Veteranclaims’s Blog

October 26, 2021

Single Judge Application; the Board did not discuss the veteran’s contention that the RO’s request improperly described the contents of the record, constrained the August 2012 VA expert’s view of the file, and thereby essentially tainted the medical opinion; The Board is obligated to ensure that it provides appellants with fair process in the adjudication of their claims. See Smith v. Wilkie, 32 Vet.App. 332, 337 (2020) (citing Thurber v. Brown, 5 Vet.App. 119 (1993); Bernard v. Brown, 4 Vet.App. 384, 392-94 (1993)); In Smith, this Court held that the principle of fair process applies throughout the process of evidentiary development and is implicated when “the Board fails to procure a medical opinion in ‘an impartial, unbiased, and neutral manner’ when the opinion request contains a Board member’s own negative linkage opinion or otherwise suggests that an examiner should reach a predetermined conclusion.” Id. at 337-38 (citing Austin v. Brown, 6 Vet.App. 547, 551-52 (1994));

Filed under: Uncategorized — Tags: — veteranclaims @ 9:32 pm

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 20-4651
ELVIE A. ARNOLD, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before BARTLEY, Chief Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
BARTLEY, Chief Judge: Veteran Elvie A. Arnold appeals through counsel an April 15,
2020, Board of Veterans’ Appeals (Board) decision finding no clear and unmistakable error (CUE)
in an October 2012 rating decision denying service connection for neuropathy of the bilateral lower
extremities, claimed as residuals of in-service cold injuries (frostbite). Record (R.) at 5-14. For the
reasons that follow, the Court will set aside the April 2020 Board decision and remand the matter
for further development, if necessary, and readjudication consistent with this decision.
I. FACTS
Mr. Arnold served honorably on active duty in the U.S. Army from August 1970 to April 1972. R. at 4633. In September 1971, the veteran had a callous removed from his left foot. R. at

Two months later, he sought treatment after an engine fell on his right hand; amputation of
the distal half of the right middle finger was required. R. at 3175, 4635. During a September 7,
1972, VA examination post-service, the examiner recounted the traumatic injury to Mr. Arnold’s
finger and stated that following the amputation “one night while on guard duty in January 1972,
he thinks there was some frost bite to the tip of the finger.” R. at 3145. VA granted service
connection for the veteran’s right hand injury effective April 1972. R. at 3070.
2
In January 1974, Mr. Arnold filed a claim for service connection for a foot condition, to
include athlete’s foot, warts, and swelling. R. at 4526. In May 1974, a VA examiner noted painful
callous formation on the plantar surface of the veteran’s right foot, as well as some callous
formation over the right great toe, and a “marked” degree of athlete’s foot. R. at 4512.
In July 1974, a VA examiner diagnosed chronic epidermaphytosis in both feet, significant
symptomatic callosity in the left foot, and nonsignificant nonsymptomatic callosity in the left foot.
R. at 4516. In August 1974, VA granted service connection for left foot callosity and assigned a
10% evaluation. R. at 4505. In April 1975, Mr. Arnold filed a Notice of Disagreement (NOD) as
to the assigned evaluation. R. at 4496.
During a June 1975 VA examination, Mr. Arnold stated that his feet were frostbitten in
Germany in 1970. R. at 4486. The examiner diagnosed impaired circulation in the lower
extremities, among other things. R. at 4489. That same month, a VA regional office (RO) issued a
Statement of the Case (SOC) continuing the evaluation. R. at 4477-79. Mr. Arnold timely perfected
his appeal to the Board. R. at 4473. In December 1975, the Board issued a decision denying service
connection for callosities of the right foot and denying an evaluation higher than 10% for left foot
callosities. R. at 4436.
In September 1977, Mr. Arnold requested that VA reopen his claims for service-connected
foot conditions. R. at 4390. During an October 1977 VA examination, he was diagnosed with
plantar callosity in both feet, as well as bilateral corns on the third toes, and moderate b ilateral
tinea pedia. R. at 4364. In December 1977, VA issued a decision continuing the veteran’s 10% left
foot evaluation and continuing the denial of service connection for a right foot condition. In
November 1986, Mr. Arnold’s private treating physician, Dr. Clark, advised that in February 1986
the veteran underwent surgery to address the painful callouses on his feet. R. at 4258. Dr. Clark
noted that Mr. Arnold “had similar problems on both feet and the severity of the deformities was
about equal bilaterally,” and opined that “[j]udging by the deformities that were present at the time
of our initial examination, Mr. Arnold had a symmetrical problem and if he is entitled to disability,
it should be bilateral.” Id.
In October 2002, Mr. Arnold requested that VA reopen his claim for a right foot condition,
to include as due to frostbite. R. at 4241. In January 2003, a VA examiner noted the veteran’s report
of pain and burning in his feet and observed that Mr. Arnold’s feet were within normal limits for
color, temperature, texture, and hair growth and there were no visible callouses. R. at 4222. The
3
RO denied service connection for residuals of a cold injury to the feet in February 2003, citing the
lack of in-service treatment for or complaints of residuals from exposure to extreme cold, and the
lack of a diagnosis of residuals of cold injury to the feet. R. at 4216-17. Mr. Arnold did not appeal
that decision and it became final.
In November 2005, Mr. Arnold submitted two statements to VA asserting entitlement to
service connection for residuals of a cold injury. R. at 4182, 4183. During a December 2005 VA
examination, he complained of pain in the left forefoot region over the plantar surface of the foot,
primarily when walking for a significant period. R. at 4178. Mr. Arnold reported that he sustained
a frostbite injury to his foot during service that had been intermittently painful, becoming more
painful over the previous 18 months. Id. The examiner diagnosed left foot metatarsalgia. R. at

In an April 2006 decision, the RO continued the previous denial of service connection for
residuals of a cold injury to the feet and continued the veteran’s 10% evaluation for a left foot
condition. R. at 3981-94.
In May 2008, Mr. Arnold requested that VA reopen his claims for service connection; in
particular, he noted that a VA physician had diagnosed neuropathy in his legs. R. at 3825. The
veteran indicated his belief that this was due to frostbite during service. Id. During a June 2008
VA examination, the examiner noted the veteran’s history of frostbite of the left foot and observed
that the veteran did not have skin changes or skin loss of the left foot. R. at 3803-04. The examiner
concluded that Mr. Arnold “does have neuropathy in the [left] foot and it is impossible to separate
the cause of that from his other symptoms.” R. at 3803. In October 2008, the RO issued a decision
denying service connection for neuropathy of the bilateral lower extremities associated with
residuals of a cold injury to the feet. R. at 3771. The RO concluded that “the evidence [did] not
show that residuals, cold injury to feet, [were] related to service;” as a result, neuropathy of the
bilateral lower extremities on a secondary basis could not be established. R. at 3776.
In December 2008, Mr. Arnold submitted a letter from his private treating physician, Dr.
Collins. R. at 3768. Dr. Collins indicated his belief that the veteran sustained frostbite while
stationed in Germany and stated that the veteran “has had significant seq uellae as it relates to
frostbite. Frostbite is indeed a cause of neuropathy and it is [a] progressive issue that is worsening.”
R. at 3768. In April 2009, the RO issued a decision continuing the previous denial of service
connection for neuropathy as residuals of a cold injury to the feet. R. at 3752-54, 3756-59. The
RO noted that Mr. Arnold was previously denied service connection for residuals of cold injury to
4
the feet, and concluded, “Because [the veteran is] not service connected for cold injury residuals
to the feet, and there is no basis to do so, secondary service connection cannot be established for
neuropathy, even with an opinion relating the two conditions.” R. at 3759.
In August 2009, Mr. Arnold submitted a letter from a private treating physician, Dr. Perry,
which indicated that the veteran had recently undergone right great toe amputation after developing
gangrene. R. at 3747-48. The following month, VA issued a letter notifying the veteran that the
February 2003 denial of service connection due to the lack of diagnosis of cold injury had become
final. R. at 3731. In October 2009, VA issued a deferred rating decision finding that there was
“[s]till no evidence of [treatment for a cold injury] during active service” and that no examination
was needed. Id. In a November 2009 decision, the RO denied service connection for cold injury
residuals to the feet, finding that the evidence submitted was not new and material. R. at 3718.
In June 2010, Dr. Collins noted that Mr. Arnold was scheduled for removal of the third,
fourth, and fifth right toes and the second left toe secondary to gangrene. R. at 3681. Dr. Collins
stated that the veteran “had frostbite initially while in the military. He has been plagued with
problems ever since. He has peripheral neuropathy which has now fed into his gangrene. His
peripheral neuropathy is not related to diabetes. It is related to his pre -existing problem with the
frostbite.” R. at 3681. The following month, Dr. Nguyen, a private treating physician, noted that
Mr. Arnold “underwent surgery for progressive claw toes with necrosis on the end of the toes
secondary to peripheral vascular disease. I do believe this is service connected, stemming from his
frostbite injuries in the service. The peripheral vascular disease has progressed and worsened.” R.
at 3677. In August 2010, Dr. Evans, another private treating physician, noted the veteran’s
diagnoses of severe neuropathy and peripheral vascular disease, which caused him to have
amputation of the left second toe and all the toes of his right foot. R. at 3679. Dr. Evans reported
that Mr. Arnold informed him that he suffered from frostbite during service, and opined “[f]rostbite
is known to cause chronic neuropathy and peripheral vascular changes. I believe it is more likely
than not that the frostbite Mr. Arnold suffered in his left foot caused the debilitating neuropathy
and caused him to require amputation of his left second toe.” Id.
In April 2012, Mr. Arnold sought an increased evaluation for bilateral “peripheral
neuropathy . . . of lower extremities [secondary] to frostbite.” R. at 3625. In May 2012, a VA
examiner diagnosed metatarsalgia and cold injury to both feet. R. at 3134-35. The examiner noted
that the veteran had sustained a cold injury to both feet while serving in Germany and attributed
5
the veteran’s neuropathy, metatarsalgia, claw toes, and toe amputations to that injury. R. at 3135.
The VA examiner distinguished his diagnoses from Dr. Nguyen’s conclusion that Mr. Arnold’s
loss of toes was secondary to progressive vascular disease. R. at 3141. The VA examiner opined
“I respectfully disagree. This man has excellent pedal pulses that are easily palpable and have an
excellent doppler signal. He has good tissue perfusion. In my opinion, this man’s loss of tissue [is]
due to the neuropathy as a result of the cold injury sustained while on active duty.” R. at 3141.
In May 2012, the RO issued a letter regarding its development of Mr. Arnold’s serviceconnection
claim for neuropathy of the bilateral lower extremities. R. at 3597. The RO noted that
the claim was previously denied on April 24, 2009, and that that decision had become final. Id.
The RO explained that the claim was previously denied “because there is no evidence this
condition began in service nor is it secondary to another service-connected condition. Therefore,
the evidence you submit must be new and relate to this fact.” Id.
In August 2012, the RO requested that the May 2012 VA examiner review the claims file
and reconcile the differing medical opinions. The request indicated that the “VA examination
conducted on January 8, 2003, indicated [that the veteran] had normal findings to his lower
extremities and there was no evidence of cold injury residuals. There is no evidence in service
treatment records for treatment for cold injuries while on active service.” R. 3581, 3583. The
request noted that there were several recent medical statements, including the May 2012 C&P
examination and private medical evidence, that indicated that the veteran’s medical history
includes cold injury residuals, and further indicated that these records were based on Mr. Arnold’s
verbal history, “not the evidence of record.” Id.
Later that same month, the VA examiner completed his review, observing that the veteran’s
medical chart reflected his statement that he suffered frostbite to his feet in Germany in the early
1970’s; the examiner also noted that “a thorough review of [the] chart does not reveal that he ever
complained of or was treated for frostbite while he was on active duty,” although STRs revealed
treatment for callous formation and tinea pedis. R. at 3586. The examiner concluded: “no observer
or examiner has recorded objective evidence to suggest this was caused by cold injury to [the
veteran’s] feet.” Id.
In October 2012, the RO confirmed and continued the previous denial of service
connection. R. at 3349-50, 3355-58. The RO noted that the veteran’s claim was denied in October
2008 because there was no evidence of the condition in service nor was there a reason to grant on
6
a secondary basis. R. at 3354. The RO cited the August 2012 VA examiner’s indication that there
were “no objective findings” of cold injury during or after service. Id. Mr. Arnold did not appeal
this decision, and it became final.
In July 2016, Mr. Arnold filed a CUE motion. R. at 3090-91. He asserted that the RO’s
August 2012 request for opinion had specified an erroneous premise for the expert opinion, that
no evidence of record showed cold exposure during service. R. at 3090. He argued that the August
2012 VA examiner relied on the RO’s characterization of the facts in providing an opinion and that
subsequently the October 2012 RO decision relied on the erroneous August 2012 opinion. The
veteran indicated that the record evidence documented cold exposure because during the
September 1972 examination immediately post-service he had complained of frostbite to his
finger. R. at 3091.
In October 2017, the RO issued a decision finding no CUE in the October 2012 RO
decision. R. at 3057-67, 3070-72, 3074-75. The RO disputed the veteran’s contentions regarding
cold injury, finding that there were no frostbite allegations documented during service. R. at 3075.
The RO concluded that a nexus to service was not otherwise established. Id. In September 2018,
Mr. Arnold filed an NOD. R. at 2926, 2927-28.
In February 2019, Mr. Arnold submitted a Rapid Appeals Modernization Program (RAMP)
election form, opting into the RAMP Higher Level Review process. R. at 2901. In April 2019, a
VA Decision Review Operation Center (DROC) issued a decision finding that no revision was
warranted in the prior decision that denied compensation for neuropathy of the bilateral lower
extremities. R. at 147-49. Specifically, the DROC decision found that “the prior evidence of record
did not show cold injury or neuropathy in service, nor does it show neuropathy manifested to a
compensable degree within one year of separation from service. The prior VA examination[s],
dated May and August 2012 also reported no evidence of a cold injury.” R. at 148. The DROC
concluded that service connection for neuropathy of the bilateral lower extremities could not be
granted on a direct or secondary basis. Id.
In May 2019, Mr. Arnold requested direct review of his CUE motion by a Board member
and argued for reversal of the April 2019 DROC denial. R. at 82, 78-80. He asserted that there was
CUE in the October 2012 rating decision because the RO’s summary of the facts in its request for
a reconciliation opinion had forced the expert to conclude that there were no records regarding Mr.
Arnold having had frostbite in service, and consequently, the expert had concluded that cold injury
7
or frostbite was not a possible service-incurred injury. The veteran indicated that his own lay
statement at the September 1972 VA examination directly post-service had indicated that he had
suffered cold exposure while in service. He claimed that this showed that the RO’s recitation of
facts in its request for the reconciliation opinion, and the basis for the reconciliation opinion, was
erroneous. R. at 78-79.
In the April 2020 decision on appeal, the Board found that the veteran’s contention that the
RO provided inaccurate information to the 2012 VA examiner was without merit because there
was no evidence in the veteran’s service treatment records that he complained of or was treated for
a cold weather injury. R. at 13. The Board concluded that “[t]he facts of record were before the
October 2012 adjudicator, who had undertaken appropriate development to clarify the record and
obtain an informed and responsive relevant opinion.” R. at 14 Consequently, the Board found no
CUE in the October 2012 decision. Id. This appeal followed.
II. JURISDICTION AND STANDARD OF REVIEW
Mr. Arnold’s appeal is timely and the Court has jurisdiction to review the April 2020 Board
decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate.
See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
When a prior final RO decision contains CUE, that decision may be reversed or revised.
38 U.S.C. § 5109A; see DiCarlo v. Nicholson, 20 Vet.App. 52, 54-58 (2006); 38 C.F.R. § 3.105
(2021). CUE is established when the following conditions have been met: (1) Either the correct
facts as they were known at the time were not before the adjudicator, the adjudicator mad e an
erroneous factual finding, or the statutory or regulatory provisions extant at the time were
incorrectly applied; (2) the alleged error is “undebatable,” not merely a “disagreement as to how
the facts were weighed or evaluated”; and (3) the error “manifestly changed the outcome” of the
prior decision. Russell v. Principi, 3 Vet.App. 310, 313-14, 319 (1992) (en banc); see Damrel v.
Brown, 6 Vet.App. 242, 245 (1994); see also Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir.
1999). The Court’s review of a Board decision finding no CUE in a prior, final RO decision is
limited to determining whether the Board’s finding was “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law,” 38 U.S.C. § 7261(a)(3)(A), and whether it
was supported by an adequate statement of reasons or bases, 38 U.S.C. § 7104(d)(1); see Cacciola
v. Gibson, 27 Vet.App. 45, 59 (2014); Eddy v. Brown, 9 Vet.App. 52, 57 (1996).
8
This Court has previously remanded Board decisions that provide inadequate reasons or
bases for the finding that a prior VA decision did not contain CUE. See, e.g., Lucksted v. Wilkie,
No. 18-6289, 2020 WL 1520239, at *4-5 (Vet. App. March 31, 2020) (finding that remand was
required where the Board provided inadequate reasons or bases in a CUE context in considering
separate rating decisions as a unified whole when those decisions relied on different factual bases);
Prince v. McDonald, No. 15-4584, 2016 WL 3055626, at *5-8 (Vet. App. May 31, 2016) (holding
that remand was required where the Board provided inadequate reasons or bases in a CUE context
in failing to analyze or mention that the RO previously misapplied the law in assessing a prior
medical opinion); Wise v. McDonald, No. 13-3576, 2015 WL 4168063, at *5-8 (Vet. App. July 9,
2015) (stating that remand was required where the Board provided inadequate reasons or bases in
a CUE context in misstating the issues on appeal, failing to appropriately apply applicable
regulations, and applying an erroneous burden of proof).
III. ANALYSIS
Mr. Arnold argues that the Board erred in finding no CUE in the October 2012 rating
decision or failed to provide adequate reasons or bases for its decision. Appellant’s Brief (Br.) at
10-13. The Secretary contends that the Board conducted an appropriate CUE analysis that is not
arbitrary, capricious, an abuse of discretion, or not in accord with law, and that the Board’s decision
is otherwise supported by adequate reasons or bases. Secretary’s Br. at 15-23.
In his July 2016 CUE motion, Mr. Arnold challenged the propriety of RO’s August 2012
request for a reconciliation opinion. See R. at 3090-91. He asserted that in the August 2012 request,
the RO was seeking to change the examiner’s May 2012 conclusion that the veteran’s neuropathy
was connected to an in-service cold injury and that the RO recited an erroneous and misleading
version of the facts and law that the August 2016 examiner then relied on. See R. at 78-79. Before
this Court, Mr. Arnold argues the same, that the Board wrongly relied on the August 2012
reconciliation opinion that had adopted the RO’s own inaccurate view of the record from the
August 2012 request and that the Board also failed to provide adequate reasons or bases for its
reliance on this inaccurate and flawed opinion to decide the CUE motion. Appellant’s Reply Br. at
7.
Mr. Arnold notes that in the August 2012 reconciliation opinion, the VA examiner stated
that “no observer or examiner has recorded objective evidence to suggest this was caused by cold
9
injury to [the veteran’s] feet.” R. at 3586. Essentially, Mr. Arnold argues that this reconciliation
opinion was tainted by the RO’s request in which the RO stated that Mr. Arnold’s cold injury
allegations were based upon his verbal history, “not the evidence of record.” R. at 3354.
The Court agrees with the veteran that his CUE arguments regarding the request and the
reconciliation opinion itself were not addressed in the Board decision. As to the request, the Board
merely concluded that “the VA adjudicator was attempting to secure an informed medical opinion
in accordance with the law.” R. at 13. The Board rejected Mr. Arnold’s assertion that the RO
provided misleading information to the August 2012 VA expert, that the expert then relied on in
providing an opinion. However, the Board did not discuss the veteran’s contention that the RO’s request improperly described the contents of the record, constrained the August 2012 VA expert’s view of the file, and thereby essentially tainted the medical opinion.
The Board is obligated to ensure that it provides appellants with fair process in the adjudication of their claims. See Smith v. Wilkie, 32 Vet.App. 332, 337 (2020) (citing Thurber v. Brown, 5 Vet.App. 119 (1993); Bernard v. Brown, 4 Vet.App. 384, 392-94 (1993)). In Smith, this Court held that the principle of fair process applies throughout the process of evidentiary
development and is implicated when “the Board fails to procure a medical opinion in ‘an impartial, unbiased, and neutral manner’ when the opinion request contains a Board member’s own negative linkage opinion or otherwise suggests that an examiner should reach a predetermined conclusion.” Id. at 337-38 (citing Austin v. Brown, 6 Vet.App. 547, 551-52 (1994))
. And in Austin and other
cases, we set aside the Board decision where it relied on a medical opinion procured by a process
that violated fair process principles. Austin, 6 Vet.App. at 551 (citing Thurber, 5 Vet.App. at 126).
The RO’s request distinguished between the veteran’s statements and the other evidence of
record: “[P]rivate medical evidence since the initial exam that indicates the veteran’s medical
history [] include[s] cold injury residuals [is] based upon his verbal history—not the evidence of
record.” R. at 3583. There is no doubt that the RO’s distinction between the “evidence of record”
and the veteran’s own statements was completely misleading at best. See 38 U.S.C.§ 5107(b)
(requiring the Secretary to “consider all information and lay and medical evidence of record in a
case”); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (noting that VA is required to
give due consideration to all pertinent medical and lay evidence in evaluating a claim to disability
or death benefits); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) (explaining that
“”lay evidence is one type of evidence that must be considered, if submitted, when a veteran’s
10
claim seeks disability benefits” and holding that, in certain situations, “competent lay evidence can
be sufficient in and of itself” to establish entitlement to such benefits). The language used in the
request indicates that the veteran’s own statements are not “evidence of record” and would require
at least corroboration in service medical records to be credible and probative. That is contrary to
Buchanan, 451 F.3d at 1335 (finding improper the Board’s determination that ‘lay statements
lacked credibility merely because they were not corroborated by contemporaneous [SMRs]”).
This error is of particular relevance where, as here, the claimed condition is residuals of inservice
cold exposure. As VA’s Adjudication Procedures Manual (M21-1) makes clear, “[t]he
physical effects of [cold] exposure may be acute or chronic, with immediate or latent
manifestations.” M21-1, III.iv.G.4.a. All that is required is cold exposure during service, not an
actual cold injury, and a related disability may not manifest until many years after cold exposure.
M21-1, III,iv,4.G.4.b. That Mr. Arnold’s service records are silent for cold exposure or injury is
most certainly not dispositive of whether he was exposed to cold during service. Thus, the RO
erred to the extent that it asserted otherwise in the request for a reconciliation opinion.
Moreover, the purportedly adverse medical evidence that the RO cited in its reconciliation
opinion request—i.e., the January 2003 VA examination report—does not establish that “there was
no evidence of cold injury residuals” as the RO indicated. R. at 3581. Contrary to the RO’s
statement, the January 2003 VA examiner did not opine as to the presence of cold injury residuals
or a link between in-service cold injury and the veteran’s bilateral lower extremity neuropathy;
indeed, the terms neuropathy and “cold injury residuals” do not appear in the examination report.
See R. at 4222-24. Instead, the examiner opined only that the veteran did “not have any plantar
callouses” based on physical examination. R. at 4224. Thus, it appears that the RO, in requesting
a reconciliation opinion, mischaracterized the state of the record, labeling neutral evidence as
negative evidence.
This error is particularly prejudicial in light of the fact that no other medical evidence that
predated the reconciliation request dissociated the veteran’s bilateral lower extremity neuropathy
from his claimed in-service cold injury, and even the evidence that identified progressive vascular
disease as the cause of the veteran’s neuropathy affirmatively attributed that disease to in -service
cold injury. See, e.g., R. at 3677 (Dr. Nguyen’s July 2010 opinion that the veteran’s progressive
claw toes with necrosis on the end of the toes was “secondary to peripheral vascular disease . . .
stemming from his frostbite injuries in the service”); R. at 3141 (May 2012 VA examiner’s opinion
11
disagreeing with Dr. Nguyen’s conclusion but ultimately attributing the veteran’s loss of tissue “to
the neuropathy as a result of the cold injury sustained while on active duty”); R. at 4459 (November
1975 VA examiner report addressing the veteran’s callosities, not his not yet diagnosed neuropathy,
and opining that those callosities were due to footwear).
Looking to the reconciliation opinion itself, the VA expert did not even provide what was
requested, a reconciliation of the differing medical opinions. R. at 3583. Rather, the purported
reconciliation opinion merely summarizes Mr. Arnold’s medical record and concludes:
There is no objective evidence recorded in this man’s chart that he was ever seen,
treated, or evaluated for cold injury while on active duty. He is service-connected
for callous formation, and has been treated for tinea pedia and for foot infections,
but no observer or examiner has recorded objective evidence to suggest this was
caused by cold injury to his feet.
R. at 3586. Far from addressing and reconciling the relevant record evidence, the “differing
medical opinions,” the expert merely identified evidence that in his view was absent from the
record. Thus, the Board’s characterization of the request and the reconciliation opinion itself as
“appropriate development to clarify the record and obtain an informed and responsive relevant
opinion” is a gross misrepresentation of what occurred in this case.
The Court agrees with Mr. Arnold that the request and the resulting purported
reconciliation opinion raise serious concerns about the affording of fair process, see Smith,
32 Vet.App. at 337, that were not addressed by the Board. In light of this analysis, remand is the
appropriate remedy. See Tucker v. West, 11 Vet.App. 369, 374 (1998). Thus, in the CUE context
of this case, the Board must on remand address Mr. Arnold’s express CUE arguments raised below
regarding the misleading and inaccurate request and the resulting reconciliation opinion, and
provide an adequate statement of reasons or bases for its determination concerning this specific
CUE argument. The Court notes that Mr. Arnold has alleged an error of fact by the RO in its
request for a reconciliation opinion, that he alleged was transmitted to the VA expert tasked with
providing a reconciliation opinion, resulting in a reconciliation opinion that is similarly tainted.
On remand, the Board must consider whether the allegedly flawed opinion is so tainted that it
cannot stand. And, if so, whether such circumstance would result in a manifestly changed outcome
as to the October 2012 decision. In that regard, the Court reiterates that the RO, in its August 2012
reconciliation opinion request, appears to have mischaracterized the state of the record and did not
identify any medical evidence that was actually against the veteran’s claim.
12
Given this disposition, the Court need not address Mr. Arnold’s additional arguments,
which could not result in a remedy greater than remand. The Court reminds the Board that a remand
must be performed in an expeditious manner in accordance with 38 U.S.C. § 7112.
IV. CONCLUSION
Upon consideration of the foregoing, the April 15, 2020, Board decision is SET ASIDE
and the matter is REMANDED for further proceedings consistent with this decision.
DATED: August 31, 2021
Copies to:
Fritzie M. Vammen, Esq.
VA General Counsel (027)

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