Excerpt from decision below:
“In other words, if the evidence of record at the time a veteran dies shows a condition connected to his military service, then the veteran’s surviving spouse or accrued benefits claimant could claim the monetary benefits to which the veteran would have been entitled. See Quattlebaum v. Shinseki, 25 Vet. App. 171, 173-74 (2012) (“Section 5121 permits a surviving spouse to stand in the shoes of the veteran and pursue his claim after his death by filing an accrued benefits claim, so long as the surviving spouse files an application for accrued benefits within one year after the [veteran’s] date of death.” (internal quotation marks and citations omitted)).
===============================
—————————————————-
Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 11-2516
BELINDA A. ZAMBRANO, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before BARTLEY, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
BARTLEY, Judge: Claimant Belinda A. Zambrano appeals, through a non-
attorney
representative, from an April 13, 2011, decision of the Board of Veterans’
Appeals (Board) that
denied claims for entitlement to service connection for cause of death of
her deceased husband,
veteranRigobertoF.Zambrano,andentitlement to serviceconnection
formultiplemyeloma,chronic
renal failure, and elevated prostate specific antigen (PSA) for purposes
of accrued benefits.1
Record
(R.) at 3-13. This appeal is timely, and the Court has jurisdiction to
review the Board decision
pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition
is appropriate in this case.
See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following
reasons, the Court will
set aside the Board’s April 13, 2011, decision and remand the matter for
readjudication consistent
with this decision.
The Board determined that, although he suffered from elevated PSA levels,
Mr. Zambrano had no diagnosed
disability associated with that elevation and, on that basis, denied the
claim for service connection for PSA for accrued
benefits purposes. Record at 9. Because Mrs. Zambrano has not challenged
this finding, the Court will not address it
further. See Grivois v. Brown, 6 Vet.App. 136, 138 (1994) (holding that
issues or claims not argued on appeal are
considered abandoned).
1
I. FACTS
Mr. Zambrano served on active duty in the U.S. Air Force from January 1968
to October
1975. R. at 459-60, 531. He was stationed at Norton Air Force Base in
California and worked as
an aircraft mechanic and maintenance specialist. R. at 460, 531, 535.
Service medical records
(SMRs) document that Mr. Zambrano had a history of contact dermatitis on
his hands. R. at 493-99,
516. This condition included, at one point, “blister like vesicles” that
grew larger in size over time.
R. at 497. Base physicians treating him opined that the veteran’s work
with chemical solvents were
the cause of the dermatitis. R. at 468, 493, 498; see also R. at 477-78 (
Physical Profile Serial
Reports instructing that veteran should have “no exposure to solvents”).
In December 2004, Mr. Zambrano underwent an Agent Orange
registryexamination at a VA
medical center (VAMC), the results of which showed multiple myeloma,2
elevated PSA,3
and
chronic renal failure. R. at 446. The VAMC informed the veteran that ”
Multiple Myeloma is a
presumptive condition related to Agent Orange exposure” and that his renal
disease “is most likely
due to Multiple Myeloma.” Id. The veteran filed claims for service
connection for all three of these
conditions in January 2005. R. at 436-45. Six months later, in June 2005,
the VA regional office
(RO) issued a rating decision that granted Mr. Zambrano entitlement to non-
service-connected
pension and special monthly pension effective January 2005, but denied his
claims for service
connection for multiple myeloma, chronic renal failure, and elevated PSA.
R. at 205-14.
In January 2006, Mr. Zambrano filed a Notice of Disagreement (NOD) as to
the RO’s
decision. R. at 200. Mr. Zambrano filed in support of his claims a letter
from Dr. Frederick Rundall,
who was treating the veteran’s multiple myeloma with chemo- and radiation
therapy. R. at 192. Dr.
Rundall offered the following opinion:
Thereissupportedevidencedocumentingthelinkageofexposureto chemical
agents such as: Trichloroethylene, Tetrachloroethylene, Arsenic, Volatile
Organic
A “myeloma” is “a disseminated type of plasma cell dyscrasia [i.e.,
disease or pathologic condition]
characterized by multiple bone marrow tumor foci.” DORLAND’S ILLUSTRATED
MEDICAL DICTIONARY 576, 1219 (32d
ed. 2012) [hereinafter DORLAND’S].
A “prostate-specific antigen” is a “serine endopeptidase [i.e., an enzyme
that separates the peptide bonds in
proteins] secreted by the epithelial cells of the prostate gland; serum
levels are elevated in benign prostatic hyperplasia
and prostate cancer. Measurement of PSA serum levels is used as a
screening test for prostate cancer.” DORLAND’S at
106, 879, 1408, 1697.
3
2
2
Compounds, Chromium and airplane chemical solvents that Mr. Zambrano was
frequently exposed to while at Norton Air Force Base.
It is highly likely that Mr. Zambrano’s frequent contact with these
chemical
agents discovered in the soil and drinking water mayhave contributed in
causing Mr.
Zambrano’s present medical diagnosis of Multiple My[e]loma and Renal
Failure.
Id.
Dr. Rundall formed this opinion after reviewing documents provided by Mr.
Zambrano,
which showed the following: that the U.S. Environmental Protection Agency
placed Norton Air
ForceBaseonits NationalPriorities List in 1987 because of contamination
ofthebase’sgroundwater
and soils by numerous chemicals and toxins, including those specifically
mentioned in the doctor’s
opinion; the documented effects on humans and animals from exposure to
these chemicals and
toxins; and how humans can be exposed to these substances. R. at 116-79;
see, e.g., R. at 177
(noting connection between high exposure to tetrachloroethylene and kidney
damage in animals).
On August 9, 2006, Mr. and Mrs. Zambrano were involved in a severe
automobile accident
that resulted in Mr. Zambrano’s death. R. at 71-77. “Blunt force injuries”
was listed as the cause of
death on his death certificate. R. at 78. In January 2008, Mrs. Zambrano,
through a representative,
filed a VA Form 21-534, Application for Dependency and Indemnity
Compensation (DIC), Death
Pension and Accrued Benefits by a Surviving Spouse or Child. R. at 107-15.
In May 2008, the RO
requested an independent medical opinion from VA physician Ronald Hamm on
whether Mr.
Zambrano’s frequent contact with chemicals discovered in the soil,
ingestion of contaminated
drinking water, and contact with fabricated metal solvents used during the
performance of his duties
as an airplane mechanic, all at Norton Air Force Base, likely resulted in
his diagnoses of multiple
myeloma and renal failure. R. at 85-86.
Dr. Hamm’s opinion stated that Mr. Zambrano’s renal failure was “causally
related” to his
multiple myeloma but that “[t]here [was] no plausible causal connection”
between the veteran’s
multiple myeloma and contact with any of the factors listed in the RO’s
request, further noting that
there was no evidence that Mr. Zambrano ever worked with “metal solvents.”
R. at 83. According
to Dr. Hamm, the causes of multiple myeloma “are not known, and it is
likely that no single exact
cause will be discovered.” Id. With respect to Dr. Rundall’s opinion, Dr.
Hamm said: “There is no
known association between trichloroethylene, tetrachloroethylene,
arsenicals, and [c]hromium” and
3
later development of myeloma, and that, since Dr. Rundall “did not
provide any citations showing
anyplausible causal relationship between the listed compounds” and Mr.
Zambrano’s condition, Dr.
Rundall was “merely engaging in speculation.” Id.
The RO issued a rating decision on July 2, 2008, stating: “Service
connection for cause of
death is denied.” R. at 60; see also R. at 57-64. That denial was based on
the fact that the cause of
Mr. Zambrano’s death was blunt force injuries and no such injuries were
treated or diagnosed during
his service. R. at 61. The RO then said that “[t]he issue involved was
determined by a [m]edical
[o]pinion” and proceeded to discuss Dr. Hamm’s opinion that the veteran’s
multiple myeloma,
chronic renal failure, and elevated PSA were not caused by exposure to
chemicals or toxins during
service. R. at 61-62. In the cover letter accompanying the rating decision
sent to Mrs. Zambrano,
the RO stated: “We denied your claim for [DIC], death pension and accrued
benefits.” R. at 57. The
letter further informed Mrs. Zambrano that (1) the rating decision would
provide “a detailed
explanation of [the RO’s] decision to deny DIC”; (2) Mrs. Zambrano’s
income made her ineligible
for a death pension; and (3) the RO denied her “claim for accrued benefits
because VA didn’t owe
the veteran any money” at the time of his death. R. at 57-58.
Mrs. Zambrano filed an NOD as to the RO’s decision. R. at 53-54. The NOD
observed that
it was “unclear as to whether the issue of [a]ccrued [b]enefits ha[d] been
specifically identified and
adjudicated properly” but nonetheless declared that the NOD should be
understood to express
disagreement as to the RO’s “presumed denial”of Ms. Zambrano’s
accruedbenefits claim. Id. (citing
Deshotel v. Nicholson, 457 F.3d 1258 (Fed. Cir. 2006)). The RO continued
to denyMrs. Zambrano’s
claims, and she perfected an appeal to the Board. R. at 21, 33, 35-50.
The Board issued the decision currently on appeal on April 13, 2011,
denying entitlement to
serviceconnection for cause of the veteran’s death and entitlement to
serviceconnection for multiple
myeloma, chronic renal failure, and elevated PSA for purposes of accrued
benefits. R. at 3-13. With
respect to DIC, the Board found that Mr. Zambrano’s death was caused by
blunt force injuries
sustained in a car accident and that no evidence supported a finding that
anydisease or injury related
to his military service contributed “in any way” to his death. See R. at 5-
7. With respect to accrued
benefits, the Board evaluated the state of Mr. Zambrano’s claims for
service connection at the time
of his death. Regarding the claim for service connection for elevated PSA,
the Board found that Mr.
4
Zambrano was not diagnosed with any disability associated with elevated
PSA levels during the
pendencyof his claim and, therefore, that he did not have the requisite
current disability to establish
service connection. R. at 9. With respect to multiple myeloma and chronic
renal failure, the Board
found the presumption of service connection inapplicable—because Mr.
Zambrano did not serve in
the Republic of Vietnam during his term of service—and that the evidence
of record did not
demonstrate a nexus between these conditions and his service. R. at 10.
With respect to nexus, the
Board found that Dr. Rundall’s opinion linking multiple myeloma and
chronic renal failure to in-
service exposure to chemicals and toxins was vague and speculative and
entitled to no weight. R.
at 10-11. The Board declined to consider Dr. Hamm’s 2008 opinion because
it postdated Mr.
Zambrano’s death and under 38 U.S.C. § 5121 only evidence contained in
the claims file at the time
of the veteran’s death may be considered. R. at 11. Without any medical
evidence linking Mr.
Zambrano’s multiple myeloma and chronicrenal failureto his militaryservice,
theBoard determined
that he was not entitled to service connection and, hence, that Mrs.
Zambrano was not entitled to
accrued benefits. Id. This appeal followed.
II. ANALYSIS
Before this Court, Mrs. Zambrano first argues that the Board erred in not
remanding her
claim for accrued benefits to the RO for adjudication because “[t]he issue
of accrued benefits was
not clearly addressed” by the RO. Appellant’s Brief (Br.) at 9. She next
argues that the Board failed
to provide an adequate explanation for rejecting Dr. Rundall’s opinion
that the veteran’s conditions
were etiologicallylinked to his service. Id. at 10-13. Finally, Mrs.
Zambrano asserts that the Board’s
decision on her DIC claim should be vacated and the claim remanded either
because it is inextricably
intertwined with her accrued benefits claim or because the Board relied
upon an inadequate medical
opinion in reaching its decision, namely, Dr. Hamm’s. Id. at 13-18.
The Secretary argues in response that the RO clearly denied Mrs.
Zambrano’s accrued
benefits claim and the Board did not err in not discussing that question.
Secretary’s Br. at 8-12.
Further, the Secretary contends that the Board provided an adequate
statement of reasons or bases
for denying the accrued benefits claim. Id. at 12-17. With respect to the
DIC claim, the Secretary
5
asserts that it is not intertwined with the accrued benefits claim and
that, on the merits, Dr. Hamm’s
opinion is not inadequate. Id. at 18-24.
A. Entitlement to Service Connection for Accrued Benefits Purposes
The surviving spouse of a veteran may be entitled to accrued benefits,
which are “periodic
monetarybenefits . . . to which an individual was entitled at death under
existing ratings or decisions
or those based on evidence in the file at date of death.” 38 U.S.C. §
5121(a); see also 38 C.F.R.
§ 3.1000 (2012). In other words, if the evidence of record at the time a
veteran dies shows a condition connected to his military service, then the veteran’s surviving spouse or accrued benefits claimant could claim the monetary benefits to which the veteran would have been entitled. See
Quattlebaum v. Shinseki, 25 Vet. App. 171, 173-74 (2012) (“Section 5121
permits a surviving spouse to stand in the shoes of the veteran and pursue his claim after his death by filing an accrued benefits claim, so long as the surviving spouse files an application for accrued benefits within one
year after the [veteran’s] date of death.” (internal quotation marks and
citations omitted)).
Establishing service connection generally requires the following elements: (
1) Medical
evidence of a current disability; (2) medical evidence or, in certain
circumstances, lay evidence of
in-service incurrence or aggravation of a disease or injury; and (3)
medical evidence of a nexus
between the claimed in-service disease or injury and the present disease
or injury. See McClain v.
Nicholson, 21 Vet.App. 319, 320-21 (2007). A finding of service connection,
or no service
connection, is a finding of fact reviewed under the “clearly erroneous”
standard in 38 U.S.C.
§ 7261(a)(4). See Swann v. Brown, 5 Vet.App. 229, 232 (1993). “A factual
finding ‘is “clearly
erroneous” when although there is evidence to support it, the reviewing
court on the entire evidence
is left with the definite and firm conviction that a mistake has been
committed.'” Hersey v.
Derwinski, 2 Vet.App. 91, 94 (1992) (quoting United States v. U.S. Gypsum
Co., 333 U.S. 364, 395
(1948)).
Additionally, the Board is required to include in its decision a written
statement of the
reasons or bases for its findings and conclusions on all material issues
of fact and law presented on
the record; that statement must be adequate to enable an appellant to
understand the precise basis for
the Board’s decision, as well as to facilitate informed review in this
Court. See 38 U.S.C.
§ 7104(d)(l); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990). To
comply with this requirement,
6
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 any material
evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 507 (
1995); Gabrielson v.
Brown, 7 Vet.App. 36, 39-40 (1994); Gilbert, supra.
As a preliminary matter, the Court rejects Mrs. Zambrano’s argument that
the Board’s
decision should be vacated and remanded because it failed to discuss (and
remedy) errors in the RO’s
adjudication of her accrued benefits claim. Appellant’s Br. at 9. To the
extent that Mrs. Zambrano
is arguing that the RO failed to rule on the claim at all, she is
incorrect: the RO did address her
eligibility for accrued benefits and denied the claim. See R. at 58 (
denying “claim for accrued
benefits because VA didn’t owe the veteran any money” at the time of his
death). Indeed, Mrs.
Zambrano’s July 2008 NOD belies her present argument, inasmuch as she
stated her presumption
that her accrued benefits claim was denied and her intention to appeal
that decision. R. at 53-54.
To the extent Mrs. Zambrano is asserting that the RO erred in not
addressing her accrued benefits
claim properly, Appellant’s Br. at 9; Reply Br. at 1-3, her attention is
misplaced. The Board
conducts de novo review of RO proceedings. See Donovan v. West, 158 F.3d
1377, 1381 (Fed. Cir.
1998). When the Board affirms an RO decision, the Board’s decision
subsumes the ruling of the RO.
See Brown v. West, 203 F.3d 1378, 1381 (Fed. Cir. 2000); Yoma v. Brown, 8
Vet.App. 298, 299
(1995) (per curiam order) (relying on Robinette v. Brown, 8 Vet.App. 69,
80 (1995)); 38 C.F.R.
§ 20.1104 (2012). Hence, as a general matter errors in an RO’s decision,
unless repeated by the
Board on appeal, are not pertinent to this Court’s review of a Board
decision. See 38 U.S.C. §§ 7252,
7256. The proper question is whether the Board committed prejudicial error;
the Court now turns
to those allegations.
TheBoardfoundthatMr.Zambranowasdiagnosedwith
multiplemyelomaandchronicrenal
failureat the time of his death, therebysatisfying the first element in
establishing serviceconnection.
R. at 9. But the Board concluded that the medical opinion by Dr. Rundall
linking those conditions
to Mr. Zambrano’s military service was vague and speculative and,
therefore, could not support the
claim. R. at 10-11. This conclusion, however, is based upon an unfair
parsing of the doctor’s
language. Dr. Rundall stated: “There is supported evidence documenting the
linkage of exposure
to chemical agents such as: Trichloroethylene, Tetrachloroethylene,
Arsenic, Volatile Organic
7
Compounds, Chromium and airplane chemical solvents that Mr. Zambrano was
frequently exposed
to while at Norton Air Force Base.” R. at 192. The Board said that “[t]he
opinion is unclear as to
what any documented exposure is linked to.” R. at 10. Although the Court
agrees that the letter is
less than perfectly clear, it is apparent that Dr. Rundall was attempting
to express an opinion on the
link between the “chemical agents” to which Mr. Zambrano was allegedly
exposed during service
and the medical conditions for which Dr. Rundall was treating him—and
which were mentioned in
the preceding and following paragraphs—namely, multiple myeloma and
renal failure.4
R. at 192.
According to the Board, however, the main weakness in Dr. Rundall’s letter
is his statement
that “the Veteran’s contact with those chemical agents may have
contributed in causing multiple
myeloma and renal failure.” R. at 10 (emphasis added). The Board reasoned
that an opinion
couched in terms such as “may” is too speculative to carry probative
weight. R. at 10-11. And were
Dr. Rundall’s opinion phrased simply in terms of “may” or “may not,”
without any supporting
rationale, the Board would have been entitled to reject it on that basis.
See Hood v. Shinseki,
23 Vet.App. 295, 298-99 (2009). Dr. Rundall’s opinion, however, reads as
follows: “It is highly
likely that Mr. Zambrano’s frequent contact with these chemical agents
discovered in the soil and
drinking water may have contributed in causing Mr. Zambrano’s present
medical diagnosis.” R. at
192 (emphasis added). Clearly, Dr. Rundall was expressing his opinion that
a nexus likely existed
betweenMr.Zambrano’s in-serviceexposureto certainchemicalsandhiscurrent
medicalconditions.
See Bloom v. West, 12 Vet. App. 185, 187 (1999) (finding that the use of
terms like “could,” without
supporting data, is too speculative in a nexus opinion but acknowledging “[
w]hat is speculative in
one context might be less so in another”); cf. Dyment v. West, 13 Vet.App.
141, 146-47 (1999)
(emphasizing that a physician’s choice of language is not error when his
opinion is unambiguous and
complies substantially with the purpose for which it was sought). Thus,
the Board’s bases for
discounting Dr. Rundall’s opinion were incorrect.
Although the Court agrees with Mrs. Zambrano that the Board erred in
interpreting Dr. Rundall’s letter, it is
not correct that the Board had the option of seeking clarification of the
medical opinion in this case. See Appellant’s Br.
at 11 (citing Savage v. Shinseki, 24 Vet.App. 259 (2011)). For any accrued
benefits claim where the veteran died prior
to October 2008, the Board must decide the claim on the evidence contained
in the file at the date of the veteran’s death.
See 38 U.S.C. 5121(a). Anyclarification fromDr. Rundall after Mr.
Zambrano’s death would have violated this statutory
requirement.
4
8
Moreover, the Board’s finding with respect to the second element in a
service-connection
analysis—in-service incurrence of a disease—is not clear. The Board
noted that Mr. Zambrano’s
service records do not indicate that he ever served in the Republic of
Vietnam, and hence was not
entitled to a presumption of exposure to herbicides, and further observed
that his multiple myeloma
and renal failure were diagnosed 29 years after he left service. R. at 10.
Yet the Board did not find
explicitly whether Mr. Zambrano was exposed to chemical agents while in
service. Notably, the
Board did not discuss or even mention the veteran’s SMRs that documented
the serious skin
condition he developed as a result of working with chemical solvents (see
R. at 468, 477-78, 493-
99), nor did the Board discuss the extensive materials he submitted
documenting contamination of
the soil and groundwater at Norton Air Force Base by certain chemicals and
toxins, and the effects
exposure to these substances has on humans (see R. at 116-79).
Because the Board failed to discuss whether the evidence of record
demonstrated that Mr.
Zambrano was exposed to chemical agents during his service as an aircraft
mechanic and
maintenance specialist at Norton Air Force Base, and because the Board’s
rejection of Dr. Rundall’s
favorable nexus opinion was erroneous, the Court will vacate the Board
decision with respect to the
accrued benefits claim and remand the matter for further consideration.
See Tucker v. West, 11
Vet.App. 369, 374 (1998) (stating that remand is appropriate “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”); see also Caluza, Hersey,
and Gilbert, all supra.
B. Entitlement to Service Connection for Cause of the Veteran’s Death
DIC benefits are available to the surviving spouse of a veteran who dies ”
as the result of a
service connected disability.” 38 U.S.C. § 1312(a)(2)(B). To establish
service connection for the
cause of the veteran’s death, the evidence must show that a service-
connected disability was either
the primary or a contributory cause of death. 38 C.F.R. § 3.312(a) (2012).
It is the primary cause
if it was “the immediate or underlying cause of death or was etiologically
related” to the death; it is
a contributory cause if it “contributed substantially or materially” to
the cause of death, “combined
to cause death,” or “aided or lent assistance to the production of death.”
38 C.F.R. § 3.312(b), (c).
Additionally, “[i]t is not sufficient to show that [a service-connected
disability] casually shared in
producing death, but rather it must be shown that there was a causal
connection.” 38 C.F.R.
9
§ 3.312(c). The Board’s determination of whether the veteran’s death was
service connected is a
finding of fact that the Court reviews under the “clearly erroneous”
standard of review in 38 U.S.C.
§ 7261(a)(4). See Wray v. Brown, 7 Vet.App. 488, 492 (1995).
Mrs. Zambrano argues that her claim for DIC is inextricably intertwined
with her accrued
benefits claims and should, therefore, be remanded to the Board as well.
Appellant’s Br. at 13-14.
Claims are inextricably intertwined when a decision on one issue would
have a “significant impact”
upon the other. Henderson v. West, 12 Vet.App. 11, 20 (1998). In addition
to the possible effect that
a decision on one claim may have upon the merits of another, when “two
claims are so intimately
connected, . . . in the interests of judicial economyand avoidance of
piecemeal litigation, theyshould
be appealed together.” Smith v. Gober, 236 F.3d 1370, 1372 (Fed. Cir. 2001
); see also Gurley v.
Nicholson, 20 Vet.App. 573, 574 (2007).
In the present case, the Board noted that the cause of death listed on Mr.
Zambrano’s death
certificate was blunt force injuries and stated: “There is no evidence
supporting a finding that any
disease or injury related to the [v]eteran’s service contributed in any
way to his death from blunt
force injuries.” R. at 6, 7. In light of the Court’s decision to remand
Mrs. Zambrano’s claim for
accrued benefits so that the Board may further consider whether Mr.
Zambrano’s multiple myeloma
and chronic renal failure were service connected, the Court will also
vacate the Board’s decision on
DIC and remand the issue for further adjudication. See Smith, Gurley, and
Henderson, all supra.
In addition, on remand the Board will have the opportunity to address
fully and further
develop, if necessary, the claim of service connection for cause of death.
For example, the Board
decision as to DIC did not mention Mrs. Zambrano’s allegation in a June 18,
2008, submission to
the RO that medical examiners who investigated Mr. Zambrano’s death stated
that but for his
emaciation caused by multiple myeloma “he would likely have survived the
accident.” R. at 69
(alleging that, at the time of the automobile accident, the veteran was
6’3″ tall and weighed 119
pounds because of multiple myeloma). Nor did the Board discuss Dr. Hamm’s
opinion or Mrs.
Zambrano’s arguments regarding its inadequacy. See R. at 83-84;
Appellant’s Br. at 14-16. The
Board must address this evidence in the first instance. See Washington v.
Nicholson, 19 Vet.App.
362, 367-68 (2005).
10
On remand, Mr. Curry is free to submit additional argument on the
remanded matters and
additional evidence on the DIC claim, and the Board is required to
consider any such relevant
argument and evidence. 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). The Court has held that “[a] remand is meant to entail a critical
examination of the
justification forthedecision.”Fletcherv.Derwinski,1Vet.App.394,397(1991).
Inaccordancewith
38 U.S.C. § 7112 , the Board must proceed expeditiously with this case on
remand.
III. CONCLUSION
Upon consideration of the foregoing, the April 13, 2011, Board decision is
SET ASIDE and
the matter is REMANDED for readjudication consistent with this decision.
DATED: November 8, 2012
Copies to:
Richard D. Little
VA General Counsel (027)
11
Veteranclaims's Blog 