Veteranclaims’s Blog

October 12, 2012

Single Judge Application, De Perez v. Derwinski, 2 Vet.App. 85, 86 (1992); Liberally Construe Pro Se Submisions; Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011)

Excerpt from decision below
“Thus, the Court concludes that Mr. Rayford’s informal brief sufficiently demonstrates an intent to appeal those denied claims and will consider the foregoing arguments. See De Perez v. Derwinski, 2 Vet.App. 85, 86 (1992) (liberally construing the pro se appellant’s informal brief to include arguments regarding, inter alia, the Board’s failure to apply potentially applicable statutes and regulations); see also Calma v. Brown, 9 Vet.App. 11,15(1996)(providing examples of instances in which the Court
has liberally construed documents submitted by pro se appellants).”
==========================

“Rather than examining whether Mr. Rayford’s lay statements were competent
evidence of a diagnosis of a current right leg or right knee disorder and of a nexus between his claimed disorders and service,the Board engaged in the very analysis prohibited by Davidson and Jandreau, summarily rejecting his statements as incompetent based on his status as a layperson. R. at 9, 12; see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011) (concluding that “the Board’s categorical rejection and failure to analyze and weigh . . . lay evidence in accordance with established precedent renders its
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statement of reasons or bases inadequate”). Thus, the Court concludes
that the Board erred in considering and weighing Mr. Rayford’s lay statements. This error was prejudicial to his claims for service connection for right leg, right knee, and right shoulder disorders because the Board did not find that there was any other, independent reason to discount or reject Mr. Rayford’s lay statements.2 See 38 U.S.C. § 7261(b)(2) (requiring the Court to “take due account of the rule of prejudicial error”); Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (explaining that “the burden of showing that an error is harmful normally falls upon the party attacking the agency’s
determination”).”
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 11-3324
LESTER RAYFORD, JR., APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before BARTLEY, Judge.

MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.

BARTLEY, Judge: Veteran Lester Rayford, Jr., who is self-represented,
appeals an October 17, 2011, decision of the Board of Veterans’ Appeals (Board) denying entitlement to service connection for right leg, right knee, and right shoulder disorders.1 Record (R.) at 3-16. This appeal is timely and the Court has jurisdiction to review the Board’s decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate in this case as the issues are of “relative simplicity” and “the outcome is not reasonably debatable.” Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons that follow, the Court will
vacate the October 17,
2011, Board decision and remand the matter for readjudication consistent
with this decision.
The Board also remanded the issues of entitlement to service connection
for a left hip disorder and a
compensable evaluation for tinea pedis of the right foot. Because those
issues are not the subject of a final Board
decision, the Court will not consider them at this time. See Breeden v.
Principi, 17 Vet.App. 475, 478 (2004); see also
Part II.A, infra.
1

I. FACTS
Mr. Rayford served on active duty in the U.S. Army from April 1970 to
November 1971,
including service in Vietnam. R. at 387. His service medical records
reflect complaints of right
shoulder tenderness and a self-reported history of foot trouble. R. at 277,
288.
In January 2002, a VA regional office (RO) awarded Mr. Rayford service
connection for
tinea pedis of the right foot and assigned a noncompensable evaluation. R.
at 158-63. He filed a
timelyNotice of Disagreement with that decision. R. at 157. In August 2004,
prior to perfectingthat
appeal, Mr. Rayford filed a claim for service connection for hip, right
leg, and right shoulder
disorders. R. at 139. Two months later, he submitted a statement to VA
asserting that he had injured
his right knee and right shoulder in Vietnam when jumping out of a
helicopter, which the RO
construed as a claim for service connection for a right knee disorder. R.
at 131.
After further development, the RO issued a rating decision in June 2005
denying entitlement
to service connection for hip, right leg, right knee, and right shoulder
disorders and continuing his
noncompensable evaluation for tinea pedis of the right foot. R. at 106-09.
Mr. Rayford disagreed
with that decision and subsequently perfected his appeal to the Board. R.
at 75-77, 100-03. In June
2009, he attended a VA skin examination and was diagnosed with erosio
blastomyces interdigitalis.
R. at 57-58. However, “[n]o tinea pedis” was present at that time. R. at
58.
InOctober2011,theBoardissuedthedecision currentlyon appeal, which denied
entitlement
to service connection for right leg, right knee, and right shoulder
disorders and remanded the issues
of entitlement to service connection for a left hip disorder and a
compensable evaluation for tinea
pedis of the right foot. R. at 3-16. This appeal followed.
II. ANALYSIS
A. Left Hip Disorder and Tinea Pedis of the Right Foot
As an initial matter, the Court notes that Mr. Rayford submitted an
informal brief that, in
response to question two of the informal brief form, indicated that he
wished to appeal the Board’s
determinations regarding his entitlement to service connection for a left
hip disorder and a
compensable evaluation for tinea pedis of the right foot. See Appellant’s
Brief (Br.) at 1 (Question:
“If there is more than one issue on the front page of the Board . . .
decision, which one(s) are you
2

appealing?” Answer: “Tinea pedis of the right foot. Left hip disorder.”).
However, the Board, in
its October 2011 decision, remanded those issues to the RO. R. at 13-16.
The Court may review only final decisions of the Board. See 38 U.S.C. §
7266(a); Jarrell
v. Nicholson, 20 Vet.App. 326, 331 (2006) (en banc). A Board remand does
not constitute a final
decision of the Board appealable to the Court. See Howard v. Gober, 220 F.
3d 1341, 1344 (Fed. Cir.
2000); Breeden, 17 Vet.App. at 478; 38 C.F.R. § 20.1100(b) (2012). Thus,
the Court lacks
jurisdiction to consider Mr. Rayford’s arguments with respect to the
remanded issues of entitlement
to service connection for a left hip disorder and a compensable evaluation
for tinea pedis of the right
foot. See Appellant’s Br. at 1 (arguing that the Board failed to consider
that he underwent a left hip
replacement in January 2011 and did not obtain medical records from a
December 2011 foot
examination). Mr. Rayford of course remains free to present any arguments
regarding VA’s
development of those claims to the RO on remand. See Kay v. Principi, 16
Vet.App. 529, 534
(2002).
B. Right Leg, Right Knee, and Right Shoulder Disorders
Mr. Rayford’s responses to questions five, six, and seven on the informal
brief form include
assertions of error that would applyto the right leg, right knee, and
right shoulder disorders that were
denied by the Board. He argued that the Board failed to consider that he
engaged in combat as an
infantryman, sustained numerous unreported injuries in service, and cannot
work because of his
conditions. See Appellant’s Br. at 2. Consistent with VA’s duty to
sympathetically read the
pleadings of self-represented appellants, see Szemraj v. Principi, 357 F.
3d 1370, 1371 (Fed. Cir.
2004); Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001), the
Secretary, in an alternative
argument, addressed the merits of the right leg, right knee, and right
shoulder disorder claims,
arguing for affirmance of the Board decision on those claims. Thus, the
Court concludes that Mr.
Rayford’s informal brief sufficiently demonstrates an intent to appeal
those denied claims and will
consider the foregoing arguments. See De PerezNext Document v. Derwinski, 2 Vet.App. 85,
86 (1992) (liberally
construingthe pro se appellant’s informal brief to includearguments
regarding, inter alia, the Board’s
failureto applypotentiallyapplicablestatutes and regulations); see also
Calma v. Brown, 9 Vet.App.
11,15(1996)(providingexamples ofinstances inwhichtheCourt
hasliberallyconstrueddocuments
submitted by pro se appellants).
3

Establishing service connection generally requires medical or, in certain
circumstances, lay
evidence of (1) a current disability, (2) incurrence or aggravation of a
disease or injury in service,
and (3) a nexus between the claimed in-service injury or disease and the
current disability. See
38 U.S.C. § 1110; Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir.
2009); Shedden v. Principi,
381 F.3d 1163, 1166-67 (Fed. Cir. 2004); 38 C.F.R. § 3.303 (2012). The
Board’s determination
regarding entitlement to service connection is a finding of fact that the
Court reviews under the
“clearly erroneous” standard of review. 38 U.S.C. § 7261(a)(4); see Russo
v. Brown, 9 Vet.App. 46,
50 (1996). “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 United States v. U.S.
Gypsum Co., 333 U.S. 364, 395 (1948)). In rendering its decision, the
Board is required to provide
a written statement of the reasons or bases for its “findings and
conclusions[ ] on all material issues
of fact and law presented on the record.” 38 U.S.C. § 7104(d)(1). The
statement must be adequate
to enable a claimant to understand the precise basis for the Board’s
decision and to facilitate review
in this Court. See Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990).
Mr. Rayford’s arguments that the Board failed to consider that he engaged
in combat and
sustained numerous unreported injuries in service both pertain to the
second element of service
connection–i.e., whether he incurred or aggravated an injury or disease
in service. See 38 U.S.C.
§ 1154(b) (requiring VA, in the case of a veteran who engaged in combat,
to accept as sufficient
proof of an in-service occurrence or aggravation of an injury or disease ”
satisfactory lay or other
evidence of service incurrence or aggravation of such injury or disease,
if consistent with the
circumstances, conditions, or hardships of such service, notwithstanding
the fact that there is no
official record of such incurrence or aggravation in such service”). To
the extent that this argument
is directed at the Board’s denial of his claim for service connection for
a right shoulder disorder, the
Board found that the record contained evidence of an in-service right
shoulder injury sufficient to
satisfythat element of service connection. R. at 11 (“The Veteran’s
service treatment records reflect
complaints of and treatment for right shoulder pain during service. Thus,
there is evidence of a right
shoulder disability during active duty service.”). Once the Board made
that finding, it was not
required to further discuss whether section 1154(b) applied to Mr.
Rayford’s right shoulder claim or
4

whetherhe suffered anyunreported right shoulder injuriesin
servicebecauseneither argument could
result in substantiating the other elementsof serviceconnection (medical
diagnosis and linkage) that
the Board found lacking in this case. See Collette v. Brown, 82 F.3d 389,
392 (Fed. Cir. 1996)
(“Section 1154(b) does not create a statutory presumption that a combat
veteran’s alleged disease or
injury is service-connected.”). Thus, the Court concludes that the Board
did not err in failing to
discuss those arguments with respect to Mr. Rayford’s claim for service
connection for a right
shoulder disorder.
The Board, however, found that there was no evidence of right leg or right
knee injuries or
diseases in service. Therefore, to the extent that Mr. Rayford presented
evidence that he engaged
in combat and thatevidencewas”consistent with the circumstances,conditions,
or hardships of such
service,”theBoardwas required to accept his statements of unreported right
lowerextremityinjuries
in service as competent evidence sufficient to satisfy the second element
of service connection.
38 U.S.C. § 1154(b); see Maxson v. Gober, 230 F.3d 1330, 1332-33 (Fed.
Cir. 2000) (outlining the
three-part test for applying section 1154(b)). Mr. Rayford not only raised
to the Board the issue of
his entitlement to the benefit of section 1154(b), but the record also
contains evidence reflecting
combat service. See R. at 77 (Substantive Appeal stating that he was a ”
combat soldier” and
asserting that he injured his lower extremities jumping out of helicopters
), 387 (Form DD-214
indicating that Mr. Rayford was awarded the Combat Infantryman Badge (CIB
)); VA Adjudication
Procedures Manual 21-1MR, pt. III, subpt. IV, ch. 4, § H.29.c. (listing
receipt of the CIB as evidence
of personal participation in combat); see also Army Regulation 600-8-22 §
II, 8-6 (explaining that,
to receive the CIB, a soldier must, inter alia, be “[a]ssigned to an
infantry unit during such time as
the unit is engaged in active ground combat” and “[a]ctively participate
in such ground combat”).
The Board was therefore required to consider and discuss whether the
favorable combat
veteran rule applied to his claims for service connection for right leg
and right knee disorders and
its failure to do so constitutes error. See 38 U.S.C. § 7104(a) (
requiring the Board to consider and
discuss all evidence of record and all “applicable” provisions of law and
regulation); Robinson v.
Peake, 21 Vet.App. 545, 553 (2008) (holding that the Board errs when it
fails to consider issues or
theories raised either by the appellant or by the evidence of record),
aff’d sub nom. Robinson v.
Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). Thus, the Court concludes that
vacatur and remand are
5

warranted for those claims. See Tucker v. West, 11 Vet.App. 369, 374 (
1998) (“Where the Board has
incorrectly applied the law, failed to provide an adequate statement of
reasons or bases for its
determinations, or where the record is otherwise inadequate, a remand is
the appropriate remedy.”).
The Board also erred in analyzing Mr. Rayford’s laystatements that he
currentlysuffers from
right leg and right knee disorders and that those disorders, as well as
his currently diagnosed right
shoulder strain, are related to service. Although the Board acknowledged
that Mr. Rayford had
presented lay evidence on each of those matters, the Board rejected that
evidence as incompetent
because Mr. Rayford is a layperson. R. at 9, 12. Specifically, the Board
stated that “[m]edical
diagnosis and causation involve questions that are beyond the range of
common experience and
common knowledge and require the special knowledge and experience of a
trained physician” and
found that Mr. Rayford was not competent to diagnose a medical condition
or provide a nexus
opinion because “he is not a physician.” R. at 9, 12 (citing Grottveit v.
Brown, 5 Vet.App. 91, 93
(1993); Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992)).
The Board, however, is not permitted to categorically reject evidence of a
diagnosis or nexus
as incompetent solelybecause it comes from a layperson. To the contrary,
the U.S. Court of Appeals
for the Federal Circuit has repeatedly held that, in certain circumstances,
lay evidence alone is
sufficient to establish the first and third elements of service connection.
See Davidson, 581 F.3d at
1316 (holding that this Court erred in categorically stating that a valid
medical opinion was required
to establish nexus and in rejecting the appellant’s nexus evidence because
she was a layperson);
Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (expressly
rejecting this Court’s
holding that competent medical evidence is required when the determinative
issue involves either
medical etiologyor a medical diagnosis and outlining the instances when
lay evidence is competent
and sufficient to establish a diagnosis of a condition).
Rather than examining whether Mr. Rayford’s lay statements were competent
evidence of a diagnosis of a current right leg or right knee disorder and of a nexus between his claimed disorders and service,the Board engaged in the very analysis prohibited by Davidson and Jandreau, summarily rejecting his statements as incompetent based on his status as a layperson.
R. at 9, 12; see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011) (concluding that “the Board’s categorical rejection and failure to analyze and weigh . . . lay evidence in accordance with established precedent renders its
6

statement of reasons or bases inadequate”). Thus, the Court concludes
that the Board erred in
considering and weighing Mr. Rayford’s lay statements. This error was
prejudicial to his claims for
service connection for right leg, right knee, and right shoulder disorders
because the Board did not
find that there was anyother, independent reason to discount or reject Mr.
Rayford’s laystatements.2
See 38 U.S.C. § 7261(b)(2) (requiring the Court to “take due account of
the rule of prejudicial
error”); Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (explaining that ”
the burden of showing that
an error is harmful normally falls upon the party attacking the agency’s
determination”).

Vacatur and remand of his claims for service connection for right leg,
right knee, and right
shoulder disorders are therefore warranted. See Davidson and Jandreau,
both supra; see also
Tucker, 11 Vet.App. at 374. Accordingly, the Court need not address Mr.
Rayford’s argument that
the Board failed to consider that he cannot work because of his right leg,
right knee, and right
shoulder disorders because that argument cannot result in a remedy more
favorable than vacatur and
remand. See Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam order
) (“A narrow decision
preserves for the appellant an opportunity to argue those claimed errors
before the Board at the
readjudication, and, of course, before this Court in an appeal, should the
Board rule against him.”).
Of course, Mr. Rayford remains free to present that argument, as well as
any additional arguments
and evidence, to the Board on remand in accordance with Kutscherousky v.
West, 12 Vet.App. 369,
372-73 (1999) (per curiam order). See Kay, 16 Vet.App. at 534. The Court
reminds the Board that
“[a] remand is meant to entail a critical examination of the justification
for [the Board’s] decision,”
Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991), and must be performed
in an expeditious manner
in accordance with 38 U.S.C. § 7112.
The Court notes that the Board also found that Mr. Rayford’s lay
statements of continuous right leg and right
knee symptoms since service were not credible. R. at 9. However, the Board
limited that credibility finding only to those statements, implicitly finding that the remainder of the cited lay evidence was credible (including other lay statements of a nexus between his current right lower extremity symptoms and service).
R. at 9, 12.
2
7

III. CONCLUSION
Upon consideration of the foregoing, the October 17, 2011, Board decision
is VACATED
and the matter is REMANDED for readjudication consistent with this
decision.
DATED: September 28, 2012
Copies to:
Lester Rayford, Jr.
VA General Counsel (027)
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