Single Judge Application, Delisio v. Shinseki, 25 Vet.App. 45, 53; Secretary's Duty Investigate Apparent and Potential Causes

Excerpt from decision below: "However, the appellant's failure to explicitly raise the theory is not fatal so long as it was reasonably raised by the record. See Robinson, 21 Vet.App. at 553 (noting that “[i]t is entirely possible that the record might ‘indicate’ a theory of entitlement, but that a lay appellant might not be sophisticated enough to recognize the theory”); see Delisio v. Shinseki, 25 Vet.App. 45, 53 ("upon the filing of a claim for benefits, the Secretary must investigate the reasonably apparent and potential causes of the veteran's condition and theories of service connection that are reasonably raised by the record or raised by a sympathetic reading of the claimant's filing")." ============================ ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 11-2534 EDWARD R. BERNIGHT, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before PIETSCH, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. PIETSCH, Judge: The appellant appeals pro se from the May5, 2011, decision of the Board of Veterans' Appeals (Board) that denied entitlement to service connection for tinnitus. This appeal is timely and the Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate when the issue is of "relative simplicity" and " the outcome is not reasonablydebatable." Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons set forth below, the Board's May 2011 decision will be affirmed. The Board remanded the issue of entitlement to service connection for hypertension. This claim is not before the Court because it was not the subject of a final Board decision. See Breeden v. Principi, 17 Vet.App. 478 (2004). I. FACTS The appellant served on active duty in the U.S. Navyfrom January1966 to March 1980. See Record (R.) at 3, 471, 491, 530. The record indicates that he is service connected for diabetes mellitus, type II, with bilateral lower extremity peripheral neuropathy, and has been assigned a 20% disability rating from November 9, 2007. In connection with the appellant's claim for hypertension, the regional office (RO) attempted to obtain the appellant's service medical records. R. at 460, 491- 92. A May 2008 memorandum to the file indicates that the National Personnel Records Center notifiedtheRO thatnoservicemedicalrecordswere availablefor the appellantand that the appellant indicated that he had no such records. R. at 460. The memorandum concluded that further attempts to obtain the appellant's records would be futile. Id. In May 2009, the appellant filed a claim for entitlement to service connection for tinnitus, asserting that he was exposed to acoustical trauma in service from fans, including cooling fans. R. at 104-07. In a letter received by the RO in June 2009, the appellant stated that he believed that his tinnitus was caused by the noisy environment created by "electronics and teletype in use while I was in the Navy." R. at 91-92. The appellant was provided a VA audiology examination in July 2009. R. at 48-51. He reported continuous ringing sounds in his ears occurring 90% of the time, with the onset of symptoms 4 years prior to the examination (or about 25 years after service ). R. at 49, 51. The appellant further reported in-service exposure to noise from fans, with no hearing protection, and post-service occupational noise exposure from work in electronic repair, with hearing protection. R. at 49. The audiologist diagnosed bilateral tinnitus, but concluded that it would be speculative to render an opinion regarding the relationship between tinnitus and service because the appellant's claims file was not available for review. R. at 51. In August 2009, the RO denied entitlement to service connection for bilateral tinnitus. R. at 69-72. The appellant filed a Notice of Disagreement. R. at 61-64. In April 2010, a VA audiologist provided a supplemental opinion based on review of the appellant's claims file and the July 2009 audiology examination. R. at 51. She opined that it is less likelythan not that the appellant's tinnitus is related to service, noting that there were no documented complaints of tinnitus in service and that the appellant's complaints of tinnitus began many years subsequent to service. Id. After VA continued its denial of the claim in a July 2010 Statement of the Case (R. at 31-47), the appellant perfected his appeal. R. at 29-30. The Board issued the decision on appeal on May 5, 2011. R. at 3-14. This appeal followed. 2 II. ANALYSIS 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 Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet.App. 247, 253 (1999); Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Heuer v. Brown, 7 Vet.App. 379, 384 (1995). A finding of service connection, or no service connection, is a finding of fact reviewed under the " clearlyerroneous" standard of review. See Swann v. Brown, 5 Vet.App. 229, 232 (1993); 38 U.S.C. § 7261(a)(4). A finding of fact is clearly erroneous when the Court, after reviewing the entire evidence, "is left with the definite and firm conviction that a mistake has been committed." United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990). The Court cannot overturn factual determinations of the Board if they have a plausible basis in the record viewed in its entirety. Id. The Board found that the appellant was exposed to low levels of noise in service based on his militaryoccupational specialityof cryptologic technician. R. at8. Nevertheless,theBoard found that the preponderance of the evidence weighed against a finding that the appellant's tinnitus is directly related to his service. R. at 4, 9. The Board primarily relied on the April 2010 VA audiologist's opinion that it is less likely than not that the appellant's tinnitus is related to service. R. at 8-9. The Board found this opinion to be adequate, noting that it was detailed and that the examiner provided sufficient reasoning in support of her conclusion. R. at 6, 9. The appellant does not challenge this finding. The Board also considered the appellant's lay statements asserting that his tinnitus is related to service; however, the Board found that such statements do not constitute competent evidence because the etiology of the appellant's disability is a complex matter. R. at 9. The Court finds no error in this determination or the Board's alternate determination that, even if the appellant's opinion were to be accorded some probative value, it is outweighed by the VA medical opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (the Board may determine that a specific medical issue is the type of issue for which layevidence is not competent); Owens v. Brown, 7 Vet.App. 429, 433 (1995) (holding that it is the Board, not the Court, that is responsible for 3 assessing the credibility and weight to be given to evidence and that the Court may overturn the Board's assessments only if they are clearly erroneous). In his brief, the appellant fails to identify any specific error with the Board's determination. He admits that he did not have tinnitus at the time of his discharge from service but asserts, without citation to the record, that tinnitus may not develop for years after exposure and that he was exposed to loud noise from teletype machines during 10 years of his service. Appellant's Br. at 3. These assertions essentially constitute a disagreement with the way the Board weighed the evidence and do not demonstrate clear error. With regard to the issue of nexus to service, the Board discussed the evidence of record and, as noted above, appropriately relied on the VA audiologists's opinion. R. at 8-9. The Board also discussed and considered the record evidence indicating that the appellant had in-service exposure to noise from teletype machines. Id. The Court notes that the appellant offers evidence on appeal that is not contained in the record of proceedings, including his own assessment of the noise level to which he was exposed in service, written materials from a local VA office regarding tinnitus, and citation to an article regarding hearing loss and tinnitus. However, because there is no indication that this evidence was part of the record before VA, the Court will not consider it. See 38 U.S.C. § 7252(b) (the Court's review is limited to the record of proceedings before the Secretaryand the Board); see also Wellhead v. West, 11 Vet.App. 251, 252 (1998). Accordingly, the appellant has failed to demonstrate that the Board clearly erred in determining that the evidence did not sufficiently demonstrate that his tinnitus is directly related to service. Based upon a review of the record of proceedings, the Court concludes that there is a plausible basis for the Board's determination in this regard and that the Board provided an adequate statement of reasons or bases for its determination. See Gilbert, 1 Vet. App. at 52; see also Allday v. Brown, 7 Vet.App. 517, 527 (1995) (the Board's statement of reasons or bases for its decision "must be adequate to enable a claimant to understand the precise basis for the Board's decision, as well as to facilitate informed review in this Court"). The appellant also argues that his tinnitus should be service connected as secondary to his service-connected diabetes. Appellant's Brief (Br.) at 5; see 38 C.F.R. § 3.310 (2012) (secondary service connection is awarded when a disability is proximately due to, or aggravated by, a service- 4 connected disease or injury); Allen v. Brown, 7 Vet.App. 439, 448 (1995) ( en banc). He reproduces in his brief written material from a local VA office indicating that diabetes can cause tinnitus. Appellant's Br. at 5. The Board did not address this issue. The Board has a duty to address all issues reasonably raised either by the appellant or by the contents of the record. Robinson v. Peake, 21 Vet.App. 545, 552–56 (2008 ), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). The Court agrees with the Secretary that the appellant did not raise to VA the issue of secondary service connection. However, the appellant's failure to explicitly raise the theory is not fatal so long as it was reasonably raised by the record. See Robinson, 21 Vet.App. at 553 (noting that “[i]t is entirely possible that the record might ‘indicate’ a theory of entitlement, but that a lay appellant might not be sophisticated enough to recognize the theory”); see Delisio v. Shinseki, 25 Vet.App. 45, 53 ("upon the filing of a claim for benefits, the Secretary must investigate the reasonably apparent and potential causes of the veteran's condition and theories of service connection that are reasonably raised by the record or raised bya sympathetic reading of the claimant's filing"). In this case, the appellant has not identified, and the Court cannot find, any indication that the issue of secondary service connection was reasonably raised by the evidence of record. See Robinson, supra; Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (“ An appellant bears the burden of persuasion on appeals to this Court.”), aff'd per curiam, 232 F.3d 908 (Fed. Cir. 2000) (table). The appellant's filings with VA do not raise this issue and there is no evidence in the record of proceedings that the appellant's diabetes may have caused or aggravated his tinnitus. Although the Board has an obligation to analyze claims beyond the arguments explicitly made, the Board is not required "to assume the impossible task of inventing and rejecting every conceivable argument in order to produce a valid decision." Robinson, 21 Vet.App. at 553. Accordingly, "[w]here a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory." Robinson, 557 F.3d at 1361. Although the appellant presents in his brief evidence that diabetes can cause tinnitus, this evidence does not appear in the record on appeal and the appellant has not shown that he submitted this evidence to VA. Rather, the appellant appears to have submitted this evidence to the Court in the first instance. Thus, the Court finds that the Board did not err in failing to consider service 5 connection for the appellant's tinnitus as secondaryto his service- connected diabetes. This decision, however, does not preclude the appellant from raising the issue to VA. III. CONCLUSION Uponconsideration oftheforegoinganalysis, therecordonappeal, andtheparties'pleadings, the May 5, 2011, Board decision is AFFIRMED. DATED: August 14, 2012 Copies to: Edward R. Bernight VA General Counsel (027) 6

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

Excerpt from decision below: "Although his filing appears to only raise the issue of service connection on a direct basis, VA is not constrained by that theory. See DeLisio v. Shinseki, 25 Vet.App. 45, 53(2011) ("[E]ven if a claimant believes that his condition is related to service in a particular way, his claim is not limited solely to one theory of service connection."). Indeed, "upon the filing of a claim for benefits, the Secretary generally must investigate the reasonably apparent and potential causes of the veteran's condition and theories of service connection that are reasonably raised by the record or raised by a sympathetic reading of the claimant's filing." Id. =================================== "The Court disagrees. Mr. Canuto's claim was one for a "right leg (injury) condition" (R. at 284 ); as the Board noted, he did not provide anydetails as to the condition other than his theory that the condition – whatever that may be – was directly service related. Just as the Board is not limited to his theory of service connection, see DeLisio, supra, the Board is also not limited to only those conditions that may be the result of a right leg "injury." Especially because the claim was phrased in such broad terms, the Court concludes that Mr. Canuto's right leg claim may reasonably encompass varicose veins and edema. See DeLisio, 25 Vet.App. at 53 (noting that an appellant sufficiently files a claim by referring to the affected body part)." ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 11-2472 HONORATO D. CANUTO, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before DAVIS, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. DAVIS, Judge: U.S. Navy veteran Honorato D. Canuto appeals through counsel from a June 15, 2011, Board of Veterans' Appeals (Board) decision that denied him entitlement to service connection for "residuals of a right leg injury."1 Record (R.) at 9. For the reasons stated below, the Court will set aside the Board's June 2011 decision and remand the matter for further proceedings consistent with this decision. I. ANALYSIS Mr. Canuto first argues that the Board clearly erred in its determination that Mr. Canuto did not suffer from a current right leg disability. Specifically, he contends that he "suffers from several disabilities of the right leg that have been attributed to his service-connected heart disease" including varicose veins, edema, or a venuous insufficiency (which encompasses both varicose veins and 1 The Board also remanded the issue of entitlement to a total disability rating based on individual employability and deferred adjudication of the issue of an initial compensable evaluation for hypertension. Those matters are not before the Court at this time. See 38 U.S.C. § 7266 (stating that the Court reviews only final decisions of the Board); see also Howard v. Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000). edema) (Appellant's Brief (Br.) at 7), but the Board only considered whether he suffered from a disability that could be directly connected to an in-service injury. In response, the Secretary contends that Mr. Canuto only "sought service connection for a 'right leg (injury)' – not secondary service connection for residuals of arteriosclerotic heart disease." Secretary's Br. at 8. He asserts that the characterization of the condition as an "injury" (as opposed to a "disease") that was sustained in service, his reference to supporting evidence from his service records, and his failure to expressly raise the possibility of secondary serviceconnection in his filings are fatal to his plea before the Court for an expansive reading of his claim for disability benefits. In this case, Mr. Canuto filed a claim for disability benefits for a " right leg (injury) condition."2 R. at 284. Although his filing appears to only raise the issue of service connection on a direct basis, VA is not constrained by that theory. See DeLisio v. Shinseki, 25 Vet.App. 45, 53(2011) ("[E]ven if a claimant believes that his condition is related to service in a particular way, his claim is not limited solely to one theory of service connection."). Indeed, "upon the filing of a claim for benefits, the Secretary generally must investigate the reasonably apparent and potential causes of the veteran's condition and theories of service connection that are reasonably raised by the record or raised by a sympathetic reading of the claimant's filing." Id. Here, the Board determined that Mr. Canuto was not suffering from a right leg disability that is related to an injury in service. It appears, however, that the Board may have erred in limiting Mr. Canuto's claim as one for direct service connection. In its decision, the Board specifically noted that "[t]he only diagnosis of any disorder of the right leg (other than symptoms attributed to his service[-]connected coronary artery disease) appears in September 2008 medical records." R. at7(emphasis added). Mr. Canuto asserts that those "symptoms" to which the Board referred were varicose veins and edema, both of which may be separately compensable under the diagnostic code (DC). See 38 C.F.R. § 4.104, DC 7120, 7121 (2011). Contrary to Mr. Canuto's contention, the Board's analysis does not identify those conditions that may be secondarily related to coronary artery disease. If the "symptoms" are indeed varicose veins and edema, because the record raised the issue of secondary service connection for those compensable conditions, the Board should have considered whether 2 The Court notes that the Secretary failed to include the word "condition" when quoting from Mr. Canuto's claim. 2 service connection was warranted. As it stands, the Board's rationale is insufficient to facilitate judicial review of this matter, and remand is required. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995). In so ordering, the Court notes the Secretary's objection that Mr. Canuto's claim for a right leg "injury" may not encompass conditions such as varicose veins and edema. The Court disagrees. Mr. Canuto's claim was one for a "right leg (injury) condition" (R. at 284); as the Board noted, he did not provide any details as to the condition other than his theory that the condition – whatever that may be – was directly service related. Just as the Board is not limited to his theory of service connection, see DeLisio, supra, the Board is also not limited to only those conditions that may be the result of a right leg "injury." Especially because the claim was phrased in such broad terms, the Court concludes that Mr. Canuto's right leg claim may reasonably encompass varicose veins and edema. See DeLisio, 25 Vet.App. at 53 (noting that an appellant sufficiently files a claim by referring to the affected body part). Mr. Canuto also argues that he has "a claim for tender scars (including of the right leg) that has been pending since at least June 1988" (Appellant's Br. at 8), and that the Board should have considered whether he suffers from a "current disability" of a tender scar of the right leg. It appears that this argument was not presented to the Board in the first instance, which would be better able to determine whether the matter had been previously adjudicated and properly appealed between 1988 and the present. See Maggitt v. West, 202 F.3d 1370, 1377-78 (Fed. Cir. 2000) (holding that the Court has discretion to remand issues presented for the first time on appeal). Consequently, on remand,the Board should determine whether the issue of a "tender scar" requires Board adjudication. II. CONCLUSION On consideration of the foregoing, the Court SETS ASIDE the Board's June 15, 2011, decision as to service connection for residuals of a right leg injury and REMANDS that matter for further proceedings consistent with this decision. On remand, Mr. Canuto is free to submit additional evidence and raise any other additional arguments to the Board, and the Board must address such evidence and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Board 3 shall proceed expeditiously, in accordance with 38 U.S.C. §§ 5109B, 7112 (requiring Secretary to provide for "expeditious treatment" of claims remanded by Board or Court). DATED: January 5, 2012 Copies to: Amy F. Fletcher, Esq. VA General Counsel (027) 4

Single Judge Application, Benefits Arise with Manifestation of Condition, DeLisio v. Shinseki, (Aug. 24, 2011)

Excerpt from decision below: "The question the examiner was directed to answer was whether that condition might have manifested itself earlier than that. Here, the examiner concludes that, because Mr. Brady's medical records do not show "two consecutive readings of 126 on two consecutive days or a glucose tolerance indicative of diabetes mellitus" until 2000, he did not have the condition prior to that date. It goes without saying, however, that if Mr. Brady was not specifically tested for diabetes until 2000, he could not have been diagnosed with that condition until 2000. The examiner appeared to acknowledge that Mr. Brady experienced some diabetes symptomatology much earlier than 2000, yet did not consider whether those symptoms were evidence of diabetes, even in the absence of any diagnostic test for that condition. As the Board well knows, "entitlement to benefits for a disability or disease does not arise with a medical diagnosis of the condition, but with the manifestation of the condition and the filing of a claim for benefits for the condition." DeLisio v. Shinseki, ___ Vet. App. ___, ___ (Aug. 24, 2011), 2011 WL 3691857 at *9 (citing 38 U.S.C. § 5110(a) and McGrath v. Gober, 14 Vet.App. 28, 35 (2000)). Because the VA medical opinion did not address the relevant issue to be decided by the Board, the opinion is inadequate and the Board erred in relying on it. See Stegall v. West, 11 Vet.App. 268, 271 (1998)." ====================== ---------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 10-0157 RAYMOND O. BRADY, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before HAGEL, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. HAGEL, Judge: Raymond O. Brady appeals through counsel a September 21, 2009, Board of Veterans' Appeals (Board) decision that denied entitlement to VA benefits for diabetes mellitus.1 Mr. Brady's Notice of Appeal was timely, and the Court has jurisdiction to review the Board decision pursuant to 38 U.S.C. § 7252(a). Neither partyrequested oral argument or identified issues believed to require a precedential decision of the Court. Because the Board relied on an inadequate VA medical examination report, the Court will vacate the September 2009 Board decision and remand the matter for further development and readjudication consistent with this decision. I. FACTS Mr. Brady served on active duty in the U.S. Air Force from July 1976 to July 1996. The record of proceedings does not contain service medical records. The Board also denied entitlement to disability benefits for bilateral hearing loss. In his brief, Mr. Brady makes no arguments related to the Board's decision on that claim, and the Court therefore considers any appeal as to that claim abandoned. See Grivois v. Brown, 6 Vet.App. 136, 138 (1994) (holding that issues or claims not argued on appeal are considered abandoned). 1 InDecember2002,Mr.Bradyfiled claimsfordisabilitybenefits forbilateral hearingloss and diabetes mellitus. In support of his claim for benefits for diabetes, he submitted a statement from Dr. Robert Abrams, a private physician, who stated: Mr. Brady was diagnosed with type 2 diabetes mellitus in January of 2000. At that time he had been seen on numerous occasions for symptoms consistent with type 2 diabetes mellitus including urinaryfrequency, fatigue and drymouth. His symptoms date back as far as August 1, 1996. It is my opinion that Mr. Brady indeed suffered from early type 2 diabetes prior to August 1, 1996. Record (R.) at 145. In March 2003, a VA regional office denied Mr. Brady's claim for benefits for diabetes because there was no evidence that the condition was incurred in or caused by military service. Mr. Brady filed a Notice of Disagreement with that decision. He requested that VA consider medical records from the "U.S. Naval Station Clinic in Cutler," Maine (Cutler Naval Station), at which he stated he had received treatment both during and after service, and which he stated would show treatment by a physician who told him he had "all the symptoms of" diabetes. R. at 1361. He also advised VA that he planned to submit new medical evidence in the form of May 1996 glucose test results from a private laboratory that showed glucose levels of 65. In January 2004, Mr. Brady submitted the May 1996 laboratory results and requested VA's assistance in obtaining the medical records from Cutler Naval Station. He stated, "I have been advised by the U.S. Naval Air Station at New Brunswick (Naval Air Station), Maine[,] that the medicalrecords maintainedatCutlerNaval Station wereforwardedto arecordsdepositorywhenthat base was closed." R. at 1351. In August 2004, the regional office issued a Statement of the Case continuing to deny Mr. Brady's claims. The Statement of the Case makes no mention of Mr. Brady's request for VA to obtain records from Cutler Naval Station. In October 2004, Mr. Brady appealed his claims to the Board and reiterated his request that VA obtain and review those records. In April 2006, in response to a Veterans Claims Assistance Act notice, Mr. Brady again requested VA assistance in obtaining records from Cutler Naval Station. He advised VA that "the last known location" of those records was the Naval Air Station in Brunswick, Maine, but noted that the records "may have been sent" to a record depository. R. at 1313. 2 At an August 2006 Board hearing, Mr. Brady testified that Dr. Abrams, who was a former military medical officer and had treated him at Cutler Naval Station, reviewed his records and told him that there was "a good possibility" that his diabetes originated as early as 1986. R. at 1291. In October 2006, the Board remanded Mr. Brady's claim to the Appeals Management Center to obtain his treatment records since his discharge from service, including those from Cutler Naval Station, and to obtain a VA medical examination "to ascertain whether or not diabetes mellitus was first manifested in service." R. at 1210. In March 2007, Mr. Brady submitted medical records in support of his claim, including the April 1996 private glucose test that showed a glucose level of 65; a March 1997 private laboratory report that showed a glucose level of 128; and an April 1997 private laboratory report that showed a glucose level of 117 and abnormal lipid levels, which the report noted could be caused bydiabetes, among many other conditions. The record reveals three attempts by VA to obtain Mr. Brady's medical records from Cutler Naval Station. To the first, in November 2006 ("Please provide veteran's treatment records since discharged in July1996 from . . . Cutler Naval Air Station."), the National Personnel Records Center replied that it needed more information to process the request, particularly the time period of the claimed treatment at the facility. R. at 912. VA sent a second request in July 2007 that simply stated, "Please provide veteran's treatment records since discharged in July 1996 from . . . Cutler Air Station," and the National Personnel Records Center again replied that more specific information was required. R. at 882. In August 2008, VA requested inpatient clinical records for diabetes between July 1, 1996, and August 15, 2008, from Cutler Naval Station and MacDill Air Force Base. The National Personnel Records Center responded only that records from MacDill Air Force Base from 1996 had been mailed. On August 15, 2008, the Appeals Management Center sent Mr. Brady a letter advising him that VA had been "unable to obtain every piece of evidence you identified to support your claim." R. at 865. The letter further stated: We are requesting service medical records from the service department from July 1, 1996[,] to the present at MacDill Air Force Base and Cutler Naval Air Station. These records will help us determine how your claimed disabilities are connected to your 3 military service. You do not need to contact the service department yourself. If you have military medical records already in your possession, please submit them. Id. On August 29, 2008, after receiving the letter from the Appeals Management Center, Mr. Brady responded: I contacted the National Personnel Records Center . . . regarding my medical records form[er]llylocatedat Cutler Naval Station, Cutler, Maine. Cutler closed due to [base closure and reassignment] . . . action sometime around circa 2000. The [ National Personnel Records Center] responded to my request on 12/25/2002 and advised me they were unable to locate the records. Unfortunately, all Cutler Naval medical records should be considered permanently lost. Please go forward with a decision without these records. R. at 283. In July 2009, Mr. Brady underwent a VA medical examination. The examiner noted that he "thoroughly"reviewedMr.Brady's claimsfile,includingDr.Thomas's statementregardingthelikely onset of diabetes at least as early as August 1996. R. at 59. The VA examiner opined that diabetes was not shown until January 2000. In September 2009, the Board issued the decision on appeal. Relying heavily on the July 2009 VA opinion, the Board found no evidence of diabetes mellitus duringserviceor within the one- year presumptive period thereafter. The Board discounted Dr. Thomas's favorable opinion because he did not review Mr. Brady's entire claims file and because he did not provide "medical rational[e]" for his conclusion that Mr. Brady's diabetes had its onset at least as early as August 1996. R. at 10. II. ANALYSIS A. Diabetes Mellitus 1. Duty To Assist Mr. Brady argues that the Board's determination that VA satisfied its duty to assist him is clearly erroneous because VA did not obtain his medical records from Cutler Naval Station, despite his numerous requests. This argument is unavailing. The Court is troubled that counsel for Mr. Brady focuses exclusively on VA's purported failure to obtain the records and subsequent failure to notify Mr. Brady of their unavailability in 4 accordance with 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(c), and whollyfails, in the principal brief, to acknowledge Mr. Brady's August 2008 express waiver of consideration of those records. Although counsel is to be expected to present the facts of a case in the light most favorable to her client, she is prohibited from actively misleading the Court, and the omission of this crucial fact comes perilously close to doing so. See MODEL RULES OF PROF'LCONDUCT 3.3(a ) (candor toward the tribunal) (2007). Counsel only discusses Mr. Brady's August 2008 statement in her reply brief in an attempt to refute the Secretary's argument that Mr. Brady waived consideration of the Cutler Naval Station records. At no time does counsel acknowledge her failure to discuss this evidence in her principal brief or explain why she failed to do so. Accordingly, the Court will not consider Mr. Brady's argument on this point. See Carbino v. West, 168 F.3d 32, 34 (Fed. Cir. 1999) (noting that arguments not raised in opening brief are deemed waived). After reviewing the record, the Court concludes that, although the Board erred in finding that VA satisfied its dutyto assist because VA did not make a formal finding of unavailability and notify Mr. Brady, the error is harmless in light of Mr. Brady's demonstrated understanding from the National Personnel Records Center that those records were unavailable. See Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004); see also 38 U.S.C. § 7261(b)(2) ( requiring the Court to "take due account of the rule of prejudicial error"). 2. Adequacy of July 2009 VA Opinion Mr. Brady next argues that the Board relied on an inadequate medical opinion to deny his claim. Specifically, he contends that the July 2009 VA examiner failed to answer the question he was asked and that the rationale provided is circular. The Court agrees. In its October 2006 remand decision, the Board directed the Appeals Management Center to obtain a medical opinion that considered "whether or not diabetes mellitus was first manifested in service." R. at 1210. The resulting examination concluded only that Mr. Brady had not been diagnosed with diabetes until 2000. Although the Secretary and the Board assert that the VA examiner provided sufficient rationale for his conclusion, a review of the opinion reveals only a deft bit of circular logic. The examiner stated: All indications from [Mr. Brady's] claims file indicate that he was diagnosed with diabetes mellitus for the first time in January[] 2000. Reviewing the laboratory results dating back to 1996 and 1998 failed to reveal anylaboratoryresults indicating 5 the presence of diabetes mellitus. Therefore, my opinion is[,] regardless of the symptoms[,] that if the laboratory testing failed to reveal that he had two consecutive readings of 126 on two consecutive days or a glucose tolerance indicative of diabetes mellitus, the diabetes mellitus did not exist until January[] 200[0]. Therefore, my opinion is that there is no evidence of diabetes mellitus prior to January [] 2000. R. at 59 (emphasis added). Mr. Bradydoes not dispute that he was not diagnosed with diabetes until January 2000. The question the examiner was directed to answer was whether that condition might have manifested itself earlier than that. Here, the examiner concludes that, because Mr. Brady's medical records do not show "two consecutive readings of 126 on two consecutive days or a glucose tolerance indicative of diabetes mellitus" until 2000, he did not have the condition prior to that date. It goes without saying, however, that if Mr. Bradywas not specificallytested for diabetes until 2000, he could not have been diagnosed with that condition until 2000. The examiner appeared to acknowledge that Mr. Brady experienced some diabetes symptomatology much earlier than 2000, yet did not consider whether those symptoms were evidence of diabetes, even in the absence of any diagnostic test for that condition. As the Board well knows, "entitlement to benefits for a disabilityor disease does not arise with a medical diagnosis of the condition, but with the manifestation of the condition and the filing of a claim for benefits for the condition." Previous DocumentDeLisio v. Shinseki, ___ Vet. App. ___, ___ (Aug. 24, 2011), 2011 WL 3691857 at *9 (citing 38 U.S.C. § 5110(a) and McGrath v. Gober, 14 Vet.App. 28, 35 (2000)). Because the VA medical opinion did not address the relevant issue to be decided by the Board, the opinion is inadequate and the Board erred in relying on it. See Stegall v. West, 11 Vet.App. 268, 271 (1998). ("[A] remand by this Court or the Board confers on the . . . claimant, as a matter of law, the right to compliance with the remand orders."). In light of this error, the Court will vacate the Board decision and remand this claim for the Board to obtain a new medical opinion that considers the evidence of record and determines whether the symptoms noted in Mr. Brady's medical history during or since service are evidence of an onset of diabetes earlier than 2000. The examiner must expresslydiscuss Dr. Thomas's favorable opinion, as well as the private laboratory glucose and lipid test results, and must support any conclusion reached with sufficient rationale. Mr. Brady is free to submit additional evidence and argument on 6 this claim 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). 3. Reasons or Bases Mr. Bradyalso contends that the Board provided inadequate reasons or bases for discounting Dr. Thomas's favorable opinion that his diabetes began at least as early as August 1996, which is within the one-year presumptive period to establish entitlement to benefits for diabetes. He also argues that the Board failed to account for other probative evidence of manifestations of diabetes in service. Because the Court is remanding Mr. Brady's claim for further development and readjudication, the Board will necessarily provide a new statement of reasons or bases for any decision regarding entitlement to benefits for diabetes. Accordingly, the Court need not address Mr. Brady's reasons or bases arguments at this time. See Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam order) ("A narrow decision preserves for the appellant an opportunity to argue those claimed errors before the Board at the readjudication, and, of course, before this Court in an appeal, should the Board rule against him."). The Court reminds the Board, however, that "[ a] remand is meant to entail a critical examination of the justification for the decision." Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991). Additionally, the mere fact that a physician did not review a claimant's claims file does not render the physician's opinion not probative. Nieves–Rodriguez v. Peake, 22 Vet.App. 295, 303 (2008) (explaining that "the claims file is not a magical or talismanic set of documents, but rather a tool to assist VA examiners to become familiar with the facts necessary to form an expert opinion," and holding that "claims file review, as it pertains to obtaining an overview of the claimant's medical history, is not a requirement for [ ] medical opinions"). B. Reasonably Raised or "Inferred" Claim for Benefits for Tinnitus On appeal, Mr. Bradyargues that the Board failed to adjudicate a reasonablyraised claim for benefits for tinnitus. In the alternative, he argues that the Board failed to "infer" a claim for benefits for that condition. These arguments are unpersuasive. As an initial matter, the Court notes that, while VA does recognize inferred issues, there is no such thing as an inferred claim. See Akles v. Derwinski, 1 Vet.App. 118, 121 (1991) (recognizing entitlement to special monthly compensation as an inferred issue where the veteran had filed a claim for an increased disability rating). 7 With respect to whether a claim for benefits for tinnitus was reasonably raised, Mr. Brady's reliance on Clemons v. Shinseki, 23 Vet.App. 1 (2009), is misplaced. In that case, a self-represented appellant filed an initial claim for benefits for post-traumatic stress disorder that was denied based on a lack of a current diagnosis of that condition. The Board, however, failed to consider whether the claimant was entitled to benefits for schizoid personalitydisorder, a distinct mental disorder with which he had been previouslydiagnosed. The Court, citing the well- established rulethat a layperson is generally not competent to provide a medical diagnosis, explained that VA "should construe a claim based on the reasonable expectations of the non-expert, self- represented claimant and the evidence developed in processing that claim." Id. at 5. Here, however, Mr. Brady was not seeking benefits for symptoms that he thought were caused by hearing loss that turned out to be caused by tinnitus; he was seeking benefits for hearing loss. Despite his protestations that his claim for hearing loss is necessarily related to his diagnosis of tinnitus, the Court has made clear that the conditions are distinct. Kelly v. Brown, 7 Vet.App. 471, 473 (1995) (recognizing tinnitus and hearing loss as distinct conditions); compare 38 C.F.R. § 4.85 (2011) (Evaluation of hearing impairment), with 38 C.F.R. § 4.87, Diagnostic Code 6260 (2011) (Tinnitus, recurrent). Moreover, Mr. Brady's claim was denied because his diagnosed bilateral hearing loss does not rise to the level of a disability for VA purposes, not because the Board improperly narrowed the scope of his claim. That Mr. Brady suffers from tinnitus is irrelevant to the question of whether his bilateral hearing loss is related to service. Further, the mere existence in the medical records of a diagnosis for a condition for which a claimant is not service connected is not sufficient to raise a new claim for benefits for that condition. Criswell v. Nicholson, 20 Vet.App. 501, 504 (2006) ("The mere existence of medical records generally cannot be construed as an informal claim; rather, there must be some intent by the claimant to apply for a benefit."). Although Mr. Brady argues that his cover letter to the submission of the December 2006 audiological examination is sufficient to put VA on notice that he was seeking benefits for tinnitus in addition to benefits for hearing loss, the Court disagrees. That document simply advises VA that the attached document is a hearing test dated December 2006. Nowhere is there any intent to seek benefits for tinnitus, which, again, is a condition distinct from hearing loss, the claim Mr. Brady was appealing at the time. In short, Mr. Brady fails to identify any evidence in 8 the record indicating that he sought VA benefits for his tinnitus, or that he, or anyone on his behalf, submitted a written document expressing his intent to seek benefits for that condition. See Brokowski v. Shinseki, 23 Vet.App. 79, 85 (2009) (citing Brannon v. West, 12 Vet.App. 32, 35 (1998) (to file a claim, a "claimant must submit a written document identifying the benefit and expressing intent to seek it"); see also Criswell, 20 Vet.App. at 504. In the absence of his having submitted a claim for that condition, it was not error for the Board not to address it. See Robinson v. Peake, 21 Vet.App. 545, 53 (2008) (holding that the Board is required to consider all issues raised by the claimant or reasonably raised by the evidence of record). In light of this discussion, the Court concludes that it was not error for the Board to not consider a claim for benefits for tinnitus. Mr. Brady remains free to file a claim for benefits for that condition should he so desire. C. Final Matter The Court notes that the parties' briefs repeatedly refer to a "claim for service connection." As the Court explained in Hillyard v. Shinseki, the use of this term is inexact and therefore is—although prevalent in the Court's cases, as well as those of the United States Court of Appeals for the Federal Circuit—disfavored. 24 Vet.App. 343, 355 (2011). The Court urges the parties to practice precision in language in future briefs. III. CONCLUSION Upon consideration of the foregoing, the September 21, 2009, Board decision is VACATED and the matter is REMANDED for further development and readjudication consistent with this decision. DATED: October 11, 2011 Copies to: Jill Mitchell, Esq. VA General Counsel (027) 9

DeLisio v. Shinseki, No. 09-0404(Argued May 10, 2011 Decided August 24, 2011)

DeLisio v. Shinseki, No. 09-0404(Argued May 10, 2011 Decided August 24, 2011)

Excerpt from decision below:

"However, an exception to the general rule applies for Nehmer class members, who may be assigned effective dates earlier than the date of the law or regulation establishing presumptive service connection. See 38 C.F.R. § 3.816(c)(2)(2011) (allowing for effective date for benefits for covered herbicide diseases of Nehmer class members as early as the date of the claim, even if presumption of service connection was not established at that time)."

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

Rather, we hold that, when a claim is pending and information obtained reasonably indicates that the claimed condition is caused by a disease or other disability that may be associated with service, the Secretary generally must investigate the possibility of secondary service connection; and, if that causal disease or disability is, in fact, related to service, the pending claim reasonably
encompasses a claim for benefits for the causal disease or disability, such that no separate filing is necessary to initiate a claim for benefits for the causal disease or disability, and such that the effective date of benefits for the causal disability can be as early as the date of the pending claim.10
=========================================

1. Scope of Claim
a. Generally
A claim for VA benefits requires "(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing." Brokowski v. Shinseki, 23 Vet.App.
9

79, 84 (2009). However, a claimant is not required in filing a claim for benefits to identify a precise medical diagnosis or the medical cause of his condition; rather, he sufficiently files a claim for benefits "by referring to a body part or system that is disabled or by describing symptoms of the disability." Id. at 86. This is because a claimant is not expected to have medical expertise and generally "is only competent to identify and explain the symptoms that he observes and experiences." Clemons v. Shinseki, 23 Vet.App. 1, 5 (2009); see also Jandreau v.
Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence of laypersons to testify as to symptoms but not medical diagnosis).
Moreover, even if a claimant attempts to identify his diagnosis in his claim for benefits, his claim is not limited necessarily to benefits for that diagnosis. See Clemons, 23 Vet.App. at 5("[A] self-represented layperson . . . ha[s] neither the legal or medical knowledge to narrow the universe of his claim . . . . [He does] not file a claim to receive benefits only for a particular diagnosis, but for the affliction his . . . condition, whatever that is, causes him."). Also, even if a
claimant believes that his condition is related to service in a particular way, his claim is not limited solely to one theory of service connection. See Kent v. Nicholson, 20 Vet.App. 1, 16 (2006) (a claim "includes all theories under which service connection may be granted").


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

b. Underlying Causal Disabilities Leading to Secondary Service Connection
Moreover, pursuant to 38 C.F.R. § 3.310 (allowing for secondary service connection of a "disability which is proximately due to or the result of a service-connected disease or injury"), the relationship between a claimant's condition and service may be established through a causal chain of diseases or disabilities. Thus, if the condition for which VA benefits are sought is not directly associated with service, but information obtained during the processing of the claim
reasonably indicates that the cause of the condition is a disease or other disability that may be associated with service, the Secretary generally must investigate whether the causal disease or disability is related to service, in order to determine whether the claimed condition is related secondarily to service. See Schroeder, supra; Roper v. Nicholson, 20 Vet.App. 173, 179 (2006)(acknowledging that "service connection may be established on a secondary basis"); McLendon
v. Nicholson, 20 Vet.App. 79, 83 (2006) (noting that the duty to assist is triggered when "evidence 'indicates' that a disability . . . 'may be associated' with . . . service" (quoting 38 U.S.C. § 5103A(d)(2)(B))). If the Secretary determines that the causal disease or disability is, in fact, connected to service, then the claim for benefits for the condition "reasonably encompasses" a
claim for that causal disease or disability, such that no additional filing is necessary to initiate a claim for benefits for the causal disease or disability.9 Clemons, 23 Vet.App. at 5 (holding that a claim for benefits "may reasonably be encompassed by several factors, including . . . information . . . that the Secretary obtains in support of the claim"); cf. id. at 5-6 (finding that claim for

11

benefits reasonably encompassed the disabilities diagnosed as the cause of claimant's mental condition, even though claimant classified his request as a claim for benefits for PTSD); Rice v. Shinseki, 22 Vet.App. 447, 453-54 (2009) (holding that the issue of the appropriateness of a total disability rating based on individual unemployability (TDIU) is inferred as part of a claim whenever evidence of unemployability is submitted with a claim for benefits). This is because, as noted above, the law does not expect the claimant to have the medical or legal expertise to file a claim requesting benefits for each technical disability in the causal chain of disabilities that composes his condition, and a claim must be read sympathetically. Clemons, 23 Vet.App. at 5.
Otherwise stated, if (1) a claimant files a claim for benefits for a condition (here, an October 31, 1980, claim for benefits for left-leg numbness or a January 1994 claim for benefits for peripheral neuropathy), (2) the claim remains open and not finally adjudicated, and (3) the cause of that condition ultimately is determined to be a disease or disability incurred in or aggravated by service (here, diabetes), then the effective date for both the secondarily serviceconnected condition and the service-connected causal disease or disability can be as early as the date of the open claim, depending on when each disability manifested and when law or regulation otherwise authorized benefits. See 38 U.S.C. § 5110(a) ("[T]he effective date of an award . . . shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor").

"The Board decision on appeal generally, and the Secretary at oral argument specifically, endorsed the notion that a claimant must file a claim explicitly for benefits for the causal disease or disability to establish entitlement to secondary service connection for the claimed condition.
Such an argument, however, is overly technical and generally incompatible with the "veteranfriendly," nonadversarial, administrative claims system. Kouvaris v. Shinseki, 22 Vet.App. 377, 381 (2009). Moreover, this position has no support in statute or regulation, and contravenes the crux of the previously discussed caselaw, namely that (1) a claimant need not file a claim for benefits for the precise medical causes of his condition, (2) the Secretary must sympathetically read a claimant's filing and investigate potentially applicable theories of service connection, and (3) a claim for benefits for one disability reasonably may encompass other disabilities. See
12

Brokowski, 23 Vet.App. at 85-86; Clemons, 23 Vet.App. at 5; see also Schroeder and Kent, both supra."
==================================

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UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-0404
LAWRENCE DELISIO, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Argued May 10, 2011 Decided August 24, 2011)

Christopher Aldo Porco, of Washington, D.C., for the appellant.
Rudrendu Sinhamahapatra, with whom Will A. Gunn, General Counsel; R. Randall
Campbell, Assistant General Counsel; and Gayle E. Strommen, Deputy Assistant General
Counsel, all of Washington, D.C., were on the brief for the appellee.

Before KASOLD, Chief Judge, and HAGEL and LANCE, Judges.
LANCE, Judge, filed an opinion concurring in the result.

KASOLD, Chief Judge: Vietnam veteran Lawrence DeLisio appeals through counsel that
part of a December 31, 2008, Board of Veterans' Appeals (Board) decision that denied
entitlement to (1) an effective date prior to June 5, 2005, for benefits for diabetes mellitus type 2(diabetes) and peripheral neuropathy of the left-lower extremity (peripheral neuropathy),1 and (2) a disability rating in excess of 20% for the period from April 18, 1983, to November 17, 1988, and in excess of 60% for the period since November 18, 1988, for a service-connected low-back
disability. The Court referred this appeal to a panel and held oral argument to resolve the novel issue of whether a disability that is secondarily service-connected can have an effective date earlier than the date a claim was filed explicitly for the primary service-connected disability. We find that, under certain, limited circumstances, it can. Thus, for the reasons that follow, that part

1 "Neuropathy" is defined as "a functional disturbance or pathological change in the peripheral nervous system . . . . Known etiologies include complications of other diseases (such as diabetes or porphyria)." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1287 (31st ed. 2007) [hereinafter DORLAND'S]. "Peripheral neuropathy" is defined as the "neuropathy of several peripheral nerves simultaneously." Id. at 1288, 1513.

of the Board decision on appeal will be in part affirmed, and in part set aside and the matters remanded for further adjudication consistent with this decision.

I. FACTS
A. Peripheral Neuropathy and Diabetes
Mr. DeLisio served on active duty in the U.S. Army from June 1966 to June 1969,
including service in Vietnam. On October 24, 1980, Mr. DeLisio filed a "claim for agent orange" that noted symptoms of skin problems, stress, and swollen lymph nodes. Record (R.) at 3579. On October 31, 1980, he filed "a supplemental claim . . . for agent orange condition" and listed symptoms of "numbness in [his] left leg," large lymph nodes, erratic heartbeat, a breathing condition, and hair loss. R. at 132-33. The record of proceedings reflects that, in February 1981, the Pittsburgh, Pennsylvania, VA regional office (RO) acknowledged receipt of the supplemental
claim and informed Mr. DeLisio that it would process the request for benefits once the claims file was returned from the Board on another matter. It is undisputed, however, that these claims had not been adjudicated by June 1992, when Mr. DeLisio submitted a letter to the RO requesting adjudication of his "claim for Agent Orange Exposure." R. at 3764.
In September 1992, Mr. DeLisio, who was then self-represented, was present for a
hearing before the Board. The Board member and Mr. DeLisio discussed Mr. DeLisio's pending claims at an off-the-record pre-hearing conference. Following the conference and once on the record, the Board member listed 15 matters that required adjudication. Notably, however, the Board member omitted any mention of matters raised solely in the October 31, 1980, claim for benefits (left-leg numbness, erratic heartbeat, a breathing condition, and hair loss). R. at 3692.
The Board member then asked Mr. DeLisio if the matters were correct, and Mr. DeLisio
responded, "I think so[,] sir." Id.
In March 1995, the Board adjudicated the matters listed by the Board member at the
hearing and, inter alia, denied "service connection for a skin disorder claimed as a residual to exposure to herbicides in Vietnam (or Agent Orange)." R. at 2397. Mr. DeLisio appealed that decision to the Court, and, in April 1996, the Court granted the parties' joint motion for remand
2

(JMR), which (1) remanded the matters of post-traumatic stress disorder (PTSD) and low-back disability and (2) dismissed the remaining matters on appeal.
Independent of the Board's processing of the above matters, in September 1993, Mr.
DeLisio was diagnosed with "right and left lower extremity peripheral neuropathy secondary to perked diskogenic disease of the lumbosacral area" following complaints of decreased sensation in his legs. R. at 3078. In January 1994, Mr. DeLisio filed a claim for benefits for peripheral neuropathy. 2 It is undisputed that this claim was not adjudicated when, on June 5, 2006, Mr. DeLisio filed a claim for benefits for diabetes and peripheral neuropathy. At the time of his
2006 filing, Mr. DeLisio had received a diagnosis of diabetes. He also had diagnoses of peripheral neuropathy, diabetic neuropathy and diabetic polyneuropathy in response to his complaints of tingling, numbness, and decreased sensation of the left-lower extremity.3
Key to Mr. DeLisio's claims, on May 8, 2001, diabetes mellitus was added to the list of herbicide diseases presumptively associated with exposure to Agent Orange in Vietnam. See Disease Associated with Exposure to Certain Herbicide Agents: Type 2 Diabetes, 66 Fed. Reg. 23,166 (May 8, 2001); see also 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(a) (2011). Henceforth, Mr. DeLisio was a "Nehmer class member"4 and potentially entitled to an effective date for benefits for diabetes earlier than the date presumptive service connection for diabetes was authorized. See 38 C.F.R. § 3.816(c)(2) (2011) ("If the class member's claim for disability compensation for the covered herbicide disease was either pending before VA on May 3, 1989, or was received by VA between that date and the effective date of the statute or regulation establishing a
presumption of service connection for the covered disease, the effective date of the award will be

2 Although this document is not in the record of proceedings, the Board decision on appeal noted that Mr. DeLisio "submitted a detailed statement in January 1994" in which he stated "that he had a new diagnosis of peripheral neuropathy that was consistent with Agent Orange." R. at 22.

3 "Polyneuropathy" is another name for "peripheral neuropathy." DORLAND'S at 1288.

4 A Nehmer class member is "[a] Vietnam veteran who has a covered herbicide disease," i.e., "a disease for which the Secretary of Veterans Affairs has established a presumption of service connection before October 1, 2002
pursuant to the Agent Orange Act of 1991, Public Law 102-4, other than chloracne." 38 C.F.R. § 3.816(b) (2011); see also Nehmer v. U.S. Veterans Admin., 118 F.R.D. 113 (N.D. Cal. 1987) (finding that service members who have an existing claim for benefits pending – or become eligible to apply for benefits – based on exposure to herbicides are members of the Nehmer class).
3

the later of the date such claim was received by VA or the date disability arose . . . ."); see also 38 C.F.R. § 3.816(c)(1) ("If VA denied compensation for the same covered herbicide disease in a decision issued between September 25, 1985 and May 3, 1989, the effective date of the award will be the later of the date VA received the claim on which the prior denial was based or the disability arose . . . .").5
In May 2007, the RO found that Mr. DeLisio's diabetes was service connected on a
presumptive basis and assigned a 20% disability rating, effective June 5, 2006, the date of Mr. Delisio's claim for benefits explicitly for diabetes. The same rating decision found that Mr. DeLisio's peripheral neuropathy was service connected secondary to diabetes and assigned a 10% disability rating, effective June 5, 2006.
In the December 2008 decision on appeal, the Board agreed with the RO that Mr.
DeLisio, as a Nehmer class member, was entitled to presumptive service connection for diabetes.
The Board also agreed that Mr. DeLisio first filed a claim for diabetes on June 5, 2006, but found that he was entitled to an effective date of June 5, 2005, one year earlier than the date of his claim for benefits specifically for diabetes. See 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114(a)(3)(2011) (if claim for benefits is submitted more than one year after effective date of liberalizing law or issue, benefits may be authorized one year earlier than date of claim). The Board additionally found that Mr. DeLisio's diabetes was diagnosed first in 2000, but dismissed the notion that his October 31, 1980, claim for benefits included a claim for diabetes because "[t]he veteran could not claim a disorder that was not diagnosed. Nor did he." R. at 21.
Regarding peripheral neuropathy, the Board acknowledged that Mr. DeLisio's January
1994 claim for benefits for peripheral neuropathy was not adjudicated until the underlying May 2007 RO decision. However, the Board found that the evidence did not support a peripheral neuropathy diagnosis until 2001, and that the medical evidence thereafter mentioned peripheral neuropathy only as a result of diabetes, and determined that Mr. DeLisio was not entitled to service connection for peripheral neuropathy on any basis other than as secondary to diabetes.

5 See generally Nehmer v. U.S. Veterans Admin., 712 F. Supp. 1404 (N.D. Cal. 1989) (voiding all previous benefit denials for certain disabilities based on exposure to herbicides); Nehmer v. U.S. Veterans Admin., 32 F. Supp. 2d 1175 (N.D. Cal. 1999) (clarifying its 1989 decision), aff'd, 284 F.3d 1158 (9th Cir. 2002).
4

Accordingly, the Board found service connection for peripheral neuropathy as secondary to diabetes, and found that Mr. DeLisio's entitlement to benefits for peripheral neuropathy was tied to his claim for benefits for diabetes. The Board assigned June 5, 2005, as the effective date for benefits for peripheral neuropathy, the same date as that assigned for benefits for diabetes.
B. Low-Back Disability
Mr. DeLisio first filed a claim for service connection for a low-back disability in June 1981. His claim was denied in November 1981 and became final.6 On April 18, 1983, Mr. DeLisio attempted to reopen his claim with new medical evidence regarding his low-back disability. After further development, a July 1993 Board remand, and an April 1996 Court order granting a JMR, a February 1998 Board decision granted service connection for a low-back disability, as secondary to Mr. DeLisio's service-connected right-leg condition.7 In May 1998, the RO assigned a 10% disability rating, effective April 18, 1983. Mr. DeLisio appealed both the disability rating and the assigned effective date, and a March 2000 Board decision subsequently denied an earlier effective date and remanded the matter of the appropriateness of the 10% disability rating for further adjudication. Mr. DeLisio initially appealed the Board's effective-date finding, but expressly withdrew his appeal of the effective date pursuant to a JMR that was granted by the Court in January 2001.
Following three additional Board remands, the Board decision on appeal found that (1)
an earlier effective date for Mr. DeLisio's low-back disability was unwarranted, based upon Mr. DeLisio's express withdrawal of his appeal in the JMR granted by the Court in January 2001 and his nonspecific assertions of clear and unmistakable error (CUE) in the March 2000 Board decision, (2) a 20% disability rating–rather than 10%–was warranted for his low-back disability from April 18, 1983, to November 18, 1988, and (3) a 60% disability rating–rather than 10%–was warranted for his low-back disability from November 18, 1988. This appeal followed.

6 A subsequent Board decision found no clear and unmistakable error (CUE) in this denial.
7 This right-leg condition consists of a residual right knee injury, rated at 10% from September 1982 and a right peroneal nerve injury, rated at 30% from May 1990. It is unrelated to the left-leg numbness and peripheral neuropathy discussed in the preceding section.
5

II. PARTIES' ARGUMENTS
On appeal, Mr. DeLisio argues that the Board erred by limiting the effective date for benefits of peripheral neuropathy to the date of his claim for benefits explicitly for diabetes. He contends that his October 31, 1980, claim for benefits for a condition related to Agent Orange exposure, which noted the symptom of left-leg numbness, reasonably encompassed a claim for benefits for both peripheral neuropathy (as the cause of his left-leg numbness) and diabetes (as the cause of his peripheral neuropathy and left-leg numbness). He further argues that this claim
remained unadjudicated until the underlying May 2007 RO decision, such that an October 31, 1980, effective date is warranted. In the alternative, he argues that a January 1994 effective date is warranted because his January 1994 claim for benefits for peripheral neuropathy reasonably encompassed a claim for benefits for diabetes (as the cause of his peripheral neuropathy).
Mr. DeLisio also argues that the Board erred by (1) finding that his peripheral neuropathy was related to service only as secondary to diabetes, (2) discounting previous peripheral neuropathy diagnoses, (3) violating due process in failing to adjudicate matters raised in the October 31, 1980, request for benefits, and (4) failing to award higher disability ratings and an earlier effective date for his low-back disability.
The Secretary disputes Mr. DeLisio's contentions and seeks affirmance of the Board
decision. First, the Secretary argues that the effective date for benefits for diabetes can be no earlier than one year prior to June 5, 2006, the date that Mr. DeLisio filed a claim for benefits explicitly for that disease. Second, he contends that the effective date for benefits for peripheral neuropathy can also be no earlier than one year prior to June 5, 2006, because Mr. DeLisio could not have been entitled to benefits for a disability secondary to diabetes until he was entitled to benefits for diabetes. Third, the Secretary argues that Mr. Delisio's October 31, 1980, claim for benefits for left-leg numbness (1) did not encompass a claim for benefits for either peripheral neuropathy or diabetes, (2) was adjudicated in the March 1995 Board decision and became final with the April 1996 Court order dismissing all matters on appeal except the claim for benefits for
PTSD and a low-back disorder, or (3) was withdrawn in a September 1992 pre-hearing
conference.
6

The Secretary further argues that the Board did not (1) err with regard to its finding that Mr. DeLisio's peripheral neuropathy was not service connected on a direct basis, (2) improperly discount prior peripheral neuropathy diagnoses, (3) violate due process with regard to Mr. DeLisio's October 31, 1980, claim for benefits for several disabilities, or (4) err as to its assignment of an effective date and disability ratings for Mr. DeLisio's low-back disability.

III. DISCUSSION
As discussed below, the record and the law generally support Mr. DeLisio's arguments
with regard to the effective date for benefits for peripheral neuropathy and diabetes, and these matters will be remanded for further adjudication. The record also reflects that the Board provided an inadequate statement of reasons or bases for finding a disability rating higher than 60% unwarranted for Mr. DeLisio's low-back disability from November 18, 1988, and this matter will be remanded for further adjudication. However, the record does not support Mr. DeLisio's assertion of Board error with regard to the effective date of benefits for his low-back
disability or the 20% disability rating from April 18, 1983, to November 18, 1988. Additionally, Mr. DeLisio's argument regarding a due process violation is rendered moot to the extent that it relates to his October 31, 1980, claim for benefits for left-leg numbness, and is beyond our jurisdiction to the extent that it relates to the claim for benefits for other disabilities included in the October 31, 1980, claim.

A. Effective Dates for Benefits for a Disability
The determination of an effective date for benefits for a disability can be a complex matter. First, an effective date generally can be no earlier than the date of the claim. See 38 U.S.C. § 5110(a) ("[T]he effective date of an award . . . shall not be earlier than the date of receipt of application therefor."). However, certain statutory provisions permit an effective date up to one year earlier than the date of the claim. For example, if a claimant filed a claim for
benefits for a disability within one year of his separation from service, the effective date for the award of benefits can be as early as the date of separation from service. 38 U.S.C. § 5110(b)(1).
Similarly, an effective date can be up to one year earlier than the date of a claim if an award is made pursuant to a change in law. 38 U.S.C. § 5110(g); see also, e.g., 38 U.S.C. §§ 5110(d)

7
(effective date tied to date of death if claim filed within one year of death), 5110(j) (effective date tied to date of report of death of active duty service member if claim filed within one year of report).
Second, an effective date generally can be no earlier than the "facts found." 38 U.S.C. § 5110(a) ("[T]he effective date of an award . . . shall be fixed in accordance with the facts found . . . ."). These "facts found" include the date the disability first manifested and the date entitlement to benefits was authorized by law and regulation. See 38 C.F.R. § 3.400 (2011) (the
effective date "will be the date of receipt of the claim or the date entitlement arose, whichever is the later"); see also Ellington v. Peake, 541 F.3d 1364, 1369-70 (Fed. Cir. 2008) (finding the effective date provisions of 38 C.F.R. § 3.400 "consistent with 38 U.S.C. § 5110"); Livesay v. Principi, 15 Vet.App. 165, 171 (2001) (en banc) (rejecting argument that 38 C.F.R. § 3.400(q)(stating that the effective date for reopened claim is the "date of receipt of the new claim or [the] date entitlement arose, whichever is later") is inconsistent with 38 U.S.C. § 5110(a)).8 For instance, if a claimant filed a claim for benefits for a disability before he actually had the disability, the effective date for benefits can be no earlier than the date the disability first manifested. See McGrath v. Gober, 14 Vet.App. 28, 35 (2000) (remanding case for Board to determine when disability "manifested itself under . . . all of the 'facts found'" and to assign an effective date for benefits accordingly); see also Ellington, 541 F.3d at 1369 (finding it "illogical" to award benefits on a certain date "when the evidence indicates that those conditions did not develop until some later date"); cf. Ross v. Peake, 21 Vet.App. 528, 533 (2008) ("[W]hen that additional disability was acquired or became manifest, if later than the date of application, necessarily would control the effective date for an award."). Additionally, if a disability is found to be service connected based on the issuance of a new act or administrative issue, the effective date typically can be no earlier than the effective date of the act or administrative issue. See

8 Our concurring colleague asserts that 38 C.F.R. § 3.400 is inconsistent with the effective-date provisions of 38 U.S.C. § 5110 because the regulation circumscribes the effective date of benefits to the date of the claim or the date entitlement arose, whichever is later, while the statute circumscribes the effective date to the date of the claim or in accordance with the facts found, whichever is later. We do not perceive the conflict our colleague sees, and his view ignores the fact that both this Court and the U.S. Court of Appeals for the Federal Circuit have held that § 3.400 is consistent with section 5110. See Ellington and Livesay, both supra.
8

38 U.S.C. § 5110(g) (effective date "shall not be earlier than the effective date of the act or administrative issue" authorizing benefits); DeSousa v. Gober, 10 Vet.App. 461, 467 (1997) (finding that section 5110(g) "precludes an effective date earlier than the effective date of the liberalizing law or regulation" authorizing benefits); McCay v. Brown, 9 Vet.App. 183, 187 (1996) (same), aff'd, 106 F.3d 1577 (Fed. Cir. 1997). However, an exception to the general rule applies for Nehmer class members, who may be assigned effective dates earlier than the date of the law or regulation establishing presumptive service connection. See 38 C.F.R. § 3.816(c)(2)(2011) (allowing for effective date for benefits for covered herbicide diseases of Nehmer class members as early as the date of the claim, even if presumption of service connection was not established at that time).
Accordingly, in determining the effective dates for the award of Mr. DeLisio's benefits for diabetes and peripheral neuropathy, we must consider (1) the date of his claims for benefits for both disabilities, (2) the facts found as to his disabilities, including the date these disabilities first manifested and the date entitlement to benefits was authorized by law or regulation, and (3)Mr. DeLisio's status as a Nehmer class member.

B. Mr. DeLisio's Claim for Benefits for Diabetes
There is no dispute that Mr. DeLisio filed a claim for benefits explicitly for diabetes on June 5, 2006. However, Mr. DeLisio argues that his January 1994 claim for benefits for peripheral neuropathy and his October 31, 1980, claim for benefits based on exposure to Agent Orange, which noted a symptom of left-leg numbness, reasonably encompassed a claim for benefits for diabetes. In support of his argument, he asserts that his left-leg numbness and peripheral neuropathy were both eventually diagnosed as caused by diabetes. The Secretary argues that neither the 1994 nor the October 31, 1980, claim for benefits reasonably encompassed a claim for benefits for diabetes. In order to resolve this dispute, we look first to our caselaw regarding the scope of claims.

1. Scope of Claim
a. Generally
A claim for VA benefits requires "(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing." Brokowski v. Shinseki, 23 Vet.App.
9

79, 84 (2009). However, a claimant is not required in filing a claim for benefits to identify a precise medical diagnosis or the medical cause of his condition; rather, he sufficiently files a claim for benefits "by referring to a body part or system that is disabled or by describing symptoms of the disability." Id. at 86. This is because a claimant is not expected to have medical expertise and generally "is only competent to identify and explain the symptoms that he observes and experiences." Clemons v. Shinseki, 23 Vet.App. 1, 5 (2009); see also Jandreau v.
Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence of laypersons to testify as to symptoms but not medical diagnosis).
Moreover, even if a claimant attempts to identify his diagnosis in his claim for benefits, his claim is not limited necessarily to benefits for that diagnosis. See Clemons, 23 Vet.App. at 5("[A] self-represented layperson . . . ha[s] neither the legal or medical knowledge to narrow the universe of his claim . . . . [He does] not file a claim to receive benefits only for a particular diagnosis, but for the affliction his . . . condition, whatever that is, causes him."). Also, even if a
claimant believes that his condition is related to service in a particular way, his claim is not limited solely to one theory of service connection. See Kent v. Nicholson, 20 Vet.App. 1, 16 (2006) (a claim "includes all theories under which service connection may be granted").
Of course, the Secretary is not required to raise and investigate "all possible" theories of service connection for a claim. Robinson v. Peake, 21 Vet.App. 545, 553 (2008) (noting that the duty to assist is triggered when "some evidence . . . 'indicates' that the disability 'may be
associated' with . . . service" (quoting 38 U.S.C. § 5103A(d)(2)(B))), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); Gobber v. Derwinski, 2 Vet.App. 470, 472 (1992)("[T]he duty to assist is not a license for a 'fishing expedition' to determine if there might be some unspecified information which could possibly support a claim."). But, upon the filing of a claim for benefits, the Secretary generally must investigate the reasonably apparent and potential
causes of the veteran's condition and theories of service connection that are reasonably raised by the record or raised by a sympathetic reading of the claimant's filing. See Schroeder v. West, 212 F.3d 1265, 1271 (Fed. Cir. 2000); Robinson, 21 Vet.App. at 552 (characterizing Schroeder as holding that "the duty to assist applies to the entire claim, which might require assistance in developing more than one theory in support of that claim"); see also Roberson v. Principi, 251
10

F.3d 1378, 1384 (Fed. Cir. 2001); Brokowski, 23 Vet.App. at 85. Overall, the scope of the claim will be based on a sympathetic assessment of "the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim," i.e., the information gathered upon investigation. Clemons, 23 Vet.App. at 5.

b. Underlying Causal Disabilities Leading to Secondary Service Connection
Moreover, pursuant to 38 C.F.R. § 3.310 (allowing for secondary service connection of a "disability which is proximately due to or the result of a service-connected disease or injury"), the relationship between a claimant's condition and service may be established through a causal chain of diseases or disabilities. Thus, if the condition for which VA benefits are sought is not directly associated with service, but information obtained during the processing of the claim reasonably indicates that the cause of the condition is a disease or other disability that may be
associated with service, the Secretary generally must investigate whether the causal disease or disability is related to service, in order to determine whether the claimed condition is related secondarily to service. See Schroeder, supra; Roper v. Nicholson, 20 Vet.App. 173, 179 (2006)(acknowledging that "service connection may be established on a secondary basis"); McLendon v. Nicholson, 20 Vet.App. 79, 83 (2006) (noting that the duty to assist is triggered when
"evidence 'indicates' that a disability . . . 'may be associated' with . . . service" (quoting 38 U.S.C. § 5103A(d)(2)(B))). If the Secretary determines that the causal disease or disability is, in fact, connected to service, then the claim for benefits for the condition "reasonably encompasses" a claim for that causal disease or disability, such that no additional filing is necessary to initiate a
claim for benefits for the causal disease or disability.9 Clemons, 23 Vet.App. at 5 (holding that a claim for benefits "may reasonably be encompassed by several factors, including . . . information . . . that the Secretary obtains in support of the claim"); cf. id. at 5-6 (finding that claim for

9 In this case, of course, Mr. DeLisio filed formal claims for benefits for left-leg numbness in 1980, peripheral neuropathy in 1994, and diabetes in 2006, and the need to file a formal claim for benefits for any of these disabilities
is not at issue. Rather, the issue is whether Mr. DeLisio may be assigned an effective date for benefits for diabetes earlier than his formal 2006 diabetes claim because a claim for diabetes reasonably was encompassed in his claim
for benefits for peripheral neuropathy in 1994 (or even in his claim for benefits for left-leg numbness in 1980), or whether Mr. DeLisio may be assigned an effective date for benefits for peripheral neuropathy earlier than his formal 1994 peripheral neuropathy claim because a claim for peripheral neuropathy reasonably was encompassed in his claim for benefits for left-leg numbness in 1980.
11

benefits reasonably encompassed the disabilities diagnosed as the cause of claimant's mental condition, even though claimant classified his request as a claim for benefits for PTSD); Rice v. Shinseki, 22 Vet.App. 447, 453-54 (2009) (holding that the issue of the appropriateness of a total disability rating based on individual unemployability (TDIU) is inferred as part of a claim whenever evidence of unemployability is submitted with a claim for benefits). This is because, as noted above, the law does not expect the claimant to have the medical or legal expertise to file a claim requesting benefits for each technical disability in the causal chain of disabilities that composes his condition, and a claim must be read sympathetically. Clemons, 23 Vet.App. at 5.
Otherwise stated, if (1) a claimant files a claim for benefits for a condition (here, an October 31, 1980, claim for benefits for left-leg numbness or a January 1994 claim for benefits for peripheral neuropathy), (2) the claim remains open and not finally adjudicated, and (3) the cause of that condition ultimately is determined to be a disease or disability incurred in or aggravated by service (here, diabetes), then the effective date for both the secondarily serviceconnected condition and the service-connected causal disease or disability can be as early as the date of the open claim, depending on when each disability manifested and when law or regulation otherwise authorized benefits. See 38 U.S.C. § 5110(a) ("[T]he effective date of an award . . . shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor").
The Board decision on appeal generally, and the Secretary at oral argument specifically, endorsed the notion that a claimant must file a claim explicitly for benefits for the causal disease or disability to establish entitlement to secondary service connection for the claimed condition.
Such an argument, however, is overly technical and generally incompatible with the "veteranfriendly," nonadversarial, administrative claims system. Kouvaris v. Shinseki, 22 Vet.App. 377, 381 (2009). Moreover, this position has no support in statute or regulation, and contravenes the crux of the previously discussed caselaw, namely that (1) a claimant need not file a claim for benefits for the precise medical causes of his condition, (2) the Secretary must sympathetically read a claimant's filing and investigate potentially applicable theories of service connection, and (3) a claim for benefits for one disability reasonably may encompass other disabilities. See
12

Brokowski, 23 Vet.App. at 85-86; Clemons, 23 Vet.App. at 5; see also Schroeder and Kent, both supra.
It is important to note that we do not hold that a claim for benefits reasonably
encompasses a claim for unclaimed disabilities that are not a cause of the condition for which benefits are sought, or for unclaimed disabilities that arise as a result of the condition for which benefits are sought. See Brokowski, 23 Vet.App. at 86-87 (finding that a claim for benefits for depression and anxiety did not reasonably encompass a claim for benefits for peripheral neuropathy where (1) the claim for benefits for depression and anxiety contained no reference to
peripheral neuropathy or related symptoms, and (2) medical records "provided no information that . . . the nature of his disability involved peripheral neuropathy"); cf. Ellington, 541 F.3d at 1369 (finding that, where a claimant originally filed a claim for benefits for leukemia and later developed diabetes and hypertension as a result, the effective date for benefits for diabetes and
hypertension need not be identical to the effective date for benefits for leukemia). Rather, we hold that, when a claim is pending and information obtained reasonably indicates that the claimed condition is caused by a disease or other disability that may be associated with service, the Secretary generally must investigate the possibility of secondary service connection; and, if that causal disease or disability is, in fact, related to service, the pending claim reasonably
encompasses a claim for benefits for the causal disease or disability, such that no separate filing is necessary to initiate a claim for benefits for the causal disease or disability, and such that the effective date of benefits for the causal disability can be as early as the date of the pending claim.10

c. Scope of Mr. DeLisio's January 1994 Claim for Benefits for Peripheral Neuropathy
Mr. DeLisio argues that his January 1994 claim for benefits for peripheral neuropathy
reasonably encompassed a claim for benefits for diabetes. The record and the law support his
argument. As discussed above, because Mr. DeLisio's January 1994 claim for benefits for

10 Although our concurring colleague states that this analysis is unnecessarily complex and difficult, we note that striking down § 3.400 would ignore binding caselaw. See Ellington, 541 F.3d at 1369-70 (finding the effective date
provisions of 38 C.F.R. § 3.400 "consistent with 38 U.S.C. § 5110"); Livesay, supra (rejecting argument that 38 C.F.R. § 3.400(q) (which circumscribes effective date of reopened claim to "date entitlement arose") is inconsistent
with 38 U.S.C. § 5110(a)); see also supra n.7.
13

peripheral neuropathy remained open when the medical evidence determined that Mr. DeLisio's
peripheral neuropathy was caused by diabetes and the Secretary found diabetes connected to
service, the January 1994 claim reasonably encompassed a claim for benefits for diabetes. See
section III.B.1.b, supra; R. at 23 (Board noting that Mr. DeLisio's "claim of January 1994 was
not adjudicated until . . . [the underlying RO decision] in May 2007"); R. at 19-20 (Board noting
the medical evidence from 2000 to 2007 tying peripheral neuropathy to diabetes). Therefore, the
Board's finding that the effective date of a claim for benefits for diabetes could be no earlier than
June 5, 2006, is clearly erroneous. See Lalonde v. West, 12 Vet.App. 377, 380 (1999) ("The
Board's factual findings regarding the date a formal or informal claim was filed . . . are reviewed
by this Court under the 'clearly erroneous' standard."); Gilbert v. Derwinski, 1 Vet.App. 49, 52
(1990).
d. Scope of Mr. DeLisio's October 31, 1980, Claim for Benefits
for Agent-Orange-Related Conditions
Mr. DeLisio further argues that the proper effective date for the award of benefits is
October 31, 1980, because his October 31, 1980, claim for benefits for conditions related to
Agent Orange, which noted a symptom of left-leg numbness, reasonably included a claim for
benefits for peripheral neuropathy (which he claims is the source of his numbness) and diabetes
(as the underlying cause of his peripheral neuropathy). The Board found that the October 31,
1980, claim for benefits did not and could not include a claim for benefits for diabetes because
"[t]he veteran could not claim a disorder that was not diagnosed." R. at 21. However, the Board
misstated the law. See Brokowski, 23 Vet.App. at 90 ("[A] medical diagnosis is not necessary to
initiate a claim."); see also Jandreau, 492 F.3d at 1377 (holding that a medical diagnosis is not required to substantiate a claim in certain circumstances). Specifically, entitlement to benefits for a disability or disease does not arise with a medical diagnosis of the condition, but with the manifestation of the condition and the filing of a claim for benefits for the condition. 38 U.S.C.
§ 5110(a); see McGrath, supra. In concert with the law, if (1) Mr. DeLisio's October 31, 1980, request for benefits remained pending, and (2) it was determined that Mr. DeLisio's left-leg numbness was caused by his presumptively service-connected diabetes during that pendency,
14

then his October 31, 1980, claim for benefits for left-leg numbness reasonably would encompass a claim for benefits for diabetes. See section III.B.1.b, supra.
The Secretary argues that the October 31, 1980, claim is not pending because it was
either adjudicated in the March 1995 Board decision and became final with the April 1996 Court order dismissing all matters on appeal except the claim for benefits for PTSD and a low-back disorder, or was withdrawn in a September 1992 pre-hearing conference. Accordingly, we review the Secretary's arguments.

i. Implicit Adjudication in March 1995 Board Decision
Although an April 1996 Court order dismissed Mr. DeLisio's appeal of the March 1995
Board decision as to all matters except PTSD and a low-back disability, the record reflects that the March 1995 Board decision neither explicitly nor implicitly adjudicated Mr. DeLisio's October 31, 1980, claim for benefits for a disability manifested by left-leg numbness.
Specifically, the March 1995 Board decision–which included adjudication of Mr. DeLisio's claim for benefits for a skin disorder or chloracne due to Agent Orange–did not mention left-leg numbness or otherwise reasonably inform Mr. DeLisio that all of his claims for benefits for Agent-Orange-related disabilities had been adjudicated. See Ingram v. Nicholson, 21 Vet.App. 232, 243 (2007) ("[A] reasonably raised claim remains pending until there is . . . recognition of the substance of the claim in an RO [or Board] decision from which a claimant could deduce that the claim was adjudicated . . . ."). A reasonable claimant would not have deduced that the matter
of left-leg numbness was implicitly adjudicated with the matter of a skin disorder because (1) a skin disorder is seemingly unrelated to left-leg numbness, (2) the Board decision in no way alluded to any Agent Orange conditions beyond a skin disorder, and (3) the skin disorder matter was raised in an October 24, 1980, claim for benefits, not the October 31, 1980, claim that raised left-leg numbness. See Cogburn v. Shinseki, 24 Vet.App. 205 (2010) (noting factors for applying the implicit denial rule, including "the relatedness of the claims," whether the "adjudication allude[d] to the pending claim in such a way that it could reasonably be inferred that the prior claim was denied," the "timing of the claims," and "whether the claimant is
represented"); Ingram, supra; see also Adams v. Shinseki, 568 F.3d 956, 963-64 (Fed. Cir. 2009)(considering the language of the decisions, the relatedness of the claims, and the timing of the
15

claims in deciding whether claim was implicitly denied). Thus, because the March 1995 Board decision did not implicitly or explicitly adjudicate entitlement to benefits for left-leg numbness, this matter was not encompassed in the April 1996 Court order and remained unadjudicated. See Ledford v. West, 136 F.3d 776, 780 (Fed. Cir. 1998) (holding that the Court lacks jurisdiction over claims not appealed to and unaddressed by the Board).

ii. Withdrawal of Claims in September 1992 Pre-Hearing Conference
Although there is no regulation specifically governing the withdrawal of a claim that has not yet been decided by the RO, cf. 38 C.F.R. § 20.204 (2011) ("Withdrawal of Appeal"(emphasis added)), it is well settled that withdrawal of a claim is only effective where the withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant. See Hanson v. Brown, 9 Vet.App. 29, 32 (1996)(affirming Board finding that claimant withdrew a claim for benefits for a particular disability where withdrawal, which was based chiefly upon a written document (a report of contact that was contemporaneously prepared by a VA social worker assigned to evaluate the appellant's post-traumatic stress disorder), was explicit and there was no indication of any misunderstanding of the consequences); see also Kalman v. Principi, 18 Vet.App. 522, 524 (2004) (reversing Board finding that claimant withdrew his appeal where his statement regarding the "only issue remaining," in context, referred to resolving the location of a video hearing and not limiting the issues on appeal); Verdon v. Brown, 8 Vet.App. 529, 533 (1996) (setting aside Board finding that claimant withdrew his appeal where (1) the claimant's letter to his service representative stated he had "come to an agreement" with the disability rating for his right leg, and (2) the service representative's presentation to the Board omitted mention of the right-leg rating, but (3) the presentation of the claimant's other service representative mentioned the right-leg rating); Isenbart v. Brown, 7 Vet.App. 537, 541 (1995) (finding that, where claimant enumerated certain issues and stated that there are "no additional issues" at hearing, Court found that "these few words spoken orally" did not provide "the formality or specificity that withdrawal of [a Notice of Disagreement] requires").
Here, the hearing transcript reflects that the September 1992 Board member listed 15
matters that required adjudication and then asked Mr. DeLisio if he "got the issues straight," to
16

which Mr. DeLisio responded that he "thought" so. R. at 3692. However, although the Board member mentioned matters raised in Mr. DeLisio's October 24, 1980, claim for benefits, the Board member omitted mention of any matters raised solely in Mr. DeLisio's October 31, 1980, claim for benefits (left-leg numbness, erratic heartbeat, a breathing condition, and hair loss).11
Although Mr. DeLisio "thought" that the Board member had identified the issues to be
discussed, the transcript reflects neither an explicit discussion of withdrawal nor any indication that Mr. DeLisio understood that he might be withdrawing claims for benefits for any disabilities not discussed. R. at 3692. Accordingly, Mr. DeLisio's thoughts regarding the issues to be discussed did not constitute a withdrawal of his October 31, 1980, claim for benefits for left-leg numbness.
Because Mr. DeLisio's October 31, 1980, claim for benefits for left-leg numbness was
not withdrawn at the September 1992 pre-conference hearing or finally adjudicated in the March 1995 Board decision and subsequent April 1996 Court order, it remained open when the December 2008 Board decision on appeal was rendered. Moreover, because the claim remains open, the full scope of that claim has not yet been determined. Specifically, the cause of Mr. DeLisio's left-leg numbness condition has not yet been established.

2. Facts Found Regarding Mr. DeLisio's Diabetes
Regardless of the date of a claim, an effective date generally can be no earlier than the facts found, i.e., the date that a claimant's disability first manifested and the date benefits were authorized. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.

a. January 1994 Claim
Because Mr. DeLisio is a Nehmer class member and his 1994 claim (and possibly his
October 31, 1980, claim) encompassed a claim for diabetes, the effective date is not limited to

11 The Court notes that the Board member mentioned the issue of lymph nodes, which was raised in both the October 24, 1980, and October 31, 1980, claims for benefits. Given the lack of mention of the other asserted disabilities raised only in the October 31, 1980, claim, it appears that the reference to lymph nodes as a claimed disability arises from the October 24, 1980, claim.
17

the date diabetes was added to the list of presumptively service-connected diseases for veterans who were exposed to Agent Orange.12 See text accompanying n.5, supra.
Although the Board noted that Mr. DeLisio was not diagnosed with diabetes until 2000, an effective date should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that Mr. DeLisio's diabetes first manifested. See 38 U.S.C. § 5110 ("[T]he effective date of an award . . . shall be fixed in accordance with the facts found . . . . "); Ross and McGrath, both supra; Quarles v. Derwinski, 3 Vet.App. 129, 135-36 (1992) (finding entitlement to an earlier effective date than the date of diagnosis based on evidence of symptoms at an earlier date). This would include further development as necessary and an assessment of the symptoms Mr. DeLisio suffered prior to the 2000 diagnosis of diabetes and whether such symptoms were attributable to diabetes. See 38
U.S.C. § 5103A (establishing Secretary's duty to assist); Vigil v. Peake, 22 Vet.App. 63, 66 (2008) (noting need for a retroactive evaluation to assess proper effective date). Inasmuch as this assessment should be made by the Board in the first instance, remand is warranted. See Tucker v. West, 11 Vet. App. 369, 374 (1998) (stating that remand is appropriate "where the Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate."); Webster v.
Derwinski, 1 Vet.App. 155, 159 (1991) (holding that the Court is not to conduct de novo fact finding but rather to remand for the Board to find facts in the first instance).
b. October 31, 1980, Claim
Because Mr. DeLisio's October 31, 1980, claim remains open and he is a Nehmer class
member, on remand the Board must ensure that his claim is developed properly and adjudicated with regard to, inter alia, whether peripheral neuropathy or diabetes or both are the cause of his claimed left-leg numbness. See Tucker, supra. If the evidence supports a causal connection, then Mr. DeLisio would be entitled to an effective date of either October 31, 1980, or the date

12 Were Mr. DeLisio not a Nehmer class member, however, the effective date for the award of benefits for diabetes could be no earlier than May 8, 2001, the effective date of the authorizing act adding diabetes to the list of conditions presumptively caused by exposure to Agent Orange. See 38 U.S.C. § 5110(g); 38 C.F.R. § 3.400.
18

his left-leg numbness first manifested in accordance with the facts found. See 38 C.F.R. § 3.816(c)(2).13

C. Mr. DeLisio's Claim for Benefits for Peripheral Neuropathy
The Board assigned June 5, 2005, as the effective date for benefits for peripheral
neuropathy, because it tied the effective date for benefits for that condition to Mr. DeLisio's June 5, 2006, claim for benefits explicitly for diabetes and the assigned effective date for the award of benefits for diabetes, which was one year earlier – June 5, 2005. Although the Board correctly noted that the effective date for benefits for Mr. DeLisio's peripheral neuropathy can be no earlier than the effective date for benefits for diabetes because his peripheral neuropathy is secondary to his diabetes, the Board clearly erred, as noted above, in its determination that the earliest effective date for benefits for diabetes was June 5, 2005. See LaLonde and Gilbert, both
supra.
Further, because remand is warranted for the Board to determine the proper effective date for benefits for diabetes, remand also is warranted for the Board to determine the proper effective date for benefits for peripheral neuropathy, which can be as early as January 1994 (the date of his claim for benefits explicitly for peripheral neuropathy) or October 31, 1980 (the date of his claim for benefits for left-leg numbness), should it be determined that his left-leg numbness is caused by peripheral neuropathy or diabetes or both. See Tucker, supra.
Additionally, if it is determined that Mr. DeLisio's left-leg numbness was not caused by peripheral neuropathy, either on a direct basis or secondary to diabetes, the left-leg numbness matter nevertheless must be developed and adjudicated as to any other reasonably raised, potentially service-connected causes.14 See Schroeder, supra; Robinson, 21 Vet.App. at 552.

13 Again, this exception to the general rule regarding effective dates for benefits for conditions added by
administrative action is permissible because Mr. DeLisio is a Nehmer class member.

14 There is evidence in the record indicating that Mr. DeLisio's left-leg numbness may have been caused by peripheral neuropathy, and the peripheral neuropathy may be related to service independent of diabetes. See R. at 1185 (1996 medical report stating: "Past medical history is negative for diabetes . . . ."); R. at 2078 (1993 medical report stating: "The diagnosis here is . . . left lower extremity peripheral neuropathy secondary to perked diskogenic disease of the lumbosacral area . . . ."); R. at 2878 (1994 medical report stating: "Bilateral lower extremity symptoms are . . . likely associated with the 'post laminectomy syndrome' . . . ."). Although the Board rejected a finding that Mr. DeLisio's peripheral neuropathy was service connected on any basis other than secondary to diabetes, it did so with regard to the January 1994 claim for benefits and in the context of otherwise improperly limiting its analysis to the period subsequent to the diagnosis of diabetes in 2000. Inasmuch as the October 31, 1980, claim for benefits for
19

D. Due Process Violation
Mr. DeLisio next argues that matters from his October 31, 1980, claim for benefits
remain pending, and that due process has been violated because of the lengthy delay. To the extent that his argument relates to the matter of left-leg numbness, it is rendered moot by the Court's remand of that claim. See Dunn v. West, 11 Vet.App. 462, 467 (1998) (holding that remand of a claim under one theory moots the remaining theories advanced on appeal). To the extent that his argument relates to other claims contained in the October 31, 1980, claim, it is beyond our jurisdiction. See 38 U.S.C. § 7266 (Court reviews only final decisions of the Board); Evans v. Shinseki, 24 Vet.App. 292, 296 (2011) (same).15

E. Low-Back Disorder
With regard to his service-connected low-back disorder, Mr. DeLisio contends that he is entitled to (1) an effective date prior to April 18, 1983; (2) a disability rating in excess of 20% for the period from April 18, 1983, to November 17, 1988; and (3) a disability rating in excess of 60% for the period beginning November 18, 1988.

1. Effective Date Prior to April 18, 1983
The record does not support Mr. DeLisio's assertion that he is entitled to an effective date prior to April 18, 1983. In a December 29, 2000, joint motion for partial remand, Mr. DeLisio, who was represented by counsel, specifically withdrew his appeal of the issue of an earlier effective date. See R. at 1532 ("Appellant withdraws the issue of entitlement to an effective date earlier than April 18, 1983, for the award of service connection for a low back disorder."). As such, the March 28, 2000, Board decision denying an earlier effective date was final as to this issue and can only be attacked through a specific request for revision based on CUE. See MacKlem v. Shinseki, 24 Vet.App. 63, 68 (2010) ("A VA decision that has become final generally may not be reversed or amended in the absence of CUE."); Tyrues v. Shinseki, 23 Vet.App. 166, 178 (2009) (en banc) (defining a "final decision" as one that "denied relief by

left-leg numbness remains unadjudicated, should it be determined that Mr. DeLisio's peripheral neuropathy is the cause of his left-leg numbness, then whether peripheral neuropathy is service connected on any other basis must be fully developed and addressed by the Board.

15 Mr. DeLisio has not sought a writ of mandamus and does not assert that he has requested that VA process his October 31, 1980, claim and has been denied.
20

either denying a claim or a specific theory in support of a claim and provided the claimant with notice of appellate rights"), aff'd, 631 F.3d 1380 (Fed. Cir. 2011).
With regard to seeking revision of the 2000 Board decision based on CUE, the Board
found that Mr. DeLisio presented numerous assertions of CUE in various examination reports and statements in support of his claim, but he never asserted error in any specific final decision, including the 2000 Board decision. The record of proceedings reflects that Mr. DeLisio often used the term "CUE" before the Board but did not provide sufficient specificity as to (1) whether he was actually requesting revision of a final decision, (2) which final decision he alleged contained CUE, and (3) which errors he alleged were clear and unmistakable. See Andrews v. Principi, 18 Vet.App. 177, 181 (2004) ("A CUE allegation must identify the alleged error with 'some degree of specificity.'" (quoting Crippen v. Brown, 9 Vet.App. 412, 420 (1996))). Overall, Mr. DeLisio fails to demonstrate that (1) he raised a specific allegation of CUE, (2) the Board should have addressed his allegation, see Acciola v. Peake, 22 Vet.App. 320, 327 (2008) ("[I]f the pleading could encompass numerous theories [of CUE] . . . a CUE motion is properly dismissed without prejudice."), or (3) the Court should consider his argument for an earlier effective date. See MacKlem, 24 Vet.App. at 68 ("This Court reviews CUE claims only when they have been previously adjudicated by the Board."); Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (holding that appellant bears burden of demonstrating error on appeal).

2. 20% Disability Rating from April 18, 1983, to November 17, 1988
Mr. DeLisio also contends that a 100% disability rating during the period of April 18, 1983, to November 17, 1988, is warranted because he was unemployable and totally disabled during that period. He asserts no specific errors in the Board's adjudication other than the fact that a 100% disability rating was not assigned, and the Court can discern no error from the record of proceedings.
The rating schedule at that time contemplated a maximum 60% schedular disability
rating for a low-back disability such as Mr. DeLisio's. See 38 C.F.R. § 4.71a, Diagnostic Code 5293 (1988). Although Mr. DeLisio contends that he was unemployed, the Board found that he was employed in law enforcement, security, or investigative positions through 1988, and otherwise found the rating schedule adequate to compensate his level of disability. Based on the
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record of proceedings, the Board's findings are plausible and not clearly erroneous. In sum, Mr. Delisio fails to demonstrate clear error in the Board's determination that a 100% disability rating from April 18, 1983, to November 17, 1988, was not warranted. See Johnston v. Brown, 10 Vet.App. 80, 84 (1997) (holding that the assignment of disability rating is finding of fact reviewed under the "clearly erroneous" standard); Gilbert and Hilkert, both supra; see also Thun v. Peake, 22 Vet.App. 111, 115 (2008) (holding that referral for extraschedular consideration is not warranted if rating schedule is adequate).

3. 60% Disability Rating from November 18, 1988
Mr. DeLisio also contends that he is entitled to a 100% disability rating from November 1988. Although his argument lacks specificity, the Board's statement with regard to a possible extraschedular rating noted that Mr. DeLisio has been unemployed since 1988 and is receiving Social Security disability benefits effective from 1988. The Board further noted that, because Mr. DeLisio had been unemployed since 1988, there was no interference with his work. The latter statement is not further explained, particularly with regard to whether Mr. DeLisio's back problems were the cause of his unemployment. In sum, the Board's statement inadequately addresses possible entitlement to an extraschedular rating or TDIU from November 18, 1988.
See Allday v. Brown, 7 Vet.App. 517, 527 (1995) (holding that the Board's statement "must be adequate to enable a claimant to understand the precise basis for the Board's decision, as well as to facilitate review in this Court"). Accordingly, remand is warranted. See Tucker, supra.

F. Remand
On remand, Mr. DeLisio may present, and the Board must consider, any additional
evidence and argument in support of the matters remanded. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). These matters are to be provided expeditious treatment on remand in accordance with 38 U.S.C. § 7112.

IV. CONCLUSION
Upon consideration of the foregoing, that part of the December 31, 2008, Board decision denying an effective date prior to April 18, 1983, and denying entitlement to a disability rating in excess of 20% for the period from April 18, 1983, to November 17, 1988, for a low-back
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disability is AFFIRMED. The remainder of that part of the decision on appeal is SET ASIDE and the matters are REMANDED for further adjudication consistent with this opinion.
LANCE, Judge, filed an opinion concurring in the result.

LANCE, Judge, concurring in the result: Although I agree that the appellant may be
entitled to an earlier effective date in this case, I believe that the majority is using an unnecessarily difficult analysis to get there. In my view, we should simply apply 38 U.S.C. § 5110(a) as written. The statute limits the effective date only by "the facts found" and "the date of receipt of the application." The Secretary seeks to add an additional limitation in cases where the claim is granted on a secondary basis. However, the Secretary is not free to add conditions beyond those set forth by Congress. See Felton v. Brown, 7 Vet.App. 276, 282 (1994) ("[A] regulation may not amend a statute.").
The Secretary bases his argument on 38 C.F.R. § 3.400 (2011), which limits an effective date by "the date entitlement arose." The majority treats this as an interpretation of the "facts found" language in section 5110(a). However, a determination of the legal limitations on entitlement is not a matter that is ordinarily considered a "fact" subject to "finding." Rather it is an issue of law. Cf. Salve Regina Coll. v. Russell, 499 U.S. 225 (1991) (holding that a
determination about an unsettled question of State law is not a factual issue to be reviewed by an appellate court for clear error, but rather is reviewed de novo). Therefore, the majority's construction is unnatural and I do not believe that the effective date for a secondary condition should be limited to that of the primary condition in the very rare case where a veteran happens to apply for service connection for the secondary condition first.
Not only is this the correct outcome under the law, but it is also more efficient and avoids an unnecessary burden on VA. As the majority opinion notes, ante at 6, the appellant argues in the alternative that his peripheral neuropathy should have been granted service connection on a direct basis. Aside from that argument, the appellant could also assert that his diabetes could have been granted service connection on a direct basis. A correct application of the law moots
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any need to determine which theory is the more accurate basis for an award of service connection. The majority opinion puts the burden on VA to determine the proper effective date in a case to address difficult issues of direct service connection in cases where presumptive service connection already applies. For these reasons, I would decide this case on this much simpler basis.
Even though I believe the majority's opinion is unnecessarily complicated, I would note for the Board and practitioners that, as I read it, the duty to sua sponte investigate whether a primary condition is related to service is only triggered when the evidence satisfies the McLendon standard. McLendon v. Nicholson, 20 Vet.App. 79, 81-86 (2006). As I argued in Shade and as is stated in Robinson, if the evidence is insufficient to grant a claim, then the crucial issue is whether the duty to assist has been triggered. Shade v. Shinseki, 24 Vet.App. 110, 124 (Lance, J., concurring); Robinson v. Peake, 21 Vet. App. 545, 553 (2008).
There is an unfortunate — and not entirely unfounded — belief that veterans law is
becoming too complex for the thousands of regional office adjudicators that must apply the rules
on the front lines in over a million cases per year. Whatever the merits of such arguments may
be, clear guidance from the courts is a virtue for any system struggling to accurately decide a
huge volume of cases. Thus, I encourage readers not to be misled by the apparent complexity of
the majority opinion. See Cohen v. Brown, 10 Vet.App. 128, 152 (1997) (Nebeker, C.J.,
"concurring, by way of synopsis"). When it is stripped down to its foundations, it is simply
another application of the important standard that defines when the Secretary must obtain
additional medical evidence before deciding a claim. Accordingly, I would encourage both the
Secretary and practitioners to focus on the McLendon standard whenever there is a question
about whether an additional theory should have been addressed and investigated regardless of
novel facts that may seem to dress up the problem as a new issue.
Although the majority argues that my analysis ignores binding caselaw, ante nn. 7, 9, the cases that the majority cites, Ellington and Livesay, both supra, are not controlling as they addressed the regulation but did not address the specific issue that is presented here and therefore, they are not binding on the issue. See United States v. County of Cook, Illinois, 170 F.3d 1084, 1088 (Fed. Cir.1999) (stating that prior decisions of the Federal Circuit that did not
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squarely address an issue are not binding precedent); Nat'l Cable Television Ass'n v. Am. Cinema Editors, Inc., 937 F.2d 1572, 1581(Fed. Cir.1991) ("When an issue is not argued or is ignored in a decision, such decision is not precedent to be followed in a subsequent case in which the issue arises.").
Ultimately, the choice to limit the effective date of a claim to the date the claim was filed is an artificial line chosen by Congress to balance compensating veterans with controlling the overall cost of benefits. There is simply no need for the Secretary or the Court to add additional restrictions. In some cases, the overly complicated ruling of the majority will reach the correct result. However, there will still be cases where the claim for service connection is processed separately and becomes final before the secondary condition is identified as such. The majority decision unnecessarily limits the effective date available in such cases, rare as they might be.
Accordingly, I respectfully disagree with the majority's rationale.
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