Howell v. Nicholson, No. 04-0624

March 7, 2009

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 04-0624
ROBERT L. HOWELL, APPELLANT,
V.
R. JAMES NICHOLSON,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans’ Appeals
(Decided March 23, 2006 )
Kenneth M. Carpenter, of Topeka, Kansas, and Allan T. Fenley, of Schenectady, New York,
were on the brief for the appellant.
Tim S. McClain, General Counsel; R. Randall Campbell, Assistant General Counsel; Carolyn
F. Washington, Deputy Assistant General Counsel; Edward V. Cassidy, Jr., Deputy Assistant
General Counsel; Gayle E. Strommen, Senior Appellate Attorney, and Levinia A. Derr, all of
Washington, D.C., were on the brief for the appellee.
Before KASOLD, LANCE, and SCHOELEN, Judges.
KASOLD, Judge: Korean conflict era veteran Robert L. Howell appeals through counsel a
February 2, 2004, decision of the Board of Veterans’ Appeals (Board) that denied entitlement to
special monthly compensation (SMC) based on the need for regular aid and attendance or upon
housebound status. For the reasons set forth below, the decision of the Board will be set aside and
the matter remanded for readjudication.
I. BACKGROUND
Mr. Howell served in the U.S. Army from April to September 1951. Record (R.) at 16. In
April 1981, a VA regional office (RO) issued a rating decision that granted service connection for
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schizophrenia, chronic paranoid type, and awarded a 70% disability rating. R. at 22-24. In April
1982, Mr. Howell’s disability rating was increased to 100%. R. at 26.
In January 2000, Mr. Howell submitted to the RO a handwritten letter inquiring whether he
was “eligible for aid and attendance benefits.” R. at 38-39. Thereafter, Mr. Howell submitted to the
RO the handwritten note of Dr. Jose H. Duque, who stated that Mr. Howell was “not able to take
care of himself without help because [of] his mental and physical disability.” R. at 47. In May 2000,
the RO notified Mr. Howell that he was scheduled for compensation examinations in support of his
claim. R. at 49. In response, Mr. Howell requested that the RO cancel the examinations and stated
that he was unable to attend them because his “mental health has deteriorated due [to] old age.” R.
at 55. In August 2000, the RO construed Mr. Howell’s letter as a claim for SMC benefits based on
his being permanently housebound in addition to his claim for SMC benefits based on the need for
aid and attendance, and it denied the claims. R. at 76-78. Mr. Howell filed a Notice of
Disagreement with the RO’s decision. R. at 80.
In June 2002, after the RO determined that a medical examination was necessary to decide
the claim, Mr. Howell was afforded a VA medical examination. R. at 97. In the examination report,
the examiner, Dr. Padma Raghavan, noted that Mr. Howell’s claims file was not available for review.
R. at 104. Dr. Raghavan further noted that Mr. Howell presented himself in a wheelchair at the
examination, but that Mr. Howell reported that he did not use a wheelchair at home. R. at 104. The
report indicated that Mr. Howell’s wife stated that she helped him with bathing, eating, and dressing.
R. at 105. Dr. Raghavan diagnosed Mr. Howell with (1) a history of disc disease in lumbosacral
spine with hyperreflexia and left-sided sciatic pain; (2) emotional problems; and (3) hypertension.
R. at 106. Dr. Raghavan noted: “As per the wife and also as per the veteran because of a
combination of his emotional problems and probable spine disease and loss of balance, veteran is
unable to take care of his activities of daily living.” Id. After additional development, in February
2003 the RO issued a Supplemental Statement of the Case that denied Mr. Howell’s claim for SMC.
On appeal, the Board denied Mr. Howell’s claim for SMC on the basis that his schizophrenia,
as his “sole service-connected disability, alone, does not render him housebound or in need of the
regular aid and attendance of another person.” R. at 12. Regarding Mr. Howell’s housebound status,
the Board specifically found that “the record reflects that the veteran is able to leave his house to
Service, such as Mr. Howell’s, during the Korean conflict between June 27, 1 1 950, and January 31, 1955, is
statutorily defined as service during a period of war. See 38 U.S.C. § 101(9), (11); see also 38 C.F.R. § 3.2 (e) (2005).
3
attend to regular treatment appointments . . . and to attend VA examinations when motivated.” R.
at 10. The Board concluded that “the record clearly reflects that he is able to leave his house when
desired, and there is otherwise no evidence suggesting that it is his psychiatric disability, rather than
his numerous physical disabilities, which interferes with his ability to leave home.” R. at 10-11.
Regarding Mr. Howell’s need for regular aid and attendance, the Board specifically found that Dr.
Duque and Dr. Raghavan “both concluded that it was only from a combination of the veteran’s
service-connected psychiatric, and non-service-connected physical, disabilities, that the veteran
required the assistance of another person in the performance of his daily activities.” R. at 11
(emphasis in original).
In his appeal to the Court, Mr. Howell argues that the Secretary failed in his duty to assist
under 38 U.S.C. § 5103A by failing to conduct an adequate medical examination, and failed to
provide adequate notice as required by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) (2005). The
Secretary argues that there is a plausible basis in the record for the Board’s decision and that the
Board properly found that the Secretary complied with his duties to assist and to notify, and he urges
the Court to affirm. In response to the Court’s request, the parties provided supplemental briefing
on the statutory and regulatory requirements for SMC benefits on the basis of the need for regular
aid and attendance or for being permanently housebound.
II. ANALYSIS
SMC may be granted to a veteran of a period of war1 who, inter alia, is in need of aid and
attendance or is permanently housebound. See generally 38 U.S.C. §§ 1114(l), (s). Under section
1114(l), SMC on the basis of the need for regular aid and attendance (SMC-AA) is paid when a
wartime veteran, inter alia, is so helpless as to be in need of regular aid and attendance as a result
of service-connected disability. See 38 U.S.C. § 1114(l); see also 38 C.F.R. §§ 3.350(b)(2), 3.352(a)
(2005). Under section 1114(s), SMC on the basis of being permanently housebound (SMC-HB) is
paid when, inter alia, a wartime veteran, by reason of service-connected disability, is permanently
housebound. See 38 U.S.C. § 1114(s); see also 38 C.F.R. § 3.350(i)(2).
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A. Regular Aid and Attendance of Others – 38 U.S.C. § 1114(l)
In the decision on appeal, the Board determined that SMC-AA is available when the need
for the aid and attendance of others arises solely from a wartime veteran’s service-connected
disabilities. The parties agree with this interpretation of 38 U.S.C. § 1114(l) and 38 C.F.R.
§§ 3.350(b)(2), 3.352(a) (2005), as does the Court. See Jackson v. Nicholson, 19 Vet.App. 207, 209
(2005) (citing Lane v. Principi, 339 F.3d 1331, 1339 (Fed. Cir. 2003)) (correct interpretation of a
law or regulation is a question of law, which the Court reviews de novo); Cropper v. Brown,
6 Vet.App. 450, 454 (1994). The plain and unambiguous language of section 1114(l) requires that
a claimant be in need of regular aid and attendance “as the result of service-connected disability.”
See 38 U.S.C. § 1114(l); see also Gardner v. Brown, 5 F.3d 1456, 1456 (Fed. Cir. 1993) [hereinafter
Gardner II] (“The starting point in interpreting a statute is its language, for ‘if the intent of Congress
is clear, that is the end of the matter.’”), aff’d, 513 U.S. 115 (1994). The plain language of section
1114(l) is consistent with the statutory scheme of which it is a part. See Gardner v. Derwinski,
1 Vet.App. 584, 586 (1991) [hereinafter Gardner I] (“Determining a statute’s plain meaning requires
examining the specific language at issue and the overall structure of the statute.”), aff’d sub nom.
Gardner II, 5 F.3d 1456 (Fed. Cir. 1993), aff’d, 513 U.S. 115 (1994). Section 1114 is contained
within chapter 11, title 38, U.S. Code, which sets forth the benefits payable on the basis of a veteran’s
service-connected disability or death. See generally 38 U.S.C. §§ 1101-1163.
Based solely on the medical opinions of Dr. Raghavan and Dr. Duque, the Board determined
that Mr. Howell was not entitled to SMC-AA benefits because “it was only from a combination of
his service-connected and non-service-connected disabilities” that Mr. Howell required the assistance
of others. R. at 11 (emphasis in original). However, these medical opinions lacked the proper
foundation to be given any weight.
Dr. Raghavan relied solely on the statements of Mr. Howell and his wife that Mr. Howell’s
need for assistance was a result of the combination of his disabilities; Dr. Raghavan provided no
medical assessment of his needs or the specific basis for those needs. Although Mr. and Mrs.
Howell may state their activities and opine as to their needs as they related to Mr. Howell’s
disabilities, they are not qualified to provide the medical nexus between their disabilities and the
perceived needs, see Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992) (holding that lay person is
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not competent to offer evidence that requires medical knowledge), and their recorded statements,
“unenhanced by any additional medical comment” by Dr. Raghavan are not competent medical
evidence, LeShore v. Brown, 8 Vet.App. 406, 409 (1995) (internal quotation omitted) (holding as
incompetent medical evidence where the examiners had not “filtered, enhanced, or added medicoevidentiary
value to the lay history through their medical expertise”). Similarly, Dr. Duque’s opinion
regarding Mr. Howell’s need for aid and attendance is nothing more than a handwritten note on a
blank form used for prescriptions that states: “He is not able to take care of himself because [of] his
mental and physical disability.” R. at 47. This statement is unenhanced by any medical comment
and is not competent medical evidence. See LeShore, supra. Inasmuch as the opinions of Dr.
Raghavan and Dr. Duque do not constitute competent medical evidence because they are not
enhanced by any additional medical comment by the medical examiner, the Board erred by relying
on them in support of its conclusion that Mr. Howell was not entitled to SMC-AA benefits.
In disability compensation claims, the Secretary’s duty to assist requires him to provide a
medical examination or obtain a medical opinion “when such an examination or opinion is necessary
to make a decision on the claim.” 38 U.S.C. § 5103A(d)(1); see Wells v. Principi, 326 F.3d 1381,
1384 (Fed. Cir. 2003) (holding that section 5103A(d) places a duty on the Secretary to provide a
medical examination or opinion where such opinion is necessary to make a decision on the veteran’s
claim for disability compensation); Charles v. Principi, 16 Vet.App. 370, 375 (2002) (Board erred
in failing to obtain medical nexus opinion that was necessary to make a decision on the claim);
38 C.F.R. § 3.159(c)(4)(i)(C); see also Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991) (Board
must consider all relevant evidence of record and address in its decision all potentially applicable
provisions of law and regulation). In light of the holding that both of the medical opinions upon
which the Board relied were incompetent as a matter of law, the state of the evidence as to the SMCAA
claim reverts to that as it existed prior to the examination, that is, to the point when the Secretary
determined that a medical examination was required to make a decision on the claim. Therefore, on
remand the Board must ensure that Mr. Howell is provided with a medical examination that will
enable it to make a decision on his claim for SMC-AA benefits. See 38 U.S.C. § 5103A(d)(1);
Wells, Charles, and Schafrath, all supra.
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B. Permanently Housebound Status – 38 U.S.C. § 1114(s)
SMC-HB benefits will be paid to a veteran who, “by reason of such veteran’s serviceconnected
disability or disabilities, is permanently housebound.” 38 U.S.C. § 1114(s); see also
38 C.F.R. § 3.350(i)(2). The term “permanently housebound” is further defined as being
“substantially confined to such veteran’s house . . . or immediate premises due to a service-connected
disability or disabilities which it is reasonably certain will remain throughout the veteran’s lifetime.”
Id. The term “substantially confined” is not defined by statute or regulation. See id.
Because the meaning of the term “substantially confined” is ambiguous and there is no
regulatory interpretation, “the Court must determine the meaning” of the term “and the Board’s
obligation” thereunder. Thompson v. Brown, 8 Vet.App. 169, 175 (1995); see also Jackson and
Cropper, both supra. The Secretary submits that the clear implication of this term is that the
requirement that one be “substantially confined” is met when the claimant is restricted to his house
except for medical treatment purposes. The Secretary, citing to Senate Report No. 1745 (June 27,
1960), notes that in passing section 1114(s) Congress intended to provide additional compensation
for veterans who were unable to overcome their particular disabilities and leave the house in order
to earn an income as opposed to an inability to leave the house at all. Mr. Howell does not contest
this interpretation.
To the extent substantial confinement does not include departures for medical purposes, we
agree that the interpretation that the Secretary presents in his supplemental briefing is reasonable and
consistent with statute and regulations. See Jackson, Thompson, and Cropper, all supra.
Accordingly, we hold that leaving one’s house for medical purposes cannot, by itself, serve as the
basis for finding that one is not substantially confined for purposes of SMC-HB benefits, and the
Board’s interpretation of section 1114(s) to preclude the grant of SMC benefits on the basis of Mr.
Howell’s leaving his house in order to attend VA medical appointments was erroneous as a matter
of law.
C. Other Considerations
We also note that the Board erred when it failed to discuss or assess the separate effects of
Mr. Howell’s service-connected and non-service-connected disabilities, and whether, standing alone,
his service-connected disabilities would have warranted the grant of SMC-AA or SMC-HB benefits.
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See Mittleider v. West, 11 Vet.App. 181, 182 (1998) (holding that when claimant has both serviceconnected
and non-service-connected disabilities, Board must attempt to discern the effects of each
disability and, where such distinction is not possible, attribute such effects to the service-connected
disability); Schafrath, supra. The fact that Mr. Howell suffered from both service-connected and
non-service-connected disabilities does not mean that he would not have required support sufficient
to warrant aid and attendance or otherwise been permanently housebound based on his serviceconnected
disabilities alone. Moreover, if is not possible to evaluate separately the effects of each
disability, application of the benefit-of-the-doubt doctrine requires the Secretary to attribute those
inseparable to his service-connected disability. See Mittleider, supra. This issue should be
addressed on remand.
In light of our holding here today and the fact that this matter is being remanded for
readjudication, the Court need not address the various notice-error arguments raised by Mr. Howell.
These purported errors, which were not raised to the Board, can be addressed on remand. See
Maggitt v. West, 202 F.3d 1370, 1377 (Fed. Cir. 2000) (with regard to a claim properly before it,
Court is not compelled to hear legal issues raised to it in the first instance). Moreover, on remand,
Mr. Howell will have the opportunity to present any additional evidence and argument in support
of his claim, including the notice arguments raised to the Court, and any evidence and argument so
presented must be considered. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Court expects
that the Board will provide expeditious treatment of this matter on remand. See 38 U.S.C. § 7112.
III. CONCLUSION
Upon consideration of the foregoing, the February 2, 2004, decision of the Board is SET
ASIDE and the matter is REMANDED for readjudication consistent with this opinion.
SET ASIDE and REMANDED.

Horvath v. Derwinski, No. 90-481

March 7, 2009

UNITED STATES COURT OF VETERANS APPEALS
No. 90-481
ELMER R. HORVATH, APPELLANT,
V.
EDWARD J. DERWINSKI
SECRETARY OF VETERANS AFFAIRS , APPELLEE.
On Appeal from the Board of Veterans’ Appeals
(Submitted February 25, 1991 Decided )
Ronald L. Smith was on the brief for appellant.
Raoul L. Carroll, General Counsel, Barry M. Tapp, Assistant General Counsel, Andrew J.
Mullen, Deputy Assistant General Counsel, and Jacqueline M. Sims were on the brief for appellee.
Before NEBEKER, Chief Judge, and KRAMER and STEINBERG, Associate Judges.
NEBEKER, Chief Judge: This case presents for review a February 15, 1990, decision of the
Board of Veterans’ Appeals (BVA or Board) in which the Board denied appellant’s claim for service
connection for residuals of frostbitten feet. Upon consideration of the record, we conclude that the
Board failed to consider adequately evidence which may warrant service connection for frostbite
injury. Therefore, the Board’s February 15, 1990, decision is vacated and the case is remanded with
direction to award service connection and to determine whether compensable residuals are
manifested.
Appellant served in the United States Army from June 15, 1943, until October 27, 1945. R. at
51. On April 21, 1988, appellant filed a claim for disability compensation benefits from
the Veterans’ Administration (now the Department of Veterans Affairs) (VA). R. at 47. He
claimed that he suffered frozen feet on or about December 7, 1944, while serving in France, and that
he was hospitalized for 21 days in Leige, Belgium. R. at 47. Since that time, according to appellant,
he has experienced constant pain and tingling in his feet. R. at 44. He stated that he has pain when
he walks and that it has become worse over the past several years.
Most of appellant’s medical records were destroyed by a fire at the National Personnel Records
Center in July 1973. The only medical records available were two provided by the Office of the
Surgeon General of the Department of the Army. R. at 23-24. The medical record relevant to
appellant’s frostbite shows that appellant was treated for a “Condition due to reduced temperature:
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Trench Foot, New” in December 1944. R. at 23. Appellant received a VA compensation
examination on February 16, 1989. R. at 28-31. The examining VA physician, Dr. Fisher,
diagnosed appellant to have “[status post] frostbite injury to both feet,” with “no evidence of
neurological or vascular damage . . . . Pain may be residual of frostbite injury.” R. at 29.
The VA Regional Office (RO) denied appellant’s claim in a rating decision dated April 4, 1989.
R. at 47. Service connection was denied on the basis that objective residuals upon which to base a
grant of service connection were not present, although the RO conceded that the veteran had been
treated “for the [frostbite] condition in service.” R. at 33. On appeal, the Board affirmed the
decision of the RO, concluding that the VA examination failed to reveal any objective findings of
residuals of frozen feet. Elmer R. Horvath, BVA 90-04755 (Feb. 15, 1990). The Secretary of
Veterans Affairs (Secretary) contends that appellant has not demonstrated that he incurred permanent
residuals of frostbitten feet in service.
The medical records show that appellant, consistent with his claim for frostbitten feet, received
treatment for such condition in 1944 during his service in Europe. Furthermore, the VA diagnosed
appellant as having had frostbitten feet. The VA examiner, Dr. Fisher, found that appellant
complained of pain and tingling in his feet, that the pain occurs when he walks, and that his feet feel
“slightly cool”. Dr. Fisher diagnosed these symptoms as indicative of post-frostbite injury, and found
the pain of which appellant complained a possible residual of frostbite injury. R. at 28-29. Even in
the absence of official recordation of the incurrence of the injury, appellant, under 38 U.S.C.
§ 1154(b) (formerly § 354(b)), is entitled to a presumption of service connection for frostbite injury
because, based on his statements and existing medical records, such condition is “consistent with the
circumstances, conditions, or hardships” of engagement in combat with the enemy. Since there is
no clear and convincing evidence to rebut this presumption, appellant is entitled to service
connection.
Accordingly, the decision of the BVA is VACATED, and the case is REMANDED with
instruction to grant service connection as to appellant’s post-frostbite injury, and for a determination
of whether appellant manifests compensable residuals under 38 C.F.R. § 4.104, Diagnostic Code
7122 (1991), or, in the alternative, appellant is to be awarded a zero percent rating pursuant to 38
C.F.R. § 4.31 (1991).
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Hood v. Brown, No. 91-714 Order

March 7, 2009

Designated for publication
UNITED STATES COURT OF VETERANS APPEALS
NO. 91-714
HENRY S. HOOD, JR., APPELLANT,
V.
JESSE BROWN,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before NEBEKER, Chief Judge, and KRAMER and IVERS, Judges.
O R D E R
Note: Pursuant to U.S. Vet. App. R. 28(j),
this action may not be cited as precedent.
On consideration of the Secretary’s third cumulative supplemental status report of postremand
proceedings in response to the Court’s June 8, 1994, order, and it appearing that postremand
adjudication of the appellant’s claims is proceeding and, based upon the assurance of counsel that
the Secretary is mindful of his duty to move expeditiously to bring this case to closure, as required
by the Veterans’ Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4646,
4658 (1994), it is
ORDERED, sua sponte, that the portion of the Court’s June 8, 1994, order requiring the
Secretary to file a status report every 60 days is hereby vacated. It is further
ORDERED, sua sponte, that the portion of the Court’s March 2, 1993, opinion retaining
jurisdiction of this appeal is hereby vacated. This action is without prejudice to any timely appeal
that the appellant may file from a final decision of the Board of Veterans’ Appeals, should he
continue to be aggrieved. The Clerk is directed to enter judgment.
DATED: April 28, 1995 PER CURIAM.

Horowitz v. Brown, No. 91-1565

March 7, 2009

A:\HOROWITZ.565
THIS DOCUMENT IS NOT IN THE NORMAL COURT FORMAT
DUE TO BEING COPIED FROM WEST – 5VA217
Barry HOROWITZ, Appellant, No. 91-1565
v.
Jesse Brown, Secretary of Veterans Affairs, Appellee.
United States Court of Veterans Appeals.
Decided June 11, 1993.
Keith D. Snyder, on the brief, for appellant.
James A. Endicott, Jr., Gen.Counsel, David T. Landers, Acting Asst.Gen.Counsel, R. Randall
Campbell, Deputy Asst.Gen.Counsel, and Amanda Linn Cashion, were on the brief, for appellee.
Before MANKIN, HOLDAWAY and IVERS, Associate Judges.
IVERS, Associate Judge:
Barry Horowitz appeals a July 19, 1991, decision of the Board of Veterans’ Appeals (BVA or Board)
denying service connection for Meniere’s syndrome, denying an increased (compensable) evaluation
for epididymitis, and denying entitlement to a total disability rating for purposes of individual
unemployability (IU). BARRY P. HOROWITZ, BVA 91-30011 (July 19, 1991). The Court has
jurisdiction of the case pursuant to 38 U.S.C.A. section 7252(a) (West 1991). for the reasons set
forth below, the Court vacates the decision of the BVA and remands the case for readjudication
consistent with this opinion.
FACTUAL BACKGROUND
Appellant served in the United States Army from December 27, 1973, to May 20, 1983. R. at 1-2,
104. In January 1978, a medical board proceeding noted appellant’s “recurrent chronic epididymitis”
and judged appellant qualified for active duty, but restricted his activities to exclude crawling,
stooping, running, jumping, or marching for more than 15 minutes, strenuous physical activity, and
handling heavy materials. R. at 8. On January 15, 1980, a medical board noted appellant’s “chronic
persistent mild to moderate right hemiscrotal discomfort” and recommended that appellant would
be more effective if he were restricted to sedentary activity. R. at 16. In March 1983, a medical
board noted that appellant was experiencing pain on his right side whenever he engaged in “any type
of physical activity besides bed rest and sitting activities.” R. at 93. The medical board also stated
that he was suffering from bilateral sensory hearing loss secondary to trauma sustained when
observing tank and field artillery fire without hearing protection. IBID. On April 12, 1983, an
Army physical evaluation board found appellant unfit for duty and recommended that he
be”[permanently retired from the service." R. at 102. The Physical Evaluation Board indicated that
appellant had bilateral hearing loss (rated as 20% disabling)neuralgia of the left ilio-inguinal nerve
secondary to repeated acute episodes of epididymitis with chronic pain and intermittent swelling in
the scrotum (rated under Diagnostic Code (DC) 7599-8730 as 10% disabling), and status post right
orchiectomy (although the orchiectomy was actually on the left side) (rated as 10% disabling.)
IBID.
On May 12, 1983, appellant applied to a Veterans' Administration (now Department of Veterans
Affairs)(VA) regional office (RO) for service connection for hearing loss and for epididymitis. R.
at 110-11. On November 16, 1983, the RO granted service connection for bilateral hearing loss
(rated as 20% disabling) and for status post left orchiectomy (rated as 10% disabling). R. at 128.
However, the RO denied service connection for right epididymitis because an August 24, 1983,
examination failed to reveal the presence of that condition. IBID. After appellant filed a Notice of
Disagreement (NOD) with the November 1983 rating decision, R. at 129, the RO granted service
connection for right epididymitis (rated as 10% disabling by analogy to a DC for scars of the skin
that are superficial, tender, and painful on objective demonstration, 39 C.F.R. section 4.118, DC
7804 (1992)). R. at 137. In April 1985 the BVA increased to 20% the disability rating for
appellant's right epididymitis. R. at 147.
On July 5, 1985, appellant sent an "Application for Increased Compensation Based on
Unemployability," seeking a total rating for IU purposes. R. at 150. On August 19, 1985, the RO
denied a total disability rating for IU purposes. R. at 152. On August 25, 1986, the BVA also
denied a total disability rating for IU purposes on the basis that "appellant's service-connected
disabilities are not so incapacitating as to prevent him from obtaining and maintaining some for of
substantially gainful employment." R. at 165. On August 29, 19896, appellant resubmitted his
claim for a total rating for IU purposes. R. at 166. Following the RO's decision that no change was
warranted in the prior decision, R. at 185, appellant appealed to the BVA on this issue on October
14, 1987. R. at 194. On November 30, 1988, appellant's service representative requested that
appellant also be considered for service connection for Meniere's syndrome ("a disorder of the
membranous labyrinth of the inner ear that is marked by recurrent attacks of dizziness, tinnitus, and
deafness." WEBSTER'S MEDICAL DESK DICTIONARY 422 (1986)[hereinafter WEBSTER'S]).
R. at 213. On January 27, 1989, the BVA remanded the matter for the purpose of conducting a field
investigation of the effect of appellant’s service-connected disabilities on his industrial adaptability.
R. at 216. On August 25, 1989, the RO denied service connection for Meniere’s syndrome. R. at
262. In addition, the RO reduced the rating for appellant’s service-connected bilateral hearing loss
to 0% disabling and reduced the rating for right epididymitis (still rated under DC 7599-7804) to 0%
disabling on the basis that any pain that appellant was suffering was the result of his post left
orchiectomy and not the right epididymitis, which was supposedly “cured.” IBID. The RO also
denied a total rating for IU purposes. IBID.
In April 1990 appellant’s service representative wrote to the BVA, seeking a new and impartial
evaluation of appellant’s conditions because of appellant’s continuing inability to obtain or maintain
gainful employment. R. at 294. On June 19, 1990, the BVA remanded the case for further
evaluation. R. at 296. On November 8, 1990, appellant testified at a personal hearing. R. at 327-28.
On January 11, 1991, the hearing officer denied service connection for Meniere’s syndrome. R. at
343. On February 5, 1991, the RO denied a total rating for IU purposes. R. at 372. The BVA’s July
19, 1991, decision continued the denial of service connection for Meniere’s syndrome, denied an
increased (compensable) rating for right epididymitis, and denied a total rating for IU purposes.
HOROWITZ, BVA 91-30011, at 8-9.
ANALYSIS
This appeal presents several issues: whether the Board’s denial of service connection for Meniere’s
syndrome was clearly erroneous; whether the Board’s denial of an increased (compensable) rating
for service-connected right epididymitis was clearly erroneous; and whether the Board’s denial of
a total rating for IU purposes was clearly erroneous.
The Court reviews the BVA’s finding under the “clearly erroneous” standard of review. 38 U.S.C.A.
section 7261(a)(4)(West 1991); GILBERT V. DERWINSKI, 1 Vet.App. 49, 53 (1990). Under the
“Clearly erroneous” standard of review, “if there is a ‘plausible’ basis in the record for the factual
determinations of the BVA, even if this Court might not have reached the same factual
determinations, [the Court] cannot overturn them.” GILBERT, SUPRA. The Board must base its
decisions on “all evidence and material of record,” 38 U.S.C.A. Section 7104(a)(West 1991), and
must provide a “written statement of [its] findings and conclusions, and the reasons or bases for
those findings and conclusions, on all material issues of fact and law presented on the record,” 38
U.S.C.A. section 7104(d)(1)(West 1991). SEE DOUGLAS V. DERWINSKI, 2 Vet.App. 435, 438-
39 (1992)(en banc); GILBERT, 1 Vet.App.. at 56-57. Pursuant to these statutory requirements, the
Board must “account for the evidence which it finds to be persuasive or unpersuasive,” and provide
reasons or bases for rejecting evidence submitted by or on behalf of the claimant. GILBERT, 1
Vet.App. at 57. The Court will apply this standard of review, in turn, to the Board’s disposition of
each of appellant’s claims.
A. MENIERE’S SYNDROME
Appellant argues that his current Meniere’s syndrome is service connected and that he actually
manifested symptoms while he was in service. Specifically, he attributes the Meniere’s syndrome
to an incident involving a tank gun muzzle blast in 1974, when he was not wearing hearing
protectors. R. at 328. In fact, an Army medical board found that he had bilateral hearing loss as a
result of the trauma associated with the tank gun muzzle blast. R. at 93. Appellant also has
submitted numerous statements from lay persons, including his wife (R. at 221-26), service
colleagues (R. at 310-15), a friend (R. at 230), and a neighbor (R. at 326), that he experienced
dizziness, loss of balance, hearing trouble, and displayed a tendency to stumble or fall both during
service and many years after service. Of particular interest is a diagnosis appearing on VA
chronological care records that appellant had post traumatic Meniere’s syndrome and discussing
appellant’s account of the tank gun muzzle blast during service. R. at 212. In its July 1991 decision,
however the Board stated that the service medical records do not include any definite diagnosis of
Meniere’s syndrome. HOROWITZ, BVA 91-3011, at 4-5. The Board stated that the Meniere’s
syndrome was first diagnosed in 1988, five years after service, and that appellant’s lay statements
concerning symptomatology are not supported by the medical evidence. HOROWITZ, BVA 91-
3011, at 5.
The Board’s rejection of the lay statements does not provide adequate reasons or bases. When
seeking to establish service connection, a claimant is not limited solely to medical records. Under
38 U.S.C.A. section 1154(a)(West 1991), the Secretary of Veterans Affairs (Secretary) is directed
to include in the regulations concerning service connection of disabilities that
in each case where a veteran is seeking service[]connection for any disability due
consideration shall be given to the places, types, and circumstances of such veteran’s service
record, the official history of each organization in which such veteran served, such veteran’s
medical records, and ALL PERTINENT MEDICAL AND LAY EVIDENCE. (Emphasis
added.)
Under 38 C.F.R. section 3.303(a) (1992),
Each disabling condition shown by a veteran’s service records, or for which he seeks a
service connection[,] must be considered on the basis of the places, types of circumstances
of his service as shown by service records, the official history of each organization in which
he served, his medical records AND ALL PERTINENT MEDICAL AND LAY EVIDENCE.
(Emphasis added.)
Service connection may be established through competent lay evidence, not medical records alone.
SMITH V. DERWINSKI, 2 Vet.App. 147, 148 (1992); CARTRIGHT V. DERWINSKI, 2 Vet.App.
24, 25 (1991); BUT SEE ESPIRITU V. DERWINSKI, 2 Vet.App. 492, 494 (1992)(law witness is
not capable of offering evidence requiring medical knowledge). VA regulations further provide for
the situation where service medical records do not provide a diagnosis of a disability. Under 38
C.F.R. section 3.303(d) (1992).
Service connection may be granted for any disease diagnosed after discharge, WHEN ALL
THE EVIDENCE, INCLUDING THAT PERTINENT TO SERVICE, establishes that the
disease was incurred in service. Presumptive periods are not intended to limit service
connection to diseases so diagnosed when the evidence warrants direct service connection.
The presumptive provisions of the Statute and Department of Veterans Affairs regulations
implementing them are intended as liberalizations applicable when the evidence would not
warrant service connection without their aid. (Emphasis added.)
Meniere’s syndrome is “marked by recurrent attacks of dizziness, tinnitus, and deafness.”
WEBSTER’s at 422. Appellant’s lay evidence and post-discharge diagnoses, therefore, relate
directly to the issue of symptoms manifested both during service, immediately after service, and
after the definite diagnosis of Meniere’s syndrome.
In CONNOLLY V. DERWINSKI, 1 Vet.App. 566, 567 (1991), the Court considered an analogous
situation where a veteran had experienced post-separation pain and discharge in his left ear,
headaches, and hearing loss. In that case, the Board ultimately concluded that the veteran’s
“Meniere-like” symptoms were unrelated to his in-service ear infection. ID., 1 Vet.App. at 569. The
Court held, however, that the Board could not rely on merely “generally accepted principles” to
support its conclusion. IBID. In this case, the Board did not rely on generally accepted medical
principles; the Board stated that its finding was based on the lack of support in the medical evidence.
HOROWITZ, BVA 91-30011, at 5. Nevertheless, the reasoning in CONNOLLY also applies to the
situation at bar. The decision in CONNOLLY was based on the statutory requirement that the Board
provide adequate reasons or bases for medical conclusions. ID., 1 Vet.App. at 569; SEE 38 U.S.C.A.
section 7104(d)(1); MURPHY V. DERWINSKI, 1 Vet.App. 78, 81 (1990); SEE ALSO COLVIN
V. DERWINSKI, 1 Vet.App. 171, 175 (1991). In this case as well, the Board is obligated to provide
adequate reasons or bases for its findings of fact.
The Board did not ignore the lay evidence; however, the Board did not provide adequate reasons or
bases for its apparent rejection of the evidence, and thus, the Court is unable to discharge its
statutory obligation to review this appeal. SEE 38 U.S.C.A. sections 7104(d)(1), 7252 (West 1991);
GILBERT, 1 Vet.App. at 57. The Board’s discussion sheds no light on the reasons why it concluded
that symptoms described by law witnesses and post-discharge diagnoses do not show the presence
of Meniere’s syndrome while in service. A statement that the service medical records do not support
a diagnosis of in-service Meniere’s syndrome, in the face of so much evidence of consistent
symptomatology, is insufficient to inform a claimant of the basis for a decision or to allow judicial
review. SEE GILBERT, 1 Vet.App. at 57. On remand, the Board must provide adequate reasons
or bases for its findings.
The Board also failed to seek a medical opinion as to whether appellant’s current Meniere’s
syndrome is related to the symptoms manifested during service and since separation from service.
“[If an examination report] does not contain sufficient detail, it is incumbent upon the rating board
to return the report as inadequate for evaluation purposes.” 38 C.F.R. section 4.2 (1992). Where
there is a reasonable possibility that a current condition is related to or is a residual of a condition
experienced in service, the Board should seek “a medical opinion as to whether [the claimant's]
current disabilities are in any way related to or a residual of those experienced in service.”
WITHERSPOON V. DERWINSKI, 2 Vet.App. 4 (1991)(per curiam order); SEE WILSON V.
DERWINSKI, 2 Vet.App. 16, 21 (1991); MOORE V. DERWINSKI, 1 Vet.App. 401, 405-06
(1991).
In his brief, the Secretary argues that the case should be remanded for the Board to provide an
adequate discussion of the “benefit-of-the-doubt” doctrine. Secretary’s Br. at 15-16. In its July
1991 decision, the BVA merely stated: “The evidence for and against an allowance of either of the
claims is not so evenly balanced as to raise a reasonable doubt.” HOROWITZ, BVA 91-3011, at
8. This rote recitation is an insufficient statement that the benefit of the doubt does not apply. SEE
LEDFORD V. DERWINSKI, 3 Vet.App. 87, 90 (1992); WEBSTER V. DERWINSKI, 1 Vet.App.
155, 159-60 (1991); WILLIS V. DERWINSKI, 1 Vet.App. 63, 65-66 (1990); SEE ALSO
GILBERT, 1 Vet.App. at 58. On remand, the Board must discuss whether the numerous lay
statements and appellant’s statements regarding in-service symptoms, when coupled with the postservice
diagnoses of “post traumatic Meniere’s syndrome,” result in “an approximate balance of
positive and negative evidence” an the issue of service connection of Meniere’s syndrome, thus
triggering application of the benefit of the doubt.
B. RATING FOR RIGHT EPIDIDYMITIS
In reducing the rating for appellant’s service-connected right epididymitis from 20% to
noncompensable, the Board failed to discuss the relevant provisions of VA regulations. Appellant
is correct when he states that the Board mischaracterized the issue as a claim for an increase in a
rating. SEE PEYTON V. DERWINSKI, 1 Vet.App. 282, 286 (1991) (“This is a rating reduction
case, not a rating increase case.:) The 20% disability rating for chronic right epididymitis went into
effect on May 20, 1983. R. at 148. The rating was reduced on August 25, 1989, effective November
1, 1989. R. at 262. Because the rating had been in effect for more than six years, Sections 3.344(a)
and (b) (1992) apply. SEE 38 C.F.R. section 3.344© (1992).
Under 38 C.F.R. section 3.344(a),
Rating agencies will handle cases effected by change of medical findings or diagnosis, so
as to produce the greatest degree of stability of disability evaluations consistent with the laws
and Department of Veterans Affairs regulations governing disability compensation and
pension. It is essential that THE ENTIRE RECORD OF EXAMINATIONS AND THE
MEDICAL-INDUSTRIAL HISTORY BE REVIEWED TO ASCERTAIN WHETHER THE
RECENT EXAMINATION IS FULL AND COMPLETE, including all special examinations
indicated as a result of general examination and the entire case history…. Examinations less
full and complete than those on which payments were authorized or continued will not be
used as a basis for reduction. Ratings on account of diseases subject to temporary or
episodic improvement, e.g., manic depressive or other psychotic reaction, epilepsy,
psychoneurotic reaction, arteriosclerotic heart disease, bronchial[] asthma, gastric or
duodenal ulcer, many skin diseases, etc., will not be reduced on any one examination, except
in those instances where all the evidence of record clearly warrants the conclusion that
sustained improvement has been demonstrated. Ratings on account of diseases which
become comparatively symptom[-] free (findings absent) after prolonged rest … will not be
reduced on examinations reflecting the results of bed rest. Moreover, though material
improvement in the physical or mental condition is clearly reflected[,] the rating agency will
[consider] whether the evidence makes it reasonably certain that the improvement will be
maintained under the ordinary conditions of life. (Emphasis added.)
At no time did the Board discuss the applicability of this regulatory provision. Nor did the Board
discuss whether the recent examinations were as “full and complete” as the examination granting
an increased rating.
The Secretary argues that the rating board explicitly invoked the provisions of 38 C.F.R. section
3.105(e) (1992) in reducing the rating. Secretary’s Br. at 12. However, compliance with one
regulatory provision does not excuse noncompliance with another relevant regulatory provision; the
Board is “required to apply ALL relevant statutes and regulations appropriate to the particular case
before it.” BROWDER V. DERWINSKI, 1 Vet.App. 204, 205 (1991) (emphasis added);
DOFFLEMYER V. DERWINSKI, 2 Vet.App. 277, 280 (1992); AKLES V. DERWINSKI, 1
Vet.App. 118 (1991); PAYNE V. DERWINSKI, 1 Vet.App. 85 (1990); JOLLEY V. DERWINSKI,
1 Vet.App. 37 (1990); SEE ALSO MORTON V. RUIZ, 415 U.S. 199, 235, 94 S.Ct. 1055, 1074, 39
L.Ed.2d 270 (1974) (“Where the rights of individuals are affected, it is incumbent upon agencies to
follow their own procedures.”). “The Court is compelled to ‘hold unlawful and set aside’ a rating
action which resulted from the failure to follow applicable statutory or regulatory commands. such
an action is necessarily ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law’ and therefore void AB INITIO.” DOFFLEMYER, 2 Vet.App. at 281 (quoting 38 U.S.C.A.
Section 7261(a)(3) (West 1991)); SEE ALSO SCHAFRATH V. DERWINSKI, 1 Vet. App. 589,
595-96 (1991) (“When the issue raised is a rating reduction and the Court determines that the
reduction was made without observance of law,” the Court will reinstate the prior rating.) On
remand, the Board must discuss the applicability of Sections 3.344(a), (b) (rating reduction
procedure in cases where doubt remains), and © and provide adequate reasons or bases for its
findings of fact.
Appellant also argues that the VA used the wrong diagnostic code used in evaluating his conditions.
Br. at 15-16. “A determination of whether the appropriate diagnostic code was selected is a question
of law,” which the court reviews de novo. MCGRATH V. BROWN, 5 Vet.App. 57, 59 (1993). The
court may set aside a conclusion of law that is “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law….” 38 U.S.C.A. section 7261(a)(3)(A). We address the issue
of the selection of a proper diagnostic code in the context of the appeal of the BVA’s July 19, 1991,
decision, not the earlier rating or BVA decision.
While in service, the Physical Evaluation Board had rated appellant under DC 7599-8730 for
“neuralgia of the left ilio-inguinal nerve secondary to repeated acute episodes [of] epididymitis with
chronic pain and intermittent swelling.” R. at 102. Neuralgia is “acute paroxysmal pain radiating
along the course of one or more nerves usually] without demonstrable changes in the nerve
structure.” WEBSTER’s at 471. However, on March 12, 1984, the RO granted service connected
for appellant’s right epididymitis under “scars, superficial, tender and painful on objective
demonstration.” 38 C.F.R. section 4.118, DC 7599-7804; SEE ALSO 38 C.F.R. section 4.20
providing for analogous ratings for unlisted conditions), 4.27 (providing for rating codes for unlisted
conditions) (1992). On September 24, 1986, the RO decided that appellant’s condition did not
warrant a change in the 20% disability rating for the epididymitis. R. at 174. On October 8, 1986,
appellant sent an NOD, styled as a “Notice of Appeal,” regarding the rating for epididymitis and
requesting that a rating be established for his right testicle condition. R. at 176. On October 14,
1987, he appealed to the BVA on the basis that he had been rated for a condition (neuralgia) that was
not “close to” his epididymitis. R. at 198. On January 27,1989, the BVA remanded the matter for
further development as to the effect of appellant’s service-connected disabilities on his industrial
adaptability. R. at 216. The RO’s August 1989 rating decision, reducing the disability rating for
right epididymitis to 0%, continued to rate appellant under DC 7599-7804
It does not appear that the RO or the BVA subsequently adjudicated, or even considered, the issue
of the selection of a proper DC. At no time has the Board provided reasons or bases for its selection
of DC 7599-7804 as opposed to the diagnostic code used by the Army in its evaluation of appellant’s
condition. “The lack of reasons or bases for the Board’s decision favoring one diagnostic code over
others ‘frustrates effective judicial review.’” LENDENMANN V. PRINCIPI, 3 Vet. App. 345, 350
(1992) (QUOTING CAMP V. PITTS, 411 U.S. 138, 142, 93 S.Ct. 1241, 1244,. 36 L.Ed.2d 106
(1973); SEE SUTTMAN V. BROWN, 5 Vet.App. 127, 134 (1993) (requirement that Board consider
and discuss selection of diagnostic code is heightened where the disability has been rated as an
unlisted condition by analogy to another condition); SEE ALSO PERNORIO V. DERWINSKI, 2
Vet.App. 625, 629 (1992) (remanding for Board to provide reasons or bases for the various
diagnostic codes used by VA throughout its adjudication process). On remand, the Board must
discuss the August 1989 rating decision’s consideration of appellant’s condition under DC 7599-7804
and must address, supported by adequate reasons or bases, the issue of the selection of a diagnostic
code in the August 1989 RO decision.
However, the Court lacks authority to review the March 1984 RO rating decision originally rating
appellant’s right epididymitis under DC 7599-7804 or the September 1986 RO decision with which
he expressed disagreement concerning the diagnostic code. SEE RUSSELL V. PRINCIPI 3
Vet.App. 310, 315 (1992) (it would be inconsistent with Court’s jurisdiction for it to conduct a ‘full
review’ of previous decisions over which it does not have plenary jurisdiction). Appellant could not
have filed an NOD that could have conferred jurisdiction upon the court with respect to either the
March 1984 or the September 1986 RO decision. SEE Veterans’ Judicial Review Act, Pub.L. No.
100-687, section 402, 102 Stat. 4105, 4122 (1988) (found at 38 U.S.C.A. section 7251 note (West
1991)) (Court does not have jurisdiction unless an appellant has filed a valid NOD on or after
November 18, 1988); 38 U.S.C.A. section 7105(b)(1) (West 1991) (NOD must be “filed within one
year from the date of mailing of notice of the result of the initial review or determination”); 38
C.F.R. section 20.302 (1992); PRENZLER V. DERWINSKI, 928 F.2d 392 (Fed.Cir. 1991).
appellant’s recourse is to seek reconsideration of those decisions on the basis of clear and
unmistakable error.
Appellant also contends that the RO deprived him of procedural due process when it reduced the
epididymitis rating without affording him an opportunity for a pre-reduction hearing. Br. at 16-19.
However, appellant raises the “due process” argument for the first time here in this Court. A
claimant seeking to appeal an issue to the Court must first obtain a FINAL BVA decision on that
issue. SEE 38 U.S.C.A. sections 7266(a), 7252(a) (West 1991); SEE ALSO ROSALINAS V.
BROWN 5 Vet.App. 1, 2 (1993) (claim of constitutional violation was not ripe for consideration by
court where BVA had not had the opportunity to express a view as to the constitutionality of 38
U.S.C.A. section 107(b) as applied to appellant); SAUNDERS V. BROWN, 4 Vet.App. 320, 326
(1993) (Court remanded constitutional claim where it was intertwined with factual questions that
had not been developed for review). “Review in the Court shall be on the record of proceedings
before the Secretary and the Board.” 38 U.S.C.A. section 7252(b) (West 1991). In this case, the
veteran has never before submitted the “due process” issue to the BVA. Thus, he has not exhausted
his administrative remedies, and the Court will not preempt the BVA and address the merits of this
claim. SEE HERZOG V. DERWINSKI, 2 Vet.App. 502, 503 (1992); BRANHAM V.
DERWINSKI, 1 Vet.App. 93, 94 (1991); MOKAL V. DERWINSKI, 1 Vet.App. 12, 15 (1990).
C. INDIVIDUAL UNEMPLOYABILITY
The Court lacks jurisdiction to consider appellant’s IU claim. He submitted an IU claim in July
1985. R. at 151. On August 25, 1986, the Board denied a total disability rating for IU purposes.
R. at 165. Appellant submitted a new IU claim on August 29, 1986. R. at 169. SEE SUTTMAN,
5 Vet.App. at 137, (where a similar claim for a total disability rating for IU purposes has been
previously and finally denied, a repeat claim for a total disability rating for IU purposes is a new
claim). On October 7, 1987, the RO sent appellant a Statement of the Case (SOC) explaining that
there was no new and material evidence concerning the IU claim. R. at 192. On October 14, 1987,
appellant appealed to the BVA. R. at 194. On January 27, 1989, the BVA remanded the IU claim
for further development. On June 19, 1990, the BVA remanded the IU claim again. R. at 296. On
July 19, 1991, after the requested development had been completed, the Board denied a total
disability rating for IU purposes. HOROWITZ, BVA 91-30011, at 9. It is this claim, submitted to
the VA in August 1986, that is currently on appeal to the Court. Recently, the Court held in
HAMILTON V. BROWN, 4 Vet.App. 528, 538 (1993) (consolidated with CONTRERAS V.
BROWN, and with POWELL V. BROWN, (en banc), that “where the BVA remands to an RO for
further development and readjudication a claim previously decided by the RO and properly appealed
to the BVA …, an expression of disagreement with a subsequent RO readjudication on remand
cannot be an NOD.” In this case, appellant submitted an IU claim in August 1986, and the Board
remanded the matter to the RO for further development and readjudication in January 1989 and in
June 1990. Therefore, the proper reference point for determining if this Court has jurisdiction over
the claim is October 14, 1987, when appellant filed an appeal to the BVA, expressing disagreement
with an October 7, 1987, SOC denying his IU claim. This October 14, 1987, expression of
disagreement does not confer jurisdiction upon this Court. SEE Veterans’ Judicial Review Act,
SUPRA; 38 U.S.C.A. section 7105(b)(1); 38 C.F.R. section 20.302; PRENZLER, SUPRA.
However, the Court’s decision regarding the IU claim does not preclude appellant from filing a new
IU claim with VA.
Appellant also argues that the BVA’s August 1986 decision denying a total rating for IU purposes
should be reversed because of “clear error.” Br. at 21. However, appellant raises the “clear and
unmistakable error” argument for the first time here in this Court. A claimant seeking to appeal an
issue to the Court must first obtain a FINAL BVA decision on that issue, SEE 38 U.S.C.A. sections
7266(a), 7252(a). “Review in the Court shall be on the record of proceedings before the Secretary
and the Board.” 38 U.S.C.A. section 7252(b). In this case, the veteran has apparently never before
submitted the issue of “clear and unmistakable error” to the BVA. SEE RUSSELL, SUPRA (“clear
and unmistakable error” issue must have been adjudicated by the BVA first before the Court may
review the issue). Thus, he has not pursued this issue before the administrative agency, and the
Court will not preempt the BVA and address the merits of this claim. SEE HERZOG, SUPRA;
BRANHAM, SUPRA; MOKAL, SUPRA.
CONCLUSION
For the reasons stated above, the Court VACATES the July 19, 1991, decision of the BVA and
REMANDS the case for readjudication consistent with this opinion.

Horne v. West, No. 96-708

March 7, 2009

UNITED STATES COURT OF VETERANS APPEALS
NO. 96-708
DEANE E. HORNE, APPELLANT,
V.
TOGO D. WEST, JR.,
ACTING SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before NEBEKER, Chief Judge, and KRAMER and IVERS, Judges.
O R D E R
On December 16, 1997, the Court dissolved a stay in this case based upon the issuance of
a decision by the U.S. Court of Appeals for the Federal Circuit in Epps v. Gober, 126 F.3d 1464
(Fed. Cir. 1997). That decision affirmed this Court’s decision in Epps v. Brown, 9 Vet.App. 341
(1996). On January 13, 1998, the appellant moved to reinstate the stay pending a decision by the
U.S. Supreme Court on a petition for certiorari filed in the Epps case. As this Court noted in Tobler
v. Derwinski, 2 Vet.App. 8, 11 (1991), any legal interpretations, conclusions, or rulings contained
in a precedential decision are the law of the jurisdiction from the date of the decision unless or until
overturned by a court of competent jurisdiction. Upon consideration of the foregoing, it is
ORDERED that the appellant’s motion to reinstate the stay of proceedings is denied. The
appellant’s brief is due within 30 days after the date of this order.
DATED: February 5, 1998 PER CURIAM.

Hood v. Brown, No. 91-714 decision

March 7, 2009

UNITED STATES COURT OF VETERANS APPEALS
No. 91-714
HENRY S. HOOD, JR., APPELLANT,
V.
JESSE BROWN,
SECRETARY OF VETERANS AFFAIRS , APPELLEE.
On Appeal from the Board of Veterans’ Appeals and on
Appellee’s Motion for Summary Affirmance
(Decided March 2, 1993 )
Henry S. Hood, Jr., pro se.
James A. Endicott, Jr., General Counsel, David T. Landers, Acting Assistant General Counsel,
Thomas A. McLaughlin, Deputy Assistant General Counsel, and John D. Lindsay, Jr. were on the
pleadings for appellee.
Before NEBEKER, Chief Judge, and KRAMER and IVERS, Associate Judges.
NEBEKER, Chief Judge: This appeal presents for review a January 3, 1991, Board of Veterans’
Appeals (BVA or Board) decision which denied appellant an increased rating to 100% for his manicdepressive
psychosis, currently rated as 30% disabling. Upon consideration of the pleadings and the
record on appeal, the Court concludes that the Board’s statement of reasons or bases for continuing,
rather than increasing, appellant’s 30% disability rating was inadequate, and that the Board failed to
consider appellant for individual unemployability under 38 U.S.C.A. § 1521 (West 1991). The
Board’s decision is vacated, and the case is remanded for further proceedings.
Appellant served in the armed services from August 1951 to March 1952. From 1978 to
1989, he was rated as 10% disabled for his service-connected manic depressive psychosis (bipolar
disorder). In 1989, he applied for an increase and submitted a hospital report which showed that he
was hospitalized from April 6 through April 20, 1989, for treatment for “bipolar disorder, mixed in
acute exacerbation.” R. at 20. The report noted that appellant was receiving supplemental security
income and worked as a salesman on weekends for a patio company. Id. The Regional Office (RO)
denied an increase. R. at 23. He subsequently appealed that decision and requested a Department
of Veterans Affairs (formerly Veterans’ Administration) (VA) psychiatric examination. The VA
examiner, Dr. O. Aniline, diagnosed appellant with a major psychiatric condition “consistent with
manic depressive illness” and noted that appellant is “not able to work or maintain any kind of part2
time work.” R. at 35-36. Based on Dr. Aniline’s examination and the 1989 hospitalization report,
the RO increased appellant’s rating to 30%. He appealed that decision to the Board.
The Board took note of the hospital report and the VA examination and concluded, despite
Dr. Aniline’s statement that appellant was unable to work, that he “can function normally at times.”
Henry S. Hood, Jr., BVA 91-00373, at 4 (Jan. 3, 1991) [hereinafter BVA decision].
In Gilbert v. Derwinski, 1 Vet.App. 49 (1990), the Court held that 38 U.S.C.A. § 7104(d)(1)
(West 1991) requires that
the BVA articulate with reasonable clarity its “reasons or bases” for
decisions, and in order to facilitate effective judicial review, the
Board must identify those findings it deems crucial to its decision and
account for the evidence which it finds to be persuasive or
unpersuasive.
Gilbert, 1 Vet.App. at 57. The Board is obligated to “explain, in the context of the facts presented,
the rating criteria used in determining the category into which the veteran’s symptoms fall.”
Shoemaker v. Derwinski, 3 Vet.App. 248, 253 (1992). See 5 U.S.C.A. § 557 (West 1991); Intern.
Longshoremen’s Ass’n v. National Mediation, 870 F.2d 733 (D.C. Cir. 1989) (Board must articulate
reasons for decisions in a way to enable reviewing court to discern basis for Board’s actions);
N.L.R.B. v. Clement-Blythe Companies, 415 F.2d 78 (1969) (Board charged with duty of stating
reasons for conclusions). Here, the Board did not provide reasons or bases to explain why appellant’s
impairment is “definite” and not “considerable,” “severe,” or “total,” see 38 C.F.R. § 4.132 (1992);
it simply concluded that “the current rating, which contemplates definite social and industrial
impairment, is seen as adequately encompassing the symptomatology displayed.” BVA decision at
4. Accordingly, the case must be remanded for the Board to explain why appellant’s symptoms do
not fit the criteria for a higher rating. See Jones v. Principi, 3 Vet.App. 396, 399 (1992).
We note, however, that the nature of the governing regulation might make it difficult for the
Board to supply such a statement. Section 4.132 provides the following rating descriptions:
100% rating: Active psychotic manifestations of such extent,
severity, depth, persistence or bizarreness as to produce total social
and industrial inadaptability.
70% rating: With lesser symptomatology such as to produce severe
impairment of social and industrial adaptability.
50% rating: Considerable impairment of social and industrial
adaptability.
30% rating: Definite impairment of social and industrial adaptability.
10% rating: Mild impairment of social and industrial adaptability.
0% rating: Psychosis in full remission.
3
38 C.F.R. § 4.132, schedule 9210, (1992) (emphasis added).
The terms “total”, “severe”, “considerable”, and “mild” are all quantitative in nature; they
describe the degree to which a veteran’s psychotic disorder affects social and industrial adaptability.
These terms are in keeping with the general policy of the rating schedule:
The percentage ratings represent as far as can practicably be
determined the average impairment in earning capacity resulting
from such diseases and injuries and their residual conditions in civil
occupations.
38 C.F.R. § 4.1 (1992) (emphasis added). The term “definite”, on the other hand, is qualitative in
nature. To say that a veteran has “definite” impairment of social and industrial adaptability is to say
that the veteran is unmistakably impaired. It does not describe the degree of the impairment as the
other quantitative terms do. For example, a veteran who is “mildly” or “totally” impaired is also
“definitely” impaired, because the characteristics which constitute a psychotic disorder are, without
doubt, present.
At the Court’s request, the Secretary filed a supplemental memorandum on this issue. The
Secretary responded, noting that no department directive exists on how the terms are applied, that
“the use of ‘definite’ for a 30-percent rating implies a degree of impairment of social and industrial
adaptability approximately midway between ‘mild’ and ‘considerable’ impairment, the criteria for 10-
percent and 50-percent ratings, respectively.” Supp. Br. of Appellee at 11 (emphasis added).
Since the Secretary’s General Counsel has been unable to offer any way to articulate a
reasoned basis for describing a “definite” impairment other than midway between “considerable” and
“mild,” it is unlikely that the Board will find it easy to supply reasons or bases. Both “considerable”
and “mild” quantify degrees of impairment. “Considerable” means “rather large in extent or degree.”
See WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY (1986). “Mild” means “moderate in action
or sensuous effect.” Id. “Definite,” according to WEBSTER’S, is, for our purposes, incapable of a
middle ground between the two, unless as Humpty Dumpty declared, “When I use a word, it means
just what I choose it to mean — neither more nor less.” LEWIS CARROLL, THROUGH THE LOOKING
GLASS (1865). WEBSTER’S, supra, defines “definite” as “real, actual” or “marked by absence of the
. . . doubtful.” Listed as a synonym is “explicit”, which in turn is defined as “externally visible:
clearly observable.” None of the meanings of “definite” or its synonym “explicit” connotes a
quantifiable degree. Cf. Rowland v. California Men’s Advisory Council, No. 91-1188 (U.S., Jan. 12,
1993) (Dictionary Act, 1 U.S.C.A. § 1 (West 1991), requires application of ordinary meaning).
Accordingly, we are unable to accept the Secretary’s argument that the statutory “reasons or
bases” requirement of section 7104(d)(1) can be met by the ipse dixit that “definite” describes an
unarticulated degree of impairment lying somewhere between “mild” and “considerable.” To put it
another way, the Board could hardly comply with the reasons or bases requirement by simply stating
4
that the degree of impairment lies at the midpoint between 50% and 10%. That is the ultimate
conclusion and must be justified by a clear statement of reasons or bases and not by the equivalent
of “because I say so.”
Although the term “definite” may have been intended to describe a condition that is more
than “mild,” but less than “considerable,” we observe that the Board, rather than the General
Counsel, should be given an opportunity to provide reasons or bases for its decision. In doing so,
the Board is free to construe the term “definite” in section 4.132 in a way that quantifies the degree
of impairment and not the mere fact that impairment exists.
In his memorandum, the Secretary points out that 38 U.S.C. § 7252(b) (West 1991) provides:
Review in the Court shall be on the record of proceedings before the
Secretary and the Board. The extent of the review shall be limited to
the scope provided in section 7261 of this title. The Court may not
review the schedule of ratings for disabilities adopted under section
1155 of this title or any action of the Secretary in adopting or revising
that schedule.
We are not, however, reviewing the “schedule of ratings.” Obviously, the statute forbids the Court
from deciding, for example, that “severe” social and industrial inadaptability should be given only
a 50% rating. The Court does, however, have jurisdiction to review whether the Secretary has acted
in accordance with procedure required by law. 38 U.S.C.A. § 7261 (West 1991). The Board is
statutorily mandated to provide a statement of reasons or bases for its decision. If the Board is
unable to do so because of a regulation’s syntax, then it may be necessary for the Secretary to change
that regulation by amendment or interpretation. The Court is not reviewing the schedule of
percentage ratings or the percentages prescribed by that schedule, but requiring that the terms used
in describing each rating be capable of validation, as required by section 7104(d)(1), supra.
The Court further finds error in the Board’s failure to consider appellant for individual
unemployability under 38 U.S.C.A. § 1521, given a doctor’s observation in the record that appellant
was “not able to work or maintain any kind of part-time work.” R. at 36. See E.F. v. Derwinski, 1
Vet.App. 324, 326 (1991) (duty to assist extends liberal reading to include issues raised in all
documents submitted prior to the BVA decision); see also 38 C.F.R. § 4.16(a) and (b).
Accordingly, the Court retains jurisdiction, vacates the Board’s decision, and remands the
case for the Board to provide a statement of reasons and bases, to detail how the term “definite” can
be applied in a quantitative manner, and to apply 38 U.S.C.A. § 1521.

Hood v. Brown, No. 91-714

March 7, 2009

Designated for publication
UNITED STATES COURT OF VETERANS APPEALS
No. 91-714
HENRY S. HOOD, JR., APPELLANT,
V. VA FIL NO. 16 765 438
JESS BROWN,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before NEBEKER, Chief Judge, and KRAMER and IVERS, Judges.
O R D E R
On March 2, 1993, the Court remanded this matter to the Board of Veterans’ Appeals (BVA),
but retained jurisdiction. The BVA remanded the case to the VA Regional Office (VARO) on March
15, 1994. The VARO was to conduct further evidentiary development of the appellant’s claim and
to readjudicate the claim. On August 8, 1994, pursuant to the Court’s order to submit a status report,
counsel for the Secretary filed a supplemental administrative status report, stating that “numerous
unsuccessful attempts” had been made to contact the Los Angeles VARO regarding the status of the
appellant’s claim. Counsel outlined with specificity the individuals at the VARO that he had
attempted to reach by telephone and the lack of response to those attempts. It is, therefore,
ORDERED that the Secretary, as the appellee before this Court and the official ultimately
responsible for the Department of Veterans Affairs’ adjudication process, within fifteen days after
the date of this order, shall show cause (1) why his subordinates have not been responsive to the
requests for a status report; (2) why readjudication of the claim has been delayed until now; and (3)
why the claim cannot be readjudicated without further delay. See 38 U.S.C. §§ 306(b), 7261(a)(2),
7263(a). Cf. Ebert v. Brown, 4 Vet.App. 434, 437 (1993).
DATED: October 3, 1994 PER CURIAM.
Copies to :
Henry S. Hood, Jr. General Counsel (027)
7891 Oleander Circle #F Department of Veterans Affairs
Buena Park, CA 90620 810 Vermont Avenue, N.W.
Washington, D.C. 20420

Holliday v. Gober, No. 99-1788

March 4, 2009

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 99-1788
MOSES RENTI HOLLIDAY, APPELLANT,
V.
HERSHEL W. GOBER,
ACTING SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before KRAMER, Chief Judge, and STEINBERG and GREENE, Judges.
O R D E R
On October 12, 2000, the Court, in a single-judge memorandum decision, affirmed a
September 30, 1999, Board of Veterans’ Appeals (Board or BVA) decision that denied increased VA
disability compensation ratings for sensory impairment and hyperesthesia with trigeminal nerve
damage, for residuals of a fracture of the left orbital floor, for sinusitis, for diplopia, and for
laceration of the left upper eyelid. Record at 4, 19. On November 1, 2000, the appellant filed a
timely motion for reconsideration or, in the alternative, for a panel decision.
The Court notes that, after its October 12, 2000, decision, Congress enacted several laws
regarding veterans benefits claims. First, on October 30, 2000, the Floyd D. Spence National
Defense Authorization Act for Fiscal Year 2001, Pub. L. No. 106-398, 114 Stat. 1654, app. § 1611
(Oct. 30, 2000) [hereinafter NDAA § 1611], amended 38 U.S.C. § 5107 to clarify the Secretary’s
duty to assist claimants in developing claims for benefits under title 38, United States Code. Then,
on November 1, 2000, the Veterans Benefits and Health Care Improvement Act of 2000, Pub. L. No.
106-419, 114 Stat. 1822 (Nov. 1, 2000) [hereinafter VBHCIA], was enacted, with the following
coordination provision:
If the Veterans Claims Assistance Act of 2000 is enacted before the
provisions of the Floyd D. Spence National Defense Authorization Act for Fiscal
Year 2001 are enacted into law, section 1611 of the Floyd D. Spence National
Defense Authorization Act for Fiscal Year 2001, including the amendments made by
that section, shall not take effect. If the Veterans Claims Assistance Act of 2000 is
enacted after the provisions of the Floyd D. Spence National Defense Authorization
Act for Fiscal Year 2001 are enacted into law, then as of the enactment of the
Veterans Claims Assistance Act of 2000, the amendments made by section 1611 of
the Floyd D. Spence National Defense Authorization Act for Fiscal Year 2001 shall
be deemed for all purposes not to have taken effect and that section shall cease to be
in effect.
2
Id. at § 104(c)(2), 114 Stat. at 1828. Finally, on November 9, 2000, the Veterans Claims Assistance
Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) [hereinafter VCAA], was enacted.
The VCAA, inter alia, amended 38 U.S.C. § 5107(a) to eliminate the well-grounded-claim
requirement (a requirement that had appeared in section 5107(a) prior to any amendment of that
section by the NDAA). VCAA § 4. Additionally, through the amendment of 38 U.S.C. §§ 5102
(“Application forms furnished upon request; notice to claimants of incomplete applications”) and
5103 (“Notice to claimants of required information and evidence”) and the addition of 38 U.S.C.
§ 5103A (“Duty to assist claimants”), the VCAA reaffirmed and clarified the Secretary’s duty to
assist claimants. VCAA § 3. Although the VCAA is silent as to whether new sections 5102, 5103,
and 5103A are to be applied retroactively, the VCAA specifically states that “the provisions of
section 5107 . . . as amended by section 4 of [the VCAA], apply to any claim . . . filed before the date
of the enactment of [the VCAA] and not final as of that date.” VCAA § 7(a)(2).
In view of these changes in law, the Court will grant the appellant’s motion for a panel
decision and require supplemental briefing addressing the following questions:
(1) Did the coordination provision of VBHCIA § 104(c)(2) nullify the NDAA
§ 1116 amendment from the date of the enactment of that amendment or was that
NDAA § 1116 amendment in effect for any period of time between the date of the
NDAA’s enactment and the date of the VCAA’s enactment (and is the answer to that
question affected by the fact that the VBHCIA was enacted prior to the VCAA)? If
the latter, is the NDAA § 1116 amendment intended to be applied retroactively to
claims pending on the date of its enactment? See Karnas v. Derwinski, 1 Vet.App.
308, 313 (1991) (“where the law or regulation changes after a claim has been filed
or reopened but before the administrative or judicial appeal process has been
concluded, the version most favorable to [the] appellant should and we so hold will
apply unless Congress provided otherwise or permitted the Secretary of Veterans
Affairs to do otherwise and the Secretary did so”).
(2) Do the VCAA amendments to sections 5102, 5103, and 5106 and new
section 5103A as added by the VCAA, apply retroactively to claims pending on the
date of the enactment of the VCAA? See Karnas, supra. In this regard, did
Congress, by explicitly making new section 5107 applicable to claims pending on the
date of the VCAA’s enactment and remaining silent as to the retroactivity of the
VCAA amendments regarding sections 5102, 5103, 5103A, and 5106 provide, within
the meaning of Karnas, supra (“unless Congress provided otherwise”), that those
latter amendments are not to be applied to claims pending on that date? Compare
Karnas, 1 Vet.App. at 311-13 (discussing Thorpe v. Housing Authority of Durham,
393 U.S. 268 (1969), Bradley v. School Bd., 416 U.S. 696 (1974), Bennett v. New
Jersey, 470 U.S. 632 (1985), and Bowen v. Georgetown University Hospital,
488 U.S. 204 (1988)), with Landgraf v. USI Film Products, 511 U.S. 244 (1994).
(3) Assuming that the NDAA § 1116 amendment and the VCAA amendments
3
regarding sections 5102, 5103, and 5106 and new section 5103A as added by the
VCAA [hereinafter new NDAA/VCAA provisions] may be applied to claims
pending on the respective dates of enactment of those laws (issues regarding the
VCAA amendment to section 5107 have been addressed in Luyster v. Gober,
__ Vet.App. __, No. 99-1271 (Nov. 20, 2000) and, therefore, for purposes of this
order that amendment is not included as a new provision):
(i) Who–VA or the Court–should decide in the first instance
whether the appellant’s claim may fall within the scope of any of the
new provisions?
(ii) As to section 5103A, in view of the requirement that the
Secretary prescribe regulations to carry out that section (38 U.S.C.
§ 5103A(e) (as added by VCAA § 3)) and in view of the express
grant of authority to the Secretary to provide “such other assistance
. . . as the Secretary considers appropriate” (38 U.S.C. § 5103A(g) (as
added by VCAA § 3)), can it be decided–by either VA or the Court–
prior to the prescribing of such regulations that the appellant’s claim
does not fall within the scope of section 5103A?
(iii) Assuming that it is the Court that ought to decide in the
first instance that the appellant’s claim may fall within the scope of
one or more of the new NDAA/VCAA provisions, should the Court
further determine which law (the old law or the new NDAA/VCAA
provisions) is most favorable to the appellant’s claim and thus must
be applied under Karnas, supra? Compare Baker v. West,
11 Vet.App. 163, 168 (1998) (where law changed as to portion of
rating schedule pertaining to mental disorders after appellant filed
appeal with Court, Court remanded for BVA to apply Karnas in first
instance by making factual determination as to which law was more
favorable to appellant), with Henderson v. West, 12 Vet.App. 11, 18
(1998) (holding Karnas inapplicable because change in law was
neutral). In this regard, could the law prior to the enactment of the
new NDAA/VCAA provisions be found on any basis to be more
favorable to the appellant’s claim than the law as amended by these
provisions?
(iv) Assuming that it is the Court that ought to decide in the
first instance whether the appellant’s claim may fall within the scope
of any of the new NDAA/VCAA provisions, would application of
one or more of those provisions have a potentially beneficial effect,
within the meaning of Karnas, supra, on this appellant’s claim and,
if so, what is it?
4
Upon consideration of the foregoing, it is
ORDERED that the Court’s October 12, 2000, memorandum decision is withdrawn. It is
further
ORDERED that the appellant’s motion for a panel decision is granted. It is further
ORDERED that, not later than January 5, 2001, each party file with the Court, and serve on
the other party, a supplemental brief addressing the questions enumerated above.
Interested amicus curiae are invited to submit within the time allowed to the parties
memoranda on the questions enumerated above. The Court will schedule oral argument at the
earliest convenience of the parties after briefs are filed.
The parties and any interested amici are cautioned that the Court does not intend to grant
extensions of time with respect to any response to this order.
DATED: December 1, 2000 PER CURIAM.

Holliday v. Principi, No. 99-1788

March 4, 2009

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 99-1788
MOSES RENTI HOLLIDAY, APPELLANT,
v.
ANTHONY J. PRINCIPI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before KRAMER, Chief Judge, and STEINBERG and GREENE, Judges.
O R D E R
On October 12, 1999, the appellant appealed a September 30, 1999, decision of the Board
of Veterans’ Appeals (BVA or Board) that denied increased VA disability ratings for his serviceconnected
sensory impairment and hyperesthesia with trigeminal nerve damage, residuals of a
fracture of the left orbital floor, sinusitis, diplopia, and laceration of the left upper eyelid. The
appellant filed a brief, and the Secretary filed a motion for summary affirmance. On October 12,
2000, the Court issued a memorandum decision that affirmed the September 1999 BVA decision.
On November 1, 2000, the appellant filed a motion for reconsideration and, in the alternative, for
a panel decision.
On November 9, 2000, while the appellant’s motion for reconsideration was still pending
before the Court, Congress enacted the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-
475, 114 Stat. 2096 (Nov. 9, 2000) (VCAA). The VCAA, inter alia, amended 38 U.S.C. § 5103
(“Notice to claimants of required information and evidence”) and added 38 U.S.C. § 5103A (“Duty
to assist claimants”). VCAA § 3(a), 114 Stat. at 2096-98. On December 1, 2000, the Court granted
the appellant’s motion for a panel decision and ordered supplemental briefing. Holliday v. Gober,
14 Vet.App. 197 (2000) (per curiam order). In his January 5, 2001, supplemental brief, the Secretary
included a motion for a full Court decision. On February 22, 2001, the full Court denied the
Secretary’s motion for full Court consideration, Holliday v. Principi, U.S. Vet. App. No. 99-1788
(denial of motion for full Court review Feb. 22, 2001) (en banc order), and a panel of the Court
issued an opinion that vacated the BVA decision and remanded the matters to the Board. Holliday
v. Principi, __ Vet.App. __, __, No. 99-1788, slip op. at 15 (Feb. 22, 2001). The Court held “that
all provisions of the VCAA are potentially applicable to claims pending on the date of the VCAA’s
enactment.” Id. at __, slip op. at 9. The Court also stated:
We conclude, . . . at least at this time, that this Court may not determine in the
first instance the specific applicability of the VCAA. Because of this Court’s scope
of review, the Federal Circuit jurisprudence interpreting that statutory framework, the
Secretary’s acknowledgments at oral argument, the “strongly and uniquely pro2
claimant” nature of veterans law, the absence of VA implementing regulations, and
the concerns of fundamental fairness and fair process, the Court must avoid cutting
off an appellant’s rights under the VCAA by prematurely injecting itself into the VA
adjudication process and making determinations on issues that were not addressed
by VA in the first instance.
Id. at __, slip op. at 15.
On March 15, 2001, the Secretary filed a motion for panel reconsideration of the February 22,
2001, opinion or, in the alternative, for a full Court decision. In the motion, the Secretary notes that
in Holliday, in declining to decide whether there were any classes of cases that are not affected by
the VCAA, the Court held that it “could not obviate in the first instance the requirement for the
Secretary to provide notice,” Id. at __, slip op. at 12-13. He contends that that holding “conflicts
with earlier Court precedent wherein the Court specifically found that the VCAA did not affect the
issue decided, that of whether a federal statute allows the payment of interest on past[-]due benefits.
Smith (Claudus) v. Gober, 14 Vet.App. 227, 231-32 (2000).” Motion at 1-2.
For the following reasons, the panel will deny the Secretary’s motion for panel
reconsideration. Before the Court in Smith was “a claim for payment of accrued interest on an award
of past-due benefits.” Id. at 228, 232. In Smith, the Court held that, because no statute or regulation
authorized the Secretary to make a payment of interest on past-due VA benefits, the Court could not,
as a matter of law, require the Secretary to award the interest payments, which were the basis of the
claim, sought by the appellant. Id. at 231. In other words, the Court held in Smith that such a claim
on its face, without regard to any analysis of the record on appeal, was not cognizable within the
veterans benefits scheme and that, “[t]herefore, there is no reason to consider the VCAA in deciding
this case.” Id. at 232. Here, however, unlike in Smith, a rating-increase claim is on its face a valid
claim for veterans benefits. See 38 U.S.C. §§ 501(a), 5110(a); 38 C.F.R. § 3.157 (2000).
Accordingly, we find no inconsistency between Smith and Holliday, and the motion for panel
reconsideration will be denied.
Upon consideration of the foregoing, it is
ORDERED that the Secretary’s motion for panel reconsideration is denied. The Secretary’s
alternative motion for a full Court decision is referred to the full Court for consideration.
DATED: April 27, 2001 PER CURIAM.

Holland v. Brown, No. 92-728

March 4, 2009

UNITED STATES COURT OF VETERANS APPEALS
No. 92-728
LEE HOLLAND, JR., APPELLANT,
V.
JESSE BROWN,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans’ Appeals
(Decided May 23, 1994 )
Keith D. Snyder was on the brief for appellant.
Mary Lou Keener, General Counsel, Norman G. Cooper, Assistant General Counsel, Thomas
A. McLaughlin, Deputy Assistant General Counsel, and Rosalind E. Masciola were on the pleadings
for appellee.
Before KRAMER, HOLDAWAY, and IVERS, Judges. IVERS, Judge, filed the opinion of
the Court in which HOLDAWAY, Judge, joined. KRAMER, Judge, filed a separate opinion,
concurring in the result.
IVERS, Judge: Lee Holland, Jr., appeals a February 14, 1992, decision of the Board of
Veterans’ Appeals (BVA or Board) denying an increased rating for service-connected rheumatoid
arthritis of multiple joints (currently rated 40% disabling). Lee Holland, Jr., BVA 92-03185 (Feb.
14, 1992). In that decision, the BVA also referred claims for service connection for skin cancer
secondary to Agent Orange exposure and lung disease secondary to asbestos exposure as well as a
claim for a total disability rating based on individual unemployability (TDIU rating) to the
originating agency for further development and adjudication. Appellant has filed a motion to remand
the case to the Board, and the Secretary has filed a motion to dismiss the instant appeal. The Court
has jurisdiction over the case pursuant to 38 U.S.C. § 7252(a). For the reasons set forth below, we
will deny the Secretary’s motion to dismiss, vacate the February 1992 decision of the BVA, and
remand the case for readjudication consistent with this opinion.
I. FACTUAL BACKGROUND
Appellant served on active duty in the United States Navy from May 11, 1961, to August 23,
1966, from November 2, 1966, to February 25, 1975, and from July 15, 1986, to February 28, 1989.
R. at 14; see R. at 159. On May 14, 1974, appellant was admitted to a Navy hospital with a fourmonth
history of joint pain and swelling of both knees and the right wrist. R. at 15. The resultant
2
report provided a clinical impression of rheumatoid arthritis, early sero-negative. R. at 16. On
March 28, 1975, a VA regional office (RO) granted service connection for rheumatoid arthritis (40%
disabling). R. at 25.
On June 21, 1989, appellant sought an increased rating for the condition. See R. at 37.
Following a VA examination, on April 4, 1990, the rating for appellant’s rheumatoid arthritis was
reduced to 20% disabling. Ibid. On July 4, 1990, while pursuing his claim for an increase, appellant
also indicated that he was seeking service connection for skin cancers due to exposure to Agent
Orange in Vietnam and for a lung condition due to in-service asbestos exposure. R. at 44. In August
1990, after having received a Statement of the Case, appellant perfected his appeal by filing a VA
Form 1-9 (Appeal to BVA), wherein he wrote:
I would now like to argue for a 100% rating as my record goes before the BVA.
There is not a question of 3-4 exacerbations per year, here. What I have had, since
June of 1989, is a constantly swollen knee as documented by Dr. Coletti in Dec.,
1989 [and] Dr. Bogdanovich in May and July, 1990, and other periodic episodes of
swelling and pain in my other joints, e.g., right wrist, neck, back, feet and hands, over
this past year, as noted by Dr. Coletti and Dr. Bogdanovich, in their comments.
R. at 117. In August 1990, appellant also filed VA Form 21-8940, Compensation Based on
Unemployability. R. at 119-20. In Box 7, in response to the question, “What service[-]connected
disability prevents you from securing or following any substantially gainful occupation,” he
answered rheumatoid arthritis. R. at 119.
On October 5, 1990, the VA notified appellant that he should report for a VA examination
on November 14, 1990, at a VA medical center. See R. at 122. Appellant, however, refused to be
examined at any VA medical center, referring to televised reports concerning such medical centers.
Ibid. Instead, appellant directed the RO to three previous examinations, a December 1989 VA
examination by Dr. Coletti, a May 1990 VA examination by Dr. Bogdanovich, conducted in
connection with appellant’s Agent Orange claim, and an October 1990 examination by a private
physician, Dr. R.A. Griffin. R. at 122-23. Appellant noted, however, that he would be willing to
undergo a non-VA examination, at his own expense, by a non-VA physician selected by the VA if
the three examinations were insufficient. R. at 123. The VA accepted Dr. Griffin’s examination as
sufficient for rating purposes. R. at 141; see R. at 137. Appellant also submitted a copy of a
determination by the Social Security Administration (SSA) that he was disabled due to severe
rheumatoid arthritis. R. at 149-54.
On July 10, 1991, the RO restored the 40% disability rating for appellant’s service-connected
rheumatoid arthritis. R. at 155-56. In addition, the RO denied appellant’s claim for a TDIU rating
but deferred action on the service connection claims for skin cancer secondary to Agent Orange
exposure and lung disease secondary to asbestos exposure. R. at 156. On February 14, 1992, the
3
BVA denied a rating higher than 40% for appellant’s rheumatoid arthritis. Holland, BVA 92-03185,
at 8. The Board also referred appellant’s skin cancer, lung disease, and TDIU rating claims to the
agency of original jurisdiction (AOJ) for further adjudication. Id., BVA 92-03185, at 2.
II. ANALYSIS
A. Motion to Dismiss
We must first decide whether appellant’s service connection claim for rheumatoid arthritis
is “inextricably intertwined” with any of the claims referred to the AOJ for further adjudication. If
so, we would have to dismiss the instant appeal under the finality doctrine guarding against
piecemeal litigation announced by the Court in Harris v. Derwinski, 1 Vet.App. 180, 182-83 (1991)
(under 38 U.S.C. §§ 7252(a) and 7266(a), “a claimant seeking to appeal to the Court must have a
final BVA decision.”), and Hoyer v. Derwinski, 1 Vet.App. 208, 209-10 (1991) (same); see
Flanagan v. United States, 465 U.S. 259, 263 (1984) (finality has historically been a condition of
review by federal appeals courts).
Of the three claims referred by the Board in its February 1992 decision to the AOJ, only the
TDIU rating claim might conceivably be related to the rheumatoid arthritis rating increase claim.
See Kellar v. Brown, 6 Vet.App. 157, 160 (1994) (claim for increased rating of chronic lumbosacral
strain was not “inextricably intertwined” with service connection claim for urinary incontinence
because each condition was evaluated under different code and symptoms pertinent to evaluation of
each condition under relevant code differed). Initially, we note two cases that involved claims
for an increased rating in a service-connected condition and claims for a TDIU rating. In Begin v.
Derwinski, 3 Vet.App. 257, 258 (1992), the Court first remanded the claim for an increased rating
and then remanded the TDIU rating claim as well. Ibid. In that case, the Court reasoned: “The
appellant’s claim for [a TDIU rating] is inextricably intertwined with the degree of impairment that
is ultimately adjudicated.” Ibid. (citing 38 C.F.R. § 4.16 (1991)); accord Babchak v. Derwinski,
3 Vet.App. 466, 467 (1992).
The instant appeal, however, presents important distinctions that counsel against application
of the finality doctrine. First, neither Begin nor Babchak involved the finality doctrine because both
the rating increase and the TDIU rating claims were then on appeal to this Court. Therefore, the
finality doctrine was not at issue in either of those cases.
Second, in Begin and Babchak, the Court initially remanded the BVA decisions regarding
the rating increase claims and then remanded the TDIU rating claims on the grounds that the TDIU
rating claims were inextricably intertwined. This sequence is important for what it does and does
not say relative to the case at bar. Although a TDIU rating claim predicated on a particular serviceconnected
condition is “inextricably intertwined” with a rating increase claim regarding the same
4
condition, it does not necessarily follow that a rating increase claim for a particular serviceconnected
condition is “inextricably intertwined” with a TDIU rating claim predicated on that
condition.
We arrive at this conclusion by examining the inquiries undertaken by the VA regarding the
degree of impairment and a TDIU rating. The Schedule for Rating Disabilities is comprised of ten
grades of disability which “are based on the average impairment of a veteran’s occupational earning
capacity.” Swan v. Derwinski, 1 Vet.App. 20, 22 (1990); see 38 C.F.R. § 4.1 (1993) (“ratings
represent . . . the average impairment in earning capacity”); see also Bierman v. Brown, 6 Vet.App.
125, 129 (1994). Under this Schedule, a 100% rating means that a veteran is totally disabled. Swan,
1 Vet.App. at 22.
However, 38 C.F.R. § 4.16(a) and (c) (1993) “provide total disability compensation where
a person who fails to meet the schedular rating percentage is, nevertheless, unable to secure ‘a
substantially gainful occupation.’” Swan, 1 Vet.App. at 22 (quoting 38 C.F.R. § 4.16(a)). As the
Secretary has recognized in his regulations,
The ability to overcome the handicap of disability varies widely among individuals.
The rating, however, is based primarily upon the average impairment in earning
capacity, that is, upon the economic or industrial handicap which must be overcome
and not from individual success in overcoming it. However, full consideration must
be given to unusual physical or mental effects in individual cases, to peculiar effects
of occupational activities, to defects in physical or mental endowment preventing the
usual amount of success in overcoming the handicap of disability and to the effect
of combinations of disability. Total disability will be considered to exist when there
is present any impairment of mind or body which is sufficient to render it impossible
for the average person to follow a substantially gainful occupation. . . .
38 C.F.R. § 4.15 (1993). Therefore, the Schedule for Rating Disabilities and the structure for
evaluating a TDIU rating claim complement each other.
The regulation governing TDIU ratings, however, underscores the fact that, while
complementing each other, the Schedule and the TDIU rating scheme involve different
considerations: “Total disability ratings may be assigned, where the schedular rating is less than
total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow
a substantially gainful occupation as a result of service-connected disabilities,” provided that certain
percentage requirements are met. 38 C.F.R. § 4.16(a) (emphasis added). A veteran with serviceconnected
disabilities that do not meet the percentage requirements detailed in subsection (a),
however, may still seek extra-schedular consideration of a TDIU rating. 38 C.F.R. § 4.16(b) (1993).
In sum, a veteran may seek a rating under the Schedule, provided that his condition manifests
the symptoms listed in the appropriate diagnostic code and relevant rating, or a veteran may seek a
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total disability rating, provided that the condition renders it impossible to secure or follow a
substantially gainful occupation. Therefore, the regulations recognize that the Schedule for Rating
Disabilities may be inadequate for assessing whether a particular veteran is totally disabled. An
additional regulation, 38 C.F.R. § 3.340(a)(2) (1993), recognizes the two alternate methods — i.e.,
the Schedule for Rating Disabilities and § 4.16 — for assigning a total disability rating. Given these
alternate methods and their respective inquiries, it cannot be said that an increased rating claim is
so inextricably intertwined with a TDIU rating claim as to warrant dismissal of the former claim
when the latter claim is still being adjudicated by the VA.
The Court’s jurisprudence does not dictate a different result. Indeed, in a recent case, the
Court held that a veteran’s claim for extra-schedular consideration of a service-connected condition,
which was on appeal to this Court, was not inextricably intertwined with a TDIU rating claim that
had been referred to the AOJ. Kellar, 6 Vet.App. at 162. In arriving at that conclusion, the Kellar
Court held that the extra-schedular inquiry under 38 C.F.R. § 3.321(b)(1) (1993) (“marked
interference with employment”) differed from the inquiry under the TDIU rating regulation,
38 C.F.R. § 4.16 (“unable to secure and follow a substantially gainful occupation”).
In Hoyer, 1 Vet.App. at 209, the Court explained the rationale guiding the finality doctrine
announced in Harris: “The [Harris] Court was influenced by the potential impact which a[n] RO
or BVA decision to grant appellant’s referred claim could have on the decided claim which was being
appealed.” (Emphasis added.) Under this rationale, the Court looks to whether the claim referred
to the AOJ could affect the claim on appeal.
In this case, the Board referred the TDIU rating claim to the AOJ for further adjudication.
It was not inappropriate for the Board to do so. See Bernard v. Brown, 4 Vet.App. 384, 394 (1993).
Nevertheless, while the TDIU rating claim is still being adjudicated, the increased rating claim is
properly before the Court at this time. While the claim referred to the AOJ may not necessarily
affect the claim on appeal, the claim on appeal may affect the claim referred to the AOJ. Thus, the
claim currently on appeal, i.e., a claim for an increased rating for service-connected rheumatoid
arthritis, is a final claim, and the Court will deny the Secretary’s motion to dismiss.
B. Reasons or Bases
Appellant’s claim for an increased rating is a new claim, and the Court reviews the Board’s
findings of fact regarding new claims under a “clearly erroneous” standard of review. 38 U.S.C.
§ 7261(a)(4); Butts v. Brown, 5 Vet.App. 532, 535 (1993) (en banc); Gilbert v. Derwinski,
1 Vet.App. 49, 53 (1990). Under the “clearly erroneous” standard of review, “if there is a ‘plausible’
basis in the record for the factual determinations of the BVA, even if this Court might not have
reached the same factual determinations, [the Court] cannot overturn them.” Gilbert, 1 Vet.App.
at 53. The Board must base its decisions on “all evidence and material of record,” 38 U.S.C.
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§ 7104(a), and must provide a “written statement of [its] findings and conclusions, and the reasons
or bases for those findings and conclusions, on all material issues of fact and law presented on the
record,” 38 U.S.C. § 7104(d)(1). See Douglas v. Derwinski, 2 Vet.App. 435, 438-39 (1992) (en
banc), vacating in part on other grounds, 2 Vet.App. 103 (1992); Gilbert, 1 Vet.App. at 56-57.
Pursuant to these statutory requirements, the Board must “account for the evidence which it finds
to be persuasive or unpersuasive,” and provide reasons or bases for rejecting evidence submitted by
or on behalf of the claimant. Gilbert, 1 Vet.App. at 57.
In this case, the Board did not give adequate reasons or bases for all the evidence of record.
In particular, an SSA disability determination stated: “The medical evidence establishes that the
claimant has severe rheumatoid arthritis. . . .” R. at 151 (emphasis added). The relevant diagnostic
code (DC) for active rheumatoid arthritis provides a 60% disability rating where the condition
involves “weight loss and anemia productive of severe impairment of health or severely
incapacitating exacerbations occurring 4 or more times a year or a lesser number over prolonged
periods.” 38 C.F.R. § 4.71a, DC 5002 (1993). It appears that, in arriving at its determination, the
SSA considered the same medical evidence considered by the BVA. See R. at 153-54. In its
February 1992 decision, the Board considered a 1990 SSA disability determination but stated:
We have considered the conclusions of the [SSA], but in our opinion, symptoms of
rheumatoid arthritis which are confirmed by examination findings do not result in
more than definite impairment of health, if that, and, as has been stated, recent
incapacitating exacerbations are not reflected in the clinical record. We do not
consider the fact that the appellant walks with a cane because of knee complaints to
be equivalent to incapacitation.
Holland, BVA 92-03185, at 8. This Court has noted that the SSA’s disability determinations are not
binding on the VA because, while there are significant similarities, there are significant differences
between the two disability determination schemes. Collier v. Derwinski, 1 Vet.App. 413, 417
(1991). Nevertheless, the SSA’s determination is evidence “and to the extent its conclusions are not
accepted, reasons or bases should be given therefor.” Ibid. Consequently, the Board should have
provided reasons or bases why evidence that the SSA considered indicative of severe impairment
could be construed as warranting definite impairment.
C. Duty to Assist
1. Medical Records
Appellant also argues that the Board did not seek to obtain certain medical records. In
particular, appellant argues that the Board appears not to have sought to obtain the complete records
associated with appellant’s SSA disability determination (R. at 153-54), an award for total disability
received under the Agent Orange Veteran Payment Program (R. at 163), and his placement on the
Temporary Disability Retired List (R. at 127, 169). Once a claimant has submitted “evidence
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sufficient to justify a belief by a fair and impartial individual that the claim is well grounded,” the
Board has a duty to assist him in developing the facts pertinent to his claim. 38 U.S.C. § 5107(a);
see 38 C.F.R. § 3.103(a) (1993); Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). This duty is a
continuing obligation throughout the administrative adjudication. See Murincsak v. Derwinski,
2 Vet.App. 363, 373 (1992); see also 38 C.F.R. § 3.159 (1993); cf. 38 C.F.R. § 3.156(b) (1993).
When the VA is put on notice prior to the issuance of a final decision of the possible
existence of certain records and their relevance, the BVA must seek to obtain those
records before proceeding with the appeal. . . . The duty to assist the veteran does not
end with the rating decision of the VARO, but continues while the claim is pending
before the BVA. There is a continuing obligation upon the VA to assist the veteran
in developing the facts of his claim throughout the entire administrative adjudication.
Murincsak, 2 Vet.App. at 373 (emphasis added).
In this case, as appellant concedes, it is not clear from the record on appeal whether the Board
sought to obtain any of the records discussed above. Since the case is being remanded to the Board
for further adjudication, however, “appellant will be free to submit additional evidence and argument
on the question at issue, and the Board will ‘seek any other evidence it feels is necessary’ to the
timely resolution of this claim.” Quarles v. Derwinski, 3 Vet.App. 129, 141 (1992) (quoting
Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991)).
2. Medical Examination
Finally, we note that the VA has fulfilled the duty to assist regarding providing for the
conduct of an examination. See 38 U.S.C. § 5107(a); Ardison v. Brown, __ Vet.App. __, __,
No. 92-1268, slip op. at 4 (Apr. 4, 1994); Green v. Derwinski, 1 Vet.App. 121, 124 (1991). The VA
scheduled appellant for an examination, but appellant refused to be examined at a VA medical center
by a VA physician. Appellant, however, was willing to submit to an examination by a non-VA
physician, and he submitted private medical records, which the VA found sufficient for rating
purposes. R. at 123, 141.
In its February 1992 decision, the Board found this evidence to be inadequate. Holland,
BVA 92-03185, at 4. In particular, the Board noted that the record was insufficiently developed so
as to rate the limitation of joint motion or to evaluate appellant’s rheumatoid arthritis as an active
process or as a chronic residual. Ibid. The Court in this instance finds appellant’s reasons for
refusing to submit to the conduct of a VA examination inadequate and cautions appellant that, as the
Board noted in its decision, “[t]he duty to assist is not always a one-way street.” Wood v. Derwinski,
1 Vet.App. 190, 193 (1991). Furthermore, VA regulations require that a claimant seeking an
increased disability rating “for whom examinations have been authorized and scheduled . . . to report
for such examinations.” 38 C.F.R. § 3.326(a) (1993). Nevertheless, since the matter is being
remanded to the Board for readjudication and since appellant will be free to produce additional
8
evidence, appellant has an opportunity to cure the deficiencies in the record by producing evidence
addressing the salient points in the Board’s decision. See also Olson v. Principi, 3 Vet.App. 480, 483
(1992) (Court noted that if appellant were to seek to reopen claim with new and material evidence,
he would be required to cooperate with VA’s efforts to provide adequate medical examination).
III. CONCLUSION
Accordingly, upon consideration of the record, the Secretary’s motion to dismiss, and
appellant’s brief, we deny the Secretary’s motion, VACATE the February 1992 decision of the BVA,
and REMAND the case for readjudication consistent with this opinion.
KRAMER, Judge, concurring: I write separately to express my view that appellant’s claim
for an increased rating for service-connected rheumatoid arthritis of multiple joints which was
adjudicated by the BVA and the claim for a total disability rating based on individual
unemployability (TDIU) which was remanded by the BVA are inextricably intertwined. As the
majority acknowledges, ante at _, slip op. at 5, both a schedular rating and a TDIU rating are based
on the extent to which a disability negatively impacts upon employability. See 38 C.F.R. § 4.1
(1993) (schedular “ratings represent . . . the average impairment in earning capacity”); 38 C.F.R.
§§ 4.15, 4.16 (1993) (TDIU ratings represent the inability “to follow a substantially gainful
occupation”). A TDIU rating which is premised upon a condition which is also the subject of a
rating in terms of percentage of disability is inextricably intertwined with the percentage rating. The
evidence used to support both ratings must overlap, at least in part, because the inquiry is the same:
what is the degree of disability?
Under the finality doctrine announced by the Court in Harris v. Derwinski, 1 Vet.App. 180,
182-83 (1991), and construed in subsequent decisions, see, e.g, Kellar v. Brown, 6 Vet.App. 157,
160 (1994); Clark v. Derwinski, 2 Vet.App. 166, 167 (1992); Hoyer v. Derwinski, 1 Vet.App. 208,
210 (1991), a finding that claims are inextricably intertwined mandates dismissal of the appeal.
However, while I support the doctrine which “guard[s] against piecemeal litigation,” ante at _, slip
op. at 3, I do not support the remedy of dismissing the appeal. This result unfairly punishes an
appellant who is proceeding piecemeal not from choice, but because the BVA chose to bifurcate
inextricably intertwined claims.
While under Harris, supra, we may not have jurisdiction to review a decision on the merits
which represents reviewing less than all inextricably intertwined claims, we do, in my view, have
jurisdiction to state that it was error for the BVA to issue a decision on one inextricably intertwined
claim, while it remanded another to a regional office (RO). Accordingly, the better result is to vacate
and remand the BVA decision as to the claim appealed to the Court for readjudication with the claim
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already remanded by the BVA to the RO. I concur in the majority’s vacating and remanding of the
BVA decision.


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