Veteranclaims’s Blog

August 22, 2021

Single Judge Application; we have held that a fair process violation can be found where the process by which the Board reaches an adverse credibility determination is unfair to the claimant. See Smith v. Wilkie, 32 Vet.App. 332, 338-39 (2020). In Smith, we held that the Board violates principles of fair process when it changes an earlier favorable credibility determination (or a statement that would lead a claimant to believe there had been a favorable credibility determination) without notifying the claimant or providing an opportunity to respond to the credibility-determination change. Id. at 334;

Filed under: Uncategorized — veteranclaims @ 5:13 pm

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 20-0423
CLYDE MILLER, APPELLANT,
V.
DENIS MCDONOUGH,
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 Clyde Miller appeals through counsel a November 19,
2019, Board of Veterans’ Appeals (Board) decision that denied service connection for a right ankle
disability and for residuals of a head injury, including headaches, and declined to reopen a
previously denied claim for service connection for an acquired psychiatric disorder. Record (R.)
at 5-24.1 For the reasons that follow, the Court will set aside those portions of the November 2019
Board decision that denied service connection for residuals of a head injury and declined to reopen
a previously denied claim for an acquired psychiatric disorder and remand those matters for
readjudication consistent with this decision. The Board will affirm that portion of the November
2019 Board decision that denied service connection for a right ankle disorder.
1 In the same decision, the Board reopened previously denied claims for service connection for diabetes and
the right ankle disability. R. at 11, 13. Because these determinations are favorable to Mr. Miller, the Court will not
disturb them. See Medrano v. Nicholson, 21 Vet.App. 165, 170 (2007) (“The Court is not permitted to reverse findings
of fact favorable to a claimant made by the Board pursuant to its statutory authority.”), aff’d in part, dismissed in part
sub nom. Medrano v. Shinseki, 332 F. App’x 625 (Fed. Cir. 2009). In addition, the Board denied service connection
for an ulcer disorder, diabetes, and bilateral carpal tunnel syndrome and declined to reopen previously denied claims
for service connection for a hemorrhoidectomy, erectile dysfunction, and sleep apnea. R. at 10-12, 15-19. Because
Mr. Miller does not challenge these portions of the Board decision, Appellant’s Brief (Br.) at 7, the appeal as to those
issues will be dismissed. See Pederson v. McDonald, 27 Vet.App. 276, 281-86 (2015) (en banc) (declining to review
the merits of an issue not argued and dismissing that portion of the appeal); Cacciola v. Gibson, 27 Vet.App. 45, 48
(2014) (same).
2
I. FACTS
Mr. Miller served honorably in the U.S. Army from August 1974 to January 1976, with
additional service in the Army National Guard. R. at 5377.
In March 1988, Mr. Miller filed claims for service connection for, among other things, a
“broken ankle,” “broken leg,” and a nervous condition. R. at 5356-59. Upon VA orthopedic
examination in May 1988, Mr. Miller reported “no history of problems with his legs or ankles”
during service and that he sustained a right ankle fracture during a fall in February 1988, which
required surgical fixation. R. at 5344; see R. at 5347 (March 1988 VA hospitalization discharge
summary). He also reported that approximately two years after service discharge he sustained a
fracture to the left lower leg and ankle while playing basketball, requiring six to seven weeks of
immobilization in a cast. R. at 5344. The examiner diagnosed fracture of the left ankle and lower
leg, by history, “now essentially asymptomatic,” and fracture of the right ankle, status post fixation.
R. at 5345.
Upon VA psychiatric examination also in May 1988, Mr. Miller reported that he had been
told he had a nervous condition while he was hospitalized during service for a hernia repair. R. at

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 20-0423
CLYDE MILLER, APPELLANT,
V.
DENIS MCDONOUGH,
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 Clyde Miller appeals through counsel a November 19,
2019, Board of Veterans’ Appeals (Board) decision that denied service connection for a right ankle
disability and for residuals of a head injury, including headaches, and declined to reopen a
previously denied claim for service connection for an acquired psychiatric disorder. Record (R.)
at 5-24.1 For the reasons that follow, the Court will set aside those portions of the November 2019
Board decision that denied service connection for residuals of a head injury and declined to reopen
a previously denied claim for an acquired psychiatric disorder and remand those matters for
readjudication consistent with this decision. The Board will affirm that portion of the November
2019 Board decision that denied service connection for a right ankle disorder.
1 In the same decision, the Board reopened previously denied claims for service connection for diabetes and
the right ankle disability. R. at 11, 13. Because these determinations are favorable to Mr. Miller, the Court will not
disturb them. See Medrano v. Nicholson, 21 Vet.App. 165, 170 (2007) (“The Court is not permitted to reverse findings
of fact favorable to a claimant made by the Board pursuant to its statutory authority.”), aff’d in part, dismissed in part
sub nom. Medrano v. Shinseki, 332 F. App’x 625 (Fed. Cir. 2009). In addition, the Board denied service connection
for an ulcer disorder, diabetes, and bilateral carpal tunnel syndrome and declined to reopen previously denied claims
for service connection for a hemorrhoidectomy, erectile dysfunction, and sleep apnea. R. at 10-12, 15-19. Because
Mr. Miller does not challenge these portions of the Board decision, Appellant’s Brief (Br.) at 7, the appeal as to those
issues will be dismissed. See Pederson v. McDonald, 27 Vet.App. 276, 281-86 (2015) (en banc) (declining to review
the merits of an issue not argued and dismissing that portion of the appeal); Cacciola v. Gibson, 27 Vet.App. 45, 48
(2014) (same).
2
I. FACTS
Mr. Miller served honorably in the U.S. Army from August 1974 to January 1976, with
additional service in the Army National Guard. R. at 5377.
In March 1988, Mr. Miller filed claims for service connection for, among other things, a
“broken ankle,” “broken leg,” and a nervous condition. R. at 5356-59. Upon VA orthopedic
examination in May 1988, Mr. Miller reported “no history of problems with his legs or ankles”
during service and that he sustained a right ankle fracture during a fall in February 1988, which
required surgical fixation. R. at 5344; see R. at 5347 (March 1988 VA hospitalization discharge
summary). He also reported that approximately two years after service discharge he sustained a
fracture to the left lower leg and ankle while playing basketball, requiring six to seven weeks of
immobilization in a cast. R. at 5344. The examiner diagnosed fracture of the left ankle and lower
leg, by history, “now essentially asymptomatic,” and fracture of the right ankle, status post fixation.
R. at 5345.
Upon VA psychiatric examination also in May 1988, Mr. Miller reported that he had been
told he had a nervous condition while he was hospitalized during service for a hernia repair. R. at 341. However, the examiner found no history of or current symptoms consistent with a
diagnosable psychiatric disorder. R. at 5341-43.
During a July 1988 hearing, Mr. Miller testified that he sprained his right ankle during boot
camp, R. at 5282-83, and that after service the ankle would swell with physical activity, R. at 5291-

He further testified that he broke his right ankle in 1988 when he slipped and fell and then his
brother fell on top of him. R. at 5284-85, 5293-94.
In May 1989, a VA regional office (RO) denied separate claims for service connection for
residuals of a right ankle sprain, right ankle fracture status post fixation, right leg pathology, left
ankle and lower leg fracture, and nervous condition. R. at 5249-55. Mr. Miller did not apply the
RO decision.
In August 2004, Mr. Miller requested reopening of the claim for a right ankle disability. R.
at 4942. In September 2004, the RO declined to reopen the right ankle claim. R. at 4917-20. Mr.
Miller did not appeal the RO decision.
3
In October 2008, Mr. Miller filed a claim for service connection for residuals of a head
injury, including headaches, and sought to reopen a claim for a right leg condition, stating that he
“fell while working in [the] motor pool . . . breaking [his] r[ight] leg.” R. at 4447.
In July 2009, the RO denied service connection for residuals of a head injury.2 R. at 4359-

Later that month, Mr. Miller filed an NOD. R. at 4321; see R. at 4320. Following a May 2012
SOC, R. at 3456-79, Mr. Miller timely perfected an appeal to the Board as to this issue, R. at 3452-
53.
Also in May 2012, the RO declined to reopen the claim for a right ankle fracture and
reopened the previously denied claim for service connection for a nervous condition, but denied
the claim, now characterized as one for major depressive disorder, on the merits. R. at 3378-81.3
In March 2013, Mr. Miller sought to reopen claims of service connection for the right foot
and ankle disability and headaches and filed a claim for service connection for depression as
secondary to multiple disabilities. R. at 3349. In August 2014, the RO, as relevant. declined to
reopen the previously denied claims for major depressive disorder and the right ankle fracture. R.
at 3206-17.4 In September 2014, Mr. Miller filed an NOD as to both issues. R. at 2908.5
In October 2014, the Board remanded the claim for service connection for residuals of a
head injury. R. at 2881-89. In May 2017, the Board, as relevant, remanded the issues of service
connection for residuals of a head injury and whether new and material evidence had been received
2 The RO construed Mr. Miller’s request to reopen as one seeking to reopen the previously denied claim for
right leg pathology and, although it reopened the claim in July 2009, it denied the claim on the merits. R. at 4359-65.
Following Mr. Miller’s filing of a Notice of Disagreement (NOD), R. at 4332, and perfecting an appeal to the Board
as to this issue, R. at 3454-53; see R. at 3456-505 (May 2012 Statement of the Case (SOC)), the Board denied
reopening of the claim in October 2014, R. at 2881-89. As the Board explained, although there had been some
ambiguity in Mr. Miller’s statements, the Board considered the right leg fracture/pathology claim as separate from the
right ankle claim, which by the time of the October 2014 Board decision was subject to a separate adjudication. R. at
2882; see R. at 3206-17 (August 2014 RO decision), 2908 (September 2014 NOD). Mr. Miller did not appeal the
October 2014 Board decision.
3 The RO stated that this claim stream began with a December 2010 claim for benefits. R. at 3378. However,
the December 2010 document is not contained in the record of proceedings and neither party mentions this document
in their briefs.
4 Specifically, the RO declined to reopen the claim for “fracture, left ankle and lower leg by history (also
claimed as right foot).” R. at 3211. However, the Board explained in its May 2017 remand that, although the RO stated
that it was addressing the left leg, it actually addressed whether new and material evidence had been received to reopen
the right ankle claim. R. at 2485. Accordingly, the Board recharacterized the issue at that time. Id.
5 Mr. Miller later perfected an appeal to the Board as to these issues in July 2015. R. at 2609-10; see R. at
2614-47 (July 2016 SOC).
4
to reopen the previously denied claims for a psychiatric disorder and right ankle disability. R. at
2483-97.
In the November 2019 decision on appeal, the Board reopened the right ankle claim, but
denied the claim on the merits and denied service connection for residuals of a head injury. In
reaching its adverse determinations, the Board found Mr. Miller’s lay statements and buddy
statements submitted in support of the claim not credible as to the existence of an in-service right
ankle or head injury. R. at 19-24. The Board also denied reopening of the claim for an acquired
psychiatric disorder. R. at 13-14. This appeal followed.
II. JURISDICTION AND STANDARD OF REVIEW
Mr. Miller’s appeal is timely and the Court has jurisdiction to review the November 2019
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).
Establishing service connection generally requires medical or, in certain circumstances, lay
evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury;
and (3) a link between the claimed in-service disease or injury and the present disability.
Romanowsky v. Shinseki, 26 Vet.App. 289, 293 (2013).
The Board’s determinations regarding service connection are findings of fact subject to the
“clearly erroneous” standard of review. 38 U.S.C. § 7261(a)(4); see Davis v. West, 13 Vet.App.
178, 184 (1999). “A factual finding ‘is “clearly erroneous” when although there is evidence to
support it, the reviewing court on the entire evidence is left with the definite and firm conviction
that a mistake has been committed.'” Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992) (quoting
United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
The Board must support its material determinations of fact and law with adequate reasons
or bases. 38 U.S.C. § 7104(d)(1); Pederson, 27 Vet.App. at 286; Allday v. Brown, 7 Vet.App. 517,
527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990). To comply with this 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. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d
604 (Fed. Cir. 1996) (table).
5
III. ANALYSIS
A. Right Ankle and Residual Head Injury Disabilities
In support of the current claims for right ankle and residual head injury disabilities, Mr.
Miller proffered his own statements and submitted buddy statements that, collectively, indicated
that he sustained a right ankle fracture and a head injury during service. R. at 3264, 3276, 3278,
4424-25, 4495, 4526, 4561-63, 4570-71. However, the Board found those lay statements not
credible because they were contradicted by evidence more contemporaneous with service. R. at
21, 23-24. The Board also found that the earlier assertion by Mr. Miller during the July 1988
hearing that he sprained his right ankle in service was not credible as it was contradicted by
additional evidence. R. at 21.
On appeal, Mr. Miller argues that the Board clearly erred and violated his due process
rights when it found his statements not credible without affording him preadjudicatory notice of
or a chance to respond to its adverse credibility finding. Appellant’s Br. at 7-19. Alternatively, he
argues that the Board failed to provide adequate reasons or bases supporting its determinations that
service connection was not warranted for the right ankle and residual head injury disabilities. Id.
at 19-27. The Secretary disputes these assertions and urges the Court to affirm these portions of
the Board decision. Secretary’s Br. at 5-15.

Fairness and Due Process Arguments
Mr. Miller advances both global and specific arguments about fairness and due process
regarding the Board’s impeachment of his credibility. Globally, he argues that the Board’s
procedure of impeaching a claimant’s credibility in a final decision without preadjudicatory notice
is antithetical to VA’s paternalistic, nonadversarial system. Appellant’s Br. at 10-19. He urges the
Court to require the Board, in all cases, to provide a claimant with preadjudicatory notice of, and
a chance to respond to, its grounds for impeaching credibility. Id.6 Regarding his specific appeal,
he argues that the Board violated due process when it previously led him to believe that it found
6 Mr. Miller indicates that the Court was wrong in Caluza when it “imported the evidentiary process of the
impeachment of credibility from criminal law.” Appellant’s Br. at 11 (citing Daniel L. Nagin, The Credibility Trap:
Notes on a VA Evidentiary Standard, 45 U. MEM. L. REV. 887, 896-98 (2015)). But he then indicates that he is not
asking the Court to revoke the “Board’s power to impeach a claimant’s testimony [stated in] Caluza.” Appellant’s Br.
at 8. Thus, the Court will not address this issue; at any rate, the Court could not reconsider Caluza in this single-judge
decision or in a three-judge panel decision.
6
his testimony credible and, therefore, he was not on notice that he needed to submit additional
evidence to rehabilitate his credibility. Id. at 9 (citing R. at 2494-95, 2886, 2888).
Caselaw has firmly established that “the Board, as factfinder, is obligated to, and fully
justified in, determining whether lay evidence is credible in and of itself,” for reasons including
“possible bias [or] conflicting statements.” Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir.
2006); see Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (noting that “the Board
retains discretion to make credibility determinations and otherwise weigh the evidence submitted,
including lay evidence”). However, we have held that a fair process violation can be found where the process by which the Board reaches an adverse credibility determination is unfair to the claimant. See Smith v. Wilkie, 32 Vet.App. 332, 338-39 (2020). In Smith, we held that the Board violates principles of fair process when it changes an earlier favorable credibility determination (or a statement that would lead a claimant to believe there had been a favorable credibility determination) without notifying the claimant or providing an opportunity to respond to the credibility-determination change. Id. at 334. In this vein, Mr. Miller argues that the Board
previously took action that led him to believe that it considered his testimony credible. Appellant’s
Br. at 9-10 (referring to the October 2014 and May 2017 remand orders). The Court agrees with
respect to the head injury claim, but disagrees as to the right ankle claim.
In its October 2014 decision, the Board remanded the head injury claim, in part, to obtain
a VA examination. R. at 2881-89. In determining that VA’s duty to assist required providing an
examination, the Board noted that several VA treatment records reflected diagnoses of “traumatic
injury headaches” based on Mr. Miller’s reports of sustaining a head injury in service. R. at 2886.
The Board also indicated that Mr. Miller submitted several buddy statements that “corroborate his
own testimony” and were consistent with reports Mr. Miller gave to treating health care providers.
R. at 2886, 2888; see R. at 2494 (Board’s May 2017 remand order confirming that the buddy
statements “corroborate [Mr. Miller’s] own testimony”). The Board stated that this evidence was
“credible evidence” of an injury in service, evidence it “cannot ignore,” and evidence that it “must
afford . . . greater probative value” than the unavailable service medical records. R. at 2888.
Accordingly, the Board concluded that a VA examination was needed and specifically directed the
VA examiner to address the various lay statements corroborating the veteran’s reports of an inservice
head injury. Id.
7
The Court concludes that the Board’s statements in its October 2014 remand order
reasonably left Mr. Miller with the impression that lay evidence of an in-service head injury was
credible. See Smith, 32 Vet.App. at 334. The Secretary asserts that the Board’s determination was
preadjudicatory in nature and implies that such determination involved a lower threshold than the
Board’s ultimate credibility determination for adjudicatory purposes. Secretary’s Br. at 8-9 (citing
McLendon v. Nicholson, 20 Vet.App. 79, 81 (2006), for the premise that there is a lower threshold
for finding that VA’s duty to assist requires providing an examination). However, he misreads the
Board order, as the Board clearly indicated that it found the lay statements credible as to
establishing the presence of an in-service head injury. And although the Board considered the low
threshold as to determining whether the evidence suggested a link to military service, R. at 2888
(citing McLendon, 20 Vet.App. at 81), there is no indication that the Board similarly applied a low
threshold to establishing the presence of the in-service event. In addition, to the extent that the
Secretary relies on subsequent procedural documents requesting additional records or providing
Mr. Miller with the opportunity to submit additional evidence, Secretary’s Br. at 10, none of those
documents put Mr. Miller on notice that VA had materially changed its characterization of his
credibility or made it clear that a credibility determination had not been made. See Smith,
32 Vet.App. at 334. Accordingly, the head injury claim will be remanded. See id. at 339.
However, the Court cannot conclude the same is true for the right ankle claim. As discussed
above, see supra n. 2, the October 2014 Board decision did not address the right ankle disability.
R. at 2882. In its May 2017 remand order, the Board noted that Mr. Miller stated that he fractured
his right ankle in service and that he submitted buddy statements reflecting the same. R. at 2494.
However, the Board did not make an express determination regarding the credibility of those
statements. See R. at 2494-97. Contra R. at 2494 (confirming its earlier finding that the buddy
statements corroborated Mr. Miller’s assertion of an in-service head injury). And unlike its October
2014 remand for an examination based, in part, on the credibility of the lay statements, the Board,
in the May 2017 remand order, requested only that the RO conduct additional searches for service
records in light of Mr. Miller’s assertions. R. at 2495-97. The Board’s May 2017 remand order
contains no express credibility finding regarding the ankle disability and its actions cannot be
reasonably characterized as implicitly rendering a decision that the lay statements were credible.
8
Therefore, the Court concludes that the Board did not violate principles of fair process in rendering
its credibility determination regarding the right ankle disability.

Reasons or Bases as to the Right Ankle Disability
Mr. Miller additionally argues that the Board failed to provide adequate reasons or bases
for denying service connection for a right ankle disability. Appellant’s Br. at 19-27. He argues that
the Board impermissibly relied on the absence of evidence, id. at 21-23, ignored favorable
evidence, id. at 23-26, and failed to explain why preadjudicatory notice or an opportunity to
respond as to his credibility was not required, id. at 26-27. The veteran’s arguments are
unpersuasive.
In its decision, the Board found that the lay statements submitted within the context of the
current appeal—which collectively recount that Mr. Miller fractured his right ankle during
service—were contradicted by previous statements made by Mr. Miller, including those made
during his National Guard service, during the May 1988 VA examination, during the July 1988
hearing, and in various medical records, which indicate that he fractured his ankle post-service in
February 1988. R. at 20-21. The Board also noted that, although Mr. Miller testified during the
July 1988 hearing that he sprained his ankle during service, that testimony was inconsistent with
the other contemporaneous records wherein he reported no ankle injuries prior to his February
1988 fracture. Id. The Board additionally noted that, although some service records were missing,
the available service records indicated that Mr. Miller denied a history of “broken bones, foot
trouble, and bone, joint, or other deformity” in May 1976 and June 1978 report of medical history
forms and several National Guard examinations reflected normal lower extremities. R. at 20.
Although Mr. Miller argues that the Board wrongly relied on the absence of evidence of a
right ankle injury in the service medical records, even though it admitted that his records are
incomplete, he misreads the Board decision. The Board relied on the available service records that
indicated Mr. Miller denied a history of broken bones or foot or ankle injuries; as well, it relied on
post-service medical records in which the veteran reported the same medical history. R. at 20-21.
Even if the Board’s analysis could be read as relying on negative evidence despite missing
service medical records, Mr. Miller acknowledges that the Board relied on additional evidence to
conclude that service connection was not warranted. Appellant’s Br. at 22. He argues, though, that
the Board’s improper reliance on negative evidence was prejudicial because it used the negative
9
evidence to impeach his credibility. However, it is clear that the Board found the current lay
statements—which assert Mr. Miller sustained a fracture in service—not credible because they are
inconsistent with other evidence demonstrating that the right ankle fracture occurred post-service
in February 1988. See R. at 20-21. The Board also noted that Mr. Miller’s own statements have
been contradictory about whether he had an injury during service and as to the extent of the claimed
in-service injury. R. at 21. Therefore, the Court cannot agree with Mr. Miller that, even if the Board
improperly relied on the lack of documentation in incomplete service medical records, any
purported error was prejudicial to him. The Board provided adequate additional reasons for finding
the lay statements not credible.
Next, Mr. Miller argues that the Board ignored favorable evidence, namely private medical
records reflecting that he received treatment for his right foot and ankle in December 1970 and
January 1974, records that “directly refute[] the Board’s finding that there was no documented
medical evidence of his right foot and ankle condition before 1988, and would corroborate his lay
testimony.” Appellant’s Br. at 24 (citing R. at 5274, 5276, referring to two pages of private medical
records documenting a series of visit summaries dated between December 1970 and December
1986). Regarding the December 1970 entry, as the Secretary correctly notes, Secretary’s Br. at 14,
that entry reflects treatment for a left knee condition. R. at 5274. The document does, however,
reflect that Mr. Miller was seen for his right foot in January 1973 and that X-rays were negative.
Id. Regarding the January 1974 entry, the parties dispute what was being treated. The Secretary
states that the record simply reflects treatment for a non-descript right-sided condition. Secretary’s
Br. at 14.
Even were the document to reflect treatment for the right ankle in January 1974,7 Mr. Miller
fails to demonstrate prejudice as to the Board’s failure to discuss this particular record. Notably,
all these record entries, which Mr. Miller asserts reflect treatment for the right foot and ankle,
predate his entry into service. If these entries refute the Board’s conclusion that medical records
do not document an ankle injury until February 1988, R. at 20, the entries do not refute the Board’s
ultimate conclusion—and the basis for its denial—that Mr. Miller did not sustain an injury during
7 The January 1974 entry is partially illegible: “Strain Right [(illegible)] Rx [(treatment)] Exercise.” R. at
5274.
10
service. Nor has Mr. Miller explained how records evidencing a pre-service injury would
corroborate his testimony that he sustained an ankle injury—sprain or fracture—in service.
In conclusion, the Board’s analysis as to the right ankle injury is consistent with governing
law, plausible in light of the record, and sufficiently detailed to inform Mr. Miller of the reasons
for its determination that service connection for a right ankle disability was not warranted and to
facilitate judicial review. See Allday, 7 Vet.App. at 527; Caluza, 7 Vet.App. at 506. Accordingly,
the Court will affirm this portion of the November 2019 Board decision.
B. Request to Reopen Service Connection for an Acquired Psychiatric Disorder
Mr. Miller argues that the request to reopen service connection for an acquired psychiatric
disorder in inextricably intertwined with the claims for service connection for the right ankle and
residual head injury disabilities because he claimed the acquired psychiatric disorder as secondary
to those other conditions. Appellant’s Br. at 28-29. The Secretary disputes this assertion, arguing
that Mr. Miller fails to demonstrate that the claims are intimately connected. Secretary’s Br. at 16.
The Court agrees with the veteran that the psychiatric claim is inextricably intertwined with
the residual head injury claim. In his March 2013 request to reopen the psychiatric claim, Mr.
Miller claimed depression as secondary to multiple service-connected conditions. R. at 3349; see
R. at 103 (May 2019 Substantive Appeal). Prior to the request to reopen, during the April 2012
VA psychiatric examination, the examiner indicated that Mr. Miller attributed his depression, in
part, to headache pain. R. at 1615; see R. at 4666 (October 2005 VA examiner linking Mr. Miller’s
depressive symptoms, in part, to chronic pain). In May 2012, the RO denied service connection
for major depressive disorder, in part, based on the examiner’s attribution of Mr. Miller’s symptoms
to non-service-connected conditions including headache pain. R. at 3380. And the Board in the
decision on appeal noted that the evidence added to the claims file since the May 2012 RO decision
included VA treatment records that link Mr. Miller’s depression to, among other things, chronic
pain. R. at 14.
Therefore, the Court concludes that the request to reopen service connection for an
acquired psychiatric disorder is inextricably intertwined with the claim for service connection for
a residual head injury disability, which the Court is remanding for readjudication. See Smith v.
Gober, 236 F.3d 1370, 1372 (Fed. Cir. 2001); Henderson v. West, 12 Vet.App. 11, 20 (1998)
(“[W]here a decision on one issue would have a significant impact upon another, and that impact
11
in turn could render any review by this Court of the decision on the other [issue] meaningless and
a waste of judicial resources, the two [issues] are inextricably intertwined.” (internal quotations
and alterations omitted)). Accordingly, the Court will also remand the psychiatric claim.
On remand, Mr. Miller is free to submit additional arguments and evidence, including the
arguments raised in his briefs to this Court, and the Board must consider any such evidence or
argument submitted. 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 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, those portions of the November 19, 2019, Board
decision that denied service connection for residuals of a head injury and declined to reopen a
previously denied claim for service connection for an acquired psychiatric disorder are SET
ASIDE and those matters are REMANDED for readjudication consistent with this decision. That
portion of the November 2019 Board decision that denied service connection for a right ankle
disability is AFFIRMED. The balance of the appeal is DISMISSED.
DATED: July 30, 2021
Copies to:
Jonathan H. Davis, Esq.
VA General Counsel (027)

  1. However, the examiner found no history of or current symptoms consistent with a
    diagnosable psychiatric disorder. R. at 5341-43.
    During a July 1988 hearing, Mr. Miller testified that he sprained his right ankle during boot
    camp, R. at 5282-83, and that after service the ankle would swell with physical activity, R. at 5291-
  2. He further testified that he broke his right ankle in 1988 when he slipped and fell and then his
    brother fell on top of him. R. at 5284-85, 5293-94.
    In May 1989, a VA regional office (RO) denied separate claims for service connection for
    residuals of a right ankle sprain, right ankle fracture status post fixation, right leg pathology, left
    ankle and lower leg fracture, and nervous condition. R. at 5249-55. Mr. Miller did not apply the
    RO decision.
    In August 2004, Mr. Miller requested reopening of the claim for a right ankle disability. R.
    at 4942. In September 2004, the RO declined to reopen the right ankle claim. R. at 4917-20. Mr.
    Miller did not appeal the RO decision.
    3
    In October 2008, Mr. Miller filed a claim for service connection for residuals of a head
    injury, including headaches, and sought to reopen a claim for a right leg condition, stating that he
    “fell while working in [the] motor pool . . . breaking [his] r[ight] leg.” R. at 4447.
    In July 2009, the RO denied service connection for residuals of a head injury.2 R. at 4359-
  3. Later that month, Mr. Miller filed an NOD. R. at 4321; see R. at 4320. Following a May 2012
    SOC, R. at 3456-79, Mr. Miller timely perfected an appeal to the Board as to this issue, R. at 3452-
    53.
    Also in May 2012, the RO declined to reopen the claim for a right ankle fracture and
    reopened the previously denied claim for service connection for a nervous condition, but denied
    the claim, now characterized as one for major depressive disorder, on the merits. R. at 3378-81.3
    In March 2013, Mr. Miller sought to reopen claims of service connection for the right foot
    and ankle disability and headaches and filed a claim for service connection for depression as
    secondary to multiple disabilities. R. at 3349. In August 2014, the RO, as relevant. declined to
    reopen the previously denied claims for major depressive disorder and the right ankle fracture. R.
    at 3206-17.4 In September 2014, Mr. Miller filed an NOD as to both issues. R. at 2908.5
    In October 2014, the Board remanded the claim for service connection for residuals of a
    head injury. R. at 2881-89. In May 2017, the Board, as relevant, remanded the issues of service
    connection for residuals of a head injury and whether new and material evidence had been received
    2 The RO construed Mr. Miller’s request to reopen as one seeking to reopen the previously denied claim for
    right leg pathology and, although it reopened the claim in July 2009, it denied the claim on the merits. R. at 4359-65.
    Following Mr. Miller’s filing of a Notice of Disagreement (NOD), R. at 4332, and perfecting an appeal to the Board
    as to this issue, R. at 3454-53; see R. at 3456-505 (May 2012 Statement of the Case (SOC)), the Board denied
    reopening of the claim in October 2014, R. at 2881-89. As the Board explained, although there had been some
    ambiguity in Mr. Miller’s statements, the Board considered the right leg fracture/pathology claim as separate from the
    right ankle claim, which by the time of the October 2014 Board decision was subject to a separate adjudication. R. at
    2882; see R. at 3206-17 (August 2014 RO decision), 2908 (September 2014 NOD). Mr. Miller did not appeal the
    October 2014 Board decision.
    3 The RO stated that this claim stream began with a December 2010 claim for benefits. R. at 3378. However,
    the December 2010 document is not contained in the record of proceedings and neither party mentions this document
    in their briefs.
    4 Specifically, the RO declined to reopen the claim for “fracture, left ankle and lower leg by history (also
    claimed as right foot).” R. at 3211. However, the Board explained in its May 2017 remand that, although the RO stated
    that it was addressing the left leg, it actually addressed whether new and material evidence had been received to reopen
    the right ankle claim. R. at 2485. Accordingly, the Board recharacterized the issue at that time. Id.
    5 Mr. Miller later perfected an appeal to the Board as to these issues in July 2015. R. at 2609-10; see R. at
    2614-47 (July 2016 SOC).
    4
    to reopen the previously denied claims for a psychiatric disorder and right ankle disability. R. at
    2483-97.
    In the November 2019 decision on appeal, the Board reopened the right ankle claim, but
    denied the claim on the merits and denied service connection for residuals of a head injury. In
    reaching its adverse determinations, the Board found Mr. Miller’s lay statements and buddy
    statements submitted in support of the claim not credible as to the existence of an in-service right
    ankle or head injury. R. at 19-24. The Board also denied reopening of the claim for an acquired
    psychiatric disorder. R. at 13-14. This appeal followed.
    II. JURISDICTION AND STANDARD OF REVIEW
    Mr. Miller’s appeal is timely and the Court has jurisdiction to review the November 2019
    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).
    Establishing service connection generally requires medical or, in certain circumstances, lay
    evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury;
    and (3) a link between the claimed in-service disease or injury and the present disability.
    Romanowsky v. Shinseki, 26 Vet.App. 289, 293 (2013).
    The Board’s determinations regarding service connection are findings of fact subject to the
    “clearly erroneous” standard of review. 38 U.S.C. § 7261(a)(4); see Davis v. West, 13 Vet.App.
    178, 184 (1999). “A factual finding ‘is “clearly erroneous” when although there is evidence to
    support it, the reviewing court on the entire evidence is left with the definite and firm conviction
    that a mistake has been committed.'” Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992) (quoting
    United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
    The Board must support its material determinations of fact and law with adequate reasons
    or bases. 38 U.S.C. § 7104(d)(1); Pederson, 27 Vet.App. at 286; Allday v. Brown, 7 Vet.App. 517,
    527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990). To comply with this 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. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d
    604 (Fed. Cir. 1996) (table).
    5
    III. ANALYSIS
    A. Right Ankle and Residual Head Injury Disabilities
    In support of the current claims for right ankle and residual head injury disabilities, Mr.
    Miller proffered his own statements and submitted buddy statements that, collectively, indicated
    that he sustained a right ankle fracture and a head injury during service. R. at 3264, 3276, 3278,
    4424-25, 4495, 4526, 4561-63, 4570-71. However, the Board found those lay statements not
    credible because they were contradicted by evidence more contemporaneous with service. R. at
    21, 23-24. The Board also found that the earlier assertion by Mr. Miller during the July 1988
    hearing that he sprained his right ankle in service was not credible as it was contradicted by
    additional evidence. R. at 21.
    On appeal, Mr. Miller argues that the Board clearly erred and violated his due process
    rights when it found his statements not credible without affording him preadjudicatory notice of
    or a chance to respond to its adverse credibility finding. Appellant’s Br. at 7-19. Alternatively, he
    argues that the Board failed to provide adequate reasons or bases supporting its determinations that
    service connection was not warranted for the right ankle and residual head injury disabilities. Id.
    at 19-27. The Secretary disputes these assertions and urges the Court to affirm these portions of
    the Board decision. Secretary’s Br. at 5-15.
  4. Fairness and Due Process Arguments
    Mr. Miller advances both global and specific arguments about fairness and due process
    regarding the Board’s impeachment of his credibility. Globally, he argues that the Board’s
    procedure of impeaching a claimant’s credibility in a final decision without preadjudicatory notice
    is antithetical to VA’s paternalistic, nonadversarial system. Appellant’s Br. at 10-19. He urges the
    Court to require the Board, in all cases, to provide a claimant with preadjudicatory notice of, and
    a chance to respond to, its grounds for impeaching credibility. Id.6 Regarding his specific appeal,
    he argues that the Board violated due process when it previously led him to believe that it found
    6 Mr. Miller indicates that the Court was wrong in Caluza when it “imported the evidentiary process of the
    impeachment of credibility from criminal law.” Appellant’s Br. at 11 (citing Daniel L. Nagin, The Credibility Trap:
    Notes on a VA Evidentiary Standard, 45 U. MEM. L. REV. 887, 896-98 (2015)). But he then indicates that he is not
    asking the Court to revoke the “Board’s power to impeach a claimant’s testimony [stated in] Caluza.” Appellant’s Br.
    at 8. Thus, the Court will not address this issue; at any rate, the Court could not reconsider Caluza in this single-judge
    decision or in a three-judge panel decision.
    6
    his testimony credible and, therefore, he was not on notice that he needed to submit additional
    evidence to rehabilitate his credibility. Id. at 9 (citing R. at 2494-95, 2886, 2888).
    Caselaw has firmly established that “the Board, as factfinder, is obligated to, and fully
    justified in, determining whether lay evidence is credible in and of itself,” for reasons including
    “possible bias [or] conflicting statements.” Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir.
    2006); see Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (noting that “the Board
    retains discretion to make credibility determinations and otherwise weigh the evidence submitted,
    including lay evidence”). However, we have held that a fair process violation can be found where
    the process by which the Board reaches an adverse credibility determination is unfair to the
    claimant. See Smith v. Wilkie, 32 Vet.App. 332, 338-39 (2020). In Smith, we held that the Board
    violates principles of fair process when it changes an earlier favorable credibility determination
    (or a statement that would lead a claimant to believe there had been a favorable credibility
    determination) without notifying the claimant or providing an opportunity to respond to the
    credibility-determination change. Id. at 334. In this vein, Mr. Miller argues that the Board
    previously took action that led him to believe that it considered his testimony credible. Appellant’s
    Br. at 9-10 (referring to the October 2014 and May 2017 remand orders). The Court agrees with
    respect to the head injury claim, but disagrees as to the right ankle claim.
    In its October 2014 decision, the Board remanded the head injury claim, in part, to obtain
    a VA examination. R. at 2881-89. In determining that VA’s duty to assist required providing an
    examination, the Board noted that several VA treatment records reflected diagnoses of “traumatic
    injury headaches” based on Mr. Miller’s reports of sustaining a head injury in service. R. at 2886.
    The Board also indicated that Mr. Miller submitted several buddy statements that “corroborate his
    own testimony” and were consistent with reports Mr. Miller gave to treating health care providers.
    R. at 2886, 2888; see R. at 2494 (Board’s May 2017 remand order confirming that the buddy
    statements “corroborate [Mr. Miller’s] own testimony”). The Board stated that this evidence was
    “credible evidence” of an injury in service, evidence it “cannot ignore,” and evidence that it “must
    afford . . . greater probative value” than the unavailable service medical records. R. at 2888.
    Accordingly, the Board concluded that a VA examination was needed and specifically directed the
    VA examiner to address the various lay statements corroborating the veteran’s reports of an inservice
    head injury. Id.
    7
    The Court concludes that the Board’s statements in its October 2014 remand order
    reasonably left Mr. Miller with the impression that lay evidence of an in-service head injury was
    credible. See Smith, 32 Vet.App. at 334. The Secretary asserts that the Board’s determination was
    preadjudicatory in nature and implies that such determination involved a lower threshold than the
    Board’s ultimate credibility determination for adjudicatory purposes. Secretary’s Br. at 8-9 (citing
    McLendon v. Nicholson, 20 Vet.App. 79, 81 (2006), for the premise that there is a lower threshold
    for finding that VA’s duty to assist requires providing an examination). However, he misreads the
    Board order, as the Board clearly indicated that it found the lay statements credible as to
    establishing the presence of an in-service head injury. And although the Board considered the low
    threshold as to determining whether the evidence suggested a link to military service, R. at 2888
    (citing McLendon, 20 Vet.App. at 81), there is no indication that the Board similarly applied a low
    threshold to establishing the presence of the in-service event. In addition, to the extent that the
    Secretary relies on subsequent procedural documents requesting additional records or providing
    Mr. Miller with the opportunity to submit additional evidence, Secretary’s Br. at 10, none of those
    documents put Mr. Miller on notice that VA had materially changed its characterization of his
    credibility or made it clear that a credibility determination had not been made. See Smith,
    32 Vet.App. at 334. Accordingly, the head injury claim will be remanded. See id. at 339.
    However, the Court cannot conclude the same is true for the right ankle claim. As discussed
    above, see supra n. 2, the October 2014 Board decision did not address the right ankle disability.
    R. at 2882. In its May 2017 remand order, the Board noted that Mr. Miller stated that he fractured
    his right ankle in service and that he submitted buddy statements reflecting the same. R. at 2494.
    However, the Board did not make an express determination regarding the credibility of those
    statements. See R. at 2494-97. Contra R. at 2494 (confirming its earlier finding that the buddy
    statements corroborated Mr. Miller’s assertion of an in-service head injury). And unlike its October
    2014 remand for an examination based, in part, on the credibility of the lay statements, the Board,
    in the May 2017 remand order, requested only that the RO conduct additional searches for service
    records in light of Mr. Miller’s assertions. R. at 2495-97. The Board’s May 2017 remand order
    contains no express credibility finding regarding the ankle disability and its actions cannot be
    reasonably characterized as implicitly rendering a decision that the lay statements were credible.
    8
    Therefore, the Court concludes that the Board did not violate principles of fair process in rendering
    its credibility determination regarding the right ankle disability.
  5. Reasons or Bases as to the Right Ankle Disability
    Mr. Miller additionally argues that the Board failed to provide adequate reasons or bases
    for denying service connection for a right ankle disability. Appellant’s Br. at 19-27. He argues that
    the Board impermissibly relied on the absence of evidence, id. at 21-23, ignored favorable
    evidence, id. at 23-26, and failed to explain why preadjudicatory notice or an opportunity to
    respond as to his credibility was not required, id. at 26-27. The veteran’s arguments are
    unpersuasive.
    In its decision, the Board found that the lay statements submitted within the context of the
    current appeal—which collectively recount that Mr. Miller fractured his right ankle during
    service—were contradicted by previous statements made by Mr. Miller, including those made
    during his National Guard service, during the May 1988 VA examination, during the July 1988
    hearing, and in various medical records, which indicate that he fractured his ankle post-service in
    February 1988. R. at 20-21. The Board also noted that, although Mr. Miller testified during the
    July 1988 hearing that he sprained his ankle during service, that testimony was inconsistent with
    the other contemporaneous records wherein he reported no ankle injuries prior to his February
    1988 fracture. Id. The Board additionally noted that, although some service records were missing,
    the available service records indicated that Mr. Miller denied a history of “broken bones, foot
    trouble, and bone, joint, or other deformity” in May 1976 and June 1978 report of medical history
    forms and several National Guard examinations reflected normal lower extremities. R. at 20.
    Although Mr. Miller argues that the Board wrongly relied on the absence of evidence of a
    right ankle injury in the service medical records, even though it admitted that his records are
    incomplete, he misreads the Board decision. The Board relied on the available service records that
    indicated Mr. Miller denied a history of broken bones or foot or ankle injuries; as well, it relied on
    post-service medical records in which the veteran reported the same medical history. R. at 20-21.
    Even if the Board’s analysis could be read as relying on negative evidence despite missing
    service medical records, Mr. Miller acknowledges that the Board relied on additional evidence to
    conclude that service connection was not warranted. Appellant’s Br. at 22. He argues, though, that
    the Board’s improper reliance on negative evidence was prejudicial because it used the negative
    9
    evidence to impeach his credibility. However, it is clear that the Board found the current lay
    statements—which assert Mr. Miller sustained a fracture in service—not credible because they are
    inconsistent with other evidence demonstrating that the right ankle fracture occurred post-service
    in February 1988. See R. at 20-21. The Board also noted that Mr. Miller’s own statements have
    been contradictory about whether he had an injury during service and as to the extent of the claimed
    in-service injury. R. at 21. Therefore, the Court cannot agree with Mr. Miller that, even if the Board
    improperly relied on the lack of documentation in incomplete service medical records, any
    purported error was prejudicial to him. The Board provided adequate additional reasons for finding
    the lay statements not credible.
    Next, Mr. Miller argues that the Board ignored favorable evidence, namely private medical
    records reflecting that he received treatment for his right foot and ankle in December 1970 and
    January 1974, records that “directly refute[] the Board’s finding that there was no documented
    medical evidence of his right foot and ankle condition before 1988, and would corroborate his lay
    testimony.” Appellant’s Br. at 24 (citing R. at 5274, 5276, referring to two pages of private medical
    records documenting a series of visit summaries dated between December 1970 and December
    1986). Regarding the December 1970 entry, as the Secretary correctly notes, Secretary’s Br. at 14,
    that entry reflects treatment for a left knee condition. R. at 5274. The document does, however,
    reflect that Mr. Miller was seen for his right foot in January 1973 and that X-rays were negative.
    Id. Regarding the January 1974 entry, the parties dispute what was being treated. The Secretary
    states that the record simply reflects treatment for a non-descript right-sided condition. Secretary’s
    Br. at 14.
    Even were the document to reflect treatment for the right ankle in January 1974,7 Mr. Miller
    fails to demonstrate prejudice as to the Board’s failure to discuss this particular record. Notably,
    all these record entries, which Mr. Miller asserts reflect treatment for the right foot and ankle,
    predate his entry into service. If these entries refute the Board’s conclusion that medical records
    do not document an ankle injury until February 1988, R. at 20, the entries do not refute the Board’s
    ultimate conclusion—and the basis for its denial—that Mr. Miller did not sustain an injury during
    7 The January 1974 entry is partially illegible: “Strain Right [(illegible)] Rx [(treatment)] Exercise.” R. at
    5274.
    10
    service. Nor has Mr. Miller explained how records evidencing a pre-service injury would
    corroborate his testimony that he sustained an ankle injury—sprain or fracture—in service.
    In conclusion, the Board’s analysis as to the right ankle injury is consistent with governing
    law, plausible in light of the record, and sufficiently detailed to inform Mr. Miller of the reasons
    for its determination that service connection for a right ankle disability was not warranted and to
    facilitate judicial review. See Allday, 7 Vet.App. at 527; Caluza, 7 Vet.App. at 506. Accordingly,
    the Court will affirm this portion of the November 2019 Board decision.
    B. Request to Reopen Service Connection for an Acquired Psychiatric Disorder
    Mr. Miller argues that the request to reopen service connection for an acquired psychiatric
    disorder in inextricably intertwined with the claims for service connection for the right ankle and
    residual head injury disabilities because he claimed the acquired psychiatric disorder as secondary
    to those other conditions. Appellant’s Br. at 28-29. The Secretary disputes this assertion, arguing
    that Mr. Miller fails to demonstrate that the claims are intimately connected. Secretary’s Br. at 16.
    The Court agrees with the veteran that the psychiatric claim is inextricably intertwined with
    the residual head injury claim. In his March 2013 request to reopen the psychiatric claim, Mr.
    Miller claimed depression as secondary to multiple service-connected conditions. R. at 3349; see
    R. at 103 (May 2019 Substantive Appeal). Prior to the request to reopen, during the April 2012
    VA psychiatric examination, the examiner indicated that Mr. Miller attributed his depression, in
    part, to headache pain. R. at 1615; see R. at 4666 (October 2005 VA examiner linking Mr. Miller’s
    depressive symptoms, in part, to chronic pain). In May 2012, the RO denied service connection
    for major depressive disorder, in part, based on the examiner’s attribution of Mr. Miller’s symptoms
    to non-service-connected conditions including headache pain. R. at 3380. And the Board in the
    decision on appeal noted that the evidence added to the claims file since the May 2012 RO decision
    included VA treatment records that link Mr. Miller’s depression to, among other things, chronic
    pain. R. at 14.
    Therefore, the Court concludes that the request to reopen service connection for an
    acquired psychiatric disorder is inextricably intertwined with the claim for service connection for
    a residual head injury disability, which the Court is remanding for readjudication. See Smith v.
    Gober, 236 F.3d 1370, 1372 (Fed. Cir. 2001); Henderson v. West, 12 Vet.App. 11, 20 (1998)
    (“[W]here a decision on one issue would have a significant impact upon another, and that impact
    11
    in turn could render any review by this Court of the decision on the other [issue] meaningless and
    a waste of judicial resources, the two [issues] are inextricably intertwined.” (internal quotations
    and alterations omitted)). Accordingly, the Court will also remand the psychiatric claim.
    On remand, Mr. Miller is free to submit additional arguments and evidence, including the
    arguments raised in his briefs to this Court, and the Board must consider any such evidence or
    argument submitted. 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 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, those portions of the November 19, 2019, Board
    decision that denied service connection for residuals of a head injury and declined to reopen a
    previously denied claim for service connection for an acquired psychiatric disorder are SET
    ASIDE and those matters are REMANDED for readjudication consistent with this decision. That
    portion of the November 2019 Board decision that denied service connection for a right ankle
    disability is AFFIRMED. The balance of the appeal is DISMISSED.
    DATED: July 30, 2021
    Copies to:
    Jonathan H. Davis, Esq.
    VA General Counsel (027)

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