Panel Decision, Explain the Assignment of Weight to Evidence, Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007), Savage v. Shinseki, 24 Vet.App. 259, 272 (2011)

Excerpts from decision below: "As with any relevant medical record, the signed consent form and treatment note are to be weighed by the Board, along with any other evidence in the record relevant to the issue.7 Savage v. Shinseki, 24 Vet.App. 259, 272 (2011) (noting that private medical record had to be weighed against other evidence in record); Roberts, supra. ========================================= "Nonetheless, this does not relieve the Board of its duty to make credibility determinations and otherwise weigh all of the evidence submitted, including lay evidence, and to adequately explain the reasons or bases for its assignment of weight and ultimate determinations. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (Board has duty to weigh and determine credibility of all evidence, and explain its findings in statement of reasons or bases). Here, the Board essentially found that the preponderance of the evidence was against Ms. McNair's assertion that she was not informed that she might suffer from neuralgia as a result of the surgery, but the Board's statement of reasons or bases in support of its determination is inadequate. Its only stated basis for this finding is the bald statement that "based upon the evidence in this case a reasonable person could assume that the surgeon's detailed discussion addressing possible residual scarring includes associated neuralgic pain." No rationale is provided for concluding what a reasonable person could assume, frustrating judicial review. Allday v. Brown, 7 Vet.App. 517, 527 (1995) (holding that the 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"). ---------------------------------------------------- UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 09-1813 ANDREA M. MCNAIR, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. On Appeal from the Board of Veterans' Appeals (Argued May 25, 2011 Decided November 18, 2011) Ronald L. Smith, with whom Virginia L. Carron and Troy E. Grabow were on the brief, all of Washington, D.C., for the appellant. Kristen D. King-Holland, with whom Will A. Gunn, General Counsel; R. Randall Campbell, Assistant General Counsel; and Carolyn F. Washington, Deputy Assistant General Counsel, were on the brief, all of Washington, D.C., for the appellee. Before KASOLD, Chief Judge, and HAGEL and MOORMAN, Judges. KASOLD, Chief Judge: Veteran Andrea M. McNair appeals through counsel that part of a January 22, 2009, decision of the Board of Veterans' Appeals (Board) that denied disability compensation for neuralgia1 of the breast or focal nerve damage (hereinafter "neuralgia") as a result of surgery she underwent at a VA facility in June 1998. On appeal, Ms. McNair argues, inter alia, that the Board erred when it found that she was advised adequately of the potential adverse effects of her surgeryand therefore that her consent to the surgerywas informed. Ms. McNair seeksreversal of the Board's decision. The Secretary disputes Ms. McNair's contentions. The case was referred to a panel of the Court to address the evidentiary effect of a signed generic consent form when the patient signing the form asserts that she was not informed of a foreseeable risk of surgery. For the reasons stated below, we hold that the presumption of regularity does not apply to the scope of the information provided to a patient by a doctor with regard to the "Neuralgia" is pain extending along the course of one or more nerves. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1281 (31st ed. 2007) [hereinafter "DORLAND'S"]. 1 risks involved with any particular treatment. We further hold that a failure to provide information to a patient about a potential adverse effect does not defeat a finding of informed consent if a reasonable person faced with similar circumstances would have proceeded with the treatment. Becauseadditionalfindings offact arenecessaryto applytheseholdings, theBoard'sdecision will be set aside and the matters remanded for further adjudication. I. FACTS Ms. McNair served on active duty in the U.S. Army from August 1993 to May 1995. Prior to her service – in August 1989 – Ms. McNair underwent breast reduction surgery. She did not report any complications as a result of that procedure. On June 2, 1998, she underwent bilateral reduction mammoplasty at a VA hospital.2 Ms. McNair and her doctor signed an authorization for medical procedures form that reflects that she was advised as to the nature of the surgery, attendant risks involved, and expected results, but the form is general in nature and does not state the specific attendant risks that were discussed. Record (R.) at 448. In addition, a contemporaneously entered treatment notestatesthatthis wasMs.McNair's secondbreast-reduction surgery, whichwasrequired after Ms. McNair developed macromastia3 subsequent to her original surgery, with symptoms including neck, back, and shoulder pain, significant "bra strapping," and decreased physical activity due to the size and positions of the breasts. R. at 442. Another treatment note detailed the surgeon's conversation with Ms. McNair regarding the risks and tradeoffs of the surgery: The nature of the operation including the tradeoff b/t scar or [illegible] of excess skin, adipose and glandular tissue were discussed in great detail including the potential complications of infection, hematoma, partial or complete NAC [nipple-areolar complex] graft loss as well as irregular pigmentation during the healing [illegible]. The pt acknowledged the above and instruct[ed] to proceed. R. at 452. In November 1998, Ms. McNair filed a claim under 38 U.S.C. § 1151 for continual neuralgia resulting from breast reduction surgery. In a March 1999 rating decision, a VA regional office found A "mammoplasty" (or "mammaplasty") reduction is the plastic reconstruction of the breast to reduce size. DORLAND'S at 1116. 3 2 "Macromastia" is oversize of the breasts. DORLAND'S at 1108. 2 that Ms. McNair was not entitled to such benefits because "[b]oth the private and VA examiner indicate that such pain from nerveregeneration after the elective surgeryis an expected consequence of such surgery." R. at 435. Ms. McNair appealed that decision, stating that she did not experience pain after her first surgeryand reiterating that she was not informed of the chance of this type of pain occurring. Since then, this matter has been the subject of several Board decisions, a joint motion for remand granted bythis Court, and numerous VA medical examinations. Ms. McNair has contended throughout this time that she was not informed of the risk of neuralgia prior to her June 1998 surgery. In the decision on appeal, the Board found that Ms. McNair suffers from an additional disability due to neuralgia that was incurred as a result of the June 1998 surgery. The Board further found that neuralgia was a foreseeable risk of surgery but that Ms. McNair was not entitled to disability compensation because (1) there was no evidence of negligence or similar instance of fault on the part of VA in furnishing surgical treatment, and (2) Ms. McNair provided informed consent for treatment. Regarding the informed consent finding, the Board found that there was substantial compliance with 38 C.F.R. § 17.32, the regulation governing the provision and documentation of consent to medical procedures such as surgery. The Board further found that (1) there is no VA regulatory requirement that every foreseeable risk be documented in the record, (2) to the extent the record does not document that neuralgic scar pain was a possible risk, this omission was a minor deviation from the requirements of § 17.32 that was immaterial under the circumstances of this case, and (3) "in this case a reasonable person could assume that the surgeon's detailed discussion addressing possible residual scarring includes associated neuralgic pain." R. at 13. This appeal followed. II. ARGUMENTS Ms. McNair argues that none of the evidence in the record establishes that the specific risk of neuralgia was disclosed to her and that the only affirmative evidence of record on that point consists of her lay statements that she was not so informed – statements that she asserts were not weighed by the Board. She further argues that there is no support for the Board's finding that any failure to document neuralgia in the record was a minor and immaterial deviation under 38 C.F.R. 3 §3.361(d)(1)(ii). When questionedatoralargument,Ms. McNair clarifiedherposition, andasserted that the regulation's reference to "minor" and "immaterial" deviations includes only minor mistakes in documenting the consent, such as ascribing the wrong date to an otherwise properly executed consent form. She also argued that this case is distinguishable from Halcomb v. Shinseki, 23 Vet.App.234(2009),becauseinthatcasetheveterandid notprovide anysupporting evidence,"even [considering] his own laystatements," whereas here Ms. McNair consistentlyhas stated that she was not advised that she might suffer from neuralgia as a result of her surgery. The Secretary argues that the Board's findings of fact are not clearly erroneous because Ms. McNair signed a consent form in which she attested that she understood the nature of the proposed procedure, attendant risks involved, and the expected results. Because the form is congruent with VA regulatory and internal procedures, the Secretary cites to our decision in Halcomb and argues that it cannot be presumed that the risk of neuralgia was not discussed simply because it was not specifically recorded. As to Ms. McNair's contrary lay statements, the Secretary argues that the Board sufficiently addressed them when the Board found that the health care providers substantially complied with 38 C.F.R. § 17.32 and also that minor deviations from the requirements of § 17.32 that are immaterial will not defeat a finding of informed consent. In response to questioning at oral argument,theSecretaryassertedthatminor andimmaterialdeviationsunder§3.361( d)(1)(ii)include a failure to disclose a risk that, had it been known to a reasonable person in Ms. McNair's circumstances, would not havedeterredareasonableperson from undergoing surgery. Additionally, in response to questioning, the Secretary argued that the presumption of regularity applied to the facts of this case and Ms. McNair's statements alone were insufficient to rebut it. III. DISCUSSION The law authorizes VA compensation for disabilities arising from, inter alia, negligently provided VA medical or surgical treatment. 38 U.S.C. § 1151. The implementing VA regulation provides that negligence is established when the VA-provided treatment is the proximate cause of a disability and, inter alia, the treatment was provided without informed consent. 38 C.F.R. 4 § 3.361(c)(1),(d)(1)(ii) (2011);4 see also Halcomb, 23 Vet.App.at 237-38 (explaining the regulatory framework in detail). To be informed, consent must be given freely after careful explanation of the course of the treatment to be provided, including, inter alia, the reasonably foreseeable risks associated with the treatment.5 38 C.F.R. §§ 17.32(c) (2011),6 3.361(c)(1), (d)(1)(ii) (referring to 4 38 C.F.R. § 3.361 states: (c) Establishing the cause of additional disability or death. Claims based on additional disability or death due to hospital care, medical or surgical treatment, or examination must meet the causation requirements of this paragraph and paragraph (d)(1) . . . of this section . . . . (1) Actual causation required. To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the veteran's additional disability or death. Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability or died does not establish cause. .... (d) Establishing the proximate cause of additional disability or death. The proximate cause of disability or death is the action or event that directly caused the disability or death, as distinguished from a remote contributing cause. (1) Care, treatment or examination. To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgicaltreatment,or examinationproximatelycausedaveteran'sadditionaldisabilityor death, itmust be shown that the hospital care, medical or surgical treatment, or examination caused the veteran's additional disability or death (as explained in paragraph (c) of this section); and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care, medical or surgical treatment, or examination without the veteran's or, in appropriate cases, the veteran's representative's informed consent. To determine whether there was informed consent, VA will consider whether the health care providers substantially complied with the requirements of § 17.32 of this chapter. Minor deviations from the requirement of § 17.32 of this chapter that are immaterial under the circumstances of a case will not defeat a finding of informed consent. Consent may be express (i.e., given orally or in writing) or implied under the circumstances specified in § 17.32(b) of this chapter, as in emergency situations. The VA regulation is consistent with the generally accepted rule that a physician must provide the patient with enough information to enable the patient's informed choice whether to undergo treatment, Canterbury v. Spence, 464 F.2d 772, 786 (D.C. Cir. 1972) (adopting the patient-perspective duty), which, in turn, is premised on the principle that a person "has a right to determine what shall be done with his own body," Schloendorff v. Soc'y of N.Y. Hosp., 105 N.E. 92 (N.Y. 1914) (Cardozo, J.). 6 5 38 C.F.R. § 17.32(c) states: General requirements for informed consent. Informed consent is the freely given consent that follows a careful explanation by the practitioner to the patient or the patient's surrogate of the proposed diagnostic or therapeutic 5 § 17.32). Additionally, 38 C.F.R. § 17.32(d) provides that "[t]he informed consent process must be appropriately documented in the health record." The Secretary determined that a signed, generic consent form satisfies this documentation requirement, and this determination was upheld in Halcomb, supra. Specifically left unaddressed in Halcomb, however, is the evidentiary effect of such a generic consent form when the scope of the advice provided to a patient-turned-claimant is contested by the claimant. 23 Vet.App. at 239-41 (rejecting the argument that use of the generic consent form established negligence per se because it did not list the foreseeable risks attendant with the treatment, and noting that the appellant had not presented any evidence – not even his own statement – that consent was not informed). A. Presumption of Regularity There is a presumption that public officers perform their official duties correctly, fairly, in good faith, and in accordance with law and governing regulations. Marsh v. Nicholson, 19 Vet.App. 381, 385 (2005); see also Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir. 2009) (applying the presumption of regularityto the competence of VA examiners). Thepresumption applies with equal force whether its application favors the Government or the individual seeking disability compensation from the Government. Woods v. Gober, 14 Vet.App. 214, 218 ( 2000); cf. United States v. Chem. Found. Inc., 272 U.S. 1 (1926) (rejecting the Government's claim that sales of intellectual property were induced fraudulently because United States officers were presumed to be aware of the facts when the transactions were made absent clear evidence to the contrary). Whether the presumption of regularity attaches to the public actions of a public official is a question of law that the Court reviews de novo. Marsh, 19 Vet.App. at 386. Although Ms. McNair contended at oral argument that the presumption of regularity applies only to ministerial acts, the presumption is not so limited. Rizzo, 580 F. 3d at 1292 (noting that procedure or course of treatment. The practitioner, who has primary responsibility for the patient or who will perform the particular procedure or provide the treatment, must explain in language understandable to the patient or surrogate the nature of a proposed procedure or treatment; the expected benefits; reasonably foreseeableassociated risks,complicationsor sideeffects; reasonableandavailablealternatives;andanticipated results if nothing is done. The patient or surrogate must be given the opportunity to ask questions, to indicate comprehension of the information provided, and to grant permission freely without coercion. The practitioner must advise the patient or surrogate if the proposed treatment is novel or unorthodox. The patient or surrogate may withhold or revoke his or her consent at any time. 6 "nothing in this court's precedent limits the presumption [of regularity] to procedural matters" and further stating that the doctrine "'allows courts to presume that what appears regular is regular, the burden shifting to the attacker to show the contrary'" (quoting Butler v. Principi, 244 F.3d 1337, 1340 (Fed Cir. 2001))); see also Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (applying presumption of regularityto medical examiners' overall competence, including abilityto understand instructions); Rios v. Nicholson, 490 F.3d 928, 930-31 (Fed. Cir. 2007) ( applying presumption to the "known course of business" of the U.S. Postal Service). Even though Ms. McNair's contention that the presumption of regularity only applies to ministerial acts is not the law, we do not agree with the Secretary that the presumption broadly applies to the scope of the advice and information given by a doctor to his patient. The issue before the Court is not resolved simply because the Board may presume the competence of VA medical professionals in general, or their ability to understand instructions, as were the circumstances, respectively, in Rizzo and Sickles, both supra. A VA doctor is a public official and completion of an informed consent form is required by VA regulation before certain treatment may be provided to a patient. However, it is the content of the advice and information provided to the patient in the face of a signed generic consent form that is contested here. As a matter of logic, such advice and information, which is predicated on the unique characteristics of each patient and each medical procedure, is not the "the product of a consistent, reliable procedure," which is the "root" of the presumption of regularity in our caselaw. Posey v. Shinseki, 23 Vet.App. 406, 410 (2010). It is precisely the diversity of patients, procedures, and circumstances that counsels against recognizing a presumption that a doctor has fully informed a particular patient about a particular consequence of a particular medical procedure simply because a generic consent form has been filled out properly. When there is a dispute concerning what information a doctor provided to his patient, a factual issue is raised whether a generic consent form indicating the patient was advised of the risks of surgery is more probative than the claimant's statements that a specific risk of the surgery was not discussed. See Salis v. United States, 522 F. Supp. 989, 1000 (M.D. Pa. 1981) (noting that when there is a general consent form and contrary lay assertions, the issue becomes one of credibility for the trier of fact). Because such a finding has its basis in fact, it is a determination to be made by the Board in the first instance, based on all of the evidence in the record. Roberts v. Shinseki, 7 23 Vet.App. 416, 423 (2010) (Board has duty to weigh and analyze all the evidence of record (citing Burger v. Brown, 5 Vet.App. 340, 342 (1993))). Here, contrary to Ms. McNair's contention, her statements are not the only evidence on the issue of informed consent. As with any relevant medical record, the signed consent form and treatment note are to be weighed by the Board, along with any other evidence in the record relevant to the issue.7 Savage v. Shinseki, 24 Vet.App. 259, 272 (2011) (noting that private medical record had to be weighed against other evidence in record); Roberts, supra. Moreover, to the extent Ms. McNair contends that witness testimony necessarily carries greater weight than documents, she is mistaken. E.g., United States v. U.S. Gypsum Co., 333 U.S. 364, 396 (1948) (giving little weight to testimony in conflict with contemporaneous documents). Nonetheless, this does not relieve the Board of its duty to make credibility determinations and otherwise weigh all of the evidence submitted, including lay evidence, and to adequately explain the reasons or bases for its assignment of weight and ultimate determinations. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (Board has duty to weigh and determine credibility of all evidence, and explain its findings in statement of reasons or bases). Here, the Board essentially found that the preponderance of the evidence was against Ms. McNair's assertion that she was not informed that she might suffer from neuralgia as a result of the surgery, but the Board's statement of reasons or bases in support of its determination is inadequate. Its only stated basis for this finding is the bald statement that "based upon the evidence in this case a reasonable person could assume that the surgeon's detailed discussion addressing possible residual scarring includes associated neuralgic pain." No rationale is provided for concluding what a reasonable person could assume, frustrating judicial review. Allday v. Brown, 7 Vet.App. 517, 527 (1995) (holding that the 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"). Although remand generally is warranted because our review of the Board's findings is frustrated, see Tucker v. West, 11 Vet.App. 369, 374 (1998) (remand is appropriate "wherethe Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its By referencing the consent form and the treatment note, we do not imply that there is no other evidence in the record pertaining to this issue. 7 8 determinations, or where the record is otherwise inadequate"), in this instance we must also address whether the failure to provide notice that neuralgia was a risk associated with surgery can constitute a minor deviation that does not defeat a finding that consent was informed. This is required because if such failure can be deemed minor, and if the Board properly found that it was, Ms. McNair's basis for claiming that her consent was not informed would fail, and remand would not be warranted. 38 U.S.C. § 7261(b)(2) (Court must consider rule of prejudicial error); Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (same); cf. Valiao v. Principi, 17 Vet.App. 229, 232 (2003) (under the prejudicial error rule, remand is unnecessary "where the facts averred by a claimant cannot conceivably result in any disposition of the appeal other than affirmance of the Board decision"). B. Minor Deviations Immaterial Under the Circumstances of a Case The Board decision on appeal states that any failure to document neuralgia was a minor deviation that was immaterial under the circumstances of this case. However, the Board failed to provide a rationale for this determination or explain why not mentioning neuralgia would constitute such a minor deviation. In response to questioning at oral argument, the Secretary stated that he viewed 38 C.F.R. § 3.361(d)(1)(ii) to mean the failure to advise a patient about a reasonably foreseeable consequence of treatment is a minor, nonmaterial deviation if a reasonable person under the circumstances would have consented to the treatment anyway. When the Secretary offers an interpretation of his own regulation for the first time in litigation, that interpretation generally is entitled to deference "'as long as there is no reason to suspectthattheinterpretation doesnot reflecttheagency's fairandconsideredjudgment.'" Singleton v. Shinseki, 23 Vet.App. 376, 379 (2010) (quoting Cathedral Candle Co. v. U.S. Int'l Trade Comm'n, 400 F.3d 1352, 1364 (Fed. Cir. 2005)) (internal quotation marks omitted); see also Bowen v. Georgetown Univ. Hosp., 488 U.S. 204 (1988) ("Deference to what appears to be nothing more than an agency's convenient litigating position would be entirely inappropriate."); Reizensteinv.Shinseki, 583 F.3d 1331 (Fed. Cir. 2009) (noting that, generally, an "agency's construction of its own regulations is of controlling weight unless it is plainly erroneous or inconsistent with the regulation"). Here, a fair reading of the regulation and the Secretary's stated understanding of the regulation when promulgated, 69 Fed. Reg. 46,426, 46,429 (Aug. 3, 2004) ("[ T]he provisions of 9 § 3.361(d)(1) are intended merely to restate, more simply and clearly, the [common law] standards governing determinations of negligence."), support the Secretary's interpretation presented during oral argument and, for the reasons stated below, we find this interpretation to be a reasonable application of the statute. 38 U.S.C. § 7261(a)(1) (questions of law are reviewed de novo); Lane v. Principi, 339 F.3d 1331, 1339 (Fed. Cir. 2003) ("[I]nterpretation of a statute or regulation is a question of law . . . ."); see also Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991) ("When an issue or claim is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law."); Forshey v. Principi, 284 F.3d 1335, 1356 ( Fed. Cir. 2002) ("[W]e may decide to apply the correct law even if the parties do not argue it, if an issue is properly before this court."). The text of § 3.361(d)(1)(ii) and its placement in the overall regulatory scheme demonstrate that the term "minor deviations" includes substantive as well as technical or procedural errors. See Buczynski v. Shinseki, 24 Vet.App. 221, 227 (2009) (noting that regulatory interpretation focuses on the regulatory text as well as the overall structure of the regulatory provisions). The regulation states that a finding of informed consent will not be defeated bya minor deviation that is "immaterial under the circumstances of a case." 38 C.F.R. § 3.361(d)(1)(ii). With regard to substantial compliance and minor deviations,§3.361(d)(1)(ii)referstwiceto §17.32asawhole, whichcontains both procedural and substantive requirements. Compare 38 C.F.R. § 17.32(d) (" Documentation of informed consent."), with 38 C.F.R. § 17.32(c) ("General requirements for informed consent."). The cross reference to both proceduralandsubstantiverequirementssupports the conclusion that even a failure to comply with a substantive requirement could, under some circumstances, constitute a minor, immaterial deviation. See Buczynski, supra (noting that specific limitations of regulatory provisions generally are noted if intended). This interpretation also is consistent with common law principles that form the basis of § 3.361(d)(1), as stated by the Secretary when he promulgated this regulation. See 69 Fed. Reg. at 46,429. Pertinent hereto, common law generally holds that "the test for determining whether a particular peril must be divulged is its materiality to the patient's decision." Canterbury, 464 F.2d 10 at 791; see also Canesi v. Wilson, 730 A.2d 805, 812 (N.J. 1999); Getchell v. Mansfield, 489 P.2d 953, 955-56 (Or. 1971). The majority of jurisdictions also determine "materiality" based upon an objective standard that, at least in part, asks whether the potentially undisclosed risk is of the type that if known by a reasonable person under similar circumstances would cause that person not to have undergone treatment.8 See, e.g., Bernard v. Char, 903 P.2d 667 (Haw. 1995); Canterbury, 464 F.2d at 786-87; K.A.C. v. Benson, 527 N.W.2d 553, 561 (Minn. 1995); Schreiber v. Physicians Ins. Co. of Wis., 588 N.W.2d 26, 33 (Wis. 1999); Sherwood, 805 P.2d at 465 ("Applying the objective test is fair to the patient because it requires consideration by the factfinder of what a reasonable person with all of the characteristics of the plaintiff would have done under the same circumstances . . . and is likewise fair to the physician-defendant because the physician is not placed in jeopardy of the patient's hindsight."). To answer this question, the adjudicator not only must look to the likelihood of an undisclosed risk materializing, but also recognize that some foreseeable risks may be minor when compared to the foreseeable consequences of continuing without undergoing the treatment. See Smith v. Cotter, 810 P.2d 1204, 1209 (Nev. 1991) (determining that the plaintiff's thyroid problem was a minor irritant when compared to the risk of permanent vocal cord paralysis). In sum, given the regulatory text and structure as well as the history of the promulgation of § 3.361(d)(1)(ii) and the general common law understanding of informed consent, we agree with the Secretary's interpretation that the failure to advise a patient of a foreseeable risk can be considered a minor, immaterial deviation under the regulation if a reasonable person in similar circumstances would have proceeded with the medical treatment even if informed of the foreseeable risk. Of course, such an assessment is a factual one for the Board to make in the first instance. Roberts, 23 Vet.App. at 423. The minority of jurisdictions use a subjective standard to determine materiality, under which a patient must show that she herself (as opposed to a reasonable person in her position) would not have consented to the treatment had she been adequately informed. Sherwood v. Carter, 805 P.2d 452, 465 (Idaho 1991). There is no reason to believe that the Secretary intended to apply this position, see e.g., 69 Fed. Reg. at 46,429, and the Court declines to adopt it, given the inherent difficulties it imposes on the finder-of-fact, as well as the possibility that a patient who dies as a result of a medical procedure will be foreclosed from any recovery because she cannot testify as to what her subjective belief was at the time of the procedure. See Fain v. Smith, 479 So.2d 1150 (Ala. 1985 ) (noting the inherent difficulties). 8 11 Here, the Board provided no discussion as to whether a reasonable person in Ms. McNair's situation would have proceeded with the surgery even if advised of the risk that she could suffer from neuralgia as a result of that surgery. Moreover, the Board did not discuss, and the record does not reflect, the consequences of proceeding with surgery versus foregoing surgery, which are key factors upon which one might evaluate whether a reasonable person would have proceeded with the surgery. In the absence of such determination and a properly developed record, or other explanation supporting the Board's bald conclusion, judicial review of this issue is frustrated. 38 U.S.C. § 7104(d)(1) (requiring a statement of reasons or bases in support of the Board's findings and conclusions on all material issues presented on the record); Allday, supra. C. Remand Remand is warranted for the Board to address, in the first instance, and to develop, as needed,9 facts related to the scope of information provided to Ms. McNair regarding the foreseeable risks of her treatment, the foreseeable consequences of failing to undergo treatment, and whether a reasonable person would have proceeded with the surgery even if advised of the risk of neuralgia pursuant to § 3.361(d)(1)(ii). Tucker, supra; Webster v. Derwinski, 1 Vet.App. 155, 159 (1991) (Court is not to conduct de novo factfinding but rather to remand the case for the Board to find facts in the first instance, subject to later review by Court). On remand, Ms. McNair may present, and the Board must consider, any additional 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. IV. CONCLUSION Upon consideration of the foregoing, the Board's January 22, 2009, decision is SET ASIDE and the matter REMANDED for adjudication consistent with this decision. Of note, the record reflects that Ms. McNair's representative requested that the Secretary obtain further information from the VA hospital regarding her informed consent but the Board found that any such effort would be futile because the evidence already was sufficient for an adequate determination. 9 12 13

Doctrine of Spoilation, Jandreau v. Nicholson, 492 F.3d 1372, 1375 (Fed. Cir. 2007), Kirkendall v. Dep’t of the Army, 573 F.3d 1318, 1325-27 (Fed. Cir. 2009)

Excerpt from decision below: "The routine destruction of duplicative documents does not present the risk of denying an adversary access to relevant information, which is what the doctrine of spoliation is directed to. See Jandreau v. Nicholson, 492 F.3d 1372, 1375 (Fed. Cir. 2007) (holding that an adverse inference for spoliation of evidence re-quires proof that evidence was destroyed “with a culpable state of mind” and that it was “relevant to the party’s claim or defense”); see also Kirkendall v. Dep’t of the Army, 573 F.3d 1318, 1325-27 (Fed. Cir. 2009) (spoliation found when agency destroyed relevant documents in violation its own document retention program and petitioner made a “compelling case” that his effort to prove his case was hampered by the destruction of the documents). There was no showing that the destruction of the duplicate records in this case was contrary to routine agency practice or was done to deprive Mr. Alexce of relevant evidence, and there is no showing that the absence of duplicate copies of records already found in the file in any way deprived Mr. Alexce of relevant evidence with which to support his claim. Like the Veterans Court, we therefore reject Mr. Alexce’s theory of spoliation. As for Mr. Alexce’s argument that the destruction of his records deprived him of due process, Mr. Alexce did not make that argument until his motion for reconsidera-tion in the Veterans Court; it was therefore not timely ALEXCE v. DVA 6 raised. In any event, there is no force to the argument. Due process ensures a party a meaningful right to be heard with respect to the denial of important governmental benefits, including veterans disability benefits. Cushman v. Shinseki, 576 F.3d 1290, 1298-1300 (Fed. Cir. 2009)" ================ NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit __________________________ PERRY R. ALEXCE, Claimant-Appellant, v. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee. __________________________ 2010-7073 __________________________ Appeal from the United States Court of Appeals for Veterans Claims in Case No. 06-3559, Judge Robert N. Davis. ___________________________ Decided: October 6, 2011 ___________________________ NAOMI E. FARVE, of New Orleans, Louisiana, for claimant-appellant. JANE W. VANNEMAN, Senior Trial Counsel, Commer-cial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respon-dent-appellee. With her on the brief were TONY WEST, ALEXCE v. DVA 2 Assistant Attorney General, JEANNE E. DAVIDSON, Direc-tor, and BRIAN M. SIMKIN, Assistant Director. Of counsel on the brief was DAVID J. BARRANS, Deputy Assistant General Counsel, United States Department of Veterans Affairs, of Washington, DC. Of counsel was KRISTIANA M. BRUGGER, Attorney, United States Department of Veter-ans Affairs, of Washington, DC. __________________________ Before LOURIE, BRYSON, and DYK, Circuit Judges. PER CURIAM. DECISION Perry R. Alexce appeals from the decision of the Court of Appeals for Veterans Claims (“the Veterans Court”) seeking to overturn a decision of the Board of Veterans’ Appeals that denied his request for an increase in his disability rating for purposes of disability compensation from the Department of Veterans Affairs (“DVA”). BACKGROUND Mr. Alexce, a veteran, is currently receiving disability compensation from the DVA for a service-connected post-surgical knee condition. The DVA assigned him a disabil-ity rating of 10 percent for his condition, effective Decem-ber 4, 2001. Mr. Alexce requested that his rating be increased, and he submitted medical records in support of his request. A DVA regional office denied his request, and the Board of Veterans’ Appeals upheld the regional office’s decision not to increase his rating. 3 ALEXCE v. DVA Mr. Alexce appealed that decision to the Veterans Court. Before that court, Mr. Alexce made only a single argument—that the DVA had destroyed certain medical records that he had submitted in support of his claim for an increased disability rating and that sanctions should be imposed for the destruction of the records, including a presumption that the records would have shown that Mr. Alexce was entitled to a disability rating greater than 10 percent. The Veterans Court affirmed the Board’s decision, re-jecting Mr. Alexce’s argument that the DVA’s destruction of Mr. Alexce’s records entitled him to relief. The court noted that, according to the DVA, the records that were destroyed were duplicative of medical records already in the claims file and that the destruction of duplicative material is a standard procedure dictated by the DVA’s internal adjudication procedure manual. In the absence of evidence to the contrary, the court assumed that the DVA had properly discharged its duties by destroying only records that were duplicative. The court added that “if it could be shown that documents were destroyed that were both nonduplicative and relevant, such develop-ments could have substantially different implications.” In a motion for reconsideration, Mr. Alexce did not take issue with the DVA’s representation that the de-stroyed records were duplicative, but argued that the “unilateral removal of relevant documents from Appel-lant’s claim file, without prior notice to Appellant, was a violation of Appellant’s due process right to a fair hearing and determination of his case.” The Veterans Court denied reconsideration without comment. ALEXCE v. DVA 4 DISCUSSION Mr. Alexce renews his argument that the destruction of his medical records constituted spoliation of evidence and violated his due process rights. The government responds that this court lacks jurisdiction to address those claims and that, in any event, Mr. Alexce’s argu-ment fails on the merits. Although the government contends that Mr. Alexce’s argument is fact-based and therefore not within this court’s jurisdiction, we understand his argument to be, at least in part, that any destruction of medical records that he submitted to the DVA constitutes spoliation and violates due process, regardless of whether those records are duplicative or relevant to his claim. As such, Mr. Alexce’s argument is not fact-based; if his broad legal theory were accepted, he would prevail. This court there-fore has jurisdiction to address that argument. See An-drews v. Nicholson, 421 F.3d 1278, 1281 (Fed. Cir. 2005); Morgan v. Principi, 327 F.3d 1357, 1363 (Fed. Cir. 2003); Madden v. Gober, 125 F.3d 1477, 1480 (Fed. Cir. 1997). Moreover, to the extent that Mr. Alexce’s argument is constitutional in nature, the fact that we are asked to address factual issues does not defeat our jurisdiction. See 38 U.S.C. § 7292(d)(2). While we have jurisdiction to address Mr. Alexce’s ar-gument, we find that it is entirely lacking in merit. There is no evidence that the documents that were destroyed were anything other than duplicative of records already in the claim file. The only evidence in the record relating to the destruction of documents is an entry made on a re-gional office document stating “Duplicate VA tx [i.e, treatment] records destroyed 2-17-05.” Mr. Alexce offered nothing to suggest that any materials he submitted that 5 ALEXCE v. DVA were not duplicative were missing from the file, much less suggesting what those materials might have said that could be helpful to his claim. There is no force to the argument that the destruction of duplicative materials constitutes spoliation of evidence or that there is anything improper in the DVA’s practice of retaining only a single copy of particular medical records in veterans’ claim files in an effort to maintain orderly records. The routine destruction of duplicative documents does not present the risk of denying an adversary access to relevant information, which is what the doctrine of spoliation is directed to. See Jandreau v. Nicholson, 492 F.3d 1372, 1375 (Fed. Cir. 2007) (holding that an adverse inference for spoliation of evidence re-quires proof that evidence was destroyed “with a culpable state of mind” and that it was “relevant to the party’s claim or defense”); see also Kirkendall v. Dep’t of the Army, 573 F.3d 1318, 1325-27 (Fed. Cir. 2009) (spoliation found when agency destroyed relevant documents in violation its own document retention program and petitioner made a “compelling case” that his effort to prove his case was hampered by the destruction of the documents). There was no showing that the destruction of the duplicate records in this case was contrary to routine agency practice or was done to deprive Mr. Alexce of relevant evidence, and there is no showing that the absence of duplicate copies of records already found in the file in any way deprived Mr. Alexce of relevant evidence with which to support his claim. Like the Veterans Court, we therefore reject Mr. Alexce’s theory of spoliation. As for Mr. Alexce’s argument that the destruction of his records deprived him of due process, Mr. Alexce did not make that argument until his motion for reconsidera-tion in the Veterans Court; it was therefore not timely ALEXCE v. DVA 6 raised. In any event, there is no force to the argument. Due process ensures a party a meaningful right to be heard with respect to the denial of important governmental benefits, including veterans disability benefits. Cushman v. Shinseki, 576 F.3d 1290, 1298-1300 (Fed. Cir. 2009). The routine destruction of duplicative medical records was not shown to have had any effect whatsoever on Mr. Alexce’s right to be heard with regard to his claim for increased disability benefits. Absent any arguable effect on his ability to prove his right to those benefits, Mr. Alexce cannot demonstrate an impairment of his opportunity to be heard with respect to those benefits. We therefore sustain the decision of the Veterans Court. AFFIRMED No costs.

Single Judge Application, Prejudicial Error, Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)

Excerpt from decision below:
"A September 2006 VA medical treatment
record states that the appellant's knee and back hurt and that they were injured in Vietnam when he "jumped from the top of a water tank." R. at 576. The record also reveals that the appellant did not receive treatment at that time. R. at 576, 578, 580. The Board's failure to discuss this evidence is prejudicial because it is potentially relevant to proving the appellant's claim under either a theory of direct service connection or a theory of continuity of symptomatology. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Savage v. Gober, 10 Vet.App. 488, 496-97 (1997); 38 C.F.R. § 3.303(b) (2011).
Therefore, the appellant's low back claim must be remanded so the Board
can address evidence material to the appellant's claim. See Caluza, supra.

==================

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-3729
GORDON R. WEMHOFF, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before LANCE, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
LANCE, Judge: The appellant, Gordon R. Wemhoff, through counsel, appeals a
September
21, 2009, Board of Veterans' Appeals (Board) decision that denied his
claims for entitlement to
service connection for left ear hearing loss, a lower back condition, a
right ankle condition, a right
knee condition, and a right lower leg condition. Record (R.) at 3-6. The
Court notes that it lacks
jurisdiction over several claims that were remanded and they 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). The appellant
does not present any argument concerning the denial of claims concerning
his posterior right calf
scar, gastroesophageal reflux disease, peripheral neuropathy, acquired
psychiatric disorder, and
sexual dysfunction. Accordingly, those claims are 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 over the case.
38 U.S.C. §§ 7252(a) and 7266. For the reasons that follow, the Court
will vacate the September
21, 2009, decision as to the claim for a lower back disorder and remand
that matter for further
proceedings consistent with this decision. The decision will otherwise be
affirmed.


I. FACTS
The appellant served on active duty in the U.S. Air Force from June 1967
until June 1971.
R. at 838. Service medical records (SMRs) demonstrate that he had multiple
hearing tests during
his service and that his left ear hearing was normal upon discharge. R. at
744-45, 754-55, 758.
In September 2006, the appellant filed claims for entitlement to service
connection for,
among other things, bilateral hearing loss and a lower back disability. R.
at 690-705. In November
2006, VA afforded the appellant an audiology examination and opinion. R.
at 622-26. The
examiner noted that there was "some high frequency hearing loss" in the
appellant's right ear on both
his service entrance and exit exams, but that there was "no significant
change in either ear between
the two tests." R. at 624. The examiner opined that it is at least as
likely as not that the appellant's
current tinnitus is related to his active service, but that it is not
likely that the appellant's hearing loss
is related to his active service. R. at 626.
In a December 2006 rating decision, VA determined, among other things,
that the appellant
was entitled to service connection for tinnitus. R. at 612-21. VA
requested a clarification from the
examiner and, in a December 2006 addendum, the examiner opined that the
appellant's hearing loss
is not related to his in-service noise exposure. R. at 606. The examiner
also issued a supplemental
opinion in which he listed the puretone threshold results from the
appellant's service entrance and
exit examinations; he then reiterated that there was no significant change
between the two tests and
that "[b]ased on the UNCHANGED audiogram at exit from the service (
relative to entrance) the
veteran's current hearing loss in either ear is not likely to be related
to noise exposure in the service."
R. at 606 (capitalization in original).
In February 2007, the appellant received a VA orthopedic examination. R.
at 591-94. The
examiner noted that the appellant sprained his back in 1968. R. at 592.
The examiner opined that
the appellant's current back disability is not likely the result of a
documented in-service calf injury.
R. at 593. An additional orthopedic opinion was obtained in April 2007. R.
at 583-84. That
examiner noted that he reviewed the appellant's claims file, which
included previous examination
reports and opinions. R. at 583. The examiner further noted that the
appellant's SMRs indicated that
he was diagnosed with a back sprain in April 1968, although his separation
examination did not note
a back condition. R. at 583. The examiner found that the appellant's
current back disability, which
is spinal stenosis, is not likely due to his in-service back sprain. R. at
583. The examiner based his
2


opinion upon the appellant's separation examination, the lack of evidence
of a disability after
discharge, and the lack of continuity of symptoms or treatment. R. at 583.
In May 2007, VA issued a rating decision denying, among other things,
service connection
for left ear hearing loss and a lower back condition. R. at 560-70. In
addition, it granted service
connection for right ear hearing loss. R. at 566. The appellant filed a
Notice of Disagreement
(NOD) in August 2007. R. at 517-22. The appellant perfected his appeal in
January 2008. R. at
211-12. In the decision on appeal, the Board denied the disputed claims. R.
at 3-40.
II. ANALYSIS
A. Secretary's Motion to Strike
As a preliminary matter, the Court notes that after the appellant filed
his reply brief, on October
21, 2010, the Secretary filed a motion to strike the portion of his reply
brief that cites to non-
precedential authority, pursuant to Rule 30 of this Court's Rule of
Practice and Procedure. U.S.
VET.APP. R. 30(a). The appellant has not responded to the Secretary's
motion. In his reply brief, the
appellant cites to Flodman v. Shinseki, No. 07-3291, 2009 WL 2730884 (
August 31, 2009), and argues
that the facts of that case are "analogous" to the facts of the case here
on appeal. Appellant's Reply
Brief (Br.) at 3. He further suggests that the Court should adopt the
logic of that case in deciding his
appeal. Appellant's Reply Br. at 3-4. Because the appellant asserts that
the logic and analysis of
Flodman apply in this case, his use of the case violates Rule 30(a).
Therefore, the Court will grant the
Secretary's motion to strike the portion of the appellant's reply brief
that relies on Flodman.
B. Low Back Disability
The parties agree that the appellant's claim for service connection for a
low back disorder must
be remanded because the Board failed to adequately address the appellant's
lay testimony. See
Appellant's Br. at 15-18, Secretary's Br. at 15-16. After a review of the
pleadings and cited records
in this case, the Court agrees that remand is necessary.
The Board is required to provide a written statement of the reasons or
bases for its findings and
conclusions on all material issues of fact and law presented on the record;
that 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. 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 v. Derwinski, 1
Vet.App. 49, 57 (1990). To
3


comply with this requirement, the Board must analyze the credibility and
probative value of the
evidence, account for the evidence that it finds to be persuasive or
unpersuasive, and provide the
reasons for its rejection of any material evidence favorable to the
claimant. Caluza v. Brown, 7
Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (
table); Gabrielson v. Brown,
7 Vet.App. 36, 39-40 (1994).
In this case, the Board failed to discuss any of the appellant's lay
testimony or to apply the
relevant law to that testimony. A September 2006 VA medical treatment
record states that the appellant's knee and back hurt and that they were injured in Vietnam when he "jumped from the top of a water tank." R. at 576. The record also reveals that the appellant did not receive treatment at that time. R. at 576, 578, 580. The Board's failure to discuss this evidence is prejudicial because it is potentially relevant to proving the appellant's claim under either a theory of direct service connection or a theory of continuity of symptomatology. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Savage v. Gober, 10 Vet.App. 488, 496-97 (1997); 38 C.F.R. § 3.303(b) (2011).
Therefore, the appellant's low back claim must be remanded so the Board
can address evidence material to the appellant's claim. See Caluza, supra.
The appellant also argues that the February 2007 VA orthopedic examiner
did not adequately
describe his history because the examiner only considered an April 1968
automobile accident that
inured the appellant's back and did not address the appellant's lay
testimony that he injured his back
when he jumped off a water tank in Vietnam. Appellant's Br. at 11-12. The
Court agrees with the
appellant that this factual issue would be critical to an adequate medical
opinion (see Ardison v.
Brown, 6 Vet.App. 405, 407 (1994)); however, the need for a new medical
examination is an issue best
decided by the Board in the first instance. See Maggitt v. West, 202 F.3d
1370, 1377-79 (Fed. Cir.
2000) (Court has discretion to remand issues to the Board); see also
McCormick v. Gober,
14 Vet.App. 39, 45 (2000) (holding that remand is appropriate where it
would "likely benefit the
Court by producing 'a better record . . . for appellate review of the [
Board's] decision'") (quoting
Maggit, 202 F.3d at 1377). Specifically, whether the February 2007 exam is
inadequate depends
on whether the Board finds the appellant's statement that he injured his
back after jumping off a
water tank to be credible. See Reonal v. Brown, 5 Vet.App. 458, 461 (1993) (
medical opinion based
on inaccurate factual premise has no probative value). This is a
determination that the Court cannot
make; therefore, the issue of whether a new medical opinion is necessary
is better left to the Board.
4


See Maggitt, supra; Mayfield v.Nicholson, 444 F.3d 1328, 1333 (Fed. Cir.
2006). Accordingly, on
remand, the Board must address whether the appellant's statements are
credible and, if so, whether
the February 2007 VA orthopaedic opinion was inadequate.
On remand, the appellant is free to submit additional evidence and
argument, including the
arguments raised in his briefs to this Court, in accordance with
Kutscherousky v. West, 12 Vet.App.
369, 372–73 (1999) (per curiam order), and the Board must consider any
such evidence or argument
submitted. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). Furthermore,
the Board shall proceed
expeditiously, in accordance with 38 U.S.C. § § 5109B, 7112 (requiring
Secretary to provide for
"expeditious treatment" of claims remanded by Board or Court); see also
Harvey v. Shinseki,
24 Vet.App. 284, 288 (2011) (the Secretary's duty to expedite is an
inherent component of the
Court's remand power that merits suitable urgency and attention from the
Secretary).

C. Left Ear Hearing Loss
Hearing loss is considered a disability for compensation purposes when: (1)
the auditory
threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (
Hz) is 40 decibels or greater;
(2) when the auditory thresholds for at least three of the frequencies 500,
1000, 2000, 3000, or 4000
Hz are 26 decibels or greater; or (3) when speech recognition scores using
the Maryland CNC Test are
less than 94%. 38 C.F.R. § 3.385 (2011). Disability ratings for hearing
loss are almost exclusively
dependent on the mechanical application of average pure tone decibel loss
and percent of speech
discrimination to the corresponding VA rating table. See Acevedo-Escobar v.
West, 12 Vet.App. 9,
10 (1998); Lendenmann v. Principi, 3 Vet.App. 345, 349 (1992); 38 C.F.R. §
4.85 (2011). Hearing
loss does not constitute a disability if it does not meet the threshold
requirements set forth in 38 C.F.R.
§ 3.385. Palczewski v. Nicholson, 21 Vet.App. 174, 179-80 (2007).
1. Adequacy of November and December 2006 Opinions
A medical opinion is considered adequate for evaluation purposes if it (1)
is based upon
consideration of the veteran's prior medical history, (2) describes the
disability in sufficient detail so
that the Board's "'evaluation of the claimed disability will be a fully
informed one,"' Ardison v. Brown,
6 Vet.App. at 407 (quoting Green v. Derwinski, 1 Vet.App. 121, 124 (1991)),
and (3) "supports its conclusion with an analysis that the Board can consider and weigh against contrary opinions." Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007). Whether a medical opinion is adequate is a finding of fact, which the Court reviews under the "clearly erroneous" standard. See 38 U.S.C. § 7261(a)(4); D'Aries
5


v. Peake, 22 Vet.App. 97, 103 (2008); Gilbert, 1 Vet.App. at 52. "A
factual finding 'is "clearly
erroneous" when although there is evidence to support it, the reviewing
court on the entire evidence
is left with the definite and firm conviction that a mistake has been
committed.'" Hersey v. Derwinski,
2 Vet.App. 91, 94 (1992) (quoting United States v. U.S. Gypsum Co., 333 U.
S. 364, 395 (1948)).
The appellant argues that the November 2006 VA audiological examination
and the December
2006 clarification relied upon by the Board to deny service connection for
his left ear hearing loss are
inadequate because the examiner did not take into account that his 1966
entrance physical and his 1971
discharge physical reveal a worsening of his hearing at 4,000 Hz.
Appellant's Br. at 7-8. After a
review of the records in question, the Court finds this argument
unpersuasive, because the 2006 VA
examiner took those results into account in formulating his opinion. See
Hilkert v. West, 12 Vet.App.
145, 151 (1999) (en banc) (stating that on appeal to the Court, the "
appellant always bears the burden
of persuasion"), aff'd, 232 F.3d 908 (Fed. Cir. 2000) (table).
In both of the 2006 VA opinions, the examiner noted that audiometric
testing was performed
in 1966 and 1971, and that there was "no significant change in either ear
between the two tests." R.
at 624 (emphasis added). The examination report further states: "Based on
the separation audiogram
being unchanged relative to the entrance audiogram, it is not likely that
the veteran's current hearing
loss is a direct result of [m]ilitary noise exposure." R. at 626, see also
R. at 605 (December
clarification stating there was no significant change in either ear). In
December 2006, the examiner
concluded "[b]ased on the UNCHANGED audiogram at exit from the service (
relative to entrance) the
veteran’s current hearing loss in either ear is not likely to be related
to noise exposure in the service."
R. at 606 (capitalization in original). Furthermore, the examination is
otherwise adequate because it
contains a history, diagnostic testing, a description of the disability,
and a rationale for its conclusion.
R. at 606, 622-26. Therefore, because the Board had a basis for finding
that the VA examiner
specifically addressed the results of the appellant's audiological
examinations from 1966 and 1971, the
appellant's argument is unpersuasive. See Hilkert, supra.
As for the appellant's contention that the Board did not provide an
adequate statement of
reasons or bases for relying on the November and December 2006 VA opinions,
the Court is equally
unconvinced. See Hilkert, supra. In the decision on appeal, the Board
provided an adequate statement
of reasons or bases for determining that the VA examinations were adequate.
It stated:
6


the VA examinations obtained in this case are adequate as they are
collectively
predicated on a review of the claims folder and medical records contained
therein;
contain descriptions of the history of the disabilities at issue; document
and consider
the relevant medical facts and principles; recorded the relevant findings
for rating the
Veteran's service connected disabilities; and provided opinions with
supporting
rationale for those disabilities which the Veteran claims are service-
connected.
R. at 10. This explanation is consistent with the law, supported by the
record, and sufficient to inform
the appellant of the basis for the Board's determination, while also
allowing for review by this Court.
See Allday, supra. Accordingly, the appellant does not present a basis for
remand. See Hilkert, supra.
2. Effect of Service Connection for Right Ear Hearing Loss
The appellant also contends that he is entitled to service connection for
his left ear hearing loss
because VA is bound by the facts that were relied upon to determine his
entitlement to compensation
for right ear hearing loss. Appellant's Br. at 5-11, 17. This argument is
unpersuasive and unsupported
by law. See Hilkert, supra. First, the facts relied upon by the appellant
were decided by the regional
office (RO) and, therefore, were not binding upon the Board. See Anderson
v. Shinseki, 22 Vet.App.
423 (2009). Second, the factual situation involved in the appellant's
claim for service connection for
his right ear hearing loss and tinnitus varies in a meaningful way from
the factual situation surrounding
his left ear hearing loss claim. Specifically, the RO awarded service
connection for the appellant's
right ear because his 1971 separation audiogram demonstrated a 45 decibel
auditory threshold at 4,000
Hz. R. at 566. However, the appellant's 1966 auditory test results
demonstrate that he did not have
a right ear hearing disability when he entered active service, and his
1971 separation examination
revealed that he had a right ear hearing disability upon discharge. R. at
744-45, 754-55; see 38 C.F.R.
§ 3.385 (2011). Furthermore, a review of the record reveals that the RO
awarded service connection
despite the negative nexus examination because the in-service medical
records demonstrated that the
appellant had a right ear hearing loss disability prior to discharge. R.
at 566. However, the appellant
did not have a left ear hearing loss disability when he separated from
service and he did not develop
a left ear hearing loss disability until later in life. R. at 744-45.
Additionally, in contrast to his left ear
hearing loss, the medical evidence of record indicates that his tinnitus
is "at least as likely as not" the
result of his in-service noise exposure. R. at 612-21, 626. Therefore,
given the factual differences
between the right and left ear hearing loss, and given that the facts
relating to the right ear hearing loss
have no preclusive effect on the Board, there is no valid basis for remand.
See Hilkert, supra.
7


The appellant also argues that the November and December 2006 VA
audiological opinions violated the holding in Hensley v. Brown; however, the appellant misreads that case. 5 Vet.App. 155(1993). In Hensley, the Court stated that "when audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service." Id. at 160.
However, Hensley is a legal doctrine applicable to the Board and not a medical guideline. See id. at 164 (explaining that "the Board was required to determine whether the veteran's current right-ear hearing disability was causally related to
in-service noise exposure"). Indeed, the Court lacks the necessary
expertise to make binding rules on
medical issues and the ever-changing nature of medical knowledge cannot be
subject to res judicata.
Rather, the physician should apply current medical knowledge to the facts
of an individual's case, and
Board, as finder of fact, interprets the medical reports in light of the
applicable law. See Moore v.
Nicholson, 21 Vet.App. 211, 218 (2007) ("The medical examiner provides a
disability evaluation and
the rating specialist interprets medical reports in order to match the
rating with the disability."), rev'd
on other grounds sub nom. Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009).
In this case, the VA examiner did not base his conclusion solely on normal
hearing test results
at separation but, rather on the fact that the veteran's audiograms at
separation had not significantly
changed from his enlistment audiograms. R. at 18, 622-26. Nothing in
Hensley precludes a medical
examiner from relying on a comparison between two in-service audiograms.
Hensley, 5 Vet.App. at
159-60. Accordingly, the Board properly determined that the medical
evidence did not demonstrate
that the appellant's current left ear hearing loss is related to his
active service. R. at 13-16. Therefore,
this argument lacks merit and does not provide an independent basis for
remand.
III. CONCLUSION
After consideration of the appellant's and the Secretary's briefs and a
review of the record,
the Board's September 21, 2009, decision is VACATED as to the appellant's
claim for a low back
disorder and that matter is REMANDED to the Board for further proceedings
consistent with this
decision. The Board decision is otherwise AFFIRMED.
DATED: August 1, 2011
8


Copies to:
John S. Berry, Esq.
VA General Counsel (027)
9

Single Judge Application, Evidentiary Guidlines, Medical Evidence, Competent Evidence, Jandreau v. Nicholson, 492 F.3d; Waters v. Shinseki, 601 F.3d

Excerpt from decision below:
"In any event, the Board admitted, on the one hand, that Mr. Byrd was competent to report his hallucinations, but required, on the other hand, competent medical evidence to substantiate these hallucinations. This is contrary to Jandreau v.
Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007), which held that lay
testimony is competent evidence of observable symptoms. See also Waters v. Shinseki, 601 F.3d 1274, 1277 (Fed. Cir. 2010) (noting that "medical evidence" and "competent evidence" are "separate, although perhaps related, evidentiary guidelines").
Moreover, the Board seemingly rejected Mr. Byrd's reported hallucinations because they were not "persistent," as described in the rating criteria for a 100%
disability rating. 38 C.F.R. § 4.130.
However, although auditory and visual hallucinations are not explicitly
mentioned in the criteria for any lesser disability rating, the Board is not precluded from considering evidence of occasional hallucinations in concert with the assignment of a lesser disability rating. See Mauerhan, 16 Vet.App. at 442 (explaining that "the factors listed in the rating formula are 'examples' of
conditions that warrant particular ratings"). Consequently, the Court
concludes that the Board's statement of reasons or bases is inadequate and remand is therefore warranted. See Gilbert,
===========================================
----------------------------------------------------

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-0479
JAMES E. BYRD, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before HAGEL, Judge.

MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
HAGEL, Judge: James E. Byrd appeals through counsel a February 2, 2009,
Board of
Veterans' Appeals (Board) decision denying entitlement to a disability
rating in excess of 30% for
post-traumatic stress disorder for the period of October 17, 2002, to
November 13, 2005. Record
(R.) at 3-22. The Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a)
and 7266(a) to review the
February2009Boarddecision.
BecausetheBoardfailedtoprovideanadequatestatementofreasons
or bases for its decision, the Court will vacate the February 2, 2009,
Board decision and remand the
matter for readjudication consistent with this decision.
I. FACTS
Mr. Byrd served on active duty in the U.S. Army from July 1967 to July
1969, including
service in Viet Nam.
In October 2002, Mr. Byrd filed a claim for VA benefits for post-traumatic
stress disorder.
Later that month, Mr. Byrd sought treatment for an undiagnosed psychiatric
condition that he
characterized as post-traumatic stress disorder and reported that he had "
been drinking a quart of
alcohol [a] day for many years." R. at 320. The physician informed Mr.
Byrd that "he could neither
be assessed nor treated for [post-traumatic stress disorder] until he ha[d]
at least 60 days of


documented sobriety." R. at 320. In November 2002, Mr. Byrd was
hospitalized at a VA medical
center for a period of 33 days. The treating physician acknowledged that
Mr. Byrd suffered from
post-traumatic stress disorder symptoms such as inability to sleep, fitful
sleep, nightmares, and
exaggerated startle response, but explained that Mr. Byrd denied suicidal
or homicidal ideation and
had no history of suicide attempts. The VA physician also noted that Mr.
Byrd reported being
violent in self-defense, including an incident of road rage where he "shot
a man in the cheek." R.
at 318. Upon discharge, he was found to be psychologically stable and
competent.
In March 2003, Mr. Byrd underwent a VA medical examination and reported
that he
experiencedflashbacks, nightmares,problemssleeping,wakingupfighting,
andheightenedreactions
to sound, but denied suicidal and homicidal ideation and auditoryor visual
hallucinations. Although
Mr. Byrd stated that he had a good relationship with his wife, he admitted
being irritable and angry
and avoiding other social relationships. The VA examiner described Mr.
Byrd as prone to
"vindictive behavior" and explained that he experienced "excessive anxiety,
tension, nervousness,
and depression," as well as "chronic feelings of insecurity," "withdraw[al]
from social interactions,"
and "avoidant behavior[] and intrusive thoughts." R. at 304, 306. The
examiner diagnosed Mr. Byrd
with post-traumatic stress disorder and alcohol dependence and assigned a
Global Assessment of
Functioning Score of 55.1
With regard to his employment history, the examiner noted that Mr. Byrd
hadworkedforanautomobilemanufacturerfrom1969to 2002andhadreceivedseveral
suspensions
from work for insubordination and aggressiveness, but was now "retired
from competitive
employment and likely unemployable for any other employment at [that] time
." R. at 306.
In April 2003, a VA regional office awarded Mr. Byrd a 30% disability
rating for post-
traumatic stressdisordereffectiveOctober17,2002. Mr.Byrdfileda
timelyNotice of Disagreement
with this decision and subsequently perfected his appeal. In a September
2004 hearing before the
Board, Mr. Byrd testified that he would "go off" on his wife three to four
times a week and that he
did not socialize with many people. R. at 214, 223. In December 2004, the
Board remanded Mr.
Byrd's claim for another VA medical examination.
A Global Assessment of Functioning score represents "the clinician's
judgment of the individual's overall level
of functioning" and is "useful in planning treatment and measuring its
impact[ ] and in predicting outcome." DIAGNOSTIC
AND STATISTICALMANUALOF MENTALDISORDERS 30 (4th ed. 1994); see Richard v.
Brown, 9 Vet.App. 266, 267 (1996).
1
2


In September 2005, Mr. Byrd presented at a VA medical center with
complaints of sleep
disturbances, irritability, memoryproblems, poor concentration, decreased
energyand appetite, and
depression. Mr. Byrd denied suicidal and homicidal ideation and reported "
visual hallucination[s]
of seeing shadows while driving at night," which the VA physician
characterized as "questionable."
R. at 195-96. The physician also stated that Mr. Byrd's speech was "clear,
coherent, and goal
directed,"hehad"[n]o grosscognitive impairment,"andwasconsidereda"low"
riskto harmhimself
and others. R. at 195-96. The physician diagnosed him with post-traumatic
stress disorder and
hypertension, assigned him a Global Assessment of Functioning score of 60,
and prescribed
medication "to help his paranoid thought and sleep disturbance." R. at 196.
In November 2005, Mr. Byrd underwent another VA medical examination. Mr.
Byrd
described himself as "averyangryindividual" who "is capable of great
violence, including homicide
when provoked" and "is quick to anger with only minor provocation." R. at
145. He also reported
experiencingpanic attacks, anxiety, depression, irritability, chronic
difficulties with anger including
sudden outbursts, intolerance, poor motivation, and passive thoughts of
death one or two times per
week, but denied suicidal and homicidal ideation, auditory and visual
hallucinations, paranoia, and
delusions. The VA examiner diagnosed him with severe post-traumatic stress
disorder, alcohol
dependence, depression, and dysthymia, and assigned a Global Assessment of
Functioning score of
40. The examiner explained that Mr. Byrd suffered from "major impairment
in such areas as work,
school, family relations, judgment and mood," had no friends, and suffered
from "frequent panic
attacks and frequent passive suicidal thoughts," and opined that Mr. Byrd
was unemployable. R. at
147.
The examiner attributed the "worsening of his [post-traumatic stress
disorder]
symptomatology" to "his retirement, increased free time, and . . . current
events, such as the [w]ar
in Iraq and his response to the difference in civilian treatment of Iraqi
veterans compared to Vietnam
veterans." Id.
In December 2005, the regional office awarded Mr. Byrd staged disability
ratings for his
post-traumaticstressdisorder,assigninga30%disabilityratingfromOctober17,
2002,to November
13, 2005, and a 50% disability rating thereafter. In March 2007, the Board
denied Mr. Byrd's claim
for a further increase of the staged disability ratings assigned by the
regional office in December
2005. Mr. Byrd appealed the Board decision, and in October 2007, the Court
granted the parties'
3


joint motion for remand, which instructed the Board to "further address"
Mr. Byrd's "increase in
symptomatology [since] June 2002." R. at 88.
After further development, including a January 2008 Board decision and a
June 2008 joint
motion for remand granted by the Court, Mr. Byrd submitted an October 2008
private medical
opinion addressinghis increasedpost-
traumaticstressdisordersymptomsbetweenOctober2002and
November2005. Although the private physician did not personallyexamineMr.
Byrd,the physician
based his opinion on "a thorough review of available medical documentation
[,] including two [VA
e]xaminations dated March 13, 2003, and November14, 2005." R. at 28.
Specifically, the physician
opined that "Mr. Byrd has suffered from a severe and debilitating form of [
post-traumatic stress
disorder]," with a significant "history of and capacity for anger and
violence." R. at 29. The
physician concluded that Mr. Byrd's "level of severe anger[,] which has
been a documented and
significant part of his [post-traumatic stress disorder] since at least
2002[,] renders [him] severely
disabled and unemployable since 2002." Id.
In February 2009, the Board issued the decision currently on appeal, which
denied
entitlement to a disability rating in excess of 30% for post-traumatic
stress disorder for the period
of October17, 2002, to November13, 2005. Specifically, the Board reviewed
theevidence of record
and determined that Mr. Byrd's symptoms of post-traumatic stress disorder,
including "nightmares
and chronic sleeping problems, hypervigilance, anxiety, tension,
nervousness, moderate to severe
depression, avoidant behavior, anger and irritability, and intrusive
thoughts," "most closely
approximate the criteria for a 30[% disability] rating under [Diagnostic
Code] 9411." R. at 21. The
Board also referred the issue of entitlement to a total disability rating
based on individual
unemployability to the regional office and found that "the extent to which [
Mr. Byrd] might be
unemployable due to his [post-traumatic stress disorder], but does not
meet the criteria for a rating
in excess of 30[%] prior to November 14, 2005 . . . is properly considered
in [his] total disability
rating due to individual unemployab[i]lity claim . . ., which has been
referred to the [regional
office]."2
In addition, the Board noted that Mr. Byrd was competent to report his
auditoryand visual
2
There is no such thing as a freestanding claim for a total disability
rating based on individual unemployability.
A request for entitlement to a total disability rating based on individual
unemployability "involves an attempt to obtain
an appropriate rating for a disability or disabilities, either as part of
the initial adjudication of a claim, or . . . as part of
a claim for increased compensation." Rice v. Shinseki, 22 Vet.App. 447,
453-54 (2009).
4


hallucinations but "not competent to diagnose himself as being psychotic,
having gross impairment
in thought processes, or as being delusional due to a psychiatric
condition." R. at 19. Accordingly,
the Board determined that there was no competent medical evidence of
hallucinations or delusional
behavior. Finally, the Board discounted the October 2008 private medical
opinion because the
physician who rendered the opinion did not personally examine Mr. Byrd.
II. ANALYSIS
A. Board's Determination of Appropriate Disability Rating
Mr. Byrd first argues that the Board's determination that he was not
entitled to a disability
rating in excess of 30% for his post-traumatic stress disorder for the
period of October 17, 2002, to
November 13, 2005, was clearlyerroneous. Specifically, he contends that,
because the March 2003,
November 2005, and October 2008 medical opinions indicated that he was
unemployable, he is
necessarily entitled to a disability rating in excess of 30%. The Court
disagrees.
Mr. Byrd is correct that the regulation for rating mental disorders,
including post-traumatic
stressdisorder,speaksin termsof"[o]ccupationalandsocialimpairment." 38C.F.
R. §4.130(2010).
However, the fact that the medical opinions of record indicate that Mr.
Byrd is unemployable does
not compel the conclusion that he is automatically entitled to a 100%
schedular disability rating for
"[t]otal occupational and social impairment," or even to a disability
rating in excess of 30%, which
represents "[o]ccupational and socialimpairmentwithoccasionaldecrease[s]
in work efficiencyand
intermittent periods of inability to perform occupational tasks." Id. The
disability ratings outlined
in the rating schedule "represent . . . the average impairment in earning
capacity resulting from . . .
diseases and injuries and their residual conditions in civil occupations."
38 C.F.R. § 4.1 (2010).
Because the degrees of disability specified in the rating schedule are
generally"considered adequate
to compensate for considerable loss of working time from exacerbations or
illnesses proportionate
to the severity of the several grades of disability," id., the Board may
evaluate evidence of
unemployability and determine the appropriate schedular disability rating
to be assigned, including
a disability rating that is less than total. See Wood v. Derwinski, 1 Vet.
App. 190, 193 (1991) ("The
[Board] has the duty to assess the credibility and weight to be given to
the evidence.").
5


Here,theBoardconsideredtheevidenceofunemployabilityin
therecordanddeterminedthat
"the record does not reflect occupational and social impairment due to
. . . the symptoms listed in
the criteria for a 50[% disability] rating under [Diagnostic Code] 9411,
or any symptoms that could
be considered to approximate the severity [of] such symptomatology." R. at
17. This is precisely
the sort of factual finding that is contemplated by the rating schedule,
see 38 C.F.R. § 4.1, and that
is uniquely within the purview of the Board, see Wood, 1 Vet.App. at 193.
Moreover, to the extent
that Mr. Byrd asserts that the "uncontroverted entirety of the evidence"
compels the assignment of
a higher disability rating, Appellant's Br. at 14, this argument amounts
to nothing more than a
disagreement with the way the Board weighed the evidence. See Washington v.
Nicholson,
19 Vet.App. 362, 369 (2006) (holding that it is the Board's responsibility
to determine the
appropriate weight to be given to evidence). Although the Court may have
decided this issue
differently in the first instance, the Court may not substitute its
judgment for the determinations of
the Board on issues of material fact. Hersey v. Derwinski, 2 Vet.App. 91,
94 (1992). Accordingly,
the Court concludes that the Board's determination that Mr. Byrd was not
entitled to a disability
rating in excess of 30% for his post-traumatic stress disorder for the
period of October 17, 2002, to
November 13, 2005, was not clearly erroneous. See Smallwood v. Brown, 10
Vet.App. 93, 97
(1997).
In addition, the record does not support Mr. Byrd's assertion that the
Board declined to
consider evidence of unemployability in assigning a schedular disability
rating for post-traumatic
stress disorder because it was only "properly considered" in the context
of the referred issue of
entitlement to a total disability rating based on individual
unemployability. Appellant's Br. at 14
(quoting R. at 17). Rather, the Board explicitly considered this evidence
and determined that it was
insufficient to warrant the assignment of a disability rating greater than
30%. The Board then
explained "that the extent to which [Mr. Byrd] might be unemployable due
to his [post-traumatic
stress disorder], but does not meet the criteria for a [disability] rating
in excess of 30[%] . . . is
properly considered" in conjunction with the referred issue of entitlement
to a total disability rating
based on individual unemployability. R. at 17; see Previous DocumentLocklearNext Document v. Shinseki, __
Vet.App. __, __, No. 09-
2675, slip op. at 9, 2011 WL 474693 at *6 (Feb. 11, 2011) ("[T]he criteria
for entitlement to [a total
disability rating based on individual unemployability] differs from [a]
schedular rating [for a mental
6


disorder]."). Accordingly, the Court concludes that Mr. Byrd has failed
to carry his burden of
demonstrating error in this regard. See Hilkert v. West, 12 Vet.App. 145,
151 (1999).
B. Reasons or Bases
Mr. Byrd next contends that the Board's statement of reasons or bases for
its decision was
inadequate because the Board (1) ignored evidence of unemployability; (2)
treated the criteria in the
rating schedule as requirements for assigning a higher disability rating
in violation of Mauerhan v.
Principi, 16 Vet.App. 436, 442 (2002); (3) improperlydiscounted the
October 2008 private medical
opinion; (4)improperlyrejectedevidenceofauditoryandvisual hallucinations;(
5) failedto consider
the November 2005 VA medical examination; and (6) failed to consider
whether Mr. Byrd was
entitled to a temporary 100% disability rating pursuant to 38 C.F.R. § 4.
29.
In rendering its decision, the Board is required to provide a written
statement of the reasons
or bases for its "findings and conclusions[] on all material issues of
fact and law presented on the
record." 38 U.S.C. § 7104(d)(1). The statement must be adequate to enable
a claimant to understand
the precise basis for the Board's decision, as well as to facilitate
review in this Court. See Gilbert
v. Derwinski, 1 Vet.App. 49, 57 (1990). To comply with this requirement,
the Board must analyze
the credibility and probative value of the evidence, account for the
evidence that it finds to be
persuasive or unpersuasive, and provide the reasons for its rejection of
any material evidence
favorable to the claimant. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995),
aff'd per curiam,
78 F.3d 604 (Fed. Cir. 1996) (table). The Board may commit error requiring
remand when it fails
to provide an adequate statement of its reasons or bases. See Gilbert, 1
Vet.App. at 57.
1. Evidence of Unemployability
First, Mr. Byrd argues that the Board's statement that evidence of
unemployability was only
properlyconsidered in the context of the referred issue of entitlement to
a total disabilityratingbased
on individual unemployability and not with regard to the assignment of a
schedular disability rating
rendered the Board's statement of reasons or bases inadequate. As
discussed in Part II.A above, this
argumentis premisedonMr.Byrd'smischaracterization oftheBoard's statement
and, therefore,fails
for the same reasons as stated above.
7


2. Mauerhan v. Principi
Second, Mr. Byrd argues that the Board treated the criteria outlined in §
4.130 as
requirements for assigning a higher disability rating in violation of
Mauerhan, 16 Vet.App. at 442.
Specifically, he contends that the Board's reasons or bases for its
decision is inadequate because "it
is difficult to tell from the decision on appeal whether or to what extent
the Board applied the Court's
holding in Mauerhan." Appellant's Br. at 19. The Court disagrees.
In Mauerhan, the Court explained that "the factors listed in the rating
formula [for mental
disorders] are 'examples' of conditions that warrant particular ratings,"
which were intended to assist
the adjudicator in differentiating between levels of disability, a task
that would be "extremely
ambiguous" without the listed factors. 16 Vet.App. at 442. However, the
Court made clear that "any
suggestion that the Board was required, in complying with the regulation,
to find the presence of all,
most, or even some, of the enumerated symptoms is unsupported by a reading
of the plain language
of the regulation." Id. Thus, this "list of examples[] provides guidance
as to the severity of
symptoms contemplated for each rating, in addition to permitting
consideration of other symptoms,
particular to each veteran and disorder, and the effect of those symptoms
on the claimant's social and
work situation." Id.
Here, the Board recited the rating criteria for assigning a 30%, 50%, 70%,
and 100%
disability rating for post-traumatic stress disorder. However, contrary to
Mr. Byrd's contention, the
Board did not mechanically apply the list of factors at each level as if
they were prerequisites to the
next higher disability rating. Rather, the Board set forth Mr. Byrd's
symptoms and diagnoses as
reflected in the evidence of record (excluding the November 2005 VA
medical opinion, see Part
II.B.5 below), which included symptoms that are listed in the rating
criteria in § 4.130 and others that
are not, such as Mr. Byrd's anger and his inability to cry. The Board then
evaluated all of his
symptoms and determined that they "most closely approximate the criteria
for a 30[% disability]
rating." R. at 21. Based on the foregoing, the Court concludes that the
Board's actions in this case
comply with the Court's holding in Mauerhan and, therefore, the Board's
statement of reasons or
bases is not inadequate in that regard. See Gilbert, 1 Vet.App. at 57; see
also Hilkert, 12 Vet.App.
at 151.
8


3. October 2008 Private Medical Opinion
Third, Mr. Byrd asserts that the Board improperly discounted the October
2008 private
medical opinion because the physician did not personally examine him.
Although Mr. Byrd is
correct that retrospective medical opinions can be probative in certain
instances, see, e.g., Chotta v.
Peake, 22 Vet.App. 80 (2008), the Board is permitted to favor one opinion
over another provided
that it gives an adequate statement of its reasons and bases for doing so.
See Simon v. Derwinski,
2 Vet.App. 621, 622 (1992). Here, the Board explained that it ascribed
more probative value to the
March2003andNovember2005VAmedicalopinions that,
unliketheOctober2008privatemedical
opinion, included personal evaluations of Mr. Byrd conducted
contemporaneous to the staged rating
period at issue in this case. Such an assessment of evidence is within the
Board's purview as
factfinder, see Washington, 19 Vet.App. at 369, and the Court concludes
that the Board's statement
explaining its reasons or bases for discounting the October 2008 private
medical opinion is adequate
to facilitate judicial review and to enable Mr. Byrd to understand the
precise basis for this
determination. See Gilbert, 1 Vet.App. at 57.
4. Hallucinations
Fourth, Mr. Byrd argues that the Board improperly rejected his reports of
experiencing
auditory and visual hallucinations. The Court agrees.
In September 2005, Mr. Byrd reported experiencing unspecified
auditoryhallucinations and
"visual hallucination[s] of seeing shadows while driving at night." R. at
195-96, 198. The Board
explained that auditory and visual hallucinations demonstrated post-
traumatic stress disorder
symptoms "more severe than a 30[%] disability rating indicates" and
acknowledged that Mr. Byrd
was competent to report the occurrence of such hallucinations. R. at 19.
However, the Board stated
that Mr. Byrd was "not competent to diagnose himself as being psychotic,
having gross impairment
in thought processes, or as being delusional due to a psychiatric
condition." Id. The Board therefore
concluded that the "competent medical evidence of record reflects no
hallucinations or delusional
behavior, much less persistent delusions or hallucinations," and that "
even considering [Mr. Byrd]'s
reported symptoms of seeing and hearing things in September 2005, such
reports . . . do not, without
competent medical evidence indicating that [he] had delusions or
hallucinations related to post-
traumatic stress disorder, warrant a disability rating in excess of 30[%]."
R. at 19-20.
9


This explanation is deficient for a number of reasons. First, the rating
criteria for a 100%
disability rating does not require a diagnosis of psychosis or a
delusional psychiatric condition;
rather, "persistent delusions or hallucinations" are included in a
nonexhaustive list of symptoms that
demonstrate "[t]otal occupational and social impairment." 38 C.F.R. § 4.
130; see Mauerhan,
16 Vet.App. at 442 (holding that the phrase "such symptoms as" in § 4.130
indicates that the listed
criteria "are not intended to constitute an exhaustive list, but rather
are to serve as examples of the
type and degree of the symptoms, or their effects, that would justify a
particular rating"). Similarly,
"gross impairment in thought processes or communication" is a separate
entry on this list and,
therefore, Mr. Byrd's lack of a diagnosis of gross impairment in thought
processes should not affect
the Board's evaluation of his reported hallucinations. Id. In any event,
the Board admitted, on the
one hand, that Mr. Byrd was competent to report his hallucinations, but
required, on the other hand,
competent medical evidence to substantiate these hallucinations. This is
contrary to Jandreau v.
Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007), which held that lay
testimony is competent
evidence of observable symptoms. See also Waters v. Shinseki, 601 F.3d
1274, 1277 (Fed. Cir.
2010) (noting that "medical evidence" and "competent evidence" are "
separate, although perhaps
related, evidentiary guidelines").
Moreover,theBoardseeminglyrejectedMr.
Byrd'sreportedhallucinationsbecausetheywere
not "persistent," as described in the rating criteria for a 100%
disability rating. 38 C.F.R. § 4.130.
However, although auditory and visual hallucinations are not explicitly
mentioned in the criteria for
any lesser disability rating, the Board is not precluded from considering
evidence of occasional
hallucinations in concert with the assignment of a lesser disability
rating. See Mauerhan,
16 Vet.App. at 442 (explaining that "the factors listed in the rating
formula are 'examples' of
conditions that warrant particular ratings"). Consequently, the Court
concludes that the Board's
statement of reasons or bases is inadequate and remand is therefore
warranted. See Gilbert,
1 Vet.App. at 57.
5. November 2005 VA Medical Examination
Fifth, Mr. Byrd contends that the Board failed to consider the November
2005 VA medical
opinion. The Secretaryconcedes that the Board did not discuss this medical
opinion, but asserts that
the Board was not required to discuss it because it was not relevant to
the issue of the severity of Mr.
10


Byrd's post-traumatic stress disorder prior to November 2005. The
Secretary's argument is
unpersuasive.
The VA examiner began his medical opinion by discussing Mr. Byrd's "
psychosocial
adjustment since the last exam[ination]" in March 2003. R. at 145.
Specifically, Mr. Byrd reported
"an increase in his [post-traumatic stress disorder symptomatology" since
his retirement in June
2002, including panic attacks, anxiety, depression, irritability, chronic
difficulties with anger
including sudden outbursts, intolerance, poor motivation, and passive
thoughts of death one or two
times per week. R. at 145-46. Mr. Byrd also explained that, since his last
examination in March
2003,hehadbecome"averyangryindividual"who"iscapableofgreat violence,
includinghomicide
when provoked" and "is quick to anger with only minor provocation." R. at
145. The examiner then
attributedMr.Byrd's increasedpost-traumaticstressdisordersymptoms to "
hisretirement,increased
free time, and . . . current events, such as the [w]ar in Iraq and his
response to the difference in
civilian treatment of Iraqi veterans compared to Vietnam veterans," all of
which occurred before
November 2005.3
R. at 147.
Accordingly, the November 2005 VA medical examination contains potentially
favorable
evidence that could support a disability rating in excess of 30% for Mr.
Byrd's post-traumatic stress
disorder for the period of October 17, 2002, to November 13, 2005.
Although "a discussion of all
evidence is not required when . . . the Board has supported its decision
with thorough reasons or
bases regarding the relevant evidence," Dela Cruz v. Principi, 15 Vet.App.
143, 149 (2001), the
Court concludes that the Board's failure to explain whyit rejected this
potentiallyfavorable evidence
renders its statement of reasons or bases inadequate. See Caluza, 7 Vet.
App. at 506.
6. Temporary Total Disability Rating
Sixth, Mr.Byrd asserts that the Board's statement ofreasons
orbaseswasinadequatebecause
the Board did not address the issue of entitlement to a temporary 100%
disability rating pursuant to
38 C.F.R. § 4.29. This regulation, in pertinent part, provides: "A total
disability rating (100 percent)
will be assigned . . . when it is established that a service-connected
disability has required hospital
3
The Court takes judicial notice of the fact that U.S. military action in
Iraq began on March 20, 2003. See Smith
v. Derwinski, 1 Vet.App. 235, 238 (1991) ("Courts may take judicial notice
of facts not subject to reasonable dispute."
(citing FED. R. EVID. 201(b))).
11


treatment in a Department of Veterans Affairs or an approved hospital for
a period in excess of 21
days." 38 C.F.R. § 4.29 (2010). Although the Secretary argues that this
issue is being raised for the
first time on appeal, the record reveals that Mr. Byrd was hospitalized at
a VA medical from
November 18, 2002, to December 30, 2002, a period exceeding 21 days.
Accordingly, the Court
concludes that entitlement to a temporary total disability rating under §
4.29 was reasonably raised
by the record and the Board was, therefore, obligated to consider it. See
38 U.S.C. § 7104(a);
Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991).
The Court acknowledges the Secretary's argument that the Board's failure
to consider
entitlement to benefits under § 4.29 was harmless error because Mr. Byrd
was hospitalized for
alcohol dependence and not for treatment of post-traumatic stress disorder,
which had not been
diagnosed at the time. However,thereasonforMr. Byrd's hospitalization is
unclear from the record.
See R. at 317-18 (discussing Mr. Byrd's history of substance abuse and
psychiatric history, noting
that Mr. Byrd "had a hard time after returning from Vietnam," and listing
his "post-traumatic stress
disorder symptoms"). Moreover, Mr. Byrd filed a claim for VA benefits for
post-traumatic stress
disorderinOctober2002,amonth beforehis hospitalization,
andwassubsequentlyawardedbenefits
effective October 17, 2002. Because the Board made no factual findings on
the matter, and because
the Court "is not a trier of fact and is not in a position to make . . .
factual determination[s],"
Zevalkink v. Brown, 102 F.3d 1236, 1244 (Fed. Cir. 1996), the Court will
remand the matter to the
Board for adjudication in the first instance. See also Hensley v. West,
212 F.3d 1255, 1263 (Fed. Cir.
2000) (explaining that "appellate tribunals are not appropriate fora for
initial fact finding").
C. Compliance with the Court's October 2007 Remand
Finally, Mr. Byrd argues that the Board failed to ensure compliance with
the Court's October
2007 remand because the Board failed to discuss the November 2005 VA
medical examination.
Although the parties dispute what the joint motion for remand actually
instructed the Board to do,
the Court has already concluded that the Board committed error in not
discussing this medical
examination. See Part II.B.5 above. Consequently, because the Court will
remand the Board
decision for a new statement of reasons or bases, including consideration
of the November 2005 VA
medical examination, there is no need to further address this particular
allegation of error.
12


III. CONCLUSION
Uponconsideration oftheforegoing,theFebruary2,2009,
BoarddecisionisVACATEDand
the matter REMANDED for readjudication consistent with this decision.
DATED: April 26, 2011
Copies to:
Glenn R. Bergmann, Esq.
VA General Counsel (027)
13