Veteranclaims’s Blog

July 15, 2013

Single Judge Application; 38 U.S.C. § 7104(d)(1); Caluza; Gilbert; Favorable Evidence of Current Disability; Post-Hoc

Excerpt from decision below:
The Board’s analysis is deficient in that it did not discuss whether the March 2003 VA clinic record or July and October 2009 VA podiatry notes containing assessments of OSD, all of which are
dated during the pendency of this claim, were sufficient to establish that he had that condition at those times. R. at 93, 99, 592. In fact, the Board did not mention the March 2003 VA clinic record at any point in its decision, and, although the Board acknowledged that the VA joints examiner “did not understand” the podiatrist’s assessments of OSD (R. at 15-16), the Board did not expressly adopt the examiner’s reasoning for questioning those assessments or otherwise offer any explanation as to why the podiatry notes did not constitute competent and probative evidence of a current disability of OSD. The foregoing medical records suggest that, contrary to the Board’s finding, Mr. Juzang may have had OSD while his claim for service connection for that condition was pending.
Therefore, those medical records were potentially favorable to his claim and the Board was required to consider and discuss them in its decision. See Caluza, supra. Its failure to do so thus constitutes error.

The Secretary’s attempts to recast the March 2003, July 2009, and October 2009 assessments of OSD as “questionable” diagnoses, “passing references,” or “mere[] recitation[s]” of past medical
history that the Board was not required to address are unavailing. Secretary’s Br. at 11-12. The Secretary has not pointed to anything in the Board decision that reflects that the Board even
considered those assessments of OSD, which constitute favorable evidence, much less evaluated and rejected them as insufficient to establish a current disability.
The Court reminds the Secretary that it is the Board’s obligation to evaluate the evidence of record and provide the reasons for accepting or rejecting any evidence that is potentially favorable to the claimant. See 38 U.S.C. § 7104(d)(1); Caluza and Gilbert, both supra; see also Washington v. Nicholson, 19 Vet.App. 362, 367-68 (2005)(stating that it is the Board’s duty to evaluate the credibility and probative value of the evidence).
The Board did not discharge that statutory duty in this case, and no amount of post-hoc rationalization by the Secretary on appeal can salvage this Board decision. See Doty v. United States, 53 F.3d 1244, 1251 (Fed. Cir. 1995) (“‘Courts may not accept appellate counsel’s post hoc rationalizations for agency action. It is well established that an agency’s action must be upheld, if at all, on the basis articulated by the agency itself.'” (quoting Motor Vehicle Mfrs. Ass’n of the U.S.,
Inc., v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50 (1983))); Evans v. Shinseki, 25 Vet.App. 7,
6

16 (2011) (“[I]t is the Board that is required to provide a complete statement of reasons or bases, and the Secretary cannot make up for its failure to do so.”).
===========================

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 12-0948
REGINALD L. JUZANG, 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 Reginald L. Juzang appeals, through counsel, a September 26, 2011, Board of Veterans’ Appeals (Board) decision denying entitlement to service connection for
Osgood-Schlatter’s Disease (OSD)1 and an acquired psychiatric disability, to include as secondary to OSD.2 Record (R.) at 3-25. 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 portions of the September 2011 Board decision on appeal and remand the appealed claims for readjudication consistent with this decision.

1 OSD is “a painful swelling of the bump on the upper part of the shinbone, just below the knee,” which is “thought to be caused by small injuries due to repeated overuse before the knee area is finished growing.” NAT’L INSTS. OF HEALTH, MEDLINE PLUS MEDICAL ENCYCLOPEDIA, http://www.nlm.nih.gov/medlineplus/ency/article/001258.htm.

2 The Board remanded Mr. Juzang’s claims for service connection for arthritis of the bilateral legs and knees, hypermobile flat feet, and varicose veins, all to include as secondary to OSD. Because a remand is not a final decision of the Board subject to judicial review, the Court does not have jurisdiction to consider those claims at this time. See Howard v. Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000); Breeden v. Principi, 17 Vet.App. 475, 478 (2004) (per curiam order); 38 C.F.R. § 20.1100(b) (2013).

I. FACTS
Mr. Juzang served on active duty in the U.S. Air Force from October 1966 to October 1967.R. at 1048-49. In April 1967, he sought treatment for bilateral knee pain (R. at 1115) and was
subsequently diagnosed with OSD that existed prior to service (R. at 1104-05). He was referred to a medical examination board (MEB), which diagnosed mildly to moderately disabling bilateral OSD
that was “[o]ld and healed with residual ossicle formation.” R. at 1096-97. The MEB concluded that Mr. Juzang’s OSD, which it found preexisted service and was not aggravated therein, disqualified
him from full military duty and recommended that he be separated from service. R. at 1091-92.
Upon separation in October 1967, Mr. Juzang filed a claim for service connection for a “knee disease[,] which [he] had since childhood and was aggravated during basic military training.” R. at
1083. A VA regional office (RO) denied the claim later that month, finding that his OSD preexisted service and was not aggravated therein. R. at 1075-76. The veteran did not appeal that decision, and it became final.
In March 2002, Mr. Juzang requested that the RO reopen his claim. R. at 1030-47. He underwent a VA joints examination in October 2002 and was diagnosed with “[o]ld [OSD] of both knees with possible degenerative joint disease.” R. at 991. In December 2002, the RO denied his claim on the merits without discussing reopening. R. at 983-85. Mr. Juzang filed a timely Notice
of Disagreement (NOD) with that decision (R. at 964-65) and subsequently submitted a statement explaining that he had been suffering from knee pain for the past 30 years (R. at 976-77). In March 2003, the veteran was seen at a VA clinic and was assessed with “[c]hronic pain secondary to leg varicosities and [OSD].” R. at 592.
In September 2003, the RO considered the evidence Mr. Juzang had submitted since December 2002 and readjudicated his claim as a request to reopen. R. at 870-73. However, the RO denied that request because it found that he had not submitted new and material evidence sufficient to warrant reopening. R. at 870-71.
Shortly thereafter, the veteran sent the RO a September 2003 letter from a private physician, Dr. N.A. Janovski, opining that he “would speculate that [OSD] originated and progressed while Mr.
Juzang was in the military service and should be considered military derived and/or connected.” R.
at 851. In February 2004, the RO issued a Statement of the Case purporting to deny Mr. Juzang’s
2
claim on the merits without discussing reopening. R. at 826-42. The veteran perfected his appeal
to the Board the following month. R. at 822-23.
In April 2006, Mr. Juzang filed a claim for service connection for major depressive disorder.
R. at 746-47. The RO denied that claim in February 2007, finding that the evidence of record did
not demonstrate that major depressive disorder was incurred in or caused by service. R. at 343-47.
Mr. Juzang filed a timely NOD with that decision (R. at 321-22) and subsequently perfected his
appeal to the Board (R. at 275-76). In March 2008, Mr. Juzang testified at a Board hearing
concerning his claims for service connection for OSD and major depressive disorder. R. at 224-50.
He stated that, during basic training, he had “tremendous” pain in his legs that increased with
physical activity and prolonged sitting. R. at 230-31. He also asserted that the pain from his OSD
and other physical ailments caused his depression. R. at 237, 243.
In June 2008, the Board determined that Mr. Juzang had submitted new and material
evidence sufficient to reopen his previously denied claim for service connection for OSD. R. at 213-
23. The Board remanded that claim, as well as his claim for service connection for major depressive
disorder, for further development, to include providing him with VA medical examinations. R. at
217-21.
Accordingly, Mr. Juzang was afforded a VA psychiatric examination in October 2008. R.
at 179-86. After reviewing the veteran’s claims file, eliciting a medical history, and performing a
mental status examination (R. at 179-84), the examiner diagnosed, inter alia, recurrent major
depressive disorder (R. at 184). The examiner opined: “Overall, it is likely to some degree his
depression is related to his pain as well as losses in his family and perhaps dependence on
substances. Chronic pain does tend to produce depressive feelings.” R. at 185.
The next month, Mr. Juzang underwent a VA joints examination. R. at 172-76. X-rays
revealed “[n]ormal knees” and the examiner diagnosed OSD, resolved. R. at 175-76. The examiner
noted that the veteran’s OSD preexisted service and opined that “no permanent increase in severity
occurred during service.” R. at 176. He explained that OSD “tends to be a self-limiting condition
of adolescents and young adults” and “appears to be resolved in this veteran.” Id.
Mr. Juzang’s claims were returned to the Board, and, in October 2009, the Board again
remanded them for further development. R. at 160-63. The Board determined that remand was
3
necessary to attempt to obtain outstanding medical records from the VA outpatient clinic in Mobile,
Alabama, and to procure addenda from the October and November 2008 VA examiners that took
those records into account. R. at 162-63.
The RO subsequently obtained the outstanding records identified by the veteran. R. at 92-99.
Those records include podiatry notes from July and October 2009 containing assessments of OSD.
R. at 93, 99. The newly obtained records were incorporated into the veteran’s claims file, which was
sent for additional consideration to the VA medical professionals who performed the October and
November 2008 examinations.
In May 2010, the VA joints examiner issued an addendum reiterating his earlier diagnosis
of OSD, resolved. R. at 176. The joints examiner reproduced the analysis from his November 2008
examination report, adding the following:
New records from 2009 by podiatrist Richard D. Odom are reviewed. Dr. Odom
performed an examination of the Veteran’s feet but[] the diagnosis of [OSD] was
added to the assessment[.] I do not know why this was done as [OSD] is a condition
which is also known as tibial tubercle apophyseal traction injury[,which] is a rupture
of the growth plate of the tibial tuberosity. I do not see in the examination where the
podiatrist evaluated the knees. In my opinion[,] the Veteran’s [OSD] is not caused
by or related to or any way worsened beyond natural progression by military service.
Id.
The VA psychiatric examiner issued addenda to her October 2008 examination report in May
2010 and March 2011. R. at 44-47, 69-70, 75. Neither addendum addresses whether the veteran’s
major depressive disorder is related to his OSD, but both conclude that his psychiatric condition is
not a result of service. R. at 47, 70, 75.
In September 2011, the Board issued the decision currently on appeal, which denied service
connection for OSD and an acquired psychiatric disability, to include as secondary to OSD. R. at
3-25. The Board explained that it expanded Mr. Juzang’s original claim for service connection for
major depressive disorder to include any acquired psychiatric disorder in order to comply with the
Court’s holding in Clemons v. Shinseki, 23 Vet.App. 1 (2009). R. at 5. Turning to the merits of the
claims, the Board found that Mr. Juzang was not entitled to service connection for OSD because “the
most probative medical evidence demonstrates that the Veteran does not have a current diagnosis
of [OSD], nor has he ever had the condition since filing his claim.” R. at 17. The Board also denied
4
service connection for an acquired psychiatric disorder because it concluded that the evidence
preponderated against a finding that an acquired psychiatric disorder was incurred in or related to
service. R. at 18-20. This appeal followed.
II. ANALYSIS
A. Service Connection for OSD
Mr. Juzang first argues that the Board provided an inadequate statement of reasons or bases
for its decision to deny his claim for service connection for OSD because it failed to account for
evidence of record reflecting current assessments of OSD. See Appellant’s Brief (Br.) at 6-9. This
argument is persuasive.
In rendering its decision, the Board is required to provide a written statement of reasons or
bases for its “findings and conclusions[] on all material issues of fact and law presented on the
record.” 38 U.S.C. § 7104(d)(1). The statement must be adequate to enable a claimant to understand
the precise basis for the Board’s decision and to facilitate review in this Court. Gilbert v. Derwinski,
1 Vet.App. 49, 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 Board denied Mr. Juzang’s claim for service connection for OSD because the evidence
of record did not reflect that he had OSD at any point after he filed his request to reopen in March
2002. R. at 17. The Board explained that “the most probative evidence of record” as to the existence
of OSD was the November 2008 VA joints examination and May 2010 addendum, which indicated
that his OSD had resolved. Id. The Board then acknowledged that Dr. Janovski’s September 2003
letter contained a diagnosis of OSD, but rejected that evidence as too speculative to support the
claim. Id. Finally, the Board considered and rejected Mr. Juzang’s lay statements that he had OSD
throughout the pendency of his claim, stating that, although the veteran was competent to describe
his observable symptoms of OSD, he lacked the medical expertise necessary to diagnose such a
complex medical condition. R. at 18.
5
The Board’s analysis is deficient in that it did not discuss whether the March 2003 VA clinic record or July and October 2009 VA podiatry notes containing assessments of OSD, all of which are
dated during the pendency of this claim, were sufficient to establish that he had that condition at those times. R. at 93, 99, 592. In fact, the Board did not mention the March 2003 VA clinic record at any point in its decision, and, although the Board acknowledged that the VA joints examiner “did not understand” the podiatrist’s assessments of OSD (R. at 15-16), the Board did not expressly adopt the examiner’s reasoning for questioning those assessments or otherwise offer any explanation as to why the podiatry notes did not constitute competent and probative evidence of a current disability of OSD. The foregoing medical records suggest that, contrary to the Board’s finding, Mr. Juzang may have had OSD while his claim for service connection for that condition was pending.
Therefore, those medical records were potentially favorable to his claim and the Board was required to consider and discuss them in its decision. See Caluza, supra. Its failure to do so thus constitutes error.

The Secretary’s attempts to recast the March 2003, July 2009, and October 2009 assessments of OSD as “questionable” diagnoses, “passing references,” or “mere[] recitation[s]” of past medical
history that the Board was not required to address are unavailing. Secretary’s Br. at 11-12. The Secretary has not pointed to anything in the Board decision that reflects that the Board even
considered those assessments of OSD, which constitute favorable evidence, much less evaluated and rejected them as insufficient to establish a current disability.
The Court reminds the Secretary that it is the Board’s obligation to evaluate the evidence of record and provide the reasons for accepting or rejecting any evidence that is potentially favorable to the claimant. See 38 U.S.C. § 7104(d)(1); Caluza and Gilbert, both supra; see also Washington v. Nicholson, 19 Vet.App. 362, 367-68 (2005)(stating that it is the Board’s duty to evaluate the credibility and probative value of the evidence).
The Board did not discharge that statutory duty in this case, and no amount of post-hoc rationalization by the Secretary on appeal can salvage this Board decision. See Doty v. United States, 53 F.3d 1244, 1251 (Fed. Cir. 1995) (“‘Courts may not accept appellate counsel’s post hoc rationalizations for agency action. It is well established that an agency’s action must be upheld, if at all, on the basis articulated by the agency itself.'” (quoting Motor Vehicle Mfrs. Ass’n of the U.S.,
Inc., v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50 (1983))); Evans v. Shinseki, 25 Vet.App. 7,
6

16 (2011) (“[I]t is the Board that is required to provide a complete statement of reasons or bases, and the Secretary cannot make up for its failure to do so.”). Thus, the Court concludes that remand is warranted for the Board to address the March 2003, July 2009, and October 2009 assessments of OSD in the first instance and provide an adequate statement of reasons or bases for its decision on Mr. Juzang’s claim for service connection for OSD. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that remand is the appropriate remedy “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”).

B. Service Connection for an Acquired Psychiatric Disorder
Mr. Juzang next argues that his claim for service connection for an acquired psychiatric
disorder, to include as due to OSD, is inextricably intertwined with his claim for service connection
for OSD, such that remand of the latter claim would warrant remand of the former claim. See
Appellant’s Br. at 9-10. The Secretary concedes that, “should the Court disagree with the Secretary
and determine that remand is warranted with respect to [the veteran’s] claim for service connection
for OSD, . . . remand of his claim pertaining to an acquired psychiatric disorder is warranted[] in the
interest of judicial economy.” Secretary’s Br. at 13-14. The Court agrees.
Because any favorable determination by the Board on remand as to Mr. Juzang’s primary
claim for service connection for OSD would impact his entitlement to secondary service connection
for an acquired psychiatric disorder, those claims are inextricably intertwined and must be returned
to the Board to be adjudicated together. See Smith v. Gober, 236 F.3d 1370, 1372 (Fed. Cir. 2001)
(explaining that, “in the interests of judicial economy and avoidance of piecemeal litigation,” claims
that are “intimately connected” should be adjudicated together); Henderson v. West, 12 Vet.App. 11,
20 (1998) (“[W]here a decision on one issue would have a significant impact upon another, and that
impact in turn could render any review by this Court of the decision [on the other claim] meaningless
and a waste of judicial resources, the two claims are inextricably intertwined.” (internal quotation
marks omitted)). Accordingly, the Court concludes that remand is also warranted for Mr. Juzang’s
claims for service connection for an acquired psychiatric disorder. See Smith and Henderson, both
supra.

7
III. CONCLUSION
Upon consideration of the foregoing, the portions of the September 26, 2011, Board decision
on appeal are SET ASIDE, and the appealed claims are REMANDED for readjudication consistent
with this decision. On remand, Mr. Juzang is free to present any additional arguments and evidence
pertaining to those claims to the Board in accordance with Kutscherousky v. West, 12 Vet.App. 369,
372-73 (1999) (per curiam order). See Kay, 16 Vet.App. at 534. The Court reminds the Board 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.
DATED: July 12, 2013
Copies to:
Glenn R. Bergmann, Esq.
VA General Counsel (027)
8

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