Veteranclaims’s Blog

August 3, 2012

Single Judge Application Horn v. Shinseki, No. 10-0853, 2012 WL 2355544 (Vet. App. June 21, 2012)

Excerpts from decision below:
These statements imply that the examiner was relying on the absence of objective evidence of aggravation, which comes close to shifting the burden to the veteran to show an increase in disability during service. See Horn v. Shinseki, No. 10-0853, 2012 WL 2355544, at *6-7 (Vet. App. June 21, 2012) (noting that “there is no requirement of a specific injury or trauma in order for the preexisting condition to have been aggravated . . . . [and that i]t is the lack of aggravation that the Secretary must prove, not lack of an injury”). Under these circumstances, the Court concludes that a remand is permissible for the Board to obtain clarification from the VA examiner. See Adams, supra; see also Horn, 2012 WL 2355544, at *11-12 (interpreting Adams, supra, as distinguishing between those cases where clarification of the medical evidence is required necessitating remand, and those cases where there is an obvious insufficiency of the evidence warranting reversal); Daves v. Nicholson, 21 Vet.App. 46, 51 (2007) (when medical examination report is susceptible to multiple fair but inconsistent meanings, the Board errs by not seeking clarification).

Second, the January 2003 examiner did not provide any supporting rationale for opining that service” may at times have caused some temporary aggravation of his symptoms[,] but no long-term problems.” R. at 850; see Horn, 2012 WL 2355544, at *7 (indicating in the context of evaluating whether the Secretary’s proof is sufficient to rebut the presumption of soundness that “there is no reason that the Court should not
10

follow its caselaw that . . . an unexplained conclusory [medical] opinion
is entitled to no weight in a service-connection context (citing Nieves-Rodriguez, 22 Vet.App. at 304)).

Instead, a plain reading of his report shows that he simply adopted the January 2003 examiner’s opinion, which lacks supporting analysis. See R. at 465 (noting that the “[January 2003 examiner] stated that there was
intermittent aggravation of his left foot disorder, but that there was no
permanent damage”).
Because the January 2003 and October 2004 opinions are insufficient to meet
the Secretary’s burden, the Court will vacate the Board’s decision and remand the matter with instructions that the Board seek clarification from the January 2010 medical examiner addressing whether the appellant’s preexisting foot condition was aggravated by service. See Adams and Horn, both supra.

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 11-1556
BOBBY L. NEAL, 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: Theproseappellant,BobbyL.Neal, appeals aJanuary12,2011,
Board
of Veterans’ Appeals (BVA or Board) decision that denied VA disability
compensation benefits for
a left foot disorder. Record of Proceedings (R.) at 3-37. 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). Both
parties filed briefs. 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 August 1966 to
June 1968. R.
at 1550. At his January 1966 enlistment examination, the appellant denied
any prior “foot trouble”
and a clinical evaluation indicated that his feet were “normal.” R. at
1510-11, 1519. During basic
training, the appellant twice sought treatment for “sore ankles.” R. at
1502. He was provided ace
bandages and instructed for seven days not to run, march, or stand for
prolonged periods. Id. His
servicemedicalrecords (SMRs) areotherwisesilent for complaints or
treatment related to his ankles

and feet. R. at 1501-38. At separation, the appellant again denied any ”
foot trouble” and his feet
were evaluated as “normal.” R. at 1506-09, 1512-13.
In January 1994, the appellant filed a claim for disability compensation
for “aggravation to
left foot toes that w[ere] cut prior to service.” R. at 1491-94. A June
1994 neurological examination
noted that the appellant “has some localized problems in the left foot,
which has not changed. In
association with this he has occasional discomfort in the left foot and
has a small area where he
doesn’t feel things normally.” R. at 1456. The examiner stated that the
appellant’s “sensory
examination reveal[ed] no deficits proximally or distally with the
exception of a little area mainly
on the sole of the left foot[,] which dates back to his childhood problem.”
Id.
In April 1995, the appellant testified that he had trouble with his left
foot during basic
training. R. at 1420. He explained that he had problems running and
related it to an accident that
occurred when he was 14 or 15 years old and his foot slipped under a lawn
mower cutting three of
his toes. Id. The appellant stated that his toes have been stiff since the
accident and have not grown,
and described his foot as deformed. R, at 1421.
In July1999 and April 2000 statements, the appellant requested that the
regional office(RO)
obtain his treatment records from the VA hospital in Jackson, Mississippi,
and adjudicate his claim
for a foot condition. R. at 1226, 1256. In June 2000, the RO issued a
rating decision denying the
appellant’s claim. R. at 1220-25. In August 2000, the appellant filed a
Notice of Disagreement in
which he asserted that his claim for a left foot condition dated back to
his “original claim,”
explaining that he had filed a claim for “aggravation to the left foot,
which was an injury before [he]
was drafted in 1966.” R. at 1201-02. The appellant also indicated that he
stated that his “foot was
verytender” during his induction examination and that he went on sick call
during basic training and
in Germany. R. at 1202. After the RO issued a Statement of the Case (R. at
1166-77) that continued
to denyhis claim, the appellant submitted a Substantive Appeal in which he
asserted that “[i]t is very
clear that my foot was injured prior to service and that while in service
my foot injury was
aggravated even more, due to stress of combat.” R. at 959-60; see also R.
at 1157.
The appellant submitted additional evidence and argument in August 2002,
including a July
2002 VA podiatry clinic note indicating that the appellant presented with ”
a rigid deformity of the
second, third, and fourth digits as a result of a severe laceration.” R.
at 890. The examining
2

podiatrist noted that the “[p]atient was told because of [A]rmy-issued
boots in training[,] area has
worsen[ed] to the point that the only option is probably surgical fusion
of the toes.” Id. The
podiatrist assessed “[c]ontracted foot, neuroma secondary to trauma” and
opined that the appellant
“should be service-connected for injury because of training during active
duty stage would have
resulted [sic] a severe aggravation of this condition.” Id.
The appellant underwent a compensation and pension examination of his left
foot in January
2003. R. at 849-50. The VA examiner recorded the appellant’s history of
injuring his left foot prior
to military service: “At the age of 14 or 15 he got his left foot caught
in a lawn mower and sustained
a deep laceration of the plantar aspect of the left forefoot and toes.” R.
at 849. The examiner
indicated that the “flexor tendons of the second, third, and fourth toes
were severed and not repaired”
resulting in a loss of motion and tenderness within the scar. Id. He
further recorded the appellant’s
report that wearing military boots caused pain in his foot and that he
sometimes experienced
“swelling in the region of the first metatarsophalangeal joint.” Id.
Following review of the claims
file, x-rays of the left foot, and a physical examination, the examiner’s
impression was “[s]taus post
severe laceration, plantar aspect of the left forefoot and toes,” “[s]
tatus post traumatic arthritis,
interphalangeal joints of the second and fourth toes,” “[s]tatus post
fusion of the interphalangeal
joints of third toe,” and “[n]euroma, scar of left forefoot.” R. at 849.
The examiner also provided
the following comments:
Although the patient had an extensive laceration of the left forefoot, it
left him with
no deformities which would interfere with wearing of normal shoes. . . .
The injury
definitely occurred at the age of 14 or 15, prior to his entrance into
military service.
Military service may at times have caused some temporary aggravation of
his
symptoms but no long-term problems. The patient has had no injuries to his
foot
since discharge from the service.
In conclusion, I believe that it is more likely than not that the injury
sustained at the
age of 14, prior to his entry into the service, is the cause of his
current left foot
condition with low long-term aggravation resulting from his military duty.
R. at 849-50.
In May 2003, the appellant submitted another opinion by a private
physician, who noted the
appellant’s allegations of significant left foot pain and swelling as a
result of wearing military boots
3

in service. R. at 841. Following a physical examination and review of x-
rayevidence, the physician
noted that the appellant had significant pain with palpation, limited
range of motion, diminished
sensation, a positive Tinel sign, lateral plantar nervelesion, secondaryto
nerve entrapment of the left
foot, and post-traumatic arthritis in the joint. Id. The physician opined:
This condition is related to service, especially with the military service
requirements
and conditions at the time, which caused aggravation of the pain and has
made the
pain into a chronic situation. In conclusion, I believe that this injury
is military
relatedsecondaryto combatboot wear,especiallywithrunningin the1960’s
Vietnam
era.
Id.
In a May 2004 decision (R. at 486-94), the Board noted that although the
medical evidence
“appeared to support the veteran’s contentions of in-service aggravation
of his left foot disorder, the
Board [was] not satisfied that such evidence [was] sufficient for a grant
of service connection” based
on the 2003 examiner’s statement regarding “temporary aggravation” and the
fact that the medical
reports failed to discuss the lack of foot symptomatology for more than 20
years after service. R. at
488. As a result, the Board remanded the appellant’s claim for additional
development, including
a VA medical examination, “to evaluate the nature, severity, and etiology”
of the appellant’s foot
disorder. R. at 491-92.
In October 2004, a VA physician provided an opinion, but no medical
examination,
addressing whether the appellant’s foot condition preexisted service or
was aggravated by service.
R. at 465. The report indicates that the appellant had been examined in
January 2003 and that an
additional examination “would not add any further substance or support to
the requested opinion
seeing this is based upon historical information obtained from review of
the claims folder.” Id.
Regarding preexistence, the examiner noted that “[t]he veteran freely
admits that the initial injury
to his foot occurred while a teenager from a lawn mower accident.” Id.
Regarding aggravation, the
examiner noted that the January 2003 examiner “stated there was
intermittent aggravation of his left
foot disorder, but that there was no permanent damage. Other than that,
that would occur as a result
of the natural process of the disease.” Id. Finally, with regard to
postservice events or diseases,
4

including aging, that may have contributed to worsening of the left foot
disorder, the examiner
stated:
There is no evidence of record of anyspecific event or disease. However,
the natural
process of ageing over the 30 years following . . . service has
contributed to the
increasing symptoms of pain within the left foot. On review of the
opinions of the
. . . podiatrist of [July 2002 and May2003], it is noted that both have
opined that they
felt the shoes worn while in service permanently aggravated the condition
to the
extent that he now has more pain secondary to a neuroma than he would have
had he
not have had to wear the militaryshoes. There is no objective evidence in
the service
record of any permanent damage occurring while on active duty. Also, the
development of a neuroma, 30 years post exposure to service, intermittent
aggravation would not be consistent with the natural process of the
disease. It is far
more likely than not that the natural process of ageing has lead [to] the
development
of the neuroma which is now the primary source of the veteran’s
symptomatology in
his left foot.
Id.
At a February 2005 Board hearing, the appellant testified that the doctors
who treated him
for his preservice injury to his left foot were deceased and that he did
not “know if it would be
possible if somebody would have those records.” R. at 441-42. Following
the hearing, the Board
denied the appellant’s claim in an April 2005 decision (R. at 418-36),
which was subsequently
vacated pursuant to a June 2006 joint motion for remand (JMR). See R. at
407-15 (remanding
because (1) the Board failed to apply the correct standard when
determining that the second prong
of the presumption of soundness had been rebutted,and (2) the Board erred
when it relied on Maxson
v. West, 12 Vet.App. 453 (1999), aff’d, 230 F.3d 1330 (Fed. Cir. 2000)).
The Board issued another decisionin February2007denyingtheappellant’s
claim. R. at 366-
83. That decision was also appealed to the Court, and vacated and the
matter remanded pursuant to
the parties’ July 2008 JMR. R. at 316-22 (remanding the case for (1) the
Board to obtain a medical
examination in compliance with its May 2004 remand order, (2) the examiner
to consider all
evidence concerning continuity of symptomatology, and (3) the Board to
consider whether the
appellant is a combat veteran pursuant to 38 U.S.C. § 1154(b)).
InJanuary2010,theappellantunderwentacompensation andpensionexamination
ofhis left
foot. R. at 42-44. The examiner noted that he reviewed the claims file,
documented the appellant’s
5

reported preservice injury to his left foot, and conducted a physical
examination. Id. The examiner
also noted the appellant’s assertions that (1) during high school he was
unable to run or participate
in sports as a result of pain associated with running, (2) he sought
medical attention during basic
training, (3) after discharge “his foot did about like it did [sic] before
he went in the military,” and
(4) he continues to have chronic pain, which varies in severity. R. at 42.
The examiner’s impression
was “[s]tatus post remote trauma of left foot with traumatic arthritis and
fusion of the proximal
interphalangeal joints of the second, third, and fourth toes,” and “[n]
euroma of left foot.” R. at 43.
Regarding preexistence, the examiner opined that “the claimed foot
disorder clearly and
unmistakably preexisted his active service.” R. at 43-44. Regarding
aggravation, the examiner
stated:
I cannot document that the left foot disorder was permanently aggravated
or
worsened during his period in the military. As previously noted by the
examiner
from 2003, there was probablyintermittent aggravation of his left foot,
but there was
no permanent damage. For VA purposes, temporary or intermittent flare ups
of a[]
preexisting injuryor disease arenot sufficient to beconsideredaggravation
in service
unless the underlying condition, as contrasted to the symptoms, is
worsened.
R. at 44. In response to the question whether “the left foot disorder [was]
incurred during active
service or did it become manifest to a compensable degree within a 1 year
period of his discharge,”
the examiner stated that “it is far more likely than not that his left
foot disorder preexisted his entry
into the service. I am unable to document that he had a permanent
worsening of his left foot
condition based upon a review of the record.” Id. Finally, with regard to
whether the left foot
condition is clearly and unmistakably related to any postservice event or
disease, including aging,
the examiner stated:
The left foot disorder is not related to any post[]service event or
disease, but again
is related to the original injury which he sustained as a teenager and it
is again noted
that I can find no evidence that his left foot condition was permanently
worsened by
any incident or occurrence in the military.
Id.
In the decision here on appeal, the Board denied VA disability
compensation benefits for a
leftfootdisorderbasedonits findingthattheappellantclearlyand
unmistakablyentered servicewith
6

a preexisting foot disorder and the evidence clearly and unmistakably
established that his condition
did not undergo an increase in severity during service. R. at 5. This
appeal followed.
II. ANALYSIS
A. Presumption of Soundness
Pursuant to 38 U.S.C. § 1111, “every veteran shall be taken to have been
in sound condition
when examined, accepted, and enrolled for service, except as to defects,
infirmities, or disorders
noted at the time of the examination.” Thus, when no preexisting condition
is noted upon entry into
service, the veteran is presumed sound. See Wagner v. Principi, 370 F.3d
1089, 1096 (Fed. Cir.
2004). This presumption can only be overcome by clear and unmistakable
evidence that the injury
or disease preexisted service and was not aggravated by service. See 38 U.
S.C. § 1111; Wagner,
supra; see also Jordan v. Nicholson, 401 F.3d 1296, 1298 (Fed. Cir. 2005). ”
Clear and unmistakable
evidence” means that the evidence “‘cannot be misinterpreted and
misunderstood, i.e., it is
undebatable.'” Quirin v. Shinseki, 22 Vet.App. 390, 396 (2009) (quoting
Vanerson v. West,
12 Vet.App. 254, 258-59 (1999)). When an injury or disease has been shown
to have existed before
acceptance and enrollment to military service, it will be considered to
have been aggravated in
service, unless the Secretary establishes, by clear and unmistakable
evidence, either that there was
no increase in disability during service or that any increase in
disability was due to the “natural
progress” of the preexisting disease or injury. See 38 U.S.C. § 1111;
Wagner, supra; see also Joyce
v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006) (“To satisfy the second
requirement for rebutting
the presumption of soundness, the government must rebut a statutory
presumption of aggravation
by showing, by clear and unmistakable evidence, either that (1) there was
no increase in disability
during service, or (2) any increase in disability was ‘due to the natural
progression’ of the
condition.”). The Court reviews de novo a Board decision concerning the
adequacy of the evidence
offered to rebut the presumption of soundness. Quirin, 22 Vet.App. at 396.
However, the U.S.
Court of Appeals for the Federal Circuit has stated that in reviewing the
legal sufficiency of rebuttal
evidence, this Court may employ the “arbitrary, capricious, an abuse of
discretion, or otherwise not
7

in accordance with law” standard of review because it subsumes de novo
review of questions of law.
Kent v. Principi, 389 F.3d 1380, 1383 (Fed. Cir. 2004).
It is undisputed thattheappellant’s militaryentrancedocumentsdid not
noteanyfootdisorder
and therefore the presumption of soundness applies. R. at 9; see Wagner,
supra. It is also
undisputed that the first prong of the presumption of soundness was
rebutted – that the evidence
clearly and unmistakably established that the appellant’s left foot
disorder preexisted service. R. at
9. In its decision, the Board noted that the appellant acknowledged that
he lacerated his left foot in
his early teens and that the various medical opinions of record related
the appellant’s current foot
disorder to his preservice injury. R. at 9-10; see Doran v. Brown 6 Vet.
App. 283, 286 (1994)
(concluding, “as a matter of law, that the presumption of soundness was
rebutted by clear and
unmistakable evidence consisting of [the] appellant’s own admissions . . .
of a preservice
[disability]”); see also Harris v. West, 203 F.3d 1347, 1349 (Fed. Cir.
2000). The remaining issue
is whether the Government established by clear and unmistakable evidence
that the appellant’s
preexisting foot condition did not undergo an increase in severity during
service or that any increase
was due to the natural progress of the disease. Wagner, supra.
On appeal, the appellant argues that he has experienced foot pain since
the militaryand notes
that two podiatrists have stated that he should be service connected for
his foot problem. Appellant’s
Informal Brief (Br.) at 1-2. The appellant is correct that both the July
2002 and May2003 examiners
related the appellant’s foot condition to service. However, in addressing
the numerous medical
opinions of record, the Board found that both favorable opinions were of
minimal probative value
for various reasons, including that neither examiner provided any
supporting rationale for his
opinion. R. at 17-18; see Stefl v. Nicholson, 21 Vet.App. 120, 124-25 (
2007) (holding that the Board
may not rely on a medical examiner’s conclusory statements if they lack
supporting analysis); see
also Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008) (noting that ”
a medical examination
report must contain not only clear conclusions with supporting data, but
also a reasoned medical
explanation connecting the two”). Based on a review of the medical
opinions and the Board’s
statement of reasons or bases, the Court cannot say that the Board’s
determination was clearly
erroneous. See Owens v. Brown, 7 Vet.App. 429, 433 (1995) (holding that
the Board is responsible
8

for assessing the credibility and weight of evidence and that the Court
may overturn the Board’s
decision only if it is clearly erroneous).
Nonetheless, in the context of the presumption of soundness, there is no
requirement that
the claimant submit evidence of aggravation becausetheburdenfalls on the
Government to establish
no aggravation. Wagner, supra. Relying primarilyon the January2010,
October 2004, and January
2003 VA medical opinions, the Board concluded that evidence clearlyand
unmistakablyestablished
that the appellant’s foot disorder was not aggravated by service. R. at 10-
19. Regarding the January
2010 medical opinion, the Board stated that the examiner “unequivocally
concluded that the current
left foot disorder clearly and unmistakably existed prior to service, and
did not undergo any
permanent worsening. The examiner acknowledged that there may have been
temporary flare ups
during service, but unequivocally found that the [v]eteran’s disability
did not permanently worsen
during service.” Id. The Court cannot agree with the degree of clarity
assigned the January 2010
medical examiner’s opinion.
Although the examiner stated that “the claimed foot disorder clearly and
unmistakably
preexisted service” his statements regarding aggravation contain
sufficient ambiguity that is was
error for the Board to rely on the examiner’s opinion without seeking
further clarification. See
Adams v. Principi, 256 F.3d 1318, 1321-22 (Fed. Cir. 2001) (affirming this
Court’s conclusion that
remand was the appropriate remedy where there was a lack of clarity in the
medical evidence and
the Board should have sought clarification to resolve the VA examiner’s
intent). The examiner
stated:”Icannotdocument
thattheleftfootdisorderwaspermanentlyaggravatedorworsenedduring
his period in the military. As previously noted by the examiner from 2003,
there was probably
intermittent aggravation of his left foot, but there was no permanent
damage.” R. at 44 (emphasis
added). Viewed one way, the examiner’s statement could be read as opining
that the appellant’s foot
did not undergo any worsening during service and together with the other
evidence of record could
support the Board’s conclusion that the Secretary satisfied his burden to
overcome the presumption
of soundness. However, the examiner’s statement – “I cannot document” –
could also be viewed
as an inability to opine whether the appellant’s foot underwent a
permanent worsening during
service. Although the examiner referred to the 2003 examiner’s conclusion
that there was “no
9

permanent damage,” he twice more referred to his own inability “to
document” and “find . . .
evidence that [the appellant’s] left foot was permanently worsened by an
incident or occurrence in
the military.” R. at 44. These statements imply that the examiner was
relying on the absence of objective evidence of aggravation, which comes close to shifting the burden to the veteran to show an increase in disability during service. See Horn v. Shinseki, No. 10-0853, 2012 WL 2355544, at *6-7 (Vet. App. June 21, 2012) (noting that “there is no requirement of a specific injury or trauma in order for the preexisting condition to have been aggravated . . . . [and that i]t is the lack of aggravation that the Secretary must prove, not lack of an injury”). Under these circumstances, the Court concludes that a remand is permissible for the Board to obtain clarification from the VA examiner. See Adams, supra; see also Horn, 2012 WL 2355544, at *11-12 (interpreting Adams,
supra, as distinguishing between those cases where clarification of the
medical evidence is required necessitating remand, and those cases where there is an obvious insufficiency of the evidence warranting reversal); Daves v. Nicholson, 21 Vet.App. 46, 51 (2007) (when medical examination
report is susceptible to multiple fair but inconsistent meanings, the
Board errs by not seeking clarification).

The Court is cognizant thattherecordcontainstwoadditionalVAopinions,
theJanuary2003
and October 2004 reports, which also address this issue. Although the
Board relied on the three
medical reports to determine that the Secretary satisfied his burden to
rebut the presumption of
soundness, the Court finds the Secretary’s proof insufficient without the
January 2010 examiner’s
opinion. First, as conceded by the Board, the January 2003 opinion left
open “some room, albeit
minor, for doubt as to whether aggravation might have occurred” and the
examiner’s use of the
phrase “more likely than not” is insufficient to meet the clear and
unmistakable evidence standard.
R. at 19; see also R. at 18 (noting that the examiner seemed to concede ”
‘low long-term aggravation'” but indicating that the examiner “likely meant ‘no’ instead of ‘low'”).
Second, the January 2003 examiner did not provide any supporting rationale for opining that service” may at times have caused some temporary aggravation of his symptoms[,] but no long-term problems.”
R. at 850; see Horn, 2012 WL 2355544, at *7 (indicating in the context of evaluating whether the Secretary’s proof is sufficient to rebut the presumption of soundness that “there is no reason that the Court should not
10

follow its caselaw that . . . an unexplained conclusory [medical] opinion
is entitled to no weight in
a service-connection context (citing Nieves-Rodriguez, 22 Vet.App. at 304
)).
In this regard, the Court notes that the Board may not discount favorable medical evidence that is conclusory, yet favor another medical opinion that also fails to provide any rationale for its conclusion. Third, the October 2004 examiner did not provide an independent opinion regarding aggravation.
Instead, a plain reading of his report shows that he simply adopted the January 2003 examiner’s opinion, which lacks supporting analysis. See R. at 465 (noting that the “[January 2003 examiner] stated that there was
intermittent aggravation of his left foot disorder, but that there was no
permanent damage”).
Because the January 2003 and October 2004 opinions are insufficient to meet
the Secretary’s burden, the Court will vacate the Board’s decision and remand the matter with instructions that the Board seek clarification from the January 2010 medical examiner addressing whether the appellant’s preexisting foot condition was aggravated by service. See Adams and Horn, both supra.

B. The Appellant’s Remaining Arguments
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). “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.”
Id. In pursuing the matter 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
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).
11

III. CONCLUSION
After consideration of the appellant’s and the Secretary’s pleadings, and
a review of the record, the Board’s January 12, 2011, decision is VACATED and the matter is REMANDED for further proceedings consistent with this decision.
DATED: July 5, 2012
Copies to:
Bobby L. Neal
VA General Counsel (027)
12

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