Veteranclaims’s Blog

October 10, 2011

Single Judge Application, VA Obligation Search for Pertinent Records, Mayhue v. Shinseki, 24 Vet.App. 273, 280 (2011)

Filed under: Uncategorized — veteranclaims @ 4:10 pm

Excerpt from decision below:
“Recently, the Court concluded that the Board erred when it failed to assign an earlier effective date based upon the receipt of newly discovered service department records pursuant to 38 C.F.R. § 3.156(c) (2002) and (2010), where the record demonstrated that, not with standing the veteran’s failure to fully cooperate with VA’s requests for information to verify other claimed stressors, the information necessary for the Center for Research of Unit Records to verify his stressor that resulted in the award of benefits for PTSD had always been a part of the claims file. See Mayhue v. Shinseki, 24 Vet.App. 273, 280 (2011). The Court stated that it was “VA’s administrative error in failing to verify [the appellant’s] stressor with the information that it had at the time of his initial claim, not [the appellant’s] subsequent failure to provide additional information sufficient to verify other claimed stressors, that prevented VA from verifying his stressor until March 2005.” Id.
Although Mayhue is not directly on point, the Court’s reasoning is instructive and supports the appellant’s contention that, in this case, VA’s duty to assist may have included conducting a search for the pertinent unit histories and morning reports from the Center for Research of Unit Records where the record contains specific information denoting the appellant’s unit assignments, military occupation, and dates of deployment to Vietnam. See R. at 315-16, 425, 480, 487, 526.
The Board, however, did not discuss whether VA was obligated to conduct a search for unit histories or morning reports to confirm whether the appellant engaged in combat during his service in Vietnam. Instead, the Board summarily stated that it was “unaware of any outstanding pertinent evidence.” R. at 5. In this case, the Court concludes that it is unclear whether the appellant’s inaction deprived VA of the information needed to request records that may corroborate his assertion that he engaged in combat. See Mayhue, 24 Vet.App. at 280 (noting VA’s determination that the veteran was subject to enemy attack because the Center for Research of Unit Records verified that
8

the base camp to which the veteran was assigned was subjected to enemy attacks).”
======================================
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-4670
PAUL T. VENTURA, 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, Paul T. Ventura, appeals through counsel a
November
5, 2009, BoardofVeterans’Appeals(Board)decisionthatfoundnewandmaterial
evidencehad been
received to reopen a claim for entitlement to service connection for post-
traumatic stress disorder
(PTSD), but denied the claim on the merits. Record of Proceedings (R.) at
3-9. 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 vacate the
Board’s 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 January
27, 1969, to
February 5, 1971, including service in Vietnam. R. at 526. His DD Form 214
reflects that his
military occupational specialty was rifleman and that he received the
National Defense Service
Medal, the Vietnam Service Medal with one star, and the Vietnam Cross of
Gallantry. Id. His
service personnel records include a form that contains a heading, “COMBAT
HISTORY –
EXPEDITIONS,” which notes that the appellant’s service in Vietnam included
participation in

counterinsurgency actions against the Viet Cong from August 20, 1969, to
November 30, 1969, and
Operation Idaho Canyon in Quang Tri province from August 20, 1969, to
September 10, 1969. R.
at 480. During this time, he was assigned to Company A, 1st Battalion, 4th
Marine Regiment, 3rd
Marine Division. R. at 425. His personnel records also indicate that in
September 1969, he was
aboard the U.S.S. Repose for treatment of a “fever of unk[nown] origin.” R.
at 487.
In May 1998, the appellant filed a claim for entitlement to service
connection for PTSD,
which was denied by a VA regional office (RO) in March 1999. R. at 304-09,
335-38. Years later,
in February2005, the appellant was diagnosed with PTSD and reported that
he experienced “hostile
fire in a combat zone” and that he was sexually assaulted when he was
aboard the U.S.S. Repose for
treatment for malaria, hepatitis, and anemia. R. at 255, 257, 270. The
following month, a VA
psychiatrist, Dr. Leonard Kram, also diagnosed PTSD with depression. R. at
249. Dr. Kram’s report
indicates that the appellant reported combat service in Vietnam, schrapnel
wounds to his lower
extremities, and that he was treated aboard a medical ship after
contracting malaria and hepatitis.
R. at 248. Dr. Kram recorded the appellant’s report that he was sodomized
by another soldier while
aboard the ship, but that he never reported the incident. Id. Dr. Kram
also noted the appellant’s
history of recurrent nightmares, difficulty sleeping and maintaining
employment, drug abuse, and
that he had been homeless and unemployed for the preceding two years. R.
at 248-49. Dr. Kram
opined that “[i]t is likely that his PTSD, depression[,] and poly
substance abuse is a direct result of
his experience in combat in Vietnam as well as his sexual assault while
receiving treatment for his
in[j]uries and infectious disease while on active duty.” R. at 249.
In March 2005, the appellant submitted a statement indicating that he had
been diagnosed
with PTSD related to a sexual assault while on active duty, that he was
being treated at a VA medical
center for this condition, and requested that VA consider entitlement to
service connection. R. at
298. Later that month, the appellant submitted a statement in support of
claim in which he described
the difficulties he experienced upon returning from service, including
difficulty holding a job and
problems with drug and alcohol, which he attributed to both the in-service
sexual assault and being
separated from his squad and coming into contact with the enemy while on a
night fire mission. R.
at 215-16.
2

The appellant submitted a handwritten statement in April 2005, in which
he provided
additional details regarding his combat service in Vietnam and being
sexually assaulted. R. at 219-
22. With regard to his combat experience, the appellant wrote:
While I was in Viet-Nam; from Da-Nang Air Force Base[,] I was sent to Quan-
Tri
Province then my Co. Platoon was sent to Dong-Ha Mountain where we did
search
[and] destroy missions or patrols. Came in contact with enemy [North
Vietnamese
Army] regulars in a night time s[kir]mish (firefight)[.] After that I was
a nervous
wreck[.] It was in the monsoon season one night on a patrol[,] I was
separated from
my squad[,] and to this day I still feel [the] nervousness I felt that
night. I thought I
was going to be killed or captured[.] I still have recurring nightmares of
these events.
R. at 220.
On June 26, 2005, the RO issued a deferred rating decision, which noted
that although the
appellant’s March 2005 correspondence described a sexual assault, later
correspondence described
combat situations. R. at 209. It was noted that clarification was
necessaryto determine whether the
appellant was seeking service connection for PTSD “due to sexual assault
or combat exposure.” Id.
On August 1, 2005, the RO sent the appellant a letter informing him that
it was working on
his application for service connection for hepatitis C, anemia, and non-
service-connected pension,
and purported to inform him of the information and evidence needed to
support those claims. R. at
189-97. The sole reference to his pending PTSD claim, contained on page
three of the letter,
requested that he clarify whether he was seeking service connection for
PTSD due to sexual trauma
or combat exposure. R. at 191. There is no indication in the record that
the appellant responded to
this request for clarification.
InNovember2005,theRO notifiedtheappellant ofitsdecisionto
denyentitlementto service
connection for PTSD because there was no evidence presented to show that
he engaged in combat
with the enemy and there was no credible evidence to show that he was a
victim of a sexual assault.
R. at 162; see generally R. at 155-58, 160-69. With regard to the
appellant’s combat experience,
the RO noted that
[s]ervice records show that you served in Vietnam from August 19, 1969[,]
to
October 3, 1969[,] as a Rifleman with Company A, 1st Battalion, 4th Marine
Regiment, 3rd Marine Division. For your short period of service in Vietnam,
you
were awarded the National Defense Service Medal, and the Vietnam Service
Medal.
You were also authorized to wear the Vietnamese Cross of Gallantry Medal
that was
awarded to your unit during the period of your assignment to that unit. In
your
3

stressorstatements,youreportedthatduringyourtime in Vietnam
yourcompanywas
assignedto conduct”SearchandDestroy”missions and that yourunit camein
contact
with the North Vietnamese Army in a nighttime firefight, you also report
being
separated from your squad on a night patrol during the rainy season and of
being
sexually assaulted while aboard the hospital ship, the U.S.S. Repose.
Sinceyourservicerecordsfailedto showanyawards,commendations,orcitations
denoting your participation in combat or the occurrence of the sexual
assault, it
would have been necessary to seek out the confirmation of your reported
stressors
with the U.S. Armed Services Center For Research of Unit Records (USASCRUR)
located in Springfield, Maryland. However, this action could not be
undertaken
based on your description of the events leading to your claimed [PTSD]. In
order to
request confirmation of reported in-service stressors, we must have
specific details
of the stressful event such as dates, places, unit of assignments at the
time of the
events, description of the events, medals, or citations received as a
result of the
events and if appropriate, names and other identifying information
concerning any
other individuals involved in the events. As a minimum, the report of
stressors must
indicate location and approximate time (a 2-month specific date range) of
the
stressful events in question, and the unit of assignment at the time the
stressful event
occurred.
R. at 163.
In November 2005, the appellant filed a Notice of Disagreement and
submitted additional
medical evidence from Dr. Selby, a clinical psychologist and sexual trauma
counselor, who
diagnosed him with PTSD based upon military sexual trauma. R. at 150-54.
In February 2007, the
RO issued a Statement of the Case (SOC), which continued to deny the claim
because although the
appellant’s medical records showed a diagnosis of PTSD dueto sexual
assault,therewasnoevidence
of a verifiable in-service stressor. R. at 105; see R. at 91-106. The same
SOC also denied the
appellant’s claim for entitlement to service connection for hepatitis C
with anemia, which is not
before the Court. Id.
In May and July 2007, the appellant submitted a VA Form 9 indicating that
he read the SOC
and that he was appealing only the issue of “PTSD sexual assault.” R. at
86-87; see also 84-85. In
February 2009, the appellant submitted written statements from his
brothers describing an incident
that took place shortly after his return from Vietnam, during which the
appellant stabbed one of his
brothers who startled him from behind. R. at 48-55.
4

On November 5, 2009, the Board issued the decision here on appeal. R. at
3-9. The Board
determined that new and material evidence had been received to reopen a
claim of entitlement to
service connection for PTSD, but denied the claim on the merits. Id. The
Board concluded that
“[t]he [v]eteran did not serve in combat and the record does not include
credible evidence
corroborating the occurrence of the [v]eteran’s claimed in-service
stressors including a personal
assault.” R. at 4. This appeal followed.
The appellant argues that VA did not fulfill its duty to assist because,
notwithstanding his
statements that he engaged in combat with the enemy and the presence of a
diagnosis of PTSD
based, in part, on his reported combat experiences, VA failed to conduct a
search for unit histories
or morning reports, which could corroborate his assertion that he engaged
in combat. Appellant’s
Brief (Br.) at 10-12. The appellant also argues that the Board failed to
provide an adequate statement
of reasons or bases for finding that he did not engage in combat and
impermissiblyignored favorable
evidence demonstrating that his PTSD diagnosis had been attributed to
combat. Id. at 12-18. The
Secretary disputes these contentions and argues for affirmance of the
Board’s decision. Secretary’s
Br. at 6-10.
II. ANALYSIS
To establish service connection for PTSD, a claimant must present (1)
evidence of a current
diagnosis of PTSD; (2) evidence of an in-service stressor, with credible
supporting evidence that the
claimed in-service stressor occurred; and (3) evidence of a causal nexus
between the current
symptomatology and the in-service stressor. 38 C.F.R. § 3.304(f) (2011);
see Cohen v. Brown,
10 Vet.App. 128, 138 (1997). If the evidence establishes that the veteran
engaged in combat with
the enemy and his claimed stressor is related to that combat, the
veteran’s lay testimony alone
generally is sufficient to establish the occurrence of the claimed in-
service stressor. 38 U.S.C.
§ 1154(b); Sizemore v. Principi, 18 Vet.App. 264 (2004); 38 C.F.R. § 3.
304(f); see also Zarycki v.
Brown, 6 Vet.App. 91, 98 (1993) (requiring that the Board “make specific
findings of fact as to
whether or not the veteran was engaged in combat with the enemy and, if so,
whether the claimed
stressor is related to such combat” and describing the different
evidentiary standards applied to
veterans who have been determined to have “engaged in combat with the
enemy” and those who
5

have not). When a claim for PTSD is based on a noncombat stressor, “the
noncombat veteran’s
testimony alone is insufficient proof of a stressor.” Moreau v. Brown, 9
Vet.App. 389, 396 (1996).
The Board’s findings concerningcombat status and the
sufficiencyofcorroborative evidence
are findings of fact that the Court reviews under the “clearly erroneous”
standard of review.
Pentecost v. Principi, 16 Vet.App. 124, 126 (2002); Moreau, 9 Vet.App. at
395. A finding of fact
is clearlyerroneous 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).
The Board must consider all the evidence of record and discuss in its
decision all “potentially
applicable” provisions of law and regulation. See 38 U.S.C. § 7104(a);
Schafrath v. Derwinski,
1 Vet.App. 589, 592-93 (1991). The Board is also required to provide a
statement of the reasons or
bases for its determination, adequate to enable an appellant to understand
the precise basis for its
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); Gilbert, 1 Vet.App. at 56-57. 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 any material evidence
favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995),
aff’d per curiam, 78 F.3d
604 (Fed. Cir. 1996) (table).
A. VA’s Duty To Assist
The Secretary has a duty to assist a claimant in obtaining evidence
necessary to substantiate
the claim. 38 U.S.C. § 5103A(a)(1). The Secretary’s duty to assist
includes making “reasonable
efforts to obtain relevant records . . . that the claimant adequately
identifies to the Secretary and
authorizes the Secretaryto obtain.” 38 U.S.C. § 5103A(b)(1); see Moore v.
Shinseki, 555 F.3d 1369,
1372-75 (Fed. Cir. 2009). If the records are maintained by a Federal
department or agency, “efforts
to obtain those records shall continue until the records are obtained
unless it is reasonably certain
that such records do not exist or that further efforts to obtain those
records would be futile.”
38 U.S.C. § 5103A(b)(3); 38 C.F.R. § 3.159(e) (2011). If the Secretary
is unable to obtain those
records after making reasonable efforts to do so, the Secretary must
provide notice of that fact to the
claimant. See 38 U.S.C. § 5103A(b)(2); 38 C.F.R. § 3.159(e). The Board’s
determination that VA
6

has satisfied the duty to assist is reviewed under the “clearly erroneous”
standard of review. Hyatt
v. Nicholson, 21 Vet.App. 390, 395 (2007). As this Court has explained on
numerous occasions,
“the duty to assist is not a license for a ‘fishing expedition’ to
determine if there might be some
unspecified information which could possibly support a claim.” Gobber v.
Derwinski, 2 Vet.App.
470, 472 (1992) (noting that the duty to assist is “not a duty to prove a
claim with the claimant only
in a passive role”); Wood v. Derwinski, 1 Vet.App. 190, 193 (1991) (
stating that “[t]he duty to assist
is not a one-way street”).
As noted above, the appellant argues that the Secretary should have
undertaken a search for
pertinent unit histories and morning reports to corroborate his assertion
that he engaged in combat
with the enemy. Appellant’s Br. at 9-13. In response, the Secretary argues
that VA was under no
obligation to develop a claim for PTSD based on combat exposure because
the appellant failed to
respond to VA’s request for information and his VA Form 9 specifically
limited the issue on appeal
to the denial of PTSD based on sexual trauma. Secretary’s Br. at 6-10. The
Court disagrees.
As an initial matter, the Court is not persuaded bythe Secretary’s
argument that the appellant
limited the issue on appeal. First, it is well established that the Board
has a duty to address all
theories of entitlement that are reasonably raised either by the appellant
or by the contents of the
record. See Robinson v. Peake, 21 Vet.App. 545, 552-56 (2008), aff’d sub
nom. Robinson v.
Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). Indeed, the Court has stated
that “[a]s a nonadversarial
adjudicator, the Board’s obligation to analyze claims goes beyond the
arguments explicitly made.”
Id. at 563. Here, the record before the Board contained the appellant’s
lay assertions that he
experienced combat in Vietnam and the March 2005 VA psychiatrist’s opinion
that attributes the
appellant’s PTSD in part to his combat experience. Second, and perhaps
most compelling, is that
the Board did not determine that the appellant abandoned the theory
whether his PTSD is the result
of combat stressors. Instead, the Board addressed that theory and found
that the appellant’s “service
personnel records and the service treatment records do not show that the [
v]eteran experienced
combat while in Vietnam” and that “[t]here is no evidence to verify that
the [v]eteran experienced
a night time incident with the enemy or that he ever experienced a combat
situation.” R. at 7; see
Martin v. Occupational Safety & Health Review Comm’n, 499 U.S. 144, 156 (
1991) (“‘[L]itigating
7

positions’ are not entitled to deference when they are merely appellate
counsel’s ‘post hoc
rationalizations’ for agency action, advanced for the first time in the
reviewing court.”).
With regard to the Secretary’s contention that the appellant failed to
cooperate with VA’s
requests for information, the Court agrees with the appellant that his
failure to cooperate fully with
VA’s request for information did not relieve VA of its duty to assist, if
the Secretary had in his
possession the information required to conduct a search to corroborate
whether he engaged in
combat. See Reply Br. at 4-5. Recently, the Court concluded that the Board
erred when it failed to
assign an earlier effective date based upon the receipt of newly
discovered service department
records pursuant to 38 C.F.R. § 3.156(c) (2002) and (2010), where the
record demonstrated that,
notwithstanding the veteran’s failure to fully cooperate with VA’s
requests for information to verify
other claimed stressors, the information necessary for the Center for
Research of Unit Records to
verify his stressor that resulted in the award of benefits for PTSD had
always been a part of the
claims file. See MayhueNext Hit v. Shinseki, 24 Vet.App. 273, 280 (2011). The
Court stated that it was
“VA’s administrative error in failing to verify [the appellant’s] stressor
with the information that it
had at the time of his initial claim, not [the appellant’s] subsequent
failure to provide additional
informationsufficient to verifyotherclaimedstressors,
thatpreventedVAfromverifyinghis stressor
until March 2005.” Id.
Although Previous HitMayhueNext Hit is not directly on point, the Court’s reasoning is
instructive and supports
the appellant’s contention that, in this case, VA’s duty to assist may
have included conducting a
search for the pertinent unit histories and morning reports from the
Center for Research of Unit
Records where the record contains specific information denoting the
appellant’s unit assignments,
military occupation, and dates of deployment to Vietnam. See R. at 315-16,
425, 480, 487, 526.
The Board, however, did not discuss whether VA was obligated to conduct a
search for unit
histories or morning reports to confirm whether the appellant engaged in
combat during his service
in Vietnam. Instead, the Board summarily stated that it was “unaware of
any outstanding pertinent
evidence.” R. at 5. In this case, the Court concludes that it is unclear
whether the appellant’s
inaction deprived VAoftheinformationneededtorequest records that
maycorroborate his assertion
that he engaged in combat. See Previous HitMayhueNext Document, 24 Vet.App. at 280 (noting VA’s
determination that the
veteran was subject to enemy attack because the Center for Research of
Unit Records verified that
8

the base camp to which the veteran was assigned was subjected to enemy
attacks). As noted by the
RO in its November 2005 rating decision, the record before the Agency
contained the appellant’s
“[s]ervice records [that] show that [he] served in Vietnam from August 19,
1969[,] to October 3,
1969[,] as a Rifleman with Company A, 1st Battalion, 4th Marine Regiment,
3rd Marine Division.”
R. at 169. Given the relatively short period of time that the appellant
served in Vietnam, the Court
is unable to discern any basis for VA’s failure to conduct a search for
records to confirm the
appellant’s allegations that conducted “search [and] destroy missions or
patrols” and “[c]ame in
contact with enemy [North Vietnamese Army] regulars in a night time s[kir]
mish (firefight).” R. at
220. The Board’s failure to explain adequately why VA’s duty to assist did
not require the Secretary
to conduct a search for unit histories or morning reports frustrates
judicial review and requires that
the matter be remanded. 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”).
B. The Board’s Reasons and Bases
The Court also agrees that the Board failed to provide an adequate
statement of reasons or
bases for finding that the appellant did not engage in combat. As noted
above, the Board determined
that the appellant did not engage in combat because his service personnel
and treatment records did
not show that he experienced combat. R. at 7. However, in reaching this
determination, the Board
failed to address the credibility and probative value of the appellant’s
lay statements that he engaged
in combat. While the Board may discount favorable evidence if it finds
that the evidence lacks
probative value, the Board must provide an adequate statement of reasons
or bases “for its rejection
of any material evidence favorable to the claimant.” See Thompson v. Gober,
14 Vet.App. 187, 188
(2000); Owens v. Brown, 7 Vet.App. 429, 433 (1995) (“It is the
responsibility of the [Board] . . . to
assess the credibility and weight to be given to evidence.”). The Board
cannot satisfy its reasons-or-
bases requirement by merely listing evidence, nor is a recitation of the
appellant’s testimony a
sufficient surrogate for an account of whether the Board finds the
testimony persuasive. See Dennis
v. Nicholson, 21 Vet.App. 18, 22 (2007) (“The Court has long held that
merely listing evidence
before stating a conclusion does not constitute an adequate statement of
reasons and bases.” (citing
9

Abernathy v. Principi, 3 Vet.App. 461, 465 (1992))). Here, the Board’s
failure to assess the
credibility and probative value of the appellant’s lay statements that he
engaged in combat renders
its statement of reasons or bases inadequate. See Gaines v. West, 11 Vet.
App. 353, 359 (1998)
(Board’s failure to analyze the veteran’s own sworn testimony that he
engaged in combat rendered
the Board’s statement of reasons or bases inadequate); see generally Daye
v. Nicholson, 20 Vet.App.
512, 517 (2006) (holding that the absence of awards or decorations that
would confirm engagement
in combat, does not preclude a finding that the veteran engaged in combat,
and the Board erred to
the extent that it relied on the absence of awards to conclude that the
veteran did not participate in
combat).
Finally, the Court agrees with the appellant that the Board impermissibly
ignored favorable
medical evidence. In its decision, the Board noted that the appellant
initially reported a PTSD
diagnosis as a result of sexual trauma, but that in March and April 2005
statements, he “also reported
that he had PTSD due to a night time fight with the enemy North Vietnamese
Regulars.” R. at 7.
The Board continued its discussion bynoting that after April 2005, the
appellant “onlyindicated that
he had PTSD due to a personal assault” and that “none of the VA medical
records have attributed
the [v]eteran’s claimed PTSD to combat activities, only to the [v]eteran’s
claimed personal assault.”
Id. (emphasis added). The latter statement is factually incorrect because
it ignores the March 2005
VA psychiatrist’s opinion that the appellant’s “PTSD, depression[,] and
poly substance abuse is a
direct result of his experience in combat in Vietnam as well as his sexual
assault while receiving
treatment for his in[j]uries and infectious disease while on active duty.”
R. at 249. Accordingly, on
remand, the Board must assess the credibility and probative value of the
veteran’s lay statements
regarding combat, and address the March 2005 VA psychiatrist’s opinion
that attributes the
appellant’s PTSD in part to his combat experience.
In pursuing these matters on remand, the appellant is free to submit
additional evidence and
argument, and the Board is required to consider any such relevant evidence
and argument. See Kay
v.Principi,16Vet.App.529,534(2002)(statingthat,onremand,theBoardmust
consideradditional
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,
10

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).

III. CONCLUSION
After consideration of the appellant’s and the Secretary’s pleadings, and
a review of the
record, the November 5, 2009, Board decision is VACATED and the matter is
REMANDED for
further proceedings consistent with this decision.
DATED: September 30, 2011
Copies to:
Sean A. Ravin, Esq.
VA General Counsel (027)
11

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