Veteranclaims’s Blog

May 12, 2021

Single Judge Application; Bailey v. Wilkie held that “VA is required to develop and adjudicate related claims for secondary service connection for disabilities that are reasonably raised during the adjudication of a formally initiated claim for the proper evaluation level for the primary service-connected disability.” 33 Vet.App. 188, 203 (2021); In Bailey, the Court concluded that the definitions of “complications” “connote a causal or aggravative relationship between the primary disease or condition and the resulting disease or condition,” which the Court stated “is the same relationship that exists between primary and secondarily service-connected disabilities.” Bailey, 33 Vet.App. at 200. The Court therefore concluded that, pursuant to § 3.155(d)(2), “VA is required to develop and adjudicate related claims for secondary service connection for disabilities that are reasonably raised during the adjudication of a formally initiated claim for the proper evaluation level for the primary service-connected disability.” Id. at 203; 38 C.F.R. § 3.155(d)(2) (2020);

Filed under: Uncategorized — veteranclaims @ 10:07 pm

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-2227
DAVID M. KALLAHER, APPELLANT,
V.
DENIS MCDONOUGH,
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 appellant, David M. Kallaher, through counsel appeals a
January 28, 2019, Board of Veterans’ Appeals (Board) decision that granted entitlement to an
initial disability rating of 20%, but no higher, for a lumbar strain, and declined to assign separate
ratings for neurologic abnormalities. Record (R.) at 4-14. The Board’s assignment of a higher
initial disability rating is a favorable finding that the Court may not disturb. See Medrano v.
Nicholson, 21 Vet.App. 165, 170 (2007), aff’d in part, dismissed in part sub nom. Medrano v.
Shinseki, 332 F. App’x 625 (Fed. Cir. 2009); see also Bond v. Derwinski, 2 Vet.App. 376, 377
(1992) (per curiam order) (“This Court’s jurisdiction is confined to the review of final Board . . .
decisions which are adverse to a claimant.”).
The Court stayed proceedings in this matter in August 2020, pending the Court’s resolution
of Chavis v. McDonough, _ Vet.App. _, No. 18-2928, 2021 WL 1432578 (Apr. 16, 2021).
Having decided Chavis, the Court will lift the stay in this matter. 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 decision denying entitlement to an
initial disability rating in excess of 20% for a lumbar strain and declining to award separate ratings
2
for neurologic abnormalities, and remand those matters for further proceedings consistent with this
decision. The Court will also remand a reasonably raised claim for secondary service connection
for depression for further development, if necessary, and adjudication.
I. BACKGROUND
The appellant served on active duty in the U.S. Army from November 1967 to September

  1. R. at 975. He filed a claim for benefits for a low back disability in April 2012, R. at 1111-14,
    and underwent a VA medical examination in July 2012, R. at 716-38.
    The examination report reflects the appellant’s statement that neither over-the-counter
    painkillers nor injections alleviated his back pain, although acupuncture provided some relief.
    R. at 720. Range of motion testing was normal in all aspects, including after repetitive-use testing,
    and the examiner found no objective evidence of painful motion nor any functional impairment of
    the spine. R. at 720-23. Muscle strength, reflex, and sensory tests were normal, R. at 723-25, and
    the examiner noted no radicular signs, symptoms, or abnormalities, R. at 725-26. The examiner
    then indicated that the appellant’s back disability affected his ability to work, noting that the
    appellant stated that he was “unable to stand/walk or lift/carry objects for any length of time.” R. at
    728.
    In February 2013, a VA regional office (RO) granted the appellant’s claim for benefits for
    a lumbar spine disability and assigned a noncompensable rating. R. at 994-97. The appellant filed
    a Notice of Disagreement with the disability rating assigned, R. at 976, and ultimately appealed to
    the Board, R. at 46-51.
    The record reveals that the appellant was taking gabapentin for neuropathy associated with
    his back disability, R. at 696-97, and that the pain radiated from his back down to his legs, R. at
    526, which his doctor suggested might be a pinched nerve, R. at 549. A magnetic resonance image
    (MRI) revealed lumbar radiculopathy; his lower extremity reflexes were also diminished at that
    time. R. at 527-28. In November 2013, the appellant reported to his doctor that his back pain had
    increased and that, at times, he had to take three of his prescribed pain pills just to stand up. R. at
  2. His course of treatment from that point included caudal epidural steroid injections to relieve
    his pain. See, e.g., R. at 518 (Jan. 2014), 500-02 (June 2014), 473-75 (Dec. 2014), 436-38
    (Feb. 2015), 423-25 (June 2015), 308-09 (Jan. 2016), 287-89 (July 2016), 243-45 (Oct. 2016),
    3
    228-29 (Dec. 2016). He reported nearly immediate relief after the initial injection in January 2014
    and told his doctor that the pain returned gradually over the following 4 to 5 months. R. at 485.
    Because of his back pain, the appellant became sullen and withdrawn, reporting to his
    doctor in July 2014 that it was “exhausting trying to maintain a positive attitude.” Id. In October
    2015, he wrote to his doctor that his back pain was “the worst part of the depression” and asked if
    he could increase his antidepressant. R. at 393. She approved an increase to the maximum dosage.
    Id. In January 2016, he again wrote to his doctor, saying he had been “very short and upset about
    everything” recently and that he was “just not excited about life.” R. at 357. His doctor
    recommended that he speak to a psychologist. Id.
    Later that month, the appellant met with a VA clinical psychologist for a mental health
    assessment. R. at 347-53. He stated that he was having his kitchen renovated, which “upset[] him
    a great deal” because, “[i]n the past[,] he would have been the one to do [the work],” but because
    of “age and physical limitations related to his back, he is not capable.” R. at 348. He believed that
    his depression stemmed from feeling “bad” about not being able to do the renovation himself. Id.
    Further, his “depressive symptoms made it somewhat difficult to do his work, take care of things
    at home, or get along with others.” R. at 350. He reported experiencing pain every day that he
    rated, on average, a 6 out of 10, and rated the interference it caused with his life a 5 out of 10.
    R. at 351. Screening revealed mild symptoms of both depression, R. at 349, and anxiety, R. at
    351.
    During a February 2016 VA mental health assessment, the appellant stated that he felt like
    “everything [was] falling apart”; screening revealed mild depression and mild anxiety. R. at 332.
    The examiner noted that “[p]ain interfere[d] [with the appellant’s] ability to complete activities that
    he would prefer to do on his own (e.g., home repairs), which then [made] him feel worthless.”
    R. at 333. The appellant reported chronic pain that he rated, on average, a 7 or 8 out of 10, and
    stated that he “does not take pain medicines like he’s supposed to [because] he doesn’t like taking
    them all the time and does not like feeling ‘dumb.'” Id. Further, he stated he was “worried about
    needing more to get [the] same effect,” explaining that, when he took the pain medication as
    prescribed, he “tend[ed] to overdo it and then pa[id] for it later.” Id. The examiner’s impression
    was chronic pain and unspecified depressive disorder. R. at 334.
    The record reflects that the appellant received a spinal injection for pain on December 1,
  3. R. at 228-29. On December 28, 2016, he underwent a VA spine examination. R. at 906-15.
    4
    The appellant told the examiner that he had begun receiving spinal injections in 2014 and that he
    continued to get one every few months. R. at 907. He reported functional impairment or loss in
    the nature of difficulty bending, lifting, and crawling. Id. Range of motion was decreased in all
    areas, and the appellant experienced pain during each test. R. at 907-08. Under the heading “Flareups,”
    the examiner wrote “[n]ot applicable.” R. at 908. The examiner indicated that the appellant
    did not have any additional limitation of range of motion following repetitive-use testing; did not
    experience fatigue, weakness, lack of endurance, or incoordination with repeated use over time;
    and did not demonstrate any guarding or muscle spasm of his lumbar spine. Id. Muscle strength
    and reflex testing were normal. R. at 909-10. Sensory examination revealed decreased sensation
    to light touch in the appellant’s feet and toes and the straight-leg-raise testing was positive. R. at
  4. The examiner found radiculopathy in the form of mild intermittent pain in both extremities.
    R. at 910-11. In his remarks, the examiner wrote:
    In the absence of a current flare-up there is no[] current scientific way that a clinician
    is able to objectively measure or evaluate[] the degree of additional [range of
    motion] loss due to []pain on use or during the [appellant’s] experienced “flare-ups.”
    In the absence of a flare-up[,] any attempt to provide this data would be mere
    speculation and therefore not useable for rating purpose.
    R. at 913.
    In his Substantive Appeal to the Board, the appellant asserted that, at the time of the July
    2012 examination, he had recently received a spinal injection and that he relayed that information
    to the examiner. R. at 47. Further, he reported that, at the examination, the examiner asked him
    if he could touch his toes, to which he responded no and said that he would need assistance to
    stand up if he did. Id. Nevertheless, he wrote, he did as he was asked but had to reach for the desk
    to help return to a standing position. Id. Turning to the December 2016 examination, the appellant
    asserted that he told the examiner at the beginning of the examination that he was “feeling pretty
    good” as a result of the recent spinal injection. R. at 49. He also alleged additional errors or
    inconsistencies in the examiner’s opinion. R. at 51.
    The Board issued the decision on appeal in January 2019, relying on the December 2016
    VA spine examination report to increase the appellant’s disability rating to 20% for his lumbar
    spine disability. R. at 7-9; see R. at 8 (“It is based on the results of this examination that the Board
    awards an increased rating.”). The Board declined to assign a higher rating or award a separate
    5
    evaluation for associated neurologic abnormalities, finding no evidence of such in the record. R. at
  5. This appeal followed.
    II. ANALYSIS
    The appellant raises three arguments on appeal. First, he asserts that the Board erred by
    failing to address the arguments he raised in his Substantive Appeal regarding the adequacy of the
    July 2012 and December 2016 VA examinations. Appellant’s Brief (Br.) at 9-14. Second, he
    argues that the Board overlooked evidence when it declined to award a separate rating for
    neurological impairments related to his back disability. Id. at 14-17. Finally, he contends that the
    Board failed to adjudicate the issue of entitlement to benefits for a depressive disorder secondary
    to his back disability. Id. at 17-28. The Secretary concedes that remand is warranted with respect
    to the appellant’s second argument because “the Board’s statement of reasons or bases [for denying
    a separate evaluation for neurologic impairments] is inconsistent, and therefore inadequate.”
    Secretary’s Br. at 14. He urges the Court to affirm the Board’s denial of a rating higher than 20%
    for the appellant’s lumbar spine disability because the appellant has not carried his burden of
    demonstrating that the VA examinations are inadequate. Id. at 6-13. Finally, the Secretary
    contends that the appellant “fundamentally misunderstands the law” regarding reasonably raised
    claims, id. at 15, and that the Board was not required to consider the possibility of secondary
    service connection for his depression, id. at 15-23.
    The Court subsequently sought supplemental briefing from the parties as to its jurisdiction
    over the issue of neurological impairments. See Hayre v. Principi, 15 Vet.App. 48, 50 (2001)
    (holding that the Court “cannot accept jurisdiction simply because the parties conceded it”; rather,
    the Court “must affirmatively satisfy itself that it has authority to act”), aff’d, 78 F. App’x 120 (Fed.
    Cir. 2003). In their responses, the parties agreed that the Board had jurisdiction over the issue of
    entitlement to benefits for a neurological complication of the appellant’s lumbar spine disability,
    in part relying on 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine
    (General Rating Formula), Note 1, which directs the rating specialist to “[e]valuate any associated
    objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment,
    separately, under an appropriate diagnostic code.” See Appellant’s Supplemental (Supp.)
    Memorandum (Memo.) at 2-4; Secretary’s Supp. Memo. at 2-4. Additionally, the Secretary
    conceded that the issue of entitlement to benefits for associated neurological complications was
    6
    reasonably raised by the medical evidence of record and, further, that the Board provided
    inadequate reasons or bases for concluding that such evidence was not present. Secretary’s Supp.
    Memo. at 4.
    A. Neurological Impairment
    As an initial matter, the parties agree that the issue of neurologic impairment related to the
    appellant’s service-connected lumbar strain was reasonably raised by evidence of record reflecting
    radiating pain and decreased sensation in his lower extremities. Appellant’s Supp. Memo. at 1;
    Secretary’s Supp. Memo. at 4. And, the Court is satisfied that the previously unadjudicated issue
    of entitlement to benefits for neurologic manifestations was properly before the Board. The Court
    in Chavis, in concluding that the Board had jurisdiction to consider the proper initial rating for the
    appellant’s radiculopathy in connection with his appeal of an increased rating for his low back
    disability rating, recently reaffirmed that “VA’s consideration of . . . neurologic manifestations as
    part of the claim seeking higher compensation for the lumbar spine disability is . . . consistent with
    VA’s duty to sympathetically read pro se pleadings.” Chavis, 2021 WL 1432578, at *12.
    Additionally, the Court in Bailey v. Wilkie held that “VA is required to develop and adjudicate
    related claims for secondary service connection for disabilities that are reasonably raised during
    the adjudication of a formally initiated claim for the proper evaluation level for the primary
    service-connected disability.” 33 Vet.App. 188, 203 (2021); see Sellers v. Wilkie, 965 F.3d 1328,
    1337 (Fed. Cir. 2020) (noting that regulations requiring claimants to submit formal claims do not
    alter “‘VA’s general practice of identifying and adjudicating issues and claims that logically relate
    to the claim pending before . . . VA'” (quoting Veterans Just. Grp., LLC v. Sec’y of Veterans Affs.,
    818 F.3d 1336, 1356 (Fed. Cir. 2016))); Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir.
    2011). Thus, regardless of whether the appellant’s neurological manifestations in this case are part
    of his appeal of the lumbar strain rating or constitute a related complication subject to secondary
    service connection, there is no jurisdictional barrier to the Board’s or this Court’s consideration of
    the issue on the merits.
    Regarding the Board’s assessment of the appellant’s neurologic impairments, as noted
    above, when VA considers entitlement to benefits for a spine disability, it must also consider
    whether there are any associated neurological complications and, if so, it must rate those
    complications separately. 38 C.F.R. § 4.71a, General Rating Formula, Note 1; see VA Adjudication
    Procedures Manual, M21-1, pt. III, subpt. iv, ch. 4, sec. A.5.a (directing rating specialists to
    7
    “evaluate conditions based on chronic orthopedic manifestations . . . and any associated
    neurological manifestations . . . by assigning separate evaluations for the orthopedic and
    neurological manifestations”). Here, the Board acknowledged Note 1 but found that “the record
    does not reflect any manifestations of [neurological abnormalities] during the period on appeal.”
    R. at 9. As the Secretary concedes, however, the Board provided inadequate reasons or bases for
    concluding that the appellant’s references to “mild pain radiating to both gluteal areas in September
    2013 and October 2013 medical notes, as well as notes in December 2013, December 2014, May
    2016, and finally to his December 2016 examiner,” did not warrant separate evaluation. R. at 9;
    see Secretary’s Br. at 14. The Court will accept the Secretary’s concession that vacatur of that part
    of the Board decision and remand of that matter is thus warranted. See Tucker v. West, 11 Vet.App.
    369, 374 (1998) (“[W]here the Board . . . failed to provide an adequate statement of reasons or
    bases for its determinations, . . . a remand is the appropriate remedy.”).
    B. Adequacy of Examinations
    With respect to the appellant’s argument that the Board erred when it relied on the July
    2012 and December 2016 VA examinations to assign a 20% rating, but no higher, for his lumbar
    spine disability, the Board made no findings regarding the adequacy of those examinations. See
    Appellant’s Br. at 9-14; R. at 4-12; see also D’Aries v. Peake, 22 Vet.App. 97, 104 (2008) (per
    curiam). Although the parties make competing arguments as to whether the VA examinations
    were adequate, see Appellant’s Br. at 9-14; Secretary’s Br. at 6-13, the Court’s review is frustrated
    by the Board’s failure to make the necessary factual findings in the first instance, see Hensley v.
    West, 212 F.3d 1255, 1263 (Fed. Cir. 2000) (“[A]ppellate tribunals are not appropriate fora for
    initial fact finding.”); see also 38 U.S.C. § 7261(c). For example, resolving this issue would
    require the Court in the first instance to determine whether the July 2012 examination report
    includes the information required by Sharp v. Shulkin, 29 Vet.App. 26 (2017), and DeLuca v.
    Brown, 8 Vet.App. 202 (1995), and whether the December 2016 examiner’s opinion was based on
    consideration of the ameliorative effects of medication, see Jones v. Shinseki, 26 Vet.App. 56, 63
    (2012). The Court may not resolve these factual disputes or evaluate their potential effect on the
    Board’s findings. See Deloach v. Shinseki, 704 F.3d 1370, 1380 (Fed. Cir. 2013) (“[T]he
    evaluation and weighing of evidence are factual determinations committed to the discretion of the
    factfinder—in this case, the Board.”).
    8
    Moreover, the Court’s review is of the Board decision on appeal; the Secretary’s proffered
    reasons that the Court should find the examination reports adequate does not cure the Board’s
    failure to provide adequate reasons or bases for its decision. See Martin v. Occupational Safety &
    Health Rev. Comm’n, 499 U.S. 144, 156 (1991) (“[A]gency ‘litigating 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.”). The Court will therefore vacate this part of
    the Board decision as well and remand for readjudication.
    C. Secondary Service Connection
    Finally, the appellant argues that the record reasonably raised the matter of entitlement to
    benefits for depression secondary to his service-connected lumbar spine disability. Appellant’s Br.
    at 17-21; see Robinson v. Peake, 21 Vet.App. 545, 553 (2008) (holding that the Board is required
    to consider all theories of entitlement to VA benefits that are either raised by the claimant or
    reasonably raised by the record), aff’d sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir.
    2009). In line with the Court’s recent decision in Bailey, the Court must first satisfy itself “that
    th[is] issue[ ] w[as] reasonably raised by the record as the [appellant] asserts.” Bailey, 33 Vet.App.
    at 197. In that regard, the Court concludes that the record reasonably raised the possibility of
    entitlement to benefits for depression secondary to the appellant’s service-connected lumbar spine
    disability1 throughout the appeal period. See, e.g., R. at 328 (Mar. 2016 VA mental health note
    listing diagnostic impressions of chronic pain and unspecified depressive disorder), 332 (Feb. 2016
    VA mental health assessment reflecting the appellant’s report that he had been intermittently
    depressed since his in-service parachuting accident), 334 (Feb. 2016 VA mental health addendum
    indicating that the appellant declined a referral for treatment “to address chronic pain and
    1 Notably, the Secretary does not dispute that there is some evidence in the record that the appellant’s back
    disability may cause mental health issues; instead—and in addition to asserting that the appellant did not file a claim
    for benefits for depression—he challenges the significance of that evidence. See, e.g., Secretary’s Br. at 17 (“[The
    appellant] fails to cite to any evidence to demonstrate that he has a diagnosed mental disability in accordance with the
    Diagnostic and Statistical Manual of Mental Disorders.”), 19 (discounting a 2017 medical record reflecting a disc
    problem and depression because the appellant “is not service[]connected for any degenerative disc condition”), 20
    (discounting a 2014 medical record reflecting the appellant’s feelings of depression because he “specifically stated
    that he and his wife did not ‘feel [he] need[ed] counseling'” (quoting R. at 485)). The weight of the evidence, however,
    is a matter for the Board in the first instance. See Washington v. Nicholson, 19 Vet.App. 362, 369 (2005); Owens v.
    Brown, 7 Vet.App. 429, 433 (1995); see also Martin, 499 U.S. at 156; Evans, 25 Vet.App. at 16.
    9
    associated depression”), 348 (Jan. 2016 VA mental health outpatient note that reflects the
    appellant’s reports of increasing depression as a result of being unable to do his own kitchen
    renovation due to his back condition), 393 (Oct. 2015 email from the appellant to his VA physician,
    stating: “Over the last co[u]ple of months I have slowly fallen into a depression. Normally I can
    just p[u]ll myself out but this time it just hangs on. I have also been in a lot of pain with my
    back. . . . I can handle the pain up to a point but the constant wear and tear is getting to me.”), 485
    (July 2014 email from the appellant to his VA physician, stating: “While the pain is increasing and
    I can take the medication[,] . . . this is more than disappointing and over the last three days [I have
    been] sullen, withdrawn[,] etc. I am sure this is a direct result of the pain.”); see also Bailey,
    33 Vet.App. at 198 (relying on a VA examiner’s statements, made during the pendency of the
    appellant’s appeal of the proper rating for residuals of prostate cancer, that the appellant’s diarrhea
    and lymphedema were caused by radiation treatment for prostate cancer); see also Barringer v.
    Peake, 22 Vet.App. 242, 244 (2008).
    After finding that the claims at issue were reasonably raised by the record, the Court in
    Bailey addressed the Secretary’s assertion that, because secondary service connection for diarrhea
    and lymphedema were not part of the appellant’s appeal of the proper disability rating for his
    already service-connected prostate cancer residuals, and because he did not file a formal claim for
    secondary service connection for either condition “within the context of th[at] appeal stream,” the
    Board was not required to address the possibility of entitlement to secondary service connection.
    Bailey, 33 Vet.App. at 198. The Secretary raises a similar argument in this case. See Secretary’s
    Br. at 17-23. Here, as in Bailey, the Secretary’s argument is based on the 2015 amendments to
    38 C.F.R. § 3.155. As the Court in Bailey explained, “[p]rior to March 24, 2015, the effective date
    of those amendments, VA accepted both formal and informal claims for benefits,” but VA
    amended the regulation “to, among other things, ‘eliminate the concept of an “informal” claim, and
    replace it with a process that would incentivize the submission of claims in a format more amenable
    to efficient processing, while still allowing veterans to receive favorable effective date treatment
    similar to that available under the current “informal” claim rule.'” 33 Vet.App. at 199 (quoting
    Standard Claims and Appeals Forms, 78 Fed. Reg. 65,490, 65,490 (Oct. 31, 2013) (proposed rule)).
    Section 3.155(d) now provides, in part, that, once VA receives a complete claim, “VA will
    . . . consider all lay and medical evidence of record in order to adjudicate entitlement to benefits
    for the claimed condition as well as entitlement to any additional benefits for complications of the
    10
    claimed condition, including those identified by the rating criteria for that condition” in the rating
    schedule. 38 C.F.R. § 3.155(d)(2) (2020)
    (emphasis added). In Bailey, the Court consulted several
    dictionaries and concluded that the definitions of “complications” “connote a causal or aggravative
    relationship between the primary disease or condition and the resulting disease or condition,”
    which the Court stated “is the same relationship that exists between primary and secondarily
    service-connected disabilities.” Bailey, 33 Vet.App. at 200. The Court therefore concluded that,
    pursuant to § 3.155(d)(2), “VA is required to develop and adjudicate related claims for secondary
    service connection for disabilities that are reasonably raised during the adjudication of a formally
    initiated claim for the proper evaluation level for the primary service-connected disability.” Id. at
    203.

    In sum, even assuming that the post-2015 version of § 3.155 is applicable in this case, the
    Secretary’s arguments are unavailing in light of Bailey. Accordingly, because the Board did not
    address the reasonably raised issue, it erred. Id. (citing Robinson, 21 Vet.App. at 552); see Sellers,
    965 F.3d at 1337; Roberson, 251 F.3d at 1384. Remand is thus warranted.
    D. Remand
    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
    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.
    11
    III. CONCLUSION
    The stay of proceedings is lifted. After consideration of the parties’ pleadings and a review
    of the record, the Board’s January 28, 2019, decision denying a disability rating in excess of 20%
    for a lumbar strain and declining to award separate ratings for neurologic abnormalities is
    VACATED and the matters are REMANDED for further proceedings consistent with this
    decision. The reasonably raised claim for secondary service connection for depression is
    REMANDED for further development, if necessary, and adjudication.
    DATED: April 27, 2021
    Copies to:
    Zachary M. Stolz, Esq.
    VA General Counsel (027)

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