Veteranclaims’s Blog

September 23, 2021

Single Judge Application; private medical exam; Savage v. Shinseki, 24 Vet.App. 259, 269 (2011) (holding that “pursuant to [38 U.S.C. §] 5103A(a), when a private examination report reasonably appears to contain information necessary to properly decide a claim but it is ‘unclear’…and the information reasonably contained in the report otherwise cannot be obtained, VA has a duty to either (1) ask the private examiner to clarify the report, (2) request that the claimant to obtain the necessary information to clarify the report, or (3) explain why such clarification is not needed.”); pain impairment affects a veteran’s earning capacity; the Court reminds the Board that “[a] physician’s failure to provide a diagnosis for the immediate cause of a veteran’s pain does not indicate that the pain cannot be a functional impairment that affects a veteran’s earning capacity,” and that a current disability may be established in the absence of a diagnosis when the evidence shows that “her pain reaches the level of a functional impairment of earning capacity.” Saunders v. Wilkie, 886 F.3d 1356, 1368-69 (Fed. Cir. 2018);

Filed under: Uncategorized — Tags: — veteranclaims @ 11:26 am

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-8086
ROSE M. HARMON, APPELLANT,
V.
DENIS MCDONOUGH,
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: Rose M. Harmon appeals, pro se, a September 17, 2019, Board of
Veterans’ Appeals (Board) decision that denied applications to reopen claims for service
connection for diabetes mellitus, type II (diabetes); a stomach disability, to include
gastroesophageal reflux disease (GERD) and acid reflux; and, a bilateral foot disability; and that
denied entitlement to service connection for neuropathy of the right lower extremity and left lower
extremity, to include as secondary to diabetes. 1 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). Singlejudge
disposition is appropriate because the issue is of “relative simplicity” and “the outcome is
not reasonably debatable.” Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons that
follow, the Court will affirm in part and vacate in part the Board’s September 17, 2019, decision,
and the Court will remand the vacated matters for further proceedings and readjudication
consistent with this decision.
1 Based on VA’s receipt of new and material evidence, the Board reopened a claim for service connection
for a skin disability manifested by brown spots. This is a favorable determination that the Court will not disturb. See
Medrano v. Nicholson, 21 Vet.App. 165, 170 (2007). The Board also remanded the claim for entitlement to service
connection for a skin disability manifested by brown spots and an application to reopen the claim for service
connection for a broken left ankle, and these issues are not before the Court. See Breeden v. Principi, 17 Vet.App.
475, 478 (2004) (holding that a Board remand “does not represent a final decision over which this Court has
jurisdiction”).
2
I. FACTS
Ms. Harmon served in the U.S. Army Reserve from November 1979 to October 1997,
including a period of active duty from April 25, 1980, to May 17, 1980, and multiple periods of
active duty for training (ACDUTRA). See Record (R.) at 1699-700, 2583-85.
A May 1980 service treatment record shows bilateral pes planus. R. at 309. Service
treatment records show that in May 1980, Ms. Harmon experienced muscle aches all over her body
after a 7-mile march, as well as stomach pains. R. at 1846. A July 1994 “Statement of Medical
Examination and Duty Status” shows that during a period of ACDUTRA in July 1994, Ms. Harmon
did a 2.5-mile walk, and that her knees and legs have hurt ever since. R. at 311.
In January 2003, Ms. Harmon filed a claim for service connection for diabetes. R. at 2437.
In February 2004, the VA regional office (RO) denied service connection for diabetes. R. at 2437-

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-8086
ROSE M. HARMON, APPELLANT,
V.
DENIS MCDONOUGH,
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: Rose M. Harmon appeals, pro se, a September 17, 2019, Board of
Veterans’ Appeals (Board) decision that denied applications to reopen claims for service
connection for diabetes mellitus, type II (diabetes); a stomach disability, to include
gastroesophageal reflux disease (GERD) and acid reflux; and, a bilateral foot disability; and that
denied entitlement to service connection for neuropathy of the right lower extremity and left lower
extremity, to include as secondary to diabetes. 1 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). Singlejudge
disposition is appropriate because the issue is of “relative simplicity” and “the outcome is
not reasonably debatable.” Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons that
follow, the Court will affirm in part and vacate in part the Board’s September 17, 2019, decision,
and the Court will remand the vacated matters for further proceedings and readjudication
consistent with this decision.
1 Based on VA’s receipt of new and material evidence, the Board reopened a claim for service connection
for a skin disability manifested by brown spots. This is a favorable determination that the Court will not disturb. See
Medrano v. Nicholson, 21 Vet.App. 165, 170 (2007). The Board also remanded the claim for entitlement to service
connection for a skin disability manifested by brown spots and an application to reopen the claim for service
connection for a broken left ankle, and these issues are not before the Court. See Breeden v. Principi, 17 Vet.App.
475, 478 (2004) (holding that a Board remand “does not represent a final decision over which this Court has
jurisdiction”).
2
I. FACTS
Ms. Harmon served in the U.S. Army Reserve from November 1979 to October 1997,
including a period of active duty from April 25, 1980, to May 17, 1980, and multiple periods of
active duty for training (ACDUTRA). See Record (R.) at 1699-700, 2583-85.
A May 1980 service treatment record shows bilateral pes planus. R. at 309. Service
treatment records show that in May 1980, Ms. Harmon experienced muscle aches all over her body
after a 7-mile march, as well as stomach pains. R. at 1846. A July 1994 “Statement of Medical
Examination and Duty Status” shows that during a period of ACDUTRA in July 1994, Ms. Harmon
did a 2.5-mile walk, and that her knees and legs have hurt ever since. R. at 311.
In January 2003, Ms. Harmon filed a claim for service connection for diabetes. R. at 2437.
In February 2004, the VA regional office (RO) denied service connection for diabetes. R. at 2437-

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-8086
ROSE M. HARMON, APPELLANT,
V.
DENIS MCDONOUGH,
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: Rose M. Harmon appeals, pro se, a September 17, 2019, Board of
Veterans’ Appeals (Board) decision that denied applications to reopen claims for service
connection for diabetes mellitus, type II (diabetes); a stomach disability, to include
gastroesophageal reflux disease (GERD) and acid reflux; and, a bilateral foot disability; and that
denied entitlement to service connection for neuropathy of the right lower extremity and left lower
extremity, to include as secondary to diabetes. 1 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). Singlejudge
disposition is appropriate because the issue is of “relative simplicity” and “the outcome is
not reasonably debatable.” Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons that
follow, the Court will affirm in part and vacate in part the Board’s September 17, 2019, decision,
and the Court will remand the vacated matters for further proceedings and readjudication
consistent with this decision.
1 Based on VA’s receipt of new and material evidence, the Board reopened a claim for service connection
for a skin disability manifested by brown spots. This is a favorable determination that the Court will not disturb. See
Medrano v. Nicholson, 21 Vet.App. 165, 170 (2007). The Board also remanded the claim for entitlement to service
connection for a skin disability manifested by brown spots and an application to reopen the claim for service
connection for a broken left ankle, and these issues are not before the Court. See Breeden v. Principi, 17 Vet.App.
475, 478 (2004) (holding that a Board remand “does not represent a final decision over which this Court has
jurisdiction”).
2
I. FACTS
Ms. Harmon served in the U.S. Army Reserve from November 1979 to October 1997,
including a period of active duty from April 25, 1980, to May 17, 1980, and multiple periods of
active duty for training (ACDUTRA). See Record (R.) at 1699-700, 2583-85.
A May 1980 service treatment record shows bilateral pes planus. R. at 309. Service
treatment records show that in May 1980, Ms. Harmon experienced muscle aches all over her body
after a 7-mile march, as well as stomach pains. R. at 1846. A July 1994 “Statement of Medical
Examination and Duty Status” shows that during a period of ACDUTRA in July 1994, Ms. Harmon
did a 2.5-mile walk, and that her knees and legs have hurt ever since. R. at 311.
In January 2003, Ms. Harmon filed a claim for service connection for diabetes. R. at 2437.
In February 2004, the VA regional office (RO) denied service connection for diabetes. R. at 2437-41. In October 2005, she filed an application to reopen the diabetes claim. R. at 2373. In April
2006, the RO declined to reopen the claim for diabetes. R. at 2373-74. In May 2006, she filed a
claim for service connection for a bilateral foot disability and an application to reopen the diabetes
claim. R. at 2331-33. In September 2006, the RO denied service connection for a bilateral foot
disability, to include pain, swelling, and numbness, based partly on findings that the evidence does
not show a current disability or an in-service bilateral foot injury. R. at 2331-40. The RO also
declined to reopen the claim for diabetes. Id.
In April 2013, Ms. Harmon filed a claim for compensation for bilateral foot and bilateral
leg conditions that she characterized as “tarsal tunnel,” and for stomach conditions, including
GERD. R. at 2308-10. In September 2013, she informally claimed compensation for diabetes based
on exposure to Agent Orange at Fort McClellan, AL. R. at 2289. In November 2013, she submitted
an online article titled “Agent Orange and the Fort McClellan connection”. R. at 2252-57. She also
submitted a November 2013 private treatment record in which Dr. Alvarez diagnosed peripheral
neuropathy and which notes that Dr. Hayat had noted in April 2013 that peripheral neuropathy is
probably due to diabetes. R. at 2244-48.
In February 2014, VA received a March 2013 private treatment record in which Dr.
Kaminsky diagnosed bilateral tarsal tunnel syndrome and left common peroneal nerve entrapment.
3
R. at 2124. A February 2014 “Request for Information” shows that Ms. Harmon’s service records
contained no records of exposure to herbicides. R. at 2081.
In a May 2014 rating decision, the RO noted that it had reviewed service treatment records
dated from May 1980 through June 1997 and service personnel records. R. at 2021.2 The RO
denied service connection for stomach conditions, including GERD and acid reflux, based on
findings that the evidence does not show an in-service event, disease, or injury, nor a nexus to
service. R. at 2016-32. The RO also declined to reopen the claims for diabetes and for a bilateral
foot condition. Id. The RO found that treatment records show diabetes and noted that the evidence
does not show that diabetes was incurred in or caused by active duty service. R. at 2027. The RO
also found that treatment records show a bilateral foot condition, noting that the evidence does not
show that a bilateral foot condition was incurred in or caused by active duty service. R. at 2028-
29.
Then, in November 2014, Ms. Harmon filed an application to reopen the claims for a
stomach condition and a foot condition. R. at 1703. In an April 2015 rating decision, the RO
reopened and denied the claim for service connection for a stomach condition, including GERD
and acid reflux, and the RO denied the application to reopen the claim for a bilateral foot condition,
to include pain, swelling, and numbness. R. at 1684-89. In June 2015, Ms. Harmon filed a Notice
of Disagreement (NOD) in which she stated: “13 May 1980 active duty treatment record states …
muscle aches 7 mile[] march feet [and] legs were painful and still is. . .. This is neuropathy.” R. at
1659-60. She attached an online article titled “Fort McClellan: More Toxic Than Camp Lejeune?”
R. at 1666-67.
In October 2015, Ms. Harmon filed a claim for service connection for neuropathy of the
bilateral lower extremities secondary to diabetes and another application to reopen the claim for
diabetes. R. at 1628-32. In November 2015, the RO denied service connection for neuropathy of
2 The Board found that, pursuant to 38 C.F.R. § 3.156(c) (2018), the May 2014 rating decision constituted a
reconsideration of her claims for service connection for diabetes and for a bilateral foot disability, because the service
treatment records and service personnel records existed but had not been associated with the claims file at the time of
the RO’s prior decisions. R. at 11-12, 16. The Board also found that the May 2014 rating decision became final. R. at
12-16 (discussing R. at 1555-57 (Dec. 2015 VA letter notifying her that the June 2015 NOD was not a timely appeal
of the May 2014 rating decision)). Ms. Harmon does not present any argument to challenge these Board findings.
4
the left and right lower extremities, and the RO reopened and denied the claim for service
connection for diabetes. R. at 1610-15, 1594-98.
In March 2016, Ms. Harmon submitted a March 2011 Board decision that granted another
veteran entitlement to service connection for diabetes based on exposure to herbicides at Fort
McClellan. R. at 1512-19. She also submitted a January 2016 letter in which Dr. Liss opined that
“it is most probable that . . . [Ms. Harmon’s] present problems, which requires significant treatment
for neuropathy … complicated by diabetes[,] began during her time in service and are serviceconnected.”
R. at 1509. In May 2018, VA noted that Ms. Harmon “stated the [right and left] leg
muscles is [sic] different then [sic] the neuropathy on the appeal dated 06/25/2015.” R. at 237. In
July 2018, she filed an NOD in which she noted that pes planus was shown in a May 1980 service
treatment record. R. at 212-13. In July 2019, Ms. Harmon submitted a July 2019 statement by her
friend Velma. R. at 67-70.
In the September 2019 decision on appeal, the Board denied Ms. Harmon’s applications to
reopen previously denied claims for service connection for diabetes, a stomach disability, to
include GERD and acid reflux, and a bilateral foot disability, based on determinations that VA had
not received new and material evidence sufficient to reopen each claim. R. at 10-17. The Board
also denied entitlement to service connection for neuropathy of the bilateral lower extremities
(BLE), based on findings that the evidence does not show a current diagnosis of BLE neuropathy;
that even if there were a current diagnosis, the evidence does not show an in-service incurrence of
a disease or injury; and, that service connection on a secondary basis is not warranted because the
Board denied the application to reopen the claim for diabetes. R. at 17-21.
II. ANALYSIS
A. Jurisdiction
Ms. Harmon argues on appeal that multiple conditions are secondary to diabetes, namely
neuropathy, kidney failure, heart failure, and eye failure. See Informal Appellant’s Brief (Br.) at 5.
Of these conditions, however, the Board addressed only neuropathy in its September 2019
decision. Therefore, the Court does not have the jurisdictional authority to address any claims
pertaining to kidney, heart, and eye failure. See 38 U.S.C. § 7252; Maggitt v. West, 202 F.3d 1370,
1376 (Fed. Cir. 2000) (“A ‘decision’ of the Board, for purposes of the Veterans Court’s jurisdiction
5
under section 7252, is the decision with respect to the benefit sought by the veteran: those benefits
are either granted…or they are denied.”).
Ms. Harmon also presents argument on appeal about an ankle disability. See Br. at 3-4. The
Board remanded the application to reopen the claim for service connection for a broken left ankle;
thus, the Court does not have jurisdiction to address a left ankle issue. See Breeden, 17 Vet.App.
at 478. Also, the Board noted that it would address the issue of service connection for a right ankle
disability in a separate decision because Ms. Harmon had requested, but had not yet been afforded,
a Board hearing on that issue. R. at 10. Thus, a right ankle disability issue was not the subject of
the Board’s September 2019 decision, and the Court does not have jurisdiction to address it. See
38 U.S.C. § 7252; Maggitt, 202 F.3d at 1376.
On appeal, Ms. Harmon also presents arguments about why she believes the Board should
have granted entitlement to service connection for diabetes, a stomach disability, and a bilateral
foot disability. See Br. at 2-20. But the Court does not have jurisdiction to address any such
arguments because the Board did not address the issues of service connection for a stomach
disability, diabetes, and a bilateral foot disability, and because the issue of entitlement to service
connection is distinct from the issue of whether new and material evidence has been received to
reopen a previously denied claim for service connection. See 38 U.S.C. § 7252; Bernard v. Brown,
4 Vet.App. 384, 394 (1993).
B. General Arguments
Ms. Harmon generally argues on appeal that VA improperly destroyed evidence that it
considered redundant or duplicative of evidence previously of record, and she invites the Court’s
attention to copies of service treatment and personnel records. See Br. at 4-5, 8, 12-14. The
Secretary responds that she “points to no evidence that shows that VA destroyed or removed any
documents in her file[.]” See Secretary’s Brief (Sec. Br.) at 16.
Indeed, Ms. Harmon does not identify any evidence in the record that suggests that VA
destroyed any records, and the Court sees no such evidence in the record. Thus, the Court will not
address this argument. See Deloach v. Shinseki, 704 F.3d 1370, 1380 (Fed. Cir. 2013) (stating that
the Court is prohibited from making factual findings in the first instance); Coker v. Nicholson,
19 Vet.App. 439, 442 (2006) (stating that an appellant must “plead with some particularity the
allegation of error so that the Court is able to review and assess the validity of the appellant’s
6
arguments”), rev’d on other grounds sub nom. Coker v. Peake, 310 F. App’x 371 (Fed. Cir. 2008)
(per curiam order); Cromer v. Nicholson, 19 Vet.App. 215, 219 (2005) (holding that the Court will
not address any argument “in the absence of the necessary factual predicate”). Further, to the extent
Ms. Harmon generally seeks relief on an equitable basis, see Br. at 6-8, the Court does not have
the authority to grant her any such equitable remedy because she has not identified any evidence
of administrative error. See 38 U.S.C. § 503; 38 C.F.R. § 2.7; Burris v. Wilkie, 888 F.3d 1352,
1359 (Fed. Cir. 2018).
Ms. Harmon also appears to allege that the Secretary’s counsel is not permitted to practice
law before this Court. See Br. at 6. This allegation is without merit.
C. New and Material Evidence
New and material evidence is required to reopen a previously finally denied claim.
38 U.S.C. § 5108 (2018); 38 C.F.R. § 3.156(a) (2018). New and material evidence is defined as
follows:
New evidence means existing evidence not previously submitted to agency
decisionmakers. Material evidence means existing evidence that, by itself or when
considered with previous evidence of record, relates to an unestablished fact
necessary to substantiate the claim. New and material evidence can be neither
cumulative nor redundant of the evidence of record at the time of the last prior final
denial of the claim sought to be reopened, and must raise a reasonable possibility
of substantiating the claim.
§ 3.156(a). Evidence “raises a reasonable possibility of substantiating the claim” if it would trigger
VA’s duty to assist the claimant in substantiating the claim under 38 U.S.C. § 5103A. See Shade
v. Shinseki, 24 Vet.App. 110, 118 (2010).
First, the Court is mindful that Ms. Harmon’s informal brief must be liberally interpreted
because she proceeds pro se. See generally Coker, 19 Vet.App. at 442. Ms. Harmon essentially
argues on appeal that the Board should have reopened her claim for service connection for a
bilateral foot disability based on her report of having experienced continuing bilateral feet
problems with pain since their onset during active duty. See Br. at 3-4. She invites the Court’s
attention to a May 1980 service treatment record showing bilateral pes planus, Br. at 3, 12, but she
does not identify any evidence in the record that reflects continuing feet problems since active duty
or any period of ACDUTRA. Because Ms. Harmon proceeds pro se, the Court notes that in the
7
June 2015 NOD, she reported that her feet were painful in May 1980 and “still is”. See R. at 1660.
The Secretary responds that though Ms. Harmon alleges she experienced problems with her feet
in and since service, she offers no cogent argument as to whether the Board erred. See Sec. Br. at
15.
The Board noted that in the final May 2014 rating decision, the element of an in-service
incurrence of a disease or injury was not established. R. at 17. The Board found that since the May
2014 rating decision, Ms. Harmon submitted medical records and duplicate service treatment
records, including the May 1980 record showing pes planus. Id. And the Board found that such
records do not constitute new and material evidence sufficient to reopen the claim for a bilateral
foot disability. Id.
Though the Board considered the June 2015 NOD, the Board did not expressly address Ms.
Harmon’s report in the NOD that her feet were painful in May 1980 and “still is,” to include
whether this report may be sympathetically construed as reporting continuing feet symptoms since
onset in active duty. See R. at 15-17; Wise v. Shinseki, 26 Vet.App. 517, 524 (2014) (holding that
“the Board must analyze the credibility and probative value of the evidence, account for the
evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any
material evidence favorable to the claimant”); see also Comer v. Peake, 552 F.3d 1362, 1368-69
(Fed. Cir. 2009) (requiring VA to liberally and sympathetically read veteran submissions).
Therefore, the Board’s reasons or bases frustrate review, and the Court will remand the
matter for the Board to address whether Ms. Harmon’s report of symptoms in the June 2015 NOD
is new and material evidence sufficient to reopen the claim for a bilateral foot disability. See
38 U.S.C. § 7104(d)(1); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990) (holding that the
Board’s reasons or bases must be adequate to enable an appellant to understand the precise basis
for the Board’s decision and to facilitate informed review in this Court); Tucker v. West,
11 Vet.App. 369, 374 (1998) (remand is appropriate “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”).
Second, Ms. Harmon essentially argues on appeal that the Board should have reopened her
claim for service connection for diabetes based on her submission of a March 2011 Board decision
in another veteran’s case that granted service connection for diabetes based on exposure to
8
herbicides at Fort McClellan. See Br. at 2, 17. The Secretary responds that the Board did not clearly
err when it found that the March 2011 Board decision was new but not material. See Sec. Br. at 9-

The Court agrees with the Secretary.
The Board noted that the element of an in-service incurrence of a disease or injury was
previously unestablished in the prior final May 2014 rating decision. R. at 12. The Board found
that the March 2011 Board decision “was based on facts not present in the current case” and
explained that a Board decision in another veteran’s case in not binding on the Board in this case.
R. at 13; see 38 C.F.R. § 20.1303 (2018) (“Prior decisions in other appeals may be considered in
a case to the extent that they reasonably relate to the case, but each case presented to the Board
will be decided on the basis of the individual facts of the case in light of applicable procedure and
substantive law.”). The Board determined that “the March 2011 Board decision has no evidentiary
value as it pertains to this claim or the other claims herein. Therefore, while new, it is not material
because it does not raise a reasonable possibility of substantiating the claim.” R. at 13 (first citing
38 C.F.R. § 3.156(a); and then citing Shade, 24 Vet.App. 110).
Here, the Board relied on applicable law, discussed why the March 2011 Board decision
does not include facts that relate to Ms. Harmon’s case, and explained why the March 2011 Board
decision does not include information that would raise a reasonable possibility of substantiating
Ms. Harmon’s claim for service connection for diabetes. Ultimately, the Court is not definitely and
firmly convinced that the Board made a mistake when it found that the March 2011 Board decision
is not material evidence. Therefore, the Court will not reverse this Board finding, and the Court
holds that Board did not clearly err when it denied the application to reopen the diabetes claim.
See Padgett v. Nicholson, 19 Vet.App. 133, 147 (2005) (en banc) (holding that the Court should
reverse the Board’s denial of benefits when the Court has a definite and firm conviction that a
mistake has been made); Vazquez-Flores v. Shinseki, 24 Vet.App. 94, 104 (2010) (holding a Board
finding of fact clearly erroneous under Padgett, 19 Vet.App. 133); Van Valkenburg v. Shinseki, 23
Vet.App. 113, 121 (2009) (reversing a Board determination because the Court had a “definite and
firm conviction that the Board’s finding that the evidence weighed against a finding” was “clearly
erroneous”).
Because Ms. Harmon has not demonstrated that the Board erred in denying the application
to reopen the claim for diabetes, nor presented any other discernable argument of Board error, the
9
Court will affirm the Board’s determination that VA did not receive new and material evidence
sufficient to reopen the diabetes claim. See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc)
(holding that the appellant bears the burden of demonstrating error on appeal), aff’d per curiam,
232 F.3d 908 (Fed. Cir. 2000).
Third, Ms. Harmon essentially argues that the Board should have reopened her claim for
service connection for a stomach disability based on her report that her stomach issues began in
May 1980 and progressed through the present time. See Br. at 3, 13. She invites the Court’s
attention to the May 1980 service treatment record showing stomach pains, and she generally
points to the July 2019 lay statement by Velma. See Br. at 3, 13, 20. But she does not identify any
evidence in the record that shows stomach issues continuing since service, including since active
duty or any period of ACDUTRA. The Secretary responds that Ms. Harmon “does not provide any
cogent argument about how the Board might have erred in finding that no new and material
evidence had been found[.]” See Sec. Br. at 12. The Court agrees with the Secretary.
Unlike the bilateral foot matter, the Board did not identify, and the Court does not see in
the record, any lay or medical evidence of Ms. Harmon potentially reporting continuing stomach
issues since service. Because the Board made no finding of fact about any evidence of stomach
symptoms continuing since service, and because Ms. Harmon does not identify any evidence in
the record that shows the same, the Court will not address this argument. See Deloach, 704 F.3d
at 1380; Coker v. Nicholson, 19 Vet.App. at 442; Cromer, 19 Vet.App. at 219.
Because Ms. Harmon has not demonstrated that the Board erred in denying the application
to reopen the claim for a stomach disability, nor presented any other discernable argument of Board
error, the Court will affirm the Board’s determination that VA did not receive new and material
evidence sufficient to reopen the stomach disability claim. See Hilkert, 12 Vet.App. at 151.
D. Service Connection
Entitlement to service connection is warranted “for disability resulting from personal injury
suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or
disease contracted in line of duty, in the active military, naval, air, or space service.” 38 U.S.C. §§
1110, 1131. Generally, to establish service connection, “the veteran must show: (1) the existence
of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a
causal relationship between the present disability and the disease or injury incurred or aggravated
10
during service.” See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The first
requirement of a current disability is satisfied “when a claimant has a disability at the time a claim
for VA disability compensation is filed or during the pendency of that claim.” See McClain v.
Nicholson, 21 Vet.App. 319, 320-21 (2007).
On appeal, Ms. Harmon argues that the Board should have granted service connection for
BLE neuropathy based on her documented foot issues in May 1980 and based on her report of
“bilateral feet problems with pain neuropathy in both legs and feet” that continued through her
whole tenure in service to present day. See Br. at 3-4. She also invites the Court’s attention to the
January 2016 medical opinion by Dr. Liss. See Br. at 4, 19. Though she does not identify any
evidence in the record that shows continuing BLE symptoms since service, the Court is mindful
that Ms. Harmon proceeds pro se. Thus, the Court notes that in the June 2015 NOD, Ms. Harmon
noted a May 1980 service treatment record, reported that her legs were painful in service and “still
is”, and argued that “[t]his is neuropathy.” See R. at 1660. The Secretary responds that she has not
offered a cogent argument of prejudicial error. See Sec. Br. at 16.
The Board first found that the preponderance of the evidence does not establish that Ms.
Harmon has a current diagnosis of neuropathy in either lower extremity. R. at 19. Initially, the Court reminds the Board that “[a] physician’s failure to provide a diagnosis for the immediate cause of a veteran’s pain does not indicate that the pain cannot be a functional impairment that affects a veteran’s earning capacity,” and that a current disability may be established in the absence of a diagnosis when the evidence shows that “her pain reaches the level of a functional impairment of earning capacity.” Saunders v. Wilkie, 886 F.3d 1356, 1368-69 (Fed. Cir. 2018).
The Board acknowledged that Ms. Harmon reported symptoms associated with neuropathy
in her BLE, but the Board found that she is not competent to render a medical diagnosis of
neuropathy. R. at 18-19. The Court notes that because the Board did not question the credibility of
Ms. Harmon’s report of symptoms in the BLE, thus the Board implicitly found the report credible.
See Miller v. Wilkie, 32 Vet.App. 249, 260 (2020). The Board also acknowledged the March 2013
diagnoses of bilateral tarsal tunnel syndrome and left lower extremity common peroneal nerve
entrapment, as well as the January 2016 letter from Dr. Liss suggesting that she presently suffers
from neuropathy. R. at 19. But the Board emphasized that the doctors did not specify whether
neuropathy affected either of her lower extremities. Id.
11
First, because the Board acknowledged the diagnoses of bilateral tarsal tunnel syndrome
and left lower extremity common peroneal nerve entrapment but did not address whether these
conditions are within the scope of the neuropathy claims, the Board should address this question
on remand. See Tucker v. West, 11 Vet.App. at 374; see also Clemons v. Shinseki, 23 Vet.App. 1,
5 (2009) (holding that the scope of a claim is based on the claimant’s reasonable expectations and
includes any alternative diagnoses that contemplate the claimed symptoms).
Second, because the Board found that the January 2016 letter from Dr. Liss was unclear as
to whether the neuropathy affected the BLE, the Board should either remand the matter to the RO
to seek clarification from Dr. Liss on this question, or explain why such clarification is not needed.
See Savage v. Shinseki, 24 Vet.App. 259, 269 (2011) (holding that “pursuant to [38 U.S.C. §] 5103A(a), when a private examination report reasonably appears to contain information necessary to properly decide a claim but it is ‘unclear’…and the information reasonably contained in the report otherwise cannot be obtained, VA has a duty to either (1) ask the private examiner to clarify the report, (2) request that the claimant to obtain the necessary information to clarify the report, or (3) explain why such clarification is not needed.”).
Third, the Board also determined that “[e]ven if the Board were to accept that the medical
evidence of record establishes current diagnoses of peripheral neuropathy of the right and left
lower extremities, the Board notes there is insufficient evidence of an in-service incurrence.” R. at

The Board found that “the Veteran has not claimed the onset of neuropathy of either lower
extremity during her period of active duty service or any period of ACDUTRA service.” R. at 20.
The Board, however, did not address Ms. Harmon’s lay report in the June 2015 NOD regarding
her history of BLE symptoms. Therefore, the Board should address this report on remand. See
Wise v. Shinseki, 26 Vet.App. at 524; see generally Quirin v. Shinseki, 22 Vet.App. 390, 395-96
(2009) (after the Court determines that remand is necessary, the Court may address additional
arguments in order to provide guidance to the lower tribunal).
At this time, the Court need not address any other arguments pertaining to the remanded
bilateral foot disability and BLE neuropathy matters. See Best v. Principi, 15 Vet.App. 18, 20
(2001) (per curiam order). On remand, Ms. Harmon is free to submit additional evidence and
argument in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam
order), and the Board must consider any such evidence or argument submitted. See Kay v. Principi,
12
16 Vet.App. 529, 534 (2002). The Court reminds the Board that “[a] remand is meant to entail a
critical examination of the justification for [the Board’s] decision,” Fletcher v. Derwinski,
1 Vet.App. 394, 397 (1991), and must be performed in an expeditious manner in accordance with
38 U.S.C. § 7112.
III. CONCLUSION
Upon consideration of the foregoing analysis, the record of proceedings before the Court,
and the parties’ pleadings, the portion of the September 17, 2019, Board decision on appeal
regarding diabetes and a stomach disability is AFFIRMED, the decision is otherwise VACATED,
and the vacated matters on appeal are REMANDED for further proceedings and readjudication
consistent with this decision.
DATED: September 14, 2021
Copies to:
Rose M. Harmon
VA General Counsel (027)

  1. In October 2005, she filed an application to reopen the diabetes claim. R. at 2373. In April
    2006, the RO declined to reopen the claim for diabetes. R. at 2373-74. In May 2006, she filed a
    claim for service connection for a bilateral foot disability and an application to reopen the diabetes
    claim. R. at 2331-33. In September 2006, the RO denied service connection for a bilateral foot
    disability, to include pain, swelling, and numbness, based partly on findings that the evidence does
    not show a current disability or an in-service bilateral foot injury. R. at 2331-40. The RO also
    declined to reopen the claim for diabetes. Id.
    In April 2013, Ms. Harmon filed a claim for compensation for bilateral foot and bilateral
    leg conditions that she characterized as “tarsal tunnel,” and for stomach conditions, including
    GERD. R. at 2308-10. In September 2013, she informally claimed compensation for diabetes based
    on exposure to Agent Orange at Fort McClellan, AL. R. at 2289. In November 2013, she submitted
    an online article titled “Agent Orange and the Fort McClellan connection”. R. at 2252-57. She also
    submitted a November 2013 private treatment record in which Dr. Alvarez diagnosed peripheral
    neuropathy and which notes that Dr. Hayat had noted in April 2013 that peripheral neuropathy is
    probably due to diabetes. R. at 2244-48.
    In February 2014, VA received a March 2013 private treatment record in which Dr.
    Kaminsky diagnosed bilateral tarsal tunnel syndrome and left common peroneal nerve entrapment.
    3
    R. at 2124. A February 2014 “Request for Information” shows that Ms. Harmon’s service records
    contained no records of exposure to herbicides. R. at 2081.
    In a May 2014 rating decision, the RO noted that it had reviewed service treatment records
    dated from May 1980 through June 1997 and service personnel records. R. at 2021.2 The RO
    denied service connection for stomach conditions, including GERD and acid reflux, based on
    findings that the evidence does not show an in-service event, disease, or injury, nor a nexus to
    service. R. at 2016-32. The RO also declined to reopen the claims for diabetes and for a bilateral
    foot condition. Id. The RO found that treatment records show diabetes and noted that the evidence
    does not show that diabetes was incurred in or caused by active duty service. R. at 2027. The RO
    also found that treatment records show a bilateral foot condition, noting that the evidence does not
    show that a bilateral foot condition was incurred in or caused by active duty service. R. at 2028-
    29.
    Then, in November 2014, Ms. Harmon filed an application to reopen the claims for a
    stomach condition and a foot condition. R. at 1703. In an April 2015 rating decision, the RO
    reopened and denied the claim for service connection for a stomach condition, including GERD
    and acid reflux, and the RO denied the application to reopen the claim for a bilateral foot condition,
    to include pain, swelling, and numbness. R. at 1684-89. In June 2015, Ms. Harmon filed a Notice
    of Disagreement (NOD) in which she stated: “13 May 1980 active duty treatment record states …
    muscle aches 7 mile[] march feet [and] legs were painful and still is. . .. This is neuropathy.” R. at
    1659-60. She attached an online article titled “Fort McClellan: More Toxic Than Camp Lejeune?”
    R. at 1666-67.
    In October 2015, Ms. Harmon filed a claim for service connection for neuropathy of the
    bilateral lower extremities secondary to diabetes and another application to reopen the claim for
    diabetes. R. at 1628-32. In November 2015, the RO denied service connection for neuropathy of
    2 The Board found that, pursuant to 38 C.F.R. § 3.156(c) (2018), the May 2014 rating decision constituted a
    reconsideration of her claims for service connection for diabetes and for a bilateral foot disability, because the service
    treatment records and service personnel records existed but had not been associated with the claims file at the time of
    the RO’s prior decisions. R. at 11-12, 16. The Board also found that the May 2014 rating decision became final. R. at
    12-16 (discussing R. at 1555-57 (Dec. 2015 VA letter notifying her that the June 2015 NOD was not a timely appeal
    of the May 2014 rating decision)). Ms. Harmon does not present any argument to challenge these Board findings.
    4
    the left and right lower extremities, and the RO reopened and denied the claim for service
    connection for diabetes. R. at 1610-15, 1594-98.
    In March 2016, Ms. Harmon submitted a March 2011 Board decision that granted another
    veteran entitlement to service connection for diabetes based on exposure to herbicides at Fort
    McClellan. R. at 1512-19. She also submitted a January 2016 letter in which Dr. Liss opined that
    “it is most probable that . . . [Ms. Harmon’s] present problems, which requires significant treatment
    for neuropathy … complicated by diabetes[,] began during her time in service and are serviceconnected.”
    R. at 1509. In May 2018, VA noted that Ms. Harmon “stated the [right and left] leg
    muscles is [sic] different then [sic] the neuropathy on the appeal dated 06/25/2015.” R. at 237. In
    July 2018, she filed an NOD in which she noted that pes planus was shown in a May 1980 service
    treatment record. R. at 212-13. In July 2019, Ms. Harmon submitted a July 2019 statement by her
    friend Velma. R. at 67-70.
    In the September 2019 decision on appeal, the Board denied Ms. Harmon’s applications to
    reopen previously denied claims for service connection for diabetes, a stomach disability, to
    include GERD and acid reflux, and a bilateral foot disability, based on determinations that VA had
    not received new and material evidence sufficient to reopen each claim. R. at 10-17. The Board
    also denied entitlement to service connection for neuropathy of the bilateral lower extremities
    (BLE), based on findings that the evidence does not show a current diagnosis of BLE neuropathy;
    that even if there were a current diagnosis, the evidence does not show an in-service incurrence of
    a disease or injury; and, that service connection on a secondary basis is not warranted because the
    Board denied the application to reopen the claim for diabetes. R. at 17-21.
    II. ANALYSIS
    A. Jurisdiction
    Ms. Harmon argues on appeal that multiple conditions are secondary to diabetes, namely
    neuropathy, kidney failure, heart failure, and eye failure. See Informal Appellant’s Brief (Br.) at 5.
    Of these conditions, however, the Board addressed only neuropathy in its September 2019
    decision. Therefore, the Court does not have the jurisdictional authority to address any claims
    pertaining to kidney, heart, and eye failure. See 38 U.S.C. § 7252; Maggitt v. West, 202 F.3d 1370,
    1376 (Fed. Cir. 2000) (“A ‘decision’ of the Board, for purposes of the Veterans Court’s jurisdiction
    5
    under section 7252, is the decision with respect to the benefit sought by the veteran: those benefits
    are either granted…or they are denied.”).
    Ms. Harmon also presents argument on appeal about an ankle disability. See Br. at 3-4. The
    Board remanded the application to reopen the claim for service connection for a broken left ankle;
    thus, the Court does not have jurisdiction to address a left ankle issue. See Breeden, 17 Vet.App.
    at 478. Also, the Board noted that it would address the issue of service connection for a right ankle
    disability in a separate decision because Ms. Harmon had requested, but had not yet been afforded,
    a Board hearing on that issue. R. at 10. Thus, a right ankle disability issue was not the subject of
    the Board’s September 2019 decision, and the Court does not have jurisdiction to address it. See
    38 U.S.C. § 7252; Maggitt, 202 F.3d at 1376.
    On appeal, Ms. Harmon also presents arguments about why she believes the Board should
    have granted entitlement to service connection for diabetes, a stomach disability, and a bilateral
    foot disability. See Br. at 2-20. But the Court does not have jurisdiction to address any such
    arguments because the Board did not address the issues of service connection for a stomach
    disability, diabetes, and a bilateral foot disability, and because the issue of entitlement to service
    connection is distinct from the issue of whether new and material evidence has been received to
    reopen a previously denied claim for service connection. See 38 U.S.C. § 7252; Bernard v. Brown,
    4 Vet.App. 384, 394 (1993).
    B. General Arguments
    Ms. Harmon generally argues on appeal that VA improperly destroyed evidence that it
    considered redundant or duplicative of evidence previously of record, and she invites the Court’s
    attention to copies of service treatment and personnel records. See Br. at 4-5, 8, 12-14. The
    Secretary responds that she “points to no evidence that shows that VA destroyed or removed any
    documents in her file[.]” See Secretary’s Brief (Sec. Br.) at 16.
    Indeed, Ms. Harmon does not identify any evidence in the record that suggests that VA
    destroyed any records, and the Court sees no such evidence in the record. Thus, the Court will not
    address this argument. See Deloach v. Shinseki, 704 F.3d 1370, 1380 (Fed. Cir. 2013) (stating that
    the Court is prohibited from making factual findings in the first instance); Coker v. Nicholson,
    19 Vet.App. 439, 442 (2006) (stating that an appellant must “plead with some particularity the
    allegation of error so that the Court is able to review and assess the validity of the appellant’s
    6
    arguments”), rev’d on other grounds sub nom. Coker v. Peake, 310 F. App’x 371 (Fed. Cir. 2008)
    (per curiam order); Cromer v. Nicholson, 19 Vet.App. 215, 219 (2005) (holding that the Court will
    not address any argument “in the absence of the necessary factual predicate”). Further, to the extent
    Ms. Harmon generally seeks relief on an equitable basis, see Br. at 6-8, the Court does not have
    the authority to grant her any such equitable remedy because she has not identified any evidence
    of administrative error. See 38 U.S.C. § 503; 38 C.F.R. § 2.7; Burris v. Wilkie, 888 F.3d 1352,
    1359 (Fed. Cir. 2018).
    Ms. Harmon also appears to allege that the Secretary’s counsel is not permitted to practice
    law before this Court. See Br. at 6. This allegation is without merit.
    C. New and Material Evidence
    New and material evidence is required to reopen a previously finally denied claim.
    38 U.S.C. § 5108 (2018); 38 C.F.R. § 3.156(a) (2018). New and material evidence is defined as
    follows:
    New evidence means existing evidence not previously submitted to agency
    decisionmakers. Material evidence means existing evidence that, by itself or when
    considered with previous evidence of record, relates to an unestablished fact
    necessary to substantiate the claim. New and material evidence can be neither
    cumulative nor redundant of the evidence of record at the time of the last prior final
    denial of the claim sought to be reopened, and must raise a reasonable possibility
    of substantiating the claim.
    § 3.156(a). Evidence “raises a reasonable possibility of substantiating the claim” if it would trigger
    VA’s duty to assist the claimant in substantiating the claim under 38 U.S.C. § 5103A. See Shade
    v. Shinseki, 24 Vet.App. 110, 118 (2010).
    First, the Court is mindful that Ms. Harmon’s informal brief must be liberally interpreted
    because she proceeds pro se. See generally Coker, 19 Vet.App. at 442. Ms. Harmon essentially
    argues on appeal that the Board should have reopened her claim for service connection for a
    bilateral foot disability based on her report of having experienced continuing bilateral feet
    problems with pain since their onset during active duty. See Br. at 3-4. She invites the Court’s
    attention to a May 1980 service treatment record showing bilateral pes planus, Br. at 3, 12, but she
    does not identify any evidence in the record that reflects continuing feet problems since active duty
    or any period of ACDUTRA. Because Ms. Harmon proceeds pro se, the Court notes that in the
    7
    June 2015 NOD, she reported that her feet were painful in May 1980 and “still is”. See R. at 1660.
    The Secretary responds that though Ms. Harmon alleges she experienced problems with her feet
    in and since service, she offers no cogent argument as to whether the Board erred. See Sec. Br. at
    15.
    The Board noted that in the final May 2014 rating decision, the element of an in-service
    incurrence of a disease or injury was not established. R. at 17. The Board found that since the May
    2014 rating decision, Ms. Harmon submitted medical records and duplicate service treatment
    records, including the May 1980 record showing pes planus. Id. And the Board found that such
    records do not constitute new and material evidence sufficient to reopen the claim for a bilateral
    foot disability. Id.
    Though the Board considered the June 2015 NOD, the Board did not expressly address Ms.
    Harmon’s report in the NOD that her feet were painful in May 1980 and “still is,” to include
    whether this report may be sympathetically construed as reporting continuing feet symptoms since
    onset in active duty. See R. at 15-17; Wise v. Shinseki, 26 Vet.App. 517, 524 (2014) (holding that
    “the Board must analyze the credibility and probative value of the evidence, account for the
    evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any
    material evidence favorable to the claimant”); see also Comer v. Peake, 552 F.3d 1362, 1368-69
    (Fed. Cir. 2009) (requiring VA to liberally and sympathetically read veteran submissions).
    Therefore, the Board’s reasons or bases frustrate review, and the Court will remand the
    matter for the Board to address whether Ms. Harmon’s report of symptoms in the June 2015 NOD
    is new and material evidence sufficient to reopen the claim for a bilateral foot disability. See
    38 U.S.C. § 7104(d)(1); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990) (holding that the
    Board’s reasons or bases must be adequate to enable an appellant to understand the precise basis
    for the Board’s decision and to facilitate informed review in this Court); Tucker v. West,
    11 Vet.App. 369, 374 (1998) (remand is appropriate “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”).
    Second, Ms. Harmon essentially argues on appeal that the Board should have reopened her
    claim for service connection for diabetes based on her submission of a March 2011 Board decision
    in another veteran’s case that granted service connection for diabetes based on exposure to
    8
    herbicides at Fort McClellan. See Br. at 2, 17. The Secretary responds that the Board did not clearly
    err when it found that the March 2011 Board decision was new but not material. See Sec. Br. at 9-
  2. The Court agrees with the Secretary.
    The Board noted that the element of an in-service incurrence of a disease or injury was
    previously unestablished in the prior final May 2014 rating decision. R. at 12. The Board found
    that the March 2011 Board decision “was based on facts not present in the current case” and
    explained that a Board decision in another veteran’s case in not binding on the Board in this case.
    R. at 13; see 38 C.F.R. § 20.1303 (2018) (“Prior decisions in other appeals may be considered in
    a case to the extent that they reasonably relate to the case, but each case presented to the Board
    will be decided on the basis of the individual facts of the case in light of applicable procedure and
    substantive law.”). The Board determined that “the March 2011 Board decision has no evidentiary
    value as it pertains to this claim or the other claims herein. Therefore, while new, it is not material
    because it does not raise a reasonable possibility of substantiating the claim.” R. at 13 (first citing
    38 C.F.R. § 3.156(a); and then citing Shade, 24 Vet.App. 110).
    Here, the Board relied on applicable law, discussed why the March 2011 Board decision
    does not include facts that relate to Ms. Harmon’s case, and explained why the March 2011 Board
    decision does not include information that would raise a reasonable possibility of substantiating
    Ms. Harmon’s claim for service connection for diabetes. Ultimately, the Court is not definitely and
    firmly convinced that the Board made a mistake when it found that the March 2011 Board decision
    is not material evidence. Therefore, the Court will not reverse this Board finding, and the Court
    holds that Board did not clearly err when it denied the application to reopen the diabetes claim.
    See Padgett v. Nicholson, 19 Vet.App. 133, 147 (2005) (en banc) (holding that the Court should
    reverse the Board’s denial of benefits when the Court has a definite and firm conviction that a
    mistake has been made); Vazquez-Flores v. Shinseki, 24 Vet.App. 94, 104 (2010) (holding a Board
    finding of fact clearly erroneous under Padgett, 19 Vet.App. 133); Van Valkenburg v. Shinseki, 23
    Vet.App. 113, 121 (2009) (reversing a Board determination because the Court had a “definite and
    firm conviction that the Board’s finding that the evidence weighed against a finding” was “clearly
    erroneous”).
    Because Ms. Harmon has not demonstrated that the Board erred in denying the application
    to reopen the claim for diabetes, nor presented any other discernable argument of Board error, the
    9
    Court will affirm the Board’s determination that VA did not receive new and material evidence
    sufficient to reopen the diabetes claim. See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc)
    (holding that the appellant bears the burden of demonstrating error on appeal), aff’d per curiam,
    232 F.3d 908 (Fed. Cir. 2000).
    Third, Ms. Harmon essentially argues that the Board should have reopened her claim for
    service connection for a stomach disability based on her report that her stomach issues began in
    May 1980 and progressed through the present time. See Br. at 3, 13. She invites the Court’s
    attention to the May 1980 service treatment record showing stomach pains, and she generally
    points to the July 2019 lay statement by Velma. See Br. at 3, 13, 20. But she does not identify any
    evidence in the record that shows stomach issues continuing since service, including since active
    duty or any period of ACDUTRA. The Secretary responds that Ms. Harmon “does not provide any
    cogent argument about how the Board might have erred in finding that no new and material
    evidence had been found[.]” See Sec. Br. at 12. The Court agrees with the Secretary.
    Unlike the bilateral foot matter, the Board did not identify, and the Court does not see in
    the record, any lay or medical evidence of Ms. Harmon potentially reporting continuing stomach
    issues since service. Because the Board made no finding of fact about any evidence of stomach
    symptoms continuing since service, and because Ms. Harmon does not identify any evidence in
    the record that shows the same, the Court will not address this argument. See Deloach, 704 F.3d
    at 1380; Coker v. Nicholson, 19 Vet.App. at 442; Cromer, 19 Vet.App. at 219.
    Because Ms. Harmon has not demonstrated that the Board erred in denying the application
    to reopen the claim for a stomach disability, nor presented any other discernable argument of Board
    error, the Court will affirm the Board’s determination that VA did not receive new and material
    evidence sufficient to reopen the stomach disability claim. See Hilkert, 12 Vet.App. at 151.
    D. Service Connection
    Entitlement to service connection is warranted “for disability resulting from personal injury
    suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or
    disease contracted in line of duty, in the active military, naval, air, or space service.” 38 U.S.C. §§
    1110, 1131. Generally, to establish service connection, “the veteran must show: (1) the existence
    of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a
    causal relationship between the present disability and the disease or injury incurred or aggravated
    10
    during service.” See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The first
    requirement of a current disability is satisfied “when a claimant has a disability at the time a claim
    for VA disability compensation is filed or during the pendency of that claim.” See McClain v.
    Nicholson, 21 Vet.App. 319, 320-21 (2007).
    On appeal, Ms. Harmon argues that the Board should have granted service connection for
    BLE neuropathy based on her documented foot issues in May 1980 and based on her report of
    “bilateral feet problems with pain neuropathy in both legs and feet” that continued through her
    whole tenure in service to present day. See Br. at 3-4. She also invites the Court’s attention to the
    January 2016 medical opinion by Dr. Liss. See Br. at 4, 19. Though she does not identify any
    evidence in the record that shows continuing BLE symptoms since service, the Court is mindful
    that Ms. Harmon proceeds pro se. Thus, the Court notes that in the June 2015 NOD, Ms. Harmon
    noted a May 1980 service treatment record, reported that her legs were painful in service and “still
    is”, and argued that “[t]his is neuropathy.” See R. at 1660. The Secretary responds that she has not
    offered a cogent argument of prejudicial error. See Sec. Br. at 16.
    The Board first found that the preponderance of the evidence does not establish that Ms.
    Harmon has a current diagnosis of neuropathy in either lower extremity. R. at 19. Initially, the
    Court reminds the Board that “[a] physician’s failure to provide a diagnosis for the immediate cause
    of a veteran’s pain does not indicate that the pain cannot be a functional impairment that affects a
    veteran’s earning capacity,” and that a current disability may be established in the absence of a
    diagnosis when the evidence shows that “her pain reaches the level of a functional impairment of
    earning capacity.” Saunders v. Wilkie, 886 F.3d 1356, 1368-69 (Fed. Cir. 2018).
    The Board acknowledged that Ms. Harmon reported symptoms associated with neuropathy
    in her BLE, but the Board found that she is not competent to render a medical diagnosis of
    neuropathy. R. at 18-19. The Court notes that because the Board did not question the credibility of
    Ms. Harmon’s report of symptoms in the BLE, thus the Board implicitly found the report credible.
    See Miller v. Wilkie, 32 Vet.App. 249, 260 (2020). The Board also acknowledged the March 2013
    diagnoses of bilateral tarsal tunnel syndrome and left lower extremity common peroneal nerve
    entrapment, as well as the January 2016 letter from Dr. Liss suggesting that she presently suffers
    from neuropathy. R. at 19. But the Board emphasized that the doctors did not specify whether
    neuropathy affected either of her lower extremities. Id.
    11
    First, because the Board acknowledged the diagnoses of bilateral tarsal tunnel syndrome
    and left lower extremity common peroneal nerve entrapment but did not address whether these
    conditions are within the scope of the neuropathy claims, the Board should address this question
    on remand. See Tucker v. West, 11 Vet.App. at 374; see also Clemons v. Shinseki, 23 Vet.App. 1,
    5 (2009) (holding that the scope of a claim is based on the claimant’s reasonable expectations and
    includes any alternative diagnoses that contemplate the claimed symptoms).
    Second, because the Board found that the January 2016 letter from Dr. Liss was unclear as
    to whether the neuropathy affected the BLE, the Board should either remand the matter to the RO
    to seek clarification from Dr. Liss on this question, or explain why such clarification is not needed.
    See Savage v. Shinseki, 24 Vet.App. 259, 269 (2011) (holding that “pursuant to [38 U.S.C. §]
    5103A(a), when a private examination report reasonably appears to contain information necessary
    to properly decide a claim but it is ‘unclear’…and the information reasonably contained in the
    report otherwise cannot be obtained, VA has a duty to either (1) ask the private examiner to clarify
    the report, (2) request that the claimant to obtain the necessary information to clarify the report, or
    (3) explain why such clarification is not needed.”).
    Third, the Board also determined that “[e]ven if the Board were to accept that the medical
    evidence of record establishes current diagnoses of peripheral neuropathy of the right and left
    lower extremities, the Board notes there is insufficient evidence of an in-service incurrence.” R. at
  3. The Board found that “the Veteran has not claimed the onset of neuropathy of either lower
    extremity during her period of active duty service or any period of ACDUTRA service.” R. at 20.
    The Board, however, did not address Ms. Harmon’s lay report in the June 2015 NOD regarding
    her history of BLE symptoms. Therefore, the Board should address this report on remand. See
    Wise v. Shinseki, 26 Vet.App. at 524; see generally Quirin v. Shinseki, 22 Vet.App. 390, 395-96
    (2009) (after the Court determines that remand is necessary, the Court may address additional
    arguments in order to provide guidance to the lower tribunal).
    At this time, the Court need not address any other arguments pertaining to the remanded
    bilateral foot disability and BLE neuropathy matters. See Best v. Principi, 15 Vet.App. 18, 20
    (2001) (per curiam order). On remand, Ms. Harmon is free to submit additional evidence and
    argument in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam
    order), and the Board must consider any such evidence or argument submitted. See Kay v. Principi,
    12
    16 Vet.App. 529, 534 (2002). The Court reminds the Board that “[a] remand is meant to entail a
    critical examination of the justification for [the Board’s] decision,” Fletcher v. Derwinski,
    1 Vet.App. 394, 397 (1991), and must be performed in an expeditious manner in accordance with
    38 U.S.C. § 7112.
    III. CONCLUSION
    Upon consideration of the foregoing analysis, the record of proceedings before the Court,
    and the parties’ pleadings, the portion of the September 17, 2019, Board decision on appeal
    regarding diabetes and a stomach disability is AFFIRMED, the decision is otherwise VACATED,
    and the vacated matters on appeal are REMANDED for further proceedings and readjudication
    consistent with this decision.
    DATED: September 14, 2021
    Copies to:
    Rose M. Harmon
    VA General Counsel (027)
  1. In October 2005, she filed an application to reopen the diabetes claim. R. at 2373. In April
    2006, the RO declined to reopen the claim for diabetes. R. at 2373-74. In May 2006, she filed a
    claim for service connection for a bilateral foot disability and an application to reopen the diabetes
    claim. R. at 2331-33. In September 2006, the RO denied service connection for a bilateral foot
    disability, to include pain, swelling, and numbness, based partly on findings that the evidence does
    not show a current disability or an in-service bilateral foot injury. R. at 2331-40. The RO also
    declined to reopen the claim for diabetes. Id.
    In April 2013, Ms. Harmon filed a claim for compensation for bilateral foot and bilateral
    leg conditions that she characterized as “tarsal tunnel,” and for stomach conditions, including
    GERD. R. at 2308-10. In September 2013, she informally claimed compensation for diabetes based
    on exposure to Agent Orange at Fort McClellan, AL. R. at 2289. In November 2013, she submitted
    an online article titled “Agent Orange and the Fort McClellan connection”. R. at 2252-57. She also
    submitted a November 2013 private treatment record in which Dr. Alvarez diagnosed peripheral
    neuropathy and which notes that Dr. Hayat had noted in April 2013 that peripheral neuropathy is
    probably due to diabetes. R. at 2244-48.
    In February 2014, VA received a March 2013 private treatment record in which Dr.
    Kaminsky diagnosed bilateral tarsal tunnel syndrome and left common peroneal nerve entrapment.
    3
    R. at 2124. A February 2014 “Request for Information” shows that Ms. Harmon’s service records
    contained no records of exposure to herbicides. R. at 2081.
    In a May 2014 rating decision, the RO noted that it had reviewed service treatment records
    dated from May 1980 through June 1997 and service personnel records. R. at 2021.2 The RO
    denied service connection for stomach conditions, including GERD and acid reflux, based on
    findings that the evidence does not show an in-service event, disease, or injury, nor a nexus to
    service. R. at 2016-32. The RO also declined to reopen the claims for diabetes and for a bilateral
    foot condition. Id. The RO found that treatment records show diabetes and noted that the evidence
    does not show that diabetes was incurred in or caused by active duty service. R. at 2027. The RO
    also found that treatment records show a bilateral foot condition, noting that the evidence does not
    show that a bilateral foot condition was incurred in or caused by active duty service. R. at 2028-
    29.
    Then, in November 2014, Ms. Harmon filed an application to reopen the claims for a
    stomach condition and a foot condition. R. at 1703. In an April 2015 rating decision, the RO
    reopened and denied the claim for service connection for a stomach condition, including GERD
    and acid reflux, and the RO denied the application to reopen the claim for a bilateral foot condition,
    to include pain, swelling, and numbness. R. at 1684-89. In June 2015, Ms. Harmon filed a Notice
    of Disagreement (NOD) in which she stated: “13 May 1980 active duty treatment record states …
    muscle aches 7 mile[] march feet [and] legs were painful and still is. . .. This is neuropathy.” R. at
    1659-60. She attached an online article titled “Fort McClellan: More Toxic Than Camp Lejeune?”
    R. at 1666-67.
    In October 2015, Ms. Harmon filed a claim for service connection for neuropathy of the
    bilateral lower extremities secondary to diabetes and another application to reopen the claim for
    diabetes. R. at 1628-32. In November 2015, the RO denied service connection for neuropathy of
    2 The Board found that, pursuant to 38 C.F.R. § 3.156(c) (2018), the May 2014 rating decision constituted a
    reconsideration of her claims for service connection for diabetes and for a bilateral foot disability, because the service
    treatment records and service personnel records existed but had not been associated with the claims file at the time of
    the RO’s prior decisions. R. at 11-12, 16. The Board also found that the May 2014 rating decision became final. R. at
    12-16 (discussing R. at 1555-57 (Dec. 2015 VA letter notifying her that the June 2015 NOD was not a timely appeal
    of the May 2014 rating decision)). Ms. Harmon does not present any argument to challenge these Board findings.
    4
    the left and right lower extremities, and the RO reopened and denied the claim for service
    connection for diabetes. R. at 1610-15, 1594-98.
    In March 2016, Ms. Harmon submitted a March 2011 Board decision that granted another
    veteran entitlement to service connection for diabetes based on exposure to herbicides at Fort
    McClellan. R. at 1512-19. She also submitted a January 2016 letter in which Dr. Liss opined that
    “it is most probable that . . . [Ms. Harmon’s] present problems, which requires significant treatment
    for neuropathy … complicated by diabetes[,] began during her time in service and are serviceconnected.”
    R. at 1509. In May 2018, VA noted that Ms. Harmon “stated the [right and left] leg
    muscles is [sic] different then [sic] the neuropathy on the appeal dated 06/25/2015.” R. at 237. In
    July 2018, she filed an NOD in which she noted that pes planus was shown in a May 1980 service
    treatment record. R. at 212-13. In July 2019, Ms. Harmon submitted a July 2019 statement by her
    friend Velma. R. at 67-70.
    In the September 2019 decision on appeal, the Board denied Ms. Harmon’s applications to
    reopen previously denied claims for service connection for diabetes, a stomach disability, to
    include GERD and acid reflux, and a bilateral foot disability, based on determinations that VA had
    not received new and material evidence sufficient to reopen each claim. R. at 10-17. The Board
    also denied entitlement to service connection for neuropathy of the bilateral lower extremities
    (BLE), based on findings that the evidence does not show a current diagnosis of BLE neuropathy;
    that even if there were a current diagnosis, the evidence does not show an in-service incurrence of
    a disease or injury; and, that service connection on a secondary basis is not warranted because the
    Board denied the application to reopen the claim for diabetes. R. at 17-21.
    II. ANALYSIS
    A. Jurisdiction
    Ms. Harmon argues on appeal that multiple conditions are secondary to diabetes, namely
    neuropathy, kidney failure, heart failure, and eye failure. See Informal Appellant’s Brief (Br.) at 5.
    Of these conditions, however, the Board addressed only neuropathy in its September 2019
    decision. Therefore, the Court does not have the jurisdictional authority to address any claims
    pertaining to kidney, heart, and eye failure. See 38 U.S.C. § 7252; Maggitt v. West, 202 F.3d 1370,
    1376 (Fed. Cir. 2000) (“A ‘decision’ of the Board, for purposes of the Veterans Court’s jurisdiction
    5
    under section 7252, is the decision with respect to the benefit sought by the veteran: those benefits
    are either granted…or they are denied.”).
    Ms. Harmon also presents argument on appeal about an ankle disability. See Br. at 3-4. The
    Board remanded the application to reopen the claim for service connection for a broken left ankle;
    thus, the Court does not have jurisdiction to address a left ankle issue. See Breeden, 17 Vet.App.
    at 478. Also, the Board noted that it would address the issue of service connection for a right ankle
    disability in a separate decision because Ms. Harmon had requested, but had not yet been afforded,
    a Board hearing on that issue. R. at 10. Thus, a right ankle disability issue was not the subject of
    the Board’s September 2019 decision, and the Court does not have jurisdiction to address it. See
    38 U.S.C. § 7252; Maggitt, 202 F.3d at 1376.
    On appeal, Ms. Harmon also presents arguments about why she believes the Board should
    have granted entitlement to service connection for diabetes, a stomach disability, and a bilateral
    foot disability. See Br. at 2-20. But the Court does not have jurisdiction to address any such
    arguments because the Board did not address the issues of service connection for a stomach
    disability, diabetes, and a bilateral foot disability, and because the issue of entitlement to service
    connection is distinct from the issue of whether new and material evidence has been received to
    reopen a previously denied claim for service connection. See 38 U.S.C. § 7252; Bernard v. Brown,
    4 Vet.App. 384, 394 (1993).
    B. General Arguments
    Ms. Harmon generally argues on appeal that VA improperly destroyed evidence that it
    considered redundant or duplicative of evidence previously of record, and she invites the Court’s
    attention to copies of service treatment and personnel records. See Br. at 4-5, 8, 12-14. The
    Secretary responds that she “points to no evidence that shows that VA destroyed or removed any
    documents in her file[.]” See Secretary’s Brief (Sec. Br.) at 16.
    Indeed, Ms. Harmon does not identify any evidence in the record that suggests that VA
    destroyed any records, and the Court sees no such evidence in the record. Thus, the Court will not
    address this argument. See Deloach v. Shinseki, 704 F.3d 1370, 1380 (Fed. Cir. 2013) (stating that
    the Court is prohibited from making factual findings in the first instance); Coker v. Nicholson,
    19 Vet.App. 439, 442 (2006) (stating that an appellant must “plead with some particularity the
    allegation of error so that the Court is able to review and assess the validity of the appellant’s
    6
    arguments”), rev’d on other grounds sub nom. Coker v. Peake, 310 F. App’x 371 (Fed. Cir. 2008)
    (per curiam order); Cromer v. Nicholson, 19 Vet.App. 215, 219 (2005) (holding that the Court will
    not address any argument “in the absence of the necessary factual predicate”). Further, to the extent
    Ms. Harmon generally seeks relief on an equitable basis, see Br. at 6-8, the Court does not have
    the authority to grant her any such equitable remedy because she has not identified any evidence
    of administrative error. See 38 U.S.C. § 503; 38 C.F.R. § 2.7; Burris v. Wilkie, 888 F.3d 1352,
    1359 (Fed. Cir. 2018).
    Ms. Harmon also appears to allege that the Secretary’s counsel is not permitted to practice
    law before this Court. See Br. at 6. This allegation is without merit.
    C. New and Material Evidence
    New and material evidence is required to reopen a previously finally denied claim.
    38 U.S.C. § 5108 (2018); 38 C.F.R. § 3.156(a) (2018). New and material evidence is defined as
    follows:
    New evidence means existing evidence not previously submitted to agency
    decisionmakers. Material evidence means existing evidence that, by itself or when
    considered with previous evidence of record, relates to an unestablished fact
    necessary to substantiate the claim. New and material evidence can be neither
    cumulative nor redundant of the evidence of record at the time of the last prior final
    denial of the claim sought to be reopened, and must raise a reasonable possibility
    of substantiating the claim.
    § 3.156(a). Evidence “raises a reasonable possibility of substantiating the claim” if it would trigger
    VA’s duty to assist the claimant in substantiating the claim under 38 U.S.C. § 5103A. See Shade
    v. Shinseki, 24 Vet.App. 110, 118 (2010).
    First, the Court is mindful that Ms. Harmon’s informal brief must be liberally interpreted
    because she proceeds pro se. See generally Coker, 19 Vet.App. at 442. Ms. Harmon essentially
    argues on appeal that the Board should have reopened her claim for service connection for a
    bilateral foot disability based on her report of having experienced continuing bilateral feet
    problems with pain since their onset during active duty. See Br. at 3-4. She invites the Court’s
    attention to a May 1980 service treatment record showing bilateral pes planus, Br. at 3, 12, but she
    does not identify any evidence in the record that reflects continuing feet problems since active duty
    or any period of ACDUTRA. Because Ms. Harmon proceeds pro se, the Court notes that in the
    7
    June 2015 NOD, she reported that her feet were painful in May 1980 and “still is”. See R. at 1660.
    The Secretary responds that though Ms. Harmon alleges she experienced problems with her feet
    in and since service, she offers no cogent argument as to whether the Board erred. See Sec. Br. at
    15.
    The Board noted that in the final May 2014 rating decision, the element of an in-service
    incurrence of a disease or injury was not established. R. at 17. The Board found that since the May
    2014 rating decision, Ms. Harmon submitted medical records and duplicate service treatment
    records, including the May 1980 record showing pes planus. Id. And the Board found that such
    records do not constitute new and material evidence sufficient to reopen the claim for a bilateral
    foot disability. Id.
    Though the Board considered the June 2015 NOD, the Board did not expressly address Ms.
    Harmon’s report in the NOD that her feet were painful in May 1980 and “still is,” to include
    whether this report may be sympathetically construed as reporting continuing feet symptoms since
    onset in active duty. See R. at 15-17; Wise v. Shinseki, 26 Vet.App. 517, 524 (2014) (holding that
    “the Board must analyze the credibility and probative value of the evidence, account for the
    evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any
    material evidence favorable to the claimant”); see also Comer v. Peake, 552 F.3d 1362, 1368-69
    (Fed. Cir. 2009) (requiring VA to liberally and sympathetically read veteran submissions).
    Therefore, the Board’s reasons or bases frustrate review, and the Court will remand the
    matter for the Board to address whether Ms. Harmon’s report of symptoms in the June 2015 NOD
    is new and material evidence sufficient to reopen the claim for a bilateral foot disability. See
    38 U.S.C. § 7104(d)(1); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990) (holding that the
    Board’s reasons or bases must be adequate to enable an appellant to understand the precise basis
    for the Board’s decision and to facilitate informed review in this Court); Tucker v. West,
    11 Vet.App. 369, 374 (1998) (remand is appropriate “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”).
    Second, Ms. Harmon essentially argues on appeal that the Board should have reopened her
    claim for service connection for diabetes based on her submission of a March 2011 Board decision
    in another veteran’s case that granted service connection for diabetes based on exposure to
    8
    herbicides at Fort McClellan. See Br. at 2, 17. The Secretary responds that the Board did not clearly
    err when it found that the March 2011 Board decision was new but not material. See Sec. Br. at 9-
  2. The Court agrees with the Secretary.
    The Board noted that the element of an in-service incurrence of a disease or injury was
    previously unestablished in the prior final May 2014 rating decision. R. at 12. The Board found
    that the March 2011 Board decision “was based on facts not present in the current case” and
    explained that a Board decision in another veteran’s case in not binding on the Board in this case.
    R. at 13; see 38 C.F.R. § 20.1303 (2018) (“Prior decisions in other appeals may be considered in
    a case to the extent that they reasonably relate to the case, but each case presented to the Board
    will be decided on the basis of the individual facts of the case in light of applicable procedure and
    substantive law.”). The Board determined that “the March 2011 Board decision has no evidentiary
    value as it pertains to this claim or the other claims herein. Therefore, while new, it is not material
    because it does not raise a reasonable possibility of substantiating the claim.” R. at 13 (first citing
    38 C.F.R. § 3.156(a); and then citing Shade, 24 Vet.App. 110).
    Here, the Board relied on applicable law, discussed why the March 2011 Board decision
    does not include facts that relate to Ms. Harmon’s case, and explained why the March 2011 Board
    decision does not include information that would raise a reasonable possibility of substantiating
    Ms. Harmon’s claim for service connection for diabetes. Ultimately, the Court is not definitely and
    firmly convinced that the Board made a mistake when it found that the March 2011 Board decision
    is not material evidence. Therefore, the Court will not reverse this Board finding, and the Court
    holds that Board did not clearly err when it denied the application to reopen the diabetes claim.
    See Padgett v. Nicholson, 19 Vet.App. 133, 147 (2005) (en banc) (holding that the Court should
    reverse the Board’s denial of benefits when the Court has a definite and firm conviction that a
    mistake has been made); Vazquez-Flores v. Shinseki, 24 Vet.App. 94, 104 (2010) (holding a Board
    finding of fact clearly erroneous under Padgett, 19 Vet.App. 133); Van Valkenburg v. Shinseki, 23
    Vet.App. 113, 121 (2009) (reversing a Board determination because the Court had a “definite and
    firm conviction that the Board’s finding that the evidence weighed against a finding” was “clearly
    erroneous”).
    Because Ms. Harmon has not demonstrated that the Board erred in denying the application
    to reopen the claim for diabetes, nor presented any other discernable argument of Board error, the
    9
    Court will affirm the Board’s determination that VA did not receive new and material evidence
    sufficient to reopen the diabetes claim. See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc)
    (holding that the appellant bears the burden of demonstrating error on appeal), aff’d per curiam,
    232 F.3d 908 (Fed. Cir. 2000).
    Third, Ms. Harmon essentially argues that the Board should have reopened her claim for
    service connection for a stomach disability based on her report that her stomach issues began in
    May 1980 and progressed through the present time. See Br. at 3, 13. She invites the Court’s
    attention to the May 1980 service treatment record showing stomach pains, and she generally
    points to the July 2019 lay statement by Velma. See Br. at 3, 13, 20. But she does not identify any
    evidence in the record that shows stomach issues continuing since service, including since active
    duty or any period of ACDUTRA. The Secretary responds that Ms. Harmon “does not provide any
    cogent argument about how the Board might have erred in finding that no new and material
    evidence had been found[.]” See Sec. Br. at 12. The Court agrees with the Secretary.
    Unlike the bilateral foot matter, the Board did not identify, and the Court does not see in
    the record, any lay or medical evidence of Ms. Harmon potentially reporting continuing stomach
    issues since service. Because the Board made no finding of fact about any evidence of stomach
    symptoms continuing since service, and because Ms. Harmon does not identify any evidence in
    the record that shows the same, the Court will not address this argument. See Deloach, 704 F.3d
    at 1380; Coker v. Nicholson, 19 Vet.App. at 442; Cromer, 19 Vet.App. at 219.
    Because Ms. Harmon has not demonstrated that the Board erred in denying the application
    to reopen the claim for a stomach disability, nor presented any other discernable argument of Board
    error, the Court will affirm the Board’s determination that VA did not receive new and material
    evidence sufficient to reopen the stomach disability claim. See Hilkert, 12 Vet.App. at 151.
    D. Service Connection
    Entitlement to service connection is warranted “for disability resulting from personal injury
    suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or
    disease contracted in line of duty, in the active military, naval, air, or space service.” 38 U.S.C. §§
    1110, 1131. Generally, to establish service connection, “the veteran must show: (1) the existence
    of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a
    causal relationship between the present disability and the disease or injury incurred or aggravated
    10
    during service.” See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The first
    requirement of a current disability is satisfied “when a claimant has a disability at the time a claim
    for VA disability compensation is filed or during the pendency of that claim.” See McClain v.
    Nicholson, 21 Vet.App. 319, 320-21 (2007).
    On appeal, Ms. Harmon argues that the Board should have granted service connection for
    BLE neuropathy based on her documented foot issues in May 1980 and based on her report of
    “bilateral feet problems with pain neuropathy in both legs and feet” that continued through her
    whole tenure in service to present day. See Br. at 3-4. She also invites the Court’s attention to the
    January 2016 medical opinion by Dr. Liss. See Br. at 4, 19. Though she does not identify any
    evidence in the record that shows continuing BLE symptoms since service, the Court is mindful
    that Ms. Harmon proceeds pro se. Thus, the Court notes that in the June 2015 NOD, Ms. Harmon
    noted a May 1980 service treatment record, reported that her legs were painful in service and “still
    is”, and argued that “[t]his is neuropathy.” See R. at 1660. The Secretary responds that she has not
    offered a cogent argument of prejudicial error. See Sec. Br. at 16.
    The Board first found that the preponderance of the evidence does not establish that Ms.
    Harmon has a current diagnosis of neuropathy in either lower extremity. R. at 19. Initially, the
    Court reminds the Board that “[a] physician’s failure to provide a diagnosis for the immediate cause
    of a veteran’s pain does not indicate that the pain cannot be a functional impairment that affects a
    veteran’s earning capacity,” and that a current disability may be established in the absence of a
    diagnosis when the evidence shows that “her pain reaches the level of a functional impairment of
    earning capacity.” Saunders v. Wilkie, 886 F.3d 1356, 1368-69 (Fed. Cir. 2018).
    The Board acknowledged that Ms. Harmon reported symptoms associated with neuropathy
    in her BLE, but the Board found that she is not competent to render a medical diagnosis of
    neuropathy. R. at 18-19. The Court notes that because the Board did not question the credibility of
    Ms. Harmon’s report of symptoms in the BLE, thus the Board implicitly found the report credible.
    See Miller v. Wilkie, 32 Vet.App. 249, 260 (2020). The Board also acknowledged the March 2013
    diagnoses of bilateral tarsal tunnel syndrome and left lower extremity common peroneal nerve
    entrapment, as well as the January 2016 letter from Dr. Liss suggesting that she presently suffers
    from neuropathy. R. at 19. But the Board emphasized that the doctors did not specify whether
    neuropathy affected either of her lower extremities. Id.
    11
    First, because the Board acknowledged the diagnoses of bilateral tarsal tunnel syndrome
    and left lower extremity common peroneal nerve entrapment but did not address whether these
    conditions are within the scope of the neuropathy claims, the Board should address this question
    on remand. See Tucker v. West, 11 Vet.App. at 374; see also Clemons v. Shinseki, 23 Vet.App. 1,
    5 (2009) (holding that the scope of a claim is based on the claimant’s reasonable expectations and
    includes any alternative diagnoses that contemplate the claimed symptoms).
    Second, because the Board found that the January 2016 letter from Dr. Liss was unclear as
    to whether the neuropathy affected the BLE, the Board should either remand the matter to the RO
    to seek clarification from Dr. Liss on this question, or explain why such clarification is not needed.
    See Savage v. Shinseki, 24 Vet.App. 259, 269 (2011) (holding that “pursuant to [38 U.S.C. §]
    5103A(a), when a private examination report reasonably appears to contain information necessary
    to properly decide a claim but it is ‘unclear’…and the information reasonably contained in the
    report otherwise cannot be obtained, VA has a duty to either (1) ask the private examiner to clarify
    the report, (2) request that the claimant to obtain the necessary information to clarify the report, or
    (3) explain why such clarification is not needed.”).
    Third, the Board also determined that “[e]ven if the Board were to accept that the medical
    evidence of record establishes current diagnoses of peripheral neuropathy of the right and left
    lower extremities, the Board notes there is insufficient evidence of an in-service incurrence.” R. at
  3. The Board found that “the Veteran has not claimed the onset of neuropathy of either lower
    extremity during her period of active duty service or any period of ACDUTRA service.” R. at 20.
    The Board, however, did not address Ms. Harmon’s lay report in the June 2015 NOD regarding
    her history of BLE symptoms. Therefore, the Board should address this report on remand. See
    Wise v. Shinseki, 26 Vet.App. at 524; see generally Quirin v. Shinseki, 22 Vet.App. 390, 395-96
    (2009) (after the Court determines that remand is necessary, the Court may address additional
    arguments in order to provide guidance to the lower tribunal).
    At this time, the Court need not address any other arguments pertaining to the remanded
    bilateral foot disability and BLE neuropathy matters. See Best v. Principi, 15 Vet.App. 18, 20
    (2001) (per curiam order). On remand, Ms. Harmon is free to submit additional evidence and
    argument in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam
    order), and the Board must consider any such evidence or argument submitted. See Kay v. Principi,
    12
    16 Vet.App. 529, 534 (2002). The Court reminds the Board that “[a] remand is meant to entail a
    critical examination of the justification for [the Board’s] decision,” Fletcher v. Derwinski,
    1 Vet.App. 394, 397 (1991), and must be performed in an expeditious manner in accordance with
    38 U.S.C. § 7112.
    III. CONCLUSION
    Upon consideration of the foregoing analysis, the record of proceedings before the Court,
    and the parties’ pleadings, the portion of the September 17, 2019, Board decision on appeal
    regarding diabetes and a stomach disability is AFFIRMED, the decision is otherwise VACATED,
    and the vacated matters on appeal are REMANDED for further proceedings and readjudication
    consistent with this decision.
    DATED: September 14, 2021
    Copies to:
    Rose M. Harmon
    VA General Counsel (027)

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