Veteranclaims’s Blog

February 19, 2020

Single Judge Application; clear and unmistakable error (CUE); PULHES; presumption of soundness; 38 U.S.C. § 311 (1970); 38 U.S.C. § 1111 (2019); constitutional or developmental abnormality; VA Prec. Coun. Op. 11-1999 (Sept. 2, 1999), ¶¶ 2-3; see VA Prec. Coun. Op. 82-1990 (July 18, 1990; reissuing VA Gen. Coun. Op. 1- 85); VA Prec. Coun. Op. 67-1990 (July 18, 1990; reissuing VA Gen. Coun. Op. 8-88) (both addressing the availability of service connection for congenital and developmental conditions, specifically including RP);

Filed under: Uncategorized — Tags: — veteranclaims @ 10:20 pm

Excerpt from decision below:

PULHES is a rating system widely used by military physicians to evaluate a servicemember’s physical and mental health upon entrance into and separation from service. See McIntosh v. Brown, 4 Vet.App. 553, 555 (1993).
PULHES” is an acronym that represents the six categories of the physical profile serial: “P” stands for “physical capacity or stamina”; “U” stands for “upper extremities”; “L” stands for “lower extremities”; “H” stands for “hearing and ears”; “E” stands for “eyes”; and “S” stands for “psychiatric.” Id. A profile serial was assigned on a scale of 1 to 4 for each of the six categories, with “1” indicating the highest level of fitness and “4” representing defects below the minimum standards for enlistment or induction. Id.”

=======================

“In April 1970, as now, veterans were entitled to the presumption of soundness:
[E]very veteran shall be taken to have been in sound condition when examined,
accepted, and enrolled for service, except as to defects, infirmities, or disorders
noted at the time of the examination, acceptance, and enrollment, or where clear
and unmistakable evidence demonstrates that the injury or disease existed before
acceptance and enrollment and was not aggravated by such service.
38 U.S.C. § 311 (1970); 38 U.S.C. § 1111 (2019); see Pub. L. No. 102-83, § 5(a) (Aug. 6, 1991) (redesignating section 311 as section 1111, without material amendment). At that time, if no preexisting condition was noted upon entry into service, a veteran was presumed to have been sound in every respect. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); see also Patrick v. Shinseki, 668 F.3d 1325, 1334, n.6 (Fed. Cir. 2012) (explaining that Wagner “‘did not change the law but explained what [section] 1111 has always meant'” (quoting Patrick v. Principi,
6
242 Fed. Appx. 695, 698 (Fed. Cir. 2007))). If the presumption applies, the burden falls on VA to rebut the presumption with clear and unmistakable evidence that an injury or disease that manifested in service was both preexisting and not aggravated by service. 38 U.S.C. § 311 (1970); see Wagner, 370 F.3d at 1096; Horn, 25 Vet.App. at 234.”

==========================

” Second, the RO indicated that it denied compensation, not because RP was a preexisting condition that was not aggravated by service, but instead because it was a constitutional or developmental abnormality and, therefore, “not a disability under the law.” R. at 1703, 1706; see R. at 1705. Although the Board noted that a 1999 opinion of VA’s Office of General Counsel (OGC) concluded that VA’s former adjudicative manual provisions did not preclude service connection despite considering RP to be of “familial origin,” R. at 13, the Board failed to appreciate that the OGC opinion was requested because of the belief, prior to 1985, that service connection was prohibited for RP as it was a hereditary condition, VA Prec. Coun. Op. 11-1999 (Sept. 2, 1999), ¶¶ 2-3; see VA Prec. Coun. Op. 82-1990 (July 18, 1990; reissuing VA Gen. Coun. Op. 1- 85); VA Prec. Coun. Op. 67-1990 (July 18, 1990; reissuing VA Gen. Coun. Op. 8-88) (both addressing the availability of service connection for congenital and developmental conditions,
specifically including RP)
.

==========================

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 18-3368
FRANK A. VACANERI, JR., APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before BARTLEY, Chief Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
BARTLEY, Chief Judge: Veteran Frank A. Vacaneri, Jr., appeals through counsel a June 1, 2018, Board of Veterans’ Appeals (Board) decision that found no clear and unmistakable error (CUE) in an April 1970 VA regional office (RO) decision that denied service connection for a
bilateral eye condition. Record (R.) at 3-20. For the reasons that follow, the Court will set aside the June 2018 Board decision and remand the matter for readjudication consistent with this decision.
I. BACKGROUND
Mr. Vacaneri served honorably on active duty in the U.S. Army from July 1969 to March
1970, including service in the Republic of Vietnam. R. at 1619. On an April 1969 pre-induction
medical examination report, a service physician recorded a normal clinical assessment of the eyes
but identified “def[ective] vision” under the subheading “summary of defects and diagnoses” and
assigned a PULHES score of E2.1 R. at 194-95 (noting visual acuity of 20/40 in the right eye and
1 PULHES is a rating system widely used by military physicians to evaluate a servicemember’s physical and mental health upon entrance into and separation from service. See McIntosh v. Brown, 4 Vet.App. 553, 555 (1993).
PULHES” is an acronym that represents the six categories of the physical profile serial: “P” stands for “physical capacity or stamina”; “U” stands for “upper extremities”; “L” stands for “lower extremities”; “H” stands for “hearing and ears”; “E” stands for “eyes”; and “S” stands for “psychiatric.” Id. A profile serial was assigned on a scale of 1 to
2
20/50 in the left eye). Service treatment records from October 1969 show that he complained of poor vision and night blindness. R. at 136, 1688. A February 15, 1970, clinical record cover sheet reflected that Mr. Vacaneri was hospitalized for eight days and diagnosed with retinitis pigmentosa (RP)2 and a notation that the condition was incurred in the line of duty and not preexisting. R. at 198 (“LD: Yes. Not PR.”).
A March 4, 1970, clinical record narrative summary showed that Mr. Vacaneri reported
“[p]oor night vision for several years” and that he was recently evacuated from Vietnam due to
poor night vision. R. at 138. Examination of the eyes was “normal except for the fundi which
revealed typical pigmentary changes of advanced [RP]” with visual fields constricted bilaterally
to within five degrees of fixation. Id. The record included a notation that RP was not incurred in
the line of duty and existed prior to service (“LOD: No, EPTS”), as well as a recommendation that
he meet with the Physical Evaluation Board. Id.
A March 16, 1970, Medical Board Proceedings report showed that Mr. Vacaneri was
deemed medically unfit for service due to bilateral RP with poor night vision and constriction of
the visual fields to within five degrees. R. at 1697. The report reflected that RP existed prior to
service and was not incurred in the line of duty, caused incident to service, or aggravated by
service. Id. The report also described RP as “a progressive hereditary disease causing night
blindness, gradual loss of peripheral vision, and eventually blindness.” R. at 1698. The Medical
Board recommended referral to the Physical Evaluation Board. Id.
A March 20, 1970, clinical record cover sheet reflected that Mr. Vacaneri separated from
service due to “[d]isability, EPTS, not aggravated by [service],” which was identified as bilateral
RP with poor night vision and constriction of visual fields to within five degrees. R. at 196.
Contemporaneous with his discharge, Mr. Vacaneri filed a claim for service connection for
a bilateral eye condition with loss of vision at night. R. at 1700-01. In an April 1970 decision, the
RO denied the claim, explaining that the April 1969 pre-induction examination report noted
defective vision, RP was diagnosed in February 1970, and Mr. Vacaneri was subsequently
discharged due to RP in March 1970. R. at 1706. The RO decision noted that RP was a
4 for each of the six categories, with “1” indicating the highest level of fitness and “4” representing defects below the
minimum standards for enlistment or induction. Id.

2 RP is a “slowly progressive, bilateral degeneration of the retina . . . caused by various genetic mutations.
Symptoms include night blindness and loss of peripheral vision.” THE MERCK MANUAL 618 (19th ed. 2011).
3
constitutional or developmental abnormality not subject to service connection. Id. The RO notified
Mr. Vacaneri of its decision in May 1970, indicating that his eye condition was not a disability
recognized under the law. R. at 1703. The letter further explained that the service records reflected
that defective vision was noted on his pre-induction examination and that his diagnosed eye
condition was determined “to have existed prior to service, [but was] not aggravated by service.”
Id. Mr. Vacaneri did not appeal the adverse RO decision.
In May 1979 and March 1980, he sought to reopen the claim for service connection for a
bilateral eye condition. R. at 1561-64, 1577-80. In September 1980, VA continued the denial of
service connection. R. at 1495. In May 2005, he again sought to reopen the claim for service
connection, R. at 1305, and, although the RO reopened the claim, it again denied service
connection, R. at 1287-89.
In November 2007, Mr. Vacaneri filed another petition to reopen the claim for service
connection for an eye condition. R. at 1269-74. In March 2008, the RO again continued its denial
of service connection. R. at 1241-47. In June 2008, Mr. Vacaneri filed a Notice of Disagreement
(NOD), and, following a January 2009 Statement of the Case (SOC), R. at 1181-95, he perfected
an appeal to the Board in March 2009, R. at 1203. Also, in March 2009, Mr. Vacaneri, through
counsel, argued that VA had committed CUE “each time it denied the [] claim for service
connection” because it did not “apply the proper law[] or afford [him] the presumption of
soundness and aggravation.” R. at 1210.
In July 2012, Mr. Vacaneri underwent a VA examination addressing his eye condition. R.
at 1087-103. In August 2012, a supplemental opinion was obtained from a separate VA examiner.
R. at 1069-70. In August 2012, the RO awarded service connection for bilateral RP with residual
blindness, assigning a 100% disability evaluation effective November 23, 2007. R. at 510-17. In
the same decision, the RO determined that its April 1970 decision contained no CUE because
medical evidence in service showed that his eye disability preexisted service and was not
aggravated by service. R. at 514.
In October 2012, Mr. Vacaneri filed an NOD as to the RO’s determination that the April
1970 rating decision did not contain CUE. R. at 424-35. Following an April 2014 SOC, R. at 352-
69, he timely perfected an appeal to the Board, R. at 350-51.
In January 2016, the Board concluded that the April 1970 RO decision did not contain
CUE. R. at 252-67. Mr. Vacaneri appealed the adverse decision to this Court. In a September 2017
4
decision, the Court set aside the January 2016 Board decision and remanded the matter for further
adjudication of his CUE motion. R. at 117-26. The Court explained that the Board had provided
inadequate reasons or bases concerning its finding regarding the RO’s application of the
presumption of soundness because it did not adequately address seemingly conflicting medical
evidence extent in April 1970 and because it did not address the applicability of Horn v. Shinseki,
25 Vet.App. 231 (2013). R. at 121-23.
In the June 2018 decision on appeal, the Board found no CUE in the April 1970 RO
decision. R. at 4-20. In its analysis, the Board noted that “in finding that [RP] had existed prior to
service, it was implicitly determined in the April 1970 rating decision that the presumption of
soundness had been rebutted by clear and unmistakable evidence.” R. at 14. This appeal followed.
II. JURISDICTION AND STANDARD OF REVIEW
Mr. Vacaneri’s appeal is timely and the Court has jurisdiction to review the June 2018
Board 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).
When a prior final RO decision contains CUE, that decision may be reversed or revised,
resulting in correction of the error effective the date of its commission. 38 U.S.C. § 5109A; see
Simmons v. Wilkie, 30 Vet.App. 267, 274-75 (2018); DiCarlo v. Nicholson, 20 Vet.App. 52, 54-
58 (2006); 38 C.F.R. § 3.105 (2019). CUE is established when the following components are met:
(1) Either the correct facts as they were known at the time were not before the adjudicator, the
adjudicator made an erroneous factual finding, or the statutory or regulatory provisions extant at
the time were incorrectly applied; (2) the alleged error is “undebatable,” not merely a
“disagreement as to how the facts were weighed or evaluated”; and (3) the error “manifestly
changed the outcome” of the prior decision. Russell v. Principi, 3 Vet.App. 310, 313-14, 319
(1992); see King v. Shinseki, 26 Vet.App. 433, 439 (2014); Bouton v. Peake, 23 Vet.App. 70, 71-
72 (2008); Damrel v. Brown, 6 Vet.App. 242, 245 (1994); see also Bustos v. West, 179 F.3d 1378,
1380-81 (Fed. Cir. 1999).
“CUE is a very specific and rare kind of ‘error’ . . . of fact or law, that when called to the
attention of later reviewers compels the conclusion, to which reasonable minds could not differ,
that the result would have been manifestly different but for the error.” Fugo v. Brown, 6 Vet.App.
40, 43 (1993). “[I]f it is not absolutely clear that a different result would have ensued,” based upon
5
the facts and law that were understood at the time of the decision, then any error that may have
occurred in a final Board or RO decision is not clear and unmistakable. Id. at 44.
The Court’s review of a Board decision finding no CUE in a prior, final RO decision is
limited to determining whether the Board’s finding was “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law,” 38 U.S.C. § 7261(a)(3)(A), and whether it
was supported by an adequate statement of reasons or bases, 38 U.S.C. § 7104(d)(1). See
Cacciola v. Gibson, 27 Vet.App. 45, 59 (2014); Eddy v. Brown, 9 Vet.App. 52, 57 (1996). To be
adequate, the Board’s reasons or bases must enable a claimant to understand the precise basis for
the Board’s decision and facilitate review in this Court. See 38 U.S.C. § 7104(d)(1); Gilbert v.
Derwinski, 1 Vet.App. 49, 57 (1990). The Board must also analyze the credibility and probative
value of evidence, account for evidence that it finds to be persuasive or unpersuasive, and provide
the reasons for its rejection of 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).

III. ANALYSIS
Mr. Vacaneri argues that the Board committed reversible error because its determination
that the RO correctly applied the presumption of soundness is not in accordance with law and because the evidence before the RO in April 1970 satisfied the elements of service connection, thus warranting revision of the April 1970 decision to reflect an award of service connection.
Appellant’s Brief (Br.) at 5-26. The Secretary disagrees with these contentions and urges the Court
to affirm the Board decision. Secretary’s Br. at 8-28.
In April 1970, as now, veterans were entitled to the presumption of soundness:
[E]very veteran shall be taken to have been in sound condition when examined,
accepted, and enrolled for service, except as to defects, infirmities, or disorders
noted at the time of the examination, acceptance, and enrollment, or where clear
and unmistakable evidence demonstrates that the injury or disease existed before
acceptance and enrollment and was not aggravated by such service.
38 U.S.C. § 311 (1970); 38 U.S.C. § 1111 (2019); see Pub. L. No. 102-83, § 5(a) (Aug. 6, 1991) (redesignating section 311 as section 1111, without material amendment). At that time, if no preexisting condition was noted upon entry into service, a veteran was presumed to have been sound in every respect. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); see also Patrick v. Shinseki, 668 F.3d 1325, 1334, n.6 (Fed. Cir. 2012) (explaining that Wagner “‘did not change the law but explained what [section] 1111 has always meant'” (quoting Patrick v. Principi,
6
242 Fed. Appx. 695, 698 (Fed. Cir. 2007))). If the presumption applies, the burden falls on VA to rebut the presumption with clear and unmistakable evidence that an injury or disease that manifested in service was both preexisting and not aggravated by service. 38 U.S.C. § 311 (1970); see Wagner, 370 F.3d at 1096; Horn, 25 Vet.App. at 234.
“The government may show a lack of
aggravation by establishing that there was no increase in disability during service or that any ‘increase in disability [was] due to the natural progress’ of the preexisting condition.” Wagner, 370 F.3d at 1096 (quoting 38 U.S.C. § 1153); see Horn, 25 Vet.App. at 235. To qualify as “clear and unmistakable,” evidence “cannot be misinterpreted and misunderstood, i.e., it [must be] undebatable.” Vanerson v. West, 12 Vet.App. 254, 258 (1999) (relying on the plain meaning of the phrase).
In its decision, the Board found that “[b]ecause there was no notation of [RP] at the time
of the [v]eteran’s entry into service, he was entitled to the presumption of soundness.” R. at 12; see
R. at 261 (January 2016 Board decision reaching the same conclusion). As noted in our September
2017 memorandum decision, the Court, and seemingly both parties, agreed that the presumption
of soundness applied. R. at 117-26; see Browder v. Brown, 5 Vet.App. 268, 270 (1993) (noting
that “under the doctrine of ‘law of the case,’ questions settled [in] a former appeal of the same case
are no longer open for review”).
In finding that the RO did not commit CUE in its April 1970 decision, the Board
determined that the RO, albeit implicitly, applied the presumption of soundness and found that it
was rebutted with clear and unmistakable evidence. R. at 12-14. The Court concludes, however,
that the Board failed to provide adequate reasons or bases for its decision. Specifically, the Board
did not adequately explain how it determined that the RO in its April 1970 decision applied and
rebutted the presumption of soundness.
The Board determined that the presumption of soundness applies to Mr. Vacaneri because,
although the pre-induction examination report noted defective vision, there was no notation of RP.
R. at 12. Then, the Board discussed the evidence extant at the time of the April 1970 RO decision,
most of which is not addressed in the RO decision,3 and concluded that, because the RO found that
3 The Court is not suggesting that the RO did not consider the extant evidence, only that the Board’s reasons
or bases are deficient in light of the RO’s limited discussion of the evidence. See Eddy, 9 Vet.App. at 58 (noting that
prior to February 1990, ROs were not required to include in their decision a “summary of the evidence considered,”
so silence in an earlier RO decision cannot be taken as showing a failure to consider evidence of record); see also
Crippen v. Brown, 9 Vet.App. 412, 420 (1996).
7
RP “had existed prior to service, it was implicitly determined . . . that the presumption of soundness
had been rebutted by clear and unmistakable evidence.” R. at 14. However, the Board’s analysis
glosses over whether the RO in fact adjudicated Mr. Vacaneri’s claim within the presumption of
soundness framework.
Instead, the Board seemingly operated under the assumption that, because it determined
that the presumption of soundness should have applied, the RO must have similarly found the
presumption applicable. Such an assumption, however, appears to run counter to the content of the
RO’s April 1970 decision. First, although the RO in 1970 was not required to specify the evidence
considered or the reasons for its decision, see Crippen, 9 Vet.App. at 420; Eddy, 9 Vet.App. at 58,
it specifically noted that Mr. Vacaneri’s pre-induction examination noted defective vision, R. at
1706; see R. at 1703 (May 1970 notification letter: “Your service records show that defective
vision was noted on your pre-induction examination.”). The RO’s specific inclusion of the notation
of the pre-induction examination report suggests that it considered the notation of defective vision
sufficient to render the presumption of soundness inapplicable. R. at 1703, 1706.
Second, the RO indicated that it denied compensation, not because RP was a preexisting condition that was not aggravated by service, but instead because it was a constitutional or developmental abnormality and, therefore, “not a disability under the law.” R. at 1703, 1706; see R. at 1705. Although the Board noted that a 1999 opinion of VA’s Office of General Counsel (OGC) concluded that VA’s former adjudicative manual provisions did not preclude service connection despite considering RP to be of “familial origin,” R. at 13, the Board failed to appreciate that the OGC opinion was requested because of the belief, prior to 1985, that service connection was prohibited for RP as it was a hereditary condition, VA Prec. Coun. Op. 11-1999 (Sept. 2, 1999), ¶¶ 2-3; see VA Prec. Coun. Op. 82-1990 (July 18, 1990; reissuing VA Gen. Coun. Op. 1- 85); VA Prec. Coun. Op. 67-1990 (July 18, 1990; reissuing VA Gen. Coun. Op. 8-88) (both addressing the availability of service connection for congenital and developmental conditions,
specifically including RP).

In its April 1970 decision, the RO denied Mr. Vacaneri service connection for RP. The RO
did not explicitly apply the presumption of soundness or explicitly conclude that the presumption
had been rebutted. It did explicitly note that Mr. Vacaneri’s pre-induction examination report
reflected that he entered service with defective vision. Additionally, it explicitly noted that RP was
a constitutional or developmental abnormality. The Board failed to address, let alone reconcile,
8
these explicit portions of the RO’s April 1970 decision and May 1970 notification letter in reaching
its determination that the RO implicitly applied the presumption of soundness and implicitly found
it rebutted with clear and unmistakable evidence.
The Board’s lack of adequate reasons or bases explaining how it determined that the RO
implicitly considered and applied the presumption of soundness despite explicit portions of the
RO’s decision and notification letter that seem to contradict such a conclusion frustrates judicial
review. The Secretary argues, however, that Mr. Vacaneri fails to demonstrate prejudicial error, as
demonstrating the existence of CUE is a high burden. Secretary’s Br. at 13, 21; see Berger v.
Brown, 10 Vet.App. 166, 169 (1997) (noting the “extra-heavy burden when the appeal is a
collateral attack”). The Court disagrees.
Notably, without adequate reasons or bases, it is unclear to the Court whether the Board
properly considered how the RO in its April 1970 decision adjudicated Mr. Vacaneri’s claim and
specifically whether the RO considered Mr. Vacaneri’s claim under the presumption of soundness
framework. Before the Board can determine if the RO properly rebutted the presumption of
soundness, it must first determine that it actually applied the presumption. The Board conducted
no such analysis here, but instead concluded that the RO had implicitly applied the presumption
because the Board determined that the presumption applied and the RO had denied the claim.
However, such an outcome-driven analysis is incorrect as the RO could have denied the claim
under a presumption of aggravation framework or because RP was considered a non-serviceconnectable
disability. Because the Board has determined that the presumption of soundness was
applicable, it needed to conduct an analysis, supported by adequate reasons or bases, discussing
whether the RO properly applied the presumption or committed an error of law in failing to afford
Mr. Vacaneri the presumption.
The Board’s outcome-driven analysis similarly tainted the remainder of its analysis.
Specifically, despite the RO’s limited discussion of the extant evidence, the Board somehow found
that the RO “found that the medical evidence of record at the time overwhelmingly supported a
conclusion that the [v]eteran’s [RP] existed prior to service and was not aggravated during service,”
R. at 13-14, a description the Secretary acknowledges was an apparent mischaracterization,
Secretary’s Br. at 12-13. Similarly, the Board determined that “the outcome of the decision reflects
that the rating board determined that the evidence in favor of the [v]eteran’s claim was outweighed
by the evidence against his claim,” R. at 14, yet the standard is clear and unmistakable evidence,
9
not simply a preponderance of evidence. In light of the Board’s failure to either properly address
the April 1970 RO decision or to adequately explain its determination, the Court is not convinced
that the Board’s ultimate conclusion, without consideration of its error, is otherwise correct.
The Court concludes that the Board’s June 2018 decision is not supported by adequate
reasons or bases. Although Mr. Vacaneri argues that the proper remedy is to reverse the Board’s
denial of his CUE motion and direct the Secretary to grant service connection for RP effective the
date of his original claim, Appellant’s Br. at 26, the Court concludes that remand is appropriate in
this case because the Board provided inadequate reasons or bases for its analysis. See Tucker v.
West, 11 Vet.App. 369, 374 (1998) (holding that remand is the appropriate remedy “where the
Board has . . . failed to provide an adequate statement of reasons or bases for its determinations”).
Because additional factfinding and evaluation of the evidence are necessary to make a decision on
the CUE motion, remand, not reversal, is the proper remedy in this case. See Bankhead v. Shulkin,
29 Vet.App. 10, 23 (2017); see also Deloach v. Shinseki, 704 F.3d 1370, 1380 (Fed. Cir. 2013)
(explaining that reversal is appropriate only when “the Board has performed the necessary factfinding
and explicitly weighed the evidence” and the Court, “on the entire evidence, [] is left with
the definite and firm conviction that a mistake has been committed”).
On remand, Mr. Vacaneri is free to submit additional arguments and evidence, including
the arguments raised in his briefs to this Court, in accordance with Kutscherousky v. West,
12 Vet.App. 369, 372-73 (1999) (per curiam order), and the Board must consider any such
evidence or argument submitted. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). 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.
IV. CONCLUSION
Upon consideration of the foregoing, the June 1, 2018, Board decision is SET ASIDE and
the matter is REMANDED for readjudication consistent with this decision.
DATED: February 18, 2020
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Copies to:
Theodore C. Jarvi, Esq.
VA General Counsel (027)

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