Veteranclaims’s Blog

October 26, 2011

Single Judge Application, Pain and Functional Loss, Mitchell v. Shinseki, __ Vet.App. __, __, No. 09-2169, slip op. at 8, 2011 WL 3672294 at *5 (Aug. 23, 2011) (quoting 38 C.F.R. § 4.40 (2011))

Filed under: Uncategorized — veteranclaims @ 4:27 pm

Excerpt from decision below:
“Although Mr. Bosse is therefore correct that the Board misconstrued the scope of the Federal Circuit’s holding in Sanchez-Benitez, this Court recently clarified that “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system” and that “[p]ain in . . . a particular joint may result in functional loss, but only if it limits the ability ‘to perform the normal working movements of the body with normal excursion, strength, speed, coordination[, or] endurance.'” Mitchell v. Shinseki, __ Vet.App. __, __, No. 09-2169, slip op. at 8, 2011 WL 3672294 at *5 (Aug. 23, 2011) (quoting 38 C.F.R. § 4.40 (2011)).
Thus, pain is only compensable as a disability if it causes functional loss as described in Mitchell. Id. In the present case, Mr. Bosse does not assert that he actually experiences any functional loss due to his low back pain, nor does he direct the Court to any evidence in
the record that suggest that the pain he experiences is accompanied by functional loss.”
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-4624
JOSEPH R. BOSSE, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before HAGEL, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
HAGEL, Judge: Joseph R. Bosse appeals through counsel a November 12, 2009,
Board of
Veterans’ Appeals (Board) decision that denied entitlement to VA benefits
for the residuals of a
heady injury and a lumbar spine disorder.1
Mr. Bosse’s Notice of Appeal was timely and the Court
has jurisdiction to review the Board decision pursuant to 38 U.S.C. §
7252(a). Neither party
requested oral argument or identified issues that they believe require a
precedential decision of the
Court. Because the Board’s determination that VA satisfied its duty to
assist was clearly erroneous
in some respects and unsupported by adequate reasons or bases in other
respects, the Court will
vacate the November 2009 Board decision and remand the matter for further
development and
readjudication consistent with this decision.
The November 2009 Board decision also reopened and remanded previously
denied claims for VA benefits
for a cervical spine disorder and Wolf Parkinson White Syndrome. Because
the Board has not yet issued a final decision
regarding these claims, the Court does not have authority to consider them
at this time. See 38 U.S.C. § 7252 (providing
that the Court may only review final decisions of the Board); see also
Howard v. Gober, 220 F.3d 1341, 1344 (Fed. Cir.
2000) (holding that a Board remand does not constitute a final decision
that may be appealed (citing 38 C.F.R.
§ 20.1100(b)(1999))).
1

I. FACTS
Mr. Bosse served on active duty in the U.S. Marine Corps from November
1971 to May
1977.
A February1995 case summarycompleted bya private chiropractor indicates
that Mr. Bosse
first sought treatment for “bilateral low back discomfort” in February
1993, at which time he was
treated and the discomfort resolved. Record (R.) at 43. It also indicates
that physical examination
and radiographs “revealed lateral tipping of the first cervical vertebra”
and that it was possible that
this resulted from an incident Mr. Bosse reported in which he received a ”
blow to the head in 1973
which rendered him unconscious and caused episodes of convulsions.” R. at
43.
Aprivateemergencyroomreport fromMarch2005indicatesthatMr.Bossesought
treatment
forchestpainwith associatednausea,shortnessofbreath, andlightheadedness.
Thisrecordindicates
that Mr. Bosse reported a medical history free of hospitalizations or
medical illnesses, aside from
“a head injury while in the service as a Marine, apparently [with] no
sequelae[2
] from that.” R. at
313.
In May 2005, Mr. Bosse filed a number of claims, including a claim for VA
benefits for the
residuals of an in-service head injury.3
At that time, Mr. Bosse also submitted a statement in support
of his claim, describing the incident that resulted in the head injury:
While assigned to [Marine Attack Squadron]-223 in Yuma, Arizona, my unit
was
deployed to Fallon, Nevada[,] for a period of about 15 days ([f]rom
January 21, to
February 13, 1973). During the deployment I had an accident at the
barracks where
our unit was assigned. I suffered a head injury (concussion) and was
knocked
unconscious. Iwas transported fromthebarracksto thehospital base
byambulance[]
that evening, still in an unconscious state. I was revived at the hospital
and some x-
rays were taken immediately. Iwas afterwards brought to a room and
assigned a bed,
where I was checked every half hour. Shortly after lying down on the bed (
lying on
my back) the whole room started spinning around and I started vomiting.
The next morning my [non-commissioned officer in charge] came to visit me,
and
told me that the doctor wanted to keep me at the hospital for an extended
period of
A sequela is “any lesion or affection following or caused by an attack or
disease.” DORLAND’S ILLUSTRATED
MEDICAL DICTIONARY 1696 (32d ed. 2011).
It is unclear from the record of proceedings whether Mr. Bosse also filed
his claim for benefits for a lumbar
spine disorder at this time or at a later date.
3
2
2

time to take some more x-rays so that he could evaluate the extent of my
injuries.
Being young and stupid[,] I told [him] that I did not want to stay at the
hospital and
we went to see the doctor about getting me released. The doctor refused at
first[,]
saying my injuries were serious and that I had to be monitored for a while.
But after
insisting and arguing back and forth, the doctor had me sign a release
form and let
me go.
For six months following that injury, I had some severe headaches. Three
months
later, on two different occasions, I collapsed on the floor like a rag. I
was still
conscious but I had no control over my body, and after a few seconds on
the floor I
regained control and stood up. For two to three years following that
accident, I
would get real dizzy whenever I would tilt my head back to look up. For
over ten
years[,] I could not lay down on my back because I had the same episodes
that
happened at the hospital.
R. at 569. Mr. Bosse also described “back aches” that he stated were
attributed by a chiropractor in
1993 to the top vertebrae in his neck being shifted to the side. R. at 569.
He further indicated that,
at that time, the doctor asked him whether he ever received a blow to the
head and that he continued
to periodically seek treatment from his chiropractor since that time, as
he “still [had] aches and pains
when [he] turn[ed] [his] head to the left side and occasionally sharp pain
when it snaps.” R. at 569.
In October 2005, after a VA regional office requested Mr. Bosse’s service
medical records,
theNationalPersonnelRecordsCenter(Records Center)
respondedthattheserecordshadpreviously
been furnished in connection with a separate claim in May 1995. Later that
month, the regional
office determined that Mr. Bosse’s claims file was missing and began the
process of rebuilding it.
Mr. Bosse subsequently submitted copies of his service medical records,
although the record of
proceedings does not indicate precisely when this occurred or whether
these account for all of the
service medical records that were previously in his claims file. None of
the service medical records
submitted by Mr. Bosse describe an incident in which he struck his head,
nor do they indicate that
hesoughttreatment forsymptoms suchasdizziness,headaches,collapsing,
orproblemswith his low
back. A clinical evaluation conducted during Mr. Bosse’s April 1977
separation examination
revealed no head, face, neck, scalp, spine, or neurologic abnormalities.
In November 2005, Mr. Bosse submitted another statement in support of his
claim, along
with service records indicating that he and the Marine Attack Squadron to
which he was assigned
were ordered to report to the Naval Air Station in Fallon, Nevada, for a
period of 22 days on or about
3

January 17, 1973. In his statement, Mr. Bosse claimed that the accident
in which he struck his head
would not be mentioned in his service medical records because the doctor
would onlydischarge him
from the hospital if he signed a release stating that the incident would
not be in his medical records,
which he did. Mr. Bosse indicated that he believed there would
nevertheless be records of his
admission at the Naval Air Station medical facilityin Fallon where he was
treated and requested that
VA obtain them.
In March 2006, the regional office requested from the Records Center any
clinical records
pertaining to treatment Mr. Bosse received for “head and spine injuries –
barracks injury” at the
Fallon Naval AirStation medicalfacilitybetweenthedates January21,1973,
andFebruary13,1973.
R. at 463. In May 2006, the Records Center provided the following response
: “Fallon Naval Base
appears to be an outpatient facility only. No search possible based on the
information furnished.”
R. at 463.
A June 2006 report of contact reflects that the regional office “[c]alled
Fallon[,] Nevada[,]
[b]ranch [m]edical” and was informed byan employee that records from the
dates in question would
have been sent to the Records Center. R. at 466. Later that month, the
regional office made a formal
finding that clinical records from Fallon Naval Air Station for the year
1973 were unavailable and
that any further efforts to obtain the records would be futile. The
regional office also sent a letter
to Mr. Bosse notifying him of this finding, listing the previous efforts
it had made to obtain these
records, and requesting that he submit any other relevant evidence within
10 days, after which time
a decision would be made on his claims.
In July 2006, the regional office issued a rating decision denying
entitlement to VA benefits
for (1) the residuals of a back condition, (2) a head injury, and (3)
dizziness, headaches, episodes of
collapsing, and no bodily control, all associated with a head injury.
In July 2007, Mr. Bosse filed a Notice of Disagreement with the July 2006
rating decision
and, after further development, he appealed to the Board. In June 2009, he
was afforded a hearing
before the Board. At that time, he described the incident that led to his
claimed in-service head
injury as follows:
In 1973[,] as I came into the barracks, it was a field day, the barracks
floor had been
stripped and waxed and I had to take off my boots. And at one point I got
shoved
backwards. I don’t remember the details because . . . after that I hit my
head against,
4

from what the records say, from what theytold me the people that were
there, against
a beam that was behind me, which caught my head completely[.] I fell on my
chest
and then my head, it hit the floor. And from there I woke up at the
hospital.
R. at 241. Mr. Bosse further stated that he was admitted to the hospital
where he spent three or four
days, that a brain scan was conducted at that time, and that, subsequently,
he collapsed a few times
while still in service. In addition, he stated that, following the
incident, he experienced dizziness
while working on airplanes and could not tilt his head up for two to three
years. He also described
his current symptoms, including constant neck pain with occasional
numbness, dizziness caused by
standing after squatting, a loss of balance, nausea and a spinning
sensation when lying flat on his
back, and headaches lasting up to an entire day on a weekly basis.
Regarding his claimed low back
disability, Mr. Bosse stated that his low back would be stiff in the
morning when he woke up.
AJuly2009examination report completedbyaprivatephysiciandetails Mr.Bosse’s
reported
medical history, including the incident in 1973, which Mr. Bosse stated
resulted in immediate
unconsciousness, “convulsive movements of his arms and legs,” and a loss
of memory for 12 hours.
R. at 215. It also indicates that Mr. Bosse claimed to have received
medical treatment at the Fallon
Naval Air Station where he remembered having x-rays taken, “being confused
as to time and place,”
and experiencing”nausea, vomiting, severe headaches[,] and confusion.” R.
at 215. In addition, Mr.
Bosse stated that he “sign[ed] out against medical advice” and “was able
to do this because the Naval
Medical Officer did not have direct command over him.” R. at 215. Mr.
Bosse reported
experiencing severe headaches and dizziness in the weeks and months
following the incident and
currentlysuffering from “intermittent episodes of vertigo and dizziness,”
as well as “frequent severe
headaches.” R. at 216. Following a physical examination, the private
physician diagnosed Mr.
Bosse with several conditions unrelated to this appeal,4
as well as “chronic[,] non-radiating
lumbosacral pain.” R. at 219. The examiner further opined that, based on
Mr. Bosse’s recitation of
the in-service incident, “there is a reasonable causal nexus between [the]
injury event of January 21,
1973[,] and the development of multiple subsequent medical diagnoses
presenting over the years.”
R. at 219.
For instance, Mr. Bosse was diagnosed with “cervical degenerative disc
disease and cervical peripheral nerve
dysfunction with peripheral neuropathy syndrome.” R. at 219. As indicated
at footnote 1, the Board reopened a
previously denied claim for a cervical spine disorder and remanded it for
further consideration.
4
5

In November 2009, the Board issued the decision now on appeal,
characterizing the relevant
issues before it as including entitlement to VA benefits for the residuals
of a head injury and for a
lumbar spine disorder. At the outset, the Board noted that Mr. Bosse’s
claims file had been rebuilt
and that Mr. Bosse submitted copies of his servicetreatment records. The
Board also noted that “VA
attempted to obtain hospitalization records from the facility that treated [
Mr. Bosse] after the in-
service head injury, but was unsuccessful,” as the facility was contacted
but “indicated it does not
have records from that long ago (1970s).” R. at 6. The Board then
concluded that, although Mr.
Bosse had not been afforded a VA medical examination in connection with
his claims, the evidence
of record did not establish his entitlement to such examinations. The
Board then denied the claims,
finding that the preponderance of the evidence did not indicate that Mr.
Bosse currently has a low
back disability and that “there is no competent and credible evidence of
an in-service head injury
with a subsequent period of unconsciousness[] and either convulsions or
some type of seizure.” R.
at 14.
II. ANALYSIS
A. Fallon Naval Air Station Medical Records
At the outset, despite Mr. Bosse’s contention that VA owed him a
heightened duty to assist
because his claims file was lost, it appears that VA was able to rebuild
his claims file, in no small
part because Mr. Bosse submitted copies of his service medical records.
However, Mr. Bosse seems
to premise his contention that VA had a heightened duty to assist him not
on the loss or destruction
of records actually in his original claims file, but on VA’s failure to
obtain the records he identified
regarding treatment he received at the Fallon Naval Air Station medical
facility. See Washington v.
Nicholson, 19 Vet.App. 362, 370 (2005) (explaining that when a veteran’s
medical records are
presumed to be lost or destroyed, VA has a heightened duty to assist that
requires it to recommend
the submission of alternative sources of evidence and to assist in
developing this alternative
evidence). However, as described below, it is not clear to the Court that
these records truly are
unavailable—let alone that they were presumably lost or destroyed—and
the Court will remand Mr.
Bosse’s claims so that VA can satisfy its duty to assist by making further
efforts to obtain them.
6

VA’s duty to assist requires it to “make reasonable efforts to assist a
claimant in obtaining
evidence necessaryto substantiate the claimant’s claim for a benefit under
a law administered by the
Secretary.” 38 U.S.C. § 5103A(a)(1). Further, VA is required to make
reasonable efforts to obtain
all records held by a governmental entity that are relevant to the claim
and that pertain to the
claimant’s
militaryserviceiftheclaimantprovidestheSecretaryinformationsufficientto
locatesuch
records. 38 U.S.C. § 5103A(c)(1). In that regard, VA is required to make
as many requests as
necessary to obtain records from Federal agencies. 38 C.F.R. § 3.159(c)(2
) (2011). VA may
discontinue its efforts to obtain records from a Federal department or
agencyonly when it concludes
that continued efforts would be futile, which requires that the Federal
department or agency advise
VA that either the requested documents do not exist or that the custodian
does not have them. Id.
Here, Mr. Bosse described an in-service head injury, indicated that he was
treated for the
injury at the Fallon Naval Air Station medical facility, provided a
relatively small window of time
in which he estimated having received this treatment, and requested that
VA attempt to obtain all
records of his admission and treatment at that facility. The record
indicates that VA did make some
efforts to obtain these records. Initially, the regional office requested
from the Records Center any
records from the Fallon Naval Air Station medical facility pertaining to
Mr. Bosse (his service
number was provided) and “head and spine injuries – barracks injury”
between January21, 1973, and
February13, 1973. R. at 463. In May2006, the Records Center responded that
the Fallon Naval Air
Station appeared to have an outpatient medical facility and that “[n]o
search [was] possible based
on the information furnished.” R. at 463.
Although it is unclear to the Court what further information would be
necessary to conduct
a search for the records in question, it does not appear that the regional
office followed up with the
Records Center in an effort to resolve this ambiguity so that a search for
the records could be
conducted. Instead, the regional office directly contacted the Fallon
Naval Air Station medical
facility in an effort to obtain the records, but was informed by an
employee that any such records
from 1973 would have been sent to the Records Center. Obviously, this
information should have
directed the regional office’s efforts back to the Records Center in an
effort to determine what
additional information was needed to conduct a search. Instead, the
regional office made a formal
finding that the records were unavailable and that further efforts to
obtain them would be futile.
7

As noted above, the Board concluded that VA satisfied its duty to assist.
The Board
recognized VA’s failure to obtain records documenting treatment Mr. Bosse
received at the Fallon
Naval Air Station medical facility, but appears to have concluded that VA
was not required to make
further efforts to obtain them because the facility itself “indicated it
does not have records from that
long ago (1970s).” R. at 6. The Board failed to acknowledge, however, that
the medical facility also
informed the regional office that any such records would have been sent to
the Records Center, or
that the Records Center previously indicated it had not been supplied with
sufficient information to
enable it to conduct a search for the records. When this information is
considered, along with the
fact that it appears that VA made no further efforts to obtain the records
from the Records Center,
the Court concludes that the Board’s determination that VA satisfied its
duty to assist was clearly
erroneous and must be set aside. See Nolen v. Gober, 14 Vet.App. 183, 184 (
2000) (holding that the
Board’s determination that the duty to assist was satisfied is a finding
of fact reviewed pursuant to
the “clearly erroneous” standard of review).
On remand, the Board must ensure that the records in question are again
requested from the
Records Center and that all available information regarding those records
is provided to the Records
Center. If the Records Center is still unable to conduct a search based
upon the information
provided,the regional officeshould endeavor to determine what additional
informationis necessary,
seek such information from Mr. Bosse, and provide it to the Records Center.
If the Records Center
is ultimately able to conduct a search but determines that the records are
unavailable or do not exist,
a formal finding to that effect must be made by VA and Mr. Bosse must be
provided with the notice
described in 38 U.S.C. § 5103A(b)(2).
In addition, the regional office must also suggest that Mr. Bosse submit
other forms of
evidence that could support his allegation of an in-service injury as he
has described. For instance,
it appears that Mr. Bosse has at times described his head injury as
resulting from being pushed after
walking into a barracks. He should therefore be informed that he can
submit statements from any
fellowservicemembers who mayhave witnessed the incident,theseverityofhis
resultinginjury,and
the treatment he received thereafter.
Further, on remand, Mr. Bosse is free to submit additional evidence and
argument in
accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per
curiam order). See
8

Kay v. Principi, 16 Vet.App. 529, 534 (2002). “A remand is meant to
entail a critical examination
of the justification for the decision” by the Board. Fletcher v. Derwinski,
1 Vet.App. 394, 397
(1991). In addition, the Board shall proceed expeditiously, in accordance
with 38 U.S.C. § 7112
(expedited treatment of remanded claims).
Lastly, the Board must consider the negative impact resulting from the
loss of Mr. Bosse’s
claims file while in the custody of VA, especially in light of the Records
Center’s October 2005
message that it could not provide Mr. Bosse’s service medical records
because it had previously
conveyed them to the regional office in 1995.
B. Medical Examination
Mr. Bosse next contends that VA was required to provide him with a medical
examination
in connection with his claims relevant to this appeal. In certain
circumstances, VA’s duty to assist
requires it to provide a disability compensation claimant with such an
examination. 38 U.S.C.
§ 5103A(d); 38 C.F.R. § 3.159(c)(4) (2011). In McLendon v. Nicholson,
the Court parsed section
5103A(d) and § 3.159(c)(4) and explained:
In disability compensation claims, the Secretary must provide a VA medical
examination when there is (1) competent evidence of a current disabilityor
persistent
or recurrent symptoms of a disability, and (2) evidence establishing that
an event,
injury, or disease occurred in service or establishing certain diseases
manifesting
during an applicable presumptive period for which the claimant qualifies,
and (3) an
indication that the disability or persistent or recurrent symptoms of a
disability may
be associated with the veteran’s service or with another service-connected
disability,
but (4) insufficient competent medical evidence on file for the Secretary
to make a
decision on the claim.
20 Vet.App. a79, 81 (2006). Further, in Duenas v. Principi, the Court held
that when the Board
considers whether a medical examination or opinion is necessary under
section 5103A(d) and §
3.159(c)(4), it must provide a written statement of the reasons or bases
for its conclusion, pursuant
to 38 U.S.C. § 7104(d)(1), and that, absent a finding of nonprejudicial
error, vacatur and remand is
warranted where it fails to do so. 18 Vet.App. 512, 517–18 (2004) (
citing Tucker v. West, 11
Vet.App. 369, 374 (1998)).
1. Lumbar Spine Disorder
9

With regard to Mr. Bosse’s claim for benefits for a lumbar spine disorder,
the Board
concluded that the first McLendon element had not been satisfied. It
concluded that the record did
not evince “competent evidence of a current disability” because it only
reflected that Mr. Bosse
experienced some degreeof low back pain. Citing Sanchez-Benitez v.
Principi, 259 F.3d 1356, 1361
(Fed. Cir. 2001), the Board concluded that “[p]ain is not a disability in
and of itself.” R. at 7.
Mr. Bosse argues that the Board misconstrued the holding in Sanchez-
Benitez, noting that
the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) did
not reach the question of
whether pain alone can constitute a compensable disability. Indeed, in
that case, the Federal Circuit
stated that this was “an interesting, indeed perplexing, question,” but
did not reach it because, in any
event, the Board plausibly determined that the “free-standing” pain
experienced by the veteran was
not attributable to an in-service event or injury, meaning it could not be
service connected. Sanchez-
Benitez, 259 F.3d at 1361-62.
Although Mr. Bosse is therefore correct that the Board misconstrued the
scope of the Federal
Circuit’s holding in Sanchez-Benitez, this Court recently clarified that “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system” and that “[p]ain in . . . a particular joint may result in functional loss, but only if it limits the ability ‘to perform the normal working movements of the body with normal excursion, strength, speed, coordination[, or] endurance.'” Mitchell v. Shinseki, __ Vet.App. __, __, No. 09-2169, slip op. at 8, 2011 WL 3672294 at *5 (Aug. 23, 2011) (quoting 38 C.F.R. § 4.40 (2011)).
Thus, pain is only compensable as a disability if it causes functional loss as described in Mitchell. Id.

In the present case, Mr. Bosse does not assert that he actually experiences
any functional loss due to his low back pain, nor does he direct the Court to any evidence in
the record that suggest that the pain he experiences is accompanied by functional loss. Instead, he
appears to argue that the question of whether free-standing pain alone can constitute a compensable
disability remains unanswered following the Federal Circuit’s decision in Sanchez-Benitez. As
explained above, this is not accurate and, absent some indication that he experiences functional
loss due to his low back pain, the Court concludes that the Board’s mischaracterization of the
Federal Circuit’s holding in Sanchez-Benitez was nonprejudicial. See 38 U.S.C. § 7261(b)(2) (requiring
the Court to “take due account of the rule of prejudicial error”).
10

Nevertheless,
theCourtconcludesthattheBoardultimatelyprovidedaninadequatestatement
of reasons or bases for its determination that the first McLendon element
was not satisfied and that
Mr. Bosse was not entitled to a VA medical examination in connection with
his claim for benefits
for a lumbar spine disorder. As noted above, the first McLendon element is
met whenever there is
“competent evidence of a current disability or persistent or recurrent
symptoms of a disability.”
20 Vet.App. at 81 (emphasis added). Here, although the Board addressed the
issue of whether Mr.
Bossepresentedcompetentevidenceofpersistentorrecurrentsymptomsofdisability,
its explanation
for its determination that no such evidence was contained in the record
was confusing and failed to
address favorable evidence.
First, the Board acknowledged that Mr. Bosse made several statements
describing his low
back pain, but dismissed them because it did “not find his report of the
in-service head injury
credible,” a conclusion that was then discussed in great detail elsewhere
in the opinion. R. at 8.
However,thecredibilityofMr.Bosse’s
statementsregardingthenatureandseverityofanyin-service
head injury he sustained is irrelevant to the issue of whether he
currently suffers from persistent or
recurrent symptoms of a disability, such as low back pain. It is unclear,
then, how or why the Board
dismissed Mr. Bosse’s lay statements regarding the symptoms of low back
pain he experiences, and
the Court’s inability to comprehend the Board’s reasoning on this issue
renders its statement of
reasons or bases inadequate. See Gilbert v. Derwinski, 1 Vet.App. 49, 57 (
1990) (explaining that the
Board’s statementofreasons orbasesmust beadequate to enablea claimant to
understand the precise
basis for the Board’s decision, as well as to facilitate review in this
Court).
Second, the Board acknowledged that private medical records dated between
2002 and 2008
were of record, but found that “[n]one of these medical records address
treatment for a low back
disability or even the appellant reporting low back pain.” R. at 8.
Although the Board’s
characterization of this evidence is correct, the Board failed to account
for other contradictory
evidence. The private chiropractor’s February 1995 case summary indicates
that Mr. Bosse first
soughttreatment for “bilateral lowbackdiscomfort”asearlyasFebruary1993.
Becausethis medical
record was relevant to Mr. Bosse’s history of low back pain, the Board was
required to discuss it in
determining whether the record contained competent evidence of persistent
or recurrent symptoms
of disability. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per
curiam, 78 F.3d 604 (Fed.
11

Cir. 1996) (table) (holding that the Board’s reasons or bases obligation
requires it to analyze the
credibilityand probative value of the evidence, account for the evidence
that it finds to be persuasive
or unpersuasive, and provide the reasons for its rejection of any material
evidence favorable to the
claimant). Because it failed to do so, the Court concludes that its
reasons or bases for determining
that Mr. Bosse was not entitled to a VA medical examination were
inadequate. Id.; see also Duenas,
18 Vet.App. at 517–18.
On remand, the Board must reassess whether Mr. Bosse is entitled to a VA
examination and
support its ultimate determination with a clear statement of reasons or
bases that accounts for all
relevant evidence of record. Further, because the Board will also be
required to reassess the
evidence of record on remand, it is reminded that, although it most
certainly can weigh an absence
of corroborating records against lay evidence such as Mr. Bosse’s
description of the alleged in-
service head injury and attendant symptoms, it may not conclude that this
lay evidence lacks
credibility solely because it is unaccompanied by other contemporaneous
evidence or records. See
Buchanan v. Nicholson, 451 F.3d 1331, 1335-37 (Fed. Cir. 2008). In
conducting such an analysis,
the Board must take into consideration that VA lost Mr. Bosse’s claims
file and that, although Mr.
Bosse submitted copies of the service medical records in his possession,
it is impossible to know
whether these are complete and account for all records that were
originally in his claims folder.
Also onremand,theBoardmustaddress how the loss of Mr. Bosse’s claims file
impactsVA’s
heightened duties to provide reasons or bases for its findings, to assist
Mr. Bosse in substantiating
his claim, and to consider the benefit of the doubt rule. See Kowalksi v.
Nicholson, 19 Vet.App. 171,
179 (2005) (“[W]here a veteran’s records are lost . . . the Board has a
heightened duty to provide a
full explanation of the reasons or bases for its findings.”); Russo v.
Brown, 9 Vet.App. 46, 51 (1996)
(explaining that where a veteran’s medical records are lost or destroyed,
the Board’s “obligation to
explain its findings and conclusions and to consider the benefit-of-the-
doubt is heightened” (quoting
O’Hare v. Derwinski, 1 Vet.App. 365, 367 (1991)).
Finally, as noted above, after VA satisfies the duties noted in this
decision, Mr. Bosse is free
to submit additional evidence and argument in support of this claim. See
Kay, 16 Vet.App. at 534;
Kutscherousky, 12 Vet.App. at 372-73.
2. Residuals of a Head Injury
12

In concluding that Mr. Bosse was not entitled to a VA medical examination
in connection
with his claim for benefits for the residuals of a head injury, the Board
found that the first McLendon
element was satisfied byinformation contained in the July 2009 private
medical examination report,
but that elements two and three—evidence establishing that an event,
injury, or disease occurred in
serviceandindicatingthatthecurrentdisabilitymayberelatedto thatevent,
injury,ordisease—were
not satisfied. The Board then engaged in a detailed explanation for this
finding, which was premised
on its determination that Mr. Bosse’s “claim that an in-service head
injury occurred in the manner
in which [he] . . . described” was not credible. R. at 8. In particular,
the Board noted that Mr. Bosse
repeatedly described a head injury so severe that it caused loss of
consciousness, convulsions,
hospitalization for several days, and lingering in-service symptoms such
as severe headaches,
dizziness, and collapsing, but that there was no reference in Mr. Bosse’s
service medical records to
such an injury or that he sought treatment for these lingering symptoms.
Mr. Bosse argues that the Board’s statement of reasons or bases for its
credibility
determination was inadequate. He characterizes this determination as
founded on an absence of
service records that corroborate his account of the events surrounding his
injury, but asserts that this
reasoning is illogical since his claims file was lost and treatment
records from the Fallon Naval Air
Station medical facility were not obtained. However, Mr. Bosse ignores
that his claims file was
rebuilt and that the rebuilt file contains his service medical records.
Indeed, the Board reviewed and
discussed these service medical records in explaining that their lack of
reference to the claimed in-
service head injury or attendant symptoms undercut the credibility of his
statements.
Nevertheless, the Court cannot discern from the Board decision whether, in
making its
credibility determination, the Board concluded that Mr. Bosse’s assertion
that he suffered an in-
service head injury was not credible, or only that his statements
regarding the severity of that injury
were not credible. On the one hand, after reviewing the evidence of record,
the Board described Mr.
Bosse’s statements as an “exaggeration of what happened in service” and
therefore concluded that
his “claim that an in-service head injury occurred in the manner in which [
he] . . . described” was
not credible. R. at 10, 8 (emphasis added). This would suggest that the
Board found his statements
that he suffered an in-service head injury to be credible, but found that
his statements regarding the
severity of this injury to be exaggerated and not credible. On the other
hand, the Board concluded
13

that the evidence of record did not establish that Mr. Bosse suffered an
in-service event or injury,
and that the second McLendon element was therefore not satisfied. This
tends to suggest that the
Board found that all of Mr. Bosse’s statements regarding an in-service
head injurylacked credibility,
even those regarding whether such an event actually occurred. This lack of
clarity in the Board
decision renders its reasons or bases for determining that a VA medical
examination was
unnecessary inadequate. See Gilbert, 1 Vet.App. at 57; see also Duenas, 18
Vet.App. at 517–18.
In addition, as outlined above, on remand VA will be required to make
further efforts to
obtain records of treatment from the Fallon Naval Air Station medical
facility. Such records, if they
are available, will be significant to any credibility determination made
by the Board regarding Mr.
Bosse’s account of an in-service head injury. Accordingly, on remand, the
Board should consider
such records, if obtained, in assessing the credibility of Mr. Bosse’s
statements, and should clearly
and unambiguously explain the scope of its credibility determination.
Again, Mr. Bosse is free to
submit additional evidence on argument on remand. See Kay, 16 Vet.App. at
534; Kutscherousky,
12 Vet.App. at 372-73.

III. CONCLUSION
Upon consideration of the foregoing, the November 12, 2009, Board decision
is VACATED
and the matter is REMANDED for further development and readjudication
consistent with this
decision.
DATED: October 14, 2011
Copies to:
Francis M. Jackson, Esq.
VA General Counsel (027)
14

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