President Obama Signs VA Burn Pit Registry Law, Sec 201

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

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

Excerpts from decision below: "The issue presented is not whether the act of riding a bicycle is integral to the training VA authorized, but whether a participant's commute home from VA vocational rehabilitation class is within the scope of the rehabilitation services provided by VA as described in section 3104(a) and addressed in Cottle. Given Mr. Conniff's arguments, the Board's statement that it is "manifestly obvious" that riding a bicycle is not an "essential activity or function" or a "necessary component" of VA vocational rehabilitation training (38 C.F.R. § 3.361(d)(3); R. at 13), not only mischaracterizes the veteran's argument, it also does not contain the reasoned analysis needed to support an ultimate conclusion as to the question and to enable review by this Court. See Gilbert, 1 Vet.App. at 56-57." ============================= "However, the Board concluded that there is no proximal causal connection between the veteran's conceded additional disability and an essential activity or function of the VA vocational rehabilitation program without adequate examination or explanation of whether an individual's commute to and from rehabilitation classes is an essential activity or necessary component of the vocational rehabilitation program and the scope of services listed in 38 U. S.C. § 3104. Therefore, the Board's conclusion as to proximate cause was premature–§ 3.361(b) informs VA's proximate 7 cause determination and is not irrelevant in this case. Therefore, the Board's failure to consider the "essential activity" language in light of section 3104(a) is not harmless error." ============================= ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 11-2131 AUGUSTINE P. CONNIFF, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before BARTLEY, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. BARTLEY, Judge: Augustine P. Conniff served in the U.S. Army from March 1987 to May 1988. Record (R.) at 4. He now appeals through counsel from a May 31, 2011, decision of the Board of Veterans'Appeals (Board) that deniedentitlement to compensation under 38 U.S.C. § 1151 for multiple injuries, including status post bilateral wrist and forearm fractures, fractures of the 3rd, 4th, and 5th fingers, laceration of the knees, and laceration of the forehead,1 all claimed to have been sustained while in pursuit of a program of VA vocational rehabilitation.2 For the following reasons, the Court will set aside the Board's May 2011 decision and remand the case for readjudication consistent with this decision. There is also evidence in the record of "impaired brain function of moderate severity" (R. at 98), allegedly resulting from the same accident in which Mr. Conniff suffered the wrist and forearm fractures. R. at 96. The Board noted this evidence (R. at 9), but did not include brain damage in its description of the claim. The Board also referred a claim for entitlement to service connection for arthritis in the wrists and knees for development. Normally, the Court does not have jurisdiction over a referred claim. See Link v. West, 12 Vet.App. 39, 47 (1998) ("Claims that have been referred by the Board to the [VA regional office] are not ripe for review by the Court."). But see Young v. Shinseki, 25 Vet.App. 201 (2012) (en banc order) (Court has limited jurisdiction to review the propriety of referring rather than remanding a portion of a claim properly before the Court). Because Mr. Conniff raises no argument as to the propriety of the referral, the Court will give no further consideration to that matter. 2 1 I. FACTS Beginning in 2004, Mr. Conniff participated in aVAvocationalrehabilitationprogramunder title 38 U.S.C., chapter 31 (R. at 323, 719); the program included a course of study at Arkansas State University Mountain Home. See R. at 13. On June 7, 2007, after taking a test in connection with the vocational rehabilitation program, he was returning home on his bicycle and, while en route, an automobile struck him while he was entering an intersection crosswalk. R. at 331, 334, 337-38. His injuries included "[two] double breaks in the bones of each forearm, both wrists [] shattered, and . . . three broken fingers on the right (major) hand." R. at 719. He apparently also sustained a "large laceration superior left skull," which required 10 sutures. R. at 8. The driver of the automobile "was at fault for failure to yield and careless driving. [S]he was issued two citations." R. at 334 (police report). On June 25, 2007, Mr. Conniff submitted a claim for compensation for his injuries under 38 U.S.C. § 1151. The regional office denied the claim on the basis that "[ t]here [was] no action on the part of the VA that resulted in the accident that caused [the] additional disabilities and [the] travel from the site of VA's vocational rehabilitation training was not an act performed in [pursuit] of vocational training, that is, a required learning activity." R. at 292. On appeal to the Board, Mr. Conniff's representative argued that under Cottle v. Principi, 14 Vet.App. 329 (2001), "the phrase 'in the pursuit of a course of vocational rehabilitation' embraces a full programof rehabilitation[,] which includes educational, vocational, and employment services, and which ends when the veteran has been declared rehabilitated." R. at 137. He argued that "the injuries [Mr. Conniff] sustained while traveling on his way home . . . arose out of and in the course of his vocational rehabilitation [t]raining." Id. He cited a case from the Arkansas Supreme Court that granted worker's compensation benefits under a "coming and going" rule for an in-home assistant who used her own vehicle to travel to and from her patients' homes. The representative argued that like the plaintiff in that case, Mr. Conniff "was acting within the course of his employment with [the VA] Vocational Rehabilitation Training [Program] at the time his injuries were sustained." R. at 138. In the decision here on appeal, the Board found that "[r]iding a bicycle was not a necessary component of the training or services program authorized for the Veteran." R. at 5. The Board asserted that "[i]t is manifestly obvious that riding a bicycle was not an 'essential activity or function' 2 of [the] training, nor was it a 'necessary component' of the training he was receiving." R. at 13; see 38 C.F.R. § 3.361(d)(3) (2012). The Board reasoned that "[t]he VA training program did not cause the Veteran's injuries; misadventure and a careless driver of another vehicle on a public highway did." Id. The Board concluded that "[t]here is nothing in the law, regulations or court decisions which make VA an insurer with respect to injuries sustained via activities which are only tangentially connected with VA programs, such as traveling to and from such programs." Id. The Board interpreted the statute and regulation to exclude Mr. Conniff's claim under the proximate causation requirement. The Board concluded that: "[T]here is no proximal causal connection between the multiple injuries, involving the wrists, forearms, knees and left forehead, sustained in the June 2007 bicycle accident and an essential activity or function which was within the scope of the VA rehabilitation course." R. at 13. II. ANALYSIS A. Applicable Law and Regulations Under 38 U.S.C. § 1151(a), compensation "shall be awarded for a qualifying additional disability in the same manner as if such additional disability were service[ ]connected" if the disability was (a) . . . not the result of the veteran's willful misconduct and – (2) . . . was proximately caused [] by the provision of training and rehabilitation services by the Secretary (including by a service-provider used by the Secretary for such purpose under section 3115 of this title) as part of an approved rehabilitation program under chapter 31 of this title . . . . 38 U.S.C. § 1151(a). Thus, to obtain benefits under 38 U.S.C. § 1151(a), Mr. Conniff, who was participating in a VA vocational rehabilitation program, must show: (1) A " qualifying additional disability," (2) proximately caused by the provision of VA training and rehabilitation services under chapter 31. Id. To establish that the provision of training and rehabilitation services " proximately caused a veteran's additional disability . . . it must be shown that the veteran's participation in an essential activity or function of the training, services, or CWT (Compensated Work Therapy) provided or authorized by VA proximately caused the disability." 38 C.F.R. § 3.361(d)( 3) (emphasis added). 3 "It need not be shown that VA approved that specific activity or function, as long as the activity or function is generally accepted as being a necessary component of the training, services, or CWT program that VA provided or authorized." Id. (emphasis added). The regulation further states that "[t]he proximate cause of disability . . . is the action or event that directly caused the disability . . . as distinguished from a remote contributing cause." 38 C.F.R. § 3.361(d). The Board is required to consider all evidence of record and discuss all " potentially applicable" provisions of law and regulation. Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991); see 38 U.S.C. § 7104(a); Weaver v. Principi, 14 Vet.App. 301, 302 (2001) (per curiam order). In rendering its decision, the Board must also provide a statement of reasons or bases that is adequate to enable an appellant to understand the precise basis for that decision and to facilitate review in this Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990). To comply with these requirements, the Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). The Court reviews the Board's interpretation of the statute and regulations de novo. See 38 U.S.C. § 7261(a); Martin v. Brown, 6 Vet.App. 272, 274 (1994). B. Summary of the Parties' Arguments Mr. Conniff argues, inter alia, that his commute fromhisVAvocationalrehabilitationclasses was "an essential activity or function" of that program. Appellant's Br. at 10-11. Mr. Conniff further argues that the Board erred in failing to fully address an argument raised below, to the effect that a rehabilitation program includes a panoply of services directed at rehabilitating a veteran, all of which are essential activities or functions of the training. Appellant's Br. at 9 (citing Cottle, supra). In Cottle, the Court construed a phrase in a former version of section 1151,3 which provided for benefits when a veteran was injured in "pursuit of a course of vocational rehabilitation." Id. at Section 1151 was amended in 1996; the amendment applied to cases filed on or after October 7, 1997. Cottle, 14 Vet.App. at 332. The amended language did not include the phrase "pursuit of a course of vocational rehabilitation." Because Mr. Conniff's claim was received by VA in June 2007 (R. at 11), the version of the statute considered in Cottle does not apply to Mr. Conniff's claim. However, the Cottle Court remarked: "We note that the current version of section 1151 provides for the same eligibility." Cottle, 14 Vet.App. at 337. Therefore, the Court perceives no alteration to the logic of the case inhering in the amendment to the statute. 3 4 332. The Court held that a veteran who injured his back while working for a city transit system while on a probationary period of employment obtained through a VA rehabilitation program, but who had not been certified as rehabilitated, had a claim for benefits under section 1151 because "employment services" was within the scope of the rehabilitation program. Id. at 337. Mr. Conniff argues that his Cottle argument, raised before the Board, "should have prompted a discussion of 38 U.S.C. § 3104(a)," which provides in part that the Secretary may provide participants in the VA vocational rehabilitation program with travel and incidental expenses and, in some cases, a special transportation allowance. Appellant's Br. at 9-10. Mr. Conniff also raises to this Court an argument submitted to the Board, " regarding the 'coming and going rule' under the Workers' Compensation Act."4 Appellant's Br. at 8-9; see also R. at 122, 124, 140-44. Mr. Conniff also implies that the Board erred by failing to mention a regulation requiring a "meticulous examination into all the circumstances . . . including a consideration of the time and place of the incident producing the injury," in order to determine the scope of the rehabilitation program (Appellant's Br. at 11-12).5 38 C.F.R. § 3.358(c)(5) (2012). The Secretary responds, inter alia, that nothing in Cottle pertained to the issue of whether a commute to or from a "course of vocational rehabilitation"was within the purview of section 1151. Secretary's Br. at 11. He concludes that the Board did not err in failing to discuss Cottle or the provisions of 38 U.S.C. § 3104, or alternatively, that the error was harmless because Mr. Conniff has not demonstrated that VA caused his additional disabilities. Id. at 12. C. Whether Veteran's Commute Home From a VA Vocational Rehabilitation Class is an Essential Activity or Function of the Vocational Rehabilitation Program Section 3104 of title 38, U. S. Code, which defines the "Scope of Services and Assistance" of the VA vocational rehabilitation program, provides in part: (a) Services and assistance which the Secretary may provide under this chapter, The Court has cautioned against importing regulations from another body of benefits law in the adjudication of VA claims. See Beaty v. Brown, 6 Vet.App. 532, 538 (1994) ("There is no statutory or regulatory authority for the determinative application of SSA [Social Security Administration] regulations to the adjudication of VA claims."). For this reason, the Court does not find that consideration of the "coming and going" rule under the Workers' Compensation Act to be of assistance in resolving this case. The Court will not further discuss this argument. Section 3.361 applies to claims received by VA after October 1, 1997. 38 C. F.R. § 3.361(a)(1). Section 3.358 applies to claims received by VA prior to October 1, 1997. 38 C.F.R. § 3.358(a) (2012). As the Board noted, Mr. Conniff's claim was received in June 2007. R. at 7. Therefore, his arguments based on § 3.358 are misplaced. 5 4 5 pursuant to regulations which the Secretary shall prescribe, include the following: ***** (13) Travel and incidental expenses under the terms and conditions set forth in section 111 of this title, plus, in the case of a veteran who because of such veteran's disability has transportation expenses in addition to those incurred by persons not so disabled, a special transportation allowance to defray such additionalexpensesduringrehabilitation,jobseeking, andtheinitialemployment stage. ***** (15) Services necessary to enable a veteran to achieve maximum independence in daily living. 38 U.S.C. § 3104. Mr. Conniff points out that this Court has stated that the purpose of chapter 31 benefits is "'to provide all services and assistance necessary to enable veterans . . . to become employable and to maintain suitable employment.'" Id. (quoting Cottle, 14 Vet.App. at 332). "Consequently," Mr. Conniff reasons, he "was entitled to reimbursement for travel and incidental expenses during his vocational rehabilitation." Appellant's Br. at 10. Mr. Conniff concludes "that transportation to and from courses provided as a part of a vocational rehabilitation program is an 'essential activity or function' of that program." Id. at 10-11. He adds: There is no question that had Mr. Conniff sought reimbursement for transportation expenses to and from his vocational courses, VA would have been obligated to pay him. Where, like here, a veteran uses a mode of transportation that does not have any costs associated with it, that does not eviscerate the fact that transportation to and from classes is an essential activity or function necessary for participation in the program. Therefore, because Mr. Conniff was participating in an essential activity or function of his vocational program at the time of his disabling injuries, he is entitled to compensation under the provisions of 38 U.S.C. § 1151 for his additional disability. Id. at 11. This argument presents the issue whether a commute home from a vocational rehabilitation program is to be regarded as within the scope of the services that VA provides in connection with such a program. The record shows that this argument was amply presented to the Board. See R. at 124-27, 135-39, 237. The Board's purported reasoning, that "[i]t is manifestly obvious that riding a bicycle was not an 'essential activity or function' of this training, nor . . . a 'necessary component' of the training he was receiving" (R. at 13), mischaracterized rather than confronted Mr. Conniff's 6 argument. The issue presented is not whether the act of riding a bicycle is integral to the training VA authorized, but whether a participant's commute home from VA vocational rehabilitation class is within the scope of the rehabilitation services provided by VA as described in section 3104(a) and addressed in Cottle. Given Mr. Conniff's arguments, the Board's statement that it is "manifestly obvious" that riding a bicycle is not an "essential activity or function" or a "necessary component" of VA vocational rehabilitation training (38 C.F.R. § 3.361(d)(3); R. at 13), not only mischaracterizes the veteran's argument, it also does not contain the reasoned analysis needed to support an ultimate conclusion as to the question and to enable review by this Court. See Gilbert, 1 Vet.App. at 56-57. The Court will therefore set aside the Board decision and remand the case. On remand, the Board should address whether the commute to and from rehabilitation classes that are part of a program of vocational rehabilitation is an essential activity or function or necessary component of the rehabilitation services furnished by VA, in view of the Court's decision in Cottle and 38 U.S.C. §§ 3104(a)(13) & (15). As to proximatecause,thepertinent regulation states that "[t]he proximate cause ofdisability . . . is the action or event that directly caused the disability . . . as distinguished from a remote contributing cause." 38 C.F.R. § 3.361(d). In assessing proximate causation in the context of the VA vocational rehabilitation program specifically, the regulation provides that "[t]o establish that the provision of training and rehabilitation services [ ] proximately caused a veteran's additional disability . . . it must be shown that the veteran's participation in an essential activity or function of the training . . . proximately caused the disability." 38 C.F.R. § 3.361( d)(3). Here, the Board concluded: "[T]here is no proximal causal connection between the multiple injuries, involving the wrists, forearms, knees and left forehead, sustained in the June 2007 bicycle accident and an essential activity or function which was within the scope of the VA rehabilitation course." R. at 13. However, the Board concluded that there is no proximal causal connection between the veteran's conceded additional disability and an essential activity or function of the VA vocational rehabilitation program without adequate examination or explanation of whether an individual's commute to and from rehabilitation classes is an essential activity or necessary component of the vocational rehabilitation program and the scope of services listed in 38 U. S.C. § 3104. Therefore, the Board's conclusion as to proximate cause was premature–§ 3.361(b) informs VA's proximate 7 cause determination and is not irrelevant in this case. Therefore, the Board's failure to consider the "essential activity" language in light of section 3104(a) is not harmless error. See 38 U.S.C. § 7261(b)(2) (requiring the Court to take due account of prejudicial error). Remand will provide the Board the opportunity to assess proximate causation after full consideration of the veteran's argument that a vocational rehabilitation participant's commute to and from rehabilitation classes is an essential activity or function of the program. On remand, Mr. Conniff will be free to submit additional evidence and argument in support of his claim, and the Board is required to consider any such evidence and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). A final decision by the Board following the remand herein ordered will constitute a new decision that, if adverse, may be appealed to this Court on the filing of a new Notice of Appeal with the Court not later than 120 days after the date on which notice of the Board's new final decision is mailed to the appellant. See Marsh v. West, 11 Vet.App. 468, 472 (1998). III. CONCLUSION Based on the foregoing, the Court SETS ASIDE the Board's May 31, 2011, decision with respect to the section 1151 claim and remands the matter for readjudication consistent with this decision. DATED: January 2, 2013 Copies to: Judy J. Donegan, Esq. VA General Counsel (027) 8

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

Excerpt from decision below: "Second, the Board's statement that intermittent but continuous symptoms –i.e., back and hip pain that occurred "off and on" since service–can never establish continuity of symptoms under § 3.303(b) is overbroad. R. at 10. Contrary to the Board's finding, continuity of symptoms under § 3.303(b) does not require that postservice symptoms be constant; it requires only the consistent postservice reoccurrence of the same symptoms experienced in service. For example, an episodic disability that occurs repeatedly after service may be subject to service connection via continuity of symptoms under § 3.303(b). See, e.g., Vanderpool v. Derwinski, 3 Vet.App. 273, 277-78 (1992)(remanding for the Board to consider whether the veteran's episodic headaches could be service connected based on, inter alia, continuity of symptomatology). The record in this case contains evidence of such reoccurring, episodic symptoms, which the Board appears to have impermissibly rejected based on its misunderstanding of § 3.303(b). R. at 329 (September 2007 NOD describing "chronic" low back and bilateral hip conditions beginning in May 1986, which "continue[d] throughout [her] military career" and necessitated "continual care and treatment"), 171 (June 2008 report of a history of back and hip pain "off and on since the 1980s," with episodes lasting one week at a time), 279 (July2008 report of back and hip pain beginning in 2005 that "comes and goes"), 166 (August 2008 report of a "history of low back pain going to both hips since [the] 1980s"), 141-42(August 2008 physical therapy records reflecting "constant" low back pain that began in 2004),86-93 9 (May2009 Board hearing testimony reflecting back and hip pain since an in- service incident in 1986 and exacerbated by the birth of her second child in 2005), 41 (December 2009 VA medical examination noting "back pain on and off since 1986"). The Board's failure to properly consider that potentially favorable evidence thus constitutes error. See Caluza, 7 Vet. App. at 506." ============================ ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 11-3573 TABITHA L. LYLES, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before BARTLEY, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. BARTLEY, Judge: Veteran Tabitha L. Lyles, who is self-represented, appeals a July 26, 2011, Board of Veterans' Appeals (Board) decision denying entitlement to service connection for a low back strain and a bilateral hip strain.1 Record (R.) at 3-13. This appeal is timely, and the Court has jurisdiction to review the Board's decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate in this case. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons that follow, the Court will set aside the July 2011 Board decision and remand the matter for further development, if necessary, and readjudication consistent with this decision. I. FACTS Ms. Lyles served on active duty in the U.S. Navy from December 1985 to March 2006. R. at 1117. Her service medical records (SMRs) reflect treatment for hip and back pain, variously diagnosed as mild muscle strain and musculoligamentous back pain. R. at 878 (May1986 complaint The Board also remanded Ms. Lyles's claimfor service connection for carpal tunnel syndrome of the left wrist. Because a remand is not a final decision of the Board subject to judicial review, the Court does not have jurisdiction to consider that claim at this time. See Howard v. Gober, 220 F.3d 1341, 1344 ( Fed. Cir. 2000); Breeden v. Principi, 17 Vet.App. 475, 478 (2004); 38 C.F.R. § 20.1100(b) (2012). 1 of hip and low back pain), 876 (July 1992 complaint of low back pain), 775 (July 1999 report of a history of low back pain), 739 (October 2004 complaint of postpartum back pain), 886 (December 2005 report of a history of back spasms for which she did not seek treatment), 889-90 (December 2005 report of a history of recurrent back pain and back spasms since an August 2005 cesarean section). However, no spine or musculoskeletal abnormalities were noted upon her separation from service. R. at 820-22. In February 2007, within one year from separation from service, Ms. Lyles filed a claim for service connection for, inter alia, low back strain and bilateral hip pain. R. at 416-26. She underwent a VA medical examination for those conditions in April 2007. R. at 372-77. Ms. Lyles complained of low back pain, weakness, and stiffness, as well as bilateral hip pain, weakness, and instability (R. at 372-73), but x-rays taken at that time revealed a normal lumbar spine and hips (R. at 376-77). Based on those x-rays, as well as a physical examination, the examiner diagnosed Ms. Lyles with lumbar and bilateral hip strains. R. at 375. Later that month, a VA regional office (RO) issued a decision denying entitlement to service connection for a low back strain and bilateral hip strain. R. at 356-67. Ms. Lyles filed a timely Notice of Disagreement (NOD) with that decision in September 2007, in which she asserted that her low back and bilateral hip conditions were "chronic and severe in nature," began in May 1986 and "continue[d] throughout [her] military career," and necessitated " continual care and treatment." R. at 329. She subsequently perfected her appeal.2 In the meantime, in October 2007, Ms. Lyles sought treatment for bilateral hip pain of one year's duration. R. at 287. X-rays taken at that time revealed "[n]ormal hips,"and she was diagnosed with a "chronic sacroiliac sprain."3 R. at 289-90. The Court notes that the record of proceedings does not contain the pages cited in the Secretary's brief regarding the filing of a Substantive Appeal. See Secretary's Brief (Br.) at 4 (citing R. at 240-45). The Court advises the Secretary to take greater care in compiling the record of proceedings, particularly in appeals with self-represented appellants. See U.S. VET. APP. R. 28.1(a) (requiring the Secretary to prepare and file the record of proceedings). "Sacroiliac" "denot[es] the joint or articulation between the sacrum and ilium and the ligaments associated therewith." DORLAND'SILLUSTRATEDMEDICALDICTIONARY1662 (32d ed. 2012) [ hereinafter DORLAND'S]. The sacrum is "the triangular bone just below the lumbar vertebrae." Id. The "ilium" or "iliac bone" is "the expansive superior portion of the ox coxae (hip bone)." Id. at 1341. 3 2 2 During a June 2008 neurological examination, Ms. Lyles reported a history of low back pain "off and on since the 1980s," which "goes to both hips." R. at 171. She was diagnosed with intermittent cervical spine pain, intermittent low back pain with radiation to the hips, and a history of bursitis of both hips. R. at 173. The following month, Ms. Lyles sought further treatment for bilateral sacroiliac joint pain that "comes and goes," which began after the birth of her second child in 2005. R. at 279. She was diagnosed with a back strain in the sacroiliac region. R. at 280. In August 2008, Ms. Lyles underwent another neurological examination, wherein she reported a "history of low back pain going to both hips since [the] 1980s." R. at 166. A review of past x-rays revealed a normal cervical and lumbar spine, and Ms. Lyles was again diagnosed with intermittent cervical spine pain, intermittent low back pain with radiation to the hips, and a history of bursitis of both hips. R. at 167. Later that month, Ms. Lyles began a physical therapy program to treat her lumbago, which she described as a "constant" low back pain that began four years earlier.4 R. at 141-42. In May2009, Ms. Lyles was again treated for low back and hip pain. R. at 144. X-rays taken the following month indicated that her spine was normal. R. at 145. Later that month, Ms. Lyles testified at a Board hearing. R. at 67-101. She stated that her back and hip pain began in service in 1986 after she jumped onto a refueling probe, and was exacerbated by lifting and carrying boxes of paper. R. at 86-87. She further explained that her back pain became "debilitating" after the birth of her second child in 2005. R. at 87. Military doctors initiallycharacterized herincreasedsymptoms aspostpartumpain, despiteherreports ofhavingbeen "pricked with a needle during an epidural." R. at 88. According to Ms. Lyles, her low back and hip pain continued after service and she sought treatment for those conditions as early as September 2006. R. at 88-93. In November 2009, the Board issued a decision that, in pertinent part, remanded her claims for serviceconnection forlowbackandbilateral hip strains for furtherdevelopment, including a new VA medical examination addressing the etiology of those conditions. R. at 52-64. 4 Lumbago is "a nonmedical term for any pain in the lower back." DORLAND'S at 1076. 3 Ms. Lyles attended that examination in December 2009. R. at 41-44. After reviewing her claims file, obtaining a subjective medical history, and performing a physical examination, the examiner diagnosed Ms. Lyles with a lumbosacral strain, bilateral sacroiliac joint dysfunction, and bilateral trochanteric bursitis.5 R. at 41-42. The examiner opined that it was "less likely as not" that Ms. Lyles's low back and bilateral hip disabilities were incurred in or aggravated by service. R. at 43. The examiner provided the following rationale for his opinion: The service treatment records indicated the veteran complained of back spasms after her C-section, but do not necessary [sic] indicate the presence of a chronic ongoing problem with her back. There is no medical treatment since 09/07/1992 for low back pain during service. The veteran was also seen on one occasion for left hip pain, on 05/06/1986, and was diagnosed with a mild muscle strain. Thus, there is a lack of clinical evidence to support the veteran's claim that her low back and hip disabilities were incurred in or aggravated by service. R. at 43-44. In July 2011, the Board issued the decision currently on appeal, which denied entitlement to service connection for a low back strain and a bilateral hip strain. R. at 3-13. The Board first found that "any statements of record made by the Veteran claiming that her disabilities were the result of an injury in service are not competent evidence of her disorders' etiologies as the Veteran is a lay person without the medical expertise to render such a diagnosis." R. at 9- 10 (citing Espiritu v. Derwinski, 2 Vet.App. 492, 494-95 (1992)). The Board therefore afforded her statements "little weight," instead favoring the negative nexus opinion from the December 2009 VA medical examiner. R. at 10. The Board also found that Ms. Lyles's statements of continuing back and hip pain since service did not establish continuity of symptoms because " several treatment records indicate that her pain was 'off and on' rather than continuous since her discharge from active military service." Id. Consequently, the Board found that the preponderance of the evidence was against her claims. R. at 10-11. This appeal followed. 5 "Trochanteric" refers to the "hip region." DORLAND'S at 1618. 4 II. ANALYSIS A. Claims on Appeal Asan initial matter, the Court notes that Ms. Lyles's informalbriefreferstoclaimsforservice connection for carpal tunnel syndrome of the right wrist, chronic rhinitis, and chronic sinusitis, none of which were the subject of the Board decision currentlyon appeal. See Appellant's Br. at 1-2. Ms. Lyles was awarded service connection for carpal tunnel syndrome of the right wrist in September 2008 (R. at 207-14) and for chronic rhinitis (also claimed as chronic sinusitis) in November 2009 (R. at 52-64). The record does not indicate that she disagreed with the disability evaluations or effective dates assigned for those conditions and, therefore, those issues are not in appellate status. See Holland v. Gober, 10 Vet.App. 433, 436 (1997) (holding that a claimant must file an NOD following an award of service connection if he or she wishes to appeal the downstream elements of disability evaluation or effective date (citing Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997))). A review of the June 2011 brief that Ms. Lyles's veterans service organization representative submitted to the Board confirms that she did not wish to appeal any aspect of the decisions awarding service connection for carpal tunnel syndrome of the right wrist, chronic rhinitis, or chronic sinusitis. R. at 16-19 (failing to mention those conditions and listing the issues on appeal as "Did the agency of original jurisdiction (AOJ) err when it denied service connection for low back strain? Did the AOJ err when it denied service connection for bilateral hip strain? Did the AOJ err when it denied service connection for carpal tunnel syndrome of the left wrist?"); see Fenderson v. West, 12 Vet.App. 119, 130 (1999) (examining the contents of a brief submitted to the Board to discern whether certain issues had been appealed). Absent a final Board decision addressing the awards of service connection for carpal tunnel syndrome of the right wrist and chronic rhinitis (also claimed as chronic sinusitis), the Court lacks jurisdiction to address Ms. Lyles's arguments related to those claims. See Howard, 220 F.3d at 1344. Likewise, Ms. Lyles's informal brief also contains arguments pertaining to her claim for service connection for carpal tunnel syndrome of the left wrist, which was remanded by the Board. See Appellant's Br. at 1-2. As explained in footnote 1, supra, a Board remand is not a final decision of the Board over which the Court has jurisdiction. See Howard, 220 F.3d at 1344; Breeden, 5 17 Vet.App. at 478; 38 C.F.R. § 20.1100(b). Therefore, the Court is also precluded from addressing arguments related to that claim. The only claims that the Board finally decided in the July 2011 decision currently on appeal are for service connection for low back and bilateral hip strains. R. at 3- 13. The Court therefore has jurisdiction to review the Board's decision on those claims. B. Service Connection for Low Back and Bilateral Hip Strains Ms. Lyles asserts that the Board's statement of reasons or bases for its decision was inadequate. Specifically, she expresses confusion as to why her back and hip disabilities were not consideredchronicdisabilitiesunder38C.F.R.§3.303(b)andwhytheBoard rejectedherstatements of continuity of symptoms. See Appellant's Br. at 1-2. The Court agrees that the Board failed to adequately explain its findings on those issues. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a nexus between the claimed in-service disease or injury and the current disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). However, service connection may also be established by demonstrating chronicity or continuity of symptoms. See Rose v. West, 11 Vet.App. 169, 171 (1998); Savage v. Gober, 10 Vet.App. 488, 495-98 (1997); 38 C.F.R. § 3.303(b) (2012). The Board's determination regarding entitlement to service connection is a finding of fact that the Court reviews under the "clearly erroneous" standard of review. 38 U.S.C. § 7261(a)(4); see Swann v. Brown, 5 Vet.App. 229, 232 (1993). "A factual finding 'is "clearly erroneous" when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" Hersey v. Derwinski, 2 Vet.App. 91, 94 ( 1992) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). In rendering its decision, the Board is required to provide a written statement of reasons or bases for its "findings and conclusions[] on all material issues of fact and law presented on the record." 38 U.S.C. § 7104(d)(1). The Board's statement of reasons or bases must be adequate to enable a claimant to understand the precise basis for the Board's decision and to facilitate review in this Court. Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). To comply with this requirement, the 6 Board must analyze the credibilityand probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 ( 1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). The Board is also required to consider and discuss all applicable provisions of law and regulation in its decision. 38 U.S.C. § 7104(a); see Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991). 1. Chronicity In the instant case, the Board did not expressly address whether Ms. Lyles's back and hip disabilities were chronic disabilities subject to service connection under § 3.303(b), despite her assertions thatthosedisabilitieswerechronicanddespiteevidencethatreasonablyraisedthat. See Robinson v. Peake, 21 Vet.App. 545, 553 (2008) (holding that the Board is required to consider all theories of service connection that are reasonably raised by the claimant or the evidence of record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). Specifically, in the NOD that precipitated this appeal, Ms. Lyles described her low back and bilateral hip disabilities as "chronic and severe in nature." R. at 329. The record contains evidence of back and hip pain beginning in May 1986 and continuing throughout and after service (R. at 86-93, 141-42, 144, 166- 67, 171, 173, 279-80, 287, 739, 775, 876, 878, 886, 889-90), as well as a postservice diagnosis of a "chronic sacroiliac sprain" in October 2007 (R. at 289). See Savage, 10 Vet.App. at 495 (holding that "evidence contemporaneous with service or the presumption period or evidence that is post service or post presumption period may suffice" to establish a chronic disability). Although a "diagnosis including the word'[c]hronic'" in and of itself is not sufficient to establish that a condition is chronic, such a diagnosis, alongwith repeated manifestationsofadisabilityin service, is sufficient to raise the issue of service connection based on a theory of chronicity. 38 C.F.R. § 3.303(b) ("For the showing of chronic disease in service thereis required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word '[c]hronic.'"). The Court is unpersuaded by the Secretary's contention that "the medical evidence does not indicate that [Ms. Lyles]'s conditions could be considered chronic." Secretary's Br. at 12. That argument is premised on the Secretary's interpretation of the medical and lay evidence of record, 7 which amounts to nothing more than an impermissible post hoc rationalization for the Board's actions. See Doty v. United States, 53 F.3d 1244, 1251 (Fed. Cir. 1995) (" 'Courts may not accept appellate counsel's post hoc rationalizations for agencyaction. It is well established that an agency's action must be upheld, if at all, on the basis articulated bythe agencyitself.'" (quoting Motor Vehicle Mfrs. Ass'n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50 (1983))). Moreover,theSecretary's relianceontheDecember2009VAmedicalexaminer's conclusion that Ms. Lyles's treatment records "did not indicate 'a chronic ongoing problem with her back'" is misplaced because the examiner's opinion is equivocal as to the presence of a chronic disability. Secretary's Br. at 12 (quoting R. at 44). That opinion states that Ms. Lyles's servicetreatment records "do not necessar[il]y indicate the presence of a chronic ongoing problem with her back" (R. at 43-44 (emphasis added)), which implies equally that her service treatment records do not necessarily preclude a finding that her back disability is chronic. See Obert v. Brown, 5 Vet.App. 30, 33 (1993) (stating that a medical opinion stating that a claimant "may" have been showing symptoms implied that the claimant "may not" have been showing symptoms). Thus, the December 2009 VA medical opinion is speculative, and therefore inadequate, with regard to the issue of the presence of a chronic low back disability, and the Secretary may not rely on it to support his argument.6 See Bloom v. West, 12 Vet.App. 185, 187 (1999) (holding that a medical opinion phrased in speculative terms is inadequate); Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992) (same). Accordingly,theCourt concludes thattheBoardprovidedaninadequatestatementofreasons or bases for its decision to deny Ms. Lyles service connection for low back and bilateral hip strains because it failed to address the reasonably raised issue of whether those disabilities were chronic.7 The December 2009 VA medical opiniondoes not contain a similar discussion of whether Ms. Lyles's bilateral hip strain is a chronic disability. The Court notes that the Board addressed whether Ms. Lyles's lay statements established continuity of symptoms, whichitwould not have been required to do unless it found that her back and hip disabilities were not chronic. See 38 C.F.R. § 3.303(b) ("Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned."). Evenifthe Board's discussion of continuityof symptoms evinces an implicit finding that those disabilities were not chronic, the Court would nevertheless find the Board's statement of reasons or bases inadequate because it did not provide any explanation for this finding, including why it rejected the potentially favorable evidence of chronicity outlined above. See Caluza, 7 Vet.App. at 506. 7 6 8 See Previous DocumentMassieNext Document v. Shinseki, 25 Vet.App. 123, 129 (2011) (citing Robinson, 557 F.3d at 1362); Schafrath, 1 Vet.App. at 593; Gilbert, 1 Vet.App. at 57. 2. Continuity of Symptoms The Board found that the evidence of record did not establish continuity of Ms. Lyles's back and hip symptoms because she only "sporadically sought treatment for back and hip pain after service" and "several treatment records indicate that her pain was 'off and on' rather than continuous since her discharge from active military service." R. at 10. The Court discerns several errors in this analysis. First, "symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet.App. at 496. Therefore, to the extent that the Board focused on the continuity of Ms. Lyles's postservice treatment, rather than the continuity of her postservice back and hip pain, it committed error. Second, the Board's statement that intermittent but continuous symptoms–i.e., back and hip pain that occurred "off and on" since service–can never establish continuity of symptoms under § 3.303(b) is overbroad. R. at 10. Contrary to the Board's finding, continuity of symptoms under § 3.303(b) does not require that postservice symptoms be constant; it requires only the consistent postservice reoccurrence of the same symptoms experienced in service. For example, an episodic disability that occurs repeatedly after service may be subject to service connection via continuity of symptoms under § 3.303(b). See, e.g., Vanderpool v. Derwinski, 3 Vet.App. 273, 277-78 (1992)(remanding for the Board to consider whether the veteran's episodic headaches could be service connected based on, inter alia, continuity of symptomatology). The record in this case contains evidence of such reoccurring, episodic symptoms, which the Board appears to have impermissibly rejected based on its misunderstanding of § 3.303(b). R. at 329 (September 2007 NOD describing "chronic" low back and bilateral hip conditions beginning in May 1986, which "continue[d] throughout [her] military career" and necessitated "continual care and treatment"), 171 (June 2008 report of a history of back and hip pain "off and on since the 1980s,"with episodes lasting one week at a time), 279 (July 2008 report of back and hip pain beginning in 2005 that "comes and goes"), 166 (August 2008 report of a "history of low back pain going to both hips since [the] 1980s"), 141-42 (August 2008 physical therapy records reflecting "constant" low back pain that beganin 2004),86-93 9 (May2009 Board hearing testimonyreflecting back and hip pain since an in- service incident in 1986 and exacerbated by the birth of her second child in 2005), 41 (December 2009 VA medical examination noting "back pain on and off since 1986"). The Board's failure to properlyconsider that potentially favorable evidence thus constitutes error. See Caluza, 7 Vet. App. at 506. The Secretary argues that any error in the Board's continuity-of-symptoms analysis was harmless because, "even if [Ms. Lyles] had demonstrated continuity of symptomatology, she still needed to present competent, credible evidence of a link between this symptomatologyand service," which she failed to do. Secretary's Br. at 13 (citing Savage, 10 Vet.App. at 495-96). The Secretary's argument is incorrect for two reasons. First, in order to establish continuity of symptoms, a claimant must demonstrate "a nexus between the present disability and the postservice symptomatology" that has continued since service, not a nexus between the symptoms and service. Barr v. Nicholson, 21 Vet.App. 303, 307 (2007) (citing Savage, 10 Vet.App. at 495-96); 38 C.F. R. § 3.303(b) (when chronicityin serviceisnotadequatelysupported,continuityofsymptoms afterdischargeisrequired). Second, although the Board found that "the record does not contain a competent medical opinion linking the disabilities to the Veteran's military service" (R. at 10-11), that finding is premised on the Board's categorical rejection of Ms. Lyles's lay statements regarding the etiology of her current low back and bilateral hip disabilities. Specifically, the Board acknowledged Ms. Lyles's statements that those disabilities were the result of in-service injuries, but determined that she was not competent to provide an etiological opinion solely because she was a lay person. R. at 9-10 ("[A]ny statements of record made by the Veteran claiming that her disabilities were the result of an injury in service are not competent evidence of her disorders' etiologies as the Veteran is a lay person without the medical expertise to render such a diagnosis." (citing, inter alia, Espiritu, 2 Vet.App. at 494-95)); R. at 10 ("Because the Veteran is not professionally qualified to offer an etiological opinion, her statements are afforded little weight as to the cause of her back and hip disabilities."). This view, however, has been soundly rejected by this Court and the U.S. Court of Appeals for the Federal Circuit. See Davidson v. Shinseki, 581 F.3d 1313, 1316 ( Fed. Cir. 2009) (stating that a lay person is not categorically incompetent to opine as to a nexus between a current disability and service); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) ( rejecting as "too broad" theCourt'sconclusionthatmedicalevidenceis requiredwhenthedeterminativeissueinvolves either 10 medical etiologyor a medical diagnosis); Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011) (holding that the Board's "categorical rejection" of lay evidence as not competent to establish the cause of a disability rendered its statement of reasons or bases inadequate). The Board's failure to engage in the proper analysis as to the existence of nexus evidence undermines the Board's finding that Ms. Lyles had not presented evidence sufficient to connect her postservice back and hip symptoms with her current back and hip disabilities, see Savage, 10 Vet.App. at 497 ( holding that lay evidence may be competent to establish the necessary relationship between a current disability and continuing, postservice symptoms), and thus prevents the Court from concluding that the foregoing errors were harmless, see 38 U.S.C. § 7261(b)(2) (requiring the Court to "take due account of the rule of prejudicial error"). Consequently, the Court concludes that the Board's erroneous treatment of Ms. Lyles's lay statements regarding continuity of symptoms also rendered its statement of reasons or bases inadequate. See Caluza, 7 Vet.App. at 506; Gilbert, 1 Vet.App. at 57. Remand of her claims for service connection for low back and bilateral hip strains is therefore warranted. See Tucker v. West, 11 Vet.App. 369, 374 (1998) ("Where the Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate, a remand is the appropriate remedy."). Onremand,Ms. Lylesisfreeto submit additional argument and evidence in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Court reminds the Board that "[a] remand is meant to entail a critical examination of the justification for [the Board's] decision," Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991), and must be performed in an expeditious manner in accordance with 38 U.S.C. § 7112. III. CONCLUSION Upon consideration of the foregoing, the July 26, 2011, Board decision is SET ASIDE and the matter is REMANDED for furtherdevelopment, if necessary, and readjudication consistent with this decision. DATED: December 13, 2012 11 Copies to: Tabitha L. Lyles VA General Counsel (027) 12

Single Judge Application, Breniser v. Shinseki, 25 Vet.App. 64, 79 (2011); Post Hoc Rationalizations

Excerpt from decision below: "The Secretary's contention, however, was not one of the bases the Board articulated for finding the veteran's assertions not credible. A post hoc rationalization is not a substitute for an adequate statement of reasons or bases. See Breniser v. Shinseki, 25 Vet.App. 64, 79 (2011) (noting that litigation positions "are not entitled to deference when they are merely appellate counsel's 'post hoc rationalizations' for agency action advanced for the first time in the reviewing court" (internal quotation marks omitted)). Besides, Mr. Bowers's argument is that his gallstones began to form approximately 6 to 12 years before his November 2007 surgery, that is, between 1995 and 2001. All the reports the Secretary cites, dated from 1976 to 1992, predate this period. See R. at 867, 893, 915, 917. Thus, it is not immediately clear that Mr. Bowers's claims of unreported, in-service symptoms are even inconsistent with his SMRs. =========================== ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 11-3022 JOHN M. BOWERS, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before BARTLEY, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. BARTLEY, Judge: Veteran John M. Bowers, who is self-represented, appeals from a May 25, 2011, decision of the Board of Veterans' Appeals (Board), denying entitlement to service connection forcholecystitisandpostoperativeresidualsofgallbladderremoval.1 Record(R.)at4-16. This appeal is timely, and the Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judgedisposition is appropriate. See Frankel v. Derwinski, 1 Vet. App. 23, 25-26 (1990). For the reasons set forth below, the Court will set aside that portion of the May 2011 Board decision that is on appeal, and remand the matter for readjudication consistent with this decision. I. FACTS Mr. Bowers served on active duty in the U.S. Air Force from June 1981 to January 2005. R. at 486. His service medical records (SMRs) do not contain any diagnoses of, or complaints related to, gallbladder problems. R. at 674-1007. In medical history reports dated July 1976 (R. at 915), The Board remanded for additional development claims for increased disability evaluations for degenerative arthritis of the right knee, status-post arthroscopic surgery, currently evaluated as 10% disabling, and chondromalacia of the left patella, currently evaluated as 10% disabling. Record at 14-16. These issues are not before the Court. See Adams v. West, 13 Vet.App. 453, 454 (2000) (noting that the Court lacks jurisdiction over a claim remanded by the Board). 1 October 1980 (R. at 917), October 1985 (R. at 893), and April 1992 (R. at 867), he specifically denied frequent indigestion, gallbladder problems, or gallstones. After discharge in January 2005, Mr. Bowers applied for veterans disability benefits for several conditions but did not mention problems relating to his gallbladder. R. at 659-68. Then, in January2007, Mr. Bowers presented at the Air Force AcademyHospital emergency room with severe upper abdominal and bilateral mid-back pain. R. at 286, 344. Ultrasound confirmed the presence of stones in the gallbladder. R. at 287; see also R. at 234-39. The diagnosis was cholelithiasis with bile duct calculi and cholecystitis.2 Id. At a followup visit three weeks later in February 2007, Mr. Bowers advised the attending physician that he wished to postpone any surgery. R. at 282-83. After experiencing additional episodes of severe upper abdominal pain, however, he underwent a cholecystectomy, or surgical removal of the gallbladder, in October 2007.3 R. at 225-27; see also R. at 35. November 2007 postoperative notes indicate that "numerous" gallstones were present and measured up to 1.2 centimeters in diameter. R. at 261, 269. The walls of the gallbladder showed scar tissue, measuring up to .5 centimeters in thickness. R. at 223, 261. The final diagnosis was "acute and chronic cholecystitis with cholelithiasis." R. at 261. That same month, Mr. Bowers filed a claim for service connection of cholecystitis and partial removal of the gallbladder and recounted the foregoing medical history. R. at 344-45. Heelaborated in a December 2007 statement in support of claim that, between 1999 and 2007, he experienced "[u]sually mild, but occasionally moderate, upper abdominal pain after eating a large/heavy meal," between eight and ten times per year. R. at 205. However, the veteran assumed it was indigestion and treated these incidents with over-the- counter medications. Id. In a March 2008 rating decision, the VA regional office (RO) denied his claims for service connection for cholecystitis and gallbladder removal because there was no evidence demonstrating a "plausible relationship" between these conditions and his military service. R. at 190-95. Mr. "Cholelithiasis" means "the presence of or formation of gallstones," which are also known as calculi. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 349 (32d ed. 2012) [hereinafter DORLAND'S]; see also id. at 271 (defining "calculi" as "abnormal concretions . . . of mineral salts"). " Cholecystitis" is an "inflammation of the gallbladder." Id. at 348. 3 2 See DORLAND'S at 348. 2 Bowers filed a Notice of Disagreement (NOD) in April 2008 and attached numerous relevant treatment records. R. at 134-37, 142-61. In the NOD, he argued that the RO failed to consider his report of self-medicating during service, and the size of the recovered gallstones and the thickness of the gallbladder wall caused by long-term scarring. R. at 136. According to the veteran, these facts, takentogether,"indicate[d] along-termcondition thatbeganduringmilitaryservice,but which did not become severe enough to seek medical treatment until after retirement." Id. More specifically, in the NOD Mr. Bowers cited numerous medical treatises that state that gallstones grow at a rate of 1 to 2 millimeters per year. R. at 136-37. Based on this growth rate and given that the largest stones removed from his gallbladder in October 2007 were 1.2 centimeters (or 12 millimeters), he argued that the stones must have been developing before his active duty terminated in January 2005. Id. He also cited medical texts that said gallstones could be developing for years before they caused symptoms or observable problems. R. at 136. The RO issued a Statement of the Case (SOC) in November 2008, and continued to deny service connection for cholecystitis and removal of gallbladder, stating there was no evidence of a nexus between these conditions and service. R. at 111-27. With respect to the evidence Mr. Bowers submitted regarding the growth rate of gallstones, the SOC noted only that, although the presence of gallstones is a condition entitled to presumptive serviceconnection, thedisabilitydid not manifest to a compensable degree within one year of discharge from service, so service connection could not be granted. R. at 127. The veteran appealed to the Board. R. at 82-83. Testifying at a hearing before the Board in April 2011, Mr. Bowers reiterated that during service he treated what he thought at the time was indigestion with over- the-counter medicine. R. at 33; see also R. at 42. He once again shared his research about the rate at which gallstones develop and contended, based upon the size of the stones removed from this gallbladder, that they must have developed during service. R. at 33-36. The Board issued the decision currently on appeal on May 25, 2011. R. at 4- 16. First, the Board determined that VA had satisfied its duty to assist and that the veteran was not entitled to a medical nexus examination because "there [was] no credible evidence that [ the] pertinent disability had its onset in service or is otherwise associated with active duty." R. at 8. Next, although acknowledging Mr. Bowers's claims of indigestion-like symptoms and back pain during and after 3 service, the Board said his statements were not credible because there was no mention of gallbladder disease, gallstones, or cholecystitis in SMRs or postservice medical records within a year of discharge. R. at 11-12. Further, the Board stated: "It is not conceivable that the [v]eteran had unreported symptoms of cholelithiasis in service and continuously following active duty. When those symptoms were first reported in January 2007, the [v]eteran was in the emergency room due to their severity." R. at 12. Finally, with respect to Mr. Bowers's argument, based on the medical treatise evidence he cited, that his gallstones were developing during service but did not cause problems until after service, the Boardstatedsimplythathewas "not competent to render a probative opinion on a medical matter, such as the onset of gallstones, or of a medical diagnosis or causation." R. at 12. Moreover, the Board found that no competent evidence linked postoperative residuals of gallbladder removal to service; Mr. Bowers needed to present, the Board concluded, "contemporaneous service treatment records reflecting treatment or diagnosis of abdominal pain or gallbladder disease during service." R. at 13. This timely appeal followed. II. ANALYSIS Before this Court, Mr. Bowers argues that the Board failed to consider properly the medical treatise evidence that he offered. Appellant's Informal Brief (Br.) at 2. He acknowledges that he never sought treatment for a gallbladder condition during service or within the year immediately following servicebut contends that this does not mean that his gallstoneswerenotdevelopingduring service. Id., Attachment at 3. Indeed, he contends that the treatise evidence he offered, in conjunction with the evidence showing the size of the gallstones removed during the 2007 surgery, "clearly show that gallstones must have been growing while [he] was on active duty." Id. The Board, he asserts, misapplied 38 C.F.R. § 3.303 (2012) and used the absence of any manifestation of a gallbladder disorder within one year of service so as to avoid considering the implications of the evidence he submitted. Id. at 5-6. He asks that the Board be directed to consider the size of his gallstones at the time of his 2007 surgery and the medical treatise evidence on the growth rate of gallstones in general. Id. at 9. The Secretaryargues in response that the Board's decision had a plausible basis in the record. Secretary's Br.at7-10. Further,theSecretarycontendsthattheBoard" appropriatelyquestioned[Mr. 4 Bowers's] credibility." Id. at 10-11. Finally, despite acknowledging that " the Board did not directly address the medical treatise information in its decision by referring to the actual articles," the Secretarymaintains that Mr. Bowers was not prejudiced because the Board did address his argument that his gallstones must have formed while he was in service. Id. at 12. But, according to the Secretary, the Board rightly found that the veteran was not competent to make such an argument. Id. In any event, the Secretary argues, the medical treatises at issue " only discuss the general characteristics of gallstones and do not state with any certainty that [ the veteran's] gallstones would have existed as [he] maintains." Id. at 13. Mr. Bowers replies that, notwithstanding the Secretary's characterization of the decision, the Board did not address the treatise evidence he submitted. Reply Br. at 6-9. He also takes issue with how the Board determined he was not credible. Id. at 2-5. The Court agrees with Mr. Bowers on every argument he presents. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See McClain v. Nicholson, 21 Vet.App. 319, 320-21 (2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A finding of service connection, or no service connection, is a finding of fact reviewed under the "clearly erroneous" standard in 38 U.S.C. § 7261(a)(4). See Swann v. Brown, 5 Vet.App. 229, 232 (1993). "A factual finding 'is "clearly erroneous" when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). Additionally, the Board is required to include in its decision a written statement of the reasons or bases for its findings and conclusions on all material issues of fact and law presented on the record; that statement must be adequate to enable an appellant to understand the precise basis for the Board's decision, as well as to facilitate informed review in this Court. See 38 U.S.C. § 7104(d)(l); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (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 persuasive or unpersuasive, and provide the reasons for its rejection of any material 5 evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 507 ( 1995); Gabrielson v. Brown, 7 Vet.App. 36, 39-40 (1994). Cholecystitis and removal of gallbladder are evaluated under 38 C.F.R. § 4.114, Diagnostic Codes 7314 and 7318 (2012), respectively. A. Medical Treatise Evidence Regarding Growth Rate of Gallstones First, the Court agrees with the veteran and the Secretary, see Secretary's Br. at 12, that the Board failed to discuss the medical treatise evidence offered by Mr. Bowers. This Court has stated that medical treatise evidence may be sufficient to establish nexus in instances where "standing alone, [it] discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion." Wallin v. West, 11 Vet.App. 509, 514 ( 1998) (quoting Sacks v. West, 11 Vet.App. 314, 317 (1998)). The U.S. Court of Appeals for the Federal Circuit has likewise held that "in an appropriate case," medical treatises can establish the nexus element of service connection. Hensley v. West, 212 F.3d 1255, 1265 (Fed. Cir. 2000) (" A veteran with a competent medical diagnosis of a current disorder may invoke an accepted medical treatise in order to establish the required nexus; in an appropriate case it should not be necessary to obtain the services of medical personnel to show how the treatise applies to his case ."). In this case, Mr. Bowers offered medical treatise evidence that placed the growth rate of gallstones at 1 to 2 millimeters per year, along with postoperative records from November 2007 showing that he had gallstones as large as 1.2 centimeters. Certainly, this is evidence that, if credited,isfavorabletoMr.Bowers'sclaimforserviceconnection becauseit woulddemonstratethat stones began to form in his gallbladder while he was on active duty and existed during service.4 As such, the medical treatise evidence should have been discussed. Without this discussion, the Board's statement of reasons or bases for its decision is inadequate. See Caluza, supra; see also Daves v. Nicholson, 21 Vet.App. 46, 51 (2007). Contraryto the Secretary's contentions, the Court is not persuaded that the Board's failure to discuss this evidence is harmless. See Shinseki v. Sanders, 556 U.S. 396, 406-07 (2009) (noting that 4 There are 10 millimeters in 1 centimeter, so the 1.2 centimeter gallstone removed from Mr. Bowers's gallbladder measures 12 millimeters. If the growth rate of gallstones is 1 to 2 millimeters per year, then at least one of the veteran's gallstones began developing 6 to 12 years before its removal in October 2007, that is, between 1995 and 2001, when Mr. Bowers was serving in the Air Force (R. at 486). 6 38 U.S.C. § 7261(b) requires this Court to take due account of the rule of prejudicial error). The Secretary asserts that the treatise evidence "do[es] not provide the requisite specificity to relate that [Mr. Bowers's] gallstones existed during service" because "they only discuss the general characteristics of gallstones." Secretary's Br. at 13. Therefore, the Secretary maintains, the Board's failure to discuss the treatise evidence is harmless error. If the Board were permitted to dismiss summarily treatise evidence on the basis that it is too general, however, there would be no value in ever submitting treatise evidence because most such evidence is necessarily generic in that sense. See 38 C.F.R. § 3.159(a)(1) (2012) ("Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. . . . [and] may also mean statements conveying sound medical principles found in medical treatises. . . . [and] statements contained in authoritative writings such as medical and scientific articles and research reports or analyses."). If credited, the treatise evidence Mr. Bowers submitted establishes that, as a general rule, gallstones grow at a rate of 1 to 2 millimeters per year. Applied specifically in Mr. Bowers's case, the treatise evidence would show that his gallstones developed while he was in service. Moreover, there is no evidence to suggest that the veteran's gallstones grew at a different rate or otherwise fell outside the standard development time line established in the medical treatises. The Board should have considered and discussed the treatise evidence that, if accepted, would seem to require little more than the application of arithmetic principles to establish service connection for the residuals of gallstones. See Hensley, supra. Furthermore, even when medical articles or treatises are not, alone, sufficient to establish service connection, they "can provide important support when combined with an opinion of a medical professional." Sacks, 11 Vet.App. at 317. The Secretary has a statutory duty to "make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit." 38 U.S.C. § 5103A(a)(1). This duty includes the obligation to obtain a medical opinion or provide a medical examination "when such an examination or opinion is necessary to make a decision on the claim." 38 U.S.C. § 5103A(d)(1). VA must provide a medical opinion or examination if the evidence of record does not contain sufficient, competent medical evidence to decide the claim, but the following factors are present: 7 (1) [C]ompetent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability. McLendon v. Nicholson, 20 Vet.App. 79, 81 (2006); see also 38 C.F.R. § 3. 159(c)(4)(i). The third requirement—that the evidence indicate that a condition "may be associated" with service—establishes a "low threshold." McLendon, 20 Vet.App. at 83. In deciding whether a medical opinion is necessary, the Secretary must consider the evidence of record, "taking into consideration all information and lay or medical evidence (including statements of the claimant)." 38 U.S.C. § 5103A(d)(2). This Court reviews the Board's ultimate conclusion that a medical opinion is or is not necessary pursuant to section 5103A(d)(2) under the " arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" standard of review. McLendon, 20 Vet.App. at 81 (citing 38 U.S.C. § 7261(a)(3)(A)). The Board stated in the decision on appeal that "there is no credible evidence that [the] pertinent disability had its onset in service or is otherwise associated with active duty" and thus determined that a medical opinion or examination was not warranted. R. at 8. As discussed above, the Board failed to acknowledge or discuss the medical treatise evidence that Mr. Bowers submitted to and highlighted before the Board. Without such discussion, there is no indication that the Board took "into consideration all information" in the record. 38 U.S.C. § 5103A(d)(2). In the Court's view, the Board's decision not to seek a medical opinion in connection with the medical treatise evidence submitted in this case was an abuse of discretion and not in accordance with the law. McLendon, 20 Vet.App. at 81; see also Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991) ("If the medical evidence of record is insufficient, or . . . of doubtful weight or credibility, the [Board] is always free to supplement the record by seeking an advisory opinion, ordering a medical examination[,] or citing recognized medical treatises in its decisions that clearly support its ultimate conclusions."). If not sufficient on its face to establish service connection, the medical treatise evidence, coupled with the November 2007 postoperative findings in this case, at least appears to meet McLendon's low threshold for seeking a medical opinion on the likelihood that Mr. Bowers's gallstones and residual complaints are related to service. See McLendon, supra. 8 TheSecretaryalsoasserts thattheBoard'sfailuretoaddressthemedicaltreatise evidencewas harmless because the Board addressed the substance of the medical treatise evidence when it considered Mr. Bowers's arguments that his gallstones must have formed while he was in service. Secretary's Br. at 12. This is not so. Although the Board acknowledged the theorythat the veteran's gallstones began to form during service, the Board said this contention was "without merit" because "[a]s a layperson, the [v]eteran is not competent generallyto render a probative opinion on a medical matter." R. at 12. Mr. Bowers, however, was not offering his own subjective opinion as to the growth rate of gallstones; he was repeating the data reported in professional medical treatises he submitted. Certainly, a layperson is competent to report information provided by a medical professional. Cf. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that a veteran is competent to repeat a medical diagnosis and report observable symptoms). In labeling the veteran's report of the growth rate of gallstones as incompetent lay opinion, the Board avoided addressing the substance of the medical treatise evidence Mr. Bowers submitted, just as the Board failed to address those treatises directly. Thus, the Board's failure to address the medical treatise evidence that was favorable to Mr. Bowers was not harmless. See Sanders and Caluza, both supra. As such, remand is warranted for the Board to address this evidence initially, or after seeking a medical opinion, if the Board determines that one is necessary. See Tucker v. West, 11 Vet.App. 369, 374 ( 1998) (holding that remand is the appropriate remedy"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"). And while the Board, rather than this Court, must address the probative value of the medical treatise evidence Mr. Bowers provided, the Court cannotimagineunderwhat circumstances such evidence would not be relevant and supportive of his claim for service connection for cholecystitis. On remand, Mr. Bowers is free to submit additional evidence and argument on his claims. See Kay v. Principi, 16 Vet.App. 529, 534 (2002) (stating that, on remand, the Board must consider additional evidence and argument in assessing entitlement to benefit sought). The Court has held that "[a] remand is meant to entail a critical examination of the justification for the decision." 9 Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991). In accordance with 38 U.S.C. § 7112 , the Board must proceed expeditiously with this case on remand. B. Lay Statements Regarding In-Service Symptoms Although the Court need not address additional allegations of error once it has determined that a remand to the Board is warranted, the Court may address other issues to provide further guidance on remand. See Quirin v. Shinseki, 22 Vet.App. 390, 396 (2009). The Board found that Mr. Bowers's statements—that he suffered, both during and after service, indigestion and episodes ofupperabdominalpainradiatingtohis back—werenot credible. This credibilitydetermination had two bases. First, the Board found the absence of contemporaneous medical records suggesting a gallbladder disability probative. "The first evidence of pertinent disability is in January 2007, after discharge,"theBoardobserved,"with nomentionofahistoryofunreportedsymptoms priorto then." R. at 12. Second, the Board stated: "It is not conceivable that the [v] eteran had unreported symptoms of cholelithiasis in serviceand continuouslyfollowing active duty. When those symptoms were first reported in January 2007, the [v]eteran was in the emergency room due to their severity." Mr. Bowers challenges these credibility findings. Reply Br. at 2-6. Neither of the Board's observations is a permissible basis for rejecting Mr. Bowers's credibility. First, the absence of contemporaneous medical records "does not, in and of itself, render lay evidence not credible." Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Moreover, Mr. Bowers stated that he did not report upper abdominal pain—which he thought was indigestion—during service because he treated the problem with over-the- counter products and his symptoms were not that severe. See, e.g., R. at 205; see also R. at 35 ("I didn't have real[ly] bad symptoms until after my retirement."). The Board cannot find that the veteran lacks credibility simply because his SMRs do not document complaints or symptoms related to a gallbladder condition. See Buchanan, supra. Second, the Board apparently found it incredible that Mr. Bowers could experience mild or no symptoms during service, where the symptoms, when first reported in January 2007, were so severe that he sought emergency treatment. It is not clear why the Board was so dubious of the notion that gallstones could generate little or no symptoms in the beginning of their development but severe symptoms later on. The Board may not rely on its own unsubstantiated medical conclusions 10 but must rely on the medical evidence of record. See Colvin v. Derwinski, 1 Vet.App. 171, 172 (1991), overruled on other grounds by Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998); see also Kahana v. Shinseki, 24 Vet.App. 428, 434-35 (2011) (holding that the Board erred in "making a medical determination as to the relative severity, common symptomatology, and usual treatment of an . . . injury without citing to any independent medical evidence to corroborate its finding"). Mr. Bowers asserts that "gallstones are commonly asymptomatic for years." Reply Br. at 5. And as he did on the issue of gallstone growth rates, Mr. Bowers cited in his April 2008 NOD medical treatises that support this contention. R. at 136 (quoting a medical text that reads : "Their (gallstones) development is insidious, and they may remain asymptomatic for decades."). The Board also failed to acknowledge and discuss this medical evidence, which would appear to corroborate the veteran's laystatements regarding the course of his condition. But even if Mr. Bowers had not submitted such medical evidence, the Board would not have been permitted to supply its own medical opinion as to how gallstones develop or when they might begin producing noticeable symptoms. See Colvin, supra. The Secretarycontends that the Board permissiblydoubted Mr. Bowers's credibilitybecause his assertion that he experienced indigestion-like symptoms in service and treated them with over- the-counter products is inconsistent with medical history reports in which he denied frequent indigestion, gallbladder problems, or gallstones. Secretary's Br. at 9. The Secretary's contention, however, was not one of the bases the Board articulated for finding the veteran's assertions not credible. A post hoc rationalization is not a substitute for an adequate statement of reasons or bases. See Breniser v. Shinseki, 25 Vet.App. 64, 79 (2011) (noting that litigation positions "are not entitled to deference when they are merely appellate counsel's 'post hoc rationalizations' for agency action advanced for the first time in the reviewing court" (internal quotation marks omitted)). Besides, Mr. Bowers's argument is that his gallstones began to form approximately 6 to 12 years before his November 2007 surgery, that is, between 1995 and 2001. All the reports the Secretary cites, dated from 1976 to 1992, predate this period. See R. at 867, 893, 915, 917. Thus, it is not immediately clear that Mr. Bowers's claims of unreported, in-service symptoms are even inconsistent with his SMRs. 11 Based on the nature of the medical evidence regarding gallstone growth rates, the Board may not need to evaluate the credibility of Mr. Bowers's lay statements regarding the course of his gallbladder condition. If, however, the Board does find it necessary to do so, it must refrain from discounting his credibility on erroneous bases such as those discussed above. III. CONCLUSION Upon consideration of the foregoing, that portion of the May 25, 2011, Board decision on appeal is SET ASIDE and REMANDED for readjudication consistent with this decision. DATED: December 11, 2012 Copies to: John M. Bowers VA General Counsel (027) 12

Single Judge Application, Murray v. Shinseki, 24 Vet.App. 420, 423(2011); Separate Disability Ratings for Separate and Distinct Symptoms

Excerpt from decision below: "In short, "[i]f the appellant's symptoms are 'distinct and separate,' then the appellant is entitled to separate disability ratings for the various conditions." Murray v. Shinseki, 24 Vet.App. 420, 423(2011) (quoting Esteban, 6 Vet.App. at 262). ============================ ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 11-3509 ROBIN L. KERNS, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before BARTLEY, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. BARTLEY,Judge: U.S. ArmyveteranRobinL.Kerns, whois self-represented, appeals from an August 15, 2011, Board of Veterans' Appeals (Board) decision that denied entitlement to service connection for (1) a right knee disorder; (2) memory loss and impaired concentration, to include as a chronic disabilityresultingfrom an undiagnosed illness; and (3) an adjustment disorder, to include as a chronic disability resulting from an undiagnosed illness.1 Record (R.) at 3-24. This appeal is timely and the Court has jurisdiction to review the Board decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons that follow, the Court will vacate the portion of the August 2011 Board decision addressing Ms. Kerns's claim for service connection for memory loss and impaired concentration and will remand that claim for readjudication consistent with this decision. The Court The Board also remanded theissuesof entitlement to(1) serviceconnectionforshortnessofbreathandasthma, to include as a chronic disability resulting from an undiagnosed illness; ( 2) service connection for a menstrual disorder, to include as a chronic disability resulting from an undiagnosed illness; ( 3) an effective date prior to February 24, 2010, for a 40% evaluation for fibromyalgia; and (4) an effective date prior to March 7, 2007, for a total rating based on individual unemployability (TDIU). Because a remand is not a final decision of the Board subject to judicial review, the Court does not have jurisdiction to consider those issues at this time. See Howard v. Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000); Breeden v. Principi, 17 Vet.App. 475, 478 (2004); 38 C.F. R. § 20.1100(b). 1 will affirm the Board's decision as to her claims for service connection for right knee and adjustment disorders. I. FACTS Ms. Kerns served on active duty for training from June 1990 to October 1990 and on active duty from February 1991 to October 1991, including service in Southwest Asia in support of Operations Desert Shield and Desert Storm. R. at 4, 581. Following service, she was awarded service connection for a disabilitymanifesting in muscle, joint, and upper back pain with fatigue and a sleep disorder. R. at 1282-89. In August 2005, Ms. Kerns filed a claim for service connection for, inter alia, a right knee disorder, memoryloss and impaired concentration, and an adjustment disorder. R. at 991-1019. An October 2005 VA progress note indicates that Ms. Kerns had a diagnosis " most consistent with an Adjustment Disorder related to her medical conditions." R. at 981. Subsequent VA medical records also contain diagnoses of an adjustment disorder due to or related to physical pain. R. at 961, 963. However, a January 2006 VA medical examination concluded that Ms. Kerns " does not meet [the] diagnostic criteriaforanypsychiatricdiagnosis"andexplained thatherreportedsymptoms were"not the result of any psychiatric disorder" and "may be attributable to her medication" for treating her fibromyalgia with fatigue. R. at 717. The following month, a VA physician stated that Ms. Kerns's knee pain was "part of her fibromyalgia and chronic pain with possible superimposed arthritis." R. at 312. In the meantime, a VA regional office (RO) sent Ms. Kerns a letter notifying her of the evidence she needed to submit to substantiate her August 2005 claims for direct and secondary service connection. See R. at 943 (outlining the evidence needed "to support [a] claim for compensation based upon an additional disability that was caused or aggravated by a service- connected disability"), 944 (outlining the evidence needed "to support [a] claim for service connection"). In January 2007, the RO denied entitlement to service connection for a right knee disorder, memorylossandimpairedconcentration,andanadjustment disorderbecauseit foundthatMs. Kerns did not have a current knee or psychiatric disability that was compensable for VA purposes. R. at 2 652-59. She filed a timely Notice of Disagreement (NOD) with that decision and subsequently perfected her appeal to the Board. R. at 198-99, 604-09. In May 2007, Ms. Kerns underwent a VA medical examination, at which time she complained of muscle pain, joint pain and stiffness, difficulty sleeping, abdominal cramping, and irregular menses. R. at 224-25. The examiner opined that "[a]ll complaints except sleep apnea belong to a diagnosis of fibromyalgia." R. at 225. In June 2007, the RO issued a decision recharacterizing Ms. Kerns's service-connected disability manifesting in muscle, joint, and upper back pain with fatigue and a sleep disorder as fibromyalgia with fatigue. R. at 200-11. The RO also acknowledged that Ms. Kerns raised the issue of entitlement to TDIU and deferred a decision on that issue pendingthe receipt of a completed unemployabilityquestionnaire. R. at 204. Laterthat month, the RO issued a decision denying entitlement to TDIU. R. at 39.2 In October 2007, the RO denied a claim for an increased evaluation for fibromyalgia with fatigue. Id. It appears that Ms. Kerns timely appealed that denial, as well as the RO's previous denial of entitlement to TDIU, to the Board. Id. In October 2009, the Board issued a decision remanding the issues of entitlement to service connection for a right knee disorder, memory loss and impaired concentration, and an adjustment disorder; an increased evaluation for fibromyalgia with fatigue; and TDIU for further development. R. at 36-53. Pursuant to that remand order, Ms. Kerns underwent a VA psychiatric examination in February2010. R. at 446-52. Afterreviewingthe claims file, recording Ms. Kerns's complaints, and performing a mental status examination and other psychological tests, the examiner concluded that Ms. Kerns did "not meet the [Diagnostic and Statistical Manual of Mental Disorders (DSM-IV)] criteria for the diagnosis of an adjustment disorder or anyother psychiatric disorder." R. at 451. The examiner opined that Ms. Kerns reported "difficulty with her memory and concentration, which, by definition, is part of her already service-connected fibromyalgia." R. at 452. The examiner also The Court notes that the record of proceedings does not contain a copy of that decision and several other documents related to the development and adjudication of Ms. Kerns's entitlement to TDIU and an increased evaluation for fibromyalgia with fatigue. The Secretary also did not provide that information in his brief. Therefore, the procedural history for those issues is largely derived from the summary of those issues included in the October 2009 Board decision, cited above. 2 3 explained that there were "not any psychiatric symptoms . . . that are separate from [Ms. Kerns's] already service-connected and diagnosed fibromyalgia." R. at 452. It appearsthatMs. Kerns alsounderwentaVAjointsexamination in February2010, although that examination report is not contained in the record of proceedings. See R. at 385 (RO summary of the February 2010 VA joints examination). According to the RO, that examination revealed an increasein Ms. Kerns's fibromyalgiasymptoms, includingconstant, refractoryjoint painandfatigue. Id. Based on that examination, the RO issued a November 2010 Supplemental Statement of the Case(SSOC) increasingthedisabilityevaluation forfibromyalgiawithfatigueto40%,themaximum schedular evaluation for that disability, and awarding entitlement to TDIU. R. at 393-417. In February 2011, the RO issued a decision review officer decision implementing those awards. R. at 358-63, 382-90. The cover letter accompanying that decision instructed Ms. Kerns to submit a written NOD if she disagreed with that decision and to refer to the enclosed VA Form 4107, Your Rights to Appeal Our Decision, for more information on her right to appeal. R. at 362-63. In April 2011, Ms. Kerns filed an NOD, stating that she wished to appeal the effective dates assigned for the increased evaluation for fibromyalgia with fatigue and the award of TDIU. R. at 341-43. In August 2011, the Board issued the decision currentlyon appeal, which denied entitlement to service connection for a right knee disorder, memory loss and impaired concentration, and an adjustment disorderandremandedtheissues ofentitlementtoearliereffectivedatesforfibromyalgia with fatigue and TDIU. Record (R.) at 3-24. The Board determined that Ms. Kerns's claimed right knee pain and psychiatric problems were symptoms of her service-connected fibromyalgia with fatigue, such that separatelycompensating those symptoms would violate the regulatoryprohibition against pyramiding. R. at 11-19. The Board also stated that "[s]he did not argue [in her April 2011 NOD] that the 40[%] evaluation for fibromyalgia was inadequate" and "deem[ ed] that portion of her appeal to be satisfied." R. at 21. This appeal followed. 4 II. ANALYSIS A. Claims for Service Connection Currently on Appeal As an initial matter, Ms. Kerns argues that VA did not inform her of the information and evidence necessary to establish secondary service connection for her claimed right knee disorder, memory loss and impaired concentration, and adjustment disorder. Appellant's Brief (Br.) at 2. However, as the Secretarycorrectlynotes, the record contains a January2006 pre-adjudication letter from the RO that set forth the elements necessary to support a "claim for compensation based upon an additional disability that was caused or aggravated by a service- connected disability." R. at 943. Ms. Kerns has not explained how this notice was deficient or how she was otherwise prejudiced by it. See 38 U.S.C. § 7261(b)(2) (requiring the Court to "take due account of the rule of prejudicial error"); Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (explaining that " the burden of showing that an error is harmful normally falls upon the party attacking the agency's determination"). Therefore, her argument must fail. Ms. Kerns next argues that the Board failed to consider whether her right knee disorder, memory loss and impaired concentration, and adjustment disorder may be service connected secondary to her fibromyalgia with fatigue. See Appellant's Br. at 1-3. She also challenges the Board's finding that her claimed conditions are symptoms of her service- connected fibromyalgia, rather than separate disabilities related to it. See id. The Secretary disputes her contentions and asserts that the Board's findings are plausible based on the record and supported by an adequate statement of reasons or bases. See Secretary's Br. at 7-9. The Court will address these arguments separately with respect to each of Ms. Kerns's claimed disabilities. 1. Applicable Law "Except as otherwise provided in [the rating] schedule, the disabilities arising from a single disease entity . . . are to be rated separately as are all other disabling conditions, if any." 38 C.F.R. § 4.25(b) (2012). However, "[t]he evaluation of the same disability under various diagnoses," a practice called pyramiding, "is to be avoided." 38 C.F.R. § 4.14 (2012). The rationale for the prohibition on pyramiding is that "the rating schedule may not be employed as a vehicle for compensating a claimant twice (or more) for the same symptomatology; such a result would overcompensate the claimant for the actual impairment" suffered. Brady v. Brown, 4 Vet.App. 203, 5 206 (1993). When determining whether separate evaluations are warranted, "[t]he critical element is that none of the symptomatology for any . . . conditions is duplicative of or overlapping with the symptomatology of the other . . . conditions." Esteban v. Brown, 6 Vet.App. 259, 262 (1994). In short, "[i]f the appellant's symptoms are 'distinct and separate,' then the appellant is entitled to separate disability ratings for the various conditions." Murray v. Shinseki, 24 Vet.App. 420, 423 (2011) (quoting Esteban, 6 Vet.App. at 262). The Board's attribution of certain symptoms to certain disabilities is a finding of fact that the Court reviews under the "clearly erroneous" standard of review. 38U.S.C. §7261(a)(4);see Murray, 24 Vet.App. at 423. "A factual finding 'is "clearly erroneous" when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)). In rendering its decision, the Board is required to provide a written statement of reasons or bases for its "findings and conclusions[] on all material issues of fact and law presented on the record." 38 U.S.C. § 7104(d)(1). The statement must be adequate to enablea claimant to understand the precise basis for the Board's decision and to facilitate review in this Court. Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). 2. Right Knee Disorder Contrary to Ms. Kerns's argument, the Board expressly addressed whether she was entitled to service connection for a right knee disorder secondaryto her service- connected fibromyalgia with fatigue, but determined that her right knee symptoms did not represent a separate disability from her fibromyalgia with fatigue. R. at 11-14. Specifically, the Board explained that "the majority of the Veteran's doctors have either found the knee to be normal, or like the December 2005/February2006 and February 2010 doctors[,] have specifically attributed this pain to her fibromyalgia[,] which is a disability for which service connection has already been established." R. at 13. 6 To the extent that any right knee symptoms are attributable to fibromyalgia, the Board correctlyconcluded that those symptoms are alreadyaccounted for and compensated byMs. Kerns's 40% evaluation for fibromyalgia with fatigue, which is based on, inter alia, "widespread musculoskeletal pain and tender points." 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5025 (2012). A note to that DC states that "widespread pain" includes "pain in both the left and right sides of the body, that is both above and below the waist, and that affects both the axial skeleton . . . and the extremities." Id. (emphasis added). Thus, as the Board found, separately compensating Ms. Kerns for right knee pain that has been attributed by her doctors to her service- connected fibromyalgia would constitute pyramiding because that pain is not distinct and separate from her fibromyalgia symptoms, for which she is already being compensated. See Brady and Esteban, both supra; 38 C.F.R. § 4.14. The Court, therefore, is not persuaded that the Board committed clear error in that regard. See Previous HitMurrayNext Document, 24 Vet.App. at 423. The Board also acknowledged that the record contains two diagnoses of right knee disorders separate from fibromyalgia–a March 1996 diagnosis of patellofemoral syndrome and a February 2010 diagnosis of minimal degenerative changes of the knee. R. at 13-14. The Board, however, found that they were not related to Ms. Kerns's service. R. at 14. The Board explained that Ms. Kerns's diagnosis of patellofemoral syndrome was made "more than four and a half years after discharge from service," "neither the examiner nor the Veteran attributed this syndrome to active service," "this diagnosis has not been repeated," and it "has not been made since service connection for fibromyalgia was established." R. at 13. The Board also stated that there was "no evidence of degenerative changes during service," the diagnosis of degenerative changes of the right knee "was made many years after the end of the one[-]year presumptive period" for service connection for arthritis, "every X-ray study dated prior to February 2010" was negative for arthritis, "[t]here is no medical opinion that relates the current degenerative changes to any injury or event in active service or to any service[-]connected disability," and "the Veteran herself does not relate the degenerative changes to any specific trauma in service." R. at 13-14. In light of the foregoing statements, and absent evidence of a relationship to service, the Court does not discern any clear error in the Board's finding that Ms. Kerns's diagnosed patellofemoral syndrome and degenerative changes of the right knee were not subject to service 7 connection. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (reiterating that a nexus between the claimed in-service disease or injury and the current disability is a necessary element of service connection); Russo v. Brown, 9 Vet.App. 46, 50 (1996) ( explaining that the Court reviews the Board's determination regarding entitlement to service connection under the "clearly erroneous" standard of review). 3. Adjustment Disorder The Board also determined that Ms. Kerns was not entitled to service connection for an adjustment disorder on a primary or secondary basis. R. at 17. Significantly, the Board found that a preponderance of the evidence was against a finding that Ms. Kerns had a current psychiatric disability separate from the psychiatric symptoms of her fibromyalgia with fatigue. R. at 17. In support of that finding, the Board pointed to various VA medical examinations that were all negative for a psychiatric disability. Id. The Board also acknowledged that the record contains clinical assessments and one diagnosis of an adjustment disorder, as well as notations of depression, but found that "each of the examiners who ha[s] noted an adjustment disorder [ or] depression . . . has also attributed this to the fibromyalgia, the chronic fatigue, or both." R. at 18. The Board then emphasized that "none of these examiners [has] opined that the Veteran has a psychiatric disability that is a separate entity from the fibromyalgia." Id. A review of the record confirms that finding, and Ms. Kerns's 40% evaluation takes into account various psychiatric symptoms, such that compensating her separately for those symptoms would constitute pyramiding. See 38 C.F.R. §§ 4.14 (prohibiting pyramiding), 4.71a, DC 5025 (listing fatigue, sleep disturbances, headaches, depression, and anxiety as symptoms of fibromyalgia). Thus, because Ms. Kerns's psychiatric symptoms have all been attributed to her service-connected fibromyalgia with fatigue, the Court concludes that the Board did not err in denying her secondary service connection for an adjustment disorder. See Brady and Esteban, both supra. Moreover, absent any separately diagnosed psychiatric disability, Ms. Kerns is not entitled to service connection for that claimed condition on a direct basis. See Brammer v. Derwinski, 3 Vet.App. 223, 225 (1992) ("Congress specifically limit[ed] entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof 8 of present disability there can be no valid claim." (citation omitted)); see also Shedden, 381 F.3d at 1166-67 (outlining the elements of service connection). Therefore, the Board also discerns no clear error in the Board's denial of her claim for entitlement to service connection for an adjustment disorder on a direct basis. See Russo, 9 Vet.App. at 50. 4. Memory Loss and Impaired Concentration a. Reasons or Bases For reasons that remain unclear, the Board combined its analysis of Ms. Kerns's claim for serviceconnection formemorylossandimpairedconcentrationwith herclaimforserviceconnection for an adjustment disorder. R. at 14-19. As explained above, the Board found that all of Ms. Kerns's reported psychiatric symptoms, which the Board stated included memory loss and concentration problems, were attributable to her service-connected fibromyalgia with fatigue. R. at 17-18. The Board then concluded that the 40% schedular evaluation for fibromyalgia with fatigue adequately compensated Ms. Kerns for her memory loss and impaired concentration, such that any additional compensation for those symptoms would constitute pyramiding in violation of § 4.14. R. at 18. Although the Board found that "the rating criteria for the Veteran's fibromyalgia with fatigue take into consideration the symptoms that have been identified," DC 5025 does not list neuropsychological symptoms, such as memory loss and impaired concentration, among its descriptive symptoms. Id.; see 38 C.F.R. § 4.71a, DC 5025. Moreover, contrary to the Board's finding, VA classifies memory loss as a neuropsychological symptom, not a psychiatric symptom. See Compensation for Certain Diagnosed Illnesses, 60 Fed. Reg. 6660, 6601 ( Feb. 3, 1995) (explaining that, "consistent with current VA rating procedures," "memory loss is included within the category 'neuropsychological signs or symptoms'"). Thus, absent any further explanation from the Board, it is unclear why the Board accepted the February2010 VA examiner's finding that Ms. Kerns's memory loss and impaired concentration were part of her fibromyalgia and how the Board arrived at its conclusion that she was being compensated for those symptoms under her schedular evaluation for fibromyalgia. See Gilbert, 1 Vet.App. at 57. The Court therefore concludes that the Board's statement of reasons or bases for theportion ofits decisionaddressingentitlementto serviceconnection formemorylossandimpaired concentration was inadequate. 9 b. Extraschedular Evaluation The Court further notes that, although Ms. Kerns is currently in receipt of the maximum schedularevaluationforherfibromyalgia, shemayneverthelessreceiveanextraschedularevaluation for a disability picture not captured by the schedular criteria. See Thun v. Peake, 22 Vet.App. 111, 115 (2008) (explaining that referral for extraschedular consideration is warranted when, inter alia, "the schedular evaluation does not contemplate the claimant's level of disability and symptomatology");38C.F.R.§3.321(b)(providingforextraschedularevaluation in "theexceptional case where the schedular evaluations are found to be inadequate"). The Board, however, did not analyze whether she was entitled to referral for extraschedular consideration. See id. ("When either a claimant or the evidence of record suggests that a schedular rating may be inadequate, the Board must specificallyadjudicatethe issue of whetherreferral for an extraschedularratingis warranted."). That deficiency rendered the Board's statement of reasons or bases for its decision on this claim inadequate. See 38 U.S.C. § 7104(a) (requiring the Board to consider and discuss in its decision all "applicable" provisions of law and regulation); Gilbert, 1 Vet.App. at 57. The Court therefore concludes that vacatur and remand are warranted. See Tucker v. West, 11 Vet.App. 369, 374 (1998) ("WheretheBoardhasincorrectlyappliedthelaw,failedto provide anadequatestatementofreasons or bases for its determinations, or where the record is otherwise inadequate, a remand is the appropriate remedy."). Ms. Kerns is free to submit additional argument and evidence as to her claim for memory loss and impaired concentration on remand in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Court reminds the Board that "[a] remand is meant to entail a critical examination of the justification for [the Board's] decision," Fletcher v. Derwinski, 1 Vet.App. 394, 397 ( 1991), and must be performed in an expeditious manner in accordance with 38 U.S.C. § 7112. B. Other Claims Not Currently on Appeal Ms. Kerns alsoasserts thatshe" didnotreceivenotificationregardingassignmentofdisability rating and effective dates [for fibromyalgia with fatigue] until after initial adjudication of the claim." Appellant's Br. at 3. It appears that she is arguing that the Board's determination that she did not 10 appeal the 40% evaluation assigned for that service-connected disabilitywas clearlyerroneous. The Court disagrees. The record reflects that the RO sent Ms. Kerns a letter in February 2011 informing her that she had been awarded a 40% evaluation for fibromyalgia with fatigue and providing her with instructions on how to appeal that determination, should she disagree with it. R. at 362-63. That letter also expressly referred to the enclosed VA Form 4107, which outlines the specific steps for disagreeing with a VA decision and perfecting an appeal to the Board. Id. It is unclear, however, why the Board sent Ms. Kerns a letter requesting that she file an NOD given that she had previously filed one with respect to the RO's October 2007 denial of her claim for an increased evaluation for fibromyalgia: that claim remained in appellate status even after the RO issued the November 2010 SSOC awarding her a 40% evaluation for that condition and the February 2011 decision review officer decision implementing that award. See AB v. Brown, 6 Vet.App. 35, 38 (1993) (holding that "once a claim is in 'appellate status' by virtue of a previously filed NOD, the claimant may not file an additional NOD which could confer jurisdiction on this Court as to that claim"). In other words, had the Board required Ms. Kerns to file a second NOD and Substantive Appeal to obtain appellate review of the award of the increased evaluation for fibromyalgia with fatigue, it would have committed error. See id. However, the Board did not do so here. Instead, the Board addressed Ms. Kerns's claim for an increased evaluation for fibromyalgia with fatigue and (1) remanded the issue of entitlement to an earlier effective date for the 40% evaluation for that condition; and (2) determined that her appeal of the schedular evaluation for fibromyalgiawassatisfiedbecauseshehadalreadybeenawardedthemaximum schedularevaluation available under the applicable DC. R. at 19. Because the Board was correct that DC 5025 does not provide for a schedular evaluation for fibromyalgia greater than 40%, the Court discerns no error in the Board's treatment of the schedular evaluation portion of her fibromyalgia claim. See AB, 6 Vet.App. at 38 ("[O]n a claim for an original or an increased rating, the claimant will generally be presumed to be seekingthe maximum benefit allowed bylaw and regulation, and it follows that such a claim remains in controversy where less than the maximum available benefit is awarded."). Ms. Kerns finally argues that VA has not yet issued an SSOC regarding the issues remanded by the Board. See Appellant's Br. at 3. Those issues, however, are not before the Court at this time 11 because a remand is not a final Board decision that the Court has jurisdiction to review. See Howard, 220 F.3d at 1344; Breeden, 17 Vet.App. at 478; 38 C.F.R. § 20. 1100(b). To the extent that Ms. Kerns believes that VA's delay in issuing an SSOC amounts to an arbitrary refusal to act, her proper recourse is to file with the Court a petition for extraordinary relief in the nature of a writ of mandamus to attempt to compel that action. See Costanza v. West, 12 Vet. App.133, 134 (1999) (per curiam order). III. CONCLUSION Upon consideration of the foregoing, the portion of the August 15, 2011, Board decision addressing Ms. Kerns's claim for service connection for memory loss and impaired concentration is VACATED and the claim is REMANDED for readjudication consistent with this decision. The portions of the Board decision addressing her claims for service connection for right knee and adjustment disorders are AFFIRMED. DATED: November 7, 2012 Copies to: Robin L. Kerns VA General Counsel (027) 12