tion of a medical examination by a private practitioner. As such, the rule is not in direct conflict with § 5125.
======================================================

“The statute is clear that the Secretary shall consider all medical evidence and give the benefit of the doubt to the claimant when there is an approximate balance of evidence. What is not expressed is what that consideration entails or what weight any given piece of evidence is to carry. Those questions were left to the Secretary to determine under 38 U.S.C. § 501(a). The new rule is an exercise of that authority, and it is not in conflict with § 5107(b). The new rule, moreover, does not actually pit one set of evidence against another. Rather, it provides several options for establishing service connection under either a VA examination or a private physician examination.

=========================
United States Court of Appeals for the Federal Circuit
__________________________
NATIONAL ORGANIZATION OF VETERANS’ ADVOCATES, INC.,
Petitioner,
v.
SECRETARY OF VETERANS AFFAIRS,
Respondent.
__________________________
PARALYZED VETERANS OF AMERICA,
Petitioner,
v.
SECRETARY OF VETERANS AFFAIRS,
Respondent.
__________________________
VETERANS OF MODERN WARFARE
AND NATIONAL VETERANS LEGAL SERVICES PROGRAM,
Petitioners,
v.
SECRETARY OF VETERANS AFFAIRS,
Respondent.
__________________________
WOUNDED WARRIOR PROJECT
AND VIETNAM VETERANS OF AMERICA,
Petitioners,
NATIONAL ORG OF VETERANS ADV v. VA 2
v.
SECRETARY OF VETERANS AFFAIRS,
Respondent.
__________________________
2010-7136, -7139, -7142, 2011-7041
__________________________
On petition for review pursuant to 38 U.S.C. Section 502.
______________________________
Decided: January 20, 2012
______________________________
DAVID H. TENNANT, Nixon Peabody, LLP, of Rochester, New York, argued for petitioner. On the brief were RICHARD P. COHEN, National Organization of Veterans’ Advocates, Inc., of Washington, DC; and DOUGLAS J. ROSINSKI, Pillsbury Winthrop Shaw Pittman, LLP, of San Francisco, California.
MICHAEL P. HORAN, Deputy General Counsel, Paralyzed Veterans of America, of Washington, DC, argued for petitioner. With him on the brief were WILLIAM S. MAILANDER, General Counsel, and JENNIFER A. ZAJAC, Assistant General Counsel.
BARTON F. STICHMAN, National Veterans Legal Services Program, of Washington, DC, argued for the petitioners. Of counsel on the brief were STEPHEN B. KINNAIRD and SEAN D. UNGER, Paul Hastings Janofsky & Walker, LLP, of Washington, DC.
3 NATIONAL ORG OF VETERANS ADV v. VA
SCOTT D. AUSTIN, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued respondent. With him on the brief were TONY WEST, Assistant Attor-ney General, JEANNE E. DAVIDSON, Director, and MARTIN F. HOCKEY, JR., Assistant Director. Of counsel on the brief were MICHAEL J. TIMINSKI, Deputy Assistant Gen-eral Counsel, and MARTIE ADELMAN, Attorney, of United States Department of Veterans Affairs, of Washington, DC.
MICHAEL WISHNIE, Veterans Legal Services Clinic, of New Haven, Connecticut, for amici curiae. With him on the brief was JEFFREY SELBIN.
__________________________
Before NEWMAN, O’MALLEY, and REYNA, Circuit Judges.
REYNA, Circuit Judge.
The National Organization of Veterans Advocates, Paralyzed Veterans of America, Veterans of Modern Warfare and National Veterans Legal Services (collec-tively “Petitioners”) challenge a rule issued by the Secretary of Veterans Affairs (“Secretary”) amending 38 C.F.R § 3.304(f) with respect to claims for service-connected disability benefits for posttraumatic stress disorder (“PTSD”). Petitioners contend that the new rule is con-trary to existing statutes and arbitrary and capricious in nature. We conclude that the new rule is a permissible application of the statute by the Secretary and not in violation of any law or rule. We therefore deny the petition.
I
The rule at issue here concerns PTSD. The Diagnostic and Statistical Manual of Mental Disorders, Fourth
NATIONAL ORG OF VETERANS ADV v. VA 4

Edition (“DSM-IV”), classifies PTSD as an anxiety disor-der. A person may develop PTSD after exposure to a stress inducing event, such as threatened death or serious injury. Persons suffering from PTSD reexperience the traumatic event in several ways, including nightmares, flashbacks, and physiological or psychological reactions to stimuli reminiscent of the damaging experience. As a result, those suffering from PTSD may remove themselves from the world and those around them in an effort to avoid that which could trigger a response. Tragically, an estimated ten to thirty percent of United States Armed Services personnel will develop PTSD within a year of leaving combat. See Nat’l Council on Disability, Invisible Wounds: Serving Service Members and Veterans with PTSD and TBI 2-3 (Mar. 4, 2009), available at http://www.ncd.gov/publications/2009/March042009 (“Invisible Wounds”).
The United States has deployed over 1.6 million troops in the recent wars in Iraq and Afghanistan. Id. at 8. Those conflicts have been characterized by guerilla warfare tactics and the inherent uncertainty that comes with it. Moreover, many troops have served multiple tours of duty with little respite in between. It is no sur-prise that these conditions are particularly likely to lead to increased incidences of PTSD. See id. at 21-23.
The troops who return home and develop PTSD are often faced with more than reliving the horrors of war. Veterans with PTSD suffer from more chronic conditions and have shorter life spans than veterans without PTSD. PTSD has also been linked to higher divorce rates and joblessness. Id. at 18. Against this backdrop, the Secretary amended the Department of Veterans Affairs (“VA”) regulations to address the serious problem of troops returning home with PTSD.
5 NATIONAL ORG OF VETERANS ADV v. VA

II
Like other injuries, veterans who suffer from service-connected PTSD are eligible for benefits. The Secretary has the authority to issue regulations which establish the requirements for veterans to qualify for service-connected PTSD injuries. 38 U.S.C. § 501(a). Specific rules govern the diagnosis of PTSD and the evidence required to con-nect a diagnosis to military service. Generally, a finding of PTSD service-connection requires three components: “medical evidence diagnosing the condition in accordance with § 4.125(a) of this chapter; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred.” 38 C.F.R. § 3.304(f).
The VA proposed a rule on August 24, 2009, creating an additional situation where a veteran could establish PTSD service-connection without supporting evidence regarding the claimed in-service stressor. Stressor De-terminations for Posttraumatic Stress Disorder, 74 Fed. Reg. 42,617 (Aug. 24, 2009). That rule, codified at 38 C.F.R. § 3.304(f)(3), is at issue here:
If a stressor claimed by a veteran is related to the veteran’s fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of posttraumatic stress disorder and that the veteran’s symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed
NATIONAL ORG OF VETERANS ADV v. VA 6

in-service stressor. For purposes of this paragraph, “fear of hostile military or terrorist activity” means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or seri-ous injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran’s re-sponse to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror.
The new rule has three features relevant to this challenge: one, it allows a veteran to establish PTSD without supporting evidence; two, the lower evidentiary standard only applies if a VA psychologist or psychiatrist, or one who has contracted with the VA, confirms the claimed-stressor supports the diagnosis; and three, it defines the veteran’s “fear of hostile military or terrorist activity” as involving a response characterized by “a psychological or psycho-physiological state of fear, helplessness, or horror.” Id. As explained by the Secretary at oral argument, the rule does not require a VA practitioner to confirm the diagnosis of PTSD. Rather, a VA practitioner is only required to confirm that the claimed-stressor supports the diagnosis.
The VA explained that the rule was “intended to ac-knowledge the inherently stressful nature” of serving where “hostile military or terrorist activities [are] ongoing.” 74 Fed. Reg. at 42,617. The goal was “to facilitate the timely VA processing of PTSD claims by simplifying the development and research procedures that apply to
7 NATIONAL ORG OF VETERANS ADV v. VA

these claims.” Id. Pursuant to procedure, the VA invited responses to the proposed rule and received 126 comments, including critiques, from various organizations, including Petitioners here.
The VA responded to the comments but left the rule as proposed. 75 Fed. Reg. 39,843 (July 13, 2010). The majority of comments were aimed at the rule’s distinction between private psychologists and psychiatrists and those employed or associated with the VA. The comments suggested that the new rule should extend to all qualified practitioners. The VA declined to extend the rule beyond VA practitioners, explaining that PTSD diagnoses are “particularly complex.” Id. at 39,847. This complexity was only increased as the new rule added an extra wrinkle—the examiner would now also make the “forensic” determination that the claimed-stressor as described by the veteran was sufficient to support a PTSD diagnosis. See id.
VA practitioners, the VA contended, were particularly able to make this forensic determination for several reasons: First, VA practitioners are given specific instruction on how to conduct PTSD examinations, including guidance materials and a certification process. Id. Second, the VA reviews the quality of its practitioners’ examinations, including taking steps to address identifiable problems with feedback and training. Id. Third, the VA provides VA associated practitioners with the veterans’ claims folders in connection with all mental-disorder examinations, including PTSD examinations. Id. The practitioners are in turn instructed that a PTSD diagnosis cannot occur without a review of the folder. In contrast, private practitioners do not have direct access to a veteran’s claims folder. Id. at 39,847-48. Fourth, the VA noted that limiting the rule to VA associated practitioners would “ensure standardization and consistency.” Id. at
NATIONAL ORG OF VETERANS ADV v. VA 8

39,848. The consistency would be a product of both the large number of PTSD examinations performed by VA practitioners and the review of those examinations by the VA. Because the VA does not control the quality of private practitioners’ examinations, it could not ensure, manage, or develop the same level of quality and consistency. For these reasons, the VA opted to leave the rule as proposed. Id.
Petitioners subsequently filed a timely petition to review the final rule. This court has jurisdiction to review the validity of the final rule under 38 U.S.C. § 502. The review is conducted in accordance with 5 U.S.C. § 706 of the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701 et seq.
III
We examine the regulation here under the framework provided in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). First, we must determine “whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter . . . .” Id. at 842. Second, if “Congress has not directly addressed the precise question at issue,” we must determine if the Secretary’s regulation is “based on a permissible construction of the statute.” Id. at 843. The agency’s regulation will stand unless it is “arbitrary or capricious in substance, or manifestly contrary to the statute.” United States v. Mead Corp., 533 U.S. 218, 227 (2001).
IV
On appeal, Petitioners assert that the new VA rule: (1) conflicts with statutes and regulations that require the VA to consider all medical evidence on a case-by-case basis, including evidence from private physicians, and
9 NATIONAL ORG OF VETERANS ADV v. VA

that require the VA to give the veteran the benefit of the doubt when considering all evidence in the record; (2) improperly includes language that is not required in the DSM-IV; and (3) should be set aside as arbitrary and capricious on grounds that none of the VA’s proffered explanations provides a rational basis for excluding private doctors’ opinions. We address each argument in turn.

A. The VA Rule
The Secretary issued the rule pursuant to 38 U.S.C. § 501(a). That statute provides the Secretary with the ability to prescribe all “necessary” and “appropriate” rules to carry out the laws administered by the VA, including “regulations with respect to the nature and extent of proof and evidence and the method of taking and furnishing them in order to establish the right to benefits under such laws . . . .” 38 U.S.C. § 501(a)(1). Congress’s delegation of authority here was broad. Nonetheless, Petitioners contend that the regulation is in conflict with several statutes and is therefore contrary to law. We disagree and find that Congress has not spoken on the precise issue addressed by the new rule.
First, Petitioners contend that the regulation is contrary to 38 U.S.C. § 1154(a). Section 1154(a) requires that the Secretary’s regulations concerning veterans’ benefits claims give “due consideration” to “the places, types, and circumstances of such veteran’s service” including “all pertinent medical and lay evidence.” 38 U.S.C. § 1154(a). Petitioners contend that because the regulation allows for a PTSD service connection to be established based on a VA practitioner’s conclusion without corroborating evidence but not a private practitioner’s, the rule does not give “due consideration” to all medical evidence.
NATIONAL ORG OF VETERANS ADV v. VA 10

Petitioners’ argument reads too much into the phrase “due consideration.” Rather than directly addressing what “due consideration” entailed, Congress left that task to the Secretary. See id.; 38 U.S.C. § 501(a)(1). Under the regulation, a private practitioner’s examination will be considered along with a VA practitioner’s assuming there is also corroborating evidence of the claimed stressor. The new rule, however, provides a relaxed evidentiary stan-dard only where a VA practitioner concludes that the claimed-stressor occurred. Because the phrase “due consideration” is unambiguous and private examinations are considered in the normal course of a PTSD determination, the new rule cannot be said to directly conflict with § 1154(a).
Second, Petitioners contend that the regulation is contrary to 38 U.S.C. § 5125, which provides that:
For purposes of establishing any claim for benefits under chapter 11 or 15 of this title, a report of a medical examination administered by a private physician that is provided by a claimant in support of a claim for benefits under that chapter may be accepted without a requirement for confirmation by an examination by a physician employed by the Veterans Health Administration if the report is sufficiently complete to be adequate for the purpose of adjudicating such claim.
The key word in the statute is “may.” The VA “may” accept a private physician’s report, but it does not have to. See id. To the extent Petitioners contend that the VA must consider private practitioner’s reports in all circumstances, Congress has directly addressed that issue here and concluded only that the VA “may” accept such reports. Also, the new rule does not require a VA confirma-
11 NATIONAL ORG OF VETERANS ADV v. VA

tion of a medical examination by a private practitioner. As such, the rule is not in direct conflict with § 5125.
Third, Petitioners contend that the new rule is contrary to 38 U.S.C. § 5107(b), which provides that:
The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the deter-mination of a matter, the Secretary shall give the benefit of the doubt to the claimant.
The statute is clear that the Secretary shall consider all medical evidence and give the benefit of the doubt to the claimant when there is an approximate balance of evidence. What is not expressed is what that consideration entails or what weight any given piece of evidence is to carry. Those questions were left to the Secretary to determine under 38 U.S.C. § 501(a). The new rule is an exercise of that authority, and it is not in conflict with § 5107(b). The new rule, moreover, does not actually pit one set of evidence against another. Rather, it provides several options for establishing service connection under either a VA examination or a private physician examination.
Petitioners also contend that the new rule is contrary to 38 C.F.R. § 4.125(a), which provides standards used in DSM-IV. Specifically, the regulation states that “[i]f the diagnosis of a mental disorder does not conform to DSM-IV or is not supported by the findings on the examination report, the rating agency shall return the report to the examiner to substantiate the diagnosis.” Id.
NATIONAL ORG OF VETERANS ADV v. VA 12

Under DSM-IV, PTSD may be diagnosed where an individual “witnessed” or “experienced” a serious physical threat to themselves or others and the person’s response is characterized by “intense fear, helplessness, or horror.” DSM-IV at 427-28. This is labeled criterion A. Id. at 427. In addition, the person will display symptoms of “persistent reexperiencing of the traumatic event.” Id. at 424. Those symptoms include, among others, “psychological distress” and “physiological reactivity,” and are listed under criterion B. Id. at 428. A diagnosis of PTSD requires that the individual meet the requirements of criteria A and B, as well as other requirements under criteria C, D, E, and F. Id. at 427-29.
The new rule applies where, among other things, PTSD is alleged as the result of “fear of hostile military or terrorist activity.” 38 C.F.R. § 3.304(f)(3). That phrase is defined as involving a response characterized by “a psychological or psycho-physiological state of fear, helplessness, or horror.” Id.
Petitioners raise two problems with the formulation in the new rule. First, Petitioners contend that that the terms “psychological” and “physiological” are not contemplated under criterion A in DSM-IV and that therefore the rule must fail. The regulation, though, merely merges the elements of criterion A with those of criterion B, where the terms do appear. Compare DSM-IV at 428 (“B. The traumatic event is persistently reexperienced in one (or more) of the following ways: . . . (4) intense psychological distress at exposure to internal or external cues . . . . (5) physiological reactivity on exposure to internal or exter-nal cues . . . .”) with 38 C.F.R. § 3.304(f)(3) (“a psychologi-cal or psycho-physiological state of fear, helplessness, or horror.”). That drafting choice does not render the new rule invalid.
13 NATIONAL ORG OF VETERANS ADV v. VA

Second, Petitioners contend that even if the complained-of phrase is viewed as incorporating the elements of criterion B, the regulation improperly restricts the range of acceptable symptoms under criterion B. This argument fails as well because the regulation does not necessarily have to be read as restricting the available symptoms of criterion B. In fact, the Secretary stated as much in the final notice. 75 Fed. Reg. at 39,846 (“Because the requirement that a claimed stressor relate to a veteran’s fear of hostile military or terrorist activity has no effect on the diagnostic criteria for PTSD, the requirement does not narrow the DSM-IV definition of PTSD.”). Even if the regulation were limiting, it would not be in conflict with 38 C.F.R. § 4.125(a). That regulation requires a diagnosis to conform to DSM-IV. A diagnosis of PTSD under the narrower reading of the new rule will necessarily conform to the broad requirements of DSM-IV. Therefore, there is no conflict.
In summary, we have considered petitioners arguments and find that no existing statute or regulation specifically addresses the issue raised in the new rule so as to create a conflict or contradiction.

B. The VA Rule Has a Rational Basis
Because Congress has not spoken directly to the issue raised in the rule, we must determine whether the regulation is otherwise permissible. Chevron, 467 U.S. at 843. Additionally, under the APA this court must set aside a regulation if we find it to be “arbitrary” or “capricious.” 5 U.S.C. § 706(2)(A). Although courts sometimes analyze a regulation under both the second step of Chevron and the APA independently, the issues raised will often overlap. See Shays v. Fed. Election Comm’n, 414 F.3d 76, 96-97 (D.C. Cir. 2005); Animal Legal Def. Fund, Inc. v. Glick-man, 204 F.3d 229, 234 (D.C. Cir. 2000). Where, as here,
NATIONAL ORG OF VETERANS ADV v. VA 14

a regulation will equally stand or fall under either review, a single analysis is appropriate.
A regulation is not arbitrary or capricious if there is a “rational connection between the facts found and the choice made.” Motor Vehicle Mfrs. Ass’n. of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). This is a deferential standard of review. Regardless of our views, we must uphold the regulation if there is a rational basis for it on the record. Balt. Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 105 (1983) (“It is not our task to determine what decision we, as Commissioners, would have reached. Our only task is to determine whether the Commission has considered the relevant factors and articulated a rational connection between the facts and the choice made.”).
At the heart of the Petitioners disagreement with the new rule is the distinction between private practitioners and VA associated practitioners. The VA provided reasons for this distinction during the rulemaking, as de-scribed above. Petitioners contend that these justifications ring hollow and that no reasonable rationale exists for the rule.
First, Petitioners contend that there is no reasonable basis for the VA’s premise that VA practitioners are better trained than private practitioners. If quality assurance is the problem, Petitioners contend, the VA should instead focus on whether a given practitioner is qualified on an individual basis. Additionally, Petitioners question why the special guidance materials used by the VA cannot also be made available to all practitioners.
Second, Petitioners question why, if reviews of examinations are deemed helpful, the VA cannot also review private practitioners’ examinations. Petitioners also
15 NATIONAL ORG OF VETERANS ADV v. VA

question the vagueness of the VA’s claimed review process.
Third, Petitioners argue that the Secretary cannot rely on the VA’s access to the claims folder as a rational basis for distinguishing between private and VA practitioners. Petitioners note that there are other sources of relevant information concerning the veteran for practitioners to use in examinations. Petitioners point out that the private practitioner also has access to the claims folder through the veteran, who may request his own folder.
Fourth, Petitioners disagree with the VA’s view that the distinction between private and VA practitioners is warranted due to allegedly increased consistency. Petitioners note that VA practitioner performance of many more PTSD examinations is a double-edged sword. Rather than resulting in greater quality, the increased number of examinations may, in fact, result in hastier, less thorough examinations.
Petitioners argue that the VA simply cannot categorically distinguish between VA and private practitioners. This belief amounts only to a disagreement with the administrative rulemaking process generally. It is well accepted that administrative agencies may resolve generally applicable factual questions through rulemaking. See Am. Hosp. Ass’n v. N.L.R.B., 499 U.S. 606, 612 (1991) (noting that agencies may “rely on rulemaking to resolve certain issues of general applicability unless Congress clearly expresses an intent to withhold that authority”); see generally R. Pierce, Administrative Law Treatise §§ 7.5, 10.5 (5th ed. 2010). That the underlying logic for the rule “may not always be true” is not enough to render the rule invalid. See Barnhart v. Thomas, 540 U.S. 20, 29 (2003). As the Supreme Court has noted: “To generalize
NATIONAL ORG OF VETERANS ADV v. VA 16

is to be imprecise. Virtually every legal (or other) rule has imperfect applications in particular circumstances.” Id. (emphasis in original).
To be sure, Petitioners have ably demonstrated areas of weakness in the VA’s logic, in particular where the object of the rule is to provide better services to veterans with PTSD. Indeed, some of the VA’s logic, such as the belief that a large number of examinations will increase quality, could lead to the opposite conclusion. Additionally, Petitioners have proposed alternative methods that the VA could use to ensure that the examinations it receives are of sufficient quality, such as by reviewing the private practitioner’s examinations. Perhaps with the development of data or with more experience on the operation and effect of the new rule, for instance, on quality of care and the incidents of veteran’s seeking care, the VA could be convinced that these suggestions would ultimately best serve veterans.
But “[w]hether or not we, if writing on a pristine page, would have reached the same set of conclusions is not the issue.” Assoc’d Fisheries of Me., Inc. v. Daley, 127 F.3d 104, 111 (1st Cir. 1997). The question presented here is whether there is a logical basis for the new rule, and we determine that such a basis exists. This court’s review of the Secretary’s rules is deferential, and a “reasoned” analysis is not necessarily an “unassailable” one. Ass’n of Pub. Safety Commc’ns Officials Int’l, Inc. v. Fed. Commc’n Comm’n, 76 F.3d 395, 400 (D.C. Cir. 1996). We cannot say that the VA’s rationale is without a logical basis, or is otherwise arbitrary and capricious.
Based on the foregoing, we find that the new VA rule is a permissible application of statute and is not in violation of law. We also find that Petitioners’ remaining
NATIONAL ORG OF VETERANS ADV v. VA
17
arguments are without merit. The petition is therefore DENIED.

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-3169
LLOYD CLAYTON, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before LANCE, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
LANCE, Judge: The appellant, Lloyd Clayton, through counsel, appeals an
August 27,
2010, Board of Veterans’ Appeals (Board) decision that denied his claim
for entitlement to service
connection for a right shoulder condition. Record (R.) at 3-11. The
appellant does not present any
argument concerning the denial of his request for a total disability
rating based on individual
unemployability. Accordingly, that request is deemed abandoned. See Ford v.
Gober, 10 Vet.App.
531, 535 (1997). Single-judge disposition is appropriate. See Frankel v.
Derwinski, 1 Vet.App. 23,
25-26 (1990). This appeal is timely and the Court has jurisdiction over
the case pursuant to
38 U.S.C. §§ 7252(a) and 7266. For the reasons that follow, the Court
will vacate the August 27,
2010, decision and remand the matter for further proceedings consistent
with this decision.
I. FACTS
The appellant served in the U.S. Army from July 1959 to July 1961, with
prior service in the
U.S. Army Reserves. R. at 472, 1101-20. His service medical records (SMRs)
do not reflect a
shoulder injury, and in his separation examination he denied ever having a “
painful or ‘trick’
shoulder.” R. at 1089 (capitalization omitted); see generally 1088-1149 (
in-service medical
examinations). However, at medical appointments in February 1997 and July
1998 the appellant

sought treatment for a painful right shoulder and told the treating
physicians that he injured his right
shoulder while in the military. R. at 103, 124.
In October 1999, the appellant filed a claim for entitlement to service
connection for a right
shoulder condition. R. at 1068-71. In personal statements to VA, provided
during the development
of his claim, the appellant stated that he hurt his shoulder in the
service while playing football; that
the shoulder has continued to bother him since the initial injury such
that he has lost jobs due to
limitations of movement resulting from his injury; and that he did not
previously submit a claim
because he did not know that he was eligible to receive benefits for this
type of injury. See, e.g., R.
at 22, 534-58, 569-72, 677-84. The appellant also submitted statements
from his wife and brother
supporting his assertion that he had trouble with his right shoulder
dating back to service. R. at 702-
03. After further development, which did not include a VA medical opinion,
the Board ultimately
denied the appellant’s claim for service connection for a right shoulder
disability. This appeal
followed.
II. ANALYSIS
The appellant argues that the Board’s reasons or bases are flawed because
the Board failed
to conduct a proper competency and credibility analysis of the appellant’s
lay statements and those
submitted by his family members and that, absent a determination that the
lay statements of record
were not credible or not competent, there is evidence of record that his
right shoulder disability may
be related to service such that the low threshold of McLendon is met and a
medical nexus opinion
is required. Appellant’s Brief (Br.) at 3-4; see 38 U.S.C. § 5013A(d)(2);
McLendon v. Nicholson,
20 Vet.App. 79, 81-86 (2006); 38 C.F.R. § 3.159(c)(4) (2011). The Court
agrees.
The Board is required to include in its decision a written statement of
the reasons or bases
for its findings and conclusions on all material issues of fact and law
presented on the record; that
statement must be adequate to enable an appellant to understand the
precise basis for the Board’s
decision, as well as to facilitate informed review in this Court. 38 U.S.C.
§ 7104(d)(1); Allday v.
Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 56-
57 (1990). To comply
with this requirement, the Board must analyze the credibility and
probative value of the evidence,
account for the evidence that it finds to be persuasive or unpersuasive,
and provide the reasons for
its rejection of any material evidence favorable to the claimant. Caluza v.
Brown, 7 Vet.App. 498,
2

506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table);
Gabrielson v. Brown, 7 Vet.App.
36, 39-40 (1994); Gilbert, supra.
The Board stated that the lay statements, “made many years after service,
are outweighed by
the more contemporaneous service treatment records showing no signs of a
right shoulder condition,
normal clinical evaluations of the upper extremities, and the Veteran’s
denial of having any shoulder
problems.” R. at 10. However, the Board did not make any specific findings
as to the competence
or credibility of the lay statements, which is required before determining
which evidence is most
probative. Previous DocumentKahanaNext Document v. Shinseki, 34 Vet.App. 428, 435 (2011); see also
Jandreau v. Nicholson,
492 F.3d 1372, 1377 (Fed. Cir. 2007) (stating that lay persons are
generally competent to provide
evidence on observable symptoms); Buchanan v. Nicholson, 451 F.3d 1331,
1337 (Fed. Cir. 2006)
(noting that “the Board cannot determine that lay evidence lacks
credibility merely because it is
unaccompanied by contemporaneous medical evidence”).
The Board has not provided any indication that it finds the lay testimony
of record to be
incompetent. Furthermore, in finding against the establishment of a
continuity of symptomatology,
the Board stated that it found the appellant’s February 1997 and July 1998
statements to treatment
providers, which the Board agrees contained assertions ofanin-service
injury,particularlyprobative
because they were “provided during medical treatment,” which suggests that
the Board found the
lay statements credible. R. at 10. This cursory discussion of the lay
statements does not facilitate
this Court’s review. It is not clear from the analysis provided why,
absent an explicit finding that
the lay statements are not credible, the statements asserting a history of
injury dating back to service
are “of great probative value,” but do not meet the low McLendon threshold
indicating that a medical
nexus examination is warranted. R. at 10; see McLendon, 20 Vet.App. at 83.
Therefore, remand
is required for an adequate reasons or bases discussion that includes a
full analysis of the
competence and credibility of the lay testimony of record.
On remand, the Board must explicitly discuss the competence and
credibility of the
appellant’s lay statements and those provided by his family members. The
Board should consider
the appellant’s testimony that he did seek treatment in-service for his
football injury. See, e.g., R.
at 668. The Board should also discuss whether the appellant’s 1998
statement that he had shoulder
pain for the previous year related to work might be consistent with an in-
service injury that only
manifests under strenuous use, particularly in light of the appellant’s
testimony that he frequently
3

quit or was let go from manual labor employment that required the use of
his shoulder, but did not
have pain with other tasks that did not involve his shoulder. See, e.g., R.
at 534-557, 688-89.
Finally, the Board should address the statements bythe appellant’s family
including both their ability
to observe symptomatology and the extent that they are reporting past
statements by the veteran that
would rebut an inference that his history of complaints is a recent
fabrication. See FED. R. EVID.
801(d)(1) (prior consistent statements of declarant may be admitted to
rebut inference of
fabrication).
If the Board determines that the appellant’s lay statements are competent
and credible, a
medical nexus opinion is required to determine whether the appellant’s
current shoulder disability
is related to his in-service football injury. As mentioned above, the
McLendon standard provides
a low threshold for determining whether there is an indication that the
disability or persistent or
recurrent symptoms of a disability may be associated with the veteran’s
service. McLendon,
20 Vet.App. at 83. This threshold encompasses a report of continuity of
symptomatology that by
itself is not strong enough to meet the requirements of 38 C.F.R. § 3.303(
b), such as the reports
provided by the appellant and his family, but nonetheless provides some
indication of a link between
the current disability and the in-service event.
On remand, the appellant is free to submit additional evidence and
argument, including the
arguments raised in his briefs to this Court, in accordance with
Kutscherousky v. West, 12 Vet.App.
369, 372-73 (1999) (per curiam order), and the Board must consider any
such evidence or argument
submitted.
See Kay v. Principi, 16 Vet.App. 529, 534 (2002).
The Board shall proceed
expeditiously, in accordance with 38 U.S.C. §§ 5109B, 7112 (requiring
Secretary to provide for “expeditious treatment” of claims remanded by Board or Court).

III. CONCLUSION
After consideration of the appellant’s and the Secretary’s briefs, and a
review of the record, the Board’s August 27, 2010, decision is VACATED and the matter is REMANDED to the Board for further proceedings consistent with this decision.
DATED: January 12, 2012
4

Copies to:
Michael R. Viterna, Esq.
VA General Counsel (027)
5

provided with a medical nexus examination by VA”).
The Secretary cites to no caselaw for the proposition that the Board’s
erroneous analysis of the materiality of the positive PTSD screening is nonprejudicial because the appellant purportedly failed to proffer sufficient material evidence to advance a separate element of his PTSD claim. What is more, the Secretary failed to acknowledge or notify the Court of the intervening authority in Ervin v. Shinseki, 24 Vet.App. 318, 324 (2011)(applying to pending cases an amendment that permitted establishment of an in-service stressor via a veteran’s lay testimony that the stressor is related to “fear of hostile military or terrorist activity”), and its impact on the disposition of the new-and-material- evidence issue in this case.
Irrespective of Ervin, the appellant has proffered sufficiently new and
material evidence to reopen his PTSD claim and obtain the full benefit of VA’s duty to assist. See Shade, 24 Vet.App. at 119-21. Accordingly, the Court will reverse the Board’s finding on this issue and remand the matter to permit further development and evaluation of the merits in accordance with Ervin.”
==========================================================

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-0096
JOHN W. WILLIAMS, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before SCHOELEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
SCHOELEN, Judge: The appellant, veteran John W. Williams, appeals through
counsel a
September 29, 2009, Board of Veterans’ Appeals (Board) decision that
denied his claim for
entitlement to service connection for vision disorder, right ear hearing
loss, pinched nerves, gout,
and a disorder manifested by constipation. Record of Proceedings (R.) at 3-
19. The Board decision
also rejected the appellant’s claim for entitlement to service connection
for post-traumatic stress
disorder (PTSD) based on new and material evidence. R. at 16. This appeal
is timely, and the Court
has jurisdiction to review the Board’s decision pursuant to 38 U.S.C. §§
7252(a) and 7266(a).
Single-judge disposition is appropriate. Frankel v. Derwinski, 1 Vet.App.
23, 25-26 (1990). For the
following reasons, the Court will affirm in part, reverse in part, and
vacate in part the Board’s
decision and remand the matter for further adjudication.
I. BACKGROUND
The appellant served on active duty in the U.S. Army from February 1969 to
October 1970,
with service in Vietnam. R. at 529. In 1996, the appellant filed a claim
for entitlement to service
connection for a back injury. R. at 429-32. As evidence, the appellant
submitted private medical
records documenting treatment he received for various back ailments in
1990 and 1991. R. at 448,

455, 481. The VA regional office (RO) denied the appellant’s claim
because “th[e] condition neither
occurred in nor was caused by service.” R. at 418. The RO explained that
the appellant’s service
medical records did not indicate complaints of back problems or treatment
for a back injury. Id.
Instead, the relevant treatment reports, accordingto the RO, suggested
that the appellant first injured
his back when he slipped and fell on ice in January 1989. Id.; see also R.
at 448. The RO’s decision
became final after the appellant failed to appeal the RO’s September 1997
Statement of the Case
(SOC). R. at 379-85.
In May 2000, the appellant was hospitalized with complaints of nightmares,
auditory and
visual hallucinations, depression, and sleep disturbances. R. at 339-42,
351-65. The appellant
reported having suicidal and homicidal ideation less than two weeks prior.
Id. The appellant also
stated that he was previously diagnosed with PTSD. R. at 345; see also R.
at 350. The appellant
was referred to a psychiatrist for further evaluation. R. at 365.
Several times during his May 2000 hospital stay, the appellant reported
other ailments to his
examiners. The appellant reported bowel problems and sometimes bleeding
from his rectum. R. at
364. The appellant also stated that the sun hurt his eyes and that he saw
color spots. R. at 354, 365.
One physician speculated that the appellant’s color spots may be
considered a visual hallucination.
R. at 365.
In June 2000, the appellant filed a claim seeking service connection for
his PTSD. R. at 372-
76. The appellant submitted a letter from an acquiantance who described
his behavior upon
returning from Vietnam, his “hyper and paranoid” attitude, and sleeping
problems. R. at 330-31.
The appellant also submitted a PTSD questionnaire in which he identified
his drinking problem and
alcohol-related disciplinary action as having contributed to his PTSD. R.
at 318-19. The appellant
denied that any casualties or injuries caused his PTSD. R. at 319.
In September 2001, the RO denied entitlement to service connection because
no evidence
demonstrated an in-service stressor and “there [was] no evidence to show a
diagnosis of PTSD.” R.
at 263. The appellant failed to appeal this decision and thus it became
final.
InJuly2004,theappellantfiledanother claim,seekingserviceconnection
forpinchednerves
and gout. R. at 250. The appellant also sought to reopen his PTSD claim.
Id. The only location
for treatment of these conditions the appellant identified was the
Fayetteville, North Carolina VA
2

hospital. R. at 250, 254-55. The appellant also stated that he’d been
receiving Social Security
Administration (SSA) disabilitybenefits since 1997. R. at 240, 248; see
also R. at 175. The medical
records obtained from the Fayetteville VA hospital indicated that he had
been diagnosed with
depression and that his PTSD screen indicated PTSD. R. at 175, 205.
In November 2004, the RO denied the appellant’s claims. R. at 145-50. The
RO found no
evidence of a medical diagnosis or treatment for pinched nerves or gout. R.
at 146-48. The RO also
found that, although medical records from the Fayetteville VA hospital
were new, they were not
material because they failed to evidence a diagnosis of PTSD or
corroborate an in-service stressor.
R. at 149-50. In March 2005, the appellant asserted new claims for
constipation, right-ear hearing
loss, and poor vision. R. at 138. After the appellant failed to submit any
further evidence, the RO
adjudicated and denied all of his claims in December 2005. R. at 114-20.
The appellant filed a
Notice of Disagreement in April 2006. R. at 109. The RO in turn issued its
Statement of the Case
in January 2007. R. at 81-103.
That same month, the appellant filed an appeal to the Board and requested
a hearing. R. at
77-79. At the appellant’s July 2009 hearing, he stated that his right-ear
hearing loss “comes from
firing a weapon while [he] was in the war,” and that his hearing loss “
progressed ever since I been
out of service.” R. at 28-29. The appellant confirmed that he had not been
provided an audiological
examination. Id.
When questioned about his vision disorder, the appellant exclaimed “I see
. . . blurry spots
sometime[s]. My sight goes almost blind and it comes back.” R. at 30. A
private physician,
according to the appellant, stated that his vision was “not good.” R. at
31. The appellant continued:
“I also have a sleeping disorder, I have nights w[h]ere I see different
things. I see different visions
and stuff in my sleep. I have nightmares.” R. at 30.
The appellant remarked that he did not know whether the blurry spots or
visions were due
to PTSD. Id. The appellant also admitted that he had no “other medical
diagnosis associated with
[his] eyes,” but he alleged that his current eye problems developed in
service. R. at 32.
The appellant also claimed that his constipation began in service and
continued to this day.
R. at 33. The appellant conceded, however, that no specific disorder was
diagnosed in connection
with his constipation. Id. The appellant also denied seeing a physician
for the problem, but testified
3

that he used Dulcolax to alleviate his symptoms. R. at 34.
Proceeding to the gout claim, the appellant testified that he was
diagnosed with gout in
service and has suffered with the pain since that time. R. at 40.
Regarding his pinched-nerves claim,
the appellant stated that “I got four pinched nerves and a twisted spine”
while in service. R. at 42.
The appellant confirmed that he was receiving treatment for his pinched
nerves at the Fayetteville
VA Hospital. R. at 43.
Turning to the PTSD claim, the hearing officer asked the appellant to
identify a specific
trauma or stressor. R. at 44. The appellant responded: “Well, well, just a,
just the total experience
of being over there in a, in a war zone and stuff and uh, the things I
seen, I guess I developed it like
that.” Id. When asked for specifics, he answered: “Dead bodies, uh a
bunch of bombing,
explosions.” Id. The appellant advised the Board member that, while in
Vietnam, he had been
stationed at Tiger Hill and Cam Ranh Bay. R. at 46.
The Board’s September 2009 decision denied all of the appellant’s claims.
R. at 3-19. The
Board concluded that the in-service and postservice records did not
establish a diagnosis for the
alleged right-ear hearing loss, constipation, gout, and pinched-nerve
conditions. R. at 9-11. Absent
evidence of such conditions, the Board found further development futile. R.
at 10. The Board also
determined apart from a notation of poor vision that in-service and
postservice medical records were
devoid of evidence of an eye injury. R. at 11.
Regarding the PTSD claim, the Board found that while the medical records
were new, they
were not material because “they provide[d] no support for the occurrence
of the claimed in-service
stressors or that PTSD has been definitively diagnosed.” R. at 15. With
regard to the notation of
PTSD by a Fayetteville VA hospital physician, the Board reasoned “that the
medical reference of
PTSD contained in the record is based solely on history reported by the
Veteran,” and that “the
primary psychiatric diagnosis [was] apparently associated with depression.”
Id.
The Board further explained that the appellant’s testimony was “vague
. . . (seeing dead
bodies and being near explosions during service),” and that he had not “
revealed useful information
which would aid VA in verifying his claimed in service stressor.” Id.
Given that the appellant had
been found to have not engaged in combat, the Board viewed the appellant’s
statements as “not []
sufficient to establish the occurrence of the alleged stressor.” Id. This
appeal followed.
4

II. ANALYSIS
A. New and Material Evidence: PTSD
The appellant contends that the Board erred in refusing to reopen his PTSD
claim.
Appellant’s Brief (Br.) at 6-8. First, the appellant argues that the Board
erred in deciding that the
positive PTSD screen was not material because the primary psychiatric
diagnosis of the report in
question was depression. Appellant’s Br. at 7; see also R. at 15. In
essence, the appellant maintains
that the positive PTSD screen was sufficient to reopen the claim because
it related to an
unestablished fact necessaryto substantiate the claim. See 38 C.F.R. § 3.
156(a) (2011). Second, the
appellant maintains that the Board erred in finding that his lay testimony
was vague, unhelpful, and
ultimately would not “aid in the verification of any claimed in-service
stressor.” R. at 15; see also
Appellant’s Br. at 7. The appellant submits that corroboration does not
require an overly detailed
account of a stressor event, contrary to the Board’s prescription.
Appellant’s Br. at 8.
In response, the Secretary acknowledges that the Board “impermissibly”
skipped “the
reopening phase and [went] straight to adjudication on the merits,” but
argues that such “error is
immaterial[] because the evidence submitted does nothing to corroborate
any purported in-service
stressor.” Secretary’s Br. at 12. Specifically, the Secretary asserts that
the appellant’s lay testimony
of an in-service stressor – his observance of “dead bodies, uh a bunch
of bombing, explosions” and
the “total experience of being over there in a, in a war zone” – was
insufficiently precise to
demonstrate an in-service stressor, and therefore to prompt additional
development to determine
whether an in-service stressor occurred. Secretary’s Br. at 13. Without
such precise evidence, the
Secretary reasons, any error by the Board in evaluating the positive PTSD
screening is immaterial.
Secretary’s Br. at 12-13.
To be eligible for service connection for PTSD, a claimant must satisfy”
three elements”: (1)
A medical diagnosis of PTSD; (2) credible supporting evidence that the
claimed in-service stressor
actually occurred; and (3) medical evidence of a causal nexus between
current symptomatology and
the specific claimed in-service stressor. Cohen v. Brown, 10 Vet.App. 128,
138 (1997). In this case,
the original decision denying service connection for PTSD explained that
the appellant failed to
provide evidence of an in-service stressor, but also that the “there [was]
no evidence to show a
diagnosis of PTSD.” R. at 263. As the Secretary would have it, the Board
need not reopen this
5

claim unless the appellant proffers new evidence that relates to both
unestablished elements
identified by the original decision as the basis for denial: (1) Evidence
of a PTSD diagnosis; and (2)
evidence of an in-service stressor. Secretary’s Br. at 12. This is not the
law.
In Shade v. Shinseki, 24 Vet.App. 110, 119-20 (2010), the claimant
submitted evidence of
a present diagnosis of a chronic skin disorder as qualifying to reopen his
claim for service connection. The Board there reasoned that “because the newly submitted evidence pertained only to the unestablished fact of a current diagnosis, but not to the other unestablished fact of a nexus between that diagnosis and service, the evidence submitted by the appellant was not new and material.” Id. The Shade court disabused the Board of this faulty logic:
The threshold established by § 3.156(a) requires the Board to analyze
whether the new evidence presented “raises a reasonable possibility of substantiating the claim.”
If the Board construes “raises a reasonable possibility of substantiating
the claim” as a requirement that the appellant submit his own medical nexus evidence to reopen his claim, even though he has provided new and material evidence concerning any other missing element, it would force the veteran to provide medical nexus evidence to reopen his claim so that he could be provided with a medical nexus examination by VA. Id. at 119-21 (emphasis supplied) (citations omitted).
This case presents a situation similar to the facts of Shade itself. See id. at 119-22. As in Shade, the RO originally denied the appellant’s claim for failing to establish two of three necessary elements. See id. at 111; R. at 263. Thereafter, as in Shade, the appellant proffered new, competent evidence to establish the element of a current PTSD diagnosis – a positive PTSD screen – which was one of the reasons the claim was originally denied. R. at 205, 263. Such evidence, as explained in Shade, 24 Vet.App. at 121, suffices to reopen the appellant’s PTSD claim because it relates to and serves to substantiate the claim’s unestablished present diagnosis element. See Cohen, 10 Vet.App. at 138; see also 38 C.F.R. § 3.156(a). By effectively proceeding directly to the merits of the appellant’s claim, the Board not only fails to correctly apply the mandate of section 3.156(a), but it also deprives the appellant the opportunity to further develop evidence of the unestablished in-service stressor element. Cf. Shade, 24 Vet.App. at 120 (reasoning that if a claimant is required to submit his own medical nexus evidence to substantiate an unestablished element of the claim, “it would force the veteran to provide medical nexus evidence to reopen his claim so that he could be
6

provided with a medical nexus examination by VA”).
The Secretary cites to no caselaw for the proposition that the Board’s
erroneous analysis of the materiality of the positive PTSD screening is nonprejudicial because the appellant purportedly failed to proffer sufficient material evidence to advance a separate element of his PTSD claim. What is more, the Secretary failed to acknowledge or notify the Court of the intervening authority in Ervin v. Shinseki, 24 Vet.App. 318, 324 (2011)(applying to pending cases an amendment that permitted establishment of an in-service stressor via a veteran’s lay testimony that the stressor is related to “fear of hostile military or terrorist activity”), and its impact on the disposition of the new-and-material- evidence issue in this case.
Irrespective of Ervin, the appellant has proffered sufficiently new and
material evidence to reopen his PTSD claim and obtain the full benefit of VA’s duty to assist. See Shade, 24 Vet.App. at 119-21. Accordingly, the Court will reverse the Board’s finding on this issue and remand the matter to permit further development and evaluation of the merits in accordance with Ervin.

B. Disorder Manifested by Constipation
The appellant contends that the Board failed to provide adequate reasons
or bases for its decision to deny service connection for a disorder manifested by constipation. Appellant’s Br. at 10-12. Specifically, the appellant contends that the Board failed to explain why he was not competent to observe and therefore diagnose constipation. Appellant’s Br. at 10-11.
Furthermore, the appellant
argues that, because he was referred to a psychiatrist on the same dayhe
complained of constipation,
“[t]he record raises some question as to whether gastrointestinal
complaints may be related to” his
PTSD claim, and thus such claims should be remanded together. Appellant’s
Br. at 11.
In response, the Secretary argues first that, although constipation is a
disorder capable of
being observed bya layperson, it is not a “disability” for which a
claimant maybe service connected.
Secretary’s Br. at 19-20. Second, the Secretary notes that the physician
who referred the appellant
to a psychiatrist did not connect his constipation to his psychiatric
symptoms and, in any event,
constipation may be considered separately from PTSD and therefore should
not be remanded for
joint consideration. Secretary’s Br. at 20-21.
The Board determined that service connection for a disorder manifested
byconstipation was
unwarranted because the appellant “[n]ever received [a] competent medical
diagnos[i]s” and also
7

lacked “competent medical evidence which [would] causally relate[] [any
diagnosis] to service.” R.
at 9-10. However, the Board failed to acknowledge and discuss the
appellant’s lay testimony at the
July 2009 hearing that his constipation began “after basic training” and
continued to the present or
complaints of constipation the appellant registered during treatments
before he filed his claim. R.
at 33, 364; see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir.
2007) (holding that lay
evidence maybe used to diagnose a condition where a layperson is competent
to identifythe medical
condition). The Board did not address whether the appellant was competent
to identify his
constipation and whether his lay statements would be sufficient to
establish service connection.
The Secretary maintains that the Board’s failure was irrelevant because VA
does not
recognize a constipation “disability” for which the appellant may be
service connected. Secretary’s
Br. at 20. However, the Board did not articulate this position, either.
Instead, the Board treated the
claim as thoughit could be service connected, repeatedlyreferring to it as “
residuals of constipation”
and “a disorder manifested by constipation.” R. at 9-10. Furthermore, as
the appellant submits, irritable bowel syndrome is a disability of which constipation is a symptom and which the appellant may presumably be competent to diagnose, see 38 C.F.R. § 4.114, Diagnostic Code 7319 (2011), but because the Board also failed to address this issue as well, the Court may not speculate. See Jandreau, 492 F.3d at 1377 (“Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans’ Court.”).
In any case, the Board failed to provide adequate reasons and bases for
its failure to discuss
this evidence, see Allday v. Brown, 7 Vet.App. 517, 527 (1995), and
vacatur and remand is
warranted. On remand, consistent with the duty to assist articulated in
McLendon v. Nicholson,
20 Vet.App. 79, 81 (2006), the Board must consider whether an examination
is warranted to dispose
of this claim. The Court will accordingly forego discussion of the
appellant’s remaining theory of Board error. See Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam).

C. Vision Disorder
The appellant next argues that the Board erred in failing to find that
VA’s duty to assist was breached when the Board hearing officer failed to suggest that the appellant obtain private medical records pertaining to his purported vision disorder. Appellant’s Br. at 12.
The Secretary responds
8

that, even assuming the Board member improperly failed to suggest
evidence, the appellant was not
prejudiced by any error because the private medical records only involved
poor eye sight and the
provision of reading glasses, neither of which are conditions eligible for
service connection.
Secretary’s Br. at 22-23.
While it is true, as the appellant notes, that the Board member did not
advise the appellant to obtain his private medical records pertaining to his vision problems, the appellant has not demonstrated that the Board member had a duty to suggest evidence. Since this Court decided
Bryant v. Shinseki, 23 Vet.App. 488, 498 (2010), VA amended 38 C.F.R. §§
3.103, 20.706 to reflect that the duty to suggest evidence was limited to “hearings conducted before the VA office having original jurisdiction over the claim.” The Board committed no error, in turn, in failing to ascribe a breach of the duty to suggest evidence to the Board hearing officer.
Even if the duty to suggest evidence remained binding on Board members,
however, the duty is nevertheless subject to the rule of prejudicial error. See Bryant, 23 Vet.App. at 498. As such, as the Secretary argues, the Court must consider “whether the appellant was prejudiced by the Board’s errors.” Id. Here, the appellant confirmed that his private physician merely advised that he would need glasses to assist with refractive error. R. at 30-31 (private
physician “said my vision [is] not
good” and that the appellant “need[ed] glasses”). Because refractive error
is not a “disease[] or
injur[y]” eligible for service connection, see 38 C.F.R. § 3.303(c) (2011
), the failure to suggest
evidence in support of such a condition does not prejudice the appellant.
See Bryant, 23 Vet.App. at 499 (indicating that the failure to suggest relevant evidence is the touchstone of prejudicial error).
Thus, even if the Board hearing officer were so obligated, any failure to
suggest evidence would not be a remandable error.
The appellant also claims that the record suggests that his claim for
vision disorder is inextricably intertwined with his PTSD claim, and therefore his vision disorder claim should be remanded along with his PTSD claim. Appellant’s Br. at 12-13. The appellant fails to explain how his vision claim is inextricably intertwined with his PTSD claim, however,and thus fails to carry his burden of providing adequate support for his argument. See Locklear v. Nicholson, 20 Vet.App. 410, 416 (2006) (holding that the Court will not entertain underdeveloped arguments); Coker v.
Nicholson, 19 Vet.App. 439, 442 (2006), rev’d on other grounds sub nom.
Coker v. Peake, 310 F.
9

App’x 371 (Fed. Cir. 2008) (stating that an appellant must “plead with
some particularity the allegation of error so that the Court is able to review and assess the validity of the appellant’s arguments”). The Court must, therefore, reject this argument and affirm the portion of the Board’s
decision regarding the appellant’s claim for vision disorder.

D. Depression
The appellant argues that the Board failed to explain why his effort to
reopen his PTSD claim was not regarded as encompassing a new claim for service connection for depression in light of his acknowledged depression diagnosis. Appellant’s Br. at 10. Because, as discussed above, the Court is reversing the Board’s decision on the appellant’s PTSD claim and remanding the matter to allow adjudication on the merits, the Board must also determine whether the appellant in fact asserted a claim for entitlement to service connection for depression, consistent with Clemons v. Shinseki, 23 Vet.App. 1, 5 (2009). The Court will therefore forego discussion of this argument. See Best,15 Vet.App. at 20.

E. Pinched Nerves and Right-Ear Hearing Loss
The appellant argues that the Board failed to explain why the record
evidence of right-ear hearing loss does not entitle the appellant to a medical examination. Appellant’s Br. at 13-14. The
Secretary agrees with the appellant and argues in favor of remand.
Secretary’s Br. at 28-29.
Similarly, the parties agree that the Board failed to address whether the
appellant’s evidence of
treatment for various back ailments in 1990 and 1991 is relevant to his
claim for pinched nerves, and that the Board erroneously failed to procure his SSA records, which appear relevant to his pinched nerves claim. Appellant’s Br. at 14; Secretary’s Br. at 27. Accordingly, the Court will remand both claims.

F. SSA Records
The appellant argues that the Board erroneously failed to obtain his SSA
records with respect to his constipation, vision disorder, and gout claims.1
Appellant’s Br. at 14-15. The Secretary responds that the Board was not required to procure SSA records for claims other than those for

1 The appellant also seeks procurement of his SSA records to support his
PTSD, right ear hearing loss, and pinched nerves claims, but because the Court is remanding these claims, he is free to argue before the Board the relevance of his SSA records to such claims.

10

which the appellant was receiving benefits. Secretary’s Br. at 24-26.
The Board’s duty to obtain Federal records is limited to Federal records
for which there is reason to believe that such records “may give rise to pertinent information.” Golz v. Shinseki, 590 F.3d 1319, 1323 (Fed. Cir. 2010). The evidence demonstrates that the appellant received SSA benefits “for back problems” (R. at 175), but there is no indication that the Board evaluated whether the appellant’s SSA records may give rise to information pertinent to his constipation, vision disorder, and gout claims. Absent an adequate discussion by the Board of
the grounds for failing to
obtain the appellant’s SSA records for the aforementioned claims, a remand
is warranted. See
Allday, 7 Vet.App. at 527.

III. CONCLUSION
After consideration of the appellant’s and the Secretary’s pleadings, and
a review of the
record, the September 29, 2009, Board decision is AFFIRMED IN PART,
REVERSED IN PART,
VACATED IN PART and the reversed and vacated matters REMANDED for further
adjudication.
DATED: December 29, 2011
Copies to:
Jeany Mark, Esq.
VA General Counsel (027)
11

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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)
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B. Prejudice
As noted above, Mrs. Quattlebaum asserts that she was prejudiced by the Board’s
misunderstanding of the law. We agree. By improperly concluding that the statutory scheme prohibited a claim to reopen a prior denial of accrued benefits, the Board did not adjudicate whether she was entitled to accrued benefits, either via the 2001 original claim or the 2006 claim to reopen, and adjudication may lead to a successful outcome for Mrs. Quattlebaum. See Arneson v. Shinseki, 24 Vet.App. 379, 388-89 (2011) (finding prejudice where error could have made difference in outcome); see also supra note 1.
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UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-3557
PEGGY L. QUATTLEBAUM, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans’ Appeals
(Argued September 28, 2011 Decided January 5, 2012)
Kenneth M. Carpenter, of Topeka, Kansas, for the appellant. Peter J. Meadows, of Fort Lauderdale, Florida, was on the brief for appellant.
James R. Drysdale, with whom Will A. Gunn, General Counsel; R. Randall Campbell,
Assistant General Counsel; and Richard Mayerick, Deputy Assistant General Counsel, all of Washington, D.C., were on the brief for the appellee.
Before KASOLD, Chief Judge, and MOORMAN and DAVIS, Judges.

KASOLD, Chief Judge: Mrs. Peggy L. Quattlebaum, surviving spouse of World War II
veteran Cecil L. Quattlebaum, appeals through counsel a June 11, 2009, Board of Veterans’ Appeals(Board) decision that denied her attempt to reopen a previously denied claim for accrued benefits.
Mrs. Quattlebaum argues that the Board’s statement that “finally denied claims for accrued benefits cannot be reopened once the [one-year] time period [of 38 U.S.C. § 5121(c)] expires” was an incorrect statement of law and not supported by adequate reasons or bases. Record (R.) at 7. The Secretary disputes this argument. For the reasons stated herein, we hold that there is no per se legal bar to reopening a denied accrued benefits claim. Because the Board decision on appeal rests solely on a misunderstanding of the law prejudicial to Mrs. Quattlebaum, it will be set aside and the matter remanded for further adjudication.

I. BACKGROUND
Mr. Quattlebaum served on active duty from September 1942 to February 1947. The record of proceedings reflects that, by letter dated August 9, 2000, the Montgomery, Alabama, VA regional office (RO) notified Mr. Quattlebaum that his claim for benefits for, inter alia, tremors of all fingers, twitching in finger, a heart condition, and a total disability rating for individual unemployability (TDIU) had been denied. Nevertheless, on October 20, 2000, and December 19, 2000, the RO continued to send Mr. Quattlebaum letters stating that “[w]e are still processing your application for COMPENSATION.” R. at 51, 53. On December 29, 2000, Mr. Quattlebaum died.
Mrs. Quattlebaum’s claim for dependency and indemnity compensation (DIC), death pension, and accrued benefits was received by the RO on February 5, 2001. In a letter dated February 7, 2001, and still addressed to Mr. Quattlebaum, the RO acknowledged that “[w]e have received your application for benefits.” R. at 55. In August 2001, the RO sent a letter to Mrs. Quattlebaum stating, inter alia, that “[a]n accrued benefit is any money VA owed Mr. Quattlebaum at the time of his death. We cannot approve your claim for accrued benefits because VA did not owe him any money.” R. at 318. The RO attached to this letter a rating decision dated August 23, 2001, that denied her DIC claim and determined that eligibility to dependents’ educational assistance was not established, but did not address her accrued benefits claim. Thereafter, Mrs. Quattlebaum filed a Notice of Disagreement (NOD) as to the denial of DIC and perfected an appeal that led to a November 2005 DIC award, effective from December 2000.1
In January 2006, Mrs. Quattlebaum notified the RO that she had not received accrued

1 At oral argument, Mrs. Quattlebaum argued that her initial February 2001 claim for accrued benefits remains pending because the August 2001 rating decision did not address her claim for accrued benefits. This argument was not
raised below or included in the briefing, and was presented by counsel for the first time at oral argument. Counsel attempted to justify this piecemeal litigation by explaining that he took over this case after the initial briefing had been submitted. Substitute counsels are reminded that, if they discover a new argument after the initial briefing, they generally must file a motion for leave to file a supplemental brief positing such argument, in order for the Court to consider it. See U.S. VET. APP. R. 27 (discussing applications for relief); cf. Fugere v. Derwinski, 1 Vet.App. 103, 105 (1990)(“Advancing different arguments at successive stages of the appellate process does not serve the interests of the parties or the Court. Such a practice hinders the decision-making process and raises the undesirable specter of piecemeal litigation.”). As discussed more fully in the text, infra at section III.B, remand is warranted in this case, Mrs. Quattlebaum can raise this issue below, and it will not be further addressed herein. See Maggitt v. West, 202 F.3d 1370, 1377-78 (Fed. Cir. 2000) (if Court has jurisdiction over a matter, issues presented for first time on appeal may be addressed, disregarded, or remanded back to Board for further development); Kay v. Principi, 16 Vet.App. 529, 534 (2002) (on remand, claimants may present, and the Board must consider, any additional evidence and argument in support of the matters remanded).
2
benefits, and asked the RO to review the file, determine whether her husband had a claim pending at the time of his death, and award any benefits due. The record of proceedings does not contain any notice to Mrs. Quattlebaum regarding how to substantiate her claim for accrued benefits or how to reopen her claim. Rather, in August 2006, the RO notified Mrs. Quattlebaum that her husband’s claim had been denied pursuant to the August 9, 2000, letter, and advised her that, if she disagreed, she could file an NOD within one year. Mrs. Quattlebaum filed a timely NOD, identifying the December 2000 and February 2001 letters as evidence that a claim was pending at the time of her husband’s death.
A September 2007 Statement of the Case (SOC) restated that Mr. Quattlebaum had no pending claim at the time of his death, and also noted that accrued benefits were not warranted because the January 2006 claim had been submitted more than one year after her husband’s death.
Following Mrs. Quattlebaum’s Substantive Appeal, the Board decision on appeal denied entitlement to accrued benefits. The Board reasoned that, because Mrs. Quattlebaum previously had been denied entitlement to accrued benefits, “her [January 2006] claim is essentially one to reopen.” R. at 7. It further reasoned that “[t]he language in § 5121(c) is inconsistent with permitting consideration of a reopened claim received more than one year after death” and that “it is § 5121(c) which controls here, not § 5108.” Id. The Board determined that, although Mrs. Quattlebaum’s initial application met the section 5121(c) one-year filing requirement, her current claim “was filed more than five years after the Veteran’s date of death” and therefore “does not meet the statutory requirement for paying accrued benefits.” Id. This appeal followed.

II. THE PARTIES’ ARGUMENTS
On appeal, Mrs. Quattlebaum argues that the Board’s statement that a surviving spouse cannot reopen an accrued benefits claim more than one year after the veteran’s death was not supported by adequate reasons or bases and was not in accordance with law. She contends that the statutory scheme does not explicitly or implicitly exclude accrued benefits claims from being reopened, and asserts that 38 U.S.C. § 5121(c) can be read in harmony with 38 U.S.C. § 5108.
During oral argument, Mrs. Quattlebaum asserted two counts of prejudice arising from the Board’s misunderstanding of the law, to wit: (1) she was never informed of the evidence necessary to
3
substantiate her claim as required by 38 U.S.C. § 5103(a),2 such that she was deprived of a meaningful opportunity to participate in the processing of her claim, and (2) the Board, in rendering its erroneous decision on the law, never evaluated whether she had submitted new and material evidence.
The Secretary argues that the Board correctly stated the law and that a surviving spouse cannot reopen an accrued benefits claim more than one year after the veteran’s death because the statutory scheme does not permit the reopening of an accrued benefits claim. At oral argument, the Secretary further posited that an attempt to reopen an accrued benefits claim is an exercise in futility because an accrued benefits claim is based on the evidence “in the file at date of death” and such evidence cannot also constitute the “new and material” evidence required to reopen a claim. When confronted with the possibility that evidence could be both “in the file at date of death” and “new and material,” the Secretary argued in the alternative that a motion for revision based on clear and unmistakable error (CUE) was the proper avenue for relief in such situations. The Secretary also asserts that Mrs. Quattlebaum has not demonstrated prejudice, because she merely asked for a review of the record and submitted no new and material evidence.

III. DISCUSSION
A. Reopening Accrued Benefits Claims
Section 5121 permits a surviving spouse to “stand in the shoes of the veteran and pursue his claim after his death” by filing an accrued benefits claim, Zevalkink v. Brown, 6 Vet.App. 483, 490 (1994), aff’d, 102 F.3d 1236 (Fed. Cir. 1996), so long as the surviving spouse files an application for accrued benefits “within one year after the [veteran's] date of death,” 38 U.S.C. § 5121(c).3

2 The Secretary is required by 38 U.S.C. § 5103(a) to “inform the claimant of the information and evidence not of record (1) that is necessary to substantiate the claim, (2) that VA will seek to obtain, and (3) that the claimant is expected to provide,” and further required by 38 C.F.R. § 3.159(b)(1) to “[4] request that the claimant provide any evidence in the claimant’s possession that pertains to the claim.” As an aside, this fourth requirement was repealed by the Secretary, effective May 30, 2008. See Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (notice of final rule amending § 3.159(b) and removing the fourth requirement of notice, because it “is not required by statute and is redundant of the three statutory requirements”).

3 In pertinent part, 38 U.S.C. § 5121 states:
(a) Except as provided in sections 3329 and 3330 of title 31, periodic monetary benefits (other than
4

Additionally, if the application is incomplete at the time originally submitted, the Secretary must provide notification of the evidence necessary to complete the application, and an accrued benefits claimant has an additional year after such notification to submit that necessary evidence. Id.
Section 5108 states that “[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.” 38 U.S.C. § 5108; see 38 C.F.R. § 3.156 (2011).
The Board found the notion of reopening an accrued benefits claim pursuant to section 5108
inconsistent with the one-year requirement of section 5121(c), reasoning that “accrued benefits [claims] cannot be reopened once the [one-year] time period expires.” R. at 7. Succinctly stated, however, we see no such inconsistency.4 On its face, section 5121 in no way indicates a preclusion
of reopening accrued benefits claims. Similarly, section 5108 on its face allows the reopening of any previously disallowed claim. Read together, an accrued benefits claim must be filed within one year after the veteran’s date of death pursuant to section 5121(c), and an accrued benefits claim can be reopened upon the presenting of new and material evidence pursuant to section 5108.
The Board also noted that the language of section 5121(c) regarding incomplete applications for accrued benefits – namely, that the Secretary must notify the claimant if an application is incomplete, and the claimant has one year thereafter to submit evidence completing the application – “indicates that once the specific time limit elapses, no accrued benefits will be paid if the requested evidence is ultimately submitted in an untimely matter.” R. at 7. However, this discussion of

insurance and servicemen’s indemnity) under laws administered by the Secretary to which an individual was entitled at death under existing ratings or decisions or those based on evidence in the file at date of death (hereinafter in this section and section 5122 of this title referred to as “accrued benefits”) and due and unpaid, shall, upon the death of such individual be paid . . . .
. . . .
(c) Applications for accrued benefits must be filed within one year after the date of death. If a claimant’s application is incomplete at the time it is originally submitted, the Secretary shall notify the claimant of the evidence necessary to complete the application. If such evidence is not received within
one year from the date of such notification, no accrued benefits may be paid.

4 Even if we perceived an inconsistency, we note that it is an appellate court’s task “to construe the two statutes in a way that best resolves any possible conflict between them.” Cathedral Candle Co. v. U.S. Int’l Trade Comm’n, 400 F.3d 1352, 1368 (Fed. Cir. 2005); see also Morton v. Mancari, 417 U.S. 535, 551 (1974) (“[W]hen two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.”); Terry v. Principi, 340 F.3d 1378, 1385 (Fed. Cir. 2003) (“When we construe a statute, we do so in the setting of the statutory scheme of which it is a part.”).
5
incomplete applications is referring to applications that do not “establish that the claimant is within the category of persons eligible to receive accrued benefits.” Hyatt v. Shinseki, 566 F.3d 1364, 1370 (Fed. Cir. 2009); see Evidence for Accrued Benefits, 67 Fed. Reg. 9638, 9639 (Mar. 4, 2002)(Secretary noting that the “evidence” to be submitted in section 5121(c) is “that information necessary to establish that the applicant for accrued benefits is the person eligible for and entitled to those benefits”). Once a claim is timely filed and an application is completed (i.e., status as a proper accrued benefits claimant is established), section 5121(c) in no way limits the submission of evidence pertaining to the merits of the accrued benefits claim or bars a claim to reopen.5
Further, the Secretary’s contention – that attempting to reopen an accrued benefits claim is an exercise in futility because an accrued benefits claim is based only on evidence “in the file at date of death,” 38 U.S.C. § 5121(a), and therefore any new evidence submitted after death could not be considered and therefore would not be material to the claim – fails upon examination. This is because the Secretary has defined by regulation the phrase “evidence in the file at date of death,”38 U.S.C. § 5121(a), to include “evidence in VA’s possession on or before the date of the
beneficiary’s death, even if such evidence was not physically located in the VA claims folder on or before the date of death.” 38 C.F.R. § 3.1000(d)(4) (2011). Thus, pursuant to this regulation, there may be circumstances – perhaps rare but certainly possible – where documents are in the Secretary’s possession at the date of the veteran’s death (and therefore are considered to be in the file at the date of death), yet have never been presented to the Agency decisionmakers. Any such document submitted to the decisionmaker subsequent to a denial of an accrued benefits claim would qualify
as “new” evidence pursuant to 38 C.F.R. § 3.156(a) (“New evidence means existing evidence not previously submitted to agency decisionmakers.”), and might also be material if it (along with evidence previously in the record) “relates to an unestablished fact necessary to substantiate the claim. Id. (“Material 6 evidence . . . relates to an unestablished fact necessary to substantiate the

5 It is undisputed that Mrs. Quattlebaum established her status as a proper accrued benefits claimant. Accordingly, we do not comment on whether a claimant who did not establish status as a proper accrued benefits claimant in the one-year period after notification can reopen the claim or whether “no accrued benefits may be paid.”
38 U.S.C. § 5121(c).

6 Although evidence need only relate to an unestablished fact necessary to substantiate a claim in order to be deemed “material,” 38 C.F.R. § 3.56, further evidentiary development generally is not permitted in accrued benefits
claims, see 38 U.S.C. § 5121(a); 38 C.F.R. § 3.1000(d)(4).
6

claim.”). For example, if evidence was in the possession of one RO at the date of death, and the surviving spouse’s accrued benefits claim was submitted to and finally denied by another RO without
knowledge of the evidence in the possession of the other RO, an accrued benefits claimant may
successfully reopen her claim with that evidence, if material.
At oral argument, when confronted with the above possibility, the Secretary argued that the only proper avenue for obtaining relief in the circumstances described above is a motion for revision based on CUE. However, a CUE motion involves errors “based on the record . . . that existed” at the time of the previous decision, Russell v. Principi, 3 Vet.App. 310, 314 (1992) (en banc), while an attempt to reopen involves a supplement to the record that existed before the Agency decisionmaker, see 38 C.F.R. § 3.156(a). The situation of a claimant submitting evidence that was in the possession of the Secretary, but not previously in the claims file or before the decisionmaker, more closely aligns with the concept of reopening. Further, the CUE standard requires a claimant to demonstrate that the document “would manifestly have changed the outcome of the case,” Sondel v. West, 13 Vet.App. 213, 221 (1999), imposing a significantly higher burden than that of demonstrating “a reasonable possibility of substantiating the claim,” which is the new-and-material evidence standard. See Shade v. Shinseki, 24 Vet.App. 110, 117 (2010); see supra note 6. Thus, while a request for revision based on CUE is potentially one way to obtain accrued benefits when a timely claim for such benefits has been submitted but denied, that option does not preclude the option of seeking to reopen the claim based on new and material evidence.
We also note that the Board’s view, and the Secretary’s argument, that a timely filed claim for accrued benefits, once denied and final, would not – as a matter of law – be subject to reopening, is inconsistent with the Secretary’s position in the past. For example, in Moffitt v. Brown, 10 Vet.App. 214, 217 (1997), a surviving spouse filed an accrued benefits claim based on TDIU within
one year of her husband’s death, which was finally denied in a 1987 Board decision. The spouse thereafter attempted to reopen the accrued benefits claim in 1991, but a 1994 Board decision found that no new and material evidence had been submitted since the 1987 decision. Id. at 222. On appeal, both the spouse and the Secretary argued that remand was warranted based on a newly service-connected kidney condition that “may constitute new and material evidence deemed to have been in the file at the date of death.” Id. (internal quotation marks omitted). Rather than holding (as
7
the Secretary requests here) that the 1991 attempt to reopen was precluded by statute, the Court agreed that remand was warranted for the Board to readjudicate the accrued benefits claim based on TDIU in light of the kidney condition. Id.
Further, in Wright v. Brown, 9 Vet.App. 300, 302-03 (1996), when a surviving spouse “submitted a document which could be interpreted as a claim alleging CUE . . . or, in the alternative, a request to reopen her [accrued benefits] claim” four years after a final Board denial, the Court did not hold (as the Secretary requests here) that such an attempt to reopen was precluded by statute.
Rather, the Court stated that, “[t]o the extent that the document submitted . . . may be considered as a request to reopen,” the spouse had failed to demonstrate new and material evidence. Id. at 303.
While acknowledging that an agency’s interpretation of a statute that it is charged with administering is subject to “some deference,” Cathedral Candle Co., 400 F.3d at 1365, we also recognize that “‘considerably less deference’” (Gose v. U.S. Postal Serv., 451 F.3d 831, 837-38 (Fed. Cir. 2006) (quoting Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 515 (1994)) is due to an
interpretation that is (1) articulated by appellate counsel, rather than promulgated formally by administrative officials, (2) inconsistent with previous agency positions, or (3) not a reflection of the “‘specialized expertise’” of the agency, Cathedral Candle Co., 400 F.3d at 1367 (quoting U.S. v. Mead Corp., 533 U.S. 218, 234 (2001)). Here, deference to the Secretary’s current interpretation of the statutory scheme is particularly unjustified, where (1) the Secretary has not identified any regulation, VA Office of General Counsel opinion, or Agency-wide pronouncement positing his current interpretation, (2) this current interpretation is inconsistent with positions previously taken in Moffitt and Wright, both supra, and (3) the Secretary has not articulated – and the Court cannot discern – how this interpretation reflects his specialized expertise. See Cathedral Candle Co., 400 F.3d at 1367; see also Gose, supra (citing Bowen v. Georgetown Univ. Hosp, 488 U.S. 204, 212(1988), and Inv. Co. Inst. v. Camp, 401 U.S. 617, 628 (1971)).
In sum, as long as an accrued benefits claimant submits a claim within one year of the date of death of the veteran, the claim is timely. Once timely submitted and thereafter denied because accrued benefits are deemed not warranted, it is subject to being reopened if the claimant submits new and material evidence. Accordingly, we hold that the Board’s determination that an accrued benefits claim cannot be reopened more than one year after the veteran’s death is not in accordance
8
with law and will be reversed. See 38 U.S.C. § 7261(a)(3)(A) (Court shall hold unlawful and set aside decisions and conclusions “not in accordance with law”).

B. Prejudice
As noted above, Mrs. Quattlebaum asserts that she was prejudiced by the Board’s
misunderstanding of the law. We agree. By improperly concluding that the statutory scheme prohibited a claim to reopen a prior denial of accrued benefits, the Board did not adjudicate whether she was entitled to accrued benefits, either via the 2001 original claim or the 2006 claim to reopen, and adjudication may lead to a successful outcome for Mrs. Quattlebaum. See Arneson v. Shinseki, 24 Vet.App. 379, 388-89 (2011) (finding prejudice where error could have made difference in outcome); see also supra note 1.
In this regard, we note that the record of proceedings reflects that Mrs. Quattlebaum attached two VA letters in support of her claim. These letters (1) indicate that Mr. Quattlebaum’s claim was still being considered by the Secretary at the time of Mr. Quattlebaum’s death, (2) were not mentioned in the August 2001 RO letter that stated that the RO “cannot approve your claim for
accrued benefits because VA did not owe [the veteran] any money” (R. at 318), and (3) appeared in the record of proceedings only once (as submitted by Mrs. Quattlebaum), indicating they may not have been in the record at the time of the August 2001 RO letter. Whether the August 2001 RO letter constituted a denial of the accrued benefits claim and whether these letters constitute new and material evidence are factual determinations to be made by the Secretary or the Board in the first
instance. See Prillaman v. Principi, 346 F.3d 1362, 1367 (Fed. Cir. 2003) (concluding that new-and material-evidence determinations are factual determinations); Thompson v. Gober, 14 Vet.App. 187, 188 (2000) (per curiam) (stating that the Court “‘should not simply [make] factual findings on its
own’” (quoting Hensley v. West, 212 F.3d 1255, 1263 (Fed. Cir. 2000))). Remand is warranted. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (stating that remand is appropriate “where the Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate”).
On remand, Mrs. Quattlebaum may present, and the Board must consider, any evidence to the extent otherwise permitted by law (see, e.g., 38 U.S.C. § 5121 and 38 C.F.R. § 3.1000(d)(4)), and any additional argument in support of the matter remanded. See Kay, 16 Vet.App. at 534. This
9
matter is to be provided expeditious treatment on remand. See 38 U.S.C. § 7112.

IV. CONCLUSION
Upon consideration of the foregoing, the finding of the June 11, 2009, Board that an accrued benefits claim cannot as a matter of law be reopened more than one year after a veteran’s death is
REVERSED, and the decision of the Board denying Mrs. Quattlebaum’s attempt to reopen her accrued benefits claim is SET ASIDE and the matters REMANDED for further development and readjudication consistent with applicable law and this decision.
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UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 08-1468
ANTHONY BOVE, APPELLANT,
AND
NO. 09-3758
AQUEL RASHEED, APPELLANT,
AND
NO. 10-2139
ALFONSO LOPEZ, APPELLANT,
AND
NO. 10-2622
WESLEY L. KING, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before KASOLD, Chief Judge, and MOORMAN and DAVIS, Judges.
O R D E R
As a result of this Court’s decision in Henderson v. Peake, 22 Vet.App. 217 (2008) (holding
that the 120-day time limit to file a Notice of Appeal (NOA) was jurisdictional and not subject to equitable tolling), a significant number of appeals were dismissed for lack of jurisdiction due to the untimely filing of an NOA. Although Henderson was affirmed by the U.S. Court of Appeals for the Federal Circuit (Federal Circuit), 589 F.3d 1201 (Fed. Cir. 2009), the U.S. Supreme Court ultimately held that the 120-day time limit to file an NOA pursuant to 38 U.S.C. § 7266(a)1–although an important procedural rule–was not jurisdictional, 131 S. Ct. 1197, 1206 (2011). The Supreme Court
1 “In order to obtain review by the Court of Appeals for Veterans Claims of a final decision of the Board of Veterans’ Appeals, a person adversely affected by such decision shall file a notice of appeal with the Court within 120 days after the date on which notice of the decision is mailed pursuant to section 7104(e) of this title.” 38 U.S.C. § 7266(a).

expressed “no view” on the question of whether this rule was subject to equitable tolling. Id. at 1206, n.4. The case was remanded to the Federal Circuit, id. at 1206, and remanded without further comment by the Federal Circuit to this Court, 417 F. App’x 982 (Fed. Cir. 2011).
These cases are consolidated for the sole purpose of addressing whether the 120-day filing period is subject to equitable tolling and, if so, whether the circumstances in each case warrant equitable tolling. See U.S. VET. APP. R. 3(e) (“Appeals may be consolidated by order of the Court on its own initiative or on a party’s motion.”). The facts, in short summary, follow.
In Bove, subsequent to a November 9, 2007, Board decision, the pro se appellant filed an NOA at the regional office (RO) on January 14, 2008. At that time, he had 54 days remaining before his 120-day appeal period expired on March 10, 2008. The RO, however, did not forward the NOA to the Court until May 12, 2008, well after the 120-day period had expired. The Secretary moved to dismiss the appeal on July 23, 2008, for lack of jurisdiction and, in further briefing, expressly opposed equitable tolling (May 2009 Supplemental Memorandum of Law at 3-5). The appellant, through counsel, responded that this Court had jurisdiction to consider his appeal based on Santana-Venegas v. Principi, 314 F.3d 1293 (Fed. Cir. 2002) (accepting NOA submitted to the RO within the 120-day appeal period). See June 18, 2009, Appellant’s Response to Mar. 12, 2009, Court Order at 4, 11. The Secretary did not thereafter respond. The Court dismissed the appeal based on a lack of jurisdiction, but the Federal Circuit vacated that dismissal after the Supreme Court’s decision in Henderson. See 421 F. App’x 965 (Fed. Cir. 2011).
In Rasheed, subsequent to a January 12, 2009, Board decision, the appellant filed through counsel an NOA at this Court on October 9, 2009, well after the 120-day period had expired. The Secretary moved to dismiss the appeal based on a lack of jurisdiction. Subsequently, the appellant asserted that his mental disabilities prevented him from timely filing his NOA and that the
notification he received regarding how to appeal was not properly tailored to his circumstances. The Secretary did not thereafter respond. The Court dismissed the appeal based on a lack of jurisdiction, but the Federal Circuit vacated that dismissal after the Supreme Court’s decision in Henderson. See 424 F. App’x 953 (Fed. Cir. 2011).
In Lopez, subsequent to a February 25, 2010, Board decision, the appellant filed through counsel an NOA at the Court on June 28, 2010, one business day after the expiration of the 120-day appeal period. He asserts that his mental disabilities prevented him from timely filing his NOA. In
briefing subsequent to the Supreme Court’s decision in Henderson, the Secretary generally asserts that section 7266(a) is subject to equitable tolling and that equitable tolling might be appropriate in this instance. The Court has not yet acted on Mr. Lopez’s appeal.
In King, subsequent to a March 8, 2010, Board decision, the pro se appellant filed an NOA at the RO on May 26, 2010. At that time, he had 41 days remaining before his 120-day appeal period expired on July 6, 2010. The RO, however, did not forward it to the Court until August 9, 2010, well after the 120-day period had expired. The Secretary presented no objection or comment as to whether the time to file should be equitably tolled. The Court dismissed the appeal based on lack of jurisdiction, but the appellant has filed for reconsideration.
2
We first discuss whether the 120-day period is subject to equitable tolling, and what weight should be accorded to the Secretary’s position as to whether equitable tolling should be accorded in any given case. We thereafter address each of the cases consolidated herein.

I. ANALYSIS
A. An Important Procedural Rule
When creating the United States Court of Appeals for Veterans Claims and granting it jurisdiction to review decisions of the Board, Congress prescribed a 120-day period for appeals to this Court. See 38 U.S.C. § 7266(a).2 Initially viewed as a jurisdictional barrier to the exercise of
this Court’s authority to review Board decisions, see Butler v. Derwinski, 960 F.2d 139, 140-41 (Fed. Cir. 1992); Cleary v. Brown, 8 Vet.App. 305, 307 (1995), over time it was held to be a time limitation that could be equitably tolled. Bailey v. West, 160 F.3d 1360 (Fed. Cir. 1998) (en banc)
(relying on Irwin v. Dep’t of Vet. Affairs, 498 U.S. 89 (1990), and holding that equitable tolling generally was available in suits against the United States, unless Congress has expressed its intent to the contrary); see Jaquay v. Principi, 304 F.3d 1276 (Fed. Cir. 2002) (en banc).
Subsequently, however, applying the Supreme Court’s analysis in Bowles v. Russell, 551 U.S. 205 (2007) (finding that the time limitation set forth in 28 U.S.C. § 2107, regarding appeals from a district court to a court of appeals, was jurisdictional and not subject to equitable tolling), this
Court determined that the Bowles analysis pre-empted Bailey and its progeny and held that the 120-day period is jurisdictional and not subject to equitable tolling. Henderson, 22 Vet.App. at 217-21.
As noted above, the Federal Circuit agreed and explicitly overturned Bailey and its progeny. Henderson, 589 F.3d at 1220. In reversing the Federal Circuit, the Supreme Court specifically noted, inter alia, the unique statutory scheme of veterans benefits adjudication and the terms and placement of section 7266(a) within the Veterans’ Judicial Review Act of 1988, Pub. L. No. 100-687, before ultimately concluding that the 120-day limit to file an appeal for judicial review is not jurisdictional.
Henderson, 131 S. Ct. at 1204-07. Significantly, the Supreme Court also noted that section 7266(a) is “an important procedural rule” and explicitly expressed “no view” on the question of whether this rule is subject to equitable tolling. Id. at 1206, n.4.
2 Although the typical filing period for civil-action appeals involving federal agencies in the federal courts is 60 days, see, e.g., Fed. R. App. P. 4(a)(1)(B) (providing that when the United States or an agency is a party, a notice of appeal may be filed by any party within 60 days after the judgment or order appealed from is entered); 5 U.S.C. § 7703(b)(1) (“any petition for review [shall be filed in the Federal Circuit and] must be filed within 60 days after the date the petitioner received notice of the final order or decision of the [Merit Systems Protection Board]“); 15 U.S.C.
§ 77i(a) (providing for review of orders from Securities and Exchange Commission by the D.C. Circuit within 60 days after the entry of such order); 28 U.S.C. § 2344 (“Any party aggrieved by [a] final order [of specified agencies] may, within 60 days after its entry, file a petition to review the order in the court of appeals wherein venue lies.”), Congress
enacted a more liberal, 120-day time limit for filing at this Court. See Pub. L. No. 100-687 (1988); see also Bailey v. West, 160 F.3d 1360, 1369 (Fed. Cir. 1998) (Michel, J., concurring in the result) (“Both the Supreme Court and this court have long recognized that the disputes that arise in this system are subject to procedural and other rules that are distinctly
advantageous to the veteran claimant” (citing, inter alia, Brown v. Gardner, 513 U.S. 115, 117-18 (1994))).
3
Although reversing one decision that, in turn, had reversed previous decisions generally has the effect of reinstating those previous decisions, see Wheeler v. John Deere Co., 935 F.2d 1090, 1096 (10th Cir. 1991) (“A judgment reversed by a higher court is ‘without any validity, force or
effect, and ought never to have existed.’” (quoting Butler v. Eaton, 141 U.S. 240, 244 (1891))); see also Keller v. Hall, 111 F.2d 129, 131 (9th Cir. 1940), this is true only when the foundation of the other decisions is not disturbed, cf. Metropolitan Life Ins. Co. v. Ward, 470 U.S. 869, 891 (1985)
(addressing whether a recent decision undermined the force of a previous case’s analysis). Here, although Bailey and its progeny held that this Court’s 120-day period was subject to equitable tolling, these cases did so without the benefit of the Supreme Court’s analysis of section 7266(a)’s context within the Veterans’ Judicial Review Act of 1988 and the unique statutory scheme of veterans benefits or the Supreme Court’s explicit recognition that the 120-day period was an important procedural rule. In this context, and inasmuch as neither the Supreme Court nor the Federal Circuit in remanding this matter expressed a view as to whether section 7266(a) may be subject to equitable tolling, we examine anew to what degree, if any, this “important procedural rule” is subject to equitable tolling.

B. Equitable Tolling and Section 7266(a)
The doctrine of equitable tolling has generally established parameters, and over time decisions of the Federal Circuit and this Court have addressed those parameters in the context of appeals to this Court. Thus, for example, equitable tolling was not applied when failure to file was due to general negligence or procrastination. Rather, it was applied only when circumstances
precluded a timely filing despite the exercise of due diligence, such as (1) a mental illness rendering one incapable of handling one’s own affairs or other extraordinary circumstances beyond one’s control, (2) reliance on the incorrect statement of a VA official, or (3) a misfiling at the regional
office or the Board. See, e.g., Brandenburg v. Principi, 371 F.3d 1362, 1364 (Fed. Cir. 2004) (NOA submitted to Board); Barrett v. Principi, 363 F.3d 1316, 1321 (Fed. Cir. 2004) (mental illness rendering one incapable of handling his own affairs); Santana-Venegas, 314 F.3d at 1298 (NOA
submitted to RO); Bailey, 160 F.3d at 1365-68 (reliance on incorrect statement of VA official); McCreary v. Nicholson, 19 Vet.App. 324 (2005) (extraordinary circumstances), adhered to on reconsideration by 20 Vet.App. 86 (2006).
From the time of the Bailey decision in 1998 through this Court’s decision in Henderson, the Court has applied equitable tolling without any significant adverse consequences, such as “administrative complexity or unpredictable fiscal peril,” reasons why we might otherwise determine
that the 120-day period should not be tolled when presented with circumstances that otherwise warrant equitable tolling. Bailey, 160 F.3d at 1365. Based on this observation, and the Federal Circuit’s observation that “there is no reason to believe that Congress wanted to bar [the] application
[of equitable tolling] to section 7266,” id. at 1368, we perceive no valid reason for not permitting the 120-day period to be equitably tolled within the parameters established in Bailey and its progeny, and the precedential decisions of this Court prior to this Court’s Henderson decision.
Accordingly, we hold that the 120-day period is subject to equitable tolling within the parameters established by Bailey and its progeny, and the precedential decisions of this Court prior
4
to this Court’s Henderson decision. In so holding, we are mindful that Congress has authorized the Court to prescribe its own rules of practice and procedure, see 38 U.S.C. § 7264, such that our holding today is subject to revision, pursuant to the Court’s rule-making authority.

C. Waiver or Forfeiture and Section 7266(a)
Having held that the 120-day period is subject to equitable tolling, we turn to an issue of first impression. Specifically, because the Secretary generally agrees that equitable tolling might be applied in Lopez, presented no objection or comment as to equitable tolling in King, and objected
to equitable tolling in Bove and Rasheed with the understanding at the time that the time to file was jurisdictional, we must address whether tolling the 120-day period remains a matter for the Court to raise sua sponte and whether it is subject to waiver or forfeiture by the appellee. We note that
nonjurisdictional statutory time limitations subject to equitable tolling generally are subject to waiver and forfeiture. See Union Pacific R. Co. v. Bhd. of Locomotive Eng’rs and Trainmen, 130 S. Ct. 584, 596 (2009) (noting that nonjurisdictional rule “is ordinarily ‘forfeited if the party asserting the rule waits too long to raise the point’” (quoting Kontrick v. Ryan, 540 U.S. 443, 456 (2004)); Day v. McDonough, 547 U.S. 198, 202 (2006) (“Ordinarily in civil litigation, a statutory time limitation is
forfeited if not raised in a defendant’s answer or in an amendment thereto [pursuant to the Federal Rules of Civil Procedure]. And we would count it an abuse of discretion to override a State’s deliberate waiver of a limitations defense.”). We further note that whether civil litigation has been
initiated in a timely manner generally is an affirmative defense raised by an opposing party, as opposed to a matter sua sponte raised by the Court. See John R. Sand & Gravel Co. v. U.S., 552 U.S. 130, 133 (2008) (citing the Federal Rules of Civil Procedure and noting that “the law typically treats
a limitations defense as an affirmative defense . . . subject to rules of forfeiture and waiver”); but see Day, 547 U.S. at 202 (holding that a federal court may, “on its own initiative,” dismiss a habeas petition as untimely where the State has miscalculated and not objected to the timeliness of the petition).
However, we do not believe the general rule is for application in appeals to this Court.
Unlike ordinary civil litigation, the appellee in appeals to this Court is always the same person–the Secretary of the Department of Veterans Affairs, who also is barred by statute from initiating an appeal to the Court. 38 U.S.C. § 7252. To hold that the Secretary could affirmatively or by
forfeiture waive the 120-day filing period would cede some control of the Court’s docket to the Secretary and permit arbitrary selection of which veteran’s late filing he finds worthy of waiver, a process devoid of consistency, procedural regularity, and effective judicial review. See Baldwin County Welcome Center v. Brown, 466 U.S. 147, 152 (1984) (“‘[I]n the long run, experience teaches that strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law.’” (quoting Mohasca Corp. v. Silver, 447 U.S. 807, 826(1980))); see also National RR Passenger Corp v. Morgan, 536 U.S. 101, 113 (2002) (“‘Procedural requirements established by Congress for gaining access to the federal courts are not to be disregarded by courts out of a vague sympathy for particular litigants.’” (quoting Baldwin County
Welcome Center, 466 U.S. at 152)). In a very real sense, permitting the Secretary to waive the time to appeal to the Court would give him unwarranted control over any late-filed appeal, a control he
5
otherwise is barred by statute from having. 38 U.S.C. § 7252 (“The Secretary may not seek review of any [Board] decision.”).
In addition, this Court specifically was formed as a federal appellate court–a judicial body independent of the Secretary–in reaction to the previous regime of complete control by the Secretary over the law governing VA benefits. See, e.g., H.R. REP. No. 100-963, at 26 (1988) (“The creation
of [this Court] is intended to provide a more independent review by a body which is not bound by the [Secretary's] view of the law, and that will be more clearly preceived [sic] as one which has as its sole function deciding claims in accordance with the Constitution and the laws of the United
States.”). Permitting this “important procedural rule” to be enforced or waived at the discretion of the Secretary could lead to an appearance for litigants that this Court is not independent, but that the
Secretary remains in control of the litigation.
At a more system-wide level, the Court’s sua sponte consideration of the timeliness of an appeal under section 7266(a) promotes judicial efficiency by encouraging the timely resolution of claims and providing finality to Board decisions within a reasonable time and fairness in application
of the equitable tolling doctrine. In other words, the 120-day judicial appeal period “‘implicat[es] values beyond the concerns of the parties.’” Day, 547 U.S. at 205-06 (quoting Acosta v. Artuz, 221 F.3d 117, 123 (2d Cir. 2000) (“The AEDPA statute of limitation promotes judicial efficiency
and conservation of judicial resources, safeguards the accuracy of state court judgments by requiring resolution of constitutional questions while the record is fresh, and lends finality to state court judgments within a reasonable time.”)); see also John R. Sand, 552 U.S. at 133 (noting that some
statutes of limitations seek “to achieve a broader system-related goal, such as facilitating the administration of claims . . . or promoting judicial efficiency”). As the Federal Circuit has noted:
[I]n order to get its work done, [the Court] must insist on strict compliance with its [R]ules. Violations of [the Rules] . . . are all too frequent. In addition to imposing an unfair burden on opposing parties, violations of our [R]ules also burden the[C]ourt. The [C]ourt must consider a large number of appeals each year. It can only conduct its work fairly and efficiently if counsel cooperate by abiding by the pertinent [R]ules.
In re Violation of Rule 28(c), 388 F.3d 1383, 1385 (Fed. Cir. 2004).
As to the Supreme Court precedents generally allowing waiver, these cases do so in the context of “ordinary civil litigation,” governed by the Federal Rules of Civil Procedure (FRCP). See John R. Sand, 552 U.S. at 133 (noting that “the law typically treats a limitations defense as an affirmative defense . . . subject to rules of forfeiture and waiver,” but citing the FRCP); Day, 547 U.S. at 202 (noting that “[o]rdinarily in civil litigation, a statutory time limitation is forfeited if not raised,” but citing the FRCP). Pursuant to statute, this Court is not governed by the FRCP. See
38 U.S.C. § 7264 (“The proceedings of the Court of Appeals for Veterans Claims shall be conducted in accordance with such rules of practice and procedure as the Court prescribes.”).
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Of particular note, and in contrast to procedures in ordinary civil litigation, our Rules do not envision complaints and answers thereto or affirmative defenses. See U.S. VET. APP. R. 28(outlining requirements for appellate briefing). Moreover, whereas proper dismissal of a case for
untimely filing in ordinary civil litigation puts an end to the matter, in the veteran-friendly claims adjudication process within VA, a claimant may seek (1) reconsideration by the Board at any time(38 U.S.C. § 7103), (2) to reopen his claim based on new and material evidence at any time
(38 U.S.C. § 5108), (3) revision of an adverse decision at any time (38 U.S.C. §§ 5109A and 7111), or (4) equitable relief from the Secretary (38 U.S.C. § 503).
Finally, we note that, in 1994, Congress explicitly amended section 7266 to authorize a notice of appeal as filed on the date it is postmarked by the United States Postal Service. 38 U.S.C. § 7266(c)(2); Pub. L. No. 103-446 (1994); see also Mapu v. Nicholson, 397 F.3d 1375 (Fed. Cir. 2005) (finding that section 7266(c)(2) excludes other common carriers’ postmarks). Such action, in view of section 7264 (granting the Court to authority to promulgate rules of practice and procedure), reasonably reflects that it is the role of Congress and the Court, not the Secretary, to enforce or adjust
the “important procedural rule” prescribed by Congress in section 7266.
Thus, for the reasons stated above, we hold that the 120-day time period in which to file an NOA is not a matter subject to waiver or forfeiture by the Secretary. Moreover, in addition to our holding above that the 120-day period is subject to equitable tolling within the parameters established by Bailey and its progeny, and the precedential decisions of this Court prior to this Court’s Henderson decision, we further hold that this Court has the authority to address untimely filings and equitable tolling sua sponte, and may seek facts outside the record before the Board and independently weigh the facts to determine if equitable tolling is appropriate, in the same manner as the Court previously has considered equitable tolling. See Leonard v. Gober, 223 F.3d 1374, 1376(Fed. Cir. 2000) (acknowledging that determinations on the equitable tolling of section 7266(a)involve fact-finding by this Court, and holding that the Federal Circuit does not have jurisdiction to review such findings); McCreary, 19 Vet.App. at 332-34 (reviewing facts not before the Board to determine whether equitable tolling was appropriate).
Because the 120-day period is not jurisdictional, however, we note that the untimely nature of a filing should be addressed before an appeal is submitted for decision. Cf. Breedlove v. Shinseki, 24 Vet.App. 7, 18 (2010) (noting that a case is submitted for decision “upon completion of the
briefing period”). Thus, while an untimely filing may be raised by the Secretary, it more often, as in the past, is likely to be identified by the Clerk of the Court, after which an appellant will be directed to show cause why the appeal should not be dismissed. See U.S. VET. APP. R. 3(a) (“Failure
to timely file a Notice of Appeal in accordance with law will result in dismissal of the appeal.”); Claiborne v. Nicholson, 19 Vet.App. 181, 182 (2005) (recognizing the practice of the Clerk to order appellants to show cause as to why untimely filed appeals should not be dismissed); see also Bowles, 551 U.S. at 212 n.4 (noting authority of the Clerk of the Supreme Court to actually dismiss untimely filed petitions for certiorari of an individual on death row). Any such appeal will be dismissed in the absence of showing that the untimely appeal warrants equitable tolling or that the appeal should be considered timely because, for example, the presumption of regularity in mailing did not attach
7
to the Board decision or because the presumption was rebutted, thus making the filing timely.

D. The Circumstances in the Consolidated Appeals
1. Bove v. Shinseki
In Bove, the appellant filed an NOA with the RO well within the 120-day period, but the RO forwarded it to the Court after the 120-day period had expired. Pursuant to the equitable tolling principles laid out in Bailey and its progeny, an NOA filed within the 120-day period at the RO warrants equitable tolling. See Santana-Venegas, 314 F.3d at 1298; see also Brandenburg, 371 F.3d at 1364 (accepting NOA submitted to Board within the 120-day appeal period). As such, the appellant’s appeal will be reinstated.
2. Rasheed v. Shinseki
In Rasheed, the appellant asserts that his schizophrenia prevented him from timely filing his NOA and that the notification he received regarding how to appeal was not properly tailored to his circumstances. Specifically relying on the Federal Circuit’s decision in Barrett, 363 F.3d at 1316, the appellant argued that he “is similarly situated to the Veteran in Barrett.” Jan. 11, 2010, Appellant’s Response to Court’s Order and Appellee’s Motion to Dismiss at 2.
Pursuant to the Federal Circuit’s decision in Barrett, equitable tolling may be warranted if an untimely filing “was the direct result of a mental illness that rendered [a claimant] incapable of
rational thought or deliberate decision making, or incapable of handling [a claimant's] own affairs or unable to function in society.” Barrett, 363 F.3d at 1321 (internal quotations omitted). Moreover, when represented by counsel, as is the case here, the appellant “must make an additional showing
that the mental illness impaired the attorney-client relationship.” Id. In contrast to what is required to warrant equitable tolling, however, the appellant presents only bald assertions that his mental illness prevented him from filing his appeal, without any supporting evidence to demonstrate that he was incapable of functioning or making decisions due to mental illness, that his mental illness prevented him from filing his appeal or seeking the assistance of counsel, or that his mental disabilities were related directly to his untimely filing.
Further, in support of his assertion that his appellate notice rights were inadequate because they were not tailored to his circumstances, the appellant relies on Vasquez-Flores v. Peake, 22 Vet.App. 37 (2008). However, Vasquez-Flores addressed the notice required by 38 U.S.C. § 5103 with regard to substantiating a claim and is inapposite with regard to notice addressing how to appeal a Board decision. Moreover, the specificity requirement recognized in this Court’s decision in Vasquez-Flores was rejected subsequently by the Federal Circuit. Vasquez-Flores v. Shinseki,
580 F.3d 1270 (Fed. Cir. 2009). In sum, the appellant fails to demonstrate that equitable tolling of the time to file his appeal is warranted, and his appeal will be dismissed.
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3. Lopez v. Shinseki
In Lopez, the date of the mailing of the appellant’s Board decision was February 25, 2010,
such that the final day for appealing that decision pursuant to section 7266(a) was Friday, June 25,
2010. The appellant’s NOA was filed by his counsel and docketed by the Clerk of the Court as filed on Monday, June 28, 2010. Responding to the Court’s order to show cause why his appeal should not be dismissed, the appellant does not dispute that he failed to file the NOA within the 120-day
judicial-appeal period and requests that this Court equitably toll the filing deadline because he suffers from psychiatric disabilities that, he asserts, prevented him from timely filing his NOA. His assertion is supplemented by a letter from his treating psychiatrist, which states, inter alia, that (1) the appellant currently is diagnosed with avoidant personality disorder, major depressive disorder, obsessive compulsive disorder, and dependent personality disorder, (2) the appellant has “difficulty
in making every day decisions without an excessive amount of advice and reassurance from others,”
and (3) the appellant’s disorders “caused him to over-think and procrastinate until this deadline was
passed.” October 21, 2010, Response to Court Order at 4-5.
The Secretary generally agrees that equitable tolling might be appropriate in this instance. See April 1, 2011, Secretary’s Response at 10 (noting that this evidence “may be viewed as satisfying the Barrett test”). As stated above, however, the Barrett test requires a veteran to show that (1) “the
failure to file was the direct result of a mental illness that rendered him incapable of rational thought or deliberate decision making, or incapable of handling his own affairs or unable to function in society,” and, when represented by counsel, that (2) “the mental illness impaired the attorney-client relationship.” Barrett, 363 F.3d at 1321 (internal quotations omitted) (emphasis added). Notably, in Claiborne v. Nicholson, 19 Vet.App. 181, 187 (2005), this Court found that a physician’s letters explaining, inter alia, that the claimant had a “severely impaired” ability to handle his own affairs did not meet Barrett’s “high standard” for equitable tolling. Here, similar to Claiborne, the evidence does not demonstrate an incapability of functioning or decision making due to mental illness or an
impairment in seeking the assistance of counsel, but rather a procrastination or difficulty in making decisions due to mental illness. As such, the evidence on its face does not meet the Barrett test.
Nevertheless, in review of the actual filing in this case, we note that–although docketed by
the Clerk as filed on June 28, 2010–the NOA was attached to an e-mail sent on June 25, 2010. See E-Rule 2(c) (“For documents initiating a case . . . , such documents may also be filed by electronically attaching the document to an email sent to esubmission@uscourts.cavc.gov.”).
Although this e-mail (with attached NOA) was sent after the close of normal business hours on June 25, it was sent before midnight Eastern Time, such that this Court’s Rules of Practice and Procedure and E-Rules deem the NOA filed on June 25. See E-Rule 5(c) (“To be timely filed on a specific date,
electronic filing must be completed before midnight Eastern Time . . . .”); see also Rule 25(b)(3)
(“The Clerk shall use the actual date of receipt [of the e-mail] for filing purposes”). Further, although this e-mail was sent to an incorrect e-mail address at the Court (i.e., to efiling@uscourts.cavc.gov, rather than esubmission@uscourts.cavc.gov), we hold that the appellant substantially complied with E-Rule 2(c). To the extent that there is any lack of clarity in our Rules or there has been any confusion on this issue, our holding today clarifies the matter. Accordingly, we find that the appellant’s NOA was timely filed on June 25, 2010, and his appeal will be accepted.
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4. King v. Shinseki
In King, the appellant filed an NOA with the RO well within the 120-day period, but the RO forwarded it to the Court after the 120-day period had expired. As previously stated, an NOA filed within the 120-day period at the RO warrants equitable tolling. See Santana-Venegas, supra. As such, the appellant’s motion for reconsideration will be granted, the Court’s February 3, 2011, order dismissing the appeal will be revoked, and the appellant’s appeal will be reinstated.

II. CONCLUSION
For the reasons stated above, the Court holds that the 120-day filing period in section 7266(a) is subject to equitable tolling within the parameters established by Bailey and its progeny, and the precedential decisions of this Court prior to this Court’s Henderson decision, but that it is not subject to waiver or forfeiture by the Secretary.
Upon consideration of the foregoing, it is
ORDERED, sua sponte, that the above-captioned cases are consolidated for the sole purpose
of addressing whether the 120-day filing period is subject to equitable tolling, and, if so, whether the
circumstances in each case warrant equitable tolling. It is further
ORDERED that the appeal in Bove, No. 08-1468, is reinstated, and the Secretary’s July 23,
2008, motion to dismiss this appeal is denied. It is further
ORDERED that the Secretary, not later than 30 days after the date of this order, shall file a
notice certifying that the appellant in Bove was served with a copy of the record before the agency
(RBA), U.S. VET. APP. R. 10(a). It is further
ORDERED that, if any dispute arises as to the preparation or content of the RBA, the
appellant in Bove, not later than 14 days after service of the RBA, shall file an appropriate motion
with the Court, U.S. VET. APP. R. 10(b). It is further
ORDERED that the appeal in Rasheed, No. 09-3758, is DISMISSED for untimely filing.
It is further
ORDERED that the Secretary, not later than 30 days after the date of this order, shall file a
notice certifying that the appellant in Lopez, No. 10-2139, was served with a copy of the RBA. It
is further
ORDERED that, if there is any dispute as to the preparation or content of the RBA, the
appellant in Lopez, not later than 14 days after service of the RBA, shall file an appropriate motion
with the Court. It is further
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ORDERED that the appellant’s motion for reconsideration in King, No. 10-2622, is granted, and the February 3, 2011, order dismissing the appeal is revoked. It is further
ORDERED that, if there is any dispute as to the preparation or content of the RBA, the appellant in King, not later than 14 days after the date of this order, shall file an appropriate motion
with the Court.
DATED: December 20, 2011 PER CURIAM.
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Concurring opinion:
“Once we remove the Board’s speculative determinations concerning the timing of the preparation of the report and consider the evidence in the record, it is clear that the Board erred when it found that the benefit of the doubt was “not implicated.” This is precisely the scenario in which the determination as to when the report was prepared is “too close to call” and the benefit
27
of the doubt should have been afforded to the appellant. See Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001) (“[T]he benefit of the doubt rule may be viewed as shifting the ‘risk of nonpersuasion’ onto the VA to prove that the veteran is not entitled to benefits.”).

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

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-3386
MARGREIT CASTELLANO, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans’ Appeals
(Argued June 28, 2011 Decided December 22, 2011)
Norton Cutler and Michael Sink, of Denver, Colorado, for the appellant.
Mark D. Vichich, with whom Will A. Gunn, General Counsel; R. Randall Campbell, Assistant General Counsel; and David L. Quinn, Deputy Assistant General Counsel, were on the brief, all of Washington, D.C., for the appellee.

Before KASOLD, Chief Judge, and DAVIS and SCHOELEN, Judges.
KASOLD, Chief Judge, filed the opinion of the Court. SCHOELEN, Judge, filed a
concurring opinion.

KASOLD, Chief Judge: Margreit Castellano, surviving spouse of veteran Frederick C. Castellano, appeals through counsel that part of a July 7, 2009, decision of the Board of Veterans’ Appeals (Board) that denied entitlement to (1) service connection for bipolar disorder, (2) service connection for Alzheimer’s disease, (3) special monthly compensation (SMC)
pursuant to 38 U.S.C. § 1114(s), and (4) a total disability rating based on individual unemployability (TDIU). Mrs. Castellano contends that the Board erred (1) in finding that a June 26, 2000, VA medical report and private nursing home records were not to be considered evidence in Mr. Castellano’s claims file at the date of his death, (2) by not considering her arguments on remand, as evidenced by the Board’s reissuing, in large part, the same statement of reasons or bases issued in a previous Board decision that had been remanded by the Court, and (3) in denying her claims. The Secretary disputes these arguments.
For the reasons stated herein, we hold that (1) at the time Mrs. Castellano filed her claim, the Secretary authorized, inter alia, “[r]eports of hospitalization, treatment or examinations authorized by VA” to be deemed included in the file at the date of the veteran’s death “even if such reports are not reduced to writing or are not physically placed in file until after death,” VA ADJUDICATION PROCEDURES MANUAL M21-1 (M21-1), pt. VI, para. 5.06(c) (May 8, 2000), (2)this deemed inclusion was a substantive right that could not be eliminated except in accordance with law, (3) this substantive right was not eliminated properly until after Mrs. Castellano filed her claim and that change did not operate retroactively, and (4) Mrs. Castellano was entitled to the benefit of this right. We also hold, inter alia, that – although the Board is not per se prohibited from relying on many of the same reasons or bases supporting a previous Board decision that addressed the same matters but had been remanded for further adjudication – a
Board decision on appeal nevertheless must stand on its own statement of reasons or bases(whether reiterating what had been stated in a previous Board decision or not) and otherwise adequately address the issues raised below. Given these holdings and based on the record on appeal and applicable law, that part of the Board decision on appeal will be set aside and the matters remanded for further adjudication consistent with this decision.

I. FACTS
Mr. Castellano served on active duty from April 1943 to October 1944. In October 1944, he was granted service connection for his mental condition, labeled at that time as “psychoneurosis.” Record (R.) at 4196. Over time, Mr. Castellano’s condition was labeled variously, including “personality disorder,” “post-traumatic stress disorder” (PTSD), “mixed depression and anxiety with psychotic symptoms,” “bipolar disorder,” and “anxiety reaction.” In the 1990s, Mr. Castellano also was diagnosed with Alzheimer’s disease (also referred to in the record as “dementia” 1). On May 18, 2000, Mr. Castellano died. At the time of his death, he had pending adjudication an increased-rating claim for anxiety reaction (the regional office’s (RO’s)
1 “Alzheimer disease (dementia)” is defined as “a general loss of cognitive abilities, including impairment of memory,
as well as . . . disturbed planning, organizing, and abstract thinking abilities.” DORLAND’S ILLUSTRATED MEDICAL
DICTIONARY 57, 492 (31st ed. 2007).
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label for the psychoneurosis condition) and a claim for disability compensation for Alzheimer’s
disease, SMC, TDIU, and a psychiatric disorder other than anxiety reaction.
Mrs. Castellano filed an accrued benefits claim on June 29, 2000. Her claim was denied
in a September 2005 Board decision, but Mrs. Castellano appealed. Pursuant to a joint motion
for remand (JMR), her claim was remanded for further adjudication of all matters except
entitlement to accrued benefits for her husband’s claim for increased benefits for serviceconnected
anxiety reaction, which Mrs. Castellano explicitly abandoned. Her claim was denied
again in a December 2007 Board decision, but subsequently remanded by the Court pursuant to
another JMR. The 2009 Board decision here on appeal, inter alia, (1) found that a June 26, 2000,
VA medical report of treatment or examination was prepared after Mr. Castellano’s death and
therefore could not be deemed in his file at the date of his death, (2) noted that private nursing
home records also could not be considered in his file at the date of his death, and (3) maintained
its denial of benefits for bipolar disorder, Alzheimer’s disease, SMC and TDIU, reiterating many
of the same reasons or bases supporting the December 2007 Board decision that had been remanded for further adjudication. This appeal followed.

II. PARTIES’ ARGUMENTS
On appeal, Mrs. Castellano argues that the June 26, 2000, VA medical opinion and private nursing home records should have been deemed by the Board to be in Mr. Castellano’s claims file at the date of his death, pursuant to provisions in the 1992 M21-1 that she asserts were declared substantive law by Hayes v. Brown, 4 Vet.App. 353, 360 (1993). She also argues that the 2009 Board decision on appeal (1) failed to address her arguments on remand and
reprinted its statement of reasons or bases from a previous decision, therefore violating its Stegall duty to readjudicate the matters remanded, see Stegall v. West, 11 Vet.App. 268, 271 (1998), (2) erred in not applying the benefit of the doubt and finding Mr. Castellano’s Alzheimer’s disease not aggravated by his service-connected anxiety disorder, (3) erred in not
applying the benefit of the doubt and finding that Mr. Castellano had no bipolar disorder, and (4) erred in denying SMC and TDIU, which are inextricably intertwined with the other matters.
The Secretary contends that the M21-1 provisions relied on by Mrs. Castellano were revised on May 8, 2000, prior to her claim, and that she therefore was not entitled to the
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application of the prior version. Moreover, he argues that the Board plausibly determined that the June 26, 2000, VA medical opinion was prepared after Mr. Castellano’s death, and therefore was not constructively in the file at the date of his death. As to Mrs. Castellano’s other issues,
the Secretary argues that (1) Mrs. Castellano has failed to demonstrate the relevancy of the private nursing home records, (2) the Board substantially complied with its remand duties under Stegall, and (3) the Board plausibly rendered findings on Alzheimer’s disease, bipolar disorder, SMC, and TDIU.

III. DISCUSSION
A. Evidence in the File at Date of Death
As discussed below, we agree with Mrs. Castellano that (1) at the time of her claim, the Secretary authorized certain documents to be deemed in the file at the date of the veteran’s death, and (2) she is entitled to the benefit of that authorization. 1. APA and the M21-1 Generally
The Administrative Procedure Act (APA) mandates that Federal agencies publish their substantive rules, and amendments thereof, in the Federal Register, to provide notice to affected citizens and the opportunity to comment. See 5 U.S.C. §§ 552, 553; Morton v. Ruiz, 415 U.S. 199, 232 (1974) (APA provides that “administrative policies affecting individual rights and
obligations be promulgated pursuant to certain stated procedures so as to avoid the inherently arbitrary nature of unpublished ad hoc determinations”). Although it was VA policy to comply voluntarily with the APA since 1972, VA was not otherwise required by law to comply with the
APA until the Veterans’ Judicial Review Act (VJRA) became effective in September 1, 1989.
Compare Administrative Procedure Act, Pub. L. No. 89-554 (1966) (excluding matters relating to “benefits” from the APA), with Veterans’ Judicial Review Act, Pub. L. No. 100-687 (1988)(subjecting VA to the APA); see also 38 C.F.R. § 1.12 (1972) (“It is the policy of the Department of Veterans Affairs to afford the public general notice, published in the Federal
Register, of proposed regulatory development, and an opportunity to participate in the regulatory development in accordance with the provisions of the Administrative Procedure Act (APA). All written comments received will be available for public inspection.”)). Thus, until passage of the
VJRA, VA rules and regulations lived in “splendid isolation,” generally unconstrained by
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judicial review. Brown v. Gardner, 513 U.S. 115, 122 (1994); see Pub. L. 100-687 (permitting judicial review by this Court and the U.S. Court of Appeals for the Federal Circuit (Federal Circuit)).
Given this unique history, it is not a surprise that substantive rules promulgated before the APA might be contained in the M21-1 or a directive, letter, or other document. See Buzinski v. Brown, 6 Vet.App. 360, 369 (1994) (noting that Rank v. Nimmo, 677 F.2d 692, 698 (9th Cir. 1982), held that “VA handbooks, circulars, and manuals” may have the “force and effect of law”
if they prescribe substantive rules); Fugere v. Derwinski, 1 Vet.App. 103, 107 (1990) (the placement of a rule “in a procedural manual cannot disguise its true nature as a substantive rule”), aff’d, 972 F.2d 331 (Fed. Cir. 1992).
Moreover, substantive rules promulgated prior to the statutory requirement that VA comply with the APA remain binding on the Secretary until they properly are revoked or amended. See Fugere, 1 Vet.App. at 110 (noting that a substantive rule may not be rescinded until the Secretary has “‘published notice of his intention to rescind it, invited comment, put that comment . . . on the public record, and published a reasoned and reviewable explanation of his decision to rescind [it].’” (quoting Nat’l Wildlife Fed’n v. Watt, 571 F. Supp. 1145, 1156 (D.D.C. 1983))). This is consistent with procedural regularity and basic fair play required in adjudicating veterans’ claims. See Thurber v. Brown, 5 Vet.App. 119, 123 (1993) (holding that veterans in
particular are entitled to “procedural regularity and basic fair play” in the adjudication of their claims); Fugere, 1 Vet.App. at 108 (“‘Where the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures.” (quoting Morton, 415 U.S. at 235)).2
We also have held 2 that substantive procedural provisions favorable to a veteran and contained outside the Code of
Federal Regulations are binding on the Secretary even if promulgated after VA was required by law to comply with the APA. See McCormick v. Gober, 14 Vet.App. 39, 49 (2000) (requiring the Secretary to request copies of SMRs and VA medical records pursuant to the substantive “VBA Letter Immediate Development provisions” from 1999); Patton v. West, 12 Vet.App. 272, 282 (1999) (stating that the Board “cannot ignore provisions of the Manual M21-1 . . . that are favorable to a veteran” and applying an altered substantive manual provision from 1997). These holdings similarly stem from the fair process notion that the Secretary must adhere to his own policies when adjudicating veterans’ claims. See Morton, 415 U.S. at 235 (“Where the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures. This is so even where the internal procedures are possibly more rigorous than otherwise would be required.”); Thurber, supra; but see Guerra v. Shinseki, 642 F.3d 1046, 1050-51 (Fed. Cir. 2011) (acknowledging Secretary’s position that the M21-1 is primarily “‘an internal manual used to convey guidance to VA adjudicators [and]
not intended to establish substantive rules beyond those contained in statutes and regulations.’” (quoting 72 Fed. Reg. 66,218 (Nov. 27, 2007)); Haas v. Peake, 525 F.3d 1168, 1197 (Fed. Cir. 2008) (same); Fournier v. Shinseki, 23 Vet.App. 480, 487-88 (2010) (same).
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Of course, it is now clear that a properly promulgated regulation trumps an M21-1 provision or other VA directive that plainly is erroneous or inconsistent with regulation.
Compare Smith v. Shinseki, 647 F.3d 1380, 1385 (Fed. Cir. 2011) (“VA interpretations of its own regulations in its Adjudication Procedures Manual [M21-1] are ‘controlling’ as long as they are not ‘plainly erroneous or inconsistent with the regulation.’” (citing Thun v. Shinseki, 572 F.3d
1366, 1369 (Fed. Cir. 2009) (quoting Auer v. Robbins, 519 U.S. 452, 461 (1997)))), Haas, 525 F.3d at 1197 (holding that an M21-1 inconsistent with regulation confers no rights on claimant), and Fournier, 23 Vet.App. at 487-88 (discussing Haas), with Cohen v. Brown, 10 Vet.App. 128, 139 (1997) (“Where the Manual M21-1 and the regulation overlap, the Manual M21-1 is irrelevant . . . . except where the Manual M21-1 is more favorable to the claimant.”).

2. Applicable Substantive Law
a. VA-Authorized Reports of Treatment At the time Mrs. Castellano filed her claim for accrued benefits on June 29, 2000, the law generally restricted the evidence that could be considered when adjudicating an accrued benefits
claim to that which was “in the [veteran's] file at date of death.” 38 U.S.C. § 5121. Exercising his authority to promulgate rules appropriate to carrying out the law, however, the Secretary authorized “[r]eports of hospitalization, treatment or examinations authorized by VA”
[hereinafter "VA-authorized reports of treatment"] to be deemed in the file at date of death “even if such reports are not reduced to writing or are not physically placed in file until after death.”3 M21-1, pt. VI, para. 5.25(a) (Sept. 21, 1992). This authorization dates back to at least 1985, before mandatory compliance with the APA. See M21-1, para. 56.24 (Sept. 5, 1985) (“Evidence ‘in file’ will be interpreted to include the following even if such reports are not reduced to writing or are not physically placed in file until after death: . . . Reports of hospitalization, treatment or examinations authorized by the VA.”).
In Hayes, this Court (1) recognized some confusion with the full scope of section 5121 as it related to evidence in the file at date of death, and (2) noted that “the Secretary has wide latitude in establishing departmental policy as to what post-date-of-death evidence may be
3 This provision also authorized service department records, reports of VA hospitalization, reports of treatment or examinations in VA medical centers including those in outpatient treatment folders, and reports of autopsy made by VA on the date of death to be deemed included in the file at date of death. M21-1, pt. VI, para. 5.25(a) (Sept. 21, 1992).
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considered.” 4 Vet.App. at 360; see also Hyatt v. Shinseki, 566 F.3d 1364, 1370 (Fed. Cir. 2009)(noting that the decision in Hayes, supra, rested on a “perceived conflict between subsections (a) and (c) of § 5121,” but that the perceived conflict was resolved with an amended regulation promulgated in November 2002). The Court also discussed regulatory § 3.1000(d)(4) and noted
that this section applied “only to evidence in the file at date of death and the death certificate and, does not, by its terms, contemplate the submission of any other post-death evidence.” 4 Vet.App. at 358-59. The Court concluded that, “[t]o the extent that the[] Manual provisions
affect what post-date-of-death evidence may be considered, they have the force of law as they affect a substantive right.” 4 Vet.App. at 360 (quoting Fugere, 1 Vet.App. at 107) (internal quotation marks omitted). The Court also noted that the Secretary might consider clarifying his policy with regard to what evidence submitted after death could be considered when adjudicating an accrued benefits claim.
Although the M21-1 was changed on May 8, 2000 (prior to the date Mrs. Castellano filed her claim), the changes made with regard to VA-authorized reports of treatment being deemed
included in the file at date of death were cosmetic, such that notice and comment were not required. See Fugere, 1 Vet.App. at 110.4 As illustrated below, this language was moved to paragraph 5.06(c), with only a redundant phrase being removed. Specifically, the phrase “reports of treatment or examinations in VA medical centers including those in outpatient
treatment folders,” was removed; it was redundant with the language authorizing VA reports of treatment or examination to be deemed included in the file at the date of death. Compare M21-1, pt. VI, para. 5.25(a) (Sept. 21, 1992) (emphasis added), to wit:
a. Evidence in File at Date of Death. Evidence ‘in file’ includes the
following, even if such reports are not reduced to writing or are not
physically placed in file until after death: (1) Service department records;
(2) Reports of VA hospitalization; (3) Reports of treatment or
examinations in VA medical center including those in outpatient treatment
folders; (4) Reports of hospitalization, treatment, or examinations
authorized by VA[;] and (5) Reports of autopsy made by VA on the date
of death,
4 The Secretary ultimately promulgated a regulation that limited the evidence that could be included in the file at date of death to documents already in VA’s possession, but he did not do this until November 27, 2002, well after Mrs. Castellano submitted her claim. See Evidence for Accrued Benefits, 67 Fed. Reg. 65,707 (Oct. 28, 2002); see also section III.A.3, infra.
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with M21-1, pt. VI, para. 5.06(c) (May 8, 2000), to wit:
c. Evidence in File at Date of Death. . . . Evidence ‘in file’ includes the
following, even if such reports are not reduced to writing or are not
physically placed in file until after death: (1) Service department records;
(2) Reports of VA hospitalization; (3) Reports of hospitalization,
treatment, or examinations authorized by VA; and (4) Reports of autopsy
made by VA on the date of death.
Accordingly, at the time Mrs. Castellano filed her claim, (1) the Secretary deemed VA authorized reports of treatment to be included in Mr. Castellano’s claims file at the date of his death, (2) this deemed inclusion was a substantive rule promulgated prior to the APA and pursuant to the Secretary’s statutory authority to promulgate rules, and (3) Mrs. Castellano was entitled to the benefit of this substantive rule.
b. Evidence Identifying, Verifying, or Corroborating the Death Certificate 5
In contrast to the May 2000 cosmetic changes made to paragraph 5.25(a) of the 1992 M21-1, paragraph 5.25(b) of the 1992 M21-1 underwent substantive change. Specifically, paragraph 5.25(b) was altered by narrowing the type of evidence accepted from that which corroborated any evidence in the file to that which corroborated the death certificate. Compare M21-1, pt. VI, para. 5.25(b) (Sept. 21, 1992) (emphasis added), to wit:
b. Evidence Essentially Complete. The provisions of 38 CFR
3.1000(d)(4) . . . provide for the acceptance of evidence after death for
verifying or corroborating evidence ‘in file’ at death,
with M21-1, pt. VI, para. 5.06(d) (May 8, 2000) (emphasis added), to wit:
c. Evidence Essentially Complete. The provisions of 38 CFR
3.1000(d)(4) . . . provide[s] for acceptance of evidence (including
uncertified statements) when considered in connection with the
identifying, verifying, or corroborative effect of the death certificate.
Although our co 5 ncurring colleague questions the propriety and necessity of our addressing paragraph 5.25(b) of the 1992 M21-1 and its successor paragraph 5.06(d) of the 2000 M21-1 in this case, we note that Mrs. Castellano raised the applicability of these provisions by arguing that the postdeath evidence she submitted should be considered under paragraph 5.25(b) of the 1992 M21-1. See Appellant’s Brief at 11-12 (noting that the doctor’s report serves to “corroborate and verify information in [Mr. Castellano's] file at the date of his death,” citing Hayes’s discussion of
paragraph 5.25(b), and arguing that the nursing home records should also be considered part of the file). Moreover, this discussion illuminates the correct substantive law to be applied in further proceedings, given that, as we note infra at section III.A.3.b, Mrs. Castellano may present on remand evidence and argument in support of her position that the nursing home records should be considered in her claim pursuant to paragraph 5.06(d).
8
Although this was a substantive change, we note that – in contrast to paragraph 5.25(a), which makes no reference to a regulation or otherwise purports to be interpreting a regulation, see 67 Fed. Reg. 9,638 (Mar. 4, 2002) (proposed rule to amend § 3.1000(d)(4)) (noting that regulations prior “do not define the term ‘evidence in the file’”) – paragraph 5.25(b) explicitly purported to be implementing regulatory § 3.1000(d)(4), as did its successor provision of the M21-1, paragraph 5.06(d). Significantly, on its face, paragraph 5.25(b) plainly was inconsistent with § 3.1000(d)(4), which provided only for the acceptance of evidence for “identifying,
verifying, or corroborative effect of the death certificate” (emphasis added), since at least 1972.
Thus, the changes made in 2000 actually brought the language of paragraph 5.25(b) into conformance with regulatory § 3.1000(d)(4), the regulation that it explicitly purported to be implementing.
Also of significance, the Court in Hayes never explicitly found the provisions of paragraph 5.25(b) to be substantive; rather, as noted above, the Court generally held that “[t]o the extent that these Manual provisions affect what post-date-of-death evidence may be considered, they have the force of law as they affect a substantive right.” 4 Vet.App. at 360
(quoting Fugere, 1 Vet.App. at 107) (internal quotation marks omitted). Although the Court noted that paragraph 5.25(b) cited regulatory § 3.1000(d)(4), it never addressed whether paragraph 5.25(b) of the M21-1 could stand in direct contravention of the very regulation on which it purportedly rested.
Moreover, to the extent there may have been any understanding at the time Hayes issued that the M21-1 could trump a regulation that it purports to explain, it has been clarified that a properly promulgated regulation trumps an M21-1 provision or other VA directive that plainly is erroneous or inconsistent with regulation. See Smith, Haas, and Fournier, all supra.6 As such,
6 Our concurring colleague takes issue with our interpretation of Smith, Haas, and Fournier. However, Smith states clearly that “VA interpretations of its own regulations in its Adjudication Procedures Manual [M21-1] are ‘controlling’ as long as they are not ‘plainly erroneous or inconsistent with the regulation,’” 647 F.3d at 1385, and paragraph 5.25(b)clearly is an interpretation of regulation that plainly is inconsistent with that regulation. Similarly, in Haas, the Federal Circuit held that an M21-1 provision inconsistent with a regulation did “not confer any rights” on Mr. Haas because the Secretary’s regulation was clear. 525 F.3d at at 1197; see also Fournier, 23 Vet.App. at 487 (“[Haas] indicated that when the Agency’s interpretation of a statute is clear from existing regulations, any discrepancy between M21-1 and the regulations ‘does not confer any rights’ on a claimant.”). Here, § 3.1000(d)(4) clearly provided for accepting evidence for the “corroborative effect of the death certificate,” and paragraph 5.25(b) plainly was inconsistent with that language.
Moreover, although our concurring colleague attempts to distinguish Haas by noting that the change in regulation in Haas postdated the M21-1 provision, Haas emphasized the regulation’s clarity, not the regulation’s date, as the key component in finding the M21-1 provision not binding. See 525 F.3d at 1197.
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we conclude that Mrs. Castellano cannot rely on paragraph 5.25(b) of the 1992 M21-1 because it (1) plainly was inconsistent with the regulation that it purported to explain and (2) it was modified to comport with the regulation at the time she filed her claim. Therefore, paragraph
5.06(d) of the May 8, 2000, M21-1, not paragraph 5.25(b) of the 1992 M21-1, applies to Mrs. Castellano’s claim.
3. The Board’s Application of the Substantive Law
a. June 2000 VA Medical Report In the decision on appeal, the Board found that the June 2000 VA medical report was not requested until after Mr. Castellano’s death, was not prepared until after Mr. Castellano’s death,
and therefore could not be considered in the adjudication of Mrs. Castellano’s accrued benefits
claim. In its discussion, the Board referenced both paragraph 5.06(c) of the May 8, 2000, M21-
1, as well as the current version of 38 C.F.R. § 3.1000(d)(4) (2011), which was not in effect at
the time Mrs. Castellano filed her claim.
(1) Application of Paragraph 5.06(c) of the May 8, 2000, M21-1
In its application of paragraph 5.06(c), the Board clearly erred in finding that the June
2000 VA medical report did not constitute a VA-authorized report of treatment deemed included
in the file at the date of death. See Butts v. Brown, 5 Vet.App. 532, 534 (1993) (en banc) (Court
reviews findings of fact under the “clearly erroneous” standard); Gilbert v. Derwinski,
1 Vet.App. 49, 52 (1990) (“‘A finding is “clearly erroneous” when . . . the reviewing court on the
entire evidence is left with the definite and firm conviction that a mistake has been committed.’”
(quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948))). There is no dispute on
appeal that this report was authorized by VA; indeed, this was conceded at oral argument. It also
is undisputed that the report reflects the VA doctor’s treatment and examination assessment of
the disabilities from which Mr. Castellano suffered before he died, and provides an opinion of
the etiology of his disabilities, such that it constitutes a report of treatment.
Although the Board found that the report was both requested and prepared after death,
nothing in paragraph 5.06(c) (or its predecessor, paragraph 5.25(b) of the 1992 M21-1) supports
a conclusion that such factors are a basis for excluding the report from being deemed in the file
at date of death. At the time of Mrs. Castellano’s claim, paragraph 5.06(c)’s sole requirements
for the document to be deemed included in the file at date of death were that the document was
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(1) a report of treatment, (2) authorized by the VA, and (3) reduced to writing. The provision
did not mandate that the report be requested or prepared before death.
Moreover, although the Secretary argues that a doctor’s unrecorded thoughts on the date
of a veteran’s death cannot constitute a report in the file at date of death, the Secretary’s argument
is a red herring. The substantive law at the time Mrs. Castellano filed her claim did not address a
doctor’s unrecorded thoughts and the state of a potential report at the time of death. Rather, the
substantive law permitted a VA-authorized report of treatment – no matter what form it took at
the moment of the veteran’s death – to be deemed included in the file once reduced to writing
after death. This is the case here 7 with the June 2000 report of treatment, which, although not
recorded until after the death of Mr. Castellano, was authorized by the Secretary to be written,
and therefore authorized by the Secretary to be deemed in the file at the date of Mr. Castellano’s
death.
(2) Application of § 3.1000(d)(4) (2011)
In rendering its decision, the Board also applied § 3.1000(d)(4) (2011).8 This application
was in error, however, because the regulation was not intended to be retroactive and its
retroactive application has an impermissible retroactive effect. See 38 U.S.C. § 7261(a)(3)
(Court shall hold unlawful conclusions of Board “not in accordance with law”). The current
version of § 3.1000(d)(4) was promulgated on November 27, 2002 – more than two years after
Mrs. Castellano filed her claim – and limits evidence in the file at date of death to that which
was in VA’s possession, to wit:
7 Our concurring colleague argues that this “holding appears to permit a VA report of treatment, that is requested and
written many years after a veteran’s death, to be deemed evidence in the file at the date of death.” Post at 25. Our
holding, however, simply restates what the Secretary authorized in paragraph 5.25(a) of the 1992 M21-1 (and its
cosmetically changed version, paragraph 5.06(c) of the 2000 M21-1), to wit: if he authorizes VA to prepare a post-dateof-
death medical report, it will be deemed in the file at the date of death. We further note that as of November 27, 2002,
the Secretary promulgated a regulation limiting the evidence deemed in the file at the date of death to that “in VA’s
possession on or before the date of the beneficiary’s death” (38 C.F.R. s 3.1000(d)(4) (2002); see 67 Fed. Reg. 65,707
(Oct. 28, 2002)), such that VA reports requested or written after death are no longer deemed part of the file on the date
of death for accrued benefits claims.
8 Although our concurring colleague states that our analysis of the retroactive application of § 3.1000(d)(4) (2011) is
unnecessary because “the Secretary has not maintained that the regulation applies retroactively,” Post at 28, we note that
he also has not maintained that it is not retroactive. Further, our review is of Board decisions, and the Board applied the
regulation retroactively and considered it as a basis for not deeming the submitted evidence in the file at date of death
(see R. at 11 (concluding that the “psychiatrist’s report was not ‘in VA’s possession on or before the date of the
beneficiary’s death’” (quoting § 3.1000(d)(4) (2011))). See 38 U.S.C. § 7252; see also 38 U.S.C. § 7261(a)(3) (Court
shall hold unlawful conclusions of Board “not in accordance with law”).
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Evidence in the file at date of death means evidence in VA’s
possession on or before the date of the beneficiary’s death, even if
such evidence was not physically located in the VA claims folder
on or before the date of death.
Although there is no dispute that this regulation applies to all claims filed after November 27,
2002, see Hyatt, supra, applying the amended version of a regulation to an already pending
claim is not “favored in the law” unless the Secretary expressly intends it to govern pending or
prior claims, Rodriguez v. Peake, 511 F.3d 1147, 1152 (Fed. Cir. 2008) (quoting Landgraf v. USI
Film Prods., 511 U.S. 244, 246 (1994)); see Princess Cruises, Inc. v. United States, 397 F.3d
1358, 1362 (Fed. Cir. 2005) (“‘[C]ongressional enactments and administrative rules will not be
construed to have retroactive effect unless their language requires this result.’” (quoting Bowen v.
Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988))); Ervin v. Shinseki, 24 Vet.App. 318, 323
(2011) (applying amended regulation to pending claim when Secretary’s express intent was
clear).
With regard to any intention by the Secretary to apply this amendment retroactively to
claims pending at the time the regulation was promulgated, none is evident in the promulgating
documents or elsewhere, see 67 Fed. Reg. 9,638 (Mar. 4, 2002) (proposed rule to amend
§ 3.1000(d)(4) and remove provisions of VA Manual M21-1 inconsistent with amended
§ 3.1000(d)(4)); Evidence for Accrued Benefits, 67 Fed. Reg. 65,707 (Oct. 28, 2002) (final rule
amending 38 C.F.R. § 3.1000(d)(4) and noting no comments submitted during notice-andcomment
period), and the Secretary makes no such argument on appeal.
To determine whether a regulation has an impermissible retroactive effect, we look to (1)
the nature and extent of the change of the law, (2) the degree of connection between the
operation of the new rule and a relevant past event, and (3) familiar considerations of fair notice,
reasonable reliance, and settled expectations. Rodriguez, 511 F.3d at 1153 (citing Princess
Cruises, 397 F.3d at 1362-63). Moreover, in the context of veterans claims and benefits, our
analysis is guided by the dictates of fair process. See Thurber, 5 Vet.App. at 123.
Evaluating the Princess Cruises factors, we conclude that applying amended regulatory
§ 3.1000(d)(4) in this instance has an impermissible retroactive effect. First, the extent of the
change in the law is significant. As discussed above, previous to November 27, 2002, the
substantive law regarding evidence in the file at date of death permitted VA-authorized reports
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of treatment reduced to writing after death nevertheless to be deemed included in the file at date
of death. This entitlement was eliminated by the 2002 amendment to § 3.1000(d)(4) (2002),
limiting the evidence deemed included in the file at date of death to that which was in VA’s
possession at date of death. Apparent on its face, and as recognized by the Secretary when
promulgating the regulation in 2002, the amendment effected a change in a longstanding policy,
rather than explain or clarify an already existing policy. See 67 Fed. Reg. 65,707 (indicating that
amended § 3.1000(d)(4) is a divergence from previous VA policy toward evidence in the file at
date of death). This amendment was more than a clarification; it was a substantive and
significant change that limited evidence that previously could have been considered when
adjudicating an accrued benefits claim. Compare Princess Cruises, 397 F.3d at 1365 (finding
that a “strong and unprecedented” evidentiary presumption previously not found in statute or
regulation constitutes a significant change in law), with Rodriguez, 511 F.3d at 1154 (noting that
clarification of an already existing policy does not constitute substantial change in the law).
Second, the amended regulation is connected to a relevant past event. In addressing this
element in Princess Cruises, the Federal Circuit noted that a recent U.S. Customs and Border
Protection ruling created an evidentiary presumption that could only be overcome by data that
had not been – and could no longer be – collected by the cruise line; thus, the presumption could
not be overcome in that instance and was connected to a relevant past event. 397 F.3d at 1360-
66. Here, Mrs. Castellano filed her claim and obtained the VA-authorized report when VA
reports of treatment recorded after death still could be deemed in the file at date of death – prior
to the regulation change in 2002. Similar to the situation in Princess Cruises, in Mrs.
Castellano’s case, an amended regulation created an evidentiary rule that cannot be overcome,
because Mrs. Castellano cannot return to the time before her husband’s death and submit the
report to the Secretary, as the amended regulation now requires. In other words, had she known
about a future rule change that would be applied retroactively to exclude evidence obtained after
her husband’s death, she and her husband could have acted differently by obtaining the report
before her husband’s death. See Tarver v. Shinseki, 557 F.3d 1371, 1375 (Fed. Cir. 2009)
(addressing whether claimant would have acted differently had she known about the rule
change).
13
Moreover, the change in law particularly is relevant to a past event – the collection of
evidence before Mr. Castellano’s death (or lack thereof) – because the Secretary (who amended
the regulation) bears partial responsibility in collecting relevant evidence pursuant to the duty to
assist. Indeed, it would exceed the bounds of fairness due a veteran to permit the Board’s
retroactive enforcement of an evidentiary standard that excludes certain evidence from
consideration when the Secretary did not declare the regulation change to be retroactive when it
was promulgated, and the Secretary otherwise did not timely collect the evidence necessary to
surmount the retroactive evidentiary standard. Ultimately, because the evidence can no longer
be collected in a way that would surmount the retroactive evidentiary standard, that collection
opportunity is a relevant past event connected to the amended regulation. See id. (taking into
account “equitable considerations such as the posture of the case and the extent to which the
parties have relied to their prejudice on the superseded rule” in evaluating whether there is a
connection to a relevant past event).
We further note the stark difference between the facts in this case and the facts in
Rodriguez, 511 F.3d at 1156, that led the Federal Circuit in that case to permit retroactive
application of a change in regulation. In Rodriguez, when considering whether the change in
regulation was connected to a relevant past event, the Federal Circuit explicitly noted that Mrs.
Rodriguez had filed her claim prior to the caselaw that interpreted a statute in a manner
favorable to Mrs. Rodriguez, such that Mrs. Rodriguez had not relied on the favorable
interpretation when she filed her claim. Id. at 1155 (“Rodriguez did not rely to her detriment on
the prior state of the law.”). In that circumstance, the change in regulation reversing the effect of
that caselaw was not related to a past event. Id. Here, as noted, Mrs. Castellano filed her claim
and obtained the report when she was entitled by substantive law to have VA-authorized reports
deemed included in the file at date of death. It is only the possible retroactive effect of later
change in regulation that might preclude consideration of this report in adjudicating Mrs.
Castellano’s claim.
Third, considering fair notice, reasonable reliance, and settled expectations, the Secretary
posited one policy toward evidence in the file at the date of death from at least 1985 to 2002, and
this Court found it to be substantive law. See Tarver, 557 F.3d at 1376 (examining Secretary’s
historic practice in evaluating settled expectations). Mrs. Castellano reasonably relied on that
14
law in gathering evidence for her claim and, after the Secretary first provided notice of a
significantly different law on March 4, 2002, see 67 Fed. Reg. 9638, well after Mrs. Castellano
filed her claim, there was nothing further she could do to have her evidence admitted. See
Princess Cruises, 397 F.3d at 1366 (“[T]he imposition of an evidentiary [rule] that cannot
possibly be met strongly implicates fairness considerations.”). The Secretary’s consistent past
practice is unlike the situation in Rodriguez, 511 F.3d at 1156, where a claimant could not have
settled expectations of a law because it had undergone “multiple changes.” 511 F.3d at 1156.
Accordingly, to the extent the Board rejected consideration of the June 2000 VA medical
report based on the application of amended § 3.1000(d)(4), such application had an
impermissibly retroactive effect. Overall, remand is warranted for the Board to consider this
report in the adjudication of Mrs. Castellano’s claim for accrued benefits. See Tucker v. West,
11 Vet.App. 369, 374 (1998) (remand is appropriate “where the Board has incorrectly applied
the law, failed to provide an adequate statement of reasons or bases for its determinations, or
where the record is otherwise inadequate”); Webster v. Derwinski, 1 Vet.App. 155, 159 (1991)
(Court is not to conduct de novo factfinding but rather to remand the matter for the Board to find
facts in the first instance).
b. Private Nursing Home Records
The Board found that the private nursing home records postdated the period of care
authorized by VA, and Mrs. Castellano does not demonstrate – nor does the record of
proceedings reflect – clear error in that finding. See Hilkert v. West, 12 Vet.App. 145, 151
(1999) (en banc) (appellant has burden of demonstrating error); Butts and Gilbert, both supra.
Accordingly, these records postdating VA-authorized care could not be deemed in the file at date
of death under paragraph 5.06(c) of the May 8, 2000, M21-1.
As to whether the records might be admissible under paragraph 5.06(d) of the May 8,
2000, M21-1 because they identify, verify, or corroborate the death certificate, the Secretary
generally notes that Mrs. Castellano fails to establish the relevance of these records to her claim.
However, the Board failed to address whether these records could be considered under
subsection (d) and, in light of the need to remand for consideration of the June 2000 VA medical
report and pursuant to the general rule that a claimant may submit new argument and evidence
on remand, Mrs. Castellano will have an opportunity on remand to establish the relevancy of
15
these private records. If so presented, the Board must discuss the issue. See Kay v. Principi, 16 Vet.App. 529, 534 (2002) (on remand, Board must consider any additional evidence and argument that the claimant presents in support of the matters remanded).

B. Stegall and Substantial Compliance on Remand
Mrs. Castellano also contends that the July 2009 Board violated its Stegall duty to readjudicate her claim when it last was remanded by the Court pursuant to a JMR. See Stegall, 11 Vet.App. at 271 (“[A] remand by this Court to the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders.”). More specifically, she argues that the reasons or bases in the July 2009 Board decision improperly replicated the reasons or bases of the December 2007 Board decision, which was vacated entirely by the December 2008 Court order pursuant to JMR.
As we consistently have stated, the Board’s duty upon remand is to consider any additional evidence and argument that the claimant presents on remand. Kay, supra. This duty applies to all matters remanded, regardless of whether they were the explicit bases for the remand. Moreover, the Board’s duty on remand is not tied to whether the Board decision on appeal was set aside or vacated by the Court. See Leopoldo v. Brown, 4 Vet.App. 216, 219(1993) (remanding without vacating or setting aside Board decision, and noting that “appellant is free . . . to offer additional evidence” on remand); Ohland v. Derwinski, 1 Vet.App. 147, 150(1991) (remanding without vacating or setting aside the Board decision); Sammarco v. Derwinski, 1 Vet.App. 111, 114 (1991) (same).
Although it is best practice for the Board explicitly to note and specifically respond to each additional argument raised on remand, the Board sufficiently meets its duty under Kay when it adequately addresses the issues raised. See D’Aries v. Peake, 22 Vet.App. 97, 105(2008) (substantial compliance, not strict compliance, is required under Stegall); Dyment v. West, 13 Vet.App. 141, 146-47 (1999) (finding substantial compliance with remand order where, although examiner failed to presume exposure to asbestos, he “ultimately ma[d]e a determination as to whether asbestos contributed to [the claimant's] disability”); see also 38 U.S.C. § 7104(d)(1) (Board must adequately address “all material issues of fact and law presented on the record” (emphasis added)). Compare BLACK’S LAW DICTIONARY 907 (9th ed. 2009) [hereinafter BLACK'S] (defining “issue” as a “question of law or fact” or both), with BLACK’S at
16
121 (defining “argument” as a “statement that attempts to persuade”). Further, if a claimant presents no new arguments on a remanded matter or merely recycles old arguments, there is no requirement that the Board employ different words to restate its decision. Rather, if the Board reconsiders the evidence and decides to reinstate its previous determination on a matter, it may replicate the language it employed previously.
Here, as Mrs. Castellano notes, the July 2009 Board newly addressed the issue of the June 26, 2000, VA doctor’s letter and whether it could be deemed in the file at date of death pursuant to § 3.1000(d)(4) (2011), but the July 2009 Board decision on appeal otherwise largely replicated the reasons or bases in the December 2007 Board decision. Mrs. Castellano also
correctly notes that she submitted additional written argument on the matters remanded that was not specifically addressed by the July 2009 Board in its statement. Although the Board did not specifically address much of the written argument she submitted, the written argument is contained in the record and the Board is presumed to have considered it. See Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007) (absent specific evidence indicating otherwise, there is a presumption that the Board considers all evidence of record). Moreover, although the July 2009 Board largely recycled the statement of the 2007 Board, the statement nevertheless addresses the very issues that Mrs. Castellano addressed in her additional written argument.
Thus, for example, Mrs. Castellano argues that the 2009 Board did not address her argument that more probative weight should be granted to the VA chief psychiatrist’s April 1999 opinion because of the doctor’s status as chief psychiatrist and personal physician. Although the 2009 Board did not respond specifically as to the value of the doctor’s status in its probative weight analysis, the Board addressed the probative value of the opinion vis-a-vis the other medical opinions and provided an adequate statement of reasons or bases for its assignment of weight to various opinions, which reflects an adequate discussion of the issue raised by Mrs. Castellano. See Owens v. Brown, 7 Vet.App. 429, 433 (1995) (“It is not error for the [Board] to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons [or] bases.”); see also Allday v. Brown, 7 Vet.App. 517, 527(1995) (Board’s statement “must be adequate to enable a claimant to understand the precise basis for the Board’s decision, as well as to facilitate review in this Court”). In sum, Mrs. Castellano fails to show by specific evidence that the Board did not consider her written arguments, and
17
fails to demonstrate that the Board’s statement of reasons or bases is not understandable or in some way frustrates judicial review. See Newhouse, Hilkert and Allday, all supra.

C. Alzheimer’s Disease
Mrs. Castellano further argues that the Board erred in finding Mr. Castellano’s Alzheimer’s disease not aggravated by his service-connected anxiety disorder. In support of its decision, the Board noted, inter alia, that (1) a February 1996 medical report stated that Mr. Castellano’s Alzheimer’s brought out his psychiatric symptoms, but did not state that his
psychiatric symptoms brought out his Alzheimer’s, (2) an April 1996 medical report stated that Mr. Castellano’s neuroses complicated his organic (personality) disorder and treatment, but did not state that the neuroses complicated Alzheimer’s, (3) an April 1999 medical report stated that
Mr. Castellano’s psychiatric problems impacted his Alzheimer’s, but such a statement was inconsistent with the earlier statement of the examiner in April 1996, and (4) a December 1999 medical report stated that anxiety does not cause Alzheimer’s, and, although it also stated that anxiety can contribute to impaired functioning in individuals with Alzheimer’s, “can” also implies “can not.” However, because the June 26, 2000, medical report may alter the Board’s determination on this issue, remand is warranted. See Arneson v. Shinseki, 24 Vet.App. 379, 389 (2011) (remand warranted where error could have altered Board’s determinations).

D. Bipolar Disorder
Mrs. Castellano further argues that the Board erred in finding that Mr. Castellano had no bipolar disorder. Succinctly stated, remand is warranted for the Board to consider the June 26, 2000, medical report in its determination as to whether service connection for bipolar disorder or
a higher rating for Mr. Castellano’s mental condition is warranted. See Arneson, supra.
E. SMC and TDIU
Because they are inextricably intertwined with the remanded matters, the issues of SMC and TDIU also will be remanded. Cf. Tyrues v. Shinseki, 23 Vet.App. 166, 178-79 (2009)(remand generally appropriate when matter on appeal is “inextricably intertwined” with matters being adjudicated below), aff’d, 631 F.3d 1380 (Fed. Cir. 2011), vacated on other grounds, 132 S. Ct. 75 (2011).
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F. Remand
On remand, Mrs. Castellano may present, and the Board must consider, any additional argument in support of the matters remanded. See Kay, supra. These matters are to be provided expeditious treatment on remand in accordance with 38 U.S.C. § 7112.

IV. CONCLUSION
That part of the July 7, 2009, Board decision on appeal is SET ASIDE and the matters are REMANDED for further adjudication consistent with this opinion.

SCHOELEN, Judge, concurring: Although I fully agree with the majority that the Board
decision should be vacated and the matter remanded for consideration of the June 26, 2000, VA
medical report as “evidence in the file” at the time of the death of the veteran, Frederick C.
Castellano, I write separately to address several concerns, including my disagreement with the
majority’s attempt, although through dicta, to deem Hayes v. Brown, 4 Vet.App. 353 (1993)
overruled.
A. Evidence in the File at Date of Death
Pursuant to 38 U.S.C. § 5121(a), a veteran’s surviving spouse may receive accrued
benefits consisting of “periodic monetary benefits . . . to which [the veteran] was entitled at
death under existing ratings or decisions, or those based on evidence in the file at date of death
. . . and due and unpaid.” 38 U.S.C. § 5121(a) (emphasis added). In Hayes, the Court noted that
although section 5121(a) permits only evidence in the file at date of death, section 5121(c)
“appear[ed] to contradict, or at least qualify, that provision” by permitting a claimant to submit
information to complete the application. 4 Vet.App. at 360. Given this ambiguity, the Court
stated that “the Secretary ha[d] wide latitude in establishing department policy as to what postdate-
of-death evidence may be considered.” Id. Noting that the regulatory framework
established to implement section 5121(a), (c) was “confusing at best,” see 38 C.F.R.
§ 3.1000(d)(4)(i)(1992),9 the Court nevertheless stated that it was “clear” that § 3.1000(d)(4), “on
9 In 1992, the Secretary’s regulation, provided as follows:
(4) Evidence in the file at date of death . . . will be considered to have been met when there is on file
at the date of the veteran’s death:
(i) Notwithstanding § 3.200(b) evidence, including uncertified statements, which is essentially
19
its face, applie[d] only to evidence in the file at date of death and the death certificate and, d[id]
not, by its terms contemplate the submission of any post-death evidence.”10 Id. at 358.
However, the Court also recognized that “[s]uperimposed on this regulation . . . [wa]s a
confusing array of provisions of the VA Manual, M21-1 . . . scattered amongst two chapters,
regarding what post-date-of-death evidence [wa]s acceptable.” Id. at 360 (citing VA Manual,
M21-1, paras. 5.25, 27.08). The Court held that “[t]o the extent that these Manual provisions
affect what post-date-of-death evidence may be considered, they have ‘”the force of law” . . . [as
they affect] a substantive right [of appellant to accrued benefits,] and . . . placement in a
procedural [M]anual cannot disguise [the] true nature [of these provisions] as . . . substantive
rule[s].’” Id. (quoting Fugere v. Derwinski, 1 Vet.App. 103, 107 (1990)).
What is clear from the Court’s decision in Hayes, is that both 1992 M21-1 provisions
discussed by the majority, M21-1, part VI, para. 5.25(a), (b) (1992), were found to be
“substantive rules,” creating substantive rights, because they affected what post-date-of-death
evidence could be considered under § 5121(a). Thus, absent adherence to the APA notice-andcomment
process and specific notice to the public of intent to revoke these substantive
provisions, neither provision could be overturned. Fugere, 1 Vet.App. at 109-10 (setting aside
the Secretary’s rescission of an M21-1 provision for failing to follow the APA notice-andcomment
process), aff’d, 972 F.2d 331 (Fed. Cir. 1992).
As relevant to this appeal, paragraph 5.25(a) provided that “[e]vidence ‘in file’
includes . . . ['[r]eports of hospitalization, treatment or examinations authorized by VA’], even if
such reports are not reduced to writing or are not physically placed in file until after death. M21-
1, pt. VI, para. 5.25(a) (1992). Paragraph 5.25(b), entitled “[e]vidence [e]ssentially [c]omplete,”
provided that
[t]he provisions of 38 C.F.R. § 3.1000(d)(4) permit favorable action under
38 U.S.C. § 5121 on the basis of the evidence as a whole when the evidence is
complete and of such weight as to establish service connection or degree of disability for disease or
injury when substantiated by other evidence in file at date of death or when considered in connection
with the identifying, verifying, or corroborative effect of the death certificate.
38 C.F.R. § 3.1000(d)(4)(i) (1992).
10 Contrary to the majority’s view, the Court in Hayes explicitly stated that “the exceptions provided for by ¶ 5.25(a),
(b) are not set forth in . . . § 3.1000(d)(4)” and, therefore, did consider whether para. 5.25(a) and (b) could stand in direct
contravention of the regulation. Id. at 360; see section III.A.2.b, ante at 9.
20
essentially complete and in file at the time of death. . . . The cited regulations
also provide for the acceptance of evidence after death for verifying or
corroborating evidence “in file” at death.
M21-1, pt. VI, para. 5.25(b) (1992). Because paragraph 5.25(b) explicitly referenced the
Secretary’s regulation, and paragraph 5.25(a) did not, my colleagues state that paragraph 5.25(a)
does not “purport[] to be interpreting a regulation.” See section III.A.2.b, ante at 9. In addition,
because they perceive paragraph 5.25(b) to directly conflict with the Secretary’s pre-2002
regulation, they conclude that the Secretary was permitted to amend the M21-1 provision
without adhering to the notice and comment process. They assert that since Hayes issued, “it has
been clarified that a properly promulgated regulation trumps an M21-1 provision or other VA
directive that plainly is erroneous or inconsistent with regulation.” Section III.A.2.b, ante at 9
(citing Smith v. Shinseki, 647 F.3d 1380 (Fed. Cir. 2011) and Haas v. Peake, 525 F.3d 1168,
1197 (Fed. Cir. 2008).
I disagree with the majority’s classification of the two Manual M21-1 paragraphs because
it is clear to me that both paragraph 5.25(a) and paragraph 5.25(b) reflect the Secretary’s
determination regarding what post-date-of-death evidence is to be considered “evidence in the file.”11 That paragraph 5.25(b) mentioned the regulation, and paragraph 5.25(a) did not, does not alter the fact that both paragraphs represented the Secretary’s interpretation of 38 U.S.C. § 5121 and the evidentiary requirements for an accrued benefits claim, which the Secretary has conceded he had failed to establish by regulation until the 2002 regulatory change. The Secretary stated in his 2002 notice of proposed rulemaking that the then-current version of 38 C.F.R. § 3.1000(d)(4) failed to define the term “‘evidence in the file’” but instead permitted VA “in certain instances . . . [to] accept identifying, corroborating[,] or verifying information
from the death certificate and evidence submitted with the claim for accrued benefits to support prima facie evidence already in the file.” See Evidence for Accrued Benefits, 67 Fed. Reg. 9638, 9639 (Mar. 4, 2002) (emphasis added). Moreover, the Federal Circuit’s recent discussion of Hayes in Hyatt v. Shinseki recognized this Court’s “perceived conflict between subsections (a) and (c) of § 5121″ and that VA clarified this “confusion” by regulation in 2002. 566 F.3d 1364, 11 Indeed the plain language of paragraph 5.25(a) reveals that it is the Secretary’s interpretation of what constitutes
“evidence in the file.” It states: “Evidence in File at Date of Death. Evidence ‘in file’ includes the following . . . .” M21-
1, pt. VI, para. 5.25(a) (emphasis added); see also M21-1, pt. VI, para. 5.23 (1992) (stating that “[e]ntitlment to [accrued benefits] must be based on evidence in file at date of death” and referencing para. 5.25(a)).
21
1370 (Fed. Cir. 2009) (citing Evidence for Accrued Benefits, 67 Fed. Reg. 9638, 9639 (Mar. 4, 2002); Evidence for Accrued Benefits, 67 Fed. Reg. 65,707 (Oct. 28, 2002)). Thus, I believe that until 2002, when the Secretary formally published his intent to delete from the M21-1 those provisions that were inconsistent with his proposed definition of “evidence in the file at the date of death,” both paragraph 5.25(a) and paragraph 5.25(b) remained valid substantive rules, which were applicable to the appellant’s claim for accrued benefits filed in June 2000.
I also disagree with the majority’s reliance on Smith, Haas, and Fournier v. Shinseki, 23 Vet.App. 480, 487-88 (2010), for the proposition that “a properly promulgated regulation trumps an M21-1 provision . . . that plainly is erroneous or inconsistent with regulation.” See section III.A.1, ante at 6. Although it is true that the Federal Circuit concluded that Mr. Haas
could not rely on a 1991 M21-1 provision that was inconsistent with the Secretary’s regulation –
Haas is distinguishable because the Secretary’s regulation, which was promulgated after a notice-and-comment process, went into effect in July 2001, one month before Mr. Haas filed his claim for disability compensation benefits. 525 F.3d at 1196. Because the Secretary had “formally taken a position that excluded Mr. Haas from the scope of the regulation” before his claim was filed, the Federal Circuit concluded that (1) Mr. Haas could not rely on the 1991 M21-1 provision, which was inconsistent with the later regulation, and (2) it was unnecessary for the Agency to conduct parallel rulemaking to amend the Agency’s “interpretative statement” contained in the M21-1. Id. at 1196-97.
Unlike the regulation in Haas, which was formally promulgated after the M21-1
provision had already been in effect, the pre-2002 version of 38 C.F.R. § 3.1000(d)(4) had been in effect since at least 1970, thus pre-dating the M21-1 provision at issue here, and, as acknowledged by the Secretary in his 2002 notice of proposed rulemaking, failed to give meaning to “evidence in the file at the date of death” and the ambiguity created by 38 U.S.C. § 5121(a), (c). See 38 C.F.R. § 3.1000(d)(4) (1970); 67 Fed. Reg. at 9639. As discussed earlier, the Court in Hayes recognized the ambiguity and confusion surrounding what constituted “evidence in the file at date of death” and held that, to the extent paragraph 5.25 “affected what
post-date-of-death evidence may be considered” it had the “‘force of law’” and created a “substantive right.” Hayes, 4 Vet.App. at 360. In this circumstance, VA’s regulation, which had
22
been effect since at least 1970, cannot “trump,” or otherwise invalidate, a subsequently created “substantive right.”
The majority’s reliance on Smith and Fournier, both supra, is similarly misplaced because neither case involved a Manual M21-1 provision that created a substantive right. See Smith, 647 F.3d at 1384-85 (noting that VA’s interpretative statement contained in its adjudication Manual was consistent with VA’s TDIU regulation, which did not require the agency to consider the availability of work when determining entitlement to TDIU); Fournier, 23 Vet.App. at 487 (holding that the Manual M21-1 provision at issue did “not establish or alter the criteria for benefits but only illuminates a suggested procedural practice for VA adjudicators”). In Fournier, the Court also discussed the Federal Circuit’s decision in Haas as indicating that “when an Agency’s interpretation of a statute is clear from existing regulations, any discrepancy between M21-1 and the regulation ‘does not confer any rights’ on a claimant.” 23 Vet.App. at 487 (2010) (emphasis added). As noted above, prior to 2002, the Secretary’s
interpretation of his statutory authority was anything but clear. See Hyatt, 566 F.3d at 1370; cf.
Hayes, 4 Vet.App. at 361 (stating that “VA, at the earliest possible opportunity, may wish to
clarify its policy as to what evidence submitted after death may be considered”); 67 Fed. Reg. at
9639.
For these reasons, I cannot agree with my colleagues’ conclusion that the May 8, 2000,
amendments to paragraph 5.25(b) were properly effectuated without adherence to the APA notice-and-comment process. Rather, I would conclude that the 1992 M21-1 provisions, specifically paragraph 5.25(a) and paragraph 5.25(b), remained valid substantive rules in accordance with the Court’s decision in Hayes until 2002 when VA formally rescinded its Manual M21-1 provisions as “inconsistent” with the 2002 amendment to 38 C.F.R. § 3.1000(d)(4). See 67 Fed. Reg. at 9640, 65,707.
In addition to noting my fundamental disagreement with the majority’s analysis on this point, I would be remiss if I neglected to point out that the majority’s discussion concerning paragraph 5.25(b) is not necessary to its decision and, therefore, in my opinion, amounts to nothing more than dicta. See BLACK’S LAW DICTIONARY 465 (7th ed. 1999) (defining “judicial dicta” as “[a]n opinion by a court on a question that is directly involved, briefed, and argued by counsel, and even passed on by the court, but that is not essential to the decision”); see also
23
Pelegrini v. Principi, 18 Vet.App. 112, 130 (2004) (Ivers, J., concurring in part and dissenting in part) (noting that “‘[t]he danger of . . . dicta is that, although theoretically and technically not binding, practically, they give the appearance of carrying the cloak of judicial acceptance’”(quoting Lasovick v. Brown, 6 Vet.App. 141, 153 (1994)). Simply put, once my colleagues concluded that the Board clearly erred when it determined that the June 2000 report did not constitute a “VA-authorized report of treatment” such that it was error not to deem the report “evidence in the file at date of death,” it was unnecessary to consider, only to reject, the
appellant’s alternative argument that the report should be considered because it serves to
“summarize, corroborate[,] and verify evidence in file at the date of his death.” Appellant’s Brief
(Br.) at 11-13 (citing Hayes, 4 Vet.App. at 360-61 and noting that the Board failed to address
this argument). Because discussion of paragraph 5.25(b) was not essential to the Court’s
disposition, it is axiomatic that the majority’s “holding” that Smith and Haas overturned Hayes is
not binding.
To the extent that the majority relies on its analysis of the Secretary’s May 2000 change to paragraph 5.25(b), see M21-1, pt. VI, para. 5.06(d) (Change 73 – May 8, 2000) (stating that “[t]he cited regulation provides for the acceptance of evidence . . . when considered in connection with the identifying, verifying, or corroborative effect of the death certificate”), to remand the question whether the veteran’s private nursing home records may be deemed evidence in the file at the date of death pursuant to paragraph 5.06(d), I also note that this argument was not raised by the parties. Instead, the appellant argued that the nursing home records were “treatment records created prior to the veteran’s death and it is entirely unclear why such relevant treatment records were not considered part of the veteran’s file.” Appellant’s Br. at 12 n.6 (citing Hayes, 4 Vet.App. at 360-61, for the proposition that “hospitalization and treatment records may be considered constructively part of the veteran’s file on the date of death for the purposes of adjudicating an accrued benefits claims even if not placed in the veteran’s file prior to death”). The Board’s reasons were unclear because the Board summarily stated that “records from Silver Ridge Village outside the period for which VA authorized and contracted
for treatment at that facility . . . cannot be considered in the context of the . . . appeal.” R. at 8(emphasis added). I do not believe that the appellant’s “reasons or bases” allegation of error reasonably raised any alternative basis for consideration of the records outside the authorized
24
period, and as argued by the Secretary, the appellant has not identified any record that the Board purportedly failed to consider that weighs in favor of her claim. Secretary’s Br. at 16-17. The majority’s discussion in this regard can only be viewed as a misguided attempt to render its discussion of paragraphs 5.25(b) (1992) and 5.06(d) (2000) relevant and essential to the Court’s disposition in order to reach a desired result – deeming Hayes overruled.

B. The Majority’s Review of the Board’s Findings
As noted above, I agree that the June 26, 2000, report should be deemed evidence in the file at the time of the veteran’s death and that this matter should be remanded to the Board for consideration of the report. I also agree that the basis for admitting the report is, as conceded by
the parties, that it constitutes a VA-authorized report of treatment. However, I write separately on this point to express my concern regarding the majority’s broad interpretation of the Secretary’s M21-1 provision, which permitted “[r]eports of hospitalization, treatment[,] or
examinations authorized by VA” to be considered “evidence ‘in file’ . . . even if such reports are not reduced to writing or are not physically placed in file until after death.” M21-1, pt. VI, para. 5.25(a) (1992); see also M21-1, pt. VI, para. 5.06(c) (Change 73 – May 8, 2000). My concern is that my colleagues’ conclusion that a VA-authorized report of treatment may be deemed evidence in the file, “no matter what form it took at the moment of the veteran’s death,” section III.A.3.a.(1), ante at 11, may suffer from the law of unintended consequences. That is, although it may not seem unreasonable, under the facts of this case, to deem a VA report of treatment that is reduced to writing five weeks after the veteran’s death evidence in the file, the majority’s holding appears to permit a VA report of treatment, that is requested and written many years after a veteran’s death, to be deemed evidence in the file at the date of death. Such a broad interpretation of the Secretary’s Manual M21-1 may have the unintended effect of opening
Pandora’s box, possibly leading to a development of evidence in an accrued benefits claim that is not contemplated by statute. My concerns are augmented by the fact that the Secretary’s current Manual M21-1 contains a similar provision that requires VA reports of hospitalization, examination, or treatment to be placed in the claims file “even if they are not reduced to writing . . . until after death,” and therefore, the majority’s holding may not be limited only to those cases that have been pending prior to the Secretary’s 2002 amendment to 38 C.F.R. § 3.1000(d) and rescission of paragraph 5.06(c). See M21-1MR, pt. VIII, chs. 3, 1.f (2010).
25
Rather than broadly construe the Secretary’s Manual M21-1 provision, I would have reviewed the Board’s factual findings concerning when the report was requested and prepared and concluded that the Board clearly erred when it failed to afford the appellant the benefit of the doubt. See 38 U.S.C. § 5107(b) (“When there is an approximate balance of positive and negative
evidence regarding any issue material to the determination of a matter, the Secretary shall give
the benefit of the doubt to the claimant.”); Mariano v. Principi, 17 Vet.App. 305, 313 (2003) (the
Court reviews the Board’s application of the benefit of the doubt rule under the “clearly
erroneous” standard); 38 C.F.R. § 3.102 (2011) (“When, after careful consideration of all
procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of
disability, or any other point, such doubt will be resolved in favor of the claimant.”). In short, I
agree with the appellant that the Board’s conclusions concerning the preparation of the report are
highly speculative and are not based on any affirmative evidence in the record.
In its decision, the Board found that the June 2000 treatment report was not requested or
prepared prior to the veteran’s death and, therefore, concluded that it could not be considered as
part of the accrued benefits claim. The Board observed that the veteran died on May 18, 2000,
and that the report, dated June 26, 2000, indicated that it was prepared at the request of the
veteran’s wife and veteran’s service representative (VSR). The Board also acknowledged that the
report was written in the present tense, which indicated that the physician thought the veteran
was still alive. The Board stated that there was no evidence to indicate when the psychiatrist
prepared the report, but expounded that assuming the veteran’s wife requested the report, it was
“highly unlikely” that the psychiatrist would have been asked to prepare the report prior to the
veteran’s death and have waited more than five weeks to reduce it to writing. R. at 10. Thus, the
Board concluded that the benefit of the doubt was “not implicate[d]” in the absence of any
evidence that the psychiatrist prepared the report before the veteran died. Id.
To the extent the VSR may have requested the report, the Board stated that “it is
reasonable to assume that the VSR would have delayed the [June 15, 2000, hearing] until the
psychiatrist’s report was received,” had it been requested before the veteran’s death. Id.
(emphasis added). Based on the foregoing, the Board found that “the VA psychiatrist’s June
2000 report was not requested until after the representative’s Informal Hearing Presentation,
26
dated June 15, 2000 – almost one month after the Veteran had died – and so, a fortiori, the
psychiatrist’s report could not have been prepared prior to his death.” R. at 11.
“The Board’s task [is] to make findings based on evidence of record – not to supply
missing facts.” Beaty v. Brown, 6 Vet.App. 532, 536-37 (1994) (holding that the Board’s finding
that “‘with eye protection, these occupations ["farmwork and heavy equipment operation"] would
still be feasible’ ha[d] no evidentiary basis in the record” and was clearly erroneous); see also
Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that the Board clearly erred when it relied
on its own medical speculation and noting that “[b]are assertions without identifying the
underlying factual basis for the conclusion are not sufficient”). In this case, what is clear from
the face of the report is that it is dated June 26, 2000, five weeks after the veteran’s death, and
that the veteran’s wife and VSR requested the report. However, the fact that the report postdates
the veteran’s death is not dispositive because the Secretary’s Manual M21-1 provision clearly
contemplates that evidence may be deemed in the file even though it is not reduced to writing
until after death. Thus, as conceded by the Board, it is “possible” that the report was “prepared”
prior to the veteran’s death, but not reduced to writing until after death. R. at 10. This possibility
is bolstered by the fact that the VA doctor repeatedly referred to the veteran in the present tense,
strongly suggesting that the physician believed that the veteran was alive when the report was
prepared. See, e.g., R. at 333 (“The patient’s current GAF (Global Assessment of Functioning) is
scored as 25.”) and (“The patient is totally and permanently disabled and now requires total
nursing home care for supervision of his basic activities for daily living. He may benefit from
the use of medications to control his emotional outbursts, confusion and disorientation. His
prognosis is guarded.”) (emphasis added). On the other hand, there is no factual basis in the
record to support the Board’s conjecture that it is “highly unlikely” that it would take the
physician more than five weeks to reduce a report to writing nor is there any basis for the
Board’s assumptions as to the VSR’s thought process in preparing for and submitting an informal
hearing presentation on June 15, 2000.Once we remove the Board’s speculative determinations concerning the timing of the preparation of the report and consider the evidence in the record, it is clear that the Board erred when it found that the benefit of the doubt was “not implicated.” This is precisely the scenario in which the determination as to when the report was prepared is “too close to call” and the benefit
27
of the doubt should have been afforded to the appellant. See generally Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001) (“[T]he benefit of the doubt rule may be viewed as shifting the ‘risk of nonpersuasion’ onto the VA to prove that the veteran is not entitled to benefits.”).
Thus, I would have concluded that the Board clearly erred when it failed to afford the appellant the benefit of the doubt to conclude that the VA psychiatrist prepared the report prior to the veteran’s death and, therefore, the report should be deemed “evidence in the file” even though it was not reduced to writing until after the veteran’s death.

C. Retroactive Application of 38 C.F.R. § 3.1000(d)(4)
The majority holds that the Board’s application of § 3.1000(d)(4) was erroneous “because the regulation was not intended to be retroactive and its retroactive application has an impermissible retroactive effect.” Section III.A.3.a.2, ante at 11. Although I generally agree that the Secretary’s 2002 amendment to § 3.1000 was not intended to apply retroactively and that any such application would have an impermissible retroactive effect, I do not agree with the majority’s analysis of the Princess Cruises factors. See section III.A.3.a.2, ante at 11-15; Princess Cruises, Inc. v. United States, 397 F.3d 1358, 1362-63 (Fed. Cir. 2005). I also do not believe that my colleagues’ Princess Cruises analysis is necessary to the Court’s disposition because the Secretary has not maintained that the regulation applies retroactively. See generally Evidence for Accrued Benefits, 67 Fed. Reg. 65,707 (Oct. 28, 2002) (indicating that the Secretary’s amendment to § 3.1000 is effective “November 27, 2002″); Secretary’s Br. at 14-15(citing 38 C.F.R. § 3.1000 (1999) as the applicable version of the regulation). Assuming the Board applied the current version of the regulation, I agree that such application was erroneous.
Accordingly, for the foregoing reasons, I concur in the result reached by the Court, but must respectfully disagree with those portions of the majority’s opinion discussed above. The Board’s decision should be vacated and the matter remanded for the Board to consider the June 26, 2000, VA medical report.
28

1971 while he was in the military. R. at 666-68. The Secretary attempts
to downplay the significance of this evidence because the report does not state that the appellant experienced “hallucinations” in service. Secretary’s Br. at 9-10. However, it is the Board’s duty to analyze the credibility and probative value of the evidence and, as noted above, this duty is heightened in cases such as this where the appellant’s service treatment records are
unavailable. See Washington supra; see also R. at 6. Here, the Board found the appellant not credible, in part, because no postservice treatment reports included a history of “symptoms in service.” R. at 11; see also R. at 13. This is clearly contrary to the December 1984 treatment note, which noted “
psychiatric problems . . . in the military.” R. at 666. On remand, the Board must account for this evidence and explain its probative worth when it assesses the appellant’s credibility regarding the onset his psychiatric symptoms. See Washington, Allday, and Caluza, all supra. Additionally, because the Board relied on the appellant’s report of a postservice onset in 1978 to find his assertion of treatment soon after service not credible, on remand the Board may need to examine whether its analysis regarding the onset of symptoms impacts its finding that the appellant was not credible when he reported that he sought treatment shortly after service and that the records are no longer available because of the physician’s death. See R. at 13-14.
2. Probative Value of Conflicting Medical Opinions
The appellant argues that it was improper for the Board to discount Dr.
Smith’s favorable medical opinion because it was based on an “inaccurate history” reported by the appellant, yet find the VA examiner’s opinion probative, when both examiners reviewed the same history and the same record, but drew different conclusions. Appellant’s Br. at 9-10. The Secretary argues, contrary to the appellant’s assertions, that the Board acknowledged that the appellant provided an “incorrect history” to the VA examiner. Secretary’s Br. at 11. In support of this assertion, the Secretary relies on the following analysis:
The history given by the [v]eteran in 1979 dates the onset of symptoms to
1978, still over five years after service separation. . . . This more contemporaneous history given by the [v]eteran in 1979 for treatment purposes contradicts the [v]eteran’s later contentions in October 2007 hearing testimony and at the June 2008 VA examination,which were made for VA disability compensation purposes, that he had had auditory hallucinations or other psychotic symptoms since service. R. at 12 (emphasis added); see Secretary’s Br. at 12.
8

The appellant persuasively argues in his reply brief that the Secretary’s
position is untenable, that is, if the VA examiner also relied on an inaccurate history, as conceded by the Secretary, then the Board must explain why the inaccurate factual history impugns the bases for Dr. Smith’s opinion but does not diminish the probative worth of the VA examiner’s opinion.Reply Br. at 4-5. The Court agrees. It is true that “[a]n opinion based upon an inaccurate factual premise has no probative value.” Reonal v. Brown, 4 Vet.App. 458, 461 (1993). The problem with the Board’s analysis is that it failed to consistently apply this rule when it evaluated the conflicting medical opinions of record.
That is, although the Board found the appellant’s recent contentions
regarding the onset and continuity of psychiatric symptoms not credible, and relied on this credibility determination to render Dr. Smith’s opinion worthy of little probative value, the Board failed to similarly discuss how its
credibility determination impacted its assessment of the VA examiner’s
opinion, which was based on the same factual premise.
Additionally, the Board failed to explain why the VA examiner’s opinion
was “more probative” given the examiner’s reliance on the appellant’s statement that he had hallucinations prior to military service, which contradicts the Board’s reliance on the appellant’s reported history of a postservice onset in 1978. For this reason, the appellant argues that the Board erred when it relied on the VA examiner’s “incomplete” opinion, which assumed a preservice onset. Appellant’s Br. at
10-11. The Secretary argues that the appellant’s report of a history to
the VA examiner that was different than the history provided in other medical reports does not result in error by the examiner in taking the history and including it in the examination report. Secretary’s Br. at 12. Although it
may have been proper for the examiner to record the appellant’s history of
having had hallucinations prior to service, as noted above, the Board should have explained its reasons for finding the VA examiner’s opinion “more probative” when it was clearly based on a history that was rejected by the Board.1 See R. at 105 (“While the day-to-day stress of military service may have exacerbated the

1. The Board’s reasons for finding the opinion probative are unclear because,
in stating that it was relying on the opinion, the Board acknowledged that the examiner considered whether the stress in the military aggravated the appellant’s preexisting psychotic symptoms (R. at 14), yet the Board proceeded to find that the appellant was not credible because postservice treatment records indicated that his symptoms began in 1978.
9

veteran’s pre-existing psychotic symptoms, there is no clear evidence
that [] his military service has served as a long-term aggravating factor.” (emphasis added)).
The Court also agrees with the appellant that the Board failed to provide
an adequate statement of reasons or bases for assigning less probative weight to Dr. Smith’s opinion because he “failed to discuss” the appellant’s service separation notation that his nervousness was treated and improved. Appellant’s Br. at 8-9; Reply Br. at 2-3.”

=====================================
—————————————————-

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-4329
RONNY D. HAGEWOOD, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before SCHOELEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
SCHOELEN, Judge: The appellant, Ronny D. Hagewood, appeals through counsel
a
November 10, 2009, Board of Veterans’ Appeals (Board) decision that denied
disability
compensation benefits for a psychiatric disorder, to include depression
and schizophrenia. Record
of Proceedings (R.) at 3-20. The Board also dismissed the appellant’s
claim for disability
compensation benefits for a thoracolumbar spine disorder (R. at 8-9),
which the appellant has not
pursued on appeal. See Appellant’s Brief (Br.) at 1. This appeal is timely,
and the Court has
jurisdiction over the case pursuant to 38 U.S.C. §§ 7252(a) and 7266(a).
Both parties filed briefs,
and the appellant filed a reply brief. Single-judge disposition is
appropriate. See Frankel v.
Derwinski, 1 Vet.App. 23, 25-26 (1990). Because the Board failed to
provide an adequate statement
of reasons or bases for it credibility determination and the relative
probative weight it assigned to
the conflicting medical opinions of record, the Court will vacate the
November 10, 2009, decision
and remand the mater for further proceedings consistent with this decision.
I. FACTS
The appellant served honorablyin the U.S. Air Force from October 1968 to
September 1972.
R. at 4, 737. “The only service treatment records available are the [
appelant's] enlistment and

separation examinations, as well as the accompanying reports of medical
history.” R. at 6. No
psychiatric disorders were noted on his entrance examination. R. at 721-22.
At his June 1972
separation examination, the appellant reported that had “nervous trouble” (
R. at 713), which the
examiner described as “[n]ervousness 1970 [as a result of] job tension,
treated and improved, no
comp[lications] or seq[uelae].” R. at 714; see also R. at 716.
Additionally, the examiner’s report
of medical examination indicates that the appellant’s psychiatric
evaluation was “normal” and that
he suffered from no psychiatric disorder, including a “personality
deviation.” R. at 715.
In December 1984, a VA regional office (RO) denied the appellant’s claim
for compensation
benefits for a “nervous condition” based on its finding that “[s]
chizophrenia was not incurred in or
aggravated by [his] military service.” R. at 697-99. In October 2005, the
appellant submitted
another claim for compensation benefits for “schizophrenia” and “
depression.” R. at 486-96. In
February 2006, the RO denied entitlement to compensation benefits for
depression (R. at 473-75),
and in April 2006 the RO found that the appellant failed to submit new and
material evidence to
reopen a claim for entitlement to benefits for schizophrenia (R. at 207-10
). The appellant timely
perfected an appeal to the Board (R. at 169-70, 173-93, 198-201), and in
October 2007 testified at
a Board hearing (R. at 128-46).
The appellant testified that he was diagnosed with and treated for a “
nervous disorder” in
1971 while he was on active duty in Korea, which he attributed to “[s]
tress.” R. at 140, 142-43. He
described his in-service “nervousness” as “feel[ing] like people were
plotting against me and doing
things against me.” R. at 143. He also stated that he was “hearing voices
and things” and that the
doctor informed him that he “was working too hard.” Id. He stated that
this was the first time he
experienced something like this and that his symptoms had continued since
service. R. at 144. He
also indicated that he was first diagnosed with schizophrenia in “1978 –
77″ and that he was
currently receiving treatment at the VA hospital for “schizophrenia and
depression.” R. at 141.
In April 2008, the Board reopened the appellant’s claim, remanded the
matter to provide the
appellantaVApsychiatricexamination,
anddirectedtheexaminertoidentifyallcurrentlydiagnosed
psychiatric disorders and opine whether the appellant’s schizophrenia and
depression are at least as
likely as not related to service. R. at 112-27. On June 18, 2008, the
appellant underwent a
compensation and pension examination in which the examiner diagnosed
schizophrenia, paranoid
2

type and depression, not otherwise specified. R. at 96-106. The VA
examiner’s report indicates that
he reviewed the appellant’s claims file and conducted a clinical interview
and a psychological
examination of the appellant. Id. The examiner noted that the appellant’s
claims file contained
multipletreatmentrecordsthatconfirmedhis longhistoryoftreatment
forschizophreniaandvarying
levels of functioning over time. R. at 97. The examiner also noted that
the appellant was “often
described as being a poor historian.” Id. Although he stated that “the
appellant’s ability to provide
a history has been variable,” the examiner found him to be a “fair
historian” at present. R. at 104-05.
During the examination, the appellant reported that he experienced his “
first hallucinations”
at the age of 18, when he frequently worked overtime and began to “‘hear
things’ when fatigued.”
R. at 98. The appellant also reported that he “‘cracked up’” while he was
stationed in Korea. Id. The
appellant described having the shakes, difficulty sleeping, and hearing
things. Id. He stated that a
treating doctor informed him that he was “working too hard.” Id. The
appellant also reported that
“in the wake of his discharge” he received mental health treatment from Dr.
Darcy Brown in
Nashville, Tennessee. R. at 100. Although the VA examiner was satisfied
that the appellant’s
presentation, self-report, and clinical history showed that the appellant
met the criteria for
schizophrenia, paranoid type and depressive disorder, not otherwise
specified, the examiner stated
that the “course of [the appellant's] symptoms is less clear.” R. at 105.
In this regard, he noted that
the appellant reported some symptoms of schizophrenia (auditory
hallucinations) prior to military
service and that he described them as worsening during service. Id. The
examiner noted, however,
that the appellant completed his tour of duty and that his “post-military
clinical record indicate[d]
a significant post-military decline in functioning.” Id. The examined
stated, in pertinent part:
While the day-to-day stress of military service may have exacerbated the
veteran’s
pre-existing psychotic symptoms, there is no clear evidence that [] his
military
service has served as a long-term aggravating factor. One could assert
that his pre[-
]military hallucinatory experiences would have remitted or remained
circumscribed
were it not for the stress of military service. However, given the normal
patterns of
emergence for schizophrenia . . . , and given the worsening of his
presentation after
his service stress was removed, this is the weaker argument.
R. at 105-06.
With regard to the appellant’s depressive disorder, the VA examiner noted
the appellant’s
report of a limited set of depressive symptoms during service, which he
described as “mild and
3

intermittent until his divorce in 1980.” R. at 106. The examiner opined, “[
b]ased on the available
evidence,”that the appellant’s “[s]chizophrenia and [m]ood disorder [not
otherwise specified] is less
likely as not (less than 50/50) probability caused by or a result of his
military service.” Id.
In an October 2008 decision, the Board denied the appellant’s claim. R. at
62-67. The
appellant appealed to the Court and on June 5, 2009, the Court granted the
parties’ joint motion for
remand. R. at 53-60. On remand, the appellant submitted a September 2009
medical opinion byDr.
Smith, a board-certified forensic psychiatrist, and written argument in
support of favoring Dr.
Smith’s opinion over the unfavorable June 2008 VA examiner’s opinion. R.
at 31-36, 39-44.
After reviewing the “entire Record Before The Agency,” Dr. Smith opined
that “it is more
likelythan not that the veteran experienced his first psychotic break
while in Kunsan on active duty.”
R. at 35. Dr. Smith noted that the Diagnostic and Statistical Manual of
Mental Disorders, Fourth
Edition (DSM-IV) states that “‘[t]he model age of onset for[
schizophreniain] men is between 18 and
25 years’” and that the appellant “was 21 or 22 years of age in Kunsan.” R.
at 35. Dr. Smith also
stated that the DSM-IV indicates: (1) “Schizophrenia onset maybe abrupt or
insidious, with the slow
and gradual development of a variety of signs and symptoms”; and (2) “
‘Most studies of the course
and outcome in Schizophrenia suggest that the course may be variable, with
some individuals
displaying exacerbations and remissions, whereas others remain chronically
ill.’” R. at 35 (citing
DSM-IV at 308-09). Dr. Smith stated that “[i]n reviewing the record, [he]
did not find any
inconsistencies or evidence of exaggeration, or an attempt to deceive
examiners on the part of [the
appellant].” Id. With regard to whether the appellant experienced any pre-
service symptoms, Dr.
Smith stated that “[i]f he had any symptoms prior to active duty, which is
not clear, they were not
to the degree that he needed to seek care.” Id. With regard to his
postservice symptoms, Dr. Smith
stated that “[s]ubsequent to his release from active duty he has had a
typical course of
[s]chizophrenia and continues to be treated to this day. His symptoms have
waxed and waned
through the years. This is one of the typical courses for this disorder.”
Id. Dr. Smith also opined
that the appellant’s depression is “most likely secondary to his chronic [
s]chizophrenia, [because]
comorbidity of the two is high.” Id.
In the November 10, 2009, decision here on appeal, the Board denied the
appellant’s claim
for compensation benefits for a psychiatric disorder, to include
schizophrenia and depression. R. at
4

3-20. After weighing the conflicting medical opinions of record and
finding the appellant’s lay
evidence not credible, the Board assigned less probative weight to Dr.
Smith’s opinion. R. at 13-16.
The Board determined that Dr. Smith’s opinion was less probative because (
1) Dr. Smith only
discussed the favorable evidence of record and failed to discuss the
appellant’s separation
examination, whichnotedthathisnervousness was treated and improved; (2) Dr.
Smith’s conclusion
that the appellant’s “testimony and contentions are consistent” was not
supported by the record; and
(3) the bases for Dr. Smith’s nexus opinion are an inaccurate history
reported by the appellant. R.
at 15-16. The Board foundtheVA examiner’s opinion against the claim more
probative because “the
VA opinion discussed all the evidence on file.” R. at 15. The Board
explained that its conclusion
that a psychiatric disorder was not chronic in service or continuous since
service was based on
several factors, including the absence of chronic psychiatric disability
contained in
the[v]
eteran’sJune1972serviceseparationmedicalhistoryandphysicalexamination
reports, the [v]eteran’s own reported histories, post-service medical
evidence that do
not show a chronic psychiatric disorder until several years after service
discharge,
and the nexus opinion against the claim.
R. at 16-17. After weighing all the evidence, lay and medical, the Board
concluded that the
preponderance of the evidence was against the appellant’s claim. Id. This
appeal followed.
On appeal, the appellantargues that the Board’s decision was
clearlyerroneous because there
was no plausible basis for the Board to favor the June 2008 VA examiner’s
opinion over Dr. Smith’s
opinion. Appellant’s Br. at 5-12. In the alternative, the appellant argues
that the Board failed to
provide an adequate statement of reasons or bases for the relative
probative weight assigned to the
conflicting medical opinions and for finding the appellant’s statements
concerning the onset,
chronicity and continuity of his symptoms not credible. Id. at 12-16.
The Secretary argues for affirmance of the Board’s decision. Secretary’s
Br. at 7-17. The
Secretary argues that the Board was permitted to favor one medical opinion
over another, and that
the Board provided an adequate statement of reasons or bases to support
its determination that the
VA examiner’s opinion was entitled to greater weight than Dr. Smith’s
opinion. Id. at 7-14. The
Secretaryfurther argues that the Board’s credibilitydetermination was not
clearlyerroneous and that
the Board adequately explained its reasons for finding the appellant not
credible. Id.
5

II. ANALYSIS
A. Law
Establishing service connection generally requires medical or, in certain
circumstances, lay
evidence of (1) a current disability; (2) incurrence or aggravation of a
disease or injury in service;
and (3) a nexus between the claimed in-service injury or disease and the
current disability. See
Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v.
West, 12 Vet.App. 247, 252
(1999); Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78
F.3d 604 (Fed. Cir. 1996)
(table). A finding of service connection, or no service connection, is a
finding of fact that the Court
reviews under the “clearly erroneous” standard. See Swann v. Brown, 5 Vet.
App. 229, 232 (1993).
A finding of material fact is clearly erroneous when the Court, 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); see also Gilbert v. Derwinski,
1 Vet.App. 49, 52
(1990).
In rendering its decision, the Board must include a written statement of
the reasons or bases
for its findings and conclusions on all material issues of fact and law
presented on the record; the
statement must be adequate to enable an appellant to understand the
precise basis for the Board’s
decision, and to facilitate informed review in this Court. See 38 U.S.C. §
7104(d)(1); Allday v.
Brown, 7 Vet.App. 517, 527 (1995); Gilbert, 1 Vet.App. at 57. To comply
with this requirement,
the Board must analyze the credibility and probative value of the evidence,
account for the evidence
it finds persuasive or unpersuasive, and provide the reasons for its
rejection of anymaterial evidence
favorable to the claimant. Caluza, 7 Vet.App. at 506; see also Washington
v. Nicholson,
19 Vet.App. 362, 367-68 (2005) (stating that it is the Board’s duty, as
factfinder, to determine the
credibility and weight to be given to the evidence); Smith v. Derwinski, 1
Vet.App. 235, 237-38
(1991) (holding that “[d]etermination of credibilityof veteran’s sworn
testimonyis a function for the
Board”). When a veteran’s service medical records (SMRs) have been lost or
destroyed, the Board
is “under a heightened duty to consider and discuss the evidence of record
and supply well-reasoned
bases for its decision as a consequence of the missing SMRs.” Washington,
19 Vet.App. at 371. “It
is not error for the [Board] to favor the opinion of one competent medical
expert over another when
the Board gives an adequate statement of reasons or bases.” Owens v. Brown,
7 Vet.App. 429, 433
6

(1995). Such assessments will be overturned by this Court only if they
are “clearly erroneous.” Id.;
see also Gilbert, 1 Vet.App. at 52. “When there is an approximate balance
of positive and negative
evidence regarding any issue material to the determination of a matter,
the Secretary shall give the
benefit of the doubt to the claimant.” 38 U.S.C. § 5107(b); see also
Mariano v. Principi,
17 Vet.App. 305, 313 (2003) (also referring to benefit of the doubt rule
as “equipoise standard”); 38
C.F.R. § 3.102 (2011).
B. The Board’s Reasons and Bases
In the instant case, the Court agrees with the appellant that the Board
failed to provide an
adequate explanation for finding his contentions regarding the onset of
psychiatric symptoms not
credible and for finding the VA examiner’s opinion more probative than Dr.
Smith’s opinion. See
Owens, supra. This failure renders the Board’s statement of reasons of
reasons or bases inadequate
to facilitate review; therefore, remand, not reversal, is the appropriate
remedy. See Tucker v. West,
11 Vet.App. 369, 374 (1998) (holding that remand is the appropriate remedy “
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”).
1. The Board’s Credibility Determination
The Court notes that a significant portion of the Board’s analysis and
assignment of relative
weight to the evidence hinged on its determination that the appellant was
not credible. In reaching its credibility determination, the Board found that the appellant’s prior statements, which were made for treatment purposes, outweighed his more recent contentions regarding an in-service onset and continuous postservice symptoms, which were made for disability compensation purposes. R. at 11-13 (citing Harvey v. Brown, 6 Vet.App. 390, 394 (1994) (Board decision properly assigned more probative value to a private hospital record that included lay history that was made for treatment purposes than to subsequent statements made for compensation purposes)).
Thus, the Board heavily relied on the appellant’s reported history in a 1979 treatment note that his hallucinations began in 1978 (R. at 593-94) and the absence of any treatment records that reported
a history of symptoms
in service (R. at 11-12) to find his recent assertions of an in-service
onset not credible. However,
in finding the appellant not credible on this basis, the Board failed to
account for a December 1984 treatment note in which the appellant reported that he “first” experienced psychiatric problems in
7

1971 while he was in the military. R. at 666-68. The Secretary attempts
to downplay the significance of this evidence because the report does not state that the appellant experienced “hallucinations” in service. Secretary’s Br. at 9-10. However, it is the
Board’s duty to analyze the
credibility and probative value of the evidence and, as noted above, this
duty is heightened in cases
such as this where the appellant’s service treatment records are
unavailable. See Washington supra;
see also R. at 6. Here, the Board found the appellant not credible, in
part, because no postservice
treatment reports included a history of “symptoms in service.” R. at 11;
see also R. at 13. This is
clearly contrary to the December 1984 treatment note, which noted “
psychiatric problems . . . in the
military.” R. at 666. On remand, the Board must account for this evidence
and explain its probative
worth when it assesses the appellant’s credibility regarding the onset his
psychiatric symptoms. See
Washington, Allday, and Caluza, all supra. Additionally, because the Board
relied on the appellant’s
report of a postservice onset in 1978 to find his assertion of treatment
soon after service not credible,
on remand the Board may need to examine whether its analysis regarding the
onset of symptoms
impacts its finding that the appellant was not credible when he reported
that he sought treatment
shortly after service and that the records are no longer available because
of the physician’s death.
See R. at 13-14.
2. Probative Value of Conflicting Medical Opinions
The appellant argues that it was improper for the Board to discount Dr.
Smith’s favorable medical opinion because it was based on an “inaccurate history” reported by the appellant, yet find the VA examiner’s opinion probative, when both examiners reviewed the same history and the same record, but drew different conclusions. Appellant’s Br. at 9-10. The Secretary argues, contrary to the appellant’s assertions, that the Board acknowledged that the appellant provided an “incorrect history” to the VA examiner. Secretary’s Br. at 11. In support of this assertion, the Secretary relies on the following analysis:
The history given by the [v]eteran in 1979 dates the onset of symptoms to
1978, still over five years after service separation. . . . This more contemporaneous
history
given bythe [v]eteran in 1979 for treatment purposes contradicts the [v]
eteran’s later
contentions in October 2007 hearing testimony and at the June 2008 VA
examination,which were made for VA disabilitycompensation purposes, that
he had
had auditory hallucinations or other psychotic symptoms since service.
R. at 12 (emphasis added); see Secretary’s Br. at 12.
8

The appellant persuasivelyargues in his reply brief that the Secretary’s
position is untenable,
that is, if the VA examiner also relied on an inaccurate history, as
conceded by the Secretary, then the Board must explain why the inaccurate factual history impugns the bases for Dr. Smith’s opinion but does not diminish the probative worth of the VA examiner’s opinion.Reply Br. at 4-5. The Court agrees. It is true that “[a]n opinion based upon an inaccurate factual premise has no probative value.” Reonal v. Brown, 4 Vet.App. 458, 461 (1993). The problem with the Board’s analysis is that it failed to consistently apply this rule when it evaluated the conflicting medical opinions of record.
That is, although the Board found the appellant’s recent contentions
regarding the onset and continuity of psychiatric symptoms not credible, and relied on this
credibilitydetermination to render
Dr. Smith’s opinion worthy of little probative value, the Board failed to
similarly discuss how its
credibility determination impacted its assessment of the VA examiner’s
opinion, which was based
on the same factual premise.
Additionally, the Board failed to explain why the VA examiner’s opinion
was “more
probative” given the examiner’s reliance on the appellant’s statement that
he had hallucinations prior
to military service, which contradicts the Board’s reliance on the
appellant’s reported history of a
postservice onset in 1978. For this reason, the appellant argues that the
Board erred when it relied
on the VA examiner’s “incomplete” opinion, which assumed a preservice
onset. Appellant’s Br. at
10-11. The Secretary argues that the appellant’s report of a history to
the VA examiner that was
different than the history provided in other medical reports does not
result in error by the examiner
in taking the history and including it in the examination report.
Secretary’s Br. at 12. Although it
may have been proper for the examiner to record the appellant’s history of
having had hallucinations
prior to service, as noted above, the Board should have explained its
reasons for finding the VA
examiner’s opinion “more probative” when it was clearly based on a history
that was rejected by the
Board.1
See R. at 105 (“While the day-to-day stress of military service may have
exacerbated the
The Board’s reasons for finding the opinion probative are unclear because,
in stating that
it was relying on the opinion, the Board acknowledged that the examiner
considered whether the
stress in the military aggravated the appellant’s preexisting psychotic
symptoms (R. at 14), yet the
Board proceeded to find that the appellant was not credible because
postservice treatment records
indicated that his symptoms began in 1978.
9
1

veteran’s pre-existing psychotic symptoms, there is no clear evidence
that [] his military service has
served as a long-term aggravating factor.” (emphasis added)).
The Court also agrees with the appellant that the Board failed to provide
an adequate
statement of reasons or bases for assigning less probative weight to Dr.
Smith’s opinion because he
“failed to discuss” the appellant’s service separation notation that his
nervousness was treated and
improved. Appellant’s Br. at 8-9; ReplyBr. at 2-3. The Secretaryasserts
that the Court should reject
this argument because although Dr. Smith mentioned the separation
examination “in passing,” he
failed to explain how the service examination influenced his opinion.
Secretary’s Br. at 10-11.
However, in discounting Dr. Smith’s opinion onthisbasis,the Board did not
explain whyDr. Smith’s
discussion regarding the nature of schizophrenia and how the schizophrenia
played out in the
appellant’s case did not adequately address why the absence of a
psychiatric diagnosis at discharge
did not alter his opinion that the appellant’s schizophrenia began in
service. In this regard, the Court
notes that Dr. Smith relied on the DSM-IV, which describes the course of
schizophrenia as being
“‘variable, with some individuals displaying exacerbations and remissions,
whereas others remain
chronically ill,’” and that the appellant’s “symptoms have waxed and waned
through the years[,
which] is one of the typical courses for this disorder.” R. at 35. As
stated earlier, the Board is
permitted to favorthe opinion of one competent medical expert over another
provided that the Board
supplies an adequate statement of reasons or bases for its conclusion. See
Owens, supra. The Board
did not do so here. Accordingly, the Court will remand the matter to the
Board. See Tucker and
Owens, both supra.
C. The Appellant’s Remaining Arguments
BecausetheCourt hasdeterminedthatremandis the appropriate remedyhere, the
Court need
not address each of the appellant’s remaining arguments that would not
result in a broader remedy.
See Mahl v. Principi, 15 Vet.App. 37, 38 (2001) (per curiam order) (
holding that “if the proper
remedy is a remand, there is no need to analyze and discuss all the other
claimed errors that would
result in a remedy no broader than a remand”); see also Best v. Principi,
15 Vet.App. 18, 19 (2001)
(per curiam order) (holding that the Court generallydecides cases on the
narrowest possible grounds
and therefore is not required to rule upon other allegations of error in
effecting a remand). In
pursuing his case on remand, the appellant is free to submit additional
evidence and argument on the
10

remanded matters, and the Board is required to consider any such relevant
evidence and argument.
See Kay v. Principi, 16 Vet.App. 529, 534 (2002) (stating that, on remand,
the Board must consider
additionalevidenceandargumentinassessingentitlementto benefit sought);
Kutscherouskyv.West,
12 Vet.App. 369, 372-73 (1999) (per curiam order). The Court has held that
“[a] remand is meant
to entail a critical examination of the justification for the decision.”
Fletcher v. Derwinski,
1 Vet.App. 394, 397 (1991). The Board must proceed expeditiously, in
accordance with 38 U.S.C.
§ 7112 (requiring Secretaryto providefor”expeditious treatment”of claims
remanded bythe Court).

III. CONCLUSION
After consideration of the appellant’s and the Secretary’s briefs, and a
review of the record,
the Board’s November 10, 2009, decision is VACATED and the matter REMANDED
for further
proceedings consistent with this decision.
DATED: December 12, 2011
Copies to:
Robin M. Webb, Esq.
VA General Counsel (027)
11

Here, the Board found that Mr. Breedlove’s injury did not occur within the
scope of “hospital care” because he was injured from an incident that was coincident with VA treatment and not from the treatment itself. However, under the lens of Bartlett, “hospital care” includes more than direct treatment. Consequently, this matter will be remanded for the Board to consider the application of Bartlett.
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 08-3059
BRENDA BREEDLOVE, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before KASOLD, Chief Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
KASOLD, Chief Judge: Brenda Breedlove, surviving spouse of Charles L.
Breedlove,
appeals through counsel a September 9, 2008, decision of the Board of
Veterans’ Appeals (Board)
that denied accrued benefits for injuries Mr. Breedlove sustained from a
door malfunction at a VA
hospital. Mrs. Breedlove argues that reversal is required because the
Board erred by (1) applying
the incorrect legal standard to Mr. Breedlove’s claim, (2) finding that Mr.
Breedlove’s injuries were
the result of an intervening cause, and (3) providing an inadequate
statement of reasons or bases for
its reliance on two VA General Counsel Precedent Opinions and its
rejection of Mr. Breedlove’s lay
testimony. The Secretary disputes these contentions. Single-judge
disposition is appropriate.
Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following
reasons, the Board’s decision
will be set aside and the matter remanded for further adjudication.
During the pendency of this appeal, the Court decided Bartlett v. Shinseki,
24 Vet.App. 328 (2011), which further clarified the definition of “hospital care”under 38 U.S.C. § 1115. 24 Vet.App. at 331-33. The Court held that “hospital care” is not limited to medical services and includes
services unique to the hospitalization of patients. Id. at 332. Moreover,
the Court stated that the term “hospital care” “depend[s] on a variety of factors, including the nature of services, the degree of VA control over patient freedom, the mental and physical conditions of the patients, and the foreseeability of potential harms.” Id. at 333.

Here, the Board found that Mr. Breedlove’s injury did not occur within the
scope of “hospital care” because he was injured from an incident that was coincident with VA treatment and not from the treatment itself. However, under the lens of Bartlett, “hospital care” includes more than direct treatment. Consequently, this matter will be remanded for the Board to consider the application of Bartlett. See 38 U.S.C. § 7252(a) (authorizing Court to remand as appropriate); Maggitt v. West, 2002 F.3d 1370, 1377-78 (Fed. Cir. 2000) (if the Court has jurisdiction over a claim, issues presented for the first time on appeal may be remanded to the Board for further development);
Ohland v. Derwinski, 1 Vet.App. 147, 150 (1991) (remanding case to the
Board without vacating or setting aside Board decision on appeal).
On remand, Mrs. Breedlove may present, and the Board must consider, any
additional evidence and argument in support of the matters remanded. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). These matters are to be provided expeditious treatment on remand. See 38 U.S.C. § 7112.
For the reasons stated above, the September 9, 2008, decision of the Board
is SET ASIDE and the matter REMANDED for further adjudication.
DATED: December 16, 2011
Copies to:
Michael D. Maloney, Esq.
VA General Counsel (027)
2