Veteranclaims’s Blog

April 2, 2013

Single Judge Application, 38 C.F.R. § 17.32; Board is not Permitted to Presume the Content of a VA Doctor’s Statements

Excerpt from decision below:
The Court discerns several errors in the Board’s analysis of whether Mr. Johnson gave informed consent prior to undergoing radiation therapy. First, the Board’s informed consent determination was based on the July 21, 1998, VA radiation consultation report, a July 27, 1998, nursing note, and the March 2011 IME opinion, documents that, on their face, do not satisfy the requirements of § 17.32(c). R. at 14-15. Those documents reflect only that VA doctors explained the “procedure and [treatment]” to Mr. Johnson (July 27, 1998, nursing note) and discussed the “nature of the treatment,” “potential benefits,” and “complications” with him (July 21, 1998, consultation report); there is no evidence of a discussion of the expected benefits, reasonably foreseeable associated risks or side effects, reasonable and available alternatives, and anticipated 5 results if nothing is done, as required by § 17.32(c). R. at 64-65, 435, 566. Although the Court recognizes that only substantial compliance with the terms of § 17.32 is required and that minor, immaterial deviations do not obviate a finding of informed consent, see 38 § 3.361(d)(1)(ii), the Board did not address whether VA’s apparent failure to provide Mr. Johnson with the
aforementioned information constituted such a deviation in this case.

============================

“Therefore, the Board is not permitted to presume the content of a VA doctor’s statements, even when there is evidence of record that documents that the doctor had a general discussion with the veteran about some of the information required by § 17.32. This is particularly true where, as here, a veteran disputes the information that he or she was actually provided and there is no legal basis for discounting the veteran’s competence and credibility. Accordingly, the Court concludes that the Board erred to the extent that it found Mr. Johnson’s statements not credible because they were
9
inconsistent with the information that the Board presumed the VA doctors had disclosed to him. See McNair, supra.”
===========================
Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 12-0251
WILLIAM J. JOHNSON, 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: Veteran William J. Johnson appeals, through counsel, an October 4,
2011, Board of Veterans’ Appeals (Board) decision denying entitlement to compensation under
38 U.S.C. § 1151 for residuals of post-prostatectomy radiation treatments. Record (R.) at 3-17. 1
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 in this case. See Frankel
v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons that follow, the Court will set aside the
October 2011 Board decision and remand the matter for readjudication consistent with this decision.
I. FACTS
Mr. Johnson served on active duty in the U.S. Army from March 1951 to December 1952,
including service overseas during the Korean Conflict. R. at 1076. He received numerous
decorations and awards for his service, including the Purple Heart, Korean Service Medal with two
Bronze Campaign Stars, Combat Infantry Badge, and the United Nations Service Medal. Id.
A “prostatectomy” is the “surgical removal of the prostate or of a part of it.” DORLAND’S ILLUSTRATED 1
MEDICAL DICTIONARY 1529 (32d ed. 2012) [hereinafter DORLAND’S].
Mr. Johnson was diagnosed with prostate cancer in 1988 and underwent various surgeries
performed at VA medical centers (VAMCs) to treat that disease, including a radical retropubic
prostatectomy and bilateral pelvic lymph node dissection in May 1998 (R. at 562-63) and a
suprapubic prostatectomy and pelvic lymphadenectomy in July 1998 (R. at 568).
Shortly after the second surgery, on July 21, 1998, Mr. Johnson consulted with a VA
oncologist who recommended that he undergo several weeks of adjuvant radiation therapy for his
prostate cancer. R. at 564-66. The consultation report states: “We have discussed the nature of the 2
treatment as well as the potential benefits and complications with the patient, and he has agreed to
treatment.” R. at 566.
On July 26, 1998, Mr. Johnson was admitted to the VAMC for an examination prior to
receiving the prescribed radiation therapy. R. at 568-71. He was discharged to the
radiation/oncology department on July 27, 1998, and a nursing note from that day states: “M.D. [at]
bedside and explained procedure and [treatment]. [Patient] understood explanation.” R. at 435.
Mr. Johnson began radiation therapy on July 28, 1998, which continued until September 11,
1998. R. at 572-73. A September 1998 Radiation Completion Letter prepared by the VA physician
overseeing Mr. Johnson’s treatment indicates that the veteran “tolerated the treatment fairly well,”
but experienced “increased urinary frequency and urinary incontinence which he already presented
with at the time of the consultation.” R. at 572. He was instructed to followup with the
radiation/oncology department in six weeks. R. at 573.
In March 2000, Mr. Johnson was hospitalized with genitourinary problems. R. at 574-75.
He reported that “he was told that he had radiation injury to his bladder/urethra after surgery” that
was causing his urinary incontinence. R. at 574. He underwent a cystoscopy and an inspection of
his bladder revealed “changes consistent with radiation cystitis over multiple areas of the bladder.”3
R. at 576.
“Radiation therapy,” also known as “radiotherapy,” is “the treatment of disease by ionizing radiation.” 2
DORLAND’S at 1573. “Adjuvant radiotherapy” is “radiotherapy used in addition to surgical resection in the treatment of
cancer.” Id.
“Cystoscopy” is “direct visual examination of the urinary tract with a cystoscope.” DORLAND’S at 464. 3
“Radiation cystitis” is “acute or chronic inflammatory tissue changes in the urinary bladder caused by ionizing radiation.”
Id. at 463.
2

In July 2000, Mr. Johnson filed an informal claim for compensation under section 1151,
asserting that “his bladder was burned during radiation treatments received at Danville[, Illinois,]
VA Medical Center.” R. at 628. He refiled that claim in January 2001. R. at 625-34. He
subsequently submitted various documents in support of his claim (R. at 542-619), including a
statement that a “Dr. Zhu” had “[t]old [him] that the nerves in [his] bladder were burnt and wouldn’t
expand or contract” (R. at 544).
In October 2001, the risk manager at the Danville VAMC requested a peer review of Mr.
Johnson’s medical records from the facility’s chief of surgery. R. at 1228. The chief of surgery
responded that “post radiation cystitis is unavoidable and can be very disabling, but is not below the
standard of care.” Id. (emphasis in original).
The next month, Mr. Johnson underwent a VA genitourinary examination. R. at 375-77. He
reported that “he was not fully informed of the side effects of prostate cancer,” “developed impotence
and incontinence subsequent to the surgery[,] and . . . attributes some of it to radiation treatment.”
R. at 375. Mr. Johnson also told the examiner that he “believes that he was over-radiated and
‘burned his bladder’ and that is why he currently has significant incontinence.” Id. He further alleged
that “he was not advised of this by the surgeon and that the surgeon advised him that he would have
no problems and encouraged [him] choose this form of surgery and treatment for prostate cancer.”
Id. After recording Mr. Johnson’s medical history, the examiner stated that he could not determine
at that time whether the veteran’s urinary incontinence was caused by the radiation treatment and
whether VA exercised the appropriate standard of care in providing that treatment because he had
not been provided with the veteran’s medical records. R. at 377.
In July 2002, a VA regional officer (RO) issued a rating decision denying Mr. Johnson’s
section 1151 claim. R. at 1221-27. He filed a timely Notice of Disagreement with that decision and
elected decision review officer review. R. at 353-54, 359-62. In December 2002, a decision review
officer issued a Statement of the Case continuing to deny his claim (R. at 339-50), and Mr. Johnson
subsequently perfected his appeal to the Board (R. at 336-38).
In May 2004, Mr. Johnson and his wife participated in a Board hearing. R. at 289-304. They
both testified that doctors at the John Cochran VAMC in St. Louis stated that the veteran’s
incontinence was the result of radiation burns on his bladder. R. at 292, 296, 297. Mrs. Johnson
3
identified the doctors as Dr. Michael Yu and “Dr. Vhu” of urology. R. at 297. At the conclusion of
the hearing, Mr. Johnson submitted various medical records for Board consideration, including an
undated document entitled, “Information for Patients Receiving Radiation Therapy to the Pelvis.”
R. at 308-09. The document states that such radiation therapy “can cause some discomfort to the
bladder,” including “increased frequency, burning on urination, or a feeling of pressure and urgency.”
R. at 308. The document states that symptoms of radiation therapy “may continue throughout the
treatment period, and gradually disappear during or after you have completed treatment.” Id.
In December 2004, the Board remanded Mr. Johnson’s 1151 claim for further development,
including to obtain medical records from “Dr. Vhu or Dr. Zhu.” R. at 287. Those medical records
were obtained and associated with the veteran’s claims file, but the records do not contain an opinion
from Dr. Zhu as to whether Mr. Johnson’s bladder was damaged by the radiation therapy. R. at 219-
22. In November 2007, the Board denied his claim. R. at 172-87. Mr. Johnson appealed that
decision to this Court and, in March 2009, the Court granted the parties’ joint motion for remand
(JMR) (R. at 91-97). The JMR provided that the October 2001 statement from the chief of surgery
at the Danville VAMC and the November 2001 VA genitourinary examination were inadequate for
rating purposes and the Board erred in relying on them. R. at 94-95.
On remand, the Board requested that an independent medical expert (IME) review Mr.
Johnson’s claims file and address his contentions. R. at 67-69. That opinion was provided in March
2011 by Dr. Stephen E. Tosi, associate professor of urology at the University of Massachusetts
Medical School and Chief Medical Officer of the University of Massachusetts Memorial Health
Care. R. at 63-65. Dr. Tosi stated:
[I]t is my opinion that the standard of care for the treatment of [Mr. Johnson’s]
moderate to high grade prostate cancer was met. Unfortunately, urinary incontinence
is a well known complication of radical prostatectomy. It is also well known that if
radiation therapy must be delivered in addition, it can create radiation cystitis which
can also aggravate incontinence. Neither urinary incontinence nor the development
of radiation cystitis is an unexpected complication. The decision to perform the
radical prostatectomy was appropriate. Also, based on the pathology report of a stage
T3 high grade cancer, the decision to recommend adjuvant radiation therapy was also
appropriate. The dose of radiation which was administered and the length of time
over which it was administered also met the standard of care and were appropriate.
It is extremely unfortunate that this Veteran is incontinent. However, in my opinion,
the urinary incontinence and radiation cystitis is not the result of carelessness,
4

negligence, lack of proper skill, or error in judgment on the part of the Veteran’s
Administration. These are known complications and they are reasonably foreseeable.
According to the radiation therapy notes, the Veteran understood this and consented
to the radiation. In fact, the Veteran is probably alive and well 15 years after his
original surgery because of the treatments that he received.
R. at 64-65.
In October 2011, the Board issued the decision currently on appeal, which denied Mr.
Johnson entitlement to compensation under section 1151 for residuals of post-prostatectomy
radiation treatments. R. at 3-17. The Board first found that the March 2011 IME opinion was
adequate because it was based on a review of the claims file, contained an opinion “consistent with
the remainder of the evidence of record,” and was supported by a sufficient rationale. R. at 9. After
determining that Mr. Johnson’s aggravated urinary incontinence constituted an “additional disability”
that “had been related to VA medical treatment” (R. at 12), the Board addressed the veteran’s
contention that he was not informed that radiation therapy could cause urinary incontinence and did
not give informed consent for that treatment. The Board found that the undated document entitled,
“Information for Patients Receiving Radiation Therapy to the Pelvis,” was not a valid informed
consent form. R. at 14. The Board next found that, despite the lack of a signed informed consent
form in the record, “the informed consent process was appropriately documented in the health
record,” citing the July 21, 1998, VA radiation consultation report; one of the July 27, 1998, nursing
notes; and the March 2011 IME opinion. R. at 14-15.
The Board also determined that Mr. Johnson’s statements that “he was not informed of the reasonable consequences of his treatment” were not credible. R. at 15. Specifically, the Board stated:
[T]he claims folder contains multiple documents which indicate that the Veteran was informed of the benefits and potential complications resulting from his radiation treatment and he agreed to proceed. While the Veteran is correct that a signed consent form is not of record . . . , even if the Veteran did not sign such a form, such an error would represent only a minor deviation from the requirements of 38 C.F.R. § 17.32 (which is permitted under 38 C.F.R. § 3.361) due to the number of records which indicate that the Veteran had provided informed consent. R. at 15-16. This appeal followed.
5

II. ANALYSIS
Mr. Johnson first argues that the Board erred in determining that he gave informed consent
before undergoing radiation therapy because he was not informed that “permanent and disabling
incontinence” was a potential risk of that treatment. Appellant’s Brief (Br.) at 11. The Court agrees.
Pertinent to this appeal, a veteran who suffered a disability resulting from medical or surgical
treatment provided by a VA employee or in a VA facility is entitled to compensation for the
additional disability “in the same manner as if such additional disability . . . were service-connected”
if the additional disability was not the result of wilful misconduct and was proximately caused by
“carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the
part of [VA] in furnishing” that treatment or “an event not reasonably foreseeable.” 38 U.S.C.
§ 1151(a)(1)(A), (B); Viegas v. Shinseki, 705 F.3d 1374, 1377-78 (Fed. Cir. 2013). Carelessness,
negligence, lack of proper skill, error in judgment, or similar instance of fault in VA medical or
surgical treatment is established when a veteran’s medical or surgical treatment caused his additional
disability and VA either “failed to exercise the degree of care that would be expected of a reasonable
health care provider” or furnished the medical or surgical treatment without the veteran’s informed
consent. 38 C.F.R. § 3.361(d)(1)(i), (ii) (2012).
“To determine whether there was informed consent, VA will consider whether the health care
providers substantially complied with the requirements of [38 C.F.R.] § 17.32.” 38 C.F.R.
§ 3.361(d)(1)(ii). Section 17.32 defines “informed consent” as “the freely given consent that follows
a careful explanation by the practitioner to the patient or the patient’s surrogate of the proposed
diagnostic or therapeutic procedure or course of treatment.” 38 C.F.R. § 17.32(c) (2012). It also
provides:
The practitioner, who has primary responsibility for the patient or who will perform
the particular procedure or provide the treatment, must explain in language
understandable to the patient or surrogate the nature of a proposed procedure or
treatment; the expected benefits; reasonably foreseeable associated risks,
complications or side effects; reasonable and available alternatives; and anticipated
results if nothing is done.[ ] The patient or surrogate must be given the opportunity 4
The Court notes that treatment “complications” are different from treatment “risks” and “side effects.” 4
Compare STEDMAN’S MEDICAL DICTIONARY 398 (28th ed. 2006) (defining “complication” as “a morbid process or event
that occurs during the course of a disease that is not an essential part of that disease, although it may result from it or from
6

to ask questions, to indicate comprehension of the information provided, and to grant
permission freely without coercion. The practitioner must advise the patient or
surrogate if the proposed treatment is novel or unorthodox.
Id. “Minor deviations from the requirements of § 17.32 . . . that are immaterial under the
circumstances of a case will not defeat a finding of informed consent.” 38 C.F.R. § 3.361(d)(1)(ii).
Although informed consent can be express (either orally or in writing) or implied, id., the
informed consent process must always be “appropriately documented in the health record,” 38 C.F.R.
§ 17.32(d)(1). In certain situations, appropriate documentation requires “signature consent”–i.e.,
“[t]he patient’s or surrogate’s signature on a VA-authorized consent form.” 38 C.F.R. § 17.32(a).
Those situations include “all diagnostic and therapeutic treatments or procedures” that, inter alia,
“[a]re considered to produce significant discomfort to the patient” or “[h]ave a significant risk of
complication or morbidity.” 38 C.F.R. § 17.32(d)(1)(iii), (iv).
The Board’s determination that a veteran gave informed consent for VA medical or surgical
treatment is a finding of fact that the Court reviews under the “clearly erroneous” standard set forth
in 38 U.S.C. § 7261(a)(4). See Look v. Derwinski, 2 Vet.App. 157, 161-62 (1992). “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)). As with any finding on a material issue of fact and law presented on the record, the Board must support its informed consent determination with an adequate statement of reasons
or bases that enables the claimant to understand the precise basis for that determination and facilitates review in this Court. See 38 U.S.C. § 7104(d)(1); Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990).
The Court discerns several errors in the Board’s analysis of whether Mr. Johnson gave informed consent prior to undergoing radiation therapy. First, the Board’s informed consent determination was based on the July 21, 1998, VA radiation consultation report, a July 27, 1998,

independent causes”), with DORLAND’S at 1649 (defining “risk” as “a danger or hazard, the probability of suffering harm or other unfavorable outcome”), and id. at 595 (defining “side effect” as “a consequence other than the one(s) for which an agent or measure is used, as the adverse effects produced by a drug, especially on a tissue or organ system other than
the one sought to be benefitted by its administration”).
7

nursing note, and the March 2011 IME opinion, documents that, on their face, do not satisfy the requirements of § 17.32(c). R. at 14-15. Those documents reflect only that VA doctors explained the “procedure and [treatment]” to Mr. Johnson (July 27, 1998, nursing note) and discussed the “nature of the treatment,” “potential benefits,” and “complications” with him (July 21, 1998, consultation report); there is no evidence of a discussion of the expected benefits, reasonably foreseeable associated risks or side effects, reasonable and available alternatives, and anticipated 5 results if nothing is done, as required by § 17.32(c). R. at 64-65, 435, 566. Although the Court recognizes that only substantial compliance with the terms of § 17.32 is required and that minor, immaterial deviations do not obviate a finding of informed consent, see 38 § 3.361(d)(1)(ii), the Board did not address whether VA’s apparent failure to provide Mr. Johnson with the
aforementioned information constituted such a deviation in this case.
As the Court explained in McNair v. Shinseki, 25 Vet.App. 98, 107 (2011), the impact of VA’s failure to provide such
information to a patient is “a factual [assessment] for the Board to make in the first instance.” The
Board’s failure to make that factual determination in this case therefore frustrates judicial review and
renders its statement of reasons or bases inadequate. See Gilbert, supra; see also Kahana v.
Shinseki, 24 Vet.App. 428, 442 (2011) (“Factfinding is a responsibility that is ultimately committed
to the Board.”).
Second, the Board erred in evaluating the credibility of Mr. Johnson’s lay statements that he
was not told about the risk of complete and permanent urinary incontinence prior to undergoing
radiation therapy. The Board acknowledged that Mr. Johnson was competent to attest that he had
not been advised of that particular risk, but found his statements not credible because “the claims
folder contains multiple documents which indicate that the Veteran was informed of the benefits and
potential complications resulting from his radiation treatment and he agreed to proceed.” R. at 15-
16. Essentially, the Board found that Mr. Johnson’s statements were not credible because they were
contradicted by other evidence of record. However, as the Court explained above, the documents
upon which the Board relied to make that finding do not contain a list of the potential risks that were
disclosed to Mr. Johnson. In the absence of such a list, it is unclear how the Board could determine
To the extent that the Board equated a discussion of “complications” with a discussion of “risks” and “side 5
effects,” it did not explain its basis for doing so. See supra note 4.
8
that Mr. Johnson’s statements that he was not informed of a particular risk were inconsistent with
the other evidence of record, unless the Board presumed that the VA doctors would have disclosed
that risk because it is so common and unavoidable that no competent doctor would fail to disclose
it.
However, the Court’s holding in McNair prohibits the Board from relying on such a
presumption:
As a matter of logic, [the] advice and information [provided by a doctor], which is
predicated on the unique characteristics of each patient and each medical procedure,
is not [] “the product of a consistent, reliable procedure,” which is the “root” of the
presumption of regularity in our caselaw. It is precisely the diversity of patients,
procedures, and circumstances that counsels against recognizing a presumption that
a doctor has fully informed a particular patient about a particular consequence of a
particular medical procedure simply because a generic consent form has been filled
out properly.
25 Vet.App. at 104 (quoting Posey v. Shinseki, 23 Vet.App. 406, 410 (2010)). The McNair analysis
applies here because the evidence that the Board relied on to find that Mr. Johnson gave informed
consent for the radiation therapy is even more general and vague than the evidence in dispute in
McNair. Compare McNair, 25 Vet.App. at 100 (veteran signed a generic informed consent form
stating that “she was advised as to the nature of the surgery, attendant risks involved, and expected
results,” but failing to list “the specific attendant risks that were discussed”), with R. at 435 (nursing note stating: “M.D. [at] bedside and explained procedure and [treatment]. [Patient] understood explanation.”), R. at 566 (radiation consultation report stating that the VA physician “discussed the nature of the treatment as well as the potential benefits and complications with the patient, and he has agreed to treatment”), and R. at 64-65 (IME opinion stating that, “[a]ccording to the radiation therapy notes, the Veteran understood [the complications] and consented to the radiation”).
Therefore, the Board is not permitted to presume the content of a VA doctor’s statements, even when there is evidence of record that documents that the doctor had a general discussion with the veteran about some of the information required by § 17.32. This is particularly true where, as here, a veteran disputes the information that he or she was actually provided and there is no legal basis for discounting the veteran’s competence and credibility. Accordingly, the Court concludes that the Board erred to the extent that it found Mr. Johnson’s statements not credible because they were
9
inconsistent with the information that the Board presumed the VA doctors had disclosed to him. See McNair, supra.

Finally, although the Board determined that VA’s failure to obtain a signed consent form
before Mr. Johnson underwent radiation therapy was a minor, immaterial deviation that did not
preclude a finding of informed consent (R. at 16), the Board failed to consider whether radiation
therapy was one of the therapeutic treatments that always requires signature consent. See 38 C.F.R.
§ 17.32(d)(1) (listing the “diagnostic and therapeutic treatments or procedures” for which “signature
consent is required”). Of the types of treatment listed in § 17.32(d)(1), two are potentially applicable
here: treatment that is “considered to produce significant discomfort to the patient” and treatment
that has “a significant risk of complication or morbidity.” 38 C.F.R. § 17.32(d)(1)(iii), (iv). The
Board’s failure to discuss this regulation was prejudicial to Mr. Johnson’s claim because, if the Board
determined that Mr. Johnson’s radiation therapy was the type of treatment that required signature
consent under § 17.32(d)(1), then VA’s failure to obtain his signature before proceeding with that
treatment could not be a minor and immaterial deviation from the informed consent requirements.
See 38 U.S.C. § 7261(b)(2) (requiring the Court to “take due account of the rule of prejudicial
error”). Thus, the Court concludes that the Board’s failure to consider § 17.32(d)(1),which was
potentially applicable to Mr. Johnson’s claim, rendered its statement of reasons or bases inadequate.
See Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991) (holding that the Board is required to
consider and discuss all “potentially applicable” provisions of law and regulation in order to provide
an adequate statement of reasons or bases for its decision).
Despite Mr. Johnson’s argument to the contrary, the foregoing reasons-or-bases errors
necessitate remand, not reversal. See Appellant’s Br. at 6, 11-12, 14; Tucker v. West, 11 Vet.App.
369, 374 (1998) (“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, a
remand is the appropriate remedy.”). Reversal is not warranted here because the Board failed to
make the necessary factual findings outlined above. See Deloach v. Shinseki, 704 F.3d 1370, 1380
(Fed. Cir. 2013) (“[W]here the Board has performed the necessary fact-finding and explicitly
weighed the evidence, the Court of Appeals for Veterans Claims should reverse when, on the entire
evidence, it is left with the definite and firm conviction that a mistake has been committed.”).
10
On remand, the Board is directed to make those findings and, if the Board finds Mr. Johnson
credible, to consider whether the VA doctors’ failure to advise him of the risk of complete and
permanent incontinence was a minor and immaterial deviation that does not defeat a finding of
informed consent.
The Court notes that Mr. Johnson also argues that the March 2011 IME opinion was
inadequate, and the Board therefore erred in relying on it, because the opinion does not contain a list
of the radiation therapy notes that the examiner reviewed. See Appellant’s Br. at 12-13. However,
the Court need not address that argument at this time because it could not result in a remedy greater
than remand. See Mahl v. Principi, 15 Vet.App. 37, 38 (2001) (per curiam order) (“[I]f the proper
remedy is a remand, there is no need to analyze and discuss all the other claimed errors that would
result in a remedy no broader than a remand.”). Mr. Johnson remains free to raise that argument and
any additional argument on remand in accordance with Kutscherousky v. West, 12 Vet.App. 369,
372-73 (1999) (per curiam order). See Kay v. Principi, 16 Vet.App. 529, 534 (2002); see also Best
v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam order) (“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.”). If Mr. Johnson
challenges the adequacy of the IME opinion on remand, the Board is directed to consider whether
clarification of the basis of that opinion is necessary pursuant to Savage v. Shinseki, 24 Vet.App. 259
(2010). In any event, the Board is reminded that “[a] remand is meant to entail a critical examination
of the justification for [the Board’s] decision,” Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991),
and must be performed in an expeditious manner in accordance with 38 U.S.C. § 7112.

III. CONCLUSION
Upon consideration of the foregoing, the October 4, 2011, Board decision is SET ASIDE and the matter is REMANDED for readjudication consistent with this decision.
DATED: April 1, 2013
11
Copies to:
Virginia A. Girard-Brady, Esq.
VA General Counsel (027)
12

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