Excerpt from decision below:
“In rendering its decision, the Board assigned greater weight to a July 2008 medical report that Mr. Kessler did not have a knee disability than it gave to December 2007 and January 2008 medical reports that he suffered from tendinitis. Although the Board provided generally adequate reasons for its assignment of weight, the Board failed to address the fact that the July 2008 medical report does not refer to the earlier medical reports that Mr. Kessler had tendinitis. It is not clear whether the earlier reports were in error, predicated on less reliable information, not considered by the later examiner, or whether Mr. Kessler’s tendinitis was acute and heal. The obvious disconnect between the reports with regard to whether Mr. Kessler had a disability warranted clarification or an explanation by the Board as to why clarification was not needed; and the Board’s failure to provide either frustrates judicial review. See Allday v. Brown, 7 Vet.App. 517, 527 (1995) (the Board’s statement “must be adequate to enable a claimant to understand the precise basis for the Board’s decision, as well as to facilitate review in this Court”). Remand is warranted. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (remand 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 Romanowsky v. Shinseki, 26 Vet.App. 289, 295 (2013) (remanding case to resolve discrepancies between competing medical examination reports prepared within seven months of each other); 38 C.F.R. § 19.9(a)(2013) (remand warranted if clarification of evidence is essential for proper appellate decision).
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 12-2229
BRITTEN S. KESSLER, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before KASOLD, Chief Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
KASOLD, Chief Judge: Veteran Britten S. Kessler appeals through counsel
that part of a March 22, 2012, decision of the Board of Veterans’ Appeals (Board) that
denied him benefits for a left-knee disability, to include as secondary to a service-connected left-
hip and/or cervical spine
disability. Mr. Kessler argues that (1) remand is required for the Board
to obtain a medical opinion
addressing his private physician’s diagnosis of left-knee tendinitis, (2)
the Board’s finding that the
evidence preponderates against a finding of current left-knee disability
is clearly erroneous, (3) the
Secretary failed to fulfill his duty to assist by failing to seek
clarification from Mr. Kessler’s private
physician, and (4) the Board provided inadequate reasons or bases for its
findings. Single-judge
disposition is appropriate. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (
1990). For the reasons
stated below, that part of the Board decision on appeal will be set aside
and the matter remanded for
further adjudication.
In renderingits decision, the Board assigned greaterweight to a July2008
medical report that
Mr. Kessler did not have a knee disability than it gave to December 2007
and January 2008 medical
reports that he suffered from tendinitis. Although the Board provided
generally adequate reasons
for its assignment of weight, the Board failed to address the fact that
the July 2008 medical report
does not refer to the earlier medical reports that Mr. Kessler had
tendinitis. It is not clear whether
the earlier reports were in error, predicated on less reliable information,
not considered by the later
examiner, or whether Mr. Kessler’s tendinitis was acute and healed.
The obvious disconnect between the reports with regard to whether Mr.
Kessler had a
disability warranted clarification or an explanation by the Board as to
why clarification was not
needed, and the Board’s failure to provide either frustrates judicial
review. See Allday v. Brown,
7 Vet.App. 517, 527 (1995) (the Board’s statement “must be adequate to
enable a claimant to
understand the precise basis for the Board’s decision, as well as to
facilitate review in this Court”).
Remand is warranted. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (
remand appropriate “where
the Board has incorrectlyapplied the law, failed to provide an adequate
statement of reasons or bases
for its determinations, or where the record is otherwise inadequate”); see
also Romanowsky
v.
Shinseki, 26 Vet.App. 289, 295 (2013) (remandingcaseto resolve
discrepancies between competing
medical examination reports prepared within seven months of each other);
38 C.F.R. § 19.9(a)
(2013) (remand warranted if clarification of evidence is essential for
proper appellate decision).
In light of the need to remand this matter, Mr. Kessler’s other arguments
are moot. See Dunn
v. West, 11 Vet. App. 462, 467 (1998) (remand of appellant’s claim under
one theory moots the
remaining theories advanced on appeal). On remand, Mr. Kessler may present
any additional
evidence and argument in support of thematterremanded,andtheBoardmust
consider anyevidence
and argument so presented. See Kay v. Principi, 16 Vet.App. 529, 534 (2002
). This matter is to be
provided expeditious treatment on remand. See 38 U.S.C. § 7112.
For all the foregoing reasons, that part of the March 22, 2012, Board
decision on appeal is
SET ASIDE and the matter REMANDED for further adjudication.
DATED: December 4, 2013
Copies To:
Richard V. Spataro, Jr., Esq.
VA General Counsel (027)
Veteranclaims's Blog 