Veteranclaims’s Blog

November 26, 2012

Single Judge Application, “questionable wasting” is Speculative Language; 38 C.F.R. § 4.56 (2012); VA Clinician’s Guide

Excerpt from decision below:

“The rating schedule states that “[a]ccurate measurement . . . should be insisted on” and that “[m]uscle atrophy must also be accurately measured and reported.” 38 C.F.R. § 4.46 (2012). As noted earlier, muscle wasting is the same as muscle atrophy, and the VA rating schedule lists “atrophy” as one of the objective findings used to rate the severity of a muscle injury and also notes that “the cardinal signs and symptoms of muscle disability [include] loss of power [and] weakness.” 38 C.F.R. § 4.56 (2012).
Furthermore, the VA Clinician’s Guide is designed to provide guidance to clinicians performing compensation and pension (C&P) examinations, and because the July 2010 examination was a C&P examination, the guide’s provisions have general applicability here. Camacho v. Nicholson, 21 Vet.App. 360, 364 (2007) (“The VA Clinician’s Guide . . . is a guide to VA doctors providing generalized direction for the proper conduct of disability examinations.”).
The VA Clinician’s Guide provides clinicians with guidance for testing muscle weakness. VA CLINICIAN’S GUIDE, s. 0.1, 11.7 (important elements of a disability examination for muscle disease or injury), 11.8 (standard muscle strength grading system).
In this case, the Board relied on the opinion of the July 2010 VA examiner, who concluded that Mr. Dubose did not have a “current disorder of the chest wall which is related to
9

his time in the military.” R. at 280. However, the examiner reported that Mr. Dubose suffered from “questionable slight muscle wasting inferior to the [service-connected] scar.” R. at 279.
After making that observation, she did not provide a conclusion as to whether the veteran has muscle wasting, and, if so, whether it is as likely as not that the wasting or atrophy is associated with Mr. Dubose’s service-connected scar. R. at 279-80. The examiner did not indicate that she had compared the muscles on the left side of Mr. Dubose’s chest, where she noted “questionable wasting” below his service-connected scar, with the same muscles on the right side.
VA CLINICIAN’S GUIDE, s. 11.7(b)(2) (“When there is muscle atrophy, record the circumference of the atrophic muscle and the comparison muscle on the opposite side.”). The Board, in assigning probative weight to this opinion and using it to support the denial of service connection, failed to explain its reliance on a medical examination report that included speculative language, as opposed to conclusive information, concerning the existence and etiology of any muscle wasting.
In addition, the July 2010 VA examination report that the Board relied on to deny service connection found that there were no tests to assess whether weakness of the chest wall exists. R. at 279. However, given the existence of the above-cited VA rating schedule provisions and guidance to clinicians who perform C&P examinations, the Board erred in failing to explain why it relied on a medical examination that did not include appropriate testing and assessment of muscles of the chest wall. R. at 279; see 38 C.F.R. §§ 4.40, 4.46, 4.56 ( 2012); VA CLINICIAN’S GUIDE secs. 0.1, 11.7, 11.8. In short, the examiner did not explain her conclusion and the Board, likewise, in relying on the examination report to deny service connection, did not provide reasons or bases, given the existence of VA regulations and guidance on this topic, for accepting the doctor’s unexplained conclusion that such testing is not available.
Given the deficiencies in the examination report, the Board decision should have addressed the issues discussed above. However, the Board relied on the July 2010 medical opinion without discussing or resolving these inconsistencies and inadequacies. R. at 10.
10

Therefore, the Board failed to provide an adequate statement of the reasons or bases for its findings and conclusions, and this frustrates judicial review. See Allday and Gilbert, both supra.”
—————————————————-

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 11-2851
DAVID F. DUBOSE, 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: The veteran, David F. Dubose, who is self-represented, appeals a July 25, 2011, Board of Veterans’ Appeals (Board) decision that denied his claim for entitlement
to service connection for a disability manifested by pain and weakness of the left side of the chest, to include as secondary to service-connected residuals from a left ribcage stab wound.
Record (R.) at 3-11. The Board also determined that the record reasonably raised a claim for an increase in the disability evaluation for Mr. Dubose’s service-connected residual scar from a left
ribcage stab wound. R. at 4. The Board referred that claim to the agency of original jurisdiction for appropriate action and, therefore, that claim is not before the Court because it was not the subject of a final Board decision. See Breeden v. Principi, 17 Vet.App. 478 (2004). Single- judgedisposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). This appeal is timely and the Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a).
For the reasons that follow, the Court will vacate the July 25, 2011,
Board decision and remand the matter for further proceedings consistent with this decision.

I. FACTS
Mr. Dubose served on active duty in the U.S. Army from November 1975 to
November
1978. R. at 444. In July 1976, he sustained and was treated for a
superficial stab wound to the
left side of the chest. R. 371, 378. Swelling and tenderness to palpation
were noted at that time,
associated with a localized bacterial infection. R. at 388-89. In October
1978, Mr. Dubose’s
separation examination indicated that his lungs, chest, and heart were
each normal. R. at 369-70.
In December 2001, Mr. Dubose filed a claim for VA disability benefits
based on service
connection for residuals of the left ribcage stab wound that he received
while on active duty. R.
at 240-47.
In February 2002, he told his VA physician that he had been suffering from
intermittent pain in his left side for a year. R. at 155-56. Upon
examination, the physician noted
a “tender area localized [on the] left flank where [the] stab wound scar [
is located].” R. at 158.
The physician observed that the tissue there was slightly different from
that of the right side,
“most likely due to scar tissue formation.” R. at 158.
In April 2002, the VA regional office (RO) sent a VCAA notice letter to Mr.
Dubose. R.
at 233-36. In November 2002, the RO issued a deferred rating decision and
determined that a
line of duty determination was necessary. R. at 221. In December 2002, the
RO rendered an
administrative decision that Mr. Dubose’s stab wound was incurred in the
line of duty and was
not the result of misconduct. R. at 218-19. Subsequently, in December 2002,
a VA examiner
reported:
[The veteran] states that he was stabbed in 1976 in Germany. He was
hospitalized for approximately two weeks. He had problems with superficial
infections and the scar was aspirated weekly for approximately six to
eight weeks.
He does not complain of any difficulties with breathing and denies
tenderness to
palpation of his left axíllary scar.
R. 214-15. The assessment was traumatic scar with evidence of subcuticular
neuroma1
from a
stab Previous DocumentinjuryNext Hit. R. at 214.
A neuroma is “a tumor growing from a nerve or made up largely of nerve
cells and nerve fibers.”
DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1266 (32d ed. 2011) [hereinafter ”
DORLAND’S”].
2
1

In January 2003, the RO granted service connection for the scar as ”
residuals of a left
ribcage stab wound” and assigned a disability evaluation of 10%, effective
December 31, 2001.
R. at 208-13.
Almost three years later, in December 2005, Mr. Dubose requested an
increased
evaluation for his service-connected scar and stated he was experiencing ”
shortness of breath,
weakness on left side, [and] pain.” R. at 108.
On January 13, 2006, Mr. Dubose underwent a VA scar examination. R. at 95-
96. The
examiner noted that the service-connected scar was .15 centimeters at its
maximum width and 1
centimeter at its maximum length, with no tenderness on palpitation; no
inflammation; no
elevation; no edema; no skin ulceration or breakdown over the scar; no
keloid formation; no
adherence to underlying tissue; and no depression of the scar. R. at 96.
The examiner further
noted that the scar was of normal texture with no inflexibility; was
normal in color; had no
underlying tissue loss; caused no disfigurement of the head, face, or neck;
and did not limit
motion or cause loss of function. R. at 96.
On January 27, 2006, the RO issued a rating decision proposing to decrease
the disability
evaluation for Mr. Dubose’s service-connected scar, “because the evidence
fails to show a
superficial scar that is painful on examination.”
R. at 89, 96 (scar does not demonstrate
tenderness on palpitation). The RO also denied service connection for
shortness of breath and
for weakness and pain of the left side, both based on a lack of treatment
and diagnosis. R. at 88.
The following month, Mr. Dubose submitted a document that he labeled ”
Notice of
Disagreement” (NOD), expressing his objection to all three aspects of the
January 2006 rating
decision and noting: “I am currently tak[ing] medication for pain due to
the service[-]connected
left rib cage stab wound.” R. at 85. The RO responded with a letter that
explained to Mr.
Dubose that it could not accept his submission as an NOD to the proposed
rating reduction
because it was only a proposed action. R. at 82. Also in February 2006, a
VA progress note
indicated that Mr. Dubose complained of pain in his lower chest, that he
related this pain to the
stab wound he received during his military service. R. at 75-77. The
physician reported that Mr.
Dubose was “taking lortab for this from somewhere[, but] otherwise, no
concerns.” R. at 75-77.
In March 2006, Mr. Dubose requested that a decision review officer (DRO)
review his
claims, de novo. R. at 74. After this review, the DRO issued a Statement
of the Case that
continued to deny the claims for service connection for shortness of
breath and for weakness and

pain of the left side. R. at 54-72. Mr. Dubose promptly submitted a VA
Form 9, stating that he
was appealing (1) the proposed reduction for residuals of a left ribcage
stab wound, (2) denial of
service connection for shortness of breath, and (3) denial of service
connection for pain and
weakness of the left side, the latter two claims to include as secondary
to service-connected
residual scar from left ribcage stab wound. R. at 51-52.
Two months later, in a VA rating decision dated May 5, 2006, the RO
reduced Mr.
Dubose’s disability evaluation for his service-connected scar from 10% to
0%. R. at 43. The RO
explained that the decision was based on the January 2006 medical
examination, which found
that “[t]he scar was not tender to palpation” and on the fact that,
despite Mr. Dubose’s statement
that he took pain medication for the scar, his “treatment reports revealed
no treatment for your
scar.” R. at 43. The May 10, 2006, letter that accompanies the rating
decision informed Mr.
Dubose what to do if he disagreed with the decision. R. at 40. The record
of proceedings does
not reflect that Mr. Dubose submitted an NOD or any other document
objecting to the actual
reduction, nor did he appeal this decision.
Also in May 2006, Mr. Dubose’s claims for service connection for shortness
of breath
and for weakness and pain of the left side were certified to the Board. R.
at 35-38.
Four years later, in April 2010, the Board denied service-connected
disability benefits for
shortness of breath on the basis that no respiratory disorder was shown in
service or currently.
R. at 21-32. The Board also remanded Mr. Dubose’s claim for disability
benefits for pain and
weakness on the left side so that VA could obtain a medical opinion on the
issue of whether Mr.
Dubose suffered from a current disability manifested by these complaints
and, if so, whether
there was a relationship to his military service. R. at 21-32.
In July 2010, a VA examiner reviewed Mr. Dubose’s claims folder and noted: ”
no
treatment noted or diagnosis of weakness or pain related to the stab wound
noted in the service
medical record,” and “[n]o respiratory issues,” and concluded by
determining that the “separation
examination was basically normal.” R. at 279. The examiner recorded Mr.
Dubose’s reported
history and symptoms:
4

[The veteran] was stabbed with a type of slim jim in the left side of his
chest. His
lungs were not punctured. He did have consequences of cellulitis2
and potential
abscess formation afterwards. There was no respiratory issue at the time.
He
denied problems prior to military service. He has pain occasionally in the
left
inferior lower aspect of his chest. There is no swelling, locking, or
instability.
He did not have surgery, but from [w]hat he described he did have I&Ds
performed. The laceration was sutured, but he did require hospitalization
for his
cellulitis and/or abscesses.
R. at 279. The examiner then performed a physical examination and noted:
Examination of approximately T10 on the left in the mid-axillary area
reveals a
scar which is 0.8 x 0.1 cm. There is questionable slight muscle wasting3
inferior
to the scar noted. The scar itself displays hyperalgesia [increased
sensitivity to
pain],4
but there is no erythema [redness],5
induration [hardness],6
or keloid
formation [elevation].7
It does appear neurovascularly intact. There [are] no
respiratory difficulties associated with [the] scar. There is no use of
accessory
respiratory muscles. Lungs are clear in all fields. The assessment of
weakness of
the anterior or maxillary chest wall is difficult to determine. There are
no specific
tests which can test for this, however, it did not appear ther[e] was
weakness
noted. There was no anatomic deformity noted from this superficial stab
wound
to the left mid-axillary area.
Id.
The VA examiner then opined that “[i]t is less likely than not that the [v]
eteran has a
current disorder of the chest wall which is related to his time in the
military [because] there is no
clear or chronic disability from his superficial stab wound which occurred
35 years ago and at
the time was associated with cellulitis and/or abscess formation.” R. at
280.
On July 25, 2011, the Board issued the decision on appeal. R. at 2-14.
Initially, the
Board noted that Mr. Dubose’s recent VA examination “suggest[ed] that the
. . . stab wound scar
was tender to palpation.” R. at 4. The Board concluded that, because Mr.
Dubose’s scar was
2
3
Cellulitis is usually caused by infection of a wound by bacteria.
DORLAND’S at 325 (32d ed. 2011).
DORLAND’S at 978.
4
DORLAND’S at 886.
5
DORLAND’S at 643.
6
DORLAND’S at 933.
7
DORLAND’S at 978.
5

currently evaluated as noncompensable, a claim for an increased
evaluation of the veteran’s
service-connected scar disability had been raised by the record but not
adjudicated by the agency
of original jurisdiction (AOJ). R. at 4. Therefore, the Board referred the
claim for an increased
evaluation for the veteran’s service-connected noncompensable scar to the
AOJ for “appropriate
action.” R. at 4.
The Board reviewed Mr. Dubose’s history and the treatment records for his
service-
connected scar. R. at 8. It discussed the July 2010 VA examination for
evaluation of any
current weakness and pain in the left chest and noted Mr. Dubose’s
statements at that
examination. R. at 9. The Board relied on the examiner’s diagnosis that
the “stab wound . . . was
resolved except for subjective tenderness to palpation on examination” and
on his conclusion
that “it is less likely than not that the Veteran had a current disorder
of the chest wall which is
related to his time in the military [because] there is no clear or chronic
disability from his
superficial stab wound which occurred 35 years ago and at the time was
associated with cellulitis
and/or abscess formation.” R. at 10. It concluded: “After reviewing the
evidence of record, the
Board finds that other than the Veteran’s already service-connected scar,
the record fails to
establish that a currently diagnosed condition manifested by pain and
weakness of the left side of
the chest exists.” R. at 10. The Board discussed its duty to assist a
veteran in the development
of a claim, noted that VA had obtained relevant records and provided Mr.
Dubose with VA
examinations, and concluded that “the VCAA provisions have been considered
and complied
with.” R. at 6. Accordingly, the Board denied that claim. R. at 12. This
appeal followed.
II. ANALYSIS
A. Reduction of Disability Evaluation for Service-Connected Scar
Mr. Dubose states that he has only one issue before the Court, which he
identifies as
“evaluation of residual from left rib cage stab wound, which is currently
evaluated [at] 10
percent disabling, is dec[r]eased to 0 percent effective 08/01/2006.”
Appellant’s Brief (Br.) at 1.
He argues that the Court should “restore my 10 percent for my Service
Connected Residuals of
Left Rib Stab wound [sic].” Appellant’s Br. at 2. The Secretary argues
that the issue of a higher
evaluation for Mr. Dubose’s service-connected scar and the May 2006
reduction from 10% to a
noncompensable evaluation are not before the Court. Secretary’s Br. at 14.
The Court agrees with the Secretary.
The Court’s jurisdiction is over final Board
6

decisions. See 38 U.S.C. § 7252; Jarrell v. Nicholson, 20 Vet.App. 326,
330-32 (2006) (en
banc).
In this case, the Board decision on appeal concluded that the record
raised an
unadjudicated claim for an increased disability evaluation for Mr.
Dubose’s service-connected
scar, and referred that claim to the AOJ for “appropriate action.” R. at 4.
Because the claim has
been referred to the AOJ, it is not before the Court. See Jarrell, supra.
The Board decision also
denied Mr. Dubose’s claim for disability benefits based on service
connection for pain and
weakness of the left side of the chest, to include as secondary to service-
connected residuals
from a left ribcage stab wound. R. at 3-11. The denial of that claim is
the sole issue before the
Court.
Regarding the prior reduction of Mr. Dubose’s disability evaluation, VA
may not reduce
a veteran’s disability evaluation unless it follows certain detailed
procedures that are designed to
provide the veteran with advance notice of a proposed reduction and an
opportunity to contest
the reduction and to submit evidence “to show that compensation payments
should be continued
at their present level.” 38 C.F.R. § 3.105(e) (2012); see Majeed v.
Principi, 16 Vet.App. 421,
433-34 (2002); see also Hargrove v. Shinseki, 629 F.3d 1377, 1379-81 (Fed.
Cir. 2012)
(J. Newman, dissenting) (although majority held that the U.S. Court of
Appeals for Veterans
Claims correctly dismissed petition because veteran had not exhausted his
administrative
remedies, VA nonetheless erred by failing to notify veteran that NOD could
not be accepted
because it was responding to proposed, rather than actual, reduction
decision).
In this case, Mr. Dubose submitted several documents to VA between January
and March
2006, objecting to the January 2006 proposed reduction of his disability
evaluation. R. at 85
(February 15, 2006, objection to proposed reduction), 74 (March 9, 2006,
request for DRO
review of proposed reduction), 51-52 (March 23, 2006, VA Form 9 includes
proposed reduction
in list of items being appealed to Board). Unlike the veteran in Hargrove,
who was not informed
that VA could not accept an NOD to a proposed reduction, Mr. Dubose
objected to the proposed
reduction, prompting VA to send him a letter 10 days later, explaining
that VA could not accept
an NOD as to a proposed reduction and that an NOD “can only be filed on
final actions.” R. at
7

82; see R at 82-84. After he received notice of VA’s May 5, 2006,
reduction decision, Mr.
Dubose did not submit an NOD or any other document objecting to this
decision. Accordingly,
the reduction decision became final and the Court concludes that the Board
did not err or fail to
provide an adequate statement of reasons or bases when it did not address
the May 2006 decision
that reduced his disability evaluation to noncompensable. See Jarrell,
supra.
B. Service Connection for Pain and Weakness on the Left Side of the Chest
The Board decision on appeal denied Mr. Dubose’s claim for entitlement to
service
connection for a disability manifested by pain and weakness of the left
side of the chest, to
include as secondary to service-connected residuals of a left ribcage stab
wound. R. at 3-11.
The Secretary asserts that the Court should affirm the decision because
the Board correctly
determined that Mr. Dubose does not have a current disability manifested
by pain and weakness
on the left side of the chest and because the decision “has a plausible
basis in the record and is
not clearly erroneous.” Secretary’s Br. at 5.
As part of the duty to assist, the Secretary must, in appropriate cases,
provide a claimant
with a thorough and contemporaneous medical examination and opinion. 38 U.
S.C. § 5103A; see
Green v. Derwinski, 1 Vet.App. 121, 124 (1991). A medical report may be
inadequate when it is
speculative, such as when its conclusions include equivocal language such
as “could” or “might,”
without any other rationale or supporting data. See Hood v. Shinseki, 23
Vet.App. 295, 298-99
(2009); Polovick v. Shinseki, 23 Vet.App. 48, 54 (2009) (doctor’s
statement that veteran’s brain
tumor “may well be” connected to Agent Orange exposure was speculative);
Bloom v. West,
12 Vet.App. 185, 187 (1999) (use of term “could,” without other rationale
or supporting data, is
speculative); Goss v. Brown, 9 Vet.App. 109, 114 (1996) (use of the phrase ”
could not rule out”
was too speculative to establish medical nexus); Tirpak v. Derwinski, 2
Vet.App. 609, 611
(1992) (medical opinions are speculative and of little or no probative
value when physician
makes equivocal findings such as “the veteran’s death may or may not have
been averted”).
In addition, 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
8

on the record. 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517,
527 (1995). 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. Gilbert
v. Derwinski, 1 Vet.App.
49, 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 to
be 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).
The VA rating schedule provides diagnostic codes (DCs) that are used to
evaluate muscle
Previous HitinjuryNext Hit. See 38 C.F.R. § 4.73 (2012). These DCs include criteria for
evaluating muscles located
in the midaxillary region, which is the location of the veteran’s service-connected scar (R. at 279). See DCs 5301, 5302. The rating schedule states that “[a]ccurate measurement . . . should
be insisted on” and that “[m]uscle atrophy must also be accurately
measured and reported.” 38 C.F.R. § 4.46 (2012). As noted earlier, muscle wasting is the same as muscle atrophy, and the VA rating schedule lists “atrophy” as one of the objective findings used to rate the severity of a muscle injury and also notes that “the cardinal signs and symptoms of muscle disability [include] loss of power [and] weakness.” 38 C.F.R. § 4.56 (2012).
Furthermore, the VA Clinician’s Guide is designed to provide guidance to clinicians performing compensation and
pension (C&P) examinations, and because the July 2010 examination was a C&P examination, the guide’s provisions have general applicability here. Camacho v. Nicholson, 21 Vet.App. 360, 364 (2007) (“The VA Clinician’s Guide . . . is a guide to VA doctors providing generalized direction for the proper conduct of disability examinations.”).
The VA Clinician’s Guide provides clinicians with guidance for testing muscle weakness. VA CLINICIAN’S GUIDE, s. 0.1, 11.7 (important elements of a disability examination for muscle disease or injury), 11.8 (standard muscle strength grading system).
In this case, the Board relied on the opinion of the July 2010 VA examiner, who concluded that Mr. Dubose did not have a “current disorder of the chest wall which is related to
9

his time in the military.” R. at 280. However, the examiner reported that Mr. Dubose suffered from “questionable slight muscle wasting inferior to the [service-connected] scar.” R. at 279.
After making that observation, she did not provide a conclusion as to
whether the veteran has muscle wasting, and, if so, whether it is as likely as not that the wasting or atrophy is associated with Mr. Dubose’s service-connected scar. R. at 279-80. The examiner did not indicate that she had compared the muscles on the left side of Mr. Dubose’s chest, where she noted “questionable wasting” below his service-connected scar, with the same muscles on the right side.
VA CLINICIAN’S GUIDE, s. 11.7(b)(2) (“When there is muscle atrophy, record the circumference of the atrophic muscle and the comparison muscle on the opposite side.”). The Board, in assigning
probative weight to this opinion and using it to support the denial of
service connection, failed to explain its reliance on a medical examination report that included speculative language, as
opposed to conclusive information, concerning the existence and etiology of any muscle wasting.
In addition, the July 2010 VA examination report that the Board relied on to deny service connection found that there were no tests to assess whether weakness of the chest wall exists. R. at 279. However, given the existence of the above-cited VA rating schedule
provisions and guidance to clinicians who perform C&P examinations, the Board erred in failing to explain why it relied on a medical examination that did not include appropriate testing and assessment of muscles of the chest wall. R. at 279; see 38 C.F.R. §§ 4.40, 4.46, 4.56 ( 2012); VA CLINICIAN’S GUIDE secs. 0.1, 11.7, 11.8. In short, the examiner did not explain her conclusion and the Board, likewise, in relying on the examination report to deny service connection, did not provide reasons or bases, given the existence of VA regulations and guidance on this topic, for accepting the doctor’s unexplained conclusion that such testing is not available.
Given the deficiencies in the examination report, the Board decision
should have addressed the issues discussed above. However, the Board relied on the July 2010 medical opinion without discussing or resolving these inconsistencies and inadequacies. R. at 10.
10

Therefore, the Board failed to provide an adequate statement of the
reasons or bases for its findings and conclusions, and this frustrates judicial review. See Allday
and Gilbert, both supra.
Accordingly, the Court will remand the matter so that VA may provide Mr.
Dubose with
an adequate medical examination or explain why it is not necessary to do
so, and provide an
adequate analysis of the July 2010 examination report. On remand, Mr.
Dubose is free to submit
additional evidence and argument, including the arguments raised in his
briefs to this Court, in
accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per
curiam order), and
the Board must consider any such evidence or argument submitted.
See Kay v. Principi,
16 Vet.App. 529, 534 (2002). The Board shall proceed expeditiously, in
accordance with
38 U.S.C. §§ 5109B, 7112 (requiring Secretary to provide for ”
expeditious treatment” of claims
remanded by Board or Court).

III. CONCLUSION
After consideration of the briefs and a review of the record, the Board’s
July 25, 2011,
decision is VACATED and the matter is REMANDED to the Board for further
proceedings
consistent with this decision.
DATED: October 31, 2012
Copies to:
David F. Dubose
VA General Counsel (027)
11

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