 F.2d 711, 715 (Fed. Cir. 1991). In short, a court is required “to look at the entirety of the government’s conduct,” including the agency actions that gave rise to the litigation, “and make a judgment call whether the government’s overall position had a reasonable basis in both law and fact.” Id. (footnote omitted). We therefore re-6 Nor did the Veterans Court fully assess the question of whether the government was substantially justified in arguing, following our decisions in Wagner, 370 F.3d at 1094-96, and Patrick I, 103 F. App’x at 384-85, that this court’s interpretation of section 1111 did not apply retroactively in the context of a CUE claim. We soundly rejected this argument in Patrick III, where we explained that “[u]nlike changes in regulations and statutes, which are prospective, our interpretation of a statute is retrospective in that it explains what the statute has meant since the date of enactment.” 242 F. App’x at 698. We emphasized, moreover, that “our interpretation of § 1111 . . . did not change the law but explained what § 1111 has always meant,” and should therefore be applied to Mrs. Patrick’s claim alleging CUE in the board’s previous decision denying her application for dependency and indemnity benefits. Id.PATRICK v. DVA16verse the judgment of the Veterans Court and remand for a determination of whether, in light of the totality of the circumstances, the government carried its burden of demonstrating that its position was substantially justified.CONCLUSIONAccordingly, the judgment of the United States Court of Appeals for Veterans Claims is reversed and the case is remanded for further proceedings in accordance with this opinion.COSTSThe appellant shall have her costs.REVERSED AND REMANDED

Single Judge Application, Medical Evidence Conflicts with Lay Testimony, Kahana v. Shinseki, 24 Vet.App. 428, 434-45 (2011)

2011-12-14T05:57:00.001-08:00

Excerpt from decision below:"Here, the Board concluded that 38 C.F.R. §§ 4.40 and 4.45 were not forapplication to the appellant's back condition, but did not discuss why the appellant's lay observations were not persuasive evidence. R. at 11. Likewise, the Board dismissed the appellant's reports of left knee instability without explanation. R. at 15. Moreover, the Board failed to explain how the VAmedical opinions contradicted the appellant's lay testimony, when all three agreed that the appellant could experience further limited function due to additional pain with repetitive use. R. at 98, 392, 513; 3can be interpreted as conflicting with lay testimony). This lack ofanalysis resulted in an inadequate statement of reasons or bases, for which remand is the appropriate remedy. See Tucker v. West, 11 Vet.App. 369, 374 (1998)."================================================----------------------------------------------------Designated for electronic publication onlyUNITED STATES COURT OF APPEALS FOR VETERANS CLAIMSNO. 10-2633ELISHA THOMAS, JR., APPELLANT,V.ERIC K. SHINSEKI,SECRETARY OF VETERANS AFFAIRS, APPELLEE.Before LANCE, Judge.MEMORANDUM DECISIONNote: Pursuant to U.S. Vet. App. R. 30(a),this action may not be cited as precedent.LANCE, Judge: The appellant, Elisha Thomas, Jr., through counsel, appealsa June 24,2010, Board of Veterans' Appeals (Board) decision that denied his claimsfor entitlement to anincreased rating for lumbar strain and degenerative joint disease of theleft knee, both evaluated as10% disabling. Record (R.) at 3-18. Initially, the Court notes that itlacks jurisdiction over theappellant's entitlement to total disability based on individualunemployability (TDIU) because thatissue was remanded and it will not be addressed further. See 38 U.S.C. §§7252(a), 7266(a);Howard v. Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000). Single-judgedisposition is appropriate.See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). This appeal istimely and the Court hasjurisdiction over the case pursuant to 38 U.S.C. §§ 7252(a) and 7266.For the reasons that follow,the Court will vacate the June 24, 2010, decision and remand the matterfor further proceedingsconsistent with this decision.I. FACTSThe appellant served in the U.S. Army from October 1979 to October 1982. R.at 742. InAugust 1983, the appellant filed a claim for entitlement to serviceconnection for residuals ofinjuries to his lower back and left leg received during an Army busaccident while he was on activeduty. R. at 684-85, 688-91. The appellant has received a number ofprivate and VA examinationsin the course of claim development. R. at 6-7, 12-13. While the three VAexaminations addressedthe appellant's objectively measurable range of motion as demonstratedduring the examinations,all three noted that it is not possible to determine "with any degree ofmedical certainty" to whatextent pain from repetitive use could further limit function. R. at 98,392, 513. However, the VAexaminers all agreed that pain could further limit function to a lesserrange of motion than that whichwas objectively measurable. Id.In June 2010, the Board concluded that the VA examinations were moreprobative withrespect to the appellant's back condition because they included analysisof x-rays and an MRI thatwere not considered in the private opinions. R. at 10-11. The Boarddetermined that the VAexaminationswere alsomore probativewithrespecttotheappellant'skneeconditionbecause,unlikethe private examiners, they described the specific tests done to evaluatethe stability of theappellant's left knee. R. at 15. Based on the VA examinations, the Boarddenied the appellant'srequest for an increased rating greater than 10% for both conditions. R.at 3-18. This appealfollowed.II. ANALYSISThe appellant argues that the Board provided inadequate reasons or basesbecause, inter alia,it did not provide an adequate analysis of the appellant's lay statementsregarding the pain causedby his back condition and the instability of his left knee and the effectof those symptoms on hisfunctionality. Appellant's Brief (Br.) at 8, 10. The Secretary countersthat 10% ratings areappropriate because there is no "persuasive evidence of additionalfunctional loss due to pain,weakness, fatigue, or incoordination" with respect to the appellant's backcondition, Secretary's Br.at 12, and that the VA examinations of the appellant's left knee were moreprobative than privateexaminations and the appellant's testimony, id. at 13.Although pain may not be capable of definitive objective measurement by aclinician,laypersons are competent to testify to pain and other observable symptoms,such as joint stability.Falzone v. Brown, 8 Vet.App. 398, 405 (1995); see also Washington v.Nicholson, 19 Vet.App. 362,268 (2005) (veteran is competent to provide lay evidence regarding mattersthat are within hispersonal knowledge and experience); Charles v. Principi, 16 Vet.App. 370,374 (2002) (layperson2competent to testify concerning symptoms capable of observation). Theappellant's statementsconcerning his functional limitations as a result of pain in his back andinstability in his left kneefrom repetitive use are captured in the VA examinations and his oraltestimony before the Board.R. at 25-34, 96-98, 391-92, 512-13.The Board acknowledged the appellant's lay statements regarding back painand kneeinstability, but it concluded that the medical opinions more accuratelydescribed the appellant'sconditions. R. at 11, 14-15. However, the Board failed to conduct anymeaningful analysisregarding the competency and credibility of the appellant's lay testimony,instead providing bareconclusions that there was no "persuasive evidence" that the appellant hasfunctional loss, beyondthat contemplated by the 10% rating, due to his back pain, R. at 11, andthat "the VA examinationreports are more probative than the Veteran's testimony" regarding theinstability of his knee, R. at15.It is well established that lay persons are generally competent to provideevidence onobservable symptoms, Jandreau v. Nicholson, 492 F.3d 1372,1377 (Fed. Cir.2007), and "the Boardcannot determine that lay evidence lacks credibility merely because it isunaccompanied bycontemporaneous medical evidence." Buchananv.Nicholson,451F.3d1331,1337(Fed.Cir.2006).It is the Board's role as factfinder to weigh the evidence and makedeterminations on competence.Washington v. Nicholson, 19 Vet.App. 362, 267-68 (2005) (the Board has theduty to determine thecredibility and probative weight of the evidence). When the Boarddetermines probative weightwithout discussing the competence and credibility of favorable laytestimony in the record, it doesnot enable an appellant to understand the precise basis for the Board'sdecision and frustrates judicialreview. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App 517, 527 (1995); Gilbert v.Derwinski, 1 Vet.App. 49, 56-57 (1990).Here, the Board concluded that 38 C.F.R. §§ 4.40 and 4.45 were not forapplication to theappellant's back condition, but did not discuss why the appellant's layobservations were notpersuasive evidence. R. at 11. Likewise, the Board dismissed theappellant's reports of left kneeinstability without explanation. R. at 15. Moreover, the Board failed toexplain how the VAmedical opinions contradicted the appellant's lay testimony, when allthree agreed that the appellantcould experience further limited function due to additional pain withrepetitive use. R. at 98, 392,513; cf. KahanaNext Document v. Shinseki, 24 Vet.App. 428, 434-45 (2011) (discussingwhen medical evidence3can be interpreted as conflicting with lay testimony). This lack ofanalysis resulted in an inadequatestatement of reasons or bases, for which remand is the appropriate remedy.See Tucker v. West,11 Vet.App. 369, 374 (1998).The appellant also argues that the Board misapplied DeLuca v, Brown, 8 Vet.App. 202, 206(1995), and 38 C.F.R. §§ 4.40, 4.45, and 4.59 regarding the rating ofpain. As this matter is alreadybeing remanded, the Board can, on remand, address the implications of thisCourt's recent decisionin Mitchell v. Shinseki, 25 Vet.App. 32 (2011).Accordingly, the Court will vacate the June 24, 2010, Board decision. Onremand, theappellant is free to submit additional evidence and argument, includingthe arguments raised in hisbriefs to this Court, in accordance with Kutscherousky v. West, 12 Vet.App.369, 372-73 (1999) (percuriam order), and the Board must consider any such evidence or argumentsubmitted. See Kay v.Principi, 16 Vet.App. 529, 534 (2002). The Board shall proceedexpeditiously, in accordance with38 U.S.C. §§ 5109B, 7112 (requiring Secretary to provide for "expeditious treatment" of claimsremanded by Board or Court).III. CONCLUSIONAfter consideration of the appellant's and the Secretary's briefs, and areview of the record,the Board's June 24, 2010, decision is VACATED and the matter is REMANDEDto the Board forfurther proceedings consistent with this decision.DATED: December 6, 2011Copies to:Debra S. Tedeschi, Esq.VA General Counsel (027)4

Investigation Reveals Military Brain Injury Testing has Failed

2011-12-05T11:23:00.001-08:00
Full article at: Military program fails at detecting brain injuries in war veteransProPublica and NPR staff | Dec 03, 2011Editor's note: This story was produced by Joaquin Sapien and T. Christian Miller, ProPublica, and Daniel Zwerdling, NPR."[A]n investigation by ProPublica and NPR has found, the testing program has failed to deliver on its promise, offering soldiers the appearance of help, but not the reality.Racing to satisfy Congress' mandate, the military chose a test that wasn't actually proven to detect TBI: the Automated Neuropsychological Assessment Metric, or ANAM. Four years later, more than a million troops have taken the test at a cost of more than $42 million to taxpayers, yet the military still has no reliable way to catch brain injuries."