Veteranclaims’s Blog

November 13, 2014

Single Judge Application, Stowers v. Shinseki, 26 Vet. App. 550, 555 (2014); 38 C.F.R. § 3.103; VA Obligation in Claim Adjudication

Excerpt from decision below:

“VA is obligated to adjudicate a claim in a manner that ensures a veteran obtains the maximum benefits allowable in a given context.Stowers v. Shinseki, 26 Vet. App. 550, 555 (2014)(citing 38 C.F.R. § 3.103 for the principle that “it is the obligation of VA . . . to render a decision which grants every benefit that can be supported in law while protecting the interests of the Government”); see also Bradley v. Peake, 22 Vet.App. 280, 294 (2008) (explaining that the Secretary “is required to maximize benefits”); AB v. Brown, 6 Vet.App. 35, 38 (1993) (remarking that “the claimant will generally be presumed to be seeking the maximum benefit allowed bylaw and regulation”). This obligation includes considering entitlement to benefits under all potentially applicable DCs. See Schafrath, 1 Vet.App. at 593.”

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

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 13-0853
THOMAS I. LYLES, JR., APPELLANT,
V.
ROBERT A. MCDONALD,
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: Self-represented veteran Thomas I. Lyles, Jr., appeals a
December 21,
2011, Board of Veterans’Appeals (Board) decision1
denying a disabilityevaluation in excess of 30%
for left knee derangement manifested by instability from May 1, 2001, to
May 4, 2005, and since
July 1, 2005, and separate evaluations for the left knee disability based
on decreased extension and
degenerative changes. Record (R.) at 45-59.2
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
On January 14, 2014, the Court determined that the veteran misfiled a
Notice of Appeal with VA’s Appeals
Management Center (AMC) within the 120-day judicial appeal period and
accepted his appeal as timely filed at the
Court. See January 14, 2014, Court Order.
The Board granted a separate 10% evaluation for left knee disability
limitation of extension from October 12,
2001, to April 21, 2010, and a 30% evaluation thereafter. R. at 54, 58.
Although somewhat unclear, it appears that the
Board remanded the issue of entitlement to a higher evaluation based on
limitation of extension. See Secretary’s Brief
(Br.) at 7 n.1; see also id. at Attachment (February 2013 Board decision
adjudicating that issue). The Board also
remanded the issue of entitlement to an extraschedular evaluation for the
left knee disability to be referred to the Director
of VA’s Compensation Service for an initial decision. R. at 58-59. Because
a remand is not a final decision of the Board
subject to judicial review, the Court does not have jurisdiction to
consider those issues 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) (2014).
2
1

the reasons that follow, the Court will set aside the portions of the
December 2011 Board decision
denying a separate evaluation under Diagnostic Code (DC) 5260 and a
separateevaluation under DC
5003 prior to October 12, 2001, and remand those matters for
readjudication consistent with this
decision. The Court will also remand the issue of entitlement to a
separate evaluation under DCs
5258 and 5259 for initial adjudication. However, the Court will affirm the
remaining portions of the
December 2011 Board decision on appeal.
I. FACTS
Mr. Lyles served on active duty in the U.S. Army from April 1987 to July
1990. R. at 850.
He was hospitalized in January1990 and underwent arthroscopic surgeryto
repair the meniscus and
anterior cruciate ligament (ACL) in his left knee. See R. at 838. In
February 1991, a VA regional
office (RO) granted service connection for a left knee ACL tear with
anterolateral instability and
assigned a 10% evaluation under 38 C.F.R. § 4.71a, DC 5257 (Other
impairment of the knee:
recurrent subluxationorlateral instability)(1990),effectiveJuly26, 1990,
the dayafterhis discharge
from service. R. at 836-39. The RO subsequently awarded, under that DC,
increased evaluations
of 20% in March 1996 (R. at 814-17) and 30% in March 1999 (R. at 712-15).
In February 2001, Mr. Lyles had additional left knee surgery and two
months later filed a
claim for increased compensation. R. at 661-67. In an October 2001 VA
medical examination, he
complained of left knee pain. R. at 619-20. The examiner found no
tenderness, swelling, deformity,
or instability of the left knee, and range of motion testing revealed
flexion from 0 to 120 degrees3
with no pain, weakness, fatigability, decreased endurance, or
incoordination. R. at 619. The
examiner noted that a June 1998 x-ray showed mild osteoarthritic changes
of the left knee and
diagnosed chondromalacia4
and patellofemoral arthritis, status post February 2001 arthroscopic
surgery. Id.
3
VA considers full range of motion of the knee to be flexion from 0 to 140
degrees. 38 C.F.R. § 4.71, Plate II
(2014).
“Chondromalacia” is “softening of the articular cartilage, most frequently
in the patella.” DORLAND’S
ILLUSTRATED MEDICAL DICTIONARY 352 (32d ed. 2012) [hereinafter DORLAND’S].
4
2

Based on that examination, the RO in March 2002 awarded a temporary total
disability
evaluation based on convalescence from February26, 2001–the date of the
surgery–to May 1, 2001,
but denied an evaluation in excess of 30% thereafter. R. at 613-18. Mr.
Lyles timely appealed that
decision (R. at 598-99, 606-07, 612), and in November 2004, the Board
remanded the claim for
further development (R. at 574-81).
In July 2005, Mr. Lyles submitted private medical records indicating that
he had undergone
May2005 left knee surgery. R. at 545-61. The AMC subsequentlyscheduled a
September 2005 VA
medical examination, but he did not report. R. at 539-40. In November 2005,
the AMC awarded
a temporary total disability evaluation based on convalescence from May 5,
2005–the date of the
surgery–to June 30, 2005, but continued the prior 30% evaluation
thereafter. R. at 520-38. The
appeal returned to the Board and in June 2006 it denied an evaluation in
excess of 30% from May
1, 2001, to May 4, 2005, and since July 1, 2005. R. at 487-501. Mr. Lyles
appealed that decision
to the Court and, in October 2007, the Court vacated the June 2006 Board
decision and remanded
the matter for readjudication because the veteran had not been properly
notified of the specific time
and place of the September 2005 VA examination. R. at 449-54. In February
2009, the Board
remanded to reschedule the missed medical examination. R. at 428-34.
Mr. Lyles underwent that examination in April 2010 and complained of left
knee pain,
instability, locking, stiffness, incoordination, and fatigue and reported
wearing a knee brace and
using a cane for support. R. at 219. On range of motion testing, Mr. Lyles
was able to “flex[ his]
left knee . . . about 45 degrees” while sitting in a chair, and, while
lying on the examination table,
had flexion from 0 to 115 degrees with pain throughout the last 5 degrees.
R. at 221. The examiner
noted that Mr. Lyles “grimaces some on extremes of motion” but found no
additional limitations on
repetitive motion. R. at 223.
In September 2010, the AMC issued a Supplemental Statement of the Case
continuing the
30% evaluation of the veteran’s left knee disabilityfrom May1, 2001, to
May4, 2005, and since July
1, 2005. R. at 161-74. Later that month, he submitted additional evidence
in support of his claim
(R. at 128-41) and in April 2011 he testified at a Board hearing (R. at 62-
94).
In December 2011, the Board issued the decision currently on appeal. R. at
45-59. The
Board found that the record contained medical evidence of left knee
instability, limited motion, and
3

degenerative changes and therefore considered his entitlement to a
disability in excess of 30% since
November 24, 1997–excluding periods when he had a temporary total
disability evaluation based
on convalescence–under DCs 5257 (instability), 5260 (limitation of
flexion), 5261 (limitation of
extension), and 5003 (degenerative arthritis). R. at 46-47, 52. The Board
denied a higher evaluation
basedoninstabilitybecause30%was the highest schedular evaluation
availableunder DC 5257, and
denied entitlement to a separate evaluation based on limitation of flexion
because the veteran did not
meet the criteria for a compensable evaluation under DC 5260. R. at 53.
The Board found, however,
that Mr. Lyles’s limitation of extension warranted a separate 10%
evaluation under DC 5261
beginning October 12, 2001–the date of the first VA examination–and 30%
beginning April 22,
2010–the date of the second VA examination. R. at 54. The Board then
noted that the record was
“replete with evidence that the [v]eteran has had degenerative changes in
the left knee during the
pendency of the claim,” but denied entitlement to an additional 10%
evaluation under DC 5003
because it was precluded by the compensable limitation of motion
evaluation under DC 5261. R.
at 54-55. This appeal followed.
II. ANALYSIS
Mr. Lyles generally argues in his informal brief that the Board erred in
denying entitlement
to greater compensation for his service-connected left knee disability.
Appellant’s Br. at 1-3. The
Secretary concedes that the Board provided inadequate reasons or bases for
denying entitlement to
a separate compensable evaluation under DC 5003 from May 1, 2001, to
October 12, 2001, and for
failing to address entitlement to a separate evaluation based on left knee
locking under DC 5258.
Secretary’s Br. at 10-11, 13-14. The Secretary argues that the Court
should affirm the remainder of
the Board decision because the Board’s denial of greater compensation
under DCs 5257 and 5260
for the entire period on appeal and under DC 5003 for the period after
October 12, 2001, was not
clearly erroneous and was supported by adequate reasons or bases. Id. at 8-
13.
The Board’s determination of the appropriate degree of disability is a
finding of fact subject
to the “clearly erroneous” standard of review set forth in 38 U.S.C. §
7261(a)(4). See Smallwood v.
Brown, 10 Vet.App. 93, 97 (1997). “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
4

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 issueoffact andlawpresented on the record, the Board must
supportits degree-of-disability
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). To comply
with this requirement, the
Board must analyze the credibility and probative value of evidence,
account for evidence it finds
persuasive or unpersuasive, and provide the reasons for its rejection of
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).
A. DC 5257
DC 5257 provides disability evaluations based on recurrent subluxation or
lateral instability
of the knee, with a maximum evaluation of 30%. 38 C.F.R. § 4.71a, DC 5257 (
2014).
As the Board correctly noted (R. at 50), Mr. Lyles is currently in receipt
of the maximum
30% evaluation under DC 5257 for the entire period on appeal, exclusive of
the periods where he
was assigned temporarytotal evaluations based on convalescence. See R. at
715. Because no higher
schedular evaluation is available under DC 5257,5
the Court concludes that the Board did not clearly
err in denying additional compensation under that DC. See Smallwood, 10
Vet.App. at 97. The
Court will therefore affirm that portion of the Board decision.
B. DC 5260
“[S]eparate evaluations are allowed for separate disabilities arising from
the same knee
injury.” Murray v. Shinseki, 24 Vet.App. 420, 423 (2011); accord VA Gen.
Coun. Prec. 9-2004
(Sept. 17, 2004) (authorizing separate evaluations for limitation of leg
flexion under DC 5260 and
limitation of leg extension under DC 5261); VA Gen. Coun. Prec. 23-97 (
July 1, 1997) (authorizing
separate evaluations for degenerative arthritis under DC 5003 and
recurrent subluxation or lateral
instabilityof the knee under DC 5257); see generally Esteban v. Brown, 6
Vet.App. 259, 262 (1994)
(explaining that 38 C.F.R. § 4.25(b) allows for separate evaluations
arising from a single disease
The issue of entitlement to an extraschedular evaluation for the service-
connected left knee disability was
remanded by the Board and is therefore not before the Court at this time.
See supra note 2.
5
5

entity provided that none of the symptoms addressed under one DC is
duplicative or overlapping
with the symptoms addressed under the other DCs). DC 5260 governs
limitation of flexion of the
leg, and provides a noncompensable evaluation for flexion limited to 60
degrees, a 10% evaluation
for flexion limited to 45 degrees, a 20% evaluation for flexion limited to
30 degrees, and a 30%
evaluation for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260.
The Board determined that Mr. Lyles was not entitled to a separate
evaluation for left knee
flexion for any period on appeal because the results of the October 2001
and April 2010 VA
examinations did not show compensable limitation of flexion. R. at 53.
Relevant here, the Board
observed that the April 2010 examination report showed that “left knee
flexion was 115 degrees”
with “objective signs of pain with the last 5 degrees of motion” and
explained that, “[i]n order for
flexion to be compensable, it needs to be limited to 45 degrees.” Id.
However, the Board did not
address the examiner’s finding that Mr. Lyles was only able to flex his
left knee “about 45 degrees”
while sitting in a chair, as opposed to the 115 degrees of flexion he
demonstrated while lying on the
examination table.6
R. at 221. This oversight is significant because DC 5260 provides a 10%
evaluation for flexion limited to 45 degrees, 38 C.F.R. § 4.71a, DC 5260,
and Plate II of § 4.71
contemplates range of motion testing of the knee measured from a seated
position, 38 C.F.R. § 4.71,
Plate II (2014).
The Board’s failureto account for the seeminglyfavorable test result from
the April 2010 VA
examination renders inadequate its reasons or bases for denying a separate
evaluation under DC
5260. See Caluza, 7 Vet.App. at 506. Remand is therefore required for the
Board to consider and
discuss whether additional compensation is warranted under that DC. 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”).
6
The Court notes that the VA Clinicians’ Guide instructs examiners to “[r]
eport the joint range of motion with
reference to the anatomic position, e.g., state that ‘elbow flexion is 0
to 120 degrees'” because “[r]eporting range of
motion any other way than by referring to the anatomic position leads to
confusion among raters and may result in
incorrect disability evaluations.” VA CLINICIANS GUIDE, ch. 11, § 2(d).
6

C. DC 5003
DC 5003 provides that degenerative arthritis established by x-ray findings
is evaluated on
the basis of limitation of motion under the appropriate DC for the
specific joint involved, e.g., DC
5260 or 5261. 38 C.F.R. § 4.71a, DC 5003. However, when limitation of
motion of the affected
joint is noncompensable under the appropriate DC, a 10% evaluation under
DC 5003 will be
assigned. Id. If there is no limitation of motion, a 10% evaluation under
DC 5003 may nevertheless
be assigned if there is x-ray evidence of degenerative arthritis of two or
more major joints or two or
more minor joint groups and a 20% evaluation may be assigned if that
degenerative arthritis causes
occasional incapacitating episodes. Id.; see generally Mitchell v.
Shinseki, 25 Vet.App. 32, 38-39
(2011) (describing the mechanics of DC 5003).
The Board found that, although the record was “replete with evidence that
the [v]eteran has
had degenerative changes in the left knee during the pendency of his claim
,” DC 5003 did not apply
to his case because he had been assigned a compensable evaluation based on
limitation of extension
of the left knee, which precluded a separate evaluation under DC 5003. R.
at 54. This analysis is
not clearly erroneous with respect to the period for which the evaluation
based on limitation of
extension was in effect–i.e., from October 12, 2001, to the
present–and the Court will therefore
affirm that portion of the decision. See Smallwood, 10 Vet.App. at 97.
However, the Board failed to recognize that (1) prior to October 12, 2001,
the veteran was
not in receipt of an evaluation based on limitation of motion of the left
knee that would disqualify
him from separate compensation under DC 5003 (id.); (2) he filed the
current claim for an increased
evaluation in April 2001 (R. at 46, 661-67); and (3) the record contained
evidence noting
degenerative changes of the left knee in June 1998 (R. at 619). Thus, as
the Secretary concedes
(Secretary’s Br. at 10-11), the Board erred in failing to properly analyze
whether Mr. Lyles was
entitled to a separate evaluation under DC 5003 for the period between the
date that he filed the
instant claim for increase in April 2001 and October 12, 2001–exclusive
of the time he was in receipt
of a temporary total evaluation based on convalescence. See Mitchell, 25
Vet.App. at 38-39;
Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991) (holding that the Board
errs when it fails to
discuss a potentially applicable provision of law); VA Gen. Coun. Prec. 23-
97. Accordingly, the
Court concludes that the Board’s reasons or bases for denying entitlement
to a separate evaluation
7

under DC 5003 prior to October 12, 2001, are inadequate and that error
necessitates remand. See
Tucker, 11 Vet.App. at 374; Schafrath, 1 Vet.App. at 593.
D. Other Potentially Applicable DCs
VA is obligated to adjudicate a claim in a manner that ensures a veteran
obtains the maximum benefits allowable in a given context.Stowers v. Shinseki, 26 Vet. App. 550, 555 (2014)(citing 38 C.F.R. § 3.103 for the principle that “it is the obligation of VA . . . to render a decision which grants every benefit that can be supported in law while protecting the interests of the Government”); see also Bradley v. Peake, 22 Vet.App. 280, 294 (2008) (explaining that the
Secretary “is required to maximize benefits”); AB v. Brown, 6 Vet.App. 35,
38 (1993) (remarking that “the claimant will generally be presumed to be seeking the maximum benefit allowed bylaw and regulation”). This obligation includes considering entitlement to benefits under all potentially applicable DCs. See Schafrath, 1 Vet.App. at 593.
The Board found that Mr. Lyles’s left knee symptoms include instability,
limitation of
flexion, limitation of extension, arthritic changes, and daily locking. R.
at 46-47. Although the
Board addressed those first four symptoms in its assessment of the
veteran’s disability level under
DCs 5257, 5260, 5261, and 5003, respectively, it did not discuss the
veteran’s left knee locking at
all. See R. at 53-58. As the Secretary points out (Secretary’s Br. at 13-
14), knee locking is
contemplated by DCs 5258 and 5259, which cover symptoms related to the
dislocation and removal
of the semilunar cartilage–i.e., the interarticular cartilages of the
knee joint (see DORLAND’S at
1135)–and the record reflects that Mr. Lyles underwent a partial lateral
meniscectomy7
in May2005
(R. at 548-49) and was awarded a temporary total evaluation based on
convalescence for the
following two-month period (R. at 520-25). Yet, the Board did not consider
whether Mr. Lyles was
entitled to a separate evaluation under either of these DCs, the potential
application of which, the
Secretary concedes, was raised by the evidence of record. Secretary’s Br.
at 13-14. Thus, the Court
agrees with the Secretary that the Board erred in failing to consider
entitlement to additional
compensation under DCs 5258 and 5259 and that remand is required for the
Board to address that
issue in the first instance. Id. at 14; see Tucker, 11 Vet.App. at 374.
7
A “meniscectomny” is “excision of an intra-articular meniscus, as in the
knee joint.” DORLAND’S at 1134.
8

E. Other Arguments
In addition to the general arguments addressed above, Mr. Lyles also makes
several specific
allegations of error, all of which are unavailing. First, he contends that
the Board erred in failing to
discuss an “early 2013” VA medical examination report pertaining to his
left knee and a December
9, 2013, VA decision.8
Appellant’s Br. at 1-3. Given that the Board decision currentlyon appeal
was
issued in December 2011, the Board could not have erred in not discussing
the 2013 examination
report and VA decision because those documents were not in existence at
the time of the Board
decision. Further, because the Court is statutorily precluded from
reviewing any document not
before the Board at the time of its decision, the Court may not entertain
arguments based on that
evidence. See 38 U.S.C. § 7261(b) (the Court’s review is based on the
record of proceedings before
the Secretaryand the Board); Rogozinski v. Derwinski, 1 Vet.App. 19, 20 (
1990). Thus, the veteran’s
references to the documents generated in 2013 are of no moment in this
appeal.
Second, Mr. Lyles contends that the Board failed to adequately account for
the effects of his
service-connected left knee disability “on [his] work and home (personal)
life.” Appellant’s Br. at
1. To the extent that this argument is premised on factors other than
those expressly listed in the
DCs applicable to his disability, the argument pertains to the issue of
entitlement to an
extraschedular evaluation, which is not part of this appeal. See supra
note 2 (mentioning that the
Board remanded the issue of entitlement to an extraschedular evaluation);
see also Thun v. Peake,
22 Vet.App. 111, 115 (2008) (explaining that one of the elements of the
extraschedular-referral
inquiryis a showing that “theevidence beforeVA presents such an
exceptional disabilitypicture that
the available schedular evaluations for that service-connected disability
are inadequate”).
However,to theextent thatMr.Lyles’sreferencepertains to
theissueofentitlementto greater
schedular evaluations, the veteran has not carried his burden of
demonstrating that the Board erred
in consideringand discussing anyspecificmaterial evidence of left
kneeimpairment. See Newhouse
v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007) (“There is a
presumption that VA considered all
of the evidence of record.”); Hilkert v. West, 12 Vet.App. 145, 151 (1999) (
appellant bears the
The Secretary states that VA’s electronic appeals tracking system does not
reflect that the Board made a
decision on any of Mr. Lyles’s claims on or around December 9, 2013, and
suggests that Mr. Lyles may be referring to
an RO decision. Secretary’s Br. at 12.
8
9

burden of demonstrating error on appeal), aff’d per curiam, 232 F.3d 908 (
Fed. Cir. 2000) (table).
Thus, this argument also fails.
Third, Mr. Lyles asserts that the Board erred in failing to consider
entitlement to additional
compensation under 38 C.F.R. § 4.71a, DC 5262 (Appellant’s Br. at 3),
which covers impairment
of the tibia and fibula, namely nonunion and malunion of those bones.
Although the veteran asserts
that he submitted evidence that would trigger the application of this DC (
Appellant’s Br. at 3), he
does not identify any evidence of tibia and fibula nonunion or malunion
and the Court is unable to
locate any in the record. See R. at 605 (February 2003 Statement of the
Case finding “no indication
of non-union of the tibia and fibula”). Therefore, contrary to the
veteran’s argument, it does not
appear that the record reasonably raised the potential applicability of DC
5262, and the Court
concludes that the Board did not err in not addressing that DC. See
Robinson v. Peake, 21 Vet.App.
545, 553 (2008) (holding that the Board errs when it fails to consider an
issue reasonably raised by
the evidence of record), aff’d sub nom. Robinson v. Shinseki, 557 F.3d
1355 (Fed. Cir. 2009);
Schafrath, 1 Vet.App. at 593; see also Hilkert, 12 Vet.App. at 151.
Finally, Mr. Lyles seems to assert that he did not receive a copy of the
record before the
agency (RBA). Appellant’s Br. at 3. The docket contains a Certificate of
Service of the RBA, in
which the Secretary attested, under penalty of perjury, that he sent a
copy of the RBA to the veteran
on June 14, 2013. See June 14, 2013, RBA Notice. Given that there is a
presumption of regularity
under which it is presumed that government officials have properly
discharged their official duties,
including mailing documents, Ashley v. Derwinski, 2 Vet.App. 307, 308 (
1992), and given that a
mere assertion of nonreceipt, like the one made by Mr. Lyles, is
insufficient to constitute the clear
evidence of irregularity needed to rebut that presumption, Boyd v.
McDonald, __ Vet.App. __, __,
No. 10-0852, 2014 WL 3824355 at *8 (Aug. 5, 2014), the Court discerns no
error in the Secretary’s
mailing of the RBA.

III. CONCLUSION
Upon consideration of the foregoing, the portions of the December 21, 2011,
Board decision
denying a separate evaluation under DC 5260 and a separate evaluation
under DC 5003 prior to
October12,2001,are SETASIDE,
and thosemattersareREMANDEDforreadjudicationconsistent
10

with this decision. The issue of entitlement to a separate evaluation
under DCs 5258 and 5259 is
also REMANDED for initial adjudication. The remaining appealed portions of
the December 2011
Board decision are AFFIRMED.
DATED: October 28, 2014
Copies to:
Thomas I. Lyles, Jr.
VA General Counsel (027)
11

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