Veteranclaims’s Blog

March 3, 2011

Single Judge Application TDIU, CFR. 4.16, Physician Duties Render Diagnosis and Medical Causation

Excerpt from decision below:
“Despite the position of the Board and the Secretary, however, there is no
requirement that a medical opinion use the precise language of a statute or regulation. Cf. Dyment v. West, 13 Vet.App. 141 (1999) (holding medical examiner’s word choice is not error where opinion is unambiguous); Holland, 6 Vet.App. at 448 (listing no magic words for SSA decision to be considered evidence). Nor does the medical opinion need to be “an unequivocal professional opinion of record that the veteran was unemployable” for an award of TDIU. Beaty v. Brown, 6 Vet.App. 532, 539 (1994). The physician’s task is to provide diagnoses and opine as to medical causation; VA is charged with finding facts and applying the appropriate legal standards, including using its judgment to determine whether the § 4.16 standard has been met.
Here, the Board was required to determine whether the evidence supported a finding that the appellant was unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities prior to February 2002, not whether a particular piece of evidence stated as
much.”
====================================

—————————————————-

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 08-2650
WILLIE J. COLE, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before MOORMAN, Judge.

MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.

MOORMAN, Judge: The appellant,Willie J. Cole, appeals through counsel a
June 17, 2008,
Board of Veterans’ Appeals (Board) decision that denied entitlement to an
effective date prior to
February 27, 2002, for the award of a total disability rating based on
individual unemployability
(TDIU). Both parties filed briefs and the appellant filed a reply brief.
The Court has jurisdiction
pursuant to 38 U.S.C. §§ 7252(a) and 7266(a) to review the June 2008
Board decision. A single
judge may conduct that review. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (
1990). For the
following reasons, the Court will vacate the Board’s June 2008 decision
and remand for adjudication
consistent with this decision.
I. BACKGROUND
Mr. Cole served in the U.S. Navy from May 1978 to October 1982. Record (R.)
at 2415.
In 1982, Mr. Cole claimed service connection for a left knee disability (R.
at 2453-56), and a VA
regional office (RO) granted entitlement and assigned a 20% disability
rating, decreased to 10% in
1983 (R. at 2428). Mr. Cole underwent left knee ligament reconstruction in
April 1992. R. at 2125-
26. In June 1993, the RO granted Mr. Cole a 30% rating for his left knee.
R. at 2051-52. In July
1993, Mr. Cole filed a claim for TDIU. R. at 2039-40. In April 1995, the
RO received an August
1992 orthopedic disability examination report prepared by Dr. Karam. R. at
1948-50. After the RO

denied TDIU in May1995, Mr. Cole appealed to the Board, and the Board
remanded the TDIU claim
in June 1996 and January 1997 for further development. R. at 1737-43, 1600-
05. In November
1997, the RO granted Mr. Cole service connection for chronic low back pain
secondary to his left
knee disability, effective July 1997 and assigned a 10% rating (R. at 1444-
47), which was later
increased to 20% with the same effective date (R. at 848-53). The RO
received a May 1993 Social
Security Administration (SSA) decision awarding Mr. Cole disability
benefits (R. at 1701-05) and
private medicalrecordsfromDr.Pflum (R. at 1489, 840), and Mr. Cole
underwent VA examinations
for his conditions (see, e.g., R. at 901, 1694-98). Subsequently, the TDIU
claim wasagain remanded
in October 2000 by the Board, in October 2002 by this Court, and again by
the Board in February
2004. R. at 780-802, 557, 314-22. Additional medical records were added to
the claims file,
including records from Dr. Pflum (R. at 739, 620) and VA examination
reports (R. at 485-89, 304).
In December 2004, Mr. Cole was granted service connection for right knee
patello-femoral
syndrome and assigned a 10% rating, effective January23, 1998, and
entitlement to TDIU, effective
February 27, 2002, on the claim originally filed in July 1993. R. at 281-
88. Mr. Cole was granted
TDIU because, as a result of his service-connected disabilities to his
knees and back, his disabilities
“met the minimum for a single disability rated at 60 percent,” the minimum
rating threshold for
TDIU under 38 C.F.R. § 4.16(a). R. at 10, 288. Although Mr. Cole met the
60% threshold as of
January 23, 1998, he was assigned an effective date of February 27, 2002.
R. at 281-88. Mr. Cole
disagreed with the TDIU effective date, but the Board denied his appeal in
February2006. R. at 150-
53. Mr. Cole appealed, and the Court granted a joint motion for remand. R.
at 32-37. Remand was
required because the Board had erroneouslyfound that Mr. Cole had not
appealed a June 2001 Board
decision denying entitlement to TDIU, and therefore erroneously found that
the earliest date Mr.
Cole was eligible for an award of TDIU was February 27, 2002, the date he
supposedly submitted
a new claim for TDIU. Id. On remand, the Board was required to satisfy its
duty to provide an
adequate statement of reasons or bases for the earliest potential
effective date for Mr. Cole’s TDIU
award. Id. In June 2008, the Board found that July 29, 1993, was the
earliest possible effective date,
but denied entitlement to an effective date prior to February 27, 2002. R.
at 3-14. Mr. Cole’s appeal
of that decision is currently before the Court.
2

On appeal here, the appellant argues that the Board failed to provide an
adequate statement
of reasons or bases for rejecting evidence favorable to him in denying his
claim for an earlier
effective date for the grant of TDIU. The evidence at issue includes two
SSA decisions and medical
records from two physicians, Dr. Karam and Dr. Pflum. The Secretary argues
that the Board
provided an adequate statement of reasons or bases for its findings.
II. ANALYSIS
A claim for TDIU is governed by 38 C.F.R. § 4.16. Section 4.16 provides
two avenues for
the assignment of total disability ratings for compensation where the
schedular rating is less than
total. 38 C.F.R. § 4.16. First, total disability ratings for compensation
may be assigned “when the
disabled person is, in the judgment of the rating agency, unable to secure
or follow a substantially
gainful occupation as a result of service-connected disabilities . . .”
and certain disability thresholds
have been met. 38 C.F.R. § 4.16(a). Alternatively, even if the disability
thresholds have not been
met, if the veteran is “unemployable by reason of service-connected
disabilities,” the RO must
submit the veteran’s claim to the director of VA Compensation and Pension
Service for “extra-
schedular consideration.” 38 C.F.R. § 4.16(b). In either case, VA must
determine whether,
essentially, the veteran is unable to work due to his or her service-
connected disability or
disabilities.1
The Board’s determination of an earlier effective date is reviewed under
the “clearly
erroneous” standard of review set forth in 38 U.S.C. § 7261(a)(4). See
Hanson v. Brown, 9 Vet.App.
29, 32 (1996). “‘A finding is “clearly erroneous” when although there is
evidence to support it, the
reviewing court on the entire evidence is left with the definite and firm
conviction that a mistake has
been committed.'” Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) (quoting
United States v. U.S.
Gypsum Co., 333 U.S. 364, 395 (1948)). If the Board’s “‘account of the
evidence is plausible in light
of the record viewed in its entirety, the court of appeals may not reverse
it.'” Id. (quoting Anderson
v. City of Bessemer City, 470 U.S. 564, 573-74 (1985)).
1
The two sections use slightly different language to describe similar
concepts. Section 4.16(a) uses “unable
to secure or follow a substantially gainful occupation as a result of
service-connected disabilities.” Section 4.16(b) uses
both this language and also “unemployable by reason of service-connected
disabilities.” For the purposes of this case,
the Court sees no reason to distinguish these two standards.
3

The Board, as fact finder, is responsible for evaluating the medical
evidence of record and
assigning each report or opinion its due probative weight. Wood v.
Derwinski, 1 Vet.App. 190, 193
(1991). In reviewing the evidence, the Board is free to favor one medical
opinion over another if it
provides an adequately articulated rationale for its decision. See Owens v.
Brown, 7 Vet.App. 429,
433 (1995).
In addition, the Boardmust provideawrittenstatementof the reasons or bases
forits findings
and conclusions on all material issues of fact and law presented on the
record; the statement must
be adequate to enable a claimant to understand the precise basis for the
Board’s decision, as well as
to facilitate review in this Court. See 38 U.S.C. § 7104(d)(1); Allday v.
Brown, 7 Vet.App. 517, 527
(1995). To complywith this requirement, the Board must analyze the
credibilityand probative value
of the evidence, account for the evidence which it finds to be persuasive
or unpersuasive, and
provide the reasons for its rejection of any material evidence favorable
to the veteran. Allday,
7 Vet.App. at 527.
A. Reasons or Bases
1. Social Security Administration Decisions
The appellant argues that “[t]he Board inadequately explained its finding
that the SSA
decisions do not demonstrate an inability to obtain or retain
substantially gainful employment prior
to February 27, 2002.” Appellant’s Brief (Br.) at 10. This Court has
stated:
SSA’s disability determinations are not binding on the VA because, while
there are
significant similarities, there are significant differences between the
two disability
determination schemes. Nevertheless, the SSA’s determination is evidence ”
and to
the extent its conclusions are not accepted, reasons or bases should be
given
therefor.”
Holland v. Brown, 6 Vet.App. 443, 448 (1994) (internal citation omitted) (
quoting Collier v.
Derwinski, 1 Vet.App. 413, 417 (1991)); see also Martin v. Brown, 4 Vet.
App. 136, 140 (1993)
(SSA decision “pertinent” to determination of veteran’s ability to
engage in substantially gainful
employment).
4

In the first SSA decision, dated May 1993, an administrative law judge (
ALJ) found the
appellant was “disabled” as defined by the Social Security Act.2
Specifically, the ALJ found the
appellant (1) met the disability insured status requirements of the Act of
April 4, 1992, the date he
stated he became unable to work, and continued to meet them through
December 31, 1995; (2) had
not engaged in substantial gainful activity since April 4, 1992, and (3)
had “severe musculoskeletal
impairments” to his left knee, the severity of which had precluded him
from working for at least
twelve continuous months.3
R. at 1703. The ALJ awarded the appellant a period of disability
commencing on April 4, 1992, and disability insurance benefits under
sections 216(i) and 223,
respectively, of the Social Security Act. R. at 1705. The ALJ further
decided that the appellant was
“disabled” as defined by section 1614(a)(3)(A) of the Social Security Act
as of June 9, 1992, and
remained disabled at least through the date of the decision. Id.
In the second SSA decision, dated January 1998, a disability hearing
officer made the
following pertinent conclusions: (1) the appellant had not engaged in
substantial gainful activity
since April 4, 1992; (2) the appellant underwent left knee arthroscopic
surgery since the December
1996 cessation of benefits; and (3) the appellant was disabled. R. at 1288-
90; see R. at 1285.
The Board acknowledged its duty to “provide the basis for disagreeing with
or not accepting
a finding of disability by a Social Security Administration administrative
law judge.” R. at 8 (citing
Holland, 6 Vet. App. at 448). However, in addressing the May 1993 SSA
determination, the Board
stated that because the ALJ did not actually determine whether the
appellant “was totally incapable
of obtaining and maintaining substantially gainful employment,” the SSA
determination “had no
bearing on the veteran’s claim with VA,” and the Board discussed it no
further. R. at 8 (emphasis
in original). In addressing the January 1998 decision, the Board stated: ”
On appeal [at the SSA], the
veteran’ [sic] eligibility was reinstated on the same basis as it was
originally awarded, which did not
Specifically, the ALJ found the appellant’s medical condition met the ”
criteria of section 1.03(B) of the Listing
of Impairments found in Appendix 1, Subpart P of the Regulations No. 4
dealing with arthritis of a major weight bearing
joint due to any cause with the history of persistent joint pain and
stiffness with signs of marked limitation of motion or
abnormal motion of the affected joint on current physical examination with
reconstructive surgery or surgical arthrodesis
of a major weight bearing joint and returned to full weight bearing status
did not occur, or is not expected to occur, within
twelve months of onset.” R. at 1701, 1703.
Whether the ALJ meant the appellant was precluded from working in his
postal job or any job—an issue
raised by the parties regarding another item in the record—is immaterial
to the present analysis.
3
2
5

factor in the his [sic] ability to perform any other type of gainful
employment.” R. at 9. Apparently
the Board’s position was that since the SSA decisions did not determine
whether the appellant could
obtain and maintain substantially gainful employment, the findings and
conclusions regarding the
appellant’s disability were irrelevant to the appellant’s claim before VA,
and the Board was not
required to provide reasons or bases for not accepting them.
The Board misunderstands the mandate of Holland and Collier. Those cases
hold that if the
Board does not accept the SSA “conclusions,” it must provide reasons or
bases for not doing so.
Holland, 6 Vet.App. at 448, Collier, 1 Vet.App. at 417. It is immaterial
that the SSA did not make
the conclusion required of VA in awardingTDIU benefits. See 38 C.F.R. § 4.
16(a) (“Total disability
ratings for compensation may be assigned, where the schedular rating is
less than total, when the
disabled person is, in the judgment of the rating agency, unable to secure
or follow a substantially
gainful occupation asaresultofservice-connecteddisabilities.. . .”). The
conclusions contemplated
by Holland and Collier include, in this instance, (1) the finding that the
appellant had not engaged
in substantial gainful activity since April 4, 1992; (2) the finding that
the appellant had “severe
musculoskeletal impairments;” (3) the finding that the appellant’s
impairments precluded him from
working for at least twelve continuous months; and (4) the finding that as
of June 9, 1992, the
appellant was disabled as defined by section 1614(a)(3)(A) of the Social
Security Act and remained
disabled at least through the date of the decision. The Board did not
provide any reasons or bases
for rejecting these conclusions, it merely stated it was not required to
do so because the agencies
used different disability determination schemes. This interpretation would
eviscerate this Court’s
holdings that even though the schemes are different, VA must nevertheless
provide reasons or bases
for rejecting SSA conclusions. Therefore, while the Board is free to
reject SSA conclusions, its
failure to provide reasons or bases for doing so is contrary to 38 U.S.C. §
7104(d)(1), Holland,
and Collier.
2. Dr. Karam Medical Report
The appellant argues that the Board failed to address an August 1992
medical report by Dr.
Karam, which found the appellant had a “severe internal derangement at the
left knee” that
“[s]everely limited” his ability to do work-related activities.
Appellant’s Br. at 11-12 (citing R. at
6

7-9, 1948-50). The Secretaryrespondsthat”whiletheBoarddid not
specificallydiscuss Dr. Karam’s
findings, it did thoroughly discuss the 1993 SSA decision which referenced
Dr. Karam’ findings.”
Sec’y Br. at 12. Because the Court concluded that the Board did not
provide an adequate statement
of reasons or bases for rejecting favorable evidence in the May 1993 SSA
decision, this argument
is unavailing. The Secretarypoints out that Dr. Karam’s opinion
onlysuggests that the appellant was
limited in his work at the U.S. Postal Service but does not suggest he was
unable to engage in other
substantially gainful activity. Id. To the extent that the
Secretaryattempts to explain whythe Board
rejected Dr. Karam’s opinion, the Court cannot accept the post hoc
rationalization of an implicit
rejection in lieu of an adequate statement of reasons or bases by the
Board. See Martin v.
Occupational Safety &Health Review Comm’n, 499 U.S. 144, 156 (1991).
Accordingly, the Board’s
failure to provide an adequate statement of reasons or bases for its
treatment of this evidence as it
relates to the appellant’s claim for an earlier effective date warrants a
remand.
3. Dr. Pflum Medical Reports
The appellant argues that the Board inadequately explained its rejection
of three of Dr.
Pflum’sreports asevidenceofunemployabilitydueto service-
connecteddisabilities. Appellant’s Br.
at 12-13. In the first report, dated March 1997, Dr. Pflum opined that the
appellant “has a total
disability secondary to a previous knee injuryNext Hit sustained in boot camp.” R.
at 1489. Regarding this
report, the Board stated: “Although a March 1997 report by Dr. Pflum also
noted the veteran was
totally disabled, it is clear he was referring to the veteran’s ability to
lift the heavy mail bags as he
formerly did.” R. at 9. In response, the Secretary concedes Dr. Pflum did
not limit his “total
disability” opinion to the appellant’s abilityto lift heavymail bags but
asserts it is “within the Board’s
‘purview’ to assess the evidence of record, in this case, the fact that
the medical evidence noted [the]
[a]ppellant’s inability to do his previous work with the U.S. Post Office.”
Sec’y Br. at 13 (citing
Dalton v. Nicholson, 21 Vet.App. 23, 38 (2007)). Although Dalton provides
that “[d]eterminations
of credibility are findings of fact to be made by the Board in the first
instance,” (21 Vet.App. at 38),
it also stands for the proposition that the Board must make certain
credibility determinations and
explain them to provide an adequate statement of reasons or bases for its
decision. See id. at 38-39
(noting that Board’s failure to describe credibility determination “does
not facilitate judicial review
7

nor is it helpful to understanding the basis for the Board’s decision”);
see also Gabrielson v. Brown,
7 Vet.App 36, 39-40 (1994). In this instance, the Board presumably gave
little or no weight to Dr.
Pflum’s March 1997 report that the appellant was totally disabled,
choosing instead to favor a
medical record that limited the appellant’s disability to his prior
occupation. While the Board is free
to favor one medical opinion over another, its failure to provide a
statement of the reasons or bases
for its rejection of evidence favorable to the appellant constitutes error.
Next, the parties dispute whether the Board complied with section 7104(d)(
1) regarding a
July 1997 report of Dr. Pflum. The Board stated: “A July 1997 record from
Dr. Pflum noted that the
appellant was totally disabled, but that opinion considered a nonservice
connected shoulder
disorder.” Sec’y Br. at 13-14. The Court presumes the Board’s position was
that, because Dr. Pflum
considered a non-service-connected Previous HitinjuryNext Document in conjunction with service-
connected injuries in
concludingthat the appellant was totallydisabled, the Board could not
determine to what extent each
oftheappellant’s injuriescontributedto Dr.Pflum’sconclusion,renderingit of
little probativevalue.
Nevertheless, the Court concludes that the Board failed to provide a
statement of reasons or bases
that is adequate to enable a claimant to understand the precise basis for
its decision.
Finally, in February 2001, Dr. Pflum again stated that the appellant “is
disabled secondary
to an old anterior cruciate ligament tear.” R. at 739. The Secretary
concedes that the Board did not
address this record. Sec’y Br. at 15. On remand the Board must address
this evidence in relation to
the appellant’s claim for an effective date prior to February 2002 for
TDIU.
4. Benefit of the Doubt
The appellant argues that the Board’s statement that the preponderance of
the evidence was
against an effective date earlier than February27, 2002,was conclusoryand
inadequatelyexplained.
Appellant’s Br. at 14 (citing R. at 11). The Secretary did not respond to
this argument. In light of
the Court’s other conclusions, it need not reach this issue. On remand, if
the Board still finds the
benefit-of-the-doubt doctrine inapplicable, it must provide a satisfactory
explanation as to why the
evidence is not in equipoise as there appears to be significant evidence
in support of the appellant’s
claim. See 38 U.S.C. § 5107(b); Williams v. Brown, 4 Vet.App. 270, 273-74 (
1993).
8

B. Precise Language Not Required
As noted above, when a veteran seeks a grant of TDIU, VA must determine
whether the
veteran is unable to work due to his or her disability. See 38 C.F.R. § 4.
16(a) (“[W]hen the disabled
person is, in the judgment of the rating agency, unable to secure or
follow a substantially gainful
occupation as a result of service-connected disabilities . . . .”) (
emphasis added); § 4.16(b) (requiring
ratings board to submit cases of veterans who are “unemployable by reason
of service-connected
disabilities”to directorofVACompensationandPensionServiceforextra-
schedularconsideration).
Section 4.16(a) expressly requires the rating agency to make this
employability determination;
§ 4.16(b) implies as much. In this case, however, the Board appears to
have required a medical
opinion to make that determination.
In denying the appellant’s claim for an earlier effective date, the Board
seems to have relied
on the fact that many pieces of evidence that appear favorable to the
appellant—SSA decisions and
medical records from private physicians—do not expressly state that the
appellant is “unable to
secure or follow a substantially gainful occupation as a result of service-
connected disabilities” or
some iteration of that phrase. See, e.g., R. at 8 (finding that SSA
decision had “no bearing” on claim
with VA because it did not discuss § 4.16(a) standard). In response to Dr.
Pflum’s March 2002
report stating the appellant’s injuries were “a very significant
disability causing him to be unable to
find employment” (R. at 620), the Board stated “an inability to find
employment is not equivalent
to a medical determination that one is physical [sic] or mentally
incapable of obtaining and
maintaining substantially gainful employment.”4
R. at 10. The Secretary repeated these statements
to support its argument that the Board provided adequate reasons or bases
for rejecting certain
evidence. See, e.g., Sec’y Br. at 11, 12, 15, 16. In addition, the Board
found entitlement to TDIU
arose only after specifically asking a physician, using the terms of § 4.
16(a), whether the standard
had been met. See R. at 304.
The March 2002 report is relevant because, while the RO granted the
appellant an effective date of February
27, 2002, the Board found the appropriate date to be March 2, 2004,
because between the date the claim was received
and the date entitlement arose, the effective date is the later of the two.
R. at 11 (citing 38 C.F.R. § 3.400(o)). The
appellant’s claim was received in July 1993; the Board found entitlement
to TDIU arose on March 2, 2004, the date of
a spine examination. Id.
4
9

Despite the position of the Board and the Secretary, however, there is no
requirement that
a medical opinion use the precise language of a statute or regulation. Cf.
Dyment v. West,
13 Vet.App. 141 (1999) (holding medical examiner’s word choice is not
error where opinion is
unambiguous); Holland, 6 Vet.App. at 448 (listing no magic words for SSA
decision to be
consideredevidence). Nordoesthemedicalopinion needto be”anunequivocal
professional opinion
of record that the veteran was unemployable” for an award of TDIU.
Beaty v. Brown,
6 Vet.App. 532, 539 (1994). The physician’s task is to provide diagnoses
and opine as to medical
causation; VA is charged with finding facts and applying the appropriate
legal standards, including
using its judgment to determine whether the § 4.16 standard has been met.
Here, the Board was
required to determine whether the evidence supported a finding that the
appellant was unable to
secure or follow a substantially gainful occupation as a result of service-
connected disabilities prior
to February 2002, not whether a particular piece of evidence stated as
much.
C. Prejudicial Error
The Court is required to consider whether an error committed by the Board
is prejudicial.
See Shinseki v. Sanders, 129 S. Ct. 1696, 1708 (2009) (holding that this
Court must take due account
of the rule of prejudicial error). Here the Board did not provide an
adequate statement of reasons
or bases in reaching its conclusions by failing to describe its treatment
or rejection of certain
evidence that was favorable to the claimant. The Board also appears to
have misinterpreted
38 C.F.R. § 4.16 by requiring a medical opinion—as opposed to a VA
determination—to state that
a disabled person is unable to secure or follow a substantially gainful
occupation as a result of
service-connected disabilities. Had the Board not made these errors, it
may have reached a
materially different decision. Thus, the Court cannot say, based on the
record before it, that the
appellant here has not been prejudiced. Accordingly, the matter must be
remanded for the Board to
readjudicate the matter consistent with this decision.
D. Remand
The Board found that July 29, 1993, is the earliest possible date that the
appellant might be
assigned for his award of TDIU but found no evidence that his left knee
disability, the only service-
10

connected disability at the time, met the requirements of § 4.16(b) (R.
at 7). The Board also found
that he did not meet the schedular requirements for a TDIU award under §
4.16(a) until January 23,
1998 (see R. at 10, 288). The Board, however, did not provide an adequate
statement of reasons or
bases discussing whether the appellant met the requirements under § 4.16(
b) between July 29, 1993,
and February 26, 2002. Such discussion must analyze the matter under Thun
v. Peake, 22 Vet.App.
111, 115 (2008). Although the Board recognized that the schedular
requirements of § 4.16(a) were
met as of January 23, 1998, its statement of reasons or bases for
concluding that the appellant was
not entitled to an award of TDIU prior to February 27, 2002, was
inadequate for the reasons stated
above. On remand, the Board must reexamine and consider all the evidence
and, if it rejects or finds
unpersuasive any evidence that discusses the appellant’s ability to work
prior to February 27, 2002,
under either § 4.16(a) or (b), the Board must provide an adequate
statement of reasons or bases for
doing so.
On remand the appellant is free to submit additional evidence and argument
on the 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). 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) (noting Court expects critical examination to occur on remand,
in which Board will
reexamine evidence of record, seek additional evidence as necessary, and
issue well-supported
decision). The Board must proceed expeditiously, in accordance with 38 U.S.
C. § 7112.
III. CONCLUSION
After consideration of the appellant’s and the Secretary’s briefs, and a
review of the record,
the Board’s June 17, 2008, decision denying an earlier effective date for
the grant of TDIU is
VACATED and the matter is REMANDED for adjudication consistent with this
decision.
DATED: March 1, 2011
Copies to:
Glenn R. Bergmann, Esq.
VA General Counsel (027)
11

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