Veteranclaims’s Blog

August 27, 2012

Single Judge Application, Sexual Trauma; Patton v. West, 12 Vet.App. 272, 277 (1999); Buczynski v. Shinseki, 24 Vet.App. 221, 224 (2011);

Excerpt from decision below:
“The Court is not persuaded bythe Board’s reasoning. Although the SMRs are silent as to the appellant having being raped, the SMRs do not contradict her statement. Buczynski v. Shinseki, 24 Vet.App. 221, 224 (2011) (“When assessing a claim, the Board may not consider the absence of evidence as substantive negative evidence.”)see McLendon v.Nicholson, 20Vet.App. 79,85(2006); see also Forshey v. Principi, 284 F.3d 1335, 1363 (Fed. Cir. 2002) (en banc) (Mayer, C.J., dissenting (distinguishing between the existence of negative evidence and the absence of actual evidence and noting that “[t]he absence of actual evidence is not substantive ‘negative evidence'”).
It is not surprising that a rape victim would be silent regarding the fact that she had been raped, and there is no medical reason why a doctor would be expected to comment on the reasons why a patient is seeking an abortion. See Buczynski, supra; VA adjudicators are required to consider evidence of behavioral changes to corroborate a stressor involving sexual trauma precisely because there may be little or no direct evidence that the incident occurred. See Patton v. West, 12 Vet.App. 272, 277 (1999) (acknowledging the VA Adjudication Procedures Manual’s recognition that, “[b]ecause assault is an extremely personal and sensitive issue, many incidents of personal assault are not officially reported”); YR v. West, 11 Vet.App. 393, 397-98 (1998). The fact that the appellant was sexually active at a time she claims to have been raped is not a sufficient reason to find that the SMRs are inconsistent with her stressor statement.
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 11-0950
FAYE H. NESBIT-NETCLIFF, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before SCHOELEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
SCHOELEN, Judge: The appellant, Faye H. Nesbit-Netcliff, appeals through
counsel a
January 11, 2011, Board of Veterans’ Appeals (Board) decision that
determined there was no new
and material evidence to reopen disability compensation claims for a left
foot disability, migraine
headaches, and a cervical spine disorder. Additionally, the Board denied
disability compensation
benefits for post-traumatic stress disorder (PTSD). The Board also denied
an increased rating for
right ulnar neuropathy and postoperative right hallux valgus of the right
toe. Record (R.) at 3-31.
Because the appellant makes no argument alleging error regarding the
Board’s denial of her rating
increase claims, the Court considers these matters abandoned on appeal.
See Ford v. Gober,
10 Vet.App. 531, 535 (1997)(holding claims not argued on appeal are deemed
abandoned). Both
parties have filed briefs. This appeal is timely, and the Court has
jurisdiction to review the Board’s
decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge
disposition is appropriate. See
Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). The Court will vacate
the Board decision in part
and remand the matters for further adjudication, and the Court will affirm
the decision in part.

I. PTSD CLAIM
A. Background
The appellant served on active dutyin the U.S. Armyfrom October 2, 1979,
to July 17, 1987.
R. at 2237. The appellant’s entrance medical examination indicates that
she was not diagnosed with
any mental disorders. R. at 1688. In January 1981, the appellant was
pregnant and had an abortion.
R. at 18, 1577. In July 1982, the appellant requested a profile for a
nervous condition because she
was having difficulty adjusting to a new environment. R. at 1460. She
reported that her private
medical records would show a history of nervous problems in her family. Id.
Although the service
medical records (SMRs) indicate that a copy of medical records from her
private physician would
be obtained, there is no indication that such a request was made for these
records. R. at 1460.
In July 1986, the appellant was referred for a mental health evaluation by
a neurologist who
was treating her for back problems.1
R. at 875-76. The neurologist requested the evaluation because
the appellant was having difficulty with her supervisor. After undergoing
unspecified testing, the
mental health department concluded that the appellant was suffering from
job-related stress and
conflict with her supervisor. Id. at 875. Although she was not diagnosed
with any mental disorder,
the mental health department determined that she had “interpersonal
liabilities and problematic
personality/behavioral trai[ts], with somatoform tendencies.”2
Id.
Approximately, a year after the appellant was discharged from service, she
underwent a
medical examination in connection with a job application with the U.S.
Post Office.
R. at 2196-2201. She stated that she had not been treated for a
psychiatric disorder, but she indicated
that she had taken Elavil, a medication prescribed for treatment of
depression. R. at 2198.
In July 2003, the appellant was referred to a VA psychologist for
depression. R. at 1937.
She reported that she was depressed because she was in “chronic pain.” Id.
at 1937. Her symptoms
The SMRs are not in the record, but they are discussed extensively in an
August 2006
medical record from a VA psychologist. R. at 875-76.
Somatoform disorders are a group of mental disturbances where the patient
has physical
symptoms that appear to be psychogenic and cannot be attributed to organic
diseases. DIAGNOSTIC
AND STATISTICAL MANUAL OF MENTAL DISORDERS 485 (4th ed. 1994) (DSM-IV).
2
2
1

included diminished appetite with weight loss and difficulty staying
motivated and focused on
activities. Id. She reported that she took Zoloft in the past for
depression. Id. She reported that
she was sexually harassed in the military, which included inappropriate
touching, but she did not
answer whether she had been raped. Id. at 1938-39. She was referred for
further evaluation and
medication management. R. at 1939. The appellant began treatment for
depression and was
subsequently diagnosed with PTSD. R. at 413, 859.
On May25, 2005, the appellant filed a claim for disability compensation
benefits for PTSD.
She described multiple stressors involving sexual trauma. R. at 216-17.
For example, she
complained that during basic training drill sergeants would select
recruits with whom they would
have sex in exchange for drugs, alcohol, and food. Id. When she was
assigned to Fort Rucker, she
was raped by a staff sergeant. Id. She stated that she did not report the
attack to officials because
she did not think she would be believed. Id. After she was assigned to
Fort Meade, she was groped
bya captain who threatened to end her career if she reported that attack.
Id. The appellant stated that
her PTSD symptoms were aggravated when she encountered this ex-captain at
a VA facility many
years after she was discharged from the military. Id. Mary Andrews, the
appellant’s mother,
submitted a statement that she would never forget the night her daughter
told her that she had an
abortion because she had been raped. R. at 84.
To support her claim, the appellant submitted several medical reports from
Dr. Hoeper, her
treating psychiatrist. R. at 50-51, 81-82, 496-98, 579-80. Dr. Hoeper
diagnosed the appellant with
PTSD and major depression. R. at 50. Her current symptoms included
frequent nightmares,
difficulty sleeping, social isolation, hyperviligance, and intrusive
thoughts. Id.
Between August and October 2006, the appellant participated in a 12-week
treatment
program to assist veterans who experienced multiple sexual trauma (MST). R.
at 794, 798-807. She
also underwent neuropyschological testing because of concerns surrounding
recent memory
problems. R. at 874-80. Afterthreehoursofpsychologicaltesting,the
appellant was diagnosed with
“PTSD, Adjustment Disorder with mixed anxiety and depressed mood (
secondary to physical
disability and losses); pain disorder associated with both psychological
factors and general medical
condition.” R. at 878-79.
The record also contains evidence that the appellant was awarded
3

disability benefits from the Social Security Administration for PTSD and
depression, effective
July 7, 2005. R. at 455, 485-86.
In March 2006, the regional office (RO) denied entitlement to service
connection for PTSD.
R. at 966-73. The appellant appealed the decision to the Board, and on
January 11, 2011, the Board
issued the decision here on appeal. R. at 767-71, 905-24.
B. Analysis
To establish service connection for PTSD, a claimant must present (1)
evidence of a current
diagnosis of PTSD; (2) evidence of an in-service stressor, with credible
supporting evidence that the
claimed in-service stressor occurred; and (3) evidence of a causal nexus
between the current
symptomatology and the in-service stressor. 38 C.F.R. § 3.304(f) (2012);
see Cohen v. Brown,
10 Vet.App. 128, 138 (1997). When a claim for PTSD is based on a noncombat
stressor, “the
noncombat veteran’s testimony alone is insufficient proof of a stressor.”
Moreau v. Brown,
9 Vet.App. 389, 396 (1996). In claims for PTSD based on an in-service
personal assault, “evidence
from sources other than the veteran’s service records may corroborate the
veteran’s account of the
stressor incident.” 38 C.F.R. § 3.304(f)(5); see Bradford v. Nicholson,
20 Vet.App. 200, 205 (2006).
The types of corroborating evidence include, but are not limited to ”
records from law enforcement
authorities, rape crisis centers, mental health counseling centers,
hospitals, or physicians; pregnancy
tests or tests for sexually transmitted diseases; and statements from
family members, roommates,
fellow service members, or clergy.” 38 C.F.R. § 3.304(f)(5).
Additionally, “[e]vidence of behavior changes following the claimed
assault is one type of
relevant evidence that maybe found in these sources.” 38 C.F.R. § 3.304(f)(
5). Evidence indicating
a change in behavior includes, “but is not limited to: a request for a
transfer to another military duty
assignment; deterioration in work performance; substance abuse; episodes
of depression, panic
attacks, or anxiety without an identifiable cause; or unexplained economic
or social changes.”
38 C.F.R. § 3.304(f)(5).
In Menegassi v. Shinseki, 638 F.3d 1379, 1382 (Fed. Cir. 2011) the U.S.
Court of Appeals
for the Federal Circuit (Federal Circuit) held that under § 3.304(f)(5), ”
medical opinion evidence
may be submitted for use in determining whether the occurrence of a
stressor is corroborated.” See
also Patton, 12 Vet.App. at 280 (rejectingthe requirement that “something
more than medical nexus
4

evidence is required to fulfill the requirement for ‘credible supporting
evidence’ ” in personal-assault
cases (quoting Cohen v. Brown, 10 Vet.App. 128, 145 (1997))). Accordingly,
the Federal Circuit
held that a favorable medical opinion diagnosing PTSD must be weighed
against all other evidence
of record for purposes of determining whether a claimed in-service sexual
assault has been
corroborated. Menegassi, 638 F.3d at 1382 n.1.
The Court reviews the Board’s factual determination as to the sufficiency
of corroborative
evidence of the in-service stressor under the “clearly erroneous” standard
of review. See 38 U.S.C.
§ 7261(a)(4); Sizemore v. Principi, 18 Vet.App. 264, 270 (2004) (citing
Pentecost v. Principi,
16 Vet.App. 124, 129 (2002) (regarding corroborative evidence)). A finding
of fact is clearly
erroneous when the Court, after reviewing the entire evidence, “is left
with the definite and firm
conviction that a mistake has been committed.” United States v. U.S.
Gypsum Co., 333 U.S. 364, 395
(1948); see also Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990).
The Board must also provide a statement of the reasons or bases for its
determination,
adequate to enable an appellant to understand the precise basis for its
decision, as well as to facilitate
review in this Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet.
App. 517, 527 (1995);
Gilbert, 1 Vet.App. at 56-57. To comply with this requirement, the Board
must analyze the
credibility and probative value of the evidence, account for the evidence
it finds persuasive or
unpersuasive, and provide the reasons for its rejection of any material
evidence favorable to the
claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam,
78 F.3d 604 (Fed. Cir.
1996) (table). Whatever the type of evidence, it is the Board’s province
to determine its credibility
and weight. See Washington v. Nicholson, 19 Vet.App. 362, 367-68 (2005);
Wood v. Derwinski,
1 Vet.App. 190, 193 (1991). The credibilityof a witness can be impeached
bya showing of interest,
bias, inconsistent statements, or, to a certain extent, bad character. See
Caluza, 7 Vet.App. at 511.
In this case, the Board denied the appellant’s PTSD claim after concluding
that her account
of MST during service was “not credible because it was inconsistent with
the objective evidence of
record.” R. at 19. The appellant argues that this conclusion by the Board ”
is unsupportable and in
violation of § 3.304(f)(5).” Appellant’s Brief (Br.) at 11. The Secretary
counters that the Board
provided an adequate statement of reasons or bases and plausibly
determined that hte appellant was
not entitled to disability benefits for PTSD. Secretary’s Br. at 5.
5

The Court agrees with theappellant. TheBoardgaveseveral examples for its
conclusion that
there was an inconsistency between the appellant’s stressor statement and
the “objective evidence.”
For example, the Board concluded that even though the appellant’s SMRs
showed that she had an
abortion in 1981,”the pregnancy . . . may not have been due to rape as she
now contends” because
her SMRs also indicated that she had been “sexually active throughout her
entire period of service.” R. at 20. Apparently, the Board concluded that the appellant’s allegation that her pregnancy was the
result of rape was inconsistent with her SMRs.
The Court is not persuaded bythe Board’s reasoning. Although the SMRs are silent as to the appellant having being raped, the SMRs do not contradict her statement. Buczynski v. Shinseki, 24 Vet.App. 221, 224 (2011) (“When assessing a claim, the Board may not consider the absence of evidence as substantive negative evidence.”)see McLendonv.Nicholson, 20Vet.App. 79,85(2006); see also Forshey v. Principi, 284 F.3d 1335, 1363 (Fed. Cir. 2002) (en banc) (Mayer, C.J., dissenting) (distinguishing between the existence of negative evidence and the absence of actual evidence and noting that “[t]he absence of actual evidence is not substantive ‘negative evidence'”).
It is not surprising that a rape victim would be silent regarding the fact that she had been raped, and there is no medical reason why a doctor would be expected to comment on the reasons why a patient is seeking an abortion. See Buczynski, supra; VA adjudicators are required to consider evidence of behavioral changes to corroborate a stressor involving sexual trauma precisely because there may be little or no direct evidence that the incident occurred. See Patton v. West, 12 Vet.App. 272, 277 (1999) (acknowledging the VA Adjudication Procedures Manual’s recognition that, “[b]ecause assault is an extremely personal and sensitive issue, many incidents of personal assault are not officially reported”); YR v. West, 11 Vet.App. 393, 397-98 (1998). The fact that the appellant was sexually active at a time she claims to have been raped is not a sufficient reason to find that the SMRs are inconsistent with her stressor statement.
Although the SMRs do not directly prove that the appellant was raped, this evidence does corroborate her allegation and the Board may not dismiss this evidence because the appellant was sexually active.
The Board also pointed to an inconsistency between a statement the
appellant made on her separation examination indicating that she did not have “frequent trouble sleeping,” and a statement she made to Dr. Hoeper that she began having nightmares during service.
Other than note that the
6

appellant’s nightmaresbeganduringservice,Dr.Hoeper’s
reportdoesnotstatethefrequencyofthose
nightmares. Because Dr. Hoeper’s report is silent on the frequency of the
appellant’s nightmares
during service, there is no inconsistency between her statement on her
separation examination that
she did not have frequent nightmares and her report to Dr. Hoeper that she
began having nightmares
during service.
The Board also found that the appellant’s personnel records did not show signs of behavorial changes such as disciplinary actions or drop in performance. However, the Board did not discuss the July 1986 SMRs, which indicate that the appellant was evaluated by a
military psychologist at the recommendation of her neurologist because of difficulty she had getting along with her supervisor. R. at 809-10. The Board had an obligation to discuss this evidence, which is the type of evidence that §3.304(f)(5) recognizes may demonstrate a change in behavior. See 38 C.F.R. § 3.304(f)(5) (directing VA to look at records from mental health counseling).

The Board was also persuaded that the appellant was not credible because of an August 2006 report from a VA psychologist, who concluded that the appellant “appeared
to be purposefully
feigningproblems
forsecondarygainorunconsciouslyconvertingstressandexaggeratingsymptoms
to obtain security and support from others.” R. at 21. However, upon
review of the full report, it
is clear that the Board took the VA psychologist’s statement out of
context. On August 3, 2006, the
appellant underwent neuropsychological testing because of recent memory
deficits.
The
psychologist noted that the appellant’s level of functioning declined
after a series of emotionally
traumatic events, including the death of her husband and sister. R. at 879.
After testing, the
psychologist stated:
[T]here was evidence in the appellant’s medical records to suggest a
possibility of
somatization as a coping mechanism or that emotional concerns are
converted to
physical problems. This is not to say that Ms. Nesbitt does not have pain
and
dysfunction related to her physical injuries and illness. However, it is
possible that
the losses she has experienced exacerbated the severity of her pain and
physical
disability.
R. at 813. The psychologist also noted that there was a possibility that
the appellant was over
medicated because she was seeing multiple psychiatrists. The psychologist
recommended further
testing “to help differentiate between a more
psychologicallyhealthyandpurposefulattempt to feign
7

problemsforsecondarygainoramorepathologicalprocess
ofeitherunconsciouslyconvertingstress
or exaggerating symptoms to obtain security and support from others.” Id.
Although the psychologist raised several possibilities to explain the
appellant’s memory and
cognitive deficits, he did not reach a conclusion as to the cause of her
deficits. Importantly, the VA
psychologist never questioned the appellant’s alleged stressor as he
diagnosed her with PTSD
attributedto in-servicesexual trauma.
Severalweeksaftertheappellantunderwentthepsychological
testing, her treating VA psychologist informed her that the
neuropsychological evaluation showed
that her cognitive deficits were not secondary to brain damage “but may
reflect a combined impact
of anxiety[,] depression, and somatization.” R. at 807. The appellant’s
treating psychologist advised
her to continue psychotherapy, practice being less impulsive, and perform
cognitive exercises.
R. at 807. Given the inconclusive nature of the August 2006 psychologist’s
report, and the
subsequent VA psychiatric treatment report indicating that the appellant’s
cognitive deficits were
attributed to anxiety, depression, and somatization, the Board could not
have relied on the August
2006 report as “probative” evidence regarding the appellant’s credibility.
Because the Board
provided an inadequate statement of reasons or bases for its conclusion
that the appellant’s account
of her MST stressors was not credible, the Court will vacate the Board’s
findings on this issue and
remand the matter for further proceedings.

II. CLAIMS TO REOPEN
Pursuant to 38 U.S.C. § 5108, “if new and material evidence is presented
or secured with
respect to a claim which has been disallowed, the Secretary shall reopen
the claim and review the
former disposition of the claim.” “New and material evidence” is defined
as follows:
New evidence means existing evidence not previously submitted to agency
decisionmakers. Material evidence means existing evidence that, by itself
or when
considered with pervious evidence of record, relates to an unestablished
fact
necessary to substantiate the claim. New and material evidence can be
neither
cumulative nor redundant of the evidence of record at the time of the last
prior final
denial of the claim sought to be reopened, and must raise a reasonable
possibility of
substantiating the claim.
8

38 C.F.R. § 3.156(a) (2012); see also Shade v. Shinseki, 24 Vet.App. 110,
117 (2010) (explaining
that § 3.156(a) “must be read as creating a low threshold” and that it ”
suggests a standard that would
require reopening if newly submitted evidence, combined with VA assistance
and considering the
other evidence of record, raises a reasonable possibilityof substantiating
the claim”). This Court has
generally reviewed whether the appellant has submitted new and material
evidence so as to reopen
a prior claim under the “clearly erroneous” standard of review set forth
in 38 U.S.C. § 7261(a)(4).
Elkins v. West, 12 Vet.App. 209, 216 (1999) (en banc); see also Fortuck v.
Principi, 17 Vet.App.
173, 178-79 (2003) (Board determinations as to whether new and material
evidence has been
presented reviewed under the “clearly erroneous” standard of review). “A
factual finding ‘is “clearly
erroneous” when although there is evidence to support it, the reviewing
court on the entire evidence
is left with the definite and firm conviction that a mistake has been
committed.'”
Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992) (quoting U.S. Gypsum Co.,
333 U.S. at 395).
As with other findings, the Board must include in its decision a written
statement of the
reasons or bases for its findings and conclusions, adequate to enable an
appellant to understand the
precise basis for the Board’s decision as well as to facilitate review in
this Court. See 38 U.S.C.
§ 7104(d)(1); Allday, and Gilbert, both supra. Whether evidence is new
and material depends on
the basis for which the claim was previously denied. See Kent v. Nicholson,
20 Vet.App. 1, 10
(2006); Evans v. Brown, 9 Vet.App. 273 (1996) (holding that evidence is
material if it is relevant to
and probative of an issue that was a specific basis for denial of the last
final disallowance),
overruled, in part, on other grounds by Hodge v. West, 155 F.3d 1356 (Fed.
Cir. 1998); see also
Anglin v. West, 203 F.3d 1343, 1347 (Fed. Cir. 2000) (stating that Hodge
left intact the requirement
that the evidence must be relevant to and probative of an issue that was a
specified basis for the last
final denial).
A. Neck Disability
In March 2005, the RO denied the appellant’s claims for disability
compensation benefits for
degenerative disc disease and degenerative joint disease of the cervical
spine because there was no
evidence that, despite being treated in service for cervical strain, the
appellant had a chronic neck
disability that began during service. R. at 1798-99. In December 2007, the
RO determined that no
new and material evidence had been submitted to reopen her neck disability
claim. R. at 602-12.
9

In the Board decision here on appeal, the Board determined that there was
no new and material
evidence to reopen the appellant’s claim for disability compensation
benefits for a neck disability.
R. at 13-15. The Board noted that there was medical evidence submitted
after the March 2005 RO
decision denying the neck claim, which discussed the nature and severity
of the appellant’s current
neck disability. Additionally, the appellant submitted a July 2006 buddy
statement that her military
job as a baggage handler caused her to suffer injuries during service, but
the statement did not
specify the type of injuries the appellant suffered. The Board found that
none of this evidence was
new and material because it did not discuss the relationship between the
appellant’s current neck
disability and service. R. at 13-15.
The appellant has the burden of demonstrating that the Board has committed
prejudicial
error. Marciniak v. Brown, 10 Vet.App. 198, 201 (1997) (remand unnecessary
“[i]n the absence of
demonstrated prejduice”); see also Sanders v. Shinseki, 129 S. Ct. 1696,
1704 (2009) (holding that
the appellant generally bears the burden of demonstrating prejudicial
error on appeal). See
Coker v. Nicholson, 19 Vet.App. 439, 442 (2006) (“The Court requires that
an appellant plead with
some particularity the allegation of error so that the Court is able to
review and assess the validity
of the appellant’s arguments.”), vacated on other grounds sub nom. Coker v.
Peake, 310 F. App’x
371 (Fed. Cir. 2008). The appellant does not demonstrate either that the
Board’s decision is clearly
erroneous or that it failed to support its decision with an adequate
statement of reasons or bases. See
Coker, supra.

B. Left Foot Disability
In July 1987, the appellant filed a claim for disability compensation
benefits for a bilateral
foot disability, including flat feet and hallux valgus. R. at 2241-42. In
January1988, the RO granted
disability compensation benefits for hallux valgus of the right foot but
denied disability
compensation benefits for hallux valgus of the left foot and bilateral
flat feet after concluding that
these conditions preexisted serviceand were not aggravated in service. R.
at 2212-15. Theappellant
did not appeal that decision.
In the Board decision here on appeal, the Board concluded that the
appellant had not
submitted new and material evidence to reopen his left foot disability
claim. R. at 10-11. In doing
so, the Board noted that the evidence submitted since January1988
discussed the appellant’s current
10

disability but did not discuss the onset of her left foot disability or
indicate that this disability was
aggravated during service. Id. The Board also noted that a buddy statement,
which stated that the
appellant had unspecified in-service injuries, was not material because it
lacked specificity.
The appellant fails to demonstrate that the Board erred in concluding that
there was no new
and material to reopen her claim. Like the appellant’s cervical disability
claim, the appellant simply
lists the evidence that was added to the record with her reopened claim,
but makes no argument as
to why the Board’s conclusion that the evidence was not new and material
is clearly erroneous. The
appellant fails to demonstrate either that the Board’s decision is clearly
erroneous or that it failed to
support its decision with an adequate statement of reasons or bases. See
Coker, supra.

III. ADDITIONAL MATTERS
In connection with the appellant’s claims to reopen her disabillity
compensation benefits for
left foot and cervical neck disabilities, the appellant argues that the
Board erroneously applied the
statutory presumption of soundness. Appellant’s Br. at 14-16. The
appellant’s argument is not
persuasive. The only issue before the Board was whether there was new and
material evidence to
reopen finally denied claims as to these matters. 38 U.S.C. § 5108. It is
only after a claim is
reopened and adjudicated on the merits, that the issue of the appellant’s
soundness on entry may be
relevant. Accordingly, the appellant’s arguments must fail. To the extent
that the appellant may be
alleging clear and unmistakable error (CUE) in the original RO decisions,
she must first raise her
CUE arguments and obtain a decision from the RO. See Jarrell v. Nicholson,
20 Vet.App. 326, 331
(2006) (en banc) (holding that neither the Court or the Board has
jurisdiction over an allegation of
CUE that has not been presented and adjudication by an RO).
The appellant also argues that because there is medical evidence
indicating that she is
unemployable because of her PTSD, the Board erred when it failed to
adjudicate her entitlement to
a total rating based on individual employability (TDIU). Appellant’s Br.
at 16. The appellant’s
argument has no merit. Entitlement to TDIU is a “downstream” issue that is
decided by VA only
after entitlement to disability compensation has been granted. See Evans v.
West, 12 Vet.App. 396,
399 (1999) (effective date is a “downstream matter” to be addressed after
the benefit has been
11

awarded). Accordingly,becausetheappellant’s entitlementto
disabilitycompensation forPTSD has
not been established, the issue of TDU was not before the Board.

IV. CONCLUSION
After consideration of the appellant’s and the Secretary’s pleadings, and
a review of the
record, that portion of the Board’s January11, 2011, decision related to
the PTSD is VACATED and
the matter is REMANDED for further proceedings. That portion of the
January 11, 2011, Board
decision finding no new and material evidence to reopen the left foot
disability and cervical spine
disorder claims is AFFIRMED .
DATED: August 8, 2012
Copies to:
Paul M. Goodson, Esq.
VA General Counsel (027)
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