Veteranclaims’s Blog

March 22, 2012

Single Judge Application, Board Impermissible Medical Conclusion in Guise of Board Opinion, Colvin v. Derwinski, 1 Vet.App. 171, 172 (1991); Kahana v. Shinseki, 24 Vet.App. 428, 434 (2011)

Excerpt from decision below:
“When the Board reaches a medical conclusion, however, it must base its
conclusion on “independent medical evidence” rather than “provide [its] own medical judgment in the guise of a Board opinion.” Colvin v. Derwinski, 1 Vet.App. 171, 172 (1991); see also Kahana v. Shinseki, 24 Vet.App. 428, 434 (2011).
The appellant argues that the Board’s rejection of Dr. Jabbour’s GAF score violates Colvin. Appellant’s Br. at 13. The Court agrees. If the Board had merely taken the objective findings from the two medical examination reports and applied them to the rating code to determine that only a
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30% disability rating is warranted, it would have been well within its
role as factfinder. See Owens, supra. If the Board had explained how the examiners’ findings, along with the other evidence of the record, weighed more heavily in favor of a 30% disability rating than Dr. Jabbour’s assignment of a GAF score of 40 weighed in favor of a 50% disability rating, it would still have been well within its role as factfinder. Id.; see also 38 C.F.R. § 4.2 (2011) (“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
mayaccurately reflect the elements of disability present.”). The Board, however, takes the additional step of stating without corroboration from independent medical authority that Dr. Jabbour’s assignment of a GAF score of 40 is incorrect while the VA examiner’s GAF score of 63 is correct. R. at 8. The Board has in essence assigned its own GAF score in this case, which, as the appellant argues, constitutes a medical determination in violation of Colvin.2
The Court, therefore, finds that the Board’s statement of reasons or bases supporting denial of a disability rating in excess of 30% is inadequate. See 38 U.S.C. § 7104(d)(1); Allday, Caluza, and Gilbert, all supra.”
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-2593
PEDRO S. LOPEZ, 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: Theappellant,PedroS. Lopez, appealsthroughcounselaJuly30,
2010,
BoardofVeterans’Appeals (Board)decisionthatdeniedhim entitlementto
aninitial disabilityrating
in excess of 30% forpost-traumatic stress disorder (PTSD) and entitlement
to a total disabilityrating
based on individual employability resulting from a service-connected
disability (TDIU). Record of
Proceedings (R.) at 3-13. 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. Army from January 1957
until September
1983. R. at 4, 596. The record reveals that the appellant served two tours
of dutyin Vietnam, where
he sustained, in separate incidents, combat wounds to his abdomen and to
his face. R. at 77, 456,
538, 637. The record further reveals that his abdominal wound required
surgery. R. at 538.
In May 1986, the VA regional office (RO) found his disability service
connected and

assigned him a 30% disability rating for both “[s]tatus [post operative]
wounding of the abdomen”
and a splenectomy. The RO also found service-connected residuals of a
shell fragment wound to
his left cheek and malaria, but assigned a noncompensable disability
rating for those disorders. R.
at 538-39.
In April 2008, the appellant underwent a computed tomography (CT) scan. R.
at 124-25.
The resulting report reveals that the appellant was suffering from
abdominal pain and a bowel
obstruction, and had undergone “[m]ultiple previous surgeries.” R. at 124-
25. Also in April 2008,
the appellant filed a claim for PTSD. R. at 480. In May 2008, private
physician Hassan Jabbour
examined the appellant and diagnosed him with chronic PTSD and recurrent
major depressive
disorder. R. at 78-79. Dr. Jabbour assigned the appellant a Global
Assessment of Functioning
(GAF) score of 40.1
R. at 79. In June 2008, the appellant was provided a VA medical
examination.
R. at 462-70. The appellant reported to the examiner that he retired
because he had an anxiety attack
resulting from workplace noises like the ringing of the telephone. R. at
463, 468-70. The examiner
diagnosed the appellant with PTSD and assigned him a GAF score of 63. R.
at 468. The examiner
concluded that the episode that triggered the appellant’s retirement was
related to his PTSD. R. at
468-69. In July 2008, the RO granted the appellant disability compensation
for PTSD and assigned
him a 30% disability rating. R. at 449-52.
In May 2009, the appellant submitted an application for TDIU stating that
he stopped
working full-time in May 2006 and stopped working altogether in June 2007.
R. at 342-43. In his
application, the appellant stated that he was unable to maintain gainful
employment because “I have
pains in my knees, joints and down to my feet.” R. at 342. The appellant
submitted lay statements
from two coworkers and a supervisor relating that he was forced to retire
in July 2007 because of leg
pain. R. at 344-46. In July 2009, the RO denied the appellant entitlement
to TDIU. R. at 100-01.
The Board, in its July 30, 2010, decision here on appeal, denied the
appellant entitlement to
an initial disability rating in excess of 30% for PTSD and entitlement to
TDIU. The Board, in its
discussion of the appellant’s PTSD claim, acknowledged that Dr. Jabbour
assigned the appellant a
The GAF is a scale reflecting the “psychological, social, and occupational
functioning on
a hypothetical continuum of mental health-illness.” See
DIAGNOSTICANDSTATISTICALMANUALOF
MENTAL DISORDERS 32 (4thed. 1994).
2
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GAF score of 40. R. at 8. The Board found, however, that the symptoms
reported and the
conclusions reached by both Dr. Jabbour and the June 2008 VA examiner are
more consistent with
the GAF score of 63 assigned by the VA examiner. Id. The Board determined
that the appellant’s
PTSD symptoms “have most nearly approximated mild through the claims
period.” Id. The Board
also found that the appellant’s PTSD “resulted in some mild impairment to
employment” but had not
rendered the appellant unemployable, and that the appellant suffered from
only mild impairment in
his social functioning. R. at 8-9. The Board concluded that the
appellant’s PTSD “most nearly
approximates the criteria associated with the currently assigned 30
percent [disability] rating.” R.
at 9.
In its discussion concerning the appellant’s application for TDIU, the
Court acknowledged
that the record indicates that the appellant is unemployable, but found
that the record “does not
establish that the [appellant] is unemployable due to service-connected
disabilities.” R. at 10. The
Board determined that the medical evidence of record does not support a
finding that the appellant
is unemployable as a result of his PTSD, and that “the record contains no
other medical evidence of
unemployability due to any of the [appellant’s] service-connected
disabilities.” R. at 10-11.
Regarding his PTSD claim, the appellant first argues that the Board failed
to provide an
adequate statement of reasons or bases for its determination that the
objective and subjective
evidence collected by both Dr. Jabbour and the June 2008 VA examiner is
more consistent with the
GAF score of 63 assigned by the examiner than the GAF score of 40 assigned
by Dr. Jabbour.
Appellant’s Brief (Br.) at 8-13. The appellant next argues that the Board
provided an inadequate
statement of reasons or bases supporting its determination that VA
fulfilled its duty to assist despite
not contacting Dr. Jabbour to request that he clarify his medical opinion.
Id. at 13-18.
Regarding his application for TDIU, the appellant argues that the Board
failed to adequately
consider the findings in the June 2008 VA examiner’s report. Id. at 18-22.
The appellant also asserts
that the Board should have considered how his service-connected abdominal
disabilities affect his
employability. Id. at 22-24.
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II. ANALYSIS
A. PTSD
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.
Gypsum Co., 333 U.S. 364, 365 (1948); see also Gilbert v. Derwinski, 1 Vet.
App. 49, 52 (1990).
When deciding a matter, however, the Board must include in its decision a
written statement
of the reasons or bases for itsfindings andconclusions,adequateto enablean
appellant 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); Gilbert, 1 Vet.
App. at 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 persuasive or
unpersuasive, and provide the reasons
for its rejection of anymaterial evidence favorable to the claimant. See
Caluza v. Brown, 7 Vet.App.
498, 506 (1995); Gilbert, 1 Vet.App. at 57.
1. Appellant’s GAF Scores
The appellant argues that the Board erred in determining that the GAF
score of 63 assigned
by the June 2008 VA examiner more accurately reflects the findings of both
the examiner and Dr.
Jabbour than Dr. Jabbour’s assignment of a GAF score of 40. Appellant’s Br.
at 8-13. The Board
found that “overall” the appellant’s GAF scores “established the presence
of mild PTSD symptoms.”
R. at 7. The Board acknowledged that a GAF score of 40 is “consistent with
some impairment in
reality testing or major impairment in several areas,” but concluded that ”
this assigned GAF score
is not consistent with the objective findings of the examination.” R. at 8.
The Board explained that
the appellant
was noted to complain of nightmares, flashbacks, anxiety, and a depressed
mood, but
his insight, judgment, and cognition were fully intact and normal. The [
appellant]
deniedexperiencinganyhallucinations,suicidalor homicidal ideation,
andtherewas
no evidence of psychosis or delusions. In addition, when the [appellant]
was
examined a month later during a VA psychiatric examination, a GAF score of
63,
consistent with mild symptoms, wasassigned. The [appellant] reported
substantially
similar symptoms to the VA examiner as had been recorded during the May
2008
4

private examination, and the GAF score of 63 is more consistent with both
physicians’ findings and examination reports. Thus, while the [appellant’s]
GAF
scores have ranged from 40 to 63, the Board finds that the symptoms
resulting from
his service-connected PTSD have most nearly approximated mild throughout
the
claims period.
R. at 8.
The Board assigned a disability rating for the appellant’s PTSD pursuant
to 38 C.F.R.
§ 4.130, Diagnostic Code (DC) 9411 (2009). Under DC 9411, a 50%
disability rating is warranted
if the appellant demonstrates “[o]ccupational and social impairment with
reduced reliability and
productivity,” while a 30% disability rating is warranted if the appellant
demonstrates only
“[o]ccupational and social impairment with occasional decrease in work
efficiency and intermittent
periods of inabilityto perform occupational tasks.” For each
disabilityrating level, the DC includes
a list of potential symptoms that is neither required nor exclusive.
Mauerhan v. Principi, 16
Vet.App. 436, 442 (2002) (holding that the symptoms listed in the DC are”
not intended to constitute
an exhaustive list, but rather are to serve as examples of the type and
degree of symptoms, or their
effects, that would justify a particular rating”). GAF scores may be
considered in assigning the
appropriate disability rating under DC 9411, but they are not the
dispositive element in rating the
level of impairment. See Caluza, 7 Vet.App. at 506.
“It is the responsibility of the [Board], not this Court, to assess the
credibility and weight to
be given to evidence.” Owens v. Brown, 7 Vet.App. 429, 433 (1995); see
also Washington v.
Nicholson, 19 Vet.App. 362, 367-68 (2005). When, as in this case, there is
a difference of opinion
between two medical examiners, the Board is free to favor one medical
opinion over another as long
as it provides an adequate statement of reasons or bases explaining its
determination. Id. at 435.
When the Board reaches a medical conclusion, however, it must base its
conclusion on “independent
medical evidence” rather than “provide [its] own medical judgment in the
guise of a Board opinion.” Colvin v. Derwinski, 1 Vet.App. 171, 172 (1991); see also Kahana v. Shinseki, 24 Vet.App. 428, 434
(2011).
The appellant argues that the Board’s rejection of Dr. Jabbour’s GAF score violates Colvin. Appellant’s Br. at 13. The Court agrees. If the Board had merely taken the objective findings from the two medical examination reports and applied them to the rating code to
determine that only a
5

30% disability rating is warranted, it would have been well within its
role as factfinder. See Owens, supra. If the Board had explained how the examiners’ findings, along with the other evidence of the record, weighed more heavily in favor of a 30% disability rating than Dr.
Jabbour’s assignment of a GAF score of 40 weighed in favor of a 50% disability rating, it would still have been well within its role as factfinder. Id.; see also 38 C.F.R. § 4.2 (2011) (“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 disability present.”). The Board, however, takes the additional step of stating without corroboration from independent medical authority that Dr. Jabbour’s assignment of a GAF score of 40 is incorrect while the VA examiner’s GAF score of 63 is correct. R. at 8. The Board has in essence assigned its own GAF score in this case, which, as the appellant argues, constitutes a medical determination in violation of Colvin.2
The Court, therefore, finds that the Board’s statement of reasons or bases supporting denial of a disability rating in excess of
30% is inadequate. See 38
U.S.C. § 7104(d)(1); Allday, Caluza, and Gilbert, all supra.
2. Duty To Seek Clarification
The appellant asserts that, “if the Board believed a GAF score of 40 was
not supported by
the findings in Dr. Jabbour’s May 2008 examination report, the Board was
required to ‘return the
report as inadequate’and to seek clarification as to the severityof the [
appellant’s] PTSD symptoms.”
Appellant’s Br. at 16 (quoting 38 C.F.R. § 4.2 (2010)).
Pursuant to 38 C.F.R. § 4.2, “[i]f a diagnosis is not supported by the
findings on the
examination report or if the report does not contain sufficient detail, it
is incumbent upon the rating
board to return the report as inadequate for evaluation purposes.” In
Savage v. Shinseki, 24 Vet.App.
The Court notes that the Secretary, in his brief, methodically listed the
evidence found in
the two examiners’ reports and demonstrated how the evidence indicates
that the Board’s conclusion
that a disability rating in excess of 30% is not warranted ”
notwithstanding the GAF score of 40.”
Secretary’s Br. at 6-8. The Secretary’s analysis is preciselythe type of
analysis that meets the Board’s
reasons-or-bases standard without violating Colvin. The Court, however,
cannot accept the
Secretary’s attempt to mitigate the Board’s failure to provide an adequate
statement of reasons or
bases. See Martin v. Occupational Safety & Health Review Comm’n, 499 U.S.
144, 156 (1991)
(“‘[L]itigating 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.”).
6
2

259, 269-70 (2011), the Court found that the duty imposed by § 4.2 is
not limited to VA medical
examination reports. The Court held:
[W]hen VA concludes that a private medical examination report is unclear
or
insufficient in some way, and it reasonably appears that a request for
clarification . . . could provide relevant information that is otherwise
not in the record
and cannot be obtained in some other way, the Board must either seek
clarification
from the private examiner or the claimant or clearlyand adequatelyexplain
whysuch
clarification is unreasonable.
Savage, 24 Vet.App. at 269. The Court made it clear, however, that the
Board’s duty to clarify
private medical opinions is limited and will not arise in most instances.
Id. at 270. The Court held
that the duty to request clarification of private examination reports “is
not as broad as the mandate
to clarify VA examination reports when such reports meet the rather
general conditions set forth in
§ 4.2.” Id. The Court explained that VA’s duty only arises in “those
instances in which the missing
information is relevant, factual, and objective – that is, not a matter
of opinion – and where the
missing evidence bears greatly on the probative value of the private
examination report.” Id.
Illustrating this concept, the Court determined that the Board erred in
Savage by its failure to
consider seeking clarifications from private examiners to determine
whether a certain specific
medical test was used in preparing examination reports. 24 Vet.App. at 272.
The Court described
this evidence as “an objective fact not subject to interpretation or
opinion that can easilybe obtained
by contacting the private examiners.” Id.
The Board determined that Dr. Jabbour’s conclusion that the appellant’s
condition warrants
a GAF score of 40 is not consistent with his objective findings. R. at 8.
The appellant has failed to
demonstrate, and the Court can find no evidence, that there is “missing
evidence” concerning Dr.
Jabbour’s opinion that is “not a matter of opinion” but is, rather, ”
relevant, factual, and objective.”
Savage, 24 Vet.App. at 270. Rather, the Board seems to have considered Dr.
Jabbour’s opinion
complete, and the point of confusion is his assignment of a GAF score,
which, as the appellant has
argued successfully above, is a “matter of [medical] opinion” and not a
lack of clarity due to an
objective factual gap. Id. The Court, therefore, finds that the Board
committed no error in failing
to consider whether it should seek clarification of Dr. Jabbour’s May 2008
opinion.
The appellant also extends his argument under 38 C.F.R. § 4.2 and Savage
to a set of
treatment notes from Dr. Jabbour dating from July 2008 until September
2009. Appellant’s Br. at
7

17-18; R. at 71-76. The appellant argues that “because these private
medical opinions provided
favorable medical evidence that was ‘not otherwise included in the record,’
the Board was required
to seek clarification of these opinions.” Appellant’s Br. at 14, 17. The
appellant does not address
the standard set forth in Savage and, consequently, fails to demonstrate
why the Board had a duty
to either seek clarification or explain why it did not. Hilkert v. West,
12 Vet.App. 145, 151 (1999)
(en banc) (holding that the appellant bears the burden of demonstrating
error on appeal). The Court
finds no error in the Board’s decision not to discuss whether VA had a
duty to seek clarification of
these treatment records.
3. Other Arguments
The appellant does not make any other specific arguments about the Board’s
consideration
of his PTSD claim. However, at several points in his brief, the appellant
insinuates that the Board
offered an inadequate statement of reasons or bases for the probative
value it assigned to Dr.
Jabbour’s opinion (beyond the GAF score considered above), the probative
value it assigned to Dr.
Jabbour’s treatment notes, and for its findings in general. See
Appellant’s Br. at 14, 17. To the extent
that the appellant is raising these additional arguments, he has not
developed them to a sufficient
degree for the Court to consider them. See Coker v. Nicholson, 19 Vet.App.
439, 442 (2006) (“The
Court requires that an appellant plead with some particularitythe
allegation of error so that the Court
is able to review and assess the validity of the appellant’s arguments.”),
rev’d on other grounds sub
nom. Coker v. Peake, 310 F. App’x 371 (Fed. Cir. 2008) (per curiam order);
see also Locklear v.
Nicholson, 20 Vet.App. 410, 416 (2006) (holding that the Court will not
entertain underdeveloped
arguments); Hilkert, 12 Vet.App. at 151.
B. TDIU
Pursuant to 38 C.F.R. § 4.16(a) (2011), TDIU is warranted when a veteran
who is unable to
secure or follow a substantially gainful occupation because of service-
connected disabilities has
either one service-connected disability rated at least 60% disabling or
multiple service-connected
disabilities yielding a combined rating of 70% (with at least one of those
disabilities rated 40% or
more).
The Board determined that the appellant’s service-connected disabilities
satisfy the
percentage requirement for TDIU. R. at 10. The Board also determined that
the appellant is
currently unemployable. R. at 10-11. The issue upon which the appellant’s
case hinges, therefore,
8

is whether his unemployability is due to his service-connected
disabilities.
The Board analyzed evidence that potentially reveals that the appellant is
unemployable as
a result of his service-connected PTSD, as well as other evidence that
potentially reveals that the
appellant is unemployable as a result of a non-service-connected knee and
lower extremity disorder.
Id. When, as here, a veteran is unemployable and suffers from a
combination of service-connected
and non-service-connected disabilities, “a determination concerning
unemployability . . . must be
made on the basis of service-connected disabilities alone.” Pratt v.
Derwinski, 3 Vet.App. 269, 272
(1992); see also Hatlestad v. Brown, 5 Vet.App. 524, 529 (1993). In Pratt,
the Court further
explained:
Even if . . . the [Board] determined that appellant’s unemployability was
a result of
his age and non-service-connected . . . condition, its task was not
finished. The
[Board] was required to decide, without regard to the non-service-
connected
disabilities or his age, whether appellant’s service-connected
disabilities are
sufficiently incapacitating as to render him unemployable.
Id.; see also Van Hoose v. Brown, 4 Vet.App. 361, 363 (1993) (holding that,
in adjudicating TDIU,
“neither appellant’s non-service-connected disabilities nor his advancing
age may be considered”).
The appellant argues that the Board’s statement of reasons or bases for
its rejection of his application
for TDIU is inadequate because the Board failedto adequatelyconsider the
findings of the June 2008
VA examiner, including whether symptoms identified by the examiner may be
related to the
appellant’s service-connected disabilities. Appellant’s Br. at 18-24.
1. June 2008 VA Examination
The appellant argues that theBoarddid not provideanadequatestatementof
reasons or bases
for accepting the June 2008 examiner’s findings for the purpose of denying
his PTSD claim but
rejecting the examiner’s findings to the extent they support his claim for
TDIU. Appellant’s Br. at
18-20, 22. In considering the June 2008 examination report, the Board
stated:
During the June 2008 VA psychiatric examination, the [appellant] reported
that he
retired from his job following an anxiety attack brought on bythe ringing
phones and
heavy workload. While the VA examiner found that the [appellant’s] anxiety
attack
at work was due to PTSD, the examiner alsoconcluded that the [appellant’s]
decrease
in employment functioning was due to his increased stress from serving as
his wife’s
primary caretaker and from his hospitalization for obstructed bowel. The
examiner
did not find that the [appellant] was unemployable due to PTSD, and the
record
9

contains no other medical evidence of unemployabilitydue to anyof the [
appellant’s]
service-connected disabilities.
R. at 10-11; see R. at 468-49.
The appellant’s assertion that the Board “rejected” the June 2008
examiner’s findings is
incorrect. The Board considered the examiner’s findings and found they did
not support an award
of TDIU, which it is entitled to do. See Owens, supra. The appellant,
however, raises additional
issues regarding the Board’s consideration of this evidence that reveal
Board error.
As the appellant notes, the Board relied on the appellant’s statements in
his application for
TDIU and the statements submitted by his coworkers and supervisor to
conclude that the appellant
is “unemployable due to non-service-connected arthritis of the lower
extremities.” R. at 11. The
appellant argues that the Board inappropriately relied on this evidence,
rather than the June 2008
examination report, to reach its conclusion that TDIU is not warranted.
Appellant’s Br. at 19.
The Board, throughout its discussion of the appellant’s application for
TDIU, misconstrues
and misapplies the Court’s caselaw regarding when an appellant is
unemployable as a result of both
service-connected and non-service-connected disabilities. Pursuant to
Pratt, the Board may, as it
did here, determine that the appellant’s unemployabilityis due to a non-
service-connected condition.
3 Vet.App. at 272. However, once it has done so, it must consider, without
taking into account the
appellant’s non-service-connected condition, whether his service-connected
disabilities are
independently sufficient to render him unemployable. Id. In this case, the
Board weighed evidence
of unemployability for his service-connected disorders against the
evidence of unemployability for
his non-service-connected disorders to reach its conclusion, and did not
engage in the kind of
analysis contemplated by Pratt.
Moreover, the Board concluded that the record “does not establish that [
the appellant’s]
inability to maintain gainful employment is due solely to service-
connected disabilities.” R. at 10
(emphasis added). Theappellant’s unemployabilityneednotbe”duesolely”to his
service-connected
disorders.
Rather, the appellant’s service-connected disorders, considered alone,
should be
sufficiently severe that they might render him unemployable even in the
absence of non-service-
connected disabilities. Pratt, 3 Vet.App. at 272. For these reasons, the
Court finds the Board’s
statement of reasons or bases supporting its conclusion concerning the
appellant’s application for
10

TDIU to be inadequate. See 38 U.S.C. § 7104(d)(1); Allday, Caluza, and
Gilbert, all supra.
2. Additional Symptoms
The appellant next argues that the Board’s statement that the appellant’s ”
decrease in
employmentfunctioningwasdueto hisincreasein stressfrom servingashiswife’s
primarycaretaker
and from his hospitalization for an obstructed bowel” fails to take into
account whether “stress” or
“an obstructed bowel” may themselves be related to a service-connected
disorder. Appellant’s Br.
at 21-24 (citing R. at 11).
The Board’s finding arises from a statement in the June 2008 examination
report. The
examiner noted that the appellant has suffered from “mild PTSD symptoms
for many years, but
managed to function well at home and at work.” R. at 469. The examiner
then stated that the “stress
of serving as primary caretaker of wife, along with recent hospitalization
due to obstructed bowel
aremore likelyas not responsible for decline in functioning.” Id. The
appellantasserts that, contrary
to the Board’s interpretation of these statements, the examiner determined
that the appellant’s “PTSD
symptoms had increased because of his wife’s illness and a recent
hospitalization for a stomach
disorder.” Appellant’s Br. at 21. The Court, however, finds no reason to
dispute the Board’s
conclusions. The examiner made the comments at issue while considering the ”
extent to which
disorders other than PTSD are independently responsible for impairment in
psychological
adjustment/life quality.” R. at 469. The appellant has not demonstrated,
therefore, that the Board
is clearly erroneous in interpreting the examiner’s findings to mean that
the appellant’s functioning
declined as a result of stress and an obstructed bowel rather than that
the appellant’s stress and
obstructed bowel caused his PTSD to worsen. The Court finds no error on
this point.
To the extent that the appellant has made any additional argument
concerning the Board’s
consideration of his reported stress, it is not clear enough for the Court
to discern. See Coker,
Hilkert, and Locklear, all supra. Therefore, the Court finds that the
Board did not err in failing to
discuss whether the stress identified by the June 2008 examiner is related
to a service-connected
disorder.
The Court’s disposition defeats any argument the appellant has raised
linking his obstructed bowel to his PTSD. The Court does, however, agree with the additional argument raised by the appellant that neither the Board nor the June 2008 VA examiner considered whether his obstructed
11

bowel is related to his service-connected residuals of a stomach wound
and splenectomy. Appellant’s Br. at 22-24. The Secretary merely asserts that the appellant is not service-connected for an obstructed bowel disorder and is not responsive to the appellant’s
argument.3 Secretary’s Br. at 12-13.
The report from the appellant’s April 2008 CT scan reveals that the
appellant was suffering from a distended stomach, distended small bowel loops, gallbladder wall thickening and/or pericholecystic fluid, and a small amount of fluid in the mesentery. R. at 124. The test results were
“suspicious for small bowel obstruction.” R. at 125. According to the
appellant’s May 1986 rating decision, after suffering his abdominal wound, he underwent both a splenectomy and a resection of the colon and jejunum. R. at 538. The appellant later complained of pain in his stomach and chest. Id. An x-ray demonstrated that he had a “large amount of retained gastric
content which could be
due to gastric outlet obstruction.” Id. His abdomen contained a “massive”
surgical scar and “multiple” smaller scars. Id.
The Board has a duty to address all issues 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); see also Brannon v. West, 12 Vet. App. 32,
34 (1998). The record appears to reveal that the appellant suffered
significant trauma to a large portion of his abdomen, including his small bowel, as a result of his in-service combat wounds. The Board, therefore, should have discussed whether his service-connected abdominal disorders had any relation to the obstructed bowel disorder that it found contributed to his decrease in employability.
The Board’s statement of reasons or bases is thus inadequate. See 38 U.S.C. § 7104(d)(1); Allday, Caluza, and Gilbert, all supra.

3. Other Matters
In his brief, the appellant lists a number of findings from the June 2008
examiner’s report that the Board did not explicitly consider. Appellant’s Br. at 20. The appellant, however, makes no argument that the Board’s failure to consider that evidence is in error.
To the extent that he is

3 The Court has warned the Secretary that failure to address all arguments may result in the Court determining those points are conceded. MacWhorter v. Derwinski, 2 Vet.App. 655, 656 (1992).
12

attempting to make an argument to that effect, it is not developed to a
degree sufficient for the Court to consider it. See Coker, Hilkert, and Locklear, all supra.
Finally, the Court notes that 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) (stating that, 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).

III. CONCLUSION
After consideration of the appellant’s and Secretary’s pleadings, and a
review of the record, the Board’s July 30, 2010, decision is VACATED, and the matter is REMANDED to the Board for further proceedings consistent with this decision.
DATED: March 16, 2012
Copies to:
Virginia A. Girard-Brady, Esq.
VA General Counsel (027)
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