Veteranclaims’s Blog

April 24, 2020

Single Judge Application; TDIU; Ray, 31 Vet.App. at 73 the Court held that the phrase “unable to secure and follow a substantially gainful occupation” in §4.16 has economic and noneconomic components, the latter of which focuses on the individual veteran’s ability to perform the physical and mental acts necessary for such an occupation; Ray provides that to adequately address the noneconomic component of TDIU, the Board must discuss each limitation the record raises; Van Hoose v. Brown, 4 Vet.App. 361, 363 (1993) (clarifying that, for TDIU purposes, “[t]he question is whether the veteran is capable of performing the physical and mental acts required by employment”);

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-1095
DANIEL D. PAYNE, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before PIETSCH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
PIETSCH, Judge: The appellant, Daniel D. Payne, appeals a December 6, 2018, Board of
Veterans’ Appeals (Board) decision in which the Board denied his claim for entitlement to a total
disability rating based on individual unemployability (TDIU). Record (R.) at 4-11. This appeal
is timely and the Court has jurisdiction over the matter on appeal 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 reasons that follow, the Court will vacate the Board’s December 6, 2018,
decision and remand the matter on appeal for further proceedings consistent with this decision.
I. BACKGROUND
The appellant served in the U.S. Army from September 1967 to July 1969. R at 811-12.
He is currently service connected for prostate cancer, which is evaluated as 60% disabling;
posttraumatic stress disorder (PTSD), evaluated as 50% disabling; diabetes mellitus, evaluated as
20% disabling; and residual fracture right navicular, bilateral hearing loss and tinnitus, all of which
are evaluated as 10% disabling. R. at 838. The appellant had a combined disability rating of 70%
effective September 1, 2011, and a combined disability rating of 90% effective from March 1,

  1. Id.
    2
    In September 2010, he filed an application for increased compensation based on
    unemployability, and maintained that his service-connected PTSD and diabetes mellitus prevented
    him from securing or following any substantially gainful employment. R. at 1383-85. He also
    reported that he had worked at CSX Transportation from March 1966 to June 2007. Id. According
    to the appellant, in the 41 years he worked for CSX, he worked 60 hours a week and missed 125
    days of work as a result of illness. Id. His highest gross earnings amounted to $6,000 per month.
    R. at 1383. In an August 2010 statement, the appellant’s former supervisor, T.S., explained that
    the appellant was promoted to the position of manager-load engineering in August 1996, and T.S.
    reported directly to him from 1999 until his retirement on June 1, 2007. R. at 1378. T.S. explained
    that the appellant’s duties “required him to travel extensively, and he was subject to being called
    out 24/7 at a moment[‘]s notice to attend derailments and other train accidents.” Id. T.S. also noted
    that the appellant had to travel extensively to railroad and customers’ facilities across the CSX Rail
    system. Id. At the February 2010 VA examination, the appellant asserted that he retired 2 years
    prior, and that his physician urged him to retire because of the stressful nature of his job. R. at
    1648, 1644-47. The appellant maintains that he retired early because he did not “feel he could deal
    with it anymore.” R. at 1645.
    At a March 2010 VA psychiatric consultation, R. at 1624-31, the examiner noted that the
    appellant’s PTSD symptoms include hyperirritability and hypervigilance with an exaggerated
    startle response, as well as daily anxiety and a sense of apprehension that he is in danger from an
    unknown source. R. at 1627-28. The appellant also reported experiencing insomnia, vivid
    memories, nightmares, and flashbacks of combat. R. at 1628. In addition, the appellant reported
    feeling emotionally numb, an inability to feel happiness, difficulty concentrating, as well as
    memory impairment and lapses. Id. Based on her evaluation of the appellant, the psychiatrist
    diagnosed him with chronic PTSD, recurrent major depression and provisional bipolar disorder.
    R. at 1631.
    At the April 2011 VA psychiatric examination, R. at 702-07, the appellant reported
    experiencing a depressed mood, anxiety, panic attacks that occur on a weekly or less frequent
    basis, chronic sleep impairment and mild memory loss. R. at 704. He also reported experiencing
    disturbances of motivation and mood, difficulty establishing and maintaining effective work and
    social relationships, and suicidal ideation. R. at 704-05. The appellant denied missing time at his
    job because of his psychiatric symptoms, but he did admit that at times he was not productive or
    3
    efficient, particularly when he was traveling or working under other stressors. R. at 706. He
    reported experiencing “problems on the job due to anxiety primarily, but he was able to ‘keep them
    to [himself], at least from the higher-ups.'” Id. Based on her discussion with, as well as her
    evaluation of, the appellant, the VA examiner determined that the appellant’s psychiatric disorder
    results in occupational and social impairment with occasional decrease in work efficiency and
    intermittent periods of inability to perform occupational tasks, although generally functioning
    satisfactorily, with normal routine behavior, self-care and conversation. Id.
    The appellant was afforded another VA general examination in connection to his
    service-connected diabetes mellitus and right wrist disorder in April 2011. R. at 1321-36. Based
    on her evaluation of the appellant, the examiner determined that his diabetes mellitus and his
    residual right hand fracture did not cause any functional limitations. R. at 1335. The examiner
    also determined that the appellant’s general work capacity is not limited or restricted as a result of
    these service-connected disorders. Id. According to the examiner, regarding the appellant’s
    service-connected diabetes mellitus and his service-connected residual right hand fracture, the
    appellant has the capacity to seek gainful physical or sedentary employment without impairment.
    Id.
    In a January 2012 statement, the appellant stated that the pain in his wrist had increased
    significantly over the years. R. at 1226. He also stated that because he is right-handed, “the
    discomfort is constant and affects every aspect of his life.” Id. A letter from appellant’s treating
    orthopedist reflects that as a result of his right wrist disorder, “normal daily activities and daily use
    result in significant discomfort,” and “[a]s a future prognosis, [his] condition is expected to
    worsen.” R. at 1222.
    In the June 2012 rating decision, the RO denied the claim for entitlement to a TDIU on the
    basis that the evidence reflects that he retired with no concessions due to his disability. R. at 1110,
    1104-10. According to the RO, although the appellant’s service-connected conditions meet the
    schedular requirements, VA examination results and treatment reports reflect that he is not unable
    to secure or follow a substantially gainful occupation based on their severity. Id. The appellant
    filed a Notice of Disagreement with this decision in August 2012. R. at 1073.
    In an October 2012 letter, the appellant’s primary care physician, Dr. M.M., determined
    that the appellant “is unable to be gainfully employed due to multiple health conditions which
    impair his ability to function in a normal work setting.” R. at 1054. According to Dr. M.M., the
    4
    appellant suffers from chronic back pain due to lumbar spondylosis, prostate cancer, a chronically
    hypofunctioning right kidney, and other chronic health conditions that require close medical
    supervision, and the “combination of these conditions renders him incapable of being at work on
    a regular schedule.” Id.
    At the August 2014 VA examination conducted in connection to the appellant’s prostate
    cancer, the examiner determined that his prostate cancer does not affect his ability to work. R. at
    1001, 993-1001.
    At the September 2014 VA psychiatric examination, the examiner determined that the
    appellant’s previous diagnosis of anxiety disorder NOS is incorrect, and PTSD is the appropriate
    diagnosis instead. R. at 972, 972-79. The examiner attributed the appellant’s depressed mood,
    anxiety, and chronic sleep impairment to his PTSD. R. at 978. Describing his occupational
    history, the appellant stated that he had retired in 2007 from the railroad where he worked for 41
    years. R. at 974. In addition to working with customers, teaching them how to load railcars, and
    inspecting railcars, he was also on call to respond to train derailments, which he would help clean
    up. Id. The appellant also reported that while he was on the job he experienced anxiety, which
    interfered with his productivity. Id. The examiner determined that the appellant’s PTSD caused
    “[o]ccupational and social impairment with reduced reliability and productivity.” R. at 973.
    The appellant was afforded another VA examination in August 2015, during which he
    stated that he had retired in 2007 because he was fed up with the political environment at his job.
    R. at 737, 734-40. Asked to summarize the appellant’s level of occupational and social impairment,
    the VA examiner concluded that neither available records, clinical interview with the appellant,
    nor psychological test results suggested that the symptoms associated with the appellant’s PTSD
    “cause clinically significant impairment in current occupational and social functioning.” R. at 735.
    However, the appellant stated that certain PTSD symptoms, to include irritability, angry outbursts,
    hypervigilance, an exaggerated startle response, problems with concentration, sleep impairment, a
    persistent negative emotional state, and markedly diminished interest or participation in significant
    activities “cause clinically significant distress or impairment in social, occupational, or other
    important areas of functioning.” R. at 738.
    At the July 2015 VA examination conducted in connection with the appellant’s serviceconnected
    diabetes, the examiner determined that the appellant’s diabetes mellitus does not affect
    his ability to work. R. at 750. Yet in an August 2015 letter, the appellant’s private physician, Dr.
    5
    J.S., noted the appellant’s service-connected disorders and described the symptoms associated with
    these disorders. R. at 37-38. According to Dr. J.S., as a result of these symptoms, the appellant
    has difficulty performing his work-related duties. R. at 37. Dr. J.S. concluded that the appellant’s
    service-connected disorders interfere with his ability to maintain gainful employment. R. at 38.
    Moreover, in an October 2015 letter, the appellant’s physician diagnosed him with chronic PTSD
    that is a result of his combat experiences in Vietnam. R. at 39. According to his physician, the
    appellant’s PTSD symptoms have continued despite aggressive treatment over the past 3 years,
    causing his debilitating panic attacks in the presence of other people. Id. The physician also wrote
    that because of PTSD and its symptoms, the appellant cannot function. Id.
    In an August 2015 Statement of the Case, the RO continued to deny a TDIU. R. at 718-33.
    The appellant perfected a timely appeal. R. at 49.
    In the December 6, 2018, decision, the Board recited the medical evidence of record,
    finding that this evidence “demonstrates that entitlement to a TDIU is not warranted on either a
    scheduler or extraschedular basis as the [appellant] is not precluded from obtaining or maintaining
    a substantially gainful occupation solely due to service-connected disabilities.” R. at 10, 4-11. The
    Board determined that the appellant’s service-connected disabilities, “either alone or in
    combination, do not appear to significantly limit the [appellant] in an occupational setting that
    requires less physically strenuous work, that does not involve interacting with crowds, that is less
    stressful than his prior position as a field manager responsible for train derailments, and that has
    access to restroom facilities.” Id. According to the Board, although it is clear that the appellant
    may not be able to return to his former position, “the evidence does not show that he is precluded
    from less physically strenuous employment consistent with some college training and managerial
    experience.” R. at 10-11. This appeal followed.
    II. ANALYSIS
    The appellant contends that the Board failed to provide adequate reasons and bases for
    finding that he is not entitled to TDIU benefits. Appellant’s Brief (Br.) at 11. Specifically, the
    appellant contends that “[i]t is the circumstances surrounding [his] retirement that the Board first
    cites as reason to deny entitlement to TDIU benefits.” Id. According to the appellant, he retired
    from his position at the railroad more than 3 years before he raised the TDIU issue, and “[b]ecause
    the Board found that [the appellant] can no longer perform labor-intensive, stressful work such as
    6
    that he performed with CSX, the reason for his retirement from that job has no bearing on his
    current ability to find substantially gainful employment.” Id. at 12. The appellant cited Cathell v.
    Brown, 8 Vet.App. 529, 544 (1996); 38 C.F.R. §4.16; and Holland v. McDonald, 2016 U.S. App.
    Vet. Claims LEXIS 163, at *8-9 (Feb. 10, 2016). Id. The appellant maintains that the fact that the
    appellant’s employment ended more than 3 years before he sought entitlement to TDIU, makes
    “the circumstances around his [retirement] of questionable probative value to the question of
    whether he could perform substantially gainful work several years later.” Id. at 13.
    In response, the Secretary contends that the Board considered appellant’s assertions,
    including his assertion that he had retired because his diabetes and PTSD rendered him unable to
    work, and the Board found them less credible than his former employer’s statements. Secretary’s
    Br. at 10. According to the Secretary, the Board outlined numerous pieces of evidence in reaching
    this conclusion, and the Board compared some of the appellant’s earlier reports regarding the
    number of days he was absent from work as a result of his disorders, to his later reports that he
    never missedwork as a result of psychiatric complaints. Id. at 11. The Secretary also
    acknowledged the appellant’s references to Holland, 2016 U.S. App. Vet. Claims LEXIS 163, at
    *9; Cathell, 8 Vet.App. at 544; and §4.16, explaining why these citations are misplaced. Id. at 12.
    According to the Secretary, the Board did not rely on appellant’s reasons for retirement in finding
    him able to maintain and secure substantially gainful employment but instead, as § 4.16 requires,
    relied on appellant’s work and educational skills as well as the severity of his service-connected
    disabilities. Id. at 13.
    The appellant also argues that the Board erred “when it relied on an absence of a VA
    medical opinion that the appellant is ‘totally occupationally impaired due to PTSD’ as a reason to
    deny entitlement to TDIU.” Appellant’s Br. at 9. The appellant asserts that “by evaluating whether
    [his] PTSD symptoms equated to ‘total’ occupational impairment, the Board appears to have
    applied the standard for assigning a 100% disability for [the appellant’s] PTSD under the General
    Rating Formula for Mental Disorders.” Id. at 13. According to the appellant, an award of TDIU
    does not require a showing of total occupational impairment, but rather that “the claimant show an
    inability to undertake substantially gainful employment as a result of a service-connected disability
    or disabilities” pursuant to 38 C.F.R. § 4.16(b). Id. at 14. The Secretary counters that the appellant
    “misread” the Board’s determination, and the Board did, in fact, state the correct standard for TDIU
    several times “and applied that standard to the facts at hand, including in its consideration of
    7
    PTSD.” Secretary’s Br. at 15. The Secretary maintains that this particular argument amounts to a
    disagreement with the Board’s weighing of the evidence. Id. at 16.
    The appellant also referenced Ray v. Wilkie, 31 Vet.App. 58 (2019), in which the Court
    found that “with respect to ‘substantially gainful employment,’ 38 C.F.R. § 4.16 ‘includes an
    economic component: a veteran’s income must be lower than the Federal poverty threshold’ and
    also a non-economic component.” Id. at 16. The appellant then listed the factors addressed by the
    Court in Ray “in determining whether a veteran can secure and follow a substantially gainful
    occupation.” Id. According to the appellant, although the Board accepted some of the appellant’s
    exertional and nonexertional limitations, “its rejection of additional exertional and nonexertional
    limitations raised by the evidence is unsupported.” Id. at 17. In response, the Secretary maintains
    that the appellant does not argue that the Board missed any exertional or nonexertional limitation
    raised by the evidence, but rather that the evidence did not support the Board’s determination
    regarding these factors. Secretary’s Br. at 16. According to the Secretary, “the mere fact that the
    evidence could be viewed differently does not render the Board’s interpretation of the evidence
    clearly erroneous.” Id.
    In addition, the appellant referenced the October 2015 letter from the appellant’s private
    psychiatrist and noted that while the Board rejects this assessment, “it fails to provide a supported
    rationale for doing so.” Appellant’s Br. at 18. The appellant acknowledged the Board’s finding
    that this opinion “does not comport with other available contemporaneous records,” R. at 8, and
    the appellant referred to the record’s other treatment records and medical evidence, which he
    maintains do support the October 2015 psychiatrist’s opinion. Id. The Secretary counters that the
    Board did provide a sufficient rationale to support its handling of the October 2015 psychiatrist
    report. Secretary’s Br. at 16. According to the Secretary, because the psychiatrist found that
    appellant was unable to function because he suffered from panic attacks in the presence of other
    people, but the remainder of the record reflected “that [a]ppellant interacted ‘okay’ around people
    outside his family and that [a]ppellant’s panic attack were not frequent,” the Board determined that
    the psychiatrist’s conclusion that “[a]ppellant could not function was overly broad and not entitled
    to significant weight.” Id. at 17.
    Finally, the appellant maintains that the Board failed to provide adequate reasoning for its
    conclusion that the appellant “needs only ‘access’ to a bathroom to accommodate the voiding
    dysfunction caused by his service-connected prostate condition.” Appellant’s Br. at 18. The
    8
    appellant referenced the medical evidence of record that reflected the number of incontinence pads
    he uses and the number of times he urinates per day, contending that his “frequent need for breaks
    to accommodate his frequent need to urinate is the vocational limitation that is not compatible with
    substantial and gainful work.” Id. at 18-19. In response, the Secretary contends that the appellant
    failed to demonstrate error in the Board’s discussion of his prostate cancer residuals. Secretary’s
    Br. at 18. According to the Secretary, to the extent the appellant argues that the Board erred in not
    discussing relevant medical evidence explicitly, “he fails to demonstrate that the Board did not
    consider this evidence.” Id. at 19.
    In its December 2018 decision, the Board mentioned both the VA and private psychiatric
    examination reports of record, and found that “none of the VA [examiners’] concluded that the
    [appellant] was totally occupationally impaired due to PTSD.” R. at 7. The Board determined that
    “[a]t worst, the 2011 and 2014 VA examiners assessed [the appellant] as having occupational
    impairment with reduced reliability and productivity, but not total occupational impairment.” Id.
    The Board also took into consideration the August 2015 private treatment report and noted that
    although the appellant’s physician, Dr. S., “mistakenly reported the [appellant] remained currently
    employed, he otherwise adequately explained how the [appellant] was precluded from working in
    his prior position as a field manager due to service-connected PTSD.” R. at 8. But according to
    the Board, Dr. S.’s opinion failed to address “whether the [appellant] would be precluded from
    working in a different position or occupation due to PTSD, such as [a] less stressful position with
    less responsibility.” Id. The Board also noted an October 2015 private treatment report in which
    the appellant’s psychiatrist found that appellant “had debilitating panic attacks around people and
    was unable to function as a result.” Id. According to the Board, this assessment did not “comport
    with other available contemporaneous records, and is not afforded significant weight.” Id. In
    reaching this assessment, the Board referenced portions of the record showing the appellant’s
    apparently improved symptoms, concluding that the available evidence did not demonstrate that
    PTSD precludes the appellant’s gainful employment. Id.
    The Court agrees with the appellant that the Board did not provide an adequate statement
    of reasons or bases for denying a TDIU—in several regards. First, the Board’s determination that
    none of the VA examiners concluded that the appellant was “totally occupationally impaired due
    to PTSD” (R. at 7), and that “the available evidence does not demonstrate that PTSD precludes
    gainful employment,” R. at 8, suggests that the Board applied too high a standard for TDIU. In
    9
    this regard, the record must support a finding that the veteran is not capable of “substantially
    gainful employment” and not the higher standard of total unemployability to qualify for TDIU.
    See Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001); see also 38 C.F.R. § 4.16(b)
    (2020). To the extent that the Board appears to require that the appellant be “totally occupationally
    impaired due to PTSD,” R. at 7, the Court notes that such a finding is not required to qualify for
    TDIU.
    Next, in Ray, the Court held that the phrase “unable to secure and follow a substantially gainful occupation” in §4.16 has economic and noneconomic components, the latter of which focuses on the individual veteran’s ability to perform the physical and mental acts necessary for such an occupation. 31 Vet.App. at 73; see Van Hoose v. Brown, 4 Vet.App. 361, 363 (1993) (clarifying that, for TDIU purposes, “[t]he question is whether the veteran is capable of performing the physical and mental acts required by employment”). Regarding the noneconomic component, the Court held that when determining whether a veteran can secure and follow a substantially gainful occupation, the Board must consider “the veteran’s history, education, skill, and training,” as well as whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity. Ray, 31 Vet.App. at 73 (citing Gleicher v. Derwinski, 2 Vet.App. 26, 28 (1991); Washington v. Derwinski, 1 Vet.App. 459, 465 (1991)). The Court noted that although these factors are not a “checklist that must be run completely through in every case,” discussing them is necessary if the evidence raises them. Id. at 73.
    Here, the evidence of record suggests that appellant’s service-connected PTSD caused memory, concentration, and stress management difficulties that interfered with his ability to work. See, e.g., R. at 37-38 (Dr. S.’s Aug. 2015 private treatment report stating that the appellant’s service-connected disorders, to include his PTSD, interfere with his ability to maintain gainful
    employment), 39 (private psychiatrist’s Oct. 2015 statement reflecting that the appellant
    experiences debilitating panic attacks in the presence of people because of PTSD symptoms, and
    as a result he cannot function ), 92 (Mar. 2015 VA treatment report in which the appellant reported
    10
    that his psychiatric symptoms make it difficult for him to work, take care of things at home, or get
    along with other people),; 412-14 (June 2013 VA treatment report reflecting that the appellant first
    presented at the VA with complaints of anhedonia, difficulty concentrating, irritability, and
    suicidal ideation), 734-40 (Aug. 2015 VA examination report that documents the appellant’s PTSD
    symptoms, including a persistent negative emotional state, diminished interest or participation in
    significant activities, irritable behavior, concentration problems, and impaired sleep – all of which
    cause clinically significant distress or impaired functioning social, occupational, and other
    important areas), 967-72 (Sept. 2014 VA examination report demonstrating that the appellant’s
    PTSD results in feelings of detachment or estrangement from others, depressed mood, anxiety,
    and chronic sleep impairment), 1338-43 (Apr. 2011 VA examination report that documents the
    appellant’s depressed mood, anxiety, panic attacks that occur weekly or less, chronic sleep
    impairment, and mild memory loss).
    Because Ray provides that to adequately address the noneconomic component of TDIU, the Board must discuss each limitation the record raises, and the Board’s failure to do so in this case renders inadequate its reasons or bases for denying TDIU. See 31 Vet.App. at 73-74; Caluza v. Brown, 7 Vet.App. 498, 506 (1995) (explaining that, to satisfy its statutory reasons-or-bases requirement, the Board must analyze the credibility and probative value of evidence, account for
    evidence it finds persuasive or unpersuasive, and provide reasons for its rejection of material evidence favorable to the claimant), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Schafrath v. Derwinski, 1 Vet.App. 589, 592 (1991) (mandating that the Board discuss all provisions of law and regulation that are made “potentially applicable through the assertions and issues raised in the record”). Moreover, the Board did not state what it understood “unable to secure and follow substantially gainful employment” to mean. Ray made clear that the Board erred
    in failing to do so. For the following reasons, the Court will vacate this decision and remand the
    matter for consideration of the appellant’s ability to obtain and maintain substantially gainful
    employment, as defined in Ray, 31 Vet.App. at 63, which was issued after the Board issued its
    decision. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that remand is the appropriate
    remedy “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.”).
    The Court also finds that the Board should provide an adequate statement of reasons or
    bases for discounting the probative value of the October 2015 treatment report. Although the
    11
    Board determined that the opinion “does not comport with the other available contemporaneous
    records,” R. at 8, it is unclear whether the Board found this report to be based on an inaccurate
    factual premise or an insufficient rationale. Even if the October 2015 treatment report does not
    align with the other records, this factor alone does not invalidate the legitimacy of this report.
    Therefore, the Court finds that the Board did not support its finding concerning the adequacy of
    the October 2015 private opinion with sufficient reasons or bases, and its failure to do so impedes
    review of this matter by the Court. See Allday v. Brown, 7 Vet.App. 527 (1995); Gilbert v.
    Derwinski, 1 Vet.App. 49, 56-57 (1990).
    Given this disposition, the Court need not address other arguments that the appellant has
    raised. See Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam order) (holding that “[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
    [her]”). On remand, the appellant is free to submit additional evidence and argument on the
    remanded matter, and the Board is required to consider any such relevant evidence and argument.
    See Kay v. Principi, 16 Vet.App. 529, 534 (2002); Kutscherousky v. West, 12 Vet.App. 369, 372-73
    (1999) (per curiam order). The Court has held that “[a] remand is meant to entail a critical
    examination of the justification for the decision.” Fletcher v. Derwinski, 1 Vet.App. 394, 397
    (1991). Once the Board is prepared to act, it must proceed expeditiously, in accordance with 38
    U.S.C. § 7112 (requiring the Secretary to provide for “expeditious treatment” of claims remanded
    by the Court).
    III. CONCLUSION
    After consideration of the appellant’s and the Secretary’s briefs and a review of the record, the Board’s December 6, 2018, decision is VACATED and the matter on appeal is REMANDED
    for further proceedings consistent with this decision.
    DATED: April 23, 2020
    Copies to:
    Julie L. Glover, Esq.
    12
    VA General Counsel (027)

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