Veteranclaims’s Blog

March 30, 2011

Single Judge Application, Buczyski v.Shinseki , Role Medical Examiner, Words Used Medical Report

Excerpt from decision below:
“However, the appellant’s argument confuses the role of the medical examiner and the rating specialist. “The medical examiner provides a disability evaluation and the rating specialist interprets medical reports in order to match the rating
with the disability.” Moore v. Nicholson, 21 Vet.App. 211, 218 (2007), rev’d on other grounds sub nom. Moore v. Shinseki, 555 F.3d 1369 (2009); see also 38 C.F.R. § 4.2 (2010) (“It is the responsibility of the rating specialist to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of present disability.”). Hence, the Board is not bound by Dr.
Graeber’s characterization of the appellant’s CTS as “moderate” when it determines that the medical evidence and the claimant’s overall disability picture does not support the doctor’s characterization.
Additionally, the VA examinations do not lack all probative value merely because the examiners did not discuss the severity of the appellant’s CTS in accordance with
classifications found in the DC. See Moore, supra; see also Buczynski v. Shinseki, __ Vet.App. __, __, 2011 WL 37846, at *5 (Jan. 6, 2011) (“When words are objective and have a precise medical meaning, then an examiner may be required to use those words to provide an adequate opinion. When words are subjective and do not have a precise medical meaning, then a medical opinion is adequate when the examiner provides sufficient detail so the rating specialist can interpret the report and make a subjective determination as to whether the condition meets the rating criteria.”). Rather, medical examiners fulfill their role when they describe a claimant’s symptoms “in sufficient detail so that the Board’s ‘”evaluation of the claimed disability will be a fully informed one.”‘” Stefl, 21 Vet.App. at 123 (quoting Ardison, 6 Vet.App. at 407 (quoting Green, 1 Vet.App. at 124)).”
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-2612
ELIJAH J. RAWLS, JR., 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, Elijah J. Rawls, Jr., through counsel,
appeals an April
22, 2009, Board of Veterans’ Appeals (Board) decision in which the Board
denied his claims for
entitlement to service connection for erectile dysfunction (ED) and
hypertension, both to include as
secondaryto diabetes mellitus, Type II (DM), and an initial disability
rating in excess of 10% for left
upper extremity (LUE) carpal tunnel syndrome (CTS). Record of Proceedings (
R.) at 3-21. The
Board also denied claims for entitlement to service connection for an eye
disability, including
glaucoma, and the loss of taste and smell, to include as secondary to DM;
however, the appellant
raises no allegation of error with regard to those claims. Therefore, the
Court will consider the
matters to have been abandoned on appeal. See Ford v. Gober, 10 Vet.App.
531, 535 (1997)
(holding claims not argued on appeal are deemed abandoned); Bucklinger v.
Brown, 5 Vet.App. 435
(1993). 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. See Frankel v.
Derwinski,1Vet.App.23,25-26(1990). Becausethe Secretaryprovided,and the
Board reliedupon,
a clearly inadequate medical examination to deny service connection for ED
and hypertension
secondary to DM, and the Board provided an inadequate statement of reasons
or bases to deny a

higher disability rating for LUE CTS, the Court will vacate the April 22,
2009, decision and remand
the matter for further proceedings consistent with this decision.
I. BACKGROUND
The appellant served on active duty in the U.S. Marine Corps from July
1963 to November
1967, including service in the Republic of Vietnam. R. at 4, 692. In May
2005, the appellant was
awarded service connection for DM. R. at 569-73. In 2006, the appellant
claimed entitlement to
service connection for ED, hypertension, and numbness in the left hand. R.
at 376. The appellant
underwent a VA compensation and pension examination in June 2006 to
evaluate his DM. R. at
502-04. TheVAexaminer noted that theappellant”has essentialhypertension[,]
whichisnot caused
by his [DM].” R. at 503. The VA examiner also reported that the appellant ”
has incomplete [ED,]
which is more likely from longstanding hypertension, antihypertensive
medication[,] and [DM.]
[T]herefore, I am unable to resolve this ED issue without resor[t] to
speculation.” R. at 503-04.
The appellant also underwent a VA compensation and pension examination in
September
2006 to evaluate upper extremity polyneuropathy. R. at 239. The examiner
noted “a significant
change in the subjective sensory findings in the last three months [and]
poor motor effort making
[him] suspicious of malingering.” Id. The examiner opined that “[t]he
distribution of sensory loss
is inconsistent with polyneuropathy, and of to[o] rapid a progression to
be due to well[-]controlled
diabetes.” Id.
In an October 25, 2006, rating decision, the regional office (RO) granted
entitlement to
service connection for LUE CTS, with a 10% disability rating, effective
from June 1, 2006, and
denied entitlement to service connection for ED and hypertension. R. at
364-74. The appellant
initiated a timely appeal disputing the assigned 10% disability rating for
LUE CTS and the denial
of his claims for ED and hypertension. R. at 158, 190, 203-29, 352. In
support of his request for a
higher disability rating for LUE CTS, the appellant submitted October 2006
and July 2008 medical
reports from Dr. Michael Graeber. R. at 44, 356.
The Board issued the decision currently on appeal on April 22, 2009. R. at
3-21. The Board
denied the appellant’s ED and hypertension claims because it found the
appellant’s lay statements
indicating an association between his condition and service outweighed by ”
the negative service
2

treatment records, post[]service treatment records and the negative [June
2006] VA medical
opinion[] . . . (declining to connect ED [and] [hypertension] . . . to the
service-connected DM).” R.
at 13-14. The Board also denied a higher disability rating for LUE CTS
because it found that the
criteria for a disability rating in excess of 10% had not been met. R. at
6 (citing 38 C.F.R. §§ 4.20,
4.124a, Diagnostic Code (DC) 8515 (2008)). This appeal followed.
The appellant argues that the Board’s determination that the evidence
preponderates against
the claim for service connection for ED as secondary to service-connected
DM is clearly erroneous
and must be reversed. Appellant’s Brief (Br.) at 10-12. Alternatively, he
argues that the Board’s
reliance on the 2006 VA medical opinion, without seeking clarification
from the examiner, was
prejudicial error warranting remand. Id. at 12-13. The appellant also
argues that his claim for
service connection for hypertension must be remanded because the 2006 VA
medical examiner did
not provide any rationale to support his opinion. Id. at 19-21. Finally,
the appellant argues that the
Board’s finding that the evidence only established entitlement to a 10%
disability rating for LUE
CTS is clearly erroneous and should be reversed. Id. at 14-17.
Alternatively, he argues that the
matter should be remanded because the Board failed to explain adequately
why staged ratings were
not appropriate. Id. at 18-19.
The Secretary agrees that the Board erroneously characterized the June
2006 VA medical
examiner’s opinion regardingED as a “negative opinion” and that the
examiner’s opinion was clearly
inadequate to address the appellant’s hypertension. Secretary’s Br. at 9-
14. However, the Secretary
asserts that remand, not reversal, is the appropriate remedy. Id. at 9-11.
Finally, the Secretaryargues
that the Court should affirm the Board’s denial of a higher disability
rating for LUE CTS. Id. at 5-9.
II. ANALYSIS
A. Service Connection for ED
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)
3

(table). Secondary service connection may be granted for any disability
that is “proximately due to
or the result of a service-connected disease or injury.” 38 C.F.R. § 3.
310(a) (2010). See also Allen
v. Brown, 7 Vet.App. 439, 448 (1995) (en banc) (allowing secondary service
connection for
disability aggravated by service-connected condition).
Under 38 U.S.C. § 5103A(d), the Secretary’s duty to assist includes, in
appropriate cases,
“providing a medical examination or obtaining a medical opinion when such
an examination or
opinion is necessary to make a decision on the claim.” Although VA need
not provide a medical
examination in all cases, this Court has held that “once the
Secretaryundertakes the effort to provide
an examination when developing a service-connection claim, he must provide
an adequate one.”
Barr v. Nicholson, 21 Vet.App. 303, 311 (2007). A medical examination is
considered adequate
“where it is based upon consideration of the veteran’s prior medical
history and examinations and
also describes the disability, if any, in sufficient detail so that the
Board’s ‘”evaluation of the claimed
disability will be a fully informed one.”‘” Stefl v. Nicholson, 21 Vet.App.
120, 123 (2007) (quoting
Ardison v. Brown, 6 Vet.App. 405, 407 (1994) (quoting Green v. Derwinski,
1 Vet.App. 121, 124
(1991))). “Whether a medical opinion is adequate is a finding of fact,
which this Court reviews
under the ‘clearly erroneous’ standard.” D’Aries v. Peake, 22 Vet.App. 97,
104 (2008); see also
Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990).
The June 2006 VA medical examiner diagnosed the appellant with incomplete
ED, which
he attributed to “more likely . . . longstanding hypertension,
antihypertensive medication and DM.”
R. at 503-04. He stated: “[T]herefore, I am unable to resolve this ED
issue without resort to
speculation.” Id. at 504. The Board denied entitlement to service
connection for ED secondary to
DM because it viewed the examiner’s statement as a “negative . . . medical
opinion.” R. at 14. The
appellant argues that the only permissible view of the examiner’s
statement is that “all three causes
have resulted in [ED]” and that “the only reason the VA examiner could
have concluded that he was
‘unable to resolve this ED issue without resort to speculation’ was that
he was under the false
impression that the [DM] needed to be the sole or predominate cause to
resolve the service[-]
connection issue.” Appellant’s Br. at 11. The appellant argues under
Mittleider v. West, 11 Vet.App.
181, 182 (1998) that “the Board was required to attribute the [ED]
completely to [his] service-
connected [DM] as opposed to the non-service-connected hypertension.” Id.
at 12.
4

The Secretary asserts that remand, not reversal, is appropriate because
although the Board
improperly characterized the VA examiner’s opinion as a “negative opinion,”
the opinion is subject
the more than one interpretation. Secretary’s Br. at 10-11; see Fagan v.
Shinseki, 572 F.3d 1282,
1289 (Fed. Cir. 2009) (“The examiner’s statement, which recites the
inability to come to an opinion,
provides neither positive nor negative support for service connection.”).
The Secretary argues that
“it is just as likely that the examiner intended to convey that he was
unable to determine which one
of three potential causes was responsible for [the] [a]ppellant’s ED.”
Secretary’s Br. at 11. In his
reply brief, the appellant argues that, under either interpretation, the
only plausible view of the
evidence preponderates in favor of the claim. Reply Br. at 2-6.
Recently the Court was called upon to address the adequacy of VA medical
examinations
when the examiners stated that they could not resolve the etiological
questions “without resort to
speculation.” See Jones v. Shinseki, 23 Vet.App. 382, 385 (2010). The
Court held that
[a]n examiner’s conclusion that a diagnosis or etiology opinion is not
possible
without resort to speculation is a medical conclusion just as much as a
firm diagnosis
or a conclusive opinion. However, a bald statement that it would be
speculative for
the examiner to render an opinion as to etiology or diagnosis is fraught
with
ambiguity. For example, it is not clear whether the examiner lacks the
expertise to
render such an opinion, or whether some additional testing or information
is needed,
and possibly available, that would permit such an opinion, either of which
would
render the opinion inadequate for resolving the claim. Thus, before the
Board can
rely on an examiner’s conclusion that an etiology opinion would be
speculative, the
examiner must explain the basis for such an opinion or the basis must
otherwise be
apparent in the Board’s review of the evidence.
Jones, 23 Vet.App. at 390 (citation omitted).
Here, as in Jones, the 2006 VA examiner baldlystated that he could not
resolve the ED issue
without resort to speculation. R. at 504. He did not explain whether his
speculative answer
“reflect[s] the limitations of knowledge in the medical community at large
. . . [or] those of [the]
particular examiner.” Jones, 23 Vet.App. at 390. The ambiguity generated
by his bare statement is
compounded by the fact that the examiner did not provide any discussion or
analysis of the medical
evidence that lead to his conclusion that the appellant’s ED was related
to any of the listed causes,
or in which way any one or all of them contributed to his ED. See
generally Nieves-Rodriguez v.
Peake, 22 Vet.App. 295, 304 (2008) (“It is the factually accurate, fully
articulated, sound reasoning
5

for the conclusion . . . that contributes probative value to a medical
opinion.”). Although each of the
parties posits a plausible interpretation of the examiner’s statement,
adoption of either interpretation
would require the Court to speculate as to why the examiner suggested that
than etiology opinion
regarding ED was not possible. Hence, where, as here, the medical examiner
failed to explain
adequately why he is unable to render an opinion without resort to
speculation, and it is not
otherwise clear from the examiner’s report or the Board’s discussion of
the evidence, the appropriate
remedy is to remand the matter for further clarification. See Jones, 23
Vet.App. at 390 (“[I]t must
be clear, from either the examiner’s statements or the Board decision,
that the examiner has indeed
considered ‘all procurable and assembled data,’ by obtaining all tests and
records that might
reasonably illuminate the medical analysis.”); see Barr, supra.
Although the appellant argues for reversal, and remand in the alternative,
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.”
Tucker v. West, 11 Vet.App. 369, 374 (1998); see also Hicks v. Brown, 8
Vet.App. 417, 422 (1995)
(where the record is incomplete, remand – not reversal – is the
appropriate remedy to allow the
Board to complete the record and readjudicate the matter). Moreover, when
an examination report
is inadequate, the Board should remand the case to the RO for further
development. Bowling v.
Principi, 15 Vet.App. 1, 12 (2001) (citing 38 C.F.R. § 19.9(a) (2000)
when holding that the Board
has a duty to remand a case “[i]f further evidence or clarification of the
evidence or correction of a
procedural defect is essential for a proper appellate decision”); see also
Green, 1 Vet.App. at 124
(holding that remand is appropriate where the Board relied on an
inadequate examination report).
Therefore, the Court will remand the matter to the Board to seek
clarification from the VA medical
examiner or to provide a new medical examination, if necessary, addressing
whether the appellant’s
ED is related to his service-connected DM. See Tyrues v. Shinseki, 23 Vet.
App. 166, 182-83 (2009)
(holding that the Board committed prejudicial error by failing to seek
clarification from a VA
examiner or otherwise explaining why such clarification was unnecessary
where the Board rejected
the examiner’s opinion as inconsistent), aff’d, 631 F.3d 1380 (Fed. Cir.
2011).
In pursuing his case on remand, the appellant is free to submit additional
evidence and
argument on the remanded matters, and the Board is required to consider
anysuch relevant evidence
6

and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002) (stating
that, in considering a
matter on remand, the Board must consider additional evidence and argument
in assessing
entitlement to benefit sought); Kutscherousky v. 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
Secretary to provide for
“expeditious treatment” of claims remanded by the Court).
B. Service Connection for Hypertension
The Court agrees with the parties that the Board erred when it relied on
the 2006 VA medical
examiner’s single conclusory statement that the appellant “has essential
hypertension which is not
caused by his [DM].” R. at 503; Appellant’s Br. at 19-21; Secretary’s Br.
at 11-13. The examiner
provided no analysis or rationale for his conclusion that the appellant’s
DM did not cause his
hypertension. Under these circumstances, the opinion was not entitled to
any probative weight and
the Board’s reliance on the report was clearly erroneous. See Nieves-
Rodriguez, 22 Vet.App. at 304
(“Neither a VA examination report nor a private medical opinion is
entitled to any weight in a
service-connection or rating context if it contains only data and
conclusions.”); Stefl, 21 Vet.App.
at 124 (a medical opinion must “support its conclusions with an analysis
that the Board can consider
and weigh against contrary opinions”); D’Aries, supra. Accordingly, the
appellant’s claim for
entitlement to service connection for hypertension must also be remanded
for a further medical
examination. See Bowling and Green, both supra. As with his ED claim, the
appellant is free to
submit additional evidence and argument on the remanded matter, and the
Board is required to
consider any such relevant evidence and argument. See Kay and
Kutscherousky, both supra. The
Board must proceed expeditiously, in accordance with 38 U.S.C. § 7112 (
requiring Secretary to
provide for “expeditious treatment” of claims remanded by the Court).
C. Higher Disability Rating for LUE CTS
The Board’s assignment of a disability rating is a finding of fact that
the Court reviews under
the “clearly erroneous” standard of review. See Johnston v. Brown, 10 Vet.
App. 80, 84 (1997). 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.
7

Gypsum Co., 333 U.S. 364, 395 (1948); see also Gilbert, 1 Vet.App. at 52.
This Court has held that
“separate ratings can be assigned for separate periods of time based on
the facts found – a practice
known as staged ratings.” Hart v. Mansfield, 21 Vet.App. 505, 510 (2007) (
citing Fenderson v.
West, 12 Vet.App. 119, 126 (1999)). The Board’s consideration of staged
ratings is triggered “when
the factual findings show distinct time periods where the service-
connected disability exhibits
symptoms that would warrant different ratings.” Hart, 21 Vet.App. at 510.
In its decision, the Board found that the appellant’s LUE CTS is properly
rated under
38 C.F.R. § 4.124a, DC 8515, which utilizes the terms “mild,” “moderate,”
and “severe.” R. at 17.
The Board correctly noted that none of those terms are defined in the VA
rating schedule. Id.
However, the Board stated the following:
The Board finds that the appellant’s isolated complaints of pain and
difficulty with
his grip when performing such tasks as driving are most accurately
described as mild
in nature. There is no evidence of any significant limitation in function
or any other
symptoms whichwouldallowfortheassignmentofhigher ratings basedonmoderate
disability under Diagnostic Code 8515. While the Board notes Dr. G[raeber]
‘s
notation of “moderate” CTS, this conclusion is simply not supported by the
medical
evidence of record. There is no objective evidence of record which
suggests that
more significant disability is present. In fact, there is some question as
to whether
the appellant is malingering, as noted in the September 2006 VA
examination report.
R. at 19. Finally, with regard to the applicability of staged ratings, the
Board found that the
appellant’s “service-connected LUE CTS has not changed appreciably since
the appellant filed his
claim” and that there is no medical evidence supporting the assignment of
a disability rating in
excess of 10% at any time during the course of the appeal. R. at 19-20.
The appellant argues that the Court should reverse the Board’s finding and
award a 20%
disability rating for his LUE CTS because the evidence of record clearly
demonstrates a “moderate”
disability. Appellant’s Br. at 14-17. First, the appellant argues that the
VA medical examinations
that diagnosed bilateral CTS are not probative as to the question of the
severity of his CTS because
the examiners did not opine as to whether the disability should be
characterized as “mild” or
“moderate.” Id. at 15; see R. at 181-82, 239-40. He argues that the only
probative evidence of
record is Dr. Graeber’s diagnosis of “moderate” CTS, which is supported by
a finding of “overt
sensory delay-dispersion with some sensory axon loss” and “moderate distal
motor delay without
motor axon loss.” Appellant’s Br. at 15; see R. at 44, 180. Consequently,
the appellant argues that
8

the Board’s finding that Dr. Graeber’s notation of moderate CTS is not
supported by the medical
evidence is clearly erroneous.
The Court disagrees. This Court has held that “reversal is the appropriate
remedy when the
only permissible view of the evidence is contrary to the Board’s decision.”
Gutierrez v. Principi,
19 Vet.App. 1, 10 (2004) (citing Johnson v. Brown, 9 Vet.App. 7, 10 (1996
)). The appellant relies
on Dr. Graeber’s notation that the appellant’s CTS is “moderate” to argue
that the evidence clearly
demonstrated entitlement to a 20% disability rating. R. at 180. However,
the appellant’s argument
confuses the role of the medical examiner and the rating specialist. “The
medical examiner provides
a disability evaluation and the rating specialist interprets medical
reports in order to match the rating
with the disability.” Moore v. Nicholson, 21 Vet.App. 211, 218 (2007),
rev’d on other grounds sub
nom. Moore v. Shinseki, 555 F.3d 1369 (2009); see also 38 C.F.R. § 4.2 (
2010) (“It is the
responsibility of the rating specialist to interpret reports of
examination in light of the whole
recorded history, reconciling the various reports into a consistent
picture so that the current rating
may accurately reflect the elements of present disability.”). Hence, the
Board is not bound by Dr.
Graeber’s characterization of the appellant’s CTS as “moderate” when it
determines that the medical
evidence and the claimant’s overall disability picture does not support
the doctor’s characterization.
Additionally, the VA examinations do not lack all probative value
merelybecause the examiners did
not discuss the severity of the appellant’s CTS in accordance with
classifications found in the DC.
See Moore, supra; see also BuczynskiNext Document v. Shinseki, __ Vet.App. __, __, 2011
WL 37846, at *5 (Jan.
6, 2011) (“When words are objective and have a precise medical meaning,
then an examiner may be
required to use those words to provide an adequate opinion. When words are
subjective and do not
have a precise medical meaning, then a medical opinion is adequate when
the examiner provides
sufficient detail so the rating specialist can interpret the report and
make a subjective determination
as to whether the condition meets the rating criteria.”). Rather, medical
examiners fulfill their role
when theydescribe a claimant’s symptoms “in sufficient detail so that the
Board’s ‘”evaluation of the
claimed disability will be a fully informed one.”‘” Stefl, 21 Vet.App. at
123 (quoting Ardison,
6 Vet.App. at 407 (quoting Green, 1 Vet.App. at 124)).
In this case, the Board found that Dr. Graeber’s notation of “moderate”
CTS was not
supported by the medical evidence of record. R. at 19. The Board
determined that the appellant’s
9

complaints were more accurately described as mild and found “no evidence
of significant limitation
in function.”
Id.
Indeed, Dr. Graeber’s October 2006 treatment record noted “prominent
neurophysiologic changes across carpal tunnels bilaterally, though hand-
arm ‘symptoms’ reportedly
very mild and not really significant at present.” Id. (emphasis added). As
a result, the Court cannot
say that the only permissible view of Dr. Graeber’s report supports a 20%
disability rating.
Nevertheless, the Court agrees with the appellant insofar as he asserts
that the Board failed to
adequately explain why staged ratings were not appropriate in this case.
The appellant correctly
observes thattheBoard failed to address potentiallyfavorablemedical
evidence showinganincrease
in the severity of his disability when it summarily stated that the
appellant’s LUE CTS “has not
changed appreciably since the appellant filed his claim.” R. at 19;
Appellant’s Br. at 18-19; Reply
Br. at 9-11. In particular, the appellant argues that the Board failed to
discuss Dr. Graeber’s July
2008 statement that the appellant’s “hand symptoms may be slightly worse”
as well as a February
2008 VA medical center treatment note documenting that the appellant was
issued bilateral wrist
splints and complained of experiencing hand numbness while driving and
sleeping that had become
worse over the last six months. R. at 44, 142-43. While the Board is not
required to discuss all the
evidence of record, it must explain its rejection of favorable evidence.
Dela Cruz v. Principi,
15 Vet.App. 143, 149 (2001); Thompson v. Gober, 14 Vet.App. 187, 188 (2000
) (Board must
provide an adequate statement of reasons or bases “for its rejection of
any material evidence
favorable to the claimant”); Abernathy v. Principi, 3 Vet.App. 461, 465 (
1992) (A mere listing of
the relevant evidence is not adequate to fulfill the Board’s obligation to
provide a statement of
reasons or bases for its decision.). Because the Board failed to discuss
evidence showing that the
appellant’s symptoms increased in severity during the pendency of his
claim, the Board’s decision
is not supported by an adequate statement of reasons or bases and the
matter must be remanded for
the Board to consider the applicability of staged ratings. See Hart, supra.
Given this disposition, the Court will not at this time address the
remaining arguments and
issues raised by the appellant. See Best v. Principi, 15 Vet.App. 18, 20 (
2001) (per curiam order)
(holding that “[a] narrow decision preserves for the appellant an
opportunity to argue those claimed
errors before the Board at the readjudication, and, of course, before this
Court in an appeal, should
the Board rule against him”). While pursuing his case on remand, the
appellant is free to submit
10

additional evidence and argument on the remanded matter, and the Board is
required to consider any
such relevant evidence and argument. See Kay and Kutscherousky, both supra.
The Board must
proceed expeditiously, in accordance with 38 U.S.C. § 7112 (requiring
Secretary to provide for
“expeditious treatment” of claims remanded by the Court).
III. CONCLUSION
After consideration of the appellant’s and the Secretary’s pleadings, and
a review of the
record, the Board’s April 22, 2009, decision is VACATED and the matter is
REMANDED to the
Board for further proceedings consistent with this decision.
DATED: March 25, 2011
Copies to:
Amy F. Fletcher, Esq.
VA General Counsel (027)
11

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