Veteranclaims’s Blog

November 29, 2017

Single Judge Application; Bankhead v. Shulkin, 29 Vet.App. 10, 22 (2017); “engage in a holistic analysis”; post hoc rationalizations; Martin v. Occupational Safety & Health Review Comm’n, 499 U.S. 144, 156 (1991);

Excerpt from decision below:

Because the symptoms enumerated in § 4.130 are not an exhaustive list, the Court has held that VA must consider “all the evidence of record that bears on occupational and social impairment,” and then “assign a disability rating that most closely reflects the level of social and occupational impairment a veteran is suffering.” Mauerhan v. Principi, 16 Vet.App. 436, 440-41(2002); see Bankhead v. Shulkin, 29 Vet.App. 10, 22 (2017) (requiring VA to “engage in a holistic analysis” of the claimant’s symptoms to determine the proper disability rating).”

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“Although the Secretary argues that any error by the Board in failing to discuss evidence
identified by the appellant is harmless, Secretary’s Br. at 11-14, the Secretary’s arguments to the contrary essentially amount to post hoc rationalizations, which the Court cannot accept.4 See Martin v. Occupational Safety & Health Review Comm’n, 499 U.S. 144, 156 (1991) (“‘[L]itigating positions’ are not entitled to deference when they are merely appellate counsel’s ‘post hoc rationalizations’ for agency action, advanced for the first time in the reviewing court.”); Evans v. Shinseki, 25 Vet.App. 7, 16 (2011) (“[I]t is the Board that is required to provide a complete statement of reasons or bases, and the Secretary cannot make up for its failure to do so.”).

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 16-1373
GERALD C. NORRIS, APPELLANT,
V.
DAVID J. SHULKIN, M.D.,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MEREDITH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
MEREDITH, Judge: The pro se appellant,1 Gerald C. Norris, appeals a January 11, 2016,
Board of Veterans’ Appeals (Board) decision that denied entitlement to an initial disability rating for post-traumatic stress disorder (PTSD) in excess of 30% prior to March 20, 2013, and in excess of 50% from March 20, 2013, and to a total disability rating based on individual unemployability
(TDIU).2 Record (R.) at 1-20. 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). For the following reasons, the Court will vacate the Board’s January 11, 2016, decision and remand the matters for further proceedings consistent with this decision.
1 The appellant was initially represented by counsel who moved to withdraw representation with this Court’s
approval. However, before counsel withdrew, counsel filed a brief. The appellant was provided an opportunity to file
a reply brief but has not done so.
2 The Court notes that entitlement to TDIU was not identified on the first page of the Board’s decision as an
issue on appeal, but because the Board adjudicated the issue as part of the appellant’s appeal for higher disability
ratings, the Court has jurisdiction to review the Board’s decision denying TDIU.
2
I. BACKGROUND
The appellant served on active duty in the U.S. Army from August 1968 to March 1971.
R. at 1643. In October 2006, the appellant filed a request to reopen a disability compensation claim
for PTSD. R. at 1209.
In April 2007, the appellant underwent a psychiatric examination. R. at 2493-97. The
examiner concluded that the appellant’s psychiatric symptoms resulted in occupational and social
impairment with occasional decrease in work efficiency and intermittent ability to perform
occupational tasks. R. at 2497. In support of this finding, the examiner noted the appellant’s
depressed mood, suspiciousness, panic attacks weekly or less often, chronic sleep impairment,
mild memory loss, lack of difficulty understanding commands, and lack of threat of persistent
danger or injury to self or others. Id. Mental status examination reflected, among other things,
abnormal affect and mood with flattened affect; “[h]allucination history is present occasionally,
including people talking but not making sense”; “[s]uicidal ideation is present including it has
crossed his mind since the accident when the pain was so bad, he calls and talks to people to control
this”; and “[h]omicidal ideation is present including daydreaming of killing the people who started
the Iraq war, he has no intent.” R. at 2496.
In October 2007, a VA regional office (RO) granted entitlement to disability compensation
for PTSD, assigning an initial disability rating of 30% effective October 23, 2006. R. at 995-1005.
In November 2007, the appellant filed a Notice of Disagreement, arguing that his disability rating
“should be much higher if not actually at 100%.” R. at 994; see R. at 993. In August 2008, the RO
issued a Statement of the Case (SOC), and the appellant timely perfected his appeal. R. at 968,
969-84.
A September 2010 VA treatment record reflects a clinical finding that the appellant “has
chronic nonspecific suicidal ideation. . . . [and he] states that he would seek help before harming
himself.” R. at 2200. March 2011 VA treatment records show that the appellant was hospitalized
for acute alcohol intoxication after he “presented as confused, hypoxic, with suicidal ideations” at
the time of the hospital admission. R. at 635. Additionally, just prior to the hospitalization, the
appellant disclosed that he “had a gun and shot it at the wall.” R. at 633.
In May 2012, the Board remanded the appellant’s claim to, among other things, provide
him with a VA examination because he last underwent an examination in April 2007. R. at 806-12.
In March 2013, the appellant underwent a psychiatric examination. R. at 517-32. The examiner
3
concluded that the appellant’s psychiatric symptoms resulted in occupational and social
impairment with reduced reliability and productivity. R. at 520-21. During the examination, the
appellant reported that he does not shave or shower for 2 weeks but will take “bird baths,” has
feelings of suicidal ideation and thoughts that he “would be better off [dead] but [he doesn’t] dwell
on it,” and has panic attacks most days of the week. R. at 522. The examiner also verified certain
symptoms experienced by the appellant, including near-continuous panic or depression; difficulty
in adapting to stressful circumstances, including work or a worklike setting; neglect of personal
appearance and hygiene; intermittent inability to perform activities of daily living, including
maintenance of minimal personal hygiene; and spatial disorientation. R. at 524-25, 528.
Additionally, the examiner noted that the appellant’s PTSD symptoms severely impaired abilities
that are important to occupational success, such as the ability to work cooperatively and effectively
with the public; ability to understand, follow, or retain instructions; and ability to maintain task
persistence and pace, arrive at work on time, and work a regular schedule without excessive
absences. R. at 530-31.
In July 2013, the RO issued a Supplemental SOC denying an initial rating in excess of 30%
for PTSD prior to March 20, 2013, but granting a rating of 50% for PTSD from March 20, 2013.
R. at 590-95. In May 2014, the Board remanded the appellant’s claim to obtain an addendum
opinion addressing the impact of the appellant’s psychiatric medications and any outstanding VA
treatment records. R. at 573-76. On January 11, 2016, the Board denied an initial disability rating
for PTSD in excess of 30% prior to March 20, 2013, and in excess of 50% thereafter. R. at 6-16.
Additionally, the Board denied entitlement to TDIU. R. at 17. This appeal followed.
II. ANALYSIS
The Board determination of the proper disability rating is a finding of fact that the Court
reviews under the “clearly erroneous” standard of review. See 38 U.S.C. § 7261(a)(4); Smallwood
v. Brown, 10 Vet.App. 93, 97 (1997). Similarly, the Board’s determination whether a veteran is
unable to secure or follow substantially gainful employment for entitlement to TDIU is a finding
of fact that this Court reviews under the same standard. See Bowling v. Principi, 15 Vet.App. 1, 6
(2001). 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 Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990).
4
As with any material issue of fact or law, the Board must provide a statement of the reasons or
bases for its determination “adequate to enable a claimant to understand the precise basis for the
Board’s decision, as well as to facilitate review in this Court.” Allday v. Brown, 7 Vet.App. 517,
527 (1995); see 38 U.S.C. § 7104(d)(1); Gilbert, 1 Vet.App. at 56-57.

A. Increased Rating
The appellant argues that the Board provided inadequate reasons or bases for its denial of
entitlement to an initial disability rating in excess of 30% prior to March 20, 2013, and in excess
of 50% thereafter. Appellant’s Brief (Br.) at 16-20. The Secretary maintains that the Board
provided adequate reasons or bases to support these findings or that any failure in this regard was
harmless error. Secretary’s Br. at 11-19.
Here, the Board denied entitlement to an initial disability rating for service-connected
PTSD in excess of 30% prior to March 20, 2013, and in excess of 50% from that date, pursuant to
38 C.F.R. § 4.130, Diagnostic Code (DC) 9411, which directs the rating specialist to apply the
general rating formula for mental disorders. According to the general rating formula, a 30%
disability rating is warranted where the evidence demonstrates the following:
Occupational and social impairment with occasional decrease in work efficiency
and intermittent periods of inability to perform occupational tasks (although
generally functioning satisfactorily, with routine behavior, self-care, and
conversation normal), due to such symptoms as: depressed mood, anxiety,
suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild
memory loss (such as forgetting names, directions, recent events).
38 C.F.R. § 4.130, DC 9411 (2017). A 50% disability rating is warranted where the evidence
demonstrates the following:
Occupational and social impairment with reduced reliability and productivity due
to such symptoms as: flattened affect; circumstantial, circumlocutory, or
stereotyped speech; panic attacks more than once a week; difficulty in
understanding complex commands; impairment of short- and long-term memory
(e.g., retention of only highly learned material, forgetting to complete tasks);
impaired judgment; impaired abstract thinking; disturbances of motivation and
mood; difficulty in establishing and maintaining effective work and social
relationships.
Id. A 70% disability rating is warranted where the evidence demonstrates the following:
Occupational and social impairment, with deficiencies in most areas, such as work,
school, family relations, judgment, thinking, or mood, due to such symptoms as:
suicidal ideation; obsessional rituals which interfere with routine activities; speech
intermittently illogical, obscure, or irrelevant; near-continuous panic or depression
affecting the ability to function independently, appropriately and effectively;
5
impaired impulse control (such as unprovoked irritability with periods of violence);
spatial disorientation; neglect of personal appearance and hygiene; difficulty in
adapting to stressful circumstances (including work or a worklike setting); inability
to establish and maintain effective relationships.
Id. A 100% disability rating is warranted where the evidence demonstrates the following:
Total occupational and social impairment, due to such symptoms as: gross
impairment in thought processes or communication; persistent delusions or
hallucinations; grossly inappropriate behavior; persistent danger of hurting self or
others; intermittent inability to perform activities of daily living (including
maintenance of minimal personal hygiene); disorientation to time or place; memory
loss for names of close relatives, own occupation, or own name.
Id.
Because the symptoms enumerated in § 4.130 are not an exhaustive list, the Court has held that VA must consider “all the evidence of record that bears on occupational and social impairment,” and then “assign a disability rating that most closely reflects the level of social and occupational impairment a veteran is suffering.” Mauerhan v. Principi, 16 Vet.App. 436, 440-41(2002); see Bankhead v. Shulkin, 29 Vet.App. 10, 22 (2017) (requiring VA to “engage in a holistic analysis” of the claimant’s symptoms to determine the proper disability rating). The U.S. Court of Appeals for the Federal Circuit has explained that evaluation under § 4.130 is “symptom driven,” meaning that “symptom[s] should be the fact finder’s primary focus when deciding entitlement to a given disability rating” under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17(Fed. Cir. 2013). “[A] veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” Id. at 117. To qualify for a particular disability rating, § 4.130 requires “not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” Id. at 117; see 38 C.F.R. § 4.130, DC 9411.
With respect to the period prior to March 20, 2013, the appellant argues that the Board
failed to address potentially favorable evidence demonstrating, among other things, suicidal and homicidal ideation, flattened affect, occasional hallucinations, and impairment in memory and concentration, warranting the assignment of a disability rating of 50% or higher for this period. Appellant’s Br. at 16-18.
Here, the Board determined that the April 2007 VA examiner’s report was “persuasive.” R. at 12. The Board identified symptoms cited by the examiner that the appellant had complained of,
6
including ongoing trouble sleeping (including frequent nightmares), irritability, panic attacks,
depression, loss of interest in activities, mild difficulties with memory and concentration,
hypervigilance, exaggerated startle response, and good relationships with siblings and children but
avoidance of other social interaction. Id. The Board also observed that the examiner did not find
that the appellant had experienced “such symptoms as difficulty in orientation, understanding
complex commands, or impaired judgment, speech, memory, or abstract thinking.” Id. Based upon
the examiner’s findings, the Board “note[d] that the documented symptoms more closely align with
the symptomatology typical of the criteria for a 30[%] disability rating.” Id. In addition, the Board
found that the examiner had “credibly and competently evaluated [the appellant’s] complaints” and
that the symptoms that the appellant reported during the April 2007 VA examination were
“identical to those he reported at each of his VA treatment visits from 2006 to 2013.” Id. Moreover,
the Board found the examiner’s ultimate conclusion—that the appellant’s PTSD symptomatology
for this period “caused no more than occupational and social impairment with occasional decrease
in work efficiency and intermittent periods of inability to perform occupational tasks”—to be both
“compelling” and “persuasive.” Id. The Board also concluded that, “despite the finding of
‘nonspecific suicidal ideation,’ [the appellant] has consistently been found not to pose a danger of
acting on such thoughts.” R. at 16. Accordingly, the Board concluded that a rating in excess of
30% was not warranted prior to March 20, 2013. R. at 12.
The Court finds that the Board did not discuss evidence identified by the appellant in his
brief, including the April 2007 VA examiner’s finding of abnormal affect and mood with flattened
affect; finding that “[h]allucination history is present occasionally, including people talking but
not making sense”; finding that “[s]uicidal ideation is present including it has crossed his mind
since the accident when the pain was so bad, [and that] he calls and talks to people to control this”;
and finding that “[h]omicidal ideation is present including daydreaming of killing the people who
started the Iraq war, [but] he has no intent.” R. at 2496. In addition, as shown by the appellant, the
Board failed to address two March 2011 VA treatment records: The first reflecting the appellant’s
hospitalization for acute alcohol intoxication during which he disclosed that he “had a gun and
shot it at the wall,” R. at 633, and the other reflecting that the appellant “presented as confused,
hypoxic, with suicidal ideations” at the time of the hospital admission. R. at 635. Such evidence
constitutes potentially favorable evidence, unaddressed by the Board, which may be relevant to
7
the assignment of a disability rating in excess of 30% prior to March 20, 2013.3 See Thompson v.
Gober, 14 Vet.App. 187, 188 (2000) (per curiam order); Caluza v. Brown, 7 Vet.App. 498, 506
(1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table) (holding that the Board must analyze
the credibility and probative value of the material 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).
Although the Secretary argues that any error by the Board in failing to discuss evidence identified by the appellant is harmless, Secretary’s Br. at 11-14, the Secretary’s arguments to the contrary essentially amount to post hoc rationalizations, which the Court cannot accept.4 See Martin v. Occupational Safety & Health Review Comm’n, 499 U.S. 144, 156 (1991) (“‘[L]itigating positions’ are not entitled to deference when they are merely appellate counsel’s ‘post hoc rationalizations’ for agency action, advanced for the first time in the reviewing court.”); Evans v. Shinseki, 25 Vet.App. 7, 16 (2011) (“[I]t is the Board that is required to provide a complete statement of reasons or bases, and the Secretary cannot make up for its failure to do so.”).
With respect to the period from March 20, 2013, the appellant maintains that the Board
failed to discuss key findings made by the March 2013 examiner. Appellant’s Br. at 19-20. In its
analysis for this time period, the Board found that a disability rating of 50%, but no higher, was
warranted based on the appellant’s symptoms of “anxiety, irritability, disturbances of motivation
and mood, and difficulty establishing and maintaining effective relationships” resulting in
occupational and social impairment with reduced reliability and productivity. R. at 13. The Board
explained that the appellant had been treated “on multiple occasions by VA treatment providers
for complaints of irritability, anxiety and depression, nightmares and intrusive thoughts, difficulty
concentrating, and social withdrawal—symptoms identical to those reported to the March 2013
VA examiner.” Id. The Board also stated that it was “particularly persua[ded]” that a 50% disability
rating was appropriate based upon the appellant’s “ongoing anxiety, as well as depression,
3 The Court notes that, after the Board issued its decision and the parties filed their briefs, the Court issued
its decision in Bankhead, which held that the criterion of “suicidal ideation” under DC 9411 does not distinguish
between active and passive forms of suicidal ideation and that “the presence of suicidal ideation alone[] . . . may cause
occupational and social impairment with deficiencies in most areas.” 29 Vet.App. at 20.
4 Further, to the extent that the Secretary argues that some symptoms or manifestations identified by the
appellant are associated only with his history of alcohol abuse and not PTSD, the Court notes that the April 2007
examiner found that his diagnoses of PTSD and alcoholism were related and that his substance abuse resulted from
his PTSD. R. at 2496.
8
nightmares, mildly impaired memory, intermittent neglect of hygiene, and disturbances of
motivation and mood.” Id. The Board further determined that the appellant “has regularly been
found not to display active suicidal ideation or intent,” despite evidence that he displays “‘chronic
nonspecific suicidal ideation.'”5 R. at 14. Additionally, the Board noted, without further comment
or explanation, that the March 2013 examiner had also “specifically found” that the appellant’s
“overall level of symptomatology amounted to occupational and social impairment with reduced
reliability and productivity.” R. at 13.
The Court agrees with the appellant that the Board did not provide adequate reasons or
bases for its denial of a rating above 50%. In particular, the appellant notes that the March 2013
examiner identified many symptoms reported by the appellant during the examination that might
have warranted a higher rating, including deep depression causing him to neglect showering but
to take “bird baths” instead; suicidal ideation with thoughts that he would be better off dead; and
panic attacks most days of the week. Appellant’s Br. at 19-20; R. at 522. Additionally, the appellant
calls attention to other PTSD symptoms, suffered by the appellant and found by the March 2013
examiner, that are explicitly listed in the 70% and 100% rating criteria under DC 9411 and may
support a higher rating, such as difficulty adapting to stressful circumstances, including work or a
worklike setting; neglect of personal appearance and hygiene; intermittent inability to perform
activities of daily living, including maintenance of minimal personal hygiene; and spatial
disorientation. Appellant’s Br. at 19-20; R. at 525, 528. These findings by the March 2013
examiner represent potentially favorably evidence, which in its analysis the Board failed to
adequately address or address at all. See Thompson, 14 Vet.App. at 188.
The Secretary argues that it is “clear that [the Board] considered and discussed the March
2013 VA examination report in detail” and relied on that report for the assignment of a 50% rating.
Secretary’s Br. at 17. The Court disagrees because the Board’s decision merely mentions these
symptoms in its summary of the March 2013 VA examination report, but the decision does not
discuss or analyze them in support of the determination that a disability rating higher than 50%
was not warranted from March 20, 2013. See Dennis v. Nicholson, 21 Vet.App. 18, 22 (2007)
(“[M]erely listing the evidence before stating a conclusion does not constitute an adequate
statement of reasons or bases.” (citing Abernathy v. Principi, 3 Vet.App. 461, 465 (1992))).
5 The Court notes that the Board’s citation to evidence of “chronic nonspecific suicidal ideation” is taken from
a September 2010 VA treatment record, which is outside the relevant period beginning March 20, 2013. R. at 2200.
9
Therefore, the Court concludes that the Board’s failure to provide adequate reasons or bases
in support of its denial of higher initial ratings for service-connected PTSD impedes review of this
matter by the Court. See Allday, 7 Vet.App. at 527. Accordingly, the Court will remand the matter
to allow the Board to provide an adequate statement of reasons or bases for its decision. See Tucker
v. West, 11 Vet.App. 369, 374 (1998).
Given this disposition, the Court will not now address the remaining arguments and issues
raised by the appellant. Quirin v. Shinseki, 22 Vet.App. 390, 395 (2009) (noting that “the Court
will not ordinarily consider additional allegations of error that have been rendered moot by the
Court’s opinion or that would require the Court to issue an advisory opinion”); see Best v. Principi,
15 Vet.App. 18, 20 (2001) (per curiam order).
B. TDIU
TDIU may be assigned to a veteran who meets certain disability percentage thresholds and
is “unable to secure or follow a substantially gainful occupation as a result of service-connected
disabilities.” 38 C.F.R. § 4.16(a) (2017). If a veteran fails to meet the percentage standards set
forth in § 4.16(a) but is “unemployable by reason of service-connected disabilities,” the matter
should be submitted to the Director of the Compensation Service for extraschedular consideration.
38 C.F.R. § 4.16(b). The Court has held that “a request for TDIU, whether expressly raised by [an
appellant] or reasonably raised by the record, is not a separate claim for benefits, but rather
involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of
the initial adjudication of a claim or, if a disability upon which entitlement to TDIU is based has
already been found to be service connected, as part of a claim for increased compensation.” Rice
v. Shinseki, 22 Vet.App. 447, 453-54 (2009) (per curiam).
The Board’s decision regarding the issue of TDIU consists of an acknowledgment of the
Court’s holding in Rice and the following analysis:
[I]n this case, the RO specifically contacted the [appellant] in January 2013 to
clarify if he intended to seek entitlement to a TDIU; however, he did not respond
to that inquiry. Further, his [Social Security Administration] disability benefits
were awarded in large part on the basis of non-service-connected disorders. In this
regard, the Board recognizes that the [appellant] experiences some difficulty
working due to his PTSD but notes that this is reflected in the disability ratings that
have been assigned for the disorder. The criteria for a TDIU have not been met
during the appeal period.
R. at 17.
10
The exact nature of the Board’s findings on the appellant’s entitlement to TDIU is not clear.
The appellant specifically contends that the Board declined to consider TDIU because he failed to
respond to the RO’s inquiry and in doing so misapplied Rice by “wrongly shift[ing] the burden to
[the appellant]” to sustain a claim for TDIU, despite the Board’s finding in a May 2012 remand
that the issue had been raised. Appellant’s Br. at 24-25; see R. at 807. The appellant also argues
that the Board erred by declining to consider entitlement to TDIU based upon the appellant’s work
difficulties due to PTSD because those difficulties are “‘reflected in the disability ratings that have
been assigned for [PTSD].'” Appellant’s Br. at 26 (quoting R. at 17). The Secretary concedes that
the Board failed to provide adequate reasons or bases for its denial of TDIU. Secretary’s Br. at
19-20.
The Court agrees with the parties that the Board’s determination that the criteria for TDIU
were not met must be vacated and the matter remanded for readjudication. Although it appears that
the Board might have denied TDIU on the merits by stating that “[t]he criteria for a TDIU have
not been met,” the Board did not analyze any of the evidence of record or explain whether the
appellant’s PTSD renders him unable to secure or follow a substantially gainful occupation. As
noted above, if TDIU is raised by the record, the recognized criteria for entitlement are whether
the appellant is “unable to secure or follow a substantially gainful occupation as a result of
service-connected disabilities,” 38 C.F.R. § 4.16(a), or whether he is “unemployable by reason of
service-connected disabilities,” 38 C.F.R. § 4.16(b). On the other hand, assuming, as the appellant
argues, that the Board determined that it was no longer required to adjudicate TDIU because the
appellant failed to respond to the RO’s inquiry and/or because his work difficulties were reflected
in his disability ratings for PTSD, the Board did not explain adequately why either of those bases
relieved the Board of its duty to fully adjudicate an issue that the Board had previously determined
was reasonably raised by the record. Remand is therefore required.
On remand, the appellant is free to submit additional evidence and argument on the
remanded matters, including the specific arguments raised here on appeal, and the Board is
required to consider any such relevant evidence and argument. See Kay v. Principi, 16 Vet.App.
529, 534 (2002) (stating that, on remand, the Board must consider additional evidence and
argument in assessing entitlement to the benefit sought); Kutscherousky v. West, 12 Vet.App. 369,
372-73 (1999) (per curiam order). The Court reminds the Board that “[a] remand is meant to entail
11
a critical examination of the justification for the decision,” Fletcher v. Derwinski, 1 Vet.App. 394,
397 (1991), and the Board must proceed expeditiously, in accordance with 38 U.S.C. § 7112.
III. CONCLUSION
After consideration of the parties’ pleadings and a review of the record, the Board’s
January 11, 2016, decision is VACATED and the matters are REMANDED for further
proceedings consistent with this decision.
DATED: November 28, 2017
Copies to:
Gerald C. Norris
VA General Counsel (027)

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