Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20-5529
MACK MIZELL, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before JAQUITH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
JAQUITH, Judge: U.S. Army veteran Mack Mizell appeals an April 9, 2020, Board of Veterans’ Appeals (Board) decision that denied him a compensable rating for headaches prior to September 29, 2014, and denied a rating in excess of 10% after September 29, 2014.1 Record (R.) at 5. The severity and frequency of a veteran’s headaches, including prostrating attacks, are central to ratings for this condition. The Board’s statement of reasons or bases for its denial of higher ratings is inadequate because it is based on an erroneous finding of fact, relies on inadequate medical examination reports, and fails to account for potentially favorable evidence. Remand is warranted for the Board to cure these errors and issue a new decision that facilitates review by this Court.
I. BACKGROUND
Mr. Mizell served in the Army from December 1952 to December 1954. R. at 3241. He initially applied for benefits for many conditions, including an eye condition, on December 9,
1 The Board also remanded his claim for entitlement to a total disability rating based on total individual unemployability. The Court has no jurisdiction over this matter. See Howard v. Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000); Breeden v. Principi, 17 Vet.App. 475, 478 (2004) (per curiam order).
2
- R. at 3117-3128. It was later clarified that his eye condition was actually headaches behind his eyes. R. at 2793, 2924.
In a 2009 Board hearing, the veteran testified to having headaches behind his eyes two to three times a week, and he “work[ed] right on” through them. R. at 2826. He also testified that he missed some days of work because of his headaches. R. at 2829. He also switched jobs within the trucking company he was previously employed at because of his headaches. R. at 2828.
He attended a VA examination in June 2010. There, the veteran stated
that he has pain behind eye (he points to the bilateral temporal region) area once per months causing him to stay in bed for several days (2-3 days) since 1950s AD period. He states that he stays in bed (prostrating) because it hurts to open eyes. He denies flashing lights, [nausea and vomiting], blurred vision, dizziness. He states that he took many sick leave during his work as a custodian at the lake city VA hospital because of . . . this pain. He denies taking any pain medication or seeing any physician for it.
R. at 2350. He underwent another VA examination in October 2011. The October 2011 examiner noted his statements that “he began to experience frontal headache since his active duty. The headache occurs 1-2 times per month accompanied by nausea, lasting 2 days. The headache is not prostrating and not related to his herpes zoster outbreaks.” R. at 2235.
In September 2014 he was granted service connection for headaches with a non-compensable rating, effective December 8, 2005. R. at 2075, 1975.
He underwent a VA examination in June 2015. The June 2015 examiner described the veteran’s history as:
Since the last C&P headache exam on 10/26/11 his headaches he says are about the same. They occur at least 2x/week and are in the frontal region. They are pressure in type and not associated with nausea, photophobia or phonophobia. There is no evidence that these headaches are incapacitating but he prefers to rest when he gets them.
R. at 1942. The examiner marked on the questionnaire that the veteran experiences pain on both sides of the head lasting for less than one day and doesn’t experience prostrating attacks. R. at 1942. The examiner marked that the veteran’s headache condition impacts his ability to work, and that he “miss[es] work because of headaches on occasion.” R. at 1943. The veteran filed a Notice of Disagreement (NOD) with his non-compensable rating in August 2015, stating
I have prostrating headaches 3-5 times per month where I have to go and lay down in a dark room. I believe the examiner sort of took it out of context when he stated that I said I just rest. Resting is getting away from everybody for quiet. Using the
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word “prostrating” was a term that I did not understand since I am not of the medical profession and I am 84 years old with an 8th grade education.
R. at 1878. VA granted him a 10% rating, effective September 29, 2014. R. at 158.
In September 2017, the veteran appealed, arguing that his symptoms warranted an initial 30% rating from December 2005 and a 50% rating from no later than October 2011. R. at 118. In a June 2018 decision, the Board denied an initial compensable rating for his headaches before September 2014 and denied a rating greater than 10% after that date. R. at 78-81. But the Court remanded the matter because of the Board’s “conflicting statements regarding Appellant’s lay statements, and if the Board find[s] them credible, whether these statements indicate that he has experienced prostrating attacks.” R. at 61.
In the decision now on appeal, the Board again denied the veteran a compensable rating for his headaches prior to September 29, 2014, because the most probative evidence—the June 2010 and October 2011 VA examinations—demonstrated that he didn’t experience prostration during his headaches. R. at 9. The Board found the examinations more probative because “they were provided after extensive review of all pertinent records, to include the Veteran’s reports and statements. The examiners discussed the Veteran’s symptoms and history with him, and based on his statements made clinical assessments of whether there were characteristic prostrating attacks.” R. at 10.
The Board noted that in the June 2010 examination, the veteran reported “pain behind the eye in the temporal region once per month, resulting in bedrest for 2 to 3 days,” R. at 9, but it ignored that prostration was specifically noted in the examination. See R. at 2350. The Board discussed the October 2011 examination, noting that
He reported frontal headache that occurs 1 to 2 times per month, lasting 2 days. While there was an objective finding of frontal headaches that last 1 to 2 days, there was no clinical finding that he had characteristic prostrating attacks of headache, nor very frequent prostrating and prolonged attacks of migraine pain. The examiner indicated that his headache condition does not impact his ability to work.
R. at 9.
The Board compared both of these examinations to the veteran’s statements in an August 2015 NOD wherein he alleged that he has “prostrating” headaches, and from a December 2009 Board hearing where he testified that he has “non-prostrating” headaches.” R. at 10, see R. at 1878 (NOD), R. at 2826 (Board transcript). Because his statements in the August 2015 and December 2009 hearing contradicted each other, and because his statements contradicted the more probative
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June 2010 and October 2011 examinations about prostration, the Board found his statements endorsing prostration occurring before September 2014 to be not credible. R. at 10-11.
The Board found the veteran’s statements as to frequency of his headaches in the time before September 2014 not credible for the same reason. It noted that in the August 2015 NOD, the veteran described headaches three to five times per month (R. at 1878), but one to two times per month in a September 2017 Form 9 (R. at 117-18), but also two to three times per week in the December 2009 Board hearing (R. at 2826). R. at 11. The Board found that because the veteran contradicted himself on those occasions, his statements were “internally inconsistent,” and thus not credible. R. at 11. So too did they contradict what the Board deemed the most probative evidence of record—the June 2010 and October 2011 examinations wherein he only described headaches occurring one to two times a month. R. at 11.
The Board denied a rating in excess of 10% after September 2014 because the most probative evidence of record—the June 2015 VA examination—established that the veteran’s headaches are “accompanied by pain that are not characteristically prostrating, nor of very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.” R. at 12.
The Board discussed the veteran’s September 2017 Form 9 wherein “the [v]eteran’s attorney argued that the Veteran experienced prolonged prostrating headaches twice a week sufficient to warrant a 50 percent evaluation under DC 8100.” R. at 11; see R. at 117. The Board also discussed a statement from the veteran in which he claimed that he experiences headaches once or twice a week and has to lie down and rest, doesn’t see the doctor, but takes Tylenol and sleeps it off. R. at 11-12; see R. at 30. The Board reasoned that the veteran’s statements in evaluating the severity of his condition weren’t credible because the June 2015 examination found they weren’t prostrating. R. at 13. His statements also weren’t credible because they weren’t supported by his treatment records, which only noted two occasions after September 2014 wherein he sought treatment, and he complained of non-prostrating headaches on those occasions. R. at 12-13.2 The Board reasoned that since his statements given in the course of seeking compensation didn’t match the ones he gave in the course of seeking treatment, his Form 9 and additional statement weren’t credible. R. at 13. It did not mention the part of the veteran’s August 2015 NOD
2 The Board cited March 2015 VA treatment records reporting “slight headaches” and July 2016 treatment records reporting “headaches, but no photophobia.” R. at 12. These documents do not appear in the Record.
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that stated that he didn’t know what the term “prostrating” meant, or that part of the NOD that challenged the June 2015 examiner’s description of lying down to cope with the headaches as “rest.” See R. at 1878.
II. ANALYSIS
A. The Parties’ Arguments
The veteran argues that the Board erred in finding his statements not credible. Specifically, the veteran argues that although the Board found his statements to be contradicted by the most probative medical evidence, its explanation fails to show such contradiction. Further, although the Board stated that the veteran’s statements were internally inconsistent, its explanation doesn’t show internal inconsistency. Appellant’s Brief (Br.) at 6.
The Secretary contends that the Board made plausible credibility determinations based on the internal inconsistency of the veteran’s statements and the contradictions between his lay statements and the evidence. Secretary’s Br. at 4. The veteran replies that the Secretary misses the point—it’s not that the Board didn’t give those reasons for its credibility determination, but that those reasons were not adequate. Appellant’s Reply Br. at 1.
B. The Legal Landscape
Diagnostic Code (DC) 8100 of 38 C.F.R. § 4.124a (2021) sets forth the disability rating percentages for migraines, a term which encompasses headaches. Holmes v. Wilkie, 33 Vet.App. 67, 71-72 (2020). Migraines are defined as “periodic attacks of vascular headache, usually temporal and unilateral in onset, . . . preceded by constriction of the cranial arteries, often with resultant prodromal sensory (especially ocular) symptoms.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1149 (33d ed. 2020); see Holmes, 33 Vet.App. at 71-72. DC 8100 provides as follows:
Rating
8100 Migraine:
With very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability
50
With characteristic prostrating attacks occurring on an average once a month over last several months
30
With characteristic prostrating attacks averaging one in 2 months over last several months
10
6
With less frequent attacks
0
DC 8100’s criteria are successive, “meaning that each level of the DC requires that the veteran also satisfy the lower levels.” Holmes, 33 Vet.App. at 70. Under DC 8100, “‘[p]rostrating’ means ‘lacking in vitality or will: powerless to rise: laid low.'” Johnson v. Wilkie, 30 Vet.App. 245, 252 (2018) (citing WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE UNABRIDGED 1822 (1966)). Further, “[b]ecause DC 8100 specifically governs migraine headaches, the phrase ‘characteristic prostrating attacks’ plainly describes migraine attacks that typically produce powerlessness or a lack of vitality.” Id. at 252. “[T]he modifier ‘completely,’ as used before ‘prostrating’ in the 50% criteria, mean[s] that the veteran must be rendered entirely powerless and . . . ‘productive of severe economic inadaptability’ means either producing or capable of producing severe economic inadaptability.” Holmes, 33 Vet.App. at 70; Johnson, 30 Vet.App. at 253.
The Board has an obligation in every case to provide a statement of reasons and bases that adequately informs the veteran of the precise basis for its decision and facilitates review in this Court. Hedgepeth v. Wilkie, 30 Vet.App. 318, 325 (2018). To comply with this requirement, it “must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.” Id.
The Board’s determination of the proper disability rating, as well as the Board’s assessment of credibility and weight of evidence, are findings of fact that the Court reviews under the “clearly erroneous” standard of review. See 38 U.S.C. § 7261(a)(4); Buckley v. West, 12 Vet.App. 76, 81 (1998); Wood v. Derwinski, 1 Vet.App. 190, 193 (1991). A finding of fact is clearly erroneous when the Court, after reviewing the entire evidence, “is left with the definite and firm conviction that a mistake has been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); see Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990).
C. The Board’s Denial of a Compensable Rating Prior to September 2014
The Board’s statement of reasons or bases is inadequate because it starts with a mistaken premise. The Board grounded its denial of a compensable rating on the June 2010 and October 2011 VA examinations, which it found to be the most probative evidence that the veteran did not experience prostrating headaches before September 2014. R. at 9-10. The Board explicitly said:
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“At no time during the VA examinations . . . was [the veteran] found to present characteristic prostrating headaches.” R. at 10. This finding of fact is clearly erroneous. The June 2010 examiner specifically noted prostration. In recounting the veteran’s statement that he had pain behind his eyes that caused him to stay in bed for several days each month because it hurt to open his eyes, the examiner expressly noted “(prostrating)” next to “stays in bed.” R. at 2350. Though the 2010 examiner characterized the veteran’s headache pain as “prostrating,” the Board omitted the “prostrating” notation from its discussion. The Board wrote around that key word, describing the veteran’s report of his condition in the June 2010 examination as pain behind his eyes “once per month, resulting in bedrest for 2 to 3 days.” R. at 9 (emphasis added). Then, remarkably, the Board characterized the examination as showing that the veteran did not present with “characteristic prostrating headaches.” R. at 10. By ignoring the 2010 examiner’s “prostrating” characterization entirely, the Board failed to assess whether that characterization was incongruous with the examiner’s opinion that the veteran’s headaches had no impact on his work or usual daily activities. And the Board failed to address whether the veteran’s bed rest for 2-3 days each month met the definition of prostration under DC 8100. See Johnson, 30 Vet.App. at 252; see R. at 2351. If the Board didn’t agree that 2 to 3 days of bedrest constituted prostration, it didn’t explain why.
Similarly, neither the Board nor the 2010 examiner made any attempt to reconcile the examiner’s description of the veteran’s report that he had taken a lot of sick leave from his job as a custodian at the VA hospital because of his headache disability with the examiner’s conclusion that the veteran’s headaches had no effect on his occupation or activities.3 See R. at 2350, 2351. And the Board had additional evidence on the effects of the veteran’s headaches but did not address it. For example, the veteran had testified that when he first started having the headaches, he was in a truck company at Fort Gordon and they took him out of that company and put him in a “casual
3 In addition, the 2010 examiner offered no basis for his diagnosis that the veteran’s condition was “tension headaches,” R. at 2351, and the Board did not address that issue either. The Board also failed to note that the examiner’s opinion—”The Veteran’s current tension headaches is not caused by his 1954 pain in behind eyes during his service” [sic]—addressed causation rather than nexus. And the Board did not note that the examiner’s rationale relied on the absence of records, referencing the veteran’s service treatment record for the pain behind his eyes in 1954 and asserting: “There is no other record between 1954 and [the] present time to relate back that this headache is the same as the ‘pain behind eye’ in 1954.” R. at 2351-52. Of course, the Board could not draw a negative inference against the veteran from that absence of documentation without a proper foundation. See Fountain v. McDonald, 27 Vet.App. 258, 272 (2015); Horn v. Shinseki, 25 Vet.App. 231, 239 (2012). It is not surprising that the Board declined to endorse the 2010 examiner’s statements on causation and nexus in the decision on appeal, given its 2014 grant of “entitlement to service connection for headaches as secondary to the [v]eteran’s service-connected post-herpetic neuralgia,” R. at 77, which was associated with his in-service outbreak of herpes zoster, or shingles. R. at 135, 1901, 2033, 2075.
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outfit”4 for 4 months. R. at 2828. He also testified that even though he had “just toughed [the headaches] out” and “did work right on,” he had missed some work days because of the pain behind his eyes. R. at 2829. And the June 2015 examiner who opined that the veteran’s headaches were not incapacitating also noted that the veteran rested to get through them and sometimes missed work because of them. R. at 1943.
The Board’s reliance on “objective medical evidence” in the June 2010 examination that the veteran was “neurologically ‘normal,'” R. at 11, also rests on an unstated and unsure foundation because the examiner rendered no such overarching opinion (based on her physical examination and interview of the veteran, with no diagnostic testing, R. at 2350-51) and the Board did not explain any connection between its interpretation and whether the veteran’s headaches were prostrating. For the Board to rely on a medical examination in making its determination, the examination must be adequate to support judicial review, and the examiner’s nexus opinion needs to clearly address the relevant facts and medical science and support its conclusion with reliable analysis. Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007). That standard was not met here.
The Board’s error in determining that the June 2010 examination did not note prostration undermined its additional analysis. The Board’s finding that the June 2010 and October 2011 VA examinations were the most probative evidence on the issue of prostration was based on their consistency, but they were in conflict on the prostration point5 The June 2010 examination report noted the veteran’s headaches as prostrating. R. at 2350. The October 2011 examination report describes the headaches as not prostrating. R. at 2234-35. This contradiction collapses the Board’s conclusion, which was based on the supposed consistency of the two examinations.
The Board also used its mistaken conclusion that the June 2010 and October 2011 examinations were congruent to find the veteran’s accounts of the severity and frequency of his headaches not credible. R. at 10-11. The Board declared that the veteran’s August 2015 NOD and 2009 Board testimony were “consistently in contradiction with the most probative objective medical evidence (i[.]e. see June 2010 VA examination, neurologically ‘normal’; see October 2011
4 A “casual detachment” is a “[m]ilitary unit consisting of officers or soldiers separated from their own units or awaiting assignment.” U.S. DEP’T OF ARMY, REG. 310-25, DICTIONARY OF U.S. ARMY TERMS 37 (15 Oct. 1983).
5 Though the two examinations were conducted by the same doctor, her diagnoses of the veteran’s condition were different. The June 2010 examination report reflects a diagnosis of “tension headaches.” R. at 2351. The October 2011 examination does not acknowledge the June 2010 diagnosis and chooses a different one: “Nonspecific chronic frontal headache.” R. at 2233. The evolution of the diagnosis is not explained or even mentioned.
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VA examination, finding that the Veteran does not have characteristic prostrating attacks of headache, nor very frequent prostrating and prolonged attacks of migraine pain).” Id. That declaration is deflated by the crucial contradiction regarding prostration in the 2010 and 2011 examination reports. On the question of prostration, the 2010 examination is consistent with the veteran’s statement in his 2015 NOD that he has prostrating headaches each month, which necessitate lying down and closing his eyes to alleviate the pain. See R. at 2350, 1878.
The Board also failed to consider logical reasons for variations in the statements, such as variations in the severity and frequency of the headaches the veteran was experiencing during the different time periods in which he was asked about them, and/or a disconnect between the veteran and the examiner based on the differences in their frames of reference. Two specific illustrations emphasize this problem. First, the Board quoted the veteran as testifying in the Board hearing that he had “non-prostrating” headaches. R. at 10. The hearing transcript shows no such testimony. However, in the veteran’s September 2017 appeal form, his lawyer stated: “During a December 9, 2009, Board hearing, the veteran reported suffering 2-3 non-prostrating headaches per week.” R. at 117. The veteran actually testified about the nature, frequency, and effects of his headaches; he did not characterize them as either prostrating or non-prostrating. Specifically, he testified that his headaches “happened real regular” for a long, long time and he still had a “terrible pain” behind his eyes. R. at 2826. He estimated the frequency of these attacks as “[t]wo or three times a week.” Id. Regarding whether the headaches were incapacitating, he spoke of different outcomes at different times. The veteran testified that the doctors he told about his headaches never diagnosed the problem or gave him any medication, so he “just toughed [them] out” and “did work right on.” R. at 2826-27. However, his headaches caused him to be separated from his truck company at Fort Gordon for 4 months, and he missed some work days because of the pain. R. at 2828-29.
The second illustration involves comparing the June 2015 examination with the veteran’s August 2015 response. The June 2015 VA examiner reported that the veteran said his headaches were about the same as in 2011, occurring at least two times per week with pressure in the frontal region but not nausea. R. at 1942. The 2015 examiner observed that “[t]here is no evidence that these headaches are incapacitating but he prefers to rest when he gets them.” Id. And the examiner noted that the veteran sometimes misses work because of his headaches. R. at 1943. In August 2015, the veteran responded in his NOD:
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I have prostrating headaches 3-5 times per month where I have to go and lay down in a dark room. I believe the examiner sort of took it out of context when he stated that I said I just rest. Resting is getting away from everybody for quiet. Using the word “prostrating” was a term that I did not understand since I am not of the medical profession and I am 84 years old with an 8th grade education.
R. at 1878. The numbers appear to be estimates, but the math (describing the frequency of headaches and their outcomes) is also reconcilable.
The Court recently emphasized the crucial point: “although the Board may find a veteran not credible based on his or her inconsistent lay statements, it must account for the potentially favorable material evidence of record when doing so,’ including any evidence that tends to explain away the putative inconsistencies.” Arline v. McDonough, _ Vet.App. _ , No. 18-0765, 2021 WL 2701448, at *13 (July 1, 2021) (quoting Southall-Norman v. McDonald, 28 Vet.App. 346, 356-57 (2016)).
It is the province of the Board, not this Court, to weigh evidence and determine its credibility. Owens v. Brown, 7 Vet.App. 429, 433 (1995). But that authority does not supersede its obligation to provide reasons or bases for its decision that make sense. See Miller v. Wilkie, 32 Vet.App. 249, 261-62 (2020) (noting that the Board’s statement of reasons or bases must enable the claimant to understand the precise basis for its determinations and facilitate judicial review). The Board denied the veteran a higher rating because the probative medical evidence showed that he didn’t meet the prostration criteria. But one of the two pieces of evidence deemed most probative actually did show that he met the criteria. At the very least, the Board didn’t explain why needing to stay in bed for 2-3 days due to headache pain doesn’t amount to prostration. The Board found the veteran’s other statements regarding symptomatology incredible because they were incongruent with two pieces of evidence that are themselves facially contradictory. The Board also failed to account for evidence that tends to explain away the putative inconsistencies, leaving the Court convinced that the Board’s statement of reasons or bases was inadequate. Therefore, remand is necessary to decide the veteran’s entitlement to a compensable rating for his headaches before September 29, 2014.
D. The Board’s Denial of a Rating in Excess of 10% After September 2014
The Board’s denial of an increased rating relied on the June 2015 examination as the most probative evidence showing that the veteran has headaches that are not prostrating. R. at 12. The June 2015 examiner did mark “no” as the answer to the question, “Does the veteran have
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characteristic prostrating attacks of migraine/non-migraine headache pain?”, R. at 1942, but expressed no basis or rationale for his answer and left unclear his definition of “characteristic prostrating attacks.” That term is not defined under DC 8100, and, at the time of the June 2015 examination, the Court’s definition of “characteristic prostrating attacks” in Johnson—as “attacks that typically produce powerlessness or a lack of vitality”—was 3 years in the future. See Johnson, 30 Vet.App. at 251; 38 C.F.R. § 4.124a, DC 8100. The June 2015 examiner’s description of the history of the veteran’s headaches asserted: “There is no evidence that these headaches are incapacitating but he prefers to rest when he gets them.” R. at 1942.
The veteran challenged the June 2015 examiner’s characterization of his symptoms. In his August 2015 NOD, the veteran stated that he had prostrating headaches “where [he had] to go and lay down in a dark room,” and that the examiner took it out of context when he stated it as just a preference to rest. R. at 1878. The veteran explained that he did not use the term “prostrating” because it was a term he did not understand “since [he was] not of the medical profession and [was] 84 years old with an 8th grade education.” Id. The Board did not address the veteran’s direct challenge to the characterization of his symptoms. And it failed to address the veteran’s explanation in his NOD that he didn’t use the word “prostrating” because he didn’t understand it.
The Board also failed to address the inconsistency between the June 2015 examiner’s assertion that there was no evidence that the veteran’s headaches were incapacitating with the notation by the same examiner that the veteran experienced headaches, “pressure in type,” at least twice a week, and that the veteran’s headache condition impacted his ability to work and sometimes caused him to miss work. R. at 1942-43. And the Board’s grudging conclusion that “the RO’s granting a 10 percent rating since September 29, 2014 was arguably warranted[,]” R. at 13, failed to acknowledge that VA had assigned the 10% evaluation for the veteran’s headaches disability based on its finding of “[c]haracteristic prostrating attacks averaging one in 2 months over last several months” and its understanding of a “‘prostrating attack’ as a headache so severe as to lend the person unable to function with regard to normal daily activities and can lead to extreme physical or mental exhaustion.”6 R. at 158. These failures to account for potentially favorable material evidence render the Board’s statement of reasons or bases inadequate, frustrate judicial
6 The RO decision left the question as one of the frequency of the veteran’s characteristic prostrating attacks, noting that a 30% rating depended on evidence of such attacks “occurring on an average once a month over last several months.” R. at 158. The veteran submitted an affidavit saying that he gets headaches one to two times a week and has to lay down for the rest of the day, turn off all the lights in his room, and try to sleep the headaches off. R. at 30.
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review, and necessitate remand. See Arline, 2021 WL 2701448, at *13-14; Harper v. Wilkie, 30 Vet.App. 356, 363 (2018) (remanding because of the Board’s inadequate attention to potentially favorable evidence); Tucker v. West, 11 Vet.App. 369, 374 (1998) (“[W]here the Board has . . . failed to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate, a remand is the appropriate remedy.”)
The veteran’s remaining arguments need not be addressed, as they would offer no greater remedy than remand. See Mahl v. Principi, 15 Vet.App. 37, 38 (2001) (per curiam order) (“[I]f the proper remedy is a remand, there is no need to analyze and discuss all the other claimed errors that would result in a remedy no broader than a remand.”). And the veteran may submit any additional argument and evidence. See Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). Any such argument or evidence must be expeditiously considered by the Board. See Kay v. Principi, 16 Vet.App. 529, 534 (2002).
III. CONCLUSION
For the foregoing reasons, the Board’s April 9, 2020, decision is VACATED and REMANDED for consideration in accordance with this decision.
DATED: August 31, 2021
Copies to:
Kathy A. Lieberman, Esq.
VA General Counsel (027)
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