VAOIG Report 12-00900-168, VA Mental Health Appointment Times Not Accurate

Full article at: Report: VA overstates how fast it provides mental health care to veterans By Steve Vogel, The Department of Veterans Affairs has greatly overstated how quickly it provides mental-health care for veterans, according to an inspector general’s report released Monday. Contrary to VA claims that 95 percent of first-time patients seeking mental-health care in 2011 received an evaluation within the department’s goal of 14 days, just under half were seen in that time frame, the report found. A majority waited about 50 days on average for a full evaluation. A similar claim that 95 percent of new patients in 2011 got appointments to begin treatment within 14 days of their desired date was also far off the mark; the report from the VA Office of Inspector General estimated that 64 percent of patients did; the rest waited on average 40 days. ================================= VAOIG Report: Review of Veterans’ Access to Mental Health Care Report Link: http://www.va.gov/oig/pubs/VAOIG-12-00900-168.pdf Report Number: 12-00900-168 Summary: Congress and the VA Secretary requested the OIG determine how accurately the Veterans Health Administration records wait times for mental health services for both new patients and established patients visits and if the wait time data VA collects is an accurate depiction of the veteran’s ability to access those services. VHA policy requires all first-time patients referred to or requesting mental health services receive an initial evaluation within 24 hours and a more comprehensive diagnostic and treatment planning evaluation within 14 days. The primary goal of the initial 24-hour evaluation is to identify patients with urgent care needs and to trigger hospitalization or the immediate initiation of outpatient care when needed. One method VHA uses to monitor access to mental health services is to calculate patients’ waiting times by measuring the elapsed days from the desired dates of care to the dates of the treatment appointments. Medical facility schedulers must enter the correct desired dates of care in the system to ensure the accuracy of this measurement. VHA’s goal is to see patients within 14 days of the desired dates of care. VHA does not have a reliable and accurate method of determining whether they are providing patients timely access to mental health care services. VHA did not provide first-time patients with timely mental health evaluations and existing patients often waited more than 14 days past their desired date of care for their treatment appointment As a result, performance measures used to report patient’s access to mental health care do not depict the true picture of a patient’s waiting time to see a mental health provider. The Under Secretary for Health concurred with the OIG’s findings and recommendations and stated VHA is unequivocally committed to providing Veterans the best care possible.

Single Judge Application, Stressors Need Not Cause Physical Injury, Buczynski v. Shinseki, 24 Vet.App. 221, 224 (2011)

Excerpt from decision below: "Mr. Page consistently alleged that he suffered personal assaults by a drill instructor, which the Board noted in its decision. R. at 21. Without discussing 38 C.F.R. § 3.304(f)(5), the Board discredited the notion that the in-service personal assaults Mr. Page endured amounted to a stressor. First, the Board stated that Mr. Page failed to show treatment for any injuries from these assaults. Id. The regulation does not require that a servicemember be injured in a personal assault for the assault to constitute a stressor; instead it states that medical records are a type of alternative evidence that may be used to prove an in-service assault occurred. The Board's treatment of the absence of medical records as negative evidence, therefore, is an inappropriate application of the regulation. See Buczynski v. Shinseki, 24 Vet.App. 221, 224 (2011) ("[T]he Board may not consider the absence of evidence as substantive negative evidence."). Next, the Board stated that Mr. Page "admits that [the assault] was not directed solely at him, but that other Marines were treated the same." Id. The Court is unconvinced by the Board's logic that because other Marines were also assaulted that Mr. Page's assault somehow ceases to be stressful. Additionally, the Board cited "[t]he fact that none of the VA examiners gave credence to this alleged stressor speaks to its inadequacy." Id. The record, however, does not support that characterization of the evidence. None of the medical reports in the record stated that Mr. Page's in-service personal assaults lacked credence. See R. at 60-64, 902. Finally, the Board stated that the assault could not meet the DSM-IV definition of a PTSD stressor because Mr. Page "has not reported that he feared for his life." R. at 21. As stated above, fear for one's life is not required by DSM-IV. All the reasons provided for the Board's determination that Mr. Page's in-service personal assault did not amount to a stressor are, therefore, inadequate. =========================== ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS No. 11-0684 GEORGE E. PAGE, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before DAVIS, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. DAVIS, Judge: U.S. Marine Corps veteran George E. Page appeals through counsel from a January 21, 2011, Board of Veterans' Appeals (Board) decision in which the Board first determined that VA had satisfied its duty to assist Mr. Page in substantiating his claim and then denied service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD) because the record did not reveal a current diagnosis of PTSD. Mr. Page contests only the Board's findingastoPTSD, andpresents noarguments regardingotherpsychiatricdisorders. Forthereasons stated below, the Court will set aside the January 2011 Board decision and remand the matter for further proceedings consistent with this decision. I. ANALYSIS A. Inadequate Medical Examination Mr. Page first argues that the Board relied on an inadequate August 2010 VA medical examination. He alleges the medical examiner did not follow guidelines set forth in the Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV). Service connection for PTSD requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms andanin-servicestressor;and(3) crediblesupportingevidencethattheclaimedin-service stressor occurred. 38 C.F.R. § 3.304(f) (2011). "If the diagnosis of a mental disorder does not conform to DSM-IV or is not supported by the findings on the examination report, the rating agency shall return the report to the examiner to substantiate the diagnosis." 38 C.F.R. § 4.125(a) (2011). The Board found the August 2010 VA medical examination the most probative evidence in the record, and declared all other medical examination reports in the record inadequate. Record (R.) at 22. In the August 2010 report, the examiner stated that the two stressors Mr. Page consistently asserted as causes of his PTSD, witnessing the death of a friend in bootcamp and being informed that his cousin was killed in Vietnam, "don't meet stressor criteri[a]. There was no threat to physical integrity, pt's [patient's] life was not threatened and he didn't witness these incidents." R. at 63. Initially, the Court notes the VA medical examiner's statement that Mr. Page did not witness the death of his friend in boot camp is not supported by the record. R. at 60-61, 67, 133, 362, 527, 529, 537, 567, 1160; see Reonal v. Brown, 5 Vet.App. 458, 460-61 (1993) ( medical opinion based on an inaccurate factual premise has no probative value). The Court additionally notes that elsewhere in the same examination report, the VA examiner stated that Mr. Page "meets stressor criterion based on witnessing the death of his friend." R. at 64. Next, the Court agrees with Mr. Page that the VA medical examiner's statement that a stressor must involve threat to the physical integrity of the claimant is a misstatement of DSM-IV criteria. According to the DSM-IV, a stressor occurs when "the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others [and] the person's response involved intense fear, helplessness or horror." DSM-IV at 427-28 (emphasis added). The examiner failed to explain why Mr. Page being confronted with the event that his cousin had been killed in action did not satisfythis definition. Here, neither this Court nor the Board can draw a medical conclusion as to whether these facts, which appear to satisfythe DSM-IV criteria, indeed do so, and it is not clear whythe examiner used the incorrect definition of a stressor in rendering her diagnosis. It is the Board's responsibility to ensure that a medical opinion is "supported bythe findings on the examination report." 38 C.F.R. § 4.125(a). Remand is required for the Board to obtain a new medical examination. 2 In addition, the Court notes that the examiner found Mr. Page did not " currently" have PTSD but had a history of PTSD. R. at 64. A "current" disability exists for the purposes of service connection if the diagnosed disability is present at any time during the pendency of the claim, even if the disability resolves prior to adjudication. McClain v. Nicholson, 21 Vet.App. 319 (2007). In such a case, staged ratings may be appropriate. See id. at 321; Fenderson v. West, 12 Vet.App. 119, 126 (1999). The Board failed to determine when Mr. Page satisfied the criteria for PTSD. Therefore, on remand, the Board must also clarifythe period for which the examiner determined that Mr. Page had PTSD and consider staged ratings. See id. B. Application of 38 C.F.R. § 3.304(f)(3) Mr. Page next argues that the Board erred in not applying 38 C.F.R. § 3. 304(f)(3) to his claim that the death of his cousin was a stressful experience. This regulatory subsection eliminates the requirement that evidence corroborate a claimed in-service stressor if a claimed stressor is related to the veteran's fear of hostile military or terrorist activity. See 75 Fed. Reg. 39,843-01 (2010) (codified at 38 C.F.R. § 3.304(f)(3)). The regulation defines "fear of hostile military or terrorist activity"asacircumstancewhere"aveteranexperienced,witnessed, orwasconfrontedwith anevent or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from . . . incoming artillery, rocket, or mortar fire . . . and theveteran's responseto theeventorcircumstanceinvolvedapsychologicalorpsycho-physiological state of fear, helplessness, or horror." 38 C.F.R. § 3.304(f)(3) (2011). The Board did not discuss this regulation in its decision. The Secretary, in his brief, alleges that this regulation was intended to apply only to veterans serving in combat environments. The requirement that the veteran must have engaged in combat with the enemy is present in a separate subsection of the regulation, 38 C. F.R. § 3.304(f)(2), which refers to circumstances in which "the veteran engaged in combat with the enemy." However, such a requirement is not contained in 38 C.F.R. § 3.304(f)(3), which contemplates only "fear of hostile military or terrorist activity." Additionally, the Federal Register does not support the Secretary's assertion. See 75 Fed. Reg. 39,843-01 (2010). The comments accompanying 38 C.F.R. § 3.304(f)(2) state: "The rule has no geographic requirement and is not limited to service in a combat zone or on land. Rather, it 3 applies to all persons who served in active military, naval or air service." Id. at 3. The comments also state that "'circumstance' means 'a condition, fact, or event'" and that "fear may result from conditions to which the veteran was exposed during service." Id. Furthermore, "[t]he regulation is not limited to events or circumstances perpetrated by a foreign enemy." Id. at 4. Mr.Pageassertedthatwhilehewasonactiveduty, astaffnoncommissionedofficerinformed him that his cousin1 had been killed in Vietnam by mortar fire. R. at 516, 527. It appears then that Mr. Page was indeed confronted with an event or circumstance that involved actual death to another from incoming mortar fire, as described in 38 C.F.R. § 3.304(f)(3). The Board noted in its decision that after learning of his cousin's death, Mr. Page became enraged and retrieved a weapon to kill the Marine who had informed him of the death because the Marine was laughing about it. R. at 10. It is not the role of this Court to determine whether that reaction evidenced psycho-physiological fear, helplessness, or horror such that 38 C.F.R. § 3.304(f)(3) is satisfied. The Board, therefore, must consider the application of this regulation on remand. C. Reasons or Bases 1. 38 C.F.R. 3.304(f)(5) On review of the Board decision, the Court notes various additional reasons-or-bases deficiencies. On remand the Board must address these issues. In its decision, the Board did not discuss the applicabilityof 38 C.F.R. § 3.304(f)(5), relevant to PTSD based on in-service personal assaults. This regulation states: "If a [PTSD] claim is based on in-service personal assault, evidence from sources other than the veteran's service records may corroboratetheveteran's account ofthestressorincident." 38C.F.R.§3.304(f)( 5). Examplesofsuch evidence include, but are not limited to, records from hospitals or physicians, and evidence of behavior changes following the claimed assault. Id. The Board appears unconvinced that the deceased Marine in question was actually Mr. Page's cousin. The Board stated: "The Veteran claims this was his cousin; however, he has not submitted any documentation to support that assertion." R. at 20. The Court notes, however, that the deceased Marine had the same last name as Mr. Page, that the circumstances of his death as documented on the Vietnam Veteran's Memorial information contained in the record match those recounted by Mr. Page, and that VA previously acknowledged in a memorandum for the record that it had "verified the death of his cousin." R. at 496, 516. 1 4 Mr. Page consistently alleged that he suffered personal assaults by a drill instructor, which the Board noted in its decision. R. at 21. Without discussing 38 C.F.R. § 3.304(f)(5), the Board discredited the notion that the in-service personal assaults Mr. Page endured amounted to a stressor. First, the Board stated that Mr. Page failed to show treatment for any injuries from these assaults. Id. The regulation does not require that a servicemember be injured in a personal assault for the assault to constitute a stressor; instead it states that medical records are a type of alternative evidence that may be used to prove an in-service assault occurred. The Board's treatment of the absence of medical records as negative evidence, therefore, is an inappropriate application of the regulation. See Buczynski v. Shinseki, 24 Vet.App. 221, 224 (2011) ("[T]he Board may not consider the absence of evidence as substantive negative evidence."). Next, the Board stated that Mr. Page "admits that [the assault] was not directed solely at him, but that other Marines were treated the same." Id. The Court is unconvinced by the Board's logic that because other Marines were also assaulted that Mr. Page's assault somehow ceases to be stressful. Additionally, the Board cited"[t]he fact that none of the VA examiners gave credence to this alleged stressor speaks to its inadequacy." Id. The record, however, does not support that characterization of the evidence. None of the medical reports in the record stated that Mr. Page's in-service personal assaults lacked credence. See R. at 60-64, 902. Finally, the Board stated that the assault could not meet the DSM-IV definition of a PTSD stressor because Mr. Page "has not reported that he feared for his life." R. at 21. As stated above, fear for one's life is not required by DSM-IV. All the reasons provided for the Board's determination that Mr. Page's in-service personal assault did not amount to a stressor are, therefore, inadequate. Furthermore, although evidence is present in the record of Mr. Page's change in behavior duringservice, the Board failed to discuss this evidence as it relates to proof of an in-service personal assault. See R. at 61-62 (in-service counseling records reflecting disciplinary problems six months after boot camp), 805 (statement of staff sergeant detailing Mr. Page's poor work performance and his request for a discharge nine months after boot camp). The Board provided inadequate reasons or bases for its determination that the assaults Mr. Page suffered in service could not have amounted to a PTSD stressor. On remand, the Board must reevaluate Mr. Page's claim in accordance with 38 C.F.R. § 3.304(f)(5). See Brannon v. West, 5 12 Vet.App. 32, 34 (1998) ("The Board is required to adjudicate all issues reasonably raised by a liberal reading of the appellant's substantive appeal, including all documents and oral testimony in the record prior to the Board's decision."). Mr. Page also argues that the Board erred in finding that VA satisfied its duty to notify him of the law and types of evidence he may submit to substantiate his claim under 38 C.F.R. § 3.304(f)(5). Mr. Page now is aware of the law and evidence he may submit on remand to substantiate his claim. Therefore the Court need not address this argument in detail. See Best v. Principi, 15 Vet.App. 18, 20 (2001). 2. Lay Statements The Board additionally provided inadequate reasons or bases for finding Mr. Page's statements lacking in credibility. R. at 22. The sole basis advanced for the Board's finding was that Mr. Page's statements were inconsistent. The record does not support this finding. First, the Board took issue with Mr. Page's account of his behavior after he was laughingly informed of his cousin's death. He related that his reaction was to retrieve a rifle from his barracks in order to kill the Marine who laughed, but he was thwarted by another Marine who hit him over the head to stop him. Mr. Page recounted that the next thing he knew, he woke up in the brig. The Board decision took issue with the fact that there is no documentation of Mr. Page's admittance to the brig around the time of his cousin's death. R. at 22-23. The Board's reasoning and use of negative evidence in this respect is flawed. The Court takes judicial notice that noncommissioned officers and those of higher rank have the authority to apprehend and take into custody servicemembers involved in "quarrels, frays or disorders" until properauthoritieshavebeennotified. MANUALFOR COURTS-MARTIAL,ch.V,sec.19(b),( d)(1969); see also Brannon v. Derwinski, 1 Vet.App. 314, 316 (1991) (courts may take judicial notice of facts of universal notoriety). The Manual for Courts-Martial does not require a record to be kept of such apprehension or custody as it is clearly contemplated as a temporary safety measure. Id. Based on the circumstances described by Mr. Page, it would appear that another Marine exercised this authority over him, and the absence of a record of the apprehension and custody does not therefore weigh against Mr. Page's account of the events. 6 Next, the Board asserted that Mr. Page's statement that he enjoyed the military was contradicted by his military record. R. at 23. Preliminarily, the Court notes that whether a veteran "enjoyed" the military is an exceptionally subjective criterion on which to determine a veteran's credibility; however, the Board did make an indirect finding in the process of this analysis. The Board discredited Mr. Page's statement to a VA medical examiner in 1995 that he enjoyed military service until his cousin's death by alleging that his dissatisfaction with the Marine Corps started before his cousin's death. Id. The Board pointed out that Mr. Page's cousin was killed in September 1969 and that five months prior, in April 1969, Mr. Page sought counseling with a chaplain because "he had been dissatisfied with military life, and he saw the psychiatrist later that month and stated that he wanted out and was not going to do anything until he received a discharge." Id. The Board thus indirectly found that Mr. Page's cousin's death could not be a legitimate stressor for PTSD purposes because Mr. Page's behavioral changes (dissatisfaction with the Marine Corps) started before that event. The Board overlooked the fact that Mr. Page had consistently reported other stressors in addition to his cousin's death, namely that he witnessed the death of a friend in boot camp and was subjected to personal assaults in boot camp. The record reflects that Mr. Page attended boot camp in November 1968, approximately five months prior to his noted April 1969 " dissatisfaction" with the Marine Corps. R. at 1177. Also, the first disciplinary action taken against Mr. Page was six months after his experiences in boot camp, in May 1969. R. at 508. Mr. Page's behavioral change, therefore,postdatedhis claimed boot campstressors,eveniftheydid not postdatehiscousin's death. The first notation in the record that Mr. Page enjoyed serving in the military up until the point his cousin was killed is dated 1995. R. at 1144. Whether Mr. Page recalled the exact point he became dissatisfied with his service in the Marine Corps some 26 years later is an extremely tenuous reason for discrediting his statements, and, as the Court states above, the objective evidence actually supports that Mr. Page exhibited behavioral changes followingtwo stressful incidents in boot camp. Next, the Board stated that Mr. Page's recounting of in-service stressors is also inconsistent, further impugning his credibility. At various times between 2002 and 2010, Mr. Page recounted the death of his friend in boot camp during a training run and the death of another Marine. The death of the second Marine was noted by one VA medical examiner as occurring while the Marine was on 7 leave, and bya separate VA medical examiner as occurring "during drills." R. at 23-24. It is unclear from the medical reports whether the two Marines are in fact the same person. R. at 60, 133. Absent a more precise identification of the two Marines, the Board's reasoning that Mr. Page was inconsistent in these reports is inadequate. The Board next relied on an inconsistency in the record pertaining to how Mr. Page's cousin died in Vietnam. The Board pointed out that Mr. Page reported that his cousin was "blown up" during an enemymortar attack, but a March 2002 VA examination report stated that his cousin "died of exposure." R. at. 23. Given that on every occasion that Mr. Page described his cousin's death in his own words (during the Board hearing and in his handwritten statements in support of his claim) he consistentlystated his cousin was "blown up," the inconsistencyappears to be with the report, and not Mr. Page. R. at 527, 529, 732, 1039-40, 1159. The Board also takes issue with the fact that the August 2010 VA medical examination report did not note the death of Mr. Page's cousin as a stressor. Such minor inconsistencies are an inadequate reason for declaring a veteran not credible. See 38 U.S.C. § 7104(d)(1). The last reason advanced by the Board for Mr. Page's incredibility is asserted evidence that he seeks secondary gain. The Board stated that "there is evidence in the record that he believes he can get increased compensation from VA if he were to obtain" a PTSD diagnosis. R. at 25. A review of the record reveals the contrary, however. In 1998, VA granted Mr. Page entitlement to a permanent and total disabilityevaluation for non-service-connected pension ( R. at 544) and the only information contained in the record states that Mr. Page denied that a PTSD diagnosis "would have any effect on his benefits status." R. at 94. D. VA Duties Lastly, Mr. Page contests the Board's conclusion that VA satisfied its duty to assist him because VA did not get jail records from the city of Oceanside, California, regarding an assault that he suffered off base. In his brief, the Secretary asserts that it is unclear that the assault actually occurred. Because the Court is remanding Mr. Page's claim for further proceedings, Mr. Page will have the opportunity to adequately identify the records he seeks VA to obtain. See 38 C.F.R. § 3.159(c)(1) (2011). 8 II. CONCLUSION On consideration of the foregoing, the Court SETS ASIDE the Board's January 21, 2011, decision and REMANDS the matter to the Board for further proceedings consistent with this decision. A final decision by the Board following the remand herein ordered will constitute a new decision that, if adverse, may be appealed to this Court on the filing of a new Notice of Appeal with the Court not later than 120 days after the date on which notice of the Board's new final decision is mailed to Mr. Page. See Marsh v. West, 11 Vet.App. 468, 472 (1998). DATED: April 23, 2012 Copies to: Nicholas L. Phinney, Esq. VA General Counsel (027) 9

Single Judge Application, Parrish v. Shinseki, 24 Vet.App. 391, 398 (2011); Board Error when Failure to Address Issue Raised

Excerpt from decision below: "Further, although Mr. Ramirez-Arce argues that the Board should have addressed this anemia issue, the record of proceedings does not reflect that he raised this issue to the Board. See (finding no error where Board did not address issue not raised by appellant or reasonably raised by the record). ============================ ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS No. 10-3678 ORLANDO RAMIREZ-ARCE, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before KASOLD, Chief Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. KASOLD, Chief Judge: Veteran Orlando Ramirez-Arce appeals through counsel that part of an October 4, 2010, decision of the Board of Veterans' Appeals (Board) that (1) denied a disability rating in excess of 10% for hemorrhoids, (2) denied entitlement to service connection for an upper back disorder, and (3) denied entitlement to service connection for erectile dysfunction (ED). Mr. Ramirez-Arce argues that the Board clearly erred in finding that the Secretary satisfied his duty to assist, and provided inadequate reasons or bases for its determinations. The Secretary agrees that the Board provided inadequate reasons or bases for the ED matter, but disputes Mr. Ramirez-Arce's remaining contentions. Single-judge disposition is appropriate. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons stated below, that part of the Board decision denying a disability rating in excess of 10% for hemorrhoids will be affirmed, and that part of the decision denying entitlement to service connection for an upper back disorder and ED will be set aside and the matters remanded for further adjudication. The record does not support Mr. Ramirez-Arce's arguments regarding the hemorrhoids matter. The Board found that a 20% disability rating was unwarranted because the 2008 medical report noted hemorrhoids with "frequent" bleeding (Record (R.) at 272; see 38 C.F.R. § 4.114, Diagnostic Code (DC) 7336 (2011) (requirement for a 10% rating)), not hemorrhoids with "persistent bleeding and with secondary anemia, or with fissures" (DC 7336 (requirement for a 20% rating)). Although Mr. Ramirez-Arce asserts that the 2008 report is inadequate because it did not address anemia, the Secretary correctly notes that even a finding of anemia would not meet the schedular requirement for a 20% rating without a finding of persistent bleeding. Although Mr. Ramirez-Arce responds that a finding of anemia could warrant a 20% ratingbased on 38 C.F.R. § 4.7 (2011) ("Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating."), he fails to explain how a finding of anemia without persistent bleeding would create "a question as to which of two evaluations shall be applied." Id.; see Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (appellant bears burden of demonstrating error on appeal). Further,although Mr.Ramirez-Arce argues that the Board should have addressed this anemia issue, the record of proceedings does not reflect that he raised this issue to the Board. See Parrish v. Shinseki, 24 Vet.App. 391, 398 (2011) (finding no error where Board did not address issue not raised by appellant or reasonably raised by the record). In fact, the record reflects that he acknowledged his lack of anemia. See R. at 46 (stating, in his "Informal Hearing Presentation" to the Board, that he "does not presently exhibit secondary anemia or fissures"). Accordingly, Mr. Ramirez-Arce fails to demonstrate clear error in the Board's duty-to-assist determination or inadequate reasons or bases for its rating determination on this matter. See Nolen v. Gober, 14 Vet.App. 183, 184 (2000) (Board determination that Secretary satisfied the dutyto assist is reviewed under the "clearly erroneous" standard); Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) ("'A finding is clearly erroneous when . . . the reviewing court on the entire evidence is left with the definite and firmconvictionthat a mistake has been committed.'"(quoting United States v. U.S. GypsumCo.,333 U.S. 364, 395 (1948))); see also Hilkert, supra; Allday v. Brown, 7 Vet. App. 517, 527 (1995) (holding that the Board's statement "must be adequate to enable claimant to understand the precise basis for the Board's decision, as well as to facilitate review in this Court"). On the other hand, the record supports Mr.Ramirez-Arce's argumentthattheBoard provided inadequate reasons or bases for denying service connection for a back condition. The Board acknowledged a 1989 psychiatric report discussing the interplay of his back condition and post- 2 traumatic stress disorder (PTSD), but found that the report "did not specifically relate" the back condition to PTSD and therefore that there was "no medical evidence linking" the back condition to PTSD. R. at 14, 15. However, the Board's interpretation of that report is not understandable in light of the report's statement that Mr. Ramirez-Arce's PTSD "adds" to his back condition. R. at 1669 ("The associated symptoms of the [PTSD] with anxiety, hyper-vigilance, tension state, and fearfulness, adds to the [back] disability."); see Allday, supra. Moreover, although the Board noted evidence that his PTSD is unrelated to his back condition – including a June 2006 fibromyalgia report not in the record of proceedings and a November 2003 report attributing the back condition to the 1987 restraining of a man attempting suicide (which was caused by PTSD according to the 1989 psychiatric report) – the Board did not explain how it might have weighed these reports against the other medical evidence of record. See Washington v. Nicholson, 19 Vet. App. 362, 367 (2005) ("[T]he Board must analyze the credibility and probative weight of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant."); see also Hensley v. West, 212 F.3d 1255, 1263 (Fed. Cir. 2000) ("[A]ppellate tribunals are not appropriate fora for initial fact finding."). Accordingly, remand is warranted. Tucker v. West, 11 Vet.App. 369, 374 (1998) (remand is appropriate "where the Board has incorrectlyapplied the law, failed to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate"). The record also supports the parties' argument that the Board provided inadequate reasons or bases for denying serviceconnection for ED. More specifically, Mr.Ramirez-Arce raised a theory of service connection – that his ED is related to his PTSD medications – and the Board failed to address or obtain medical evidence1 on this theory. See R. at 523 (Notice of Disagreement stating: "PTSD stress is a major contributor in ED as well as medication used to treat PTSD."), 1264 (statement in support of claim asserting: "I am requesting [service connection] for [ED] secondary to PTSD condition [and] medications taken for same condition."); see also R. at 14-16 (Board not addressing PTSD medications), 446-50 (2007 report not addressing PTSD medications), 1244-48 1 The Secretary generally must provide a medical examination or opinion on a theory of service connection if there is, inter alia, an indication that his disability "may be associated with the veteran's service" through that theory and insufficient medical evidence on that theory. McLendon v. Nicholson, 20 Vet.App. 79, 81 (2006); see Robinson v. Peake, 21 Vet.App. 545, 553 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). 3 (2005 report not addressing PTSD medications). The Board's failure to address a theory for service connection raised by a claimant frustrates judicial review, such that remand is warranted. See Robinson, 21 Vet.App. at 553 (Board commits error "in failing to discuss a theoryof entitlement that was raised . . . by the appellant"); Tucker and Allday, both supra. The parties also note that the Board did not address the 2007 medical report's statement that ED was a " diabetic related genitourinary symptom." R. at 440. The Board should address this statement on remand. See Robinson, 21 Vet.App. at 553 (Board commits error "in failing to discuss a theoryof entitlement that was [reasonably] raised . . . by the evidence of record"). Also on remand, Mr. Ramirez-Arce may present, and the Board must consider, any additional evidence and argument in support of the remanded matters. 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. Accordingly, that part of the October 4, 2010, Board decision denying a disability rating in excess of 10% for hemorrhoids is AFFIRMED, and that part of the decision denying entitlement to service connection for an upper back disorder and ED is SET ASIDE and the matters REMANDED for further adjudication. DATED: April 19, 2012 Copies to: Glenn R. Bergmann, Esq. VA General Counsel (027) 4

Briley v. Shinseki, No. 11-1579(DATED: April 19, 2012); Substitution Following Veterans Death

Excerpt from decision below: "For the purposes of this opinion, it is sufficient to observe that Mrs. Briley died while her appeal was pending before this Court and no one who would be potentially eligible to receive accrued benefits has sought substitution." ============================= ---------------------------------------------------- UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 11-1579 ANNETTE B. BRILEY, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before KASOLD, Chief Judge, and HAGEL and LANCE, Judges. ORDER On May 18, 2011, the appellant, widow of deceased veteran Richard R. Briley, through counsel, filed a Notice of Appeal from a January 31, 2011, Board of Veterans' Appeals (Board) decision denying entitlement to service connection for the veteran's colon cancer for the purposes of accrued benefits. On February 7, 2012, appellant's counsel notified the Court that the appellant died on January 29, 2012, provided a copy of the appellant's obituary, and filed a motion requesting a 30-day stay to locate a potential accrued benefits claimant for substitution. On March 14, 2012, the Court denied the motion as moot as more than 30 days had already elapsed and ordered appellant's counsel to show cause, within 14 days, why the appeal should not be dismissed. Appellant's counsel did not respond to the Court's order. In Mokal v. Derwinski, 1 Vet.App. 12, 13 (1990), the Court chose "to adhere to the case or controversy jurisdictional restraints adopted by Article III Courts." Although the Court initially adopted the case-or-controversy requirement "as a matter of policy," the Court, as our concurring colleague admits, did not make the application of that requirement discretionary. Id. at 15. Rather, beginning with Mokal and continuing unimpeded to this day, the Court has steadfastly held that a matter before this Court that does not present a live case or controversy must be dismissed for a lack of jurisdiction. See, e.g., Mendoza v. Shinseki, 25 Vet.App. 189 (2012) ( per curiam order); Moore v. Peake, 22 Vet.App. 239 (2008) (per curiamorder); Hyatt v. Peake, 22 Vet. App. 211 (2008); Nolan v. Nicholson, 20 Vet.App. 340 (2006); Ramsey v. Nicholson, 20 Vet.App. 223 ( 2006); Polovick v. Nicholson, 24 Vet.App. 257 (2006); Urban v. Principi, 18 Vet.App. 143 ( 2004) (per curiam order); Long v. Principi, 17 Vet.App. 555 (2004); Breeden v. Principi, 17 Vet.App. 475 (2004) (per curiam order); Herlehy v. Principi, 15 Vet.App. 33 (2001) (per curiam order); Hibbard v. West, 13 Vet.App. 546 (2000) (per curiam order); Haines v. Gober, 10 Vet. App. 446 (1997) ( per curiam order); Hudgins v. Brown, 8 Vet.App. 365 (1995) (per curiam order); Landicho v. Brown, 7 Vet.App. 42 (1994); Shoen v. Brown, 6 Vet.App. 456 (1994); Dofflemyer v. Brown, 4 Vet. App. 339 (1993) (per curiam order); Coombs v. Principi, 3 Vet.App. 530 (1992) (per curiam order ); Waterhouse v. Principi, 3 Vet.App. 473 (1992); Bond v. Derwinski, 2 Vet.App. 376 (1992) ( per curiam order); Mokal, 1 Vet.App. at 15. This Court has long grappled with the question of whether a live case or controversy exists after an appellant dies. See, e.g., Breedlove v. Shinseki, 24 Vet.App. 7, 14-22 (2010); Pekular v. Mansfield, 21 Vet.App. 495, 498-502 (2007); Landicho, 7 Vet.App. at 49-54. However, we need not venture down that tortuous path again. For the purposes of this opinion, it is sufficient to observe that Mrs. Briley died while her appeal was pending before this Court and no one who would be potentially eligible to receive accrued benefits has sought substitution. It is beyond axiomatic that, where there is no appellant, there is no case or controversy. To hold otherwise would be to empower the Court to issue advisory opinions that have no definite and concrete connection to the legal relations of the putative parties. See Aetna Life Ins. Co. of Hartford, Conn. v. Haworth, 300 U.S. 227, 240-41 (1937) (explaining that a justiciable controversy "must be definite and concrete, touching the legal relations of parties having adverse legal interests" and "must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts"); see also GTE Sylvania, Inc. v. Consumers Union of U.S., Inc., 445 U.S. 375, 382 (1980) ("The purpose of the case-or-controversy requirement is to 'limit the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process.'" (quoting Flast v. Cohen, 392 U.S. 83, 85 (1968))). Such a practice would contravene the venerable principle that federal courts are not "merely publicly funded forums for the ventilation of public grievances or the refinement of jurisprudential understanding," and the Court, therefore, will not condone it. Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 473 (1982). Instead, the Court will reiterate its unflinching adherence to the jurisdictional limitations contained in Article III, which "assure that the legal questions presented to the court will be resolved, not in the rarified atmosphere of a debating society, but in a concrete factual context conducive to a realistic appreciation of judicial action." Id. at 472. Moreover, contrary to our concurring colleague's opinion, the decision of the U.S. Supreme Court in Henderson v. Shinseki, 131 S. Ct. 1197 (2011), did not in any way alter the Court's case-or-controversy analysis. In Henderson, the Supreme Court held that 38 U.S.C. § 7266(a), which provides that a person adversely affected by a final Board decision must file a Notice of Appeal within 120 days after the mailing of that decision to obtain review in this Court, was "an important procedural rule," but was not jurisdictional. 131 S. Ct. at 1206. In doing so, the Supreme Court clearly indicated that our authority must be based on what Congress intended and, therefore, did not enlarge our jurisdiction beyond that expressly given to us by Congress. See id. at 1203 ("The question here, therefore, is whether Congress mandated that the 120–day deadline be 'jurisdictional.'" (emphasis added). In fact, the Supreme Court has long held that federal courts "possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree." Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994) (internal citations omitted). Our concurring colleague fails to cite any authority suggesting that Congress, in creating this Court, intended to except it from the bedrock principle that courts may not issue advisory opinions in the absence of a live case or controversy. Accordingly, because the holding in Henderson only addressed the narrow question of "whether a veteran's failure to file a [N]otice of [A]ppeal within the 120-day period should be regarded as having 'jurisdictional' consequences," 2 131 S. Ct. at 1200, and because it reaffirmed the principle that our power is defined by Congress's intent, that decision does not undermine Mokal or its progeny. Finally, although our concurring colleague cites Padgett v. Nicholson, 473 F.3d 1364 (Fed. Cir. 2007), to support his assertion that the Court could have issued a decision in this case nunc pro tunc to the date of Mrs. Briley's death, Padgett expressly states that nunc pro tunc relief would not be appropriate in a case such as this. Specifically, the U.S. Court of Appeals for the Federal Circuit rejected the Secretary's argument that "nunc pro tunc relief may cause the court to issue advisory opinions or decide hypothetical cases," holding that, "[if] the court were not aware of any potential accrued-benefits claimants, or if all potential accrued-benefits claimants failed to qualify," the only appropriate disposition would be to dismiss the appeal and vacate or reverse the underlying decision. Id. at 1371. Consequently, because this appeal has become moot by virtue of the death of the appellant, and because the Court has not received any request that another party be substituted for the appellant, the appeal will be dismissed and the underlying Board decision vacated. See Breedlove v. Shinseki, 24 Vet.App. 7, 21 (2010) (noting that where "no one seeks substitution . . . Board vacatur and dismissal of the appeal would be the appropriate action"); Landicho, 7 Vet.App. at 53-54. Upon consideration of the foregoing, it is hereby ORDERED that the January 31, 2011, Board decision is VACATED with respect to the matters appealed to the Court. It is further ORDERED that this appeal is DISMISSED for lack of jurisdiction. DATED: April 19, 2012 PER CURIAM KASOLD, Chief Judge, concurring in part: Inasmuch as counsel for the deceased appellant failed to respond to an order to show cause why the appeal should not be dismissed, I concur in now dismissing the appeal. Dismissal, however, should be for failing to respond, U.S. VET. APP. R. 38(b) ("Failure . . . to comply with an order of the Court . . . may be grounds for . . . dismissal of the appeal."), not for lack of jurisdiction. Our jurisdiction, like that of all federal courts other than the Supreme Court, is established solely by Congress, not the Court. Sheldon v. Sill, 49 U.S. 441, 449 (1850). As my colleagues seem to admit, the requirement in our Court for a case or controversy is an important prudential rule wisely adopted by the Court in its formative year, but it is not in our jurisdictional statute. See Mokal v. Derwinski, 1 Vet.App. 12, 15 (1990) (adopting "as a matter of policy the jurisdictional restrictions of the Article III case or controversy rubric"); see also Padgett v. Nicholson, 473 F.3d 1364, 1370 (Fed. Cir. 2007) (noting that this Court is "not formally bound by" the case or controversy requirement but "nevertheless, adheres to it"). Accordingly, although application of the case or controversy requirement is not discretionary absent Mokal being overturned by the en banc Court or statute, Bethea v. Derwinski, 2 Vet.App. 252, 254 (1992), dismissal under this important prudential rule nevertheless is not a dismissal for lack of jurisdiction. 49 U.S. at 449; cf. Henderson 3 v. Shinseki, 131 S. Ct. 1197, 1206 (2001) (finding that 38 U.S.C. § 7266( a) was an "important procedural rule" but not jurisdictional); see also Breedlove v. Shinseki, 24 Vet.App. 7, 17 n.5 (2010) (per curiam order) (citing Zevalkink v. Brown, 102 F.3d 1236, 1244 (Fed. Cir. 1996) and noting that the Court does not lack jurisdiction upon the death of the claimant). Indeed, in addition to dismissing the appeal, the Court also had the option of rendering a decision nunc pro tunc. See Mitchell v. Overman, 103 U.S. 62, 64-65 (1880) (noting the authority of a court to issue a decision nunc pro tunc generally, and specifically when death occurs after the matter has been submitted and any delay in issuing the decision was not due to the parties); Padgett, 473 F.3d at 1367 ("Where a party dies after his case is submitted, but before the opinion issues . . . , the Supreme Court has consistently entered judgment nunc pro tunc to the date of the party's death . . . ."). The appellant in this case died after the case was submitted, see Breedlove, 24 Vet.App. at 18 (noting that case is submitted for decision "upon completion of the briefing period"), and, although the attorney for the deceased appellant did not respond to the Court's show cause order, the decedent's estate, at a minimum, is a potential accrued benefits beneficiary, 38 U.S.C. § 5121(a)(6), such that issuance of a decision nunc pro tunc was a viable option. See Padgett, 473 F.3d at 1371 (finding dismissal appropriate "if the court were not aware of any potential accrued-benefits claimants" (emphasis added)); see also Mitchell, supra. Moreover, an accrued benefits beneficiary has up to one year after date of death of a VA beneficiary to request substitution, 38 U.S.C. § 5121A(a)(1), such that – even after dismissal in this case – there very well might be judicial economy reasons to permit an accrued benefits beneficiary to seek substitution within the one-year period after the death of the appellant and prior to mandate entering in this case. See Breedlove, 24 Vet.App. at 17 (noting that substitution "'furthers judicial and administrative economy'" (quoting Padgett, 473 F.3d at 1370)). As noted at the outset of my concurring statement, however, the failure of counsel to respond to the Court's order is a valid basis for dismissing this matter at this time, and it is the basis for my concurrence in part with the order issued today by the majority. 4

Githens v. Shinseki, No. 2010-7129(Decided: April 26, 2012); TDIU, 4.16(a), Considered on Service-connected Disabilities

Excerpt from decision below: "The Veterans Court in a series of cases has consistently interpreted § 4.16(a) to require that only service-connected disabilities may be considered in a § 4.16(a) TDIU analysis.3" =========================== United States Court of Appeals for the Federal Circuit __________________________ KAREN S. GITHENS, Claimant-Appellant, v. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee. __________________________ 2010-7129 __________________________ Appeal from the United States Court of Appeals for Veterans Claims in case no. 08-4239, Judge Alan G. Lance, Sr. __________________________ Decided: April 26, 2012 __________________________ KENNETH M. CARPENTER, Carpenter, Chartered, of Topeka, Kansas, argued for claimant-appellant. L. MISHA PREHEIM, Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondentappellee. With him on the brief were TONY WEST, Assistant Attorney General, JEANNE E. DAVIDSON, Director, and MARTIN F. HOCKEY, JR., Assistant Director. Of coun- GITHENS v. DVA 2 sel on the brief were DAVID J. BARRANS, Deputy Assistant General Counsel, and TRACEY P. WARREN, Attorney, United States Department of Veterans Affairs, of Washington, DC. __________________________ Before RADER, Chief Judge, and NEWMAN and REYNA, Circuit Judges. REYNA, Circuit Judge. Ms. Karen S. Githens-Bellas appeals the decision of the Court of Appeals for Veterans Claims (“Veterans Court”) that affirmed the Regional Office’s (“RO”) 1996 denial of total disability based on individual unemployability (“TDIU”). Githens-Bellas v. Shinseki, No. 08-4239, at *1 (CAVC May 12, 2010) (“Op.”). Ms. Githens-Bellas believes that the Veterans Court erred when it upheld a finding that the RO did not commit clear and unmistakable error (“CUE”). For lack of jurisdiction, we dismiss. I. FACTUAL HISTORY Ms. Githens-Bellas served in the U.S. Army from September 1980 to February 1981 and from April 1981 to May 1983. During her service, Ms. Githens-Bellas suffered an injury to her knees and wrist. The RO assigned a 10 percent rating to her left wrist with an effective date of November 12, 1986. In 1987, Ms. Githens-Bellas’s right upper arm was injured as a result of the medical care she received from the Department of Veterans Affairs (“VA”). In 1990, her injury to right knee and shoulder were each rated at 20 percent and her left knee at 30 percent. After leaving service, she received disability benefits for the service-related injuries and the injury to her upper arm. In 1996, she was unable to continue working as a bookkeeper. GITHENS v. DVA 3 II. PROCEDURAL HISTORY In August 1996, Ms. Githens-Bellas brought a claim before the VA for TDIU. A VA examiner diagnosed her with the following service-connected disabilities: stress fractures of her left and right knees and a contusion of the spinal accessory nerve with wasting of the upper region of her right trapezius muscle and limitation of motion. She was also diagnosed with non-service-connected disabilities, including lipoma in her lower back, migraine headaches, and anxiety disorder due to chronic pain syndrome. The Veterans Affairs Regional Office (“RO”) rated her service-connected disabilities at 70 percent, but denied a total rating based on unemployability under 38 C.F.R. § 4.16(a) on grounds that her service-connected disabilities did not meet the schedular requirements.1 A veteran that has not been rated 100 percent disabled can meet the schedular requirements if the veteran’s service connected disabilities fall within the exceptions under § 4.16(a) which provides that: at least one service-connected disability rated at 60 percent or higher, or the service- connected disabilities add up to at least 70 percent with at least one service-connected disability rated at 40 percent or higher. Id. Section 4.16(a) also provides that disabilities of “both lower extremities, including the bilateral factor, if applicable” are to be “considered as one disability.” Id. The RO, however, failed to consider Ms. Githens-Bellas’s two distinct knee injuries as a single injury. As a result, the RO based the unemployability 1 The RO evaluated service connected disabilities as 70 percent, but the record indicates that the correct evaluation should have been rated at 80 percent. See Joint Appendix at 15, 17. GITHENS v. DVA 4 determination on § 4.16(b), which provides that “the rating board will include a full statement as to the veteran’s service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue.” Applying § 4.16(b), the RO found that “[e]ntitlement to individual unemployability is denied because the claimant has not been found unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.” Joint Appendix at 15. In June 1997, Ms. Githens-Bellas filed a request with the RO to reopen her claim for TDIU. The RO denied her request. Over six years later, in March 2004, Ms. Githens-Bellas requested that her 1996 rating decision be reviewed on grounds that the RO had committed CUE and sought retroactive benefits with an effective date of January 1, 1996 for TDIU. In November 2004, the RO denied her request for review. Ms. Githens-Bellas filed a Notice of Disagreement with the Board of Veterans’ Appeals (“Board”) on October 4, 2005. In March 2006, the RO issued a statement of the case denying Ms. Githens-Bellas retroactive benefits for total disability on the basis of the 1996 denial. In April 2006, Ms. Githens-Bellas appealed the RO’s determination to the Board. On August 27, 2008, the Board determined that the RO’s decision to deny benefits for TDIU did not constitute CUE. Ms. Githens-Bellas appealed the Board’s decision to the Veterans Court. In her appeal, Ms. Githens-Bellas asserted that the RO’s miscalculation was CUE, and that this error prevented the VA from assisting her in developing evidence to support her claim for TDIU, which she contended resulted in a manifestly different outcome. During the appeal, the Secretary conceded that the RO GITHENS v. DVA 5 committed error by incorrectly computing Ms. Githens-Bellas’s rating under § 4.16(a). The Secretary acknowledged that the RO should have treated Ms. Githens-Bellas’s injuries to two lower extremities as one disability that met the 40 percent or higher disability rating pursuant to § 4.16(a)(1). Both parties agreed that because the RO correctly rated her other service- connected disabilities to her wrist and upper right arm as 10 percent and 20 percent respectively, for a total of 30 percent, the RO should have determined therefore that Ms. Githens-Bellas met the requirement under § 4.16(a): she had one rated disability at 40 percent or higher which, when added to the 20 percent and 10 percent ratings, provided a disability rating that met the 70 percent or higher requirement. However, the government asserted that the RO’s miscalculation did not constitute CUE. The Veterans Court agreed with the government and affirmed the Board’s finding that the RO’s 1996 denial of TDIU did not constitute CUE. The Veterans Court cited to Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2002) (en banc) for the proposition that a breach in the duty to assist cannot constitute CUE. The Veterans Court acknowledged that the RO had erred in computing Ms. Githens-Bellas’s schedular disability rating, but determined that the error was harmless because the record showed that the RO had made an unemployability determination that satisfied the requirements for a § 4.16(a) analysis. This appeal followed. GITHENS v. DVA 6 III. JURISDICTION The jurisdiction of this court to review a decision of the Veterans Court is limited. This court has jurisdiction to review a Veterans Court decision if it addresses (1) the validity of statutes or regulations on which the decision of the Veterans Court depended; (2) issues of interpretation if the Veterans Court elaborated upon the meaning of a statute or regulation and the decision depended on that interpretation; and (3) issues of validity or interpretation raised before the Veterans Court but not decided, if the decision would have been altered by adopting the position that was urged. See Szemraj v. Principi, 357 F.3d 1370, 1374 (Fed. Cir. 2004) (quoting Forshey, 284 F.3d. 1335, 1338 (Fed. Cir. 2002) (en banc)). We also have jurisdiction to review a decision of the Veterans Court on a rule of law. See 38 U.S.C. § 7292(a); Szemraj, 357 F.3d at 1374. This court may not review the Veterans Court for an “application of a legal standard to the facts of the particular case to determine whether there has been an error that is essentially factual in nature.” Id. at 1375 (citing Lennox v. Principi, 353 F.3d 941, 946 (Fed. Cir. 2003); Bailey v. Principi, 351 F.3d 1381, 1384 (Fed. Cir. 2003); Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010); Santana-Venegas v. Principi, 314 F.3d 1293, 1298 (Fed. Cir. 2002)). We may affirm or, if the decision of the Veterans Court is not in accordance with law, modify or reverse the decision of the Veterans Court or remand the matter, as appropriate. 38 U.S.C. § 7292(e)(1)(2000). IV. DISCUSSION The sole issue on appeal is whether the Veterans Court’s decision is based on an erroneous interpretation of 38 C.F.R. § 4.16(a). Ms. Githens-Bellas argues that the Veterans Court misinterpreted § 4.16(a), and then relied GITHENS v. DVA 7 on the misinterpretation to affirm the Board’s determination that the 1996 TDIU denial was not based on CUE. In support, she cites a statement by the Veterans Court that “it was predominantly her non-service-connected disabilities that prevented her from obtaining employment.” Op. at 4. Ms. Githens-Bellas argues that this statement demonstrates that the Veterans Court misinterprets § 4.16(a) as permitting non-service connected disabilities to be considered in TDIU determinations once the § 4.16(a) schedular requirements are met.2 2 The paragraph that includes the statement relied on by appellant provides that: In this case, the RO had to determine whether the appellant's service-connected disabilities prevent her from obtaining employment. The Secretary concedes that in 1996, the RO “incorrectly found that [the a]ppellant did not meet the schedul[a]r requirements.” Secretary's Br. at 5. However, after assessing the schedular requirements, the RO still had to determine whether the serviceconnected disabilities rendered the claimant unemployable. 38 C.F.R. § 4.16(a). In its 1996 rating decision, the RO stated that “[t]he medical reports show both service connected and nonservice- connected disabilities which interfere with employment, with the greater degree of disability being from non-service connected disabilities[.]” R. at 776. Thus, the RO's error did not cause a manifestly different outcome in the 1996 decision. Even if the RO had correctly found that the appellant's combined service-connected disabilities did meet the schedular requirements, it still would have denied her claim because it GITHENS v. DVA 8 We disagree that the statement constitutes an interpretation of § 4.16(a). The issue before the Veterans Court was whether the 1996 TDIU determination was based on CUE. There is no indication that issues concerning interpretation of § 4.16(a) were before the Veterans Court. In addition, the Veterans Court’s decision does not address the validity, or elaboration of § 4.16(a), or reflect that a different decision would have resulted had the position urged by appellant been adopted. Forshey, 284 F.3d at 1349. Further, when the statement is viewed in the context of the entire decision, in particular the paragraph that contains the statement, it is clear that the Veterans Court was not making a statement of interpretation on § 4.16(a), but rather explaining why “the RO’s error did not cause a manifestly different outcome in the 1996 decision.” Op. at 4. Indeed, the Veterans Court decision reflects a view of § 4.16(a) that is precisely the same as the view that appellant argues should be adopted by this court. Appellant ignores that the paragraph that contains the statement begins with “[i]n this case, the RO had to determine whether the appellant’s service-connected disabilities prevent her from obtaining employment.” Id. In addition, was predominantly her non-serviceconnected disabilities that prevented her from obtaining employment. Thus, it was not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” for the Board to conclude that there was no CUE in the September 1996 decision that denied TDIU. Accordingly, the Court will affirm the Board decision. Op. at 4 (emphases added). GITHENS v. DVA 9 when addressing the Secretary’s concession that the RO had erred in computing the schedular requirements, the Veterans Court stated “the RO still had to determine whether the service-connected disabilities rendered the claimant unemployable.” Id. The Veterans Court in a series of cases has consistently interpreted § 4.16(a) to require that only service-connected disabilities may be considered in a § 4.16(a) TDIU analysis.3 We have no jurisdiction over an issue of interpretation that does not exist. We conclude that the sentence in the Veterans Court’s decision cited by the appellant was a mere statement of the Veterans Court’s view on whether the RO’s error constituted CUE, and not a statement of interpretation of § 4.16(a). See, e.g., Conway v. Principi, 353 F.3d 1369, 1373 (Fed. Cir. 2004) (Lack of jurisdiction existed where the Veterans Court statement that § 5103(a) had not been “properly administered” was not an interpretation of section § 5103(a)). In sum, the Veterans Court decision is silent as to the adoption of a particular interpretation of § 4.16(a). Ferguson v. Principi, 273 F.3d 1072, 1075 (Fed. Cir. 2001). Because this appeal does not involve an interpretation of § 4.16(a), we dismiss. DISMISSED Each party shall bear its own costs. 3 See, e.g., Hermann v. Shinseki, 2011 WL 2599914, at *2 (Vet. Ct. 2011) (“[A]n award of VA benefits for TDIU is based solely on service-connected disabilities.”); Ruybal v. Nicholson, 25 Vet. App. 114 (2007); Pratt v. Derwinski, 3 Vet. App. 269, 272 (1992).

New Army PTSD Guidelines Fault Madigan's Screening Process

Full article at: Army's new PTSD guidelines fault Madigan's screening tests By Hal Bernton, Seattle Times staff reporter "The Army Surgeon General's Office has issued new guidelines for diagnosing PTSD that criticize an approach once routinely used at Madigan Army Medical Center. The policy, obtained by The Seattle Times, specifically discounts tests used to determine whether soldiers are faking symptoms of post-traumatic stress disorder. It says that poor test results do not constitute malingering. The written tests often were part of the Madigan screening process that overturned the PTSD diagnoses of more than 300 patients during the past five years."

VA Releases 70 New Disability Benefits Questionnaires

Disability Benefits Questionnaires (DBQs) VA releases 70 new DBQ forms, following success with Agent Orange [AO] medical questionnaires. DBQs are used to guide physician in making their reports of medical findings, ensuring that VA has the medical information needed to make prompt decisions. Veterans have the option of visiting a private health care provider instead of a VA facility to complete their disability evaluation form. Veterans can have their providers fill out any of the more than 70 DBQs that are appropriate for their conditions and submit them to VA. Remember, doctors are not attorneys, so get help filling out these form so that the form clearly and fairly represents your medical condition and degree of disability. This will save time time not only in the initial evaluation but also during any subsequent appeals. Forms can be found here: http://benefits.va.gov/TRANSFORMATION/dbqs/ListByDBQFormName.asp

Single Judge Application, Vocational Rehab., Entitlement to Full Explanation; Freeman v. Shinseki, 24 Vet.App. 404, 417 (2011)

Excerpt from decision below: "Further, although the Secretary is correct that the Court reviews the Board's determination that a vocational goal is not reasonably feasible under the "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" standard of review, Kandik v. Brown, 9 Vet.App. 434, 438 (1996) (citing 38 U.S.C. § 7261(a)(3)(A)), that highly deferential standard does not relieve the Board of its duty to provide an adequate statement of reasons or bases for its application of the detailed VA regulations governing the award of vocational rehabilitation benefits. See Freeman v. Shinseki, 24 Vet.App. 404, 417 (2011) (holding that an appellant would "be entitled to a full explanation . . . of the reasons or bases for the Board's decision" regarding the Secretary's discretionary appointment of a particular fiduciary). ============= ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 11-0425 ABDULLAH SHABAZZ, 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: Abdullah Shabazz appeals through counsel an October 12, 2010, Board of Veterans' Appeals (Board) decision denying entitlement to vocational rehabilitation benefits and training as a paralegal (non-lawyer legal assistant). Record (R.) at 3-16. Mr. Shabazz's Notice of Appeal was timelyand the Court has jurisdiction to review the Board decision pursuant to 38 U.S.C. § 7252(a). The parties neither requested oral argument nor identified issues that theybelieve require a precedential decision of the Court. Because the Board's statement of reasons or bases for its decision was inadequate, the Court will vacate the October 12, 2010, Board decision and remand the matter for readjudication consistent with this decision. I. FACTS Mr. Shabazz served on active duty in the U.S. Army from May 1955 to October 1958. He currentlyhas a 20% combined disability rating for a left wrist strain and residuals of fractures of two bones of the left hand. Although all documents relevant to the claim are not contained in the record of proceedings, it appears that Mr. Shabazz has been seeking vocational rehabilitation benefits since at least 1984. Mr. Shabazz's most recent claim for vocational rehabilitation benefits began in June 2001, when he expressed interest in training to become a paralegal. However, in July 2002, a VA regional office denied Mr. Shabazz's claim for vocational rehabilitation benefits and training as a paralegal. Specifically, the regional office found that it was not reasonably feasible for Mr. Shabazz to complete a two-year paralegal certification program offered by a local community college because (1) the job outlook for certified paralegals in the local market was poor given the surplus of attorneys seeking similar employment; (2) he failed to complete previous VA vocational rehabilitation programs; and (3) "were he to complete such a program successfully, he would be 67 years of age upon program completion." R. at 2138. Mr. Shabazz filed a timely Notice of Disagreement with that decision, stating that he had been accepted into the aforementioned paralegal training program at the community college and requesting a hearing to determine whether he was entitled to "immediate financial support to meet [his] academic goal and requirements." R. at 549. He subsequently perfected his appeal. In April 2009, Mr. Shabazz was afforded a hearing before a Board member.1 At that time, Mr. Shabazz testified that he previously submitted a letter to VA from attorney Alan D. Eisenberg stating that he would hire Mr. Shabazz as a paralegal once he completed the training program. Mr. Shabazz also stated that he had another, similar letter from attorney Alfred Albertson, but that he forgot to bring it with him to the hearing. At the conclusion of the hearing, the Board member indicated that he would leave the record open for 30 days so that Mr. Shabazz could submit any additional documents that he had in his possession. However, Mr. Shabazz failed to do so. Nevertheless, in August 2009, the Board remanded his claim for further development. In January 2010, a VA vocational counselor reevaluated the feasibility of Mr. Shabazz's vocational goal of becoming a paralegal. The counselor noted that Mr. Shabazz's "interests, aptitudes[,] and abilities" were consistent with those of a paralegal and that his "general medical condition" would not "limit him physically in the usual activities of a paralegal." R. at 2481. However, the counselor also explained that Mr. Shabazz had "a troubling legal history," including 1 It is unclear from the parties' briefs and the record of proceedings why it took nearly six years to schedule the requested hearing. See R. at 549 (September 2002 Notice of Disagreement), 524-28 (March 2003 Statement of the Case), R. at 73 (references to a June 2006 Supplemental Statement of the Case, a July 2006 VA Form 9, and an October 2006 certification of the appeal to the Board), 143-84 (transcript from the April 2009 Board hearing). 2 multiple felony convictions for forgery and dealing in false securities, which made "finding gainful employment as a paralegal . . . remote at best," particularly considering the limited local job market for paralegals. R. at 2482. The counselor confirmed this hypothesis with the regional counsel at the local regional office, who stated that Mr. Shabazz's "'propensity toward not being honest' would be a barrier to securing employment in the legal arena generally, and that VA would not hire a paralegal with an extensive legal history." Id. Finally, the counselor noted that Mr. Shabazz would face "[a]dditional projected difficulties" because he had been unemployed for over 10 years, with "significant restriction on employability resulting from his age of 72." R. at 2483. Therefore, the counselor concluded that it was not reasonably feasible for Mr. Shabazz to achieve his occupational goal of obtaining employment as a certified paralegal. InOctober2010,the Board issued the decision currentlyonappeal, whichdeniedentitlement to vocational rehabilitation benefits and training as a paralegal. The Board reviewed the evidence of record and noted that, in the April 2009 Board hearing, Mr. Shabazz indicated that he "submitted to his counselor two letters from local attorneys who stated that they would hire [him] in a[n] apprenticeship program," but that "[those] letters are not of record nor have they been mentioned in VA counselor reports." R. at 11. The Board then acknowledged Mr. Shabazz's " legal history of convictions for fraud, misrepresentation, and unsatisfied judgments" and noted that "the applicable state law does permit denial of employment if the felony convictions are substantially related to the job" and that "[a] national paralegal association and the Wisconsin State Bar both support the denial of licensure as a paralegal to those convicted of crimes of moral turpitude." R. at 15-16. In light of those barriers, the Board concluded that it was not reasonably feasible for Mr. Shabazz to secure employment as a paralegal. II. ANALYSIS A. Duty To Assist Mr.Shabazz firstargues thattheBoard's determination thatVAsatisfiedits dutyto assist was clearlyerroneousbecauseVAgenerally,andtheBoardmemberspecifically, wererequiredto inform him that the attorney letters that he referenced at the April 2009 Board hearing were not in the record. The Court disagrees. 3 1. Duties of a VA Hearing Officer "Upon request, a claimant is entitled to a hearing at anytime on anyissue involved in a claim within the purview of part 3 of [title 38 of the Code of Federal Regulations.]" 38 C.F.R. § 3.103(c)(1) (2011). "It is the responsibility of the [VA] employee or employees conducting the hearings to explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant's position [ on appeal]." 38 C.F.R. § 3.103(c)(2). This provision "imposes . . . two distinct duties on the hearing officer . . . : The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked." Bryant v. Shinseki, 23 Vet.App. 488, 492 (2010) (per curiam). These requirements are designed "'[t]o assure clarity and completeness of the hearing record.'" Thomas v. Nicholson, 423 F.3d 1279, 1285 (Fed. Cir. 2005) (quoting 38 C.F.R. § 3.103(c)(2) ( 2005)); see also Bryant, 23 Vet.App. at 499. The Court notes that, on August 23, 2011, VA published a final rule " amending its hearing regulations to clarify that the provisions regarding hearings before the Agency of Original Jurisdiction do not apply to hearings before the Board of Veterans' Appeals," effective on that date. 76 Fed. Reg. 52572–75 (Aug. 23, 2011). This amendment was intended to make "clarifying changes" to reflect VA's intent to differentiate between the duties owed to claimants by hearing officers at the agency of original jurisdiction and Board members. See id. In this case, the Court need not reach the question of whether VA's recent amendment to § 3.103(c)(2) applies retroactively because, even assuming that it did not, Mr. Shabazz's arguments would lack merit. Specifically, Mr. Shabazz does not argue that the Board member failed to fully explain anyissues related to his claim, but rather asserts that the Board member failed to suggest that he submit evidence–i.e., the letters from attorneys stating that theywould hire him upon completion of his paralegal training–that was not in the record. However, the fatal flaw with this argument is that a hearing officer is onlyrequired to suggest that a claimant submit evidence that "mayhave been overlooked," not evidence that is simplymissing from the record. 38 C.F.R. § 3.103(c)(2) (emphasis added). Indeed, Mr. Shabazz concedes that § 3.103(c)(2) would not applyin his case because "[t]his situation does not involve [him] overlooking the evidence" because he was aware of the existence of the attorney letters and their importance to his claim. Appellant's Br. at 9; see R. at 153 (Mr. 4 Shabazz's testimony indicating that a vocational rehabilitation counselor previously told him to obtain such letters to substantiate his claim). Rather, Mr. Shabazz argues only that "the spir[i]t of 38 C.F.R. § 3.103(c)(2), as well as fundamental due process considerations, would requirethe Board member to suggest to him that he resubmit [the attorney letters]." Id. at 10. However, Mr. Shabazz does not cite any precedent for his argument that the Court should expand the duties of a hearing officer beyond those specificallyenumerated in § 3.103(c)(2), and the Court is unpersuaded by his vague and unsupported due process and fairness arguments. See Locklear v. Nicholson, 20 Vet.App. 410, 416 (2006) (holding that the Court will not entertain underdevelopedarguments);Brewerv.West,11Vet.App.228,236(1998)( explainingthattheCourt need not consider "mere assertions of constitutional impropriety for which [ the appellant] has not provided any legal support"). The Court therefore concludes that, even assuming that the amendment to § 3.103(c)(2) is not retroactive, Mr. Shabazz has failed to carry his burden of demonstrating that the Board member violated any duty imposed by that regulation. See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (holding that the appellant has the burden of demonstrating error), aff'd per curiam, 232 F.3d 908 (Fed. Cir. 2000) ( table). 2. VA's General Duty To Obtain Records "The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit under a law administered by the Secretary." 38 U.S.C. § 5103A(a)(1). This duty includes making " reasonable efforts to obtain relevant records (including private records) that the claimant adequately identifies to the Secretary and authorizes the Secretary to obtain." 38 U.S.C. § 5103A(b)(1). If the Secretary is unable to obtain all of the records sought, the Secretary must provide notice to the claimant that "identif[ies] the records that the Secretary was unable to obtain," "briefly explain[s] the efforts that the Secretary made to obtain those records," and "describe[s] any further action to be taken by the Secretary with respect to the claim." 38 U.S.C. § 5103A(b)(2). These requirements also apply to private documents. The Court reviews the Board's determination that VA satisfied its duty to assist under the "clearly erroneous" standard of review. Nolen v. Gober, 14 Vet.App. 183, 184 (2000). "A factual finding 'is "clearly erroneous" when although there is evidence to support it, the reviewing court on 5 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)). Here, Mr.Shabazz testified that he had a letterfrom attorneyAlbertson that he forgot to bring with him to the hearing, and the Board member directed that the record be held open for 30 days to allow him to submit it. Nevertheless, Mr. Shabazz did not do so. On appeal, Mr. Shabazz argues that his failure to submit the letter from attorney Albertson compelled VA to obtain it on his behalf. To accept this argument would be to impose on VA a quiescent duty to obtain records known to the claimant and within the claimant's exclusive possession that springs to life upon the claimant's inaction. However, "[t]he duty to assist is not always a one-way street" and a claimant seeking assistance "cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet.App. 190, 193 (1991). The duty to assist is just that: a requirement that VA assist the claimant in obtaining evidence to substantiate a claim, not a requirement that VA produce that evidence while the claimant rests on his laurels. Accordingly, the Court concludes that the Board's determination that VA satisfied its duty to assist Mr. Shabazz in obtaining the letter from attorney Albertson was not clearly erroneous. See Nolen, 14 Vet.App. at 184. Mr. Shabazz also testified that he had previously submitted a similar letter from attorney Eisenberg to his VA vocational rehabilitation counselor. Unlike the letter from attorney Albertson that Mr. Shabazz did not submit to VA and therefore had no reason to believe was in the record before the agency, Mr. Shabazz's testimony establishes that he believed that the letter from attorney Eisenberg was alreadyin the record and would therefore be considered bythe Board. Consequently, Mr. Shabazz argues that VA had a duty to assist him in obtaining that letter once the Board determined that it was not in the record. The Court notes that, aside from cursory references to 38 U.S.C. § 5103A( a) and (b), Mr. Shabazz does not cite any legal precedent in support of his argument. Rather, Mr. Shabazz merely asserts that "VA could easily have informed [him]" that the letter from attorney Eisenberg was not in the record before the agencyand that "[i]t is hardly an undue burden on VA to expect it to provide this minimal assistance." Appellant's Br. at 10; Appellant's Reply Br. at 4. Even assuming, as Mr. 6 Shabazz contends, that it would be "easy" for VA to review the record to determine whether it contains evidence that a claimant believes is in the record and inform the claimant of that missing evidence, Mr. Shabazz has failed to identify any statute, regulation, or legal precedent that requires VA to do so. The Court reminds Mr. Shabazz that "[t]he duty to assist is not boundless in its scope." Golz v. Shinseki, 590 F.3d 1317, 1320 (Fed. Cir. 2010). Absent any citation to legal authority supporting the requested extension of the duty to assist, the Court concludes that Mr. Shabazz has failed to carry his burden of demonstrating that the Board's determination that VA satisfied its duty to assist him in obtaining the letter from attorney Eisenberg was clearly erroneous. See Nolen, 14 Vet.App. at 184; Hilkert, 12 Vet.App. at 151. The Court has made it clear that, especially in a case where the appellant is represented by an attorney, the Court is not required to address an underdeveloped argument. See Locklear v. Nicholson, 20 Vet.App. 410, 416 ( 2006); cf. Redondo- Borges v. U.S. Dept. of Hous. & Urban Dev., 421 F.3d 1, 6 (1st Cir. 2005) (" Even during appellate review of a [dismissal for failure to state a claim], which takes place under a set of plaintiff-friendly guidelines, the reviewing court cannot be expected to 'do counsel's work, create the ossature for the argument, and put flesh on its bones.'" (quoting U.S. v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990))). The failures mentioned above place this case in that category. B. Reasons or Bases Mr. Shabazz next argues that the Board's statement of reasons or bases for its decision was inadequatebecausetheBoardfailedto considerevidencepotentiallyfavorableto his claimandfailed to explain why a barrier to employability rendered his vocational goal not reasonably feasible. The Court agrees. 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 enablea claimant to understand the precise basis for the Board's decision, as well as to facilitate review in this Court. Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). To comply with this requirement, the Board must analyze the credibilityand probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 7 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. Although Mr. Shabazz makes numerous arguments regarding the adequacy of the Board's statement of reasons or bases, the Court is persuaded by his argument that the Board failed to consider evidence that he was performing volunteer legal work for a civil rights organization under the supervision of licensed attorneys. Specifically, Mr. Shabazz notes that there is evidence in the record indicating that he conducts legal research and drafts correspondence to clients. These tasks are similar to those routinely performed by paralegals and it appears that Mr. Shabazz's criminal history was not a barrier to his securing such employment, albeit on a volunteer basis. The Board's decision rests primarily, if not solely, on the determination that Mr. Shabazz's particular vocational goal–i.e., qualification as a paralegal–is not reasonably achievable when considering the circumstance of his previous criminal record. This finding makes the evidence that he would be hired by two lawyers and that he currently works as a paralegal on a volunteer basis particularly probative regarding the issue of whether his criminal record is a barrier to the reasonable feasibility of employment. Accordingly, this evidence is potentially favorable to Mr. Shabazz's claim and the Board, therefore, was required to consider and discuss it in determining whether his vocational goal of becoming a certified paralegal was reasonably feasible. See Caluza, 7 Vet.App. at 506. The Board's failure to do so renders its statement of reasons or bases inadequate and, therefore, the Court concludes that vacatur and remand is warranted.2 See Tucker v. West, 11 Vet.App. 369, 374 (1998); Gilbert, 1 Vet.App. at 57. Further, although the Secretary is correct that the Court reviews the Board's determination that a vocational goal is not reasonably feasible under the "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" standard of review, Kandik v. Brown, 9 Vet.App. 434, 438 (1996) (citing 38 U.S.C. § 7261(a)(3)(A)), that highlydeferential standard does not relieve the Board of its duty to provide an adequate statement of reasons or bases for its 2 As noted above, Mr. Shabazz has raised other arguments relating to the Board's statement of reasons or bases for its decision. However, because the Court is remanding Mr. Shabazz's claim and the Board will necessarily render a new decision on remand, the Court need not address those arguments at this time. See Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam order) ("A narrow decision preserves for the appellant an opportunity to argue those claimed errors before the Board at the readjudication, and, of course, before this Court in an appeal, should the Board rule against him."). 8 application of the detailed VA regulations governing the award of vocational rehabilitation benefits. See Freeman v. Shinseki, 24 Vet.App. 404, 417 (2011) (holding that an appellant would "be entitled to a full explanation . . . of the reasons or bases for the Board's decision" regarding the Secretary's discretionary appointment of a particular fiduciary). Lastly, the Board placed great importance on the opinion of VA's regional counsel that Mr. Shabazz's vocational goal of becoming a certified paralegal would not be reasonably feasible in light of his criminal record. However, this opinion is only referenced in the January 2010 VA vocational counselor's report and is not contained in the record before the agency or the record of proceedings in this appeal. Therefore, the Court concludes that the Board erred in relyingon that opinion because it did not notify Mr. Shabazz that it would consider that extrinsic evidence and did not provide him with an opportunity to submit contrary evidence or argument. See Thurber v. Brown, 5 Vet.App. 119, 126 (1993); 38 C.F.R. § 20.903 (2011). On remand, Mr. Shabazz is free to submit additional evidence and argument in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order), and, in particular, is encouraged to submit the letters from attorneys Albertson and Eisenberg if they are still in his possession. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). "A remand is meant to entail a critical examination of the justification for the decision" by the Board. Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991). In addition, the Board shall proceed expeditiously, in accordance with 38 U.S.C. § 7112 (expedited treatment of remanded claims). III. CONCLUSION Upon consideration of the foregoing, the October 12, 2010, Board decision is VACATED and the matter is REMANDED for readjudication consistent with this decision. DATED: March 27, 2012 Copies to: Daniel G. Krasnegor, Esq. VA General Counsel (027) 9

Single Judge Application, Massie v. Shinseki, 25 Vet.App. 123, 131-32 (2011); 38 CFR 3.157(b)

Excerpt from decision below: "Accordingly, this Court has previously held that, unless the evidence of record demonstrates the veteran's intent to seek benefits for a particular disability, the mere existence of medical evidence referencing the disability, such as that cited by Mr. 9 Hester, does not raise an informal claim for such benefits. See Criswell v. Nicholson, 20 Vet.App. 501, 503–04 (2006). The only exception to this rule is that, pursuant to regulation, certain medical records demonstrating a worsening in a veteran's disability that is already service connected may constitute an informal claim for an increased disability rating for that disability. See 38 C.F.R. § 3.157(b) (2011); see also Massie v. Shinseki, 25 Vet.App. 123, 131-32 (2011) (discussing the requirements of § 3.157(b)). ================ ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 10-3072 ANTE HESTER, 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: Ante Hester, who is self-represented,1 appeals a December 17, 2009, Board of Veterans' Appeals (Board) decision2 denying entitlement to an initial disability rating for a cervical spine disability in excess of 20% from December 14, 1993, to August 16, 2001, and in excess of 60% from August 16, 2001, onward.3 Mr. Hester's Notice of Appeal was timely and the Court has jurisdiction to review the Board decision pursuant to 38 U.S.C. § 7252(a). The parties neitherrequestedoralargumentnor identified issues that theybelieve requireaprecedentialdecision 1 Mr. Hester's principal brief was submitted through counsel, but the Court issued an order granting his former counsel's motion to withdraw on September 22, 2011. The Board's decision was issued on December 17, 2009. Mr. Hester subsequently filed a motion for reconsideration, which was denied by the Board on September 8, 2010. The Board also granted entitlement to VA benefits for a left elbow disability. However, on appeal, Mr. Hester presents no argument related to this aspect of the Board decision and the Court therefore deems any such argument abandoned. See Grivois v. Brown, 6 Vet.App. 136, 138 (1994) (issues or claims not argued on appeal are considered abandoned). The Board also remanded the issue of entitlement to a total disability rating based on individual unemployability for further development. Because the Board has not yet issued a final decision regarding this issue, the Court does not have authority to consider it at this time. See 38 U.S.C. § 7252 (providing that the Court may only review final decisions of the Board); see also Howard v. Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000) (holding that a Board remand does not constitute a final decision that may be appealed (citing 38 C.F.R. § 20.1100(b)(1999))). 3 2 of the Court. Because the Board provided an adequate statement of reasons or bases for its decision, the Court will affirm the September 2010 Board decision. I. FACTS Mr. Hester served on active duty with the U.S. Army from October 1993 to December 1993. He was discharged from active duty after a medical board determined, in October 1993, that he did not meet medical fitness standards for enlistment due to the residuals of a preexisting left elbow fracture"with intermittent symptoms ofnumbnessand tinglingin the ulnar nervedistribution aswell as the middle finger on the left hand" that occasionally spread to the index finger. Record (R.) at 1735. The medical board noted that, a week prior to its determination, Mr. Hester fell and subsequently "developed some muscle spasm on the left side of his neck." R. at 1735. In January 1994, shortly after his separation from active duty, Mr. Hester filed a claim for VA benefits for a neck injury resulting from the in-service fall. Mr. Hester was provided a VA muscles examination in April 1994. After a physical examination and the interpretation of x-rays taken at that time, the examiner diagnosed Mr. Hester with a left neck muscle strain and ruled out cervical radiculopathy.4 In June 1994, a VA regional office awarded Mr. Hester VA benefits for a left neck muscle strain, evaluated as 10% disabling, effective January 1994. Mr. Hester filed a Notice of Disagreement with this decision in November 1994 and, in December 1994, the regional office issued a Statement of the Case continuing the previous determination. In January 1995, Mr. Hester submitted a statement requesting a personal hearing and notification of what further action would be taken. VA medical records from 1996 indicate that Mr. Hester sought treatment for various problems. A January 1996 VA treatment note reflects that Mr. Hester reported intermittent headaches with photophobia, the sensation of seeingblackdots, andpressure. Theimpression atthat time was probable vascular headaches. A March 1996 VA treatment note reflects continued complaints of headaches and blurry eyesight. A VA treatment note from September 1996 indicates Radiculopathy is "disease of the nerve roots, such as from inflamation or impingement by a tumor or bony spur." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1571 (32d ed. 2012) [ hereinafter "DORLAND'S"]. 4 2 that Mr. Hester complained of neck pain with right arm numbness. The only assessment was neck pain. A VA neurological clinic note from October 1996 indicates that Mr. Hester reported headaches, tingling in both of his hands, and numbness in his right arm. Mr. Hester told the examiner that his headaches had plagued him since childhood and caused some visual problems, but no nausea or vomiting. The examiner's impression was variable headaches and numbness and tingling on both hands. Peripheral neuropathy5 and cervical radiculopathy were ruled out. Mr. Hesterwasaffordeda VA joints examination in February1997. The examiner noted that computedtomographyscansofMr.Hester'sheadperformedin February1996werenegativeandthat nerve conduction velocity studies performed on his left upper extremity in March 1995 were negative for radiculopathy, neuropathy, and carpal tunnel disease. After physical examination, the examiner diagnosed a chronic strain of the cervical spine. In June 1997, the regional office issued a rating decision denying a disability rating in excess of 10% for a left neck muscle strain. Although not entirely clear, it appears that the regional office made this determination in the context of a new claim for an increased disability rating. There is no indication that Mr. Hester appealed this decision, meaning it became final. A November 2000 VA physical therapy initial evaluation report reflects that Mr. Hester complained of increased pain in his spine described as "intermittent and . . . localized to the left upper trapezius muscle with some radiation into the upper cervical spine, radiating into the occiput as well as to the parietal lobe, experiencing the pain as headaches." R. at 1589. The assessment at that time was "signs and symptoms of [a] left upper trapezius strain." R. at 1589. A March 2001 VA x-ray report contained an impression of cervical spondylosis. A subsequent VA treatment note from May 2001 reflects that Mr. Hester complained of recent loss of balance and continuing headaches, neck pain, and neck spasms. The impression was (1) cervical spondylosis, (2) myofascial6 pain, and (3) headaches secondary to the cervical spondylosis and myofascial pain, or of another etiology. Peripheral neuropathy, or polyneuropathy, is "neuropathy of several peripheral nerves simultaneously." DORLAND'S at 1491. Neuropathy is "a functional disturbance or pathological change in the peripheral nervous system, sometimes limited to noninflammatory lesions as opposed to those of neuritis." Id. at 1268. The term "myofascial" means "pertaining to or involving the fascia surrounding and associated with muscle tissue." DORLAND'S at 1223. 6 5 3 In August 2001, Mr. Hester submitted a statement "requesting a current review of [his] present condition as it relates to spondylosis, facial pain[,] and migraine headaches." R. at 1480. The regional office treated this statement as a claim for an increased disability rating for his service- connected left neck muscle strain and initial claims for VA benefits for cervical spondylosis and myofascial pain with headaches, both secondary to his service-connected left neck muscle strain. Each of these claims was denied by the regional office in a June 2002 rating decision. The claims for benefits for myofascial pain with headaches and cervical spondylosis were both denied because there was no evidence that they were related to the service-connected left neck muscle strain or that the conditions manifested in service. Mr. Hester filed a Notice of Disagreement with this decision in December 2002. Mr. Hester was afforded VA spine examinations in September 2002 and July 2003, during which range of motion testing was conducted and magnetic resonance imaging and electromyography testing results were reviewed. The September 2002 examiner diagnosed Mr. Hester with "[c]ervical spondylosis with foraminal stenosis" and the July 2003 examiner assessed him with "[i]ntervertebral dis[c] syndrome with radicular symptoms and cervical spondylosis with foraminal stenosis." R. at 1347, 977. The July 2003 examiner further opined that "it is at least as likely as not that the continued progression of [Mr. Hester's] symptoms are related to the onset of symptoms in service." R. at 977. Separate Statements of the Case were issued in October 2002 (continuing to deny an increased disability rating for a service-connected left neck muscle strain) and September 2003 (continuing to deny, among other claims, Mr. Hester's claim for VA benefits for myofascial pain with headaches). Also in September 2003, a decision review officer granted Mr. Hester's claim for benefits for cervical spine spondylosis and assigned a 10% disability rating, effective August 16, 2001. This award of benefits was made in addition to the existing award of benefits for a left neck muscle strain. Mr. Hester filed a Notice of Disagreement with this decision later that month. In November 2003, Mr. Hester submitted a statement indicating that he "[d] isagree[ed] with all of the [i]ssue[s] on appeal" and that he wanted "a decision on all [of his] [i]ssue[s]." R. at 770, 771. 4 In March 2004, a decision review officer issued another decision. At the outset, the decision review officer noted that other issues remained pending following the issuance of Statements of the Case, including Mr. Hester's claim for benefits for myofascial pain syndrome with headaches. The decision reviewofficerfoundthatMr.Hester's service- connectedleftneckmusclestrainandcervical spondylosis should betreatedasonedisabilityandthat"[t]he evaluation of cervical spondylosis with chronic muscle strain of the left neck [was] increased to 60% disabling effective August 16, 2001." R. at 587. The decision review officer rated this condition pursuant to the rating criteria for intervertebral disc syndrome, 38 C.F.R. § 4.71a, Diagnostic Code 5293 ( 2001).7 In establishing this disability rating, the decision review officer relied on "[m]edical evidence show[ing] significant impairment in the neck and left arm with lesser symptoms in the right arm," and stated that the 60% disability rating "include[d] all neurological symptoms in the arms." R. at 587. In October 2007, Mr. Hester requested revision of the June 1994 regional officedecision that awarded benefits for a left neck muscle strain and assigned a 10% disability rating, alleging that that decision was tainted by clear and unmistakable error. After further development, in July 2009 the Board dismissed this motion as untimely because it found that Mr. Hester's January 1995 statement regarding his neck claim was filed "within the one year appeals period from the denial of the claims" and was sufficient to demonstrate his intent to pursue an appeal of the issues decided in the June 1994 regional office decision. R. at 166. Accordingly, the Board found that the regional office mistakenly "failed to certify the issues to the Board, . . . the Board . . . never [took] any action," and the appeal therefore remained open. R. at 166. The Board remanded Mr. Hester's claim for benefits for a left neck muscle strain for further development and readjudication. In October 2009, the regional office issued a Supplemental Statement of the Case continuing to deny an initial disability rating for a service-connected left neck muscle strain in excess of 10% for the period between December 14, 1993, and August 16, 2001, whenMr. Hester's disabilityrating was increased to 60%. The following month, Mr. Hester appealed to the Board, arguing that, because his appeal remained open, the effective date for the March 2004 award of a 60% disability rating should have been effective from the date of his claim. 7 Becausethediagnosticcriteriachanged duringthependencyofMr. Hester'sappeal, thedecisionreviewofficer determined that the previous version would result in a higher disability rating,and therefore applied it. 5 TheBoardissuedthe decision now on appeal in December 2009. The Board framedtheissue before it as Mr. Hester's entitlement to an initial disability rating for a "cervical spine disability" in excess of 10% for the period from December 14, 1993 (the date Mr. Hester filed a claim for a neck injury), to August 16, 2001 (the effective date established by the March 2004 decision for a 60% disability rating for cervical spondylosis with chronic muscle strain of the left neck). R. at 94. II. ANALYSIS 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. Mr. Hester argues that the Board's reasons or bases for its decision were inadequate in four respects, all of which pertain to the disability rating established prior to August 16, 2001. A. Extraschedular Consideration First, Mr. Hester contends that the Board failed to adequately explain its determination that referral for extraschedularconsideration was not warranted for the period of time prior to August 16, 2001. Consideration of whether a claimant is entitled to an extraschedular rating is a three-step inquiry. Thun v. Peake, 22 Vet.App. 111, 115 (2008), aff'd, 572 F.3d 1366 ( Fed. Cir. 2009). The first step is to determine whether the "evidence before VA presents such an exceptional disability picture that the availableschedular evaluations for that service-connected disabilityare inadequate." Id. If the adjudicator determines that this is so, the second step of the inquiryrequires the adjudicator to "determine whether the claimant's exceptional disability picture exhibits other related factors," 6 such as marked interference with employment or frequent periods of hospitalization. Id. at 116. Finally, if the first two steps of the inquiry have been satisfied, the third step requires the adjudicator to refer the claim to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether an extraschedular rating is warranted. Id. TheBoardconcludedthat,priorto August16,2001,Mr.Hester's"service- connectedcervical spine disability manifest[ed] with pain and limitation of motion, with associated neurological symptoms of sensorydeficit." R. at 112. However, the Board further concluded that its examination of Mr. Hester's symptoms and the relevant schedular criteria reflected that "these symptoms are contemplated by the rating criteria." R. at 112. The Board therefore concluded that referral for extraschedular consideration was not warranted. Mr. Hester argues that, by discussing only his symptoms of pain, limitation of motion, and neurological sensory deficits, the Board ignored evidence suggesting that, prior to August 2001, he alsosufferedfromsymptoms suchasheadaches,blurredvision, lossofbalance, andmyofascialpain. He further asserts that there is evidence that these symptoms may be attributable to his service- connected neck condition, including the May 2001 VA treatment note that included an assessment of headaches possibly secondary to the cervical spondylosis or myofascial pain. Accordingly, he contends that the Board should have discussed whether these symptoms warranted referral for extraschedular consideration. The Court disagrees. The record indicates that, since Mr. Hester filed a statement in August 2001 requesting review of his condition as it relates to myofascial pain and migraine headaches, the regional office has recognized a separate claim for disability compensation benefits for a condition characterized by such symptoms, including as secondary to Mr. Hester's service-connected neck/cervical spine condition. The record further indicates that the regional office denied this claim in June 2002, that Mr. Hester filed a Notice of Disagreement with this decision, and that the regional office issued a Statement of the Case continuing to deny this claim in September 2003. The Court notes that, in November 2003, Mr. Hester filed a statement expressing that he "[d]isagree[ d] with all of the [i]ssue[s] on appeal" and requesting "a decision on all [his] [i]ssue[s]." R. at 770, 771. In January 2012, the Court issued an order directing "the Secretary to supplement the record of proceedings with all documents pertaining to VA's adjudication of the claim for benefits for 7 myofascial pain syndrome with headaches" in an effort to better assess the status of this claim. Hester v. Shinseki, U.S. Vet. App. No. 10-3072 (Jan. 20, 2012, order).8 Although the Secretaryfiled a supplemental record of proceedings in February 2012, the evidence contained in this supplement is either duplicative of that already contained in the original record of proceedings or simply does not relate to Mr. Hester's claim for benefits for myofascial pain with headaches. The Court is therefore left to assume that VA has taken no further adjudicatory action on this claim since the September 2003 Statement of the Case. The Court is troubled by this state of affairs, given Mr. Hester's November2003statementthatappearsto request appellatereview of all issues thenpending in appellate status, which would presumablyinclude the denial of his claim for myofascial pain with headaches. Nevertheless, because the issue of the denial of benefits on that claim is not currently before the Court, the Court makes no finding at this time regarding whether the November 2003 statement constituted a Substantive Appeal, since the Court would lack jurisdiction to do so. Regardless, it is apparent from the record that VA has determined that Mr. Hester's myofascial pain, headaches,and attendant symptoms are attributable to a disabilityseparate from his service-connected cervical spine disability, and that this disability is not secondary to the cervical spine disability or otherwise related to his service. This being so, these symptoms are not pertinent to the service-connected cervical spine disability that is at the heart of this appeal and the Board was therefore not required to discuss them when conducting an extraschedular analysis. See 38 C.F.R. § 3.321 (2011) (expresslystating that extraschedular evaluation should compensate for "the average earning capacity impairment due exclusively to the service-connected disability or disabilities" (emphasis added)); see also 38 U.S.C. § 7104(d)(1) (providing that the Board must provide a statement of its reasons or bases for its findings and conclusions only " on . . . material issues of fact and law presented on the record" (emphasis added)); Caluza, 7 Vet.App. at 506 (stating that the Board's obligation to explain its determinations requires it to explain its rejection of any material evidence that is favorable to the claimant). In reaching this conclusion, the Court emphasizes that The Court also offered Mr. Hester an opportunity to supplement the record with any documents he felt were relevant but had not been included in the supplement filed by the Secretary, see Hester v. Shinseki, U.S. Vet. App. No. 10-3072 (Mar. 15, 2012, order), but, on March 20, 2012, he filed a response indicating that he had nothing more to add. 8 8 the propriety of the regional office's determination that Mr. Hester's disorder characterized as myofascial pain with headaches is not service connected is simply not before the Court at this time. In light of this discussion, the Court concludes that Mr. Hester has not carried his burden of demonstrating error in the Board decision now on appeal. See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (holding that appellant has the burden of demonstrating error), aff'd per curiam, 232 F.3d 908 (Fed. Cir. 2000) (table). B. Claims Reasonably Raised by the Record Mr. Hesternext argues that the Board's statement of reasons or bases was inadequate because "the decision on appeal fails to explain why the evidence of headaches, blurred vision, and loss of balance—and evidence that these problems are associated with service- connected cervical spine disability—were not additional claims reasonably raised by the record." Appellant's Br. at 15. This argument is not compelling. First, and as noted above, the record reflects that VA has recognized and adjudicated a claim for myofascial pain syndrome with headaches since Mr. Hester filed his August 2001 statement requesting a review of his condition as manifested by facial pain and headaches. Because VA has recognized and adjudicated such a claim, Mr. Hester's argument that the Board should have discussed the possibility that evidence of headaches raised a separate claim is without merit. To the extent that Mr. Hester's argument is that VA should have recognized the possibility of a claim for a separate condition manifested by blurred vision and loss of balance, in support of this argument, he cites only to various medical records documenting these symptoms. However, it is now well established that an intent to apply for benefits is an essential element of any claim, whether formal or informal, and that such intent must be expressed in writing. See Brokowski v. Shinseki, 23 Vet.App. 79, 84 (2009) (explaining that "the essential requirements of any claim, whether formal or informal," are "(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing"); see also 38 C.F.R. § 3.1(p) (2011) (defining a "claim" as "a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement"). Accordingly, this Court has previously held that, unless the evidence of record demonstrates the veteran's intent to seek benefits for a particular disability, the mere existence of medical evidence referencing the disability, such as that cited by Mr. 9 Hester, does not raise an informal claim for such benefits. See Criswell v. Nicholson, 20 Vet.App. 501, 503–04 (2006). The only exception to this rule is that, pursuant to regulation, certain medical records demonstrating a worsening in a veteran's disability that is already service connected may constitute an informal claim for an increased disability rating for that disability. See 38 C.F.R. § 3.157(b) (2011); see also Massie v. Shinseki, 25 Vet.App. 123, 131-32 (2011) (discussing the requirements of § 3.157(b)). Here, Mr. Hester has not cited any evidence reflecting his written intent to seek benefits for blurred vision or loss of balance. Instead, he has cited only medical records documenting these symptoms. Because these records alone could not, as a matter of law, have raised initial claims for VA benefits for conditions characterized bysuch symptoms, the Board was not obligated to consider and discuss this possibility. See Criswell, 20 Vet.App. at 503-04; see also 38 U.S.C. § 7104(d)(1) (requiring the Board to consider only the "material issues of . . . law presented on the record"). C. Evidence of Right Upper Extremity Neurological Symptoms Next, Mr. Hester argues that the Board ignored evidence that, prior to August 2001, he exhibited neurological symptoms in not just his left upper extremity, but also his right upper extremity. He contends that the Board was required to consider evidence of neurological symptoms in his right upper extremity because it is favorable insomuch as it may have resulted in a higher schedular rating. The Board considered several diagnostic codes under which Mr. Hester's condition could be rated for the period prior to August 16, 2001, including the rating criteria for intervertebral disc syndrome, 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2001). At that time, Diagnostic Code 5243 provided for: a 60% disability rating for pronounced intervertebral disc syndrome "with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to [ the] site of [the] diseased disc, [with] little intermittent relief"; a 40% disability rating for severe symptoms characterized by "recurring attacks[] with intermittent relief"; a 20% disability rating for moderate symptoms characterized by "recurring attacks"; and a 10% disability rating for mild symptoms. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2001). 10 The Board concluded that, even if it were to evaluate Mr. Hester's condition pursuant to this diagnostic code, the evidence of record prior to August 16, 2001, did not demonstrate that his symptoms were any more than moderate. Mr. Hester argues that, in reaching this conclusion, the Board considered only evidence of neurological symptoms such as tingling and numbness in his left hand and arm and ignored evidence suggesting that he also experienced such symptoms in his right hand and arm. However, Mr. Hester ignores that the Board expresslyconsidered the results of reflex testing conductedbyvariousmedicalexaminersbetweenApril1994andAugust 14,2001, thatcumulatively suggested that his "reflexes were 2+ and symmetrical, bilaterally, at all times." R. at 112 (emphasis added). Accordingly, although the Board did not explicitly state that the record contained some evidence that Mr. Hester experienced numbness in his right upper extremity, it did base its determination on reflex testing that addressed the neurological impact of Mr. Hester's condition on both of his upper extremities. Under these circumstances, the Court concludes that the Board adequately discussed the evidence of record pertaining to neurological symptoms Mr. Hester experiences in his bilateral upper extremities. D. Effective Dates Finally, Mr. Hester argues that the Board failed to adequately discuss the ramifications of its July 2009 determination that his initial claim for benefits for a neck muscle strain remained in appellate status. More specifically, he contends that the Board failed to discuss how this determination impacted the establishment of an effectivedate for the increased 60% disabilityrating awarded by a decision review officer in March 2004. It appears that his contention is that, because the decision review officer established an effective date for this increased disability rating based on the mistaken presumption that Mr. Hester's August 2001 statement was a new claim for an increased disability rating, he is entitled to an effective date prior to August 2001 for the increased disability rating as a result of the Board's July 2009 decision. This argument is unpersuasive. The Board adequately explained its determination that Mr. Hester was not entitled to a disability rating in excess of 20% prior to August 16, 2001. Specifically, the Board stated that, because Mr. Hester's appeal involved the appropriate initial disability rating, it was giving "consideration . . . to 'staged ratings' (different percentage ratings for different periods of time since 11 the effective date of service connection)." R. at 112 (citing Fenderson v. West, 12 Vet.App. 119 (1999). The Board further found that "the weight of the credible evidence demonstrate[d] that [Mr. Hester's] cervical spine disability . . . warranted a 20[%] rating but no more for the period prior to August 16, 2001, and no more than 60[%] for the initial rating period since August 16, 2001." R. at 112. This finding was based on a lengthy analysis of the medical evidence of record prior to August 16, 2001, and Mr. Hester does not contend that the Board clearly erred in assessing this evidence and assigning no more than a 20% disability rating for this period under the schedular criteria. Accordingly, the Court concludes that the Board adequatelyexplained its decision to assign staged ratings. Further, this explanation clearly indicated that the Board was aware of the import of its July 2009 finding that Mr. Hester's claim remained in appellate status. III. CONCLUSION Upon consideration of the foregoing, the September 8, 2010, Board decision is AFFIRMED. DATED: April 17, 2012 Copies to: Ante Hester VA General Counsel (027) 12