Veteranclaims’s Blog

January 31, 2022

Single Judge application; Walker v. Shinseki, 708 F.3d; For chronic diseases included in the provisions of 38 U.S.C. § 1101(3) and 38 C.F.R. § 3.309(a), there are two alternative methods of establishing service connection—chronicity and continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331, 1335-36, 1340 (Fed. Cir. 2013); The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has explained that § 3.303(b) refers to chronic diseases that are either “shown in service,” meaning clearly diagnosed beyond legitimate question, or not so shown in service. When a “condition noted in service” is not sufficient to warrant the conclusion that the chronic disease is “shown to be chronic” in service, continuity of symptomatology may suffice to establish that the veteran incurred a chronic disease in service.Walker, 708 F.3d at 1339.; In Walker, the Federal Circuit stated that the purpose of § 3.303(b) is “to afford an alternative route to service connection for specific chronic diseases” that are enumerated in 38 C.F.R. § 3.309(a). Id. at 1340.;

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20-7709
JAMES J. MIGLETS, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MEREDITH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
MEREDITH, Judge: The appellant, James J. Miglets, through counsel appeals a
September 28, 2020, Board of Veterans’ Appeals (Board) decision denying entitlement to
disability compensation for vertigo and disabilities of the cervical spine, low back, bilateral knees,
bilateral ankles, and lungs. Record (R.) at 4-16. This appeal is timely, and the Court has jurisdiction
to review the Board’s decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge
disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the
following reasons, the Court will affirm the Board’s decision denying entitlement to disability
compensation for disabilities of the cervical spine, bilateral ankles, and lungs; vacate the Board’s
decision denying entitlement to disability compensation for vertigo and disabilities of the lower
back and bilateral knees; and remand the vacated matters for further proceedings consistent with
this decision.
I. BACKGROUND
The appellant served on active duty in the U.S. Army from May 1961 to April 1964. R. at

  1. His February 1964 separation examination revealed no musculoskeletal, lung, or neurologic
    abnormalities. R. at 3499-500. In February 2009, he filed a claim for disability compensation for
    2
    his right and left knees and lower back. R. at 3970-81. He asserted that his conditions were caused
    by parachuting out of airplanes during service, R. at 3981, and that he had been treated at the VA
    clinic in Youngstown, Ohio, in 1989 for his back and in 1999 for his knees, R. at 3975. The next
    month, he indicated that the parachute jumps during service “ha[d] no doubt caused much pain to
    [his] knees, ankles[,] lower back and spine,” and that he had lived with pain for years. R. at 3939.
    In June 2009, he stated that he had vertigo, which he believed was caused by spinal discs pressing
    on nerves. R. at 3812.
    A VA regional office (RO), in October 2009, denied entitlement to disability compensation
    for the following: lumbosacral strain, left and right knee conditions, left and right ankle conditions,
    a cervical spine condition, a lung condition and breathing problems, and vertigo. R. at 3761-67.
    The appellant subsequently filed a Notice of Disagreement, R. at 3739, and perfected an appeal to
    the Board, R. at 3556; see R. at 3559-80.
    In September 2019, the Board remanded the cervical spine, low back, knee, ankle, and lung
    claims to obtain a VA examination, and remanded the vertigo claim as inextricably intertwined
    with the lower back claim. R. at 2778-83. The Board also instructed the RO to obtain medical
    records from the Youngstown, Ohio, VA clinic from 1989 and 1999, as well as any outstanding
    VA medical records starting from December 2018. R. at 2780.
    The appellant underwent VA examinations for his ankles, back, neck, and knees in
    February 2020. R. at 2550-77, 2582-91, 2596-609. The examiner noted that the appellant reported
    having done approximately 30 parachute jumps while in service, and that there was no
    documentation of injuries, complaints, or diagnoses of any ankle, back, neck, or knee conditions
    during service. R. at 2563, 2591, 2577, 2609. He noted that the appellant had a left calf strain in
    June 1963, but the examiner stated that it was “a soft tissue injury that is self-limited and would
    resolve without residuals in a matter of weeks to a couple of months.” R. at 2609. He also noted
    that the appellant’s separation examination report reflected normal lower extremity, spine, and
    neck examinations. R. at 2563, 2591, 2577, 2609. The appellant reported to the examiner that he
    began having occasional bilateral ankle pain approximately 20 years ago, occasional neck pain
    10 years ago, and bilateral knee pain 20 years ago. R. at 2563, 2577, 2609. He also reported that
    he injured his lower back in November 2001 while working for a railroad and an MRI conducted
    that same month revealed disc herniations. R. at 2591. He indicated that he would only get
    occasional lower back pain prior to that injury, but he has had constant back pain since then and
    3
    was diagnosed with lumbosacral spine arthritis in 2013. Id. The examiner noted that the appellant
    was also diagnosed with bilateral knee arthritis in May 2019, and at the VA examination the
    appellant was diagnosed with bilateral ankle arthritis, cervical spine arthritis, degenerative disc
    disease, and retrolistheses. R. at 2563, 2577, 2609.
    Regarding the ankle and knee arthritis, the examiner opined that, because the appellant did
    not have any symptoms until approximately 36 years after service, no problems were documented
    during service, and the separation examination revealed no abnormalities, it was less likely than
    not that those conditions were incurred in or caused by service, including the parachute jumps.
    R. at 2563-64, 2609. Similarly, the examiner opined that, because the appellant did not have onset
    of neck pain or symptoms until approximately 45 years after service, no problems were
    documented during service, and the separation examination was normal, it was less likely than not
    that his neck conditions were incurred in or caused by the in-service parachute jumps; rather, they
    are more likely than not due to age progression and postservice occupational history. R. at 2577.
    As to the lower back, the examiner opined that the back conditions are more likely due to the acute
    low back injury in November 2001, rather than the parachute jumps during service. R. at 2591.
    The same month, the RO notified the appellant that VA medical center records from 1989
    through 1999 had been requested, but they could not be located. R. at 2522. The RO explained that
    “[a]ll efforts to obtain [them] have been exhausted, and . . . further attempts to obtain the records
    would be futile.” Id. In response, the appellant stated that he was “very sorry to hear that[,] as it
    makes it very difficult to associate [his] health issues with [his] military service.” R. at 2449. He
    also indicated that he was unaware that he could report health issues at the time of his military
    discharge and “as a result [he] suffered with these problems.” R. at 2449-50.
    Medical records dated between January 2019 and July 2020 were subsequently associated
    with the claims file. R. at 60, 109-306. In August 2020, the appellant suggested that the 1989 and
    1999 VA medical records were unavailable “probably because [he] was not in the VA system as
    [he] did not realize [he] could utilize their services” and no one had advised him “where [and] how
    to claim injuries that occurred while serving.” R. at 28.
    On September 28, 2020, the Board denied entitlement to disability compensation for
    vertigo and disabilities of the cervical spine, low back, bilateral knees, bilateral ankles, and lungs.
    R. at 4-16. This appeal followed.
    4
    II. ANALYSIS
    The appellant argues that the Board failed to ensure substantial compliance with the
    September 2019 remand and the duty to assist because only one attempt had been made to obtain
    the 1989 and 1999 VA clinic records and the February 2020 notification letter did not reference
    any attempts to obtain records from December 2018. Appellant’s Br. at 5-9. He also argues that
    the Board provided inadequate reasons or bases for its decision because it failed to properly
    consider his lay statements of continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b), and
    that the February 2020 VA examiner’s opinions are inadequate because the Board improperly
    limited the scope of the examiner’s inquiry. Id. at 9-14.
    For his part, the Secretary generally disputes these arguments and urges the Court to affirm
    the Board’s decision. Secretary’s Br. at 6-16. Regarding the Board’s remand orders and the duty to
    assist, the Secretary avers that the February 2020 notification letter plausibly supports that the
    necessary efforts had been made to obtain the 1989 and 1999 medical records and that the records
    postdating December 2018 have been obtained. Id. at 10-11. Additionally, the Secretary asserts
    that the Board considered § 3.303(b) but found as a threshold matter pursuant to that regulation
    that arthritis of the knees, lumbar spine, neck, and ankles was not noted during service, and that
    the appellant did not challenge that finding. Id. at 14-15. In reply, the appellant adds that the
    February 2020 notification letter was vague and confusing and that the record contained evidence
    that arthritis was noted during service. Reply Br. at 2-5.
    A. February 2020 VA examinations
    “[O]nce the Secretary undertakes the effort to provide an examination [or opinion,] . . . he
    must provide an adequate one.” Barr v. Nicholson, 21 Vet.App. 303, 311 (2007). VA must develop
    claims and gather evidence in an unbiased manner. Austin v. Brown, 6 Vet.App. 547, 552 (1994)
    (“[B]asic fair play requires that evidence be procured by the agency in an impartial, unbiased, and
    neutral manner.”). In seeking a medical opinion, VA “may not suggest an answer or limit the field
    of inquiry by the expert.” Bielby v. Brown, 7 Vet.App. 260, 268 (1994); see Colayong v. West,
    12 Vet.App. 524, 535 (1999). A medical examination or opinion is adequate “where it is based
    upon consideration of the veteran’s prior medical history and examinations,” Stefl v. Nicholson,
    21 Vet.App. 120, 123 (2007), “describes the disability, if any, in sufficient detail so that the Board’s
    ‘evaluation of the claimed disability will be a fully informed one,'” id. (quoting Ardison v. Brown,
    6 Vet.App. 405, 407 (1994)), and “sufficiently inform[s] the Board of a medical expert’s judgment
    5
    on a medical question and the essential rationale for that opinion,” Monzingo v. Shinseki,
    26 Vet.App. 97, 105 (2012) (per curiam). The law does not impose any reasons-or-bases
    requirements on medical examiners, and the adequacy of medical reports must be based upon a
    reading of the report as a whole. Id. at 105-06. “Whether a medical [examination or] opinion is
    adequate is a finding of fact, which the Court reviews under the ‘clearly erroneous’ standard.”
    D’Aries v. Peake, 22 Vet.App. 97, 104 (2008) (per curiam).
    Here, the Board did not expressly discuss its reasons for finding the February 2020 VA
    examinations adequate. See R. at 9-11. Rather, the Board, in finding substantial compliance with
    its September 2019 remand order and relying on those examinations, R. at 7, implicitly found that
    they were adequate. From the Board’s discussion of the relative probative value of the
    examinations, however, the Court is able to discern the Board’s reasons. See Janssen v. Principi,
    15 Vet.App. 370, 379 (2001) (per curiam) (rendering a decision on the Board’s statement of reasons
    or bases “as a whole”). In that regard, the Board stated that “the VA examiner’s opinions are
    probative[] because they are based on an accurate medical history and provide explanations that
    contain clear conclusions and supporting data.” R. at 11.
    The appellant does not acknowledge or challenge any particular aspect of the VA
    examiner’s opinions; rather, he argues that the Board improperly limited the field of inquiry of the
    examiner’s opinions by asking whether any diagnosed arthritis condition “‘was . . . incurred within
    one year of the [appellant’s] separation from active service,'” and therefore the opinions provided
    were inadequate. Appellant’s Br. at 13 (quoting R. at 2781). As an initial matter, he does not explain
    why it would be inconsistent with a theory of presumptive service connection for arthritis as a
    chronic condition for the Board to request an opinion as to whether the conditions were diagnosed
    within 1 year of service. See 38 C.F.R. § 3.307(a)(3). Additionally, the appellant has not explained
    how such an inquiry “communicates that the [Board] wishe[d] to receive a specific answer to the
    question posed.” Douglas v. Shinseki, 23 Vet.App. 19, 26 (2009). Moreover, to the extent he is
    contending that the Board’s instruction limited the examiner’s field of inquiry, the Court cannot
    conclude that he has demonstrated that any such error was prejudicial. See 38 U.S.C. § 7261(b)(2)
    (requiring the Court to “take due account of the rule of prejudicial error”); Shinseki v. Sanders,
    556 U.S. 396, 409 (2009) (holding that the harmless-error analysis applies to the Court’s review of
    Board decisions and that the burden is on the appellant to show that he or she suffered prejudice
    as a result of VA error). In that regard, he has not pointed to any information missing from or
    6
    contained in the examination reports reflecting that they were limited in scope, and he has not
    otherwise explained why those opinions were insufficient to inform the Board in reaching its
    decision. See Monzingo, 26 Vet.App. at 105. Accordingly, the appellant’s argument is not
    persuasive.
    B. Cervical Spine and Bilateral Ankles
    Establishing that a disability is service connected for purposes of entitlement to VA
    disability compensation generally requires medical or, in certain circumstances, lay evidence of
    (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a
    nexus between the claimed in-service injury or disease and the current disability. See 38 U.S.C.
    § 1110; Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Davidson
    v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (2021). For chronic diseases
    included in the provisions of 38 U.S.C. § 1101(3) and 38 C.F.R. § 3.309(a), there are two
    alternative methods of establishing service connection—chronicity and continuity of
    symptomatology. See Walker v. Shinseki, 708 F.3d 1331, 1335-36, 1340 (Fed. Cir. 2013).
    The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has explained that
    § 3.303(b)
    refers to chronic diseases that are either “shown in service,” meaning clearly
    diagnosed beyond legitimate question, or not so shown in service. When a
    “condition noted in service” is not sufficient to warrant the conclusion that the
    chronic disease is “shown to be chronic” in service, continuity of symptomatology
    may suffice to establish that the veteran incurred a chronic disease in service.
    Walker, 708 F.3d at 1339. In Walker, the Federal Circuit stated that the purpose of § 3.303(b) is
    “to afford an alternative route to service connection for specific chronic diseases” that are
    enumerated in 38 C.F.R. § 3.309(a). Id. at 1340.

    Relevant to the appellant’s argument, continuity of symptomatology is established if a
    claimant demonstrates (1) a condition “noted” during service; (2) evidence of postservice
    continuity of the same symptoms; and (3) medical or, in certain circumstances, lay evidence of a
    nexus between the present disability and the postservice symptoms. Id.; 38 C.F.R. § 3.309(a)
    (2021); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.
    Cir. 2007) (“Whether lay evidence is competent and sufficient in a particular case is a fact[ual]
    issue to be addressed by the Board.”). Continuing symptoms, not treatment, must be the focus of
    the evidentiary analysis. Wilson v. Derwinski, 2 Vet.App. 16, 19 (1991). Whether the record
    7
    establishes entitlement to service connection is a finding of fact, which the Court reviews under
    the “clearly erroneous” standard of review. See Russo v. Brown, 9 Vet.App. 46, 50 (1996).
    Here, the Board acknowledged the possibility of establishing entitlement to benefits under
    a theory of continuity of symptoms and that arthritis is included in § 3.309(a). R. at 11. The Board
    found that “neither arthritis nor manifestations sufficient to identify the disease entity are shown
    during service,” nor was there objective x-ray evidence of arthritis within 1 year of service. Id.
    Therefore, the Board concluded that degenerative arthritis of the cervical spine and ankles is not
    presumed to have been incurred during service. Id.
    The appellant argues that, with respect to the claims for neck and ankle disabilities, the
    Board failed to properly develop the issue of continuity of symptomatology. Appellant’s Br. at
    9-12. He points to his statement that he was unaware that he could report any health issues when
    he separated from service and “‘as a result [he] suffered with these problems,'” and asserts that lay
    statements can establish continuity of symptomatology and thus a nexus to service. Id. at 10-11
    (quoting R. at 2449-50). In response to the Secretary’s assertion that the appellant did not challenge
    in his opening brief the Board’s threshold finding that arthritis was not noted during service,
    Secretary’s Br. at 15, the appellant asserts that a service treatment record reflecting that he fell off
    a tank and injured his forearm and wrist “plausibly indicate[s] that the claimed arthritis was ‘noted’
    in service,” Reply Br. at 4.
    The Court concludes that the appellant has not met his burden to demonstrate error in the
    Board’s application of § 3.303(b). See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc), aff’d
    per curiam, 232 F.3d 908 (Fed. Cir. 2000) (table); Berger v. Brown, 10 Vet.App. 166, 169 (1997).
    As an initial matter, the Court has consistently discouraged parties from raising new arguments
    after the initial briefing. See Carbino v. Gober, 10 Vet.App. 507, 511 (1997) (declining to review
    argument first raised in appellant’s reply brief), aff’d sub nom. Carbino v. West, 168 F.3d 32, 34
    (Fed. Cir. 1999) (“[I]mproper or late presentation of an issue or argument . . . ordinarily should not
    be considered.”); see also Untalan v. Nicholson, 20 Vet.App. 467, 471 (2006); Fugere
    v. Derwinski, 1 Vet.App. 103, 105 (1990). The appellant has not explained why the Court should
    consider his late-raised argument that arthritis was noted during service. And, in any event, he fails
    to explain how an in-service injury to his forearm and wrist constitutes a notation of arthritis in the
    cervical spine or ankles. See Coker v. Nicholson, 19 Vet.App. 439, 442 (2006) (per curiam) (“The
    Court requires that an appellant plead with some particularity the allegation of error so that the
    8
    Court is able to review and assess the validity of the appellant’s arguments.”), vacated on other
    grounds sub nom. Coker v. Peake, 310 F. App’x 371 (Fed. Cir. 2008) (per curiam order); see also
    Locklear v. Nicholson, 20 Vet.App. 410, 416 (2006) (holding that the Court is unable to find error
    when arguments are undeveloped).
    The appellant does not otherwise challenge the Board’s reasons or bases for denying
    entitlement to disability compensation for cervical spine and bilateral ankle disabilities. Therefore,
    the Court will affirm the Board’s decision in that regard. See Coker, 19 Vet.App. at 442; see also
    Locklear, 20 Vet.App. at 416.
    C. Lower Back, Knees, and Vertigo
    A remand by the Board or this Court “confers on the [appellant] . . . , as a matter of law,
    the right to compliance with the remand orders,” and the Board errs when it fails to ensure
    compliance with the terms of such a remand. Stegall v. West, 11 Vet.App. 268, 271 (1998).
    Further, under the duty to assist, “[t]he Secretary shall make reasonable efforts to assist a claimant
    in obtaining evidence necessary to substantiate the claimant’s claim for a benefit.” 38 U.S.C.
    § 5103A(a)(1). For a compensation claim, this duty includes obtaining relevant records in the
    custody of a Federal department or agency. 38 U.S.C. § 5103A(c)(1); 38 C.F.R. § 3.159(c)(2), (3)
    (2021). “VA will end its efforts to obtain [such] records . . . only if VA concludes that the records
    sought do not exist or that further efforts to obtain those records would be futile,” such as when
    “the Federal department or agency advises VA that the requested records do not exist or the
    custodian does not have them.” 38 C.F.R. § 3.159(c)(2). If the Secretary is unable to obtain those
    records after making reasonable efforts to do so, the Secretary must notify the claimant of that fact.
    38 C.F.R. § 3.159(e)(1).
    The Board’s determinations that VA complied with a remand order and whether the duty
    to assist has been satisfied are findings of fact, which the Court reviews under the “clearly
    erroneous” standard. See Gill v. Shinseki, 26 Vet.App. 386, 391-92 (2013) (reviewing the Board’s
    finding of substantial compliance for clear error), aff’d per curiam sub nom. Gill v. McDonald,
    589 F. App’x 535 (Fed. Cir. 2015); Van Valkenburg v. Shinseki, 23 Vet.App. 113, 120 (2009). As
    with any material issue of fact or law, the Board must provide a statement of the reasons or bases
    for its determination “adequate to enable a claimant to understand the precise basis for the Board’s
    decision, as well as to facilitate review in this Court.” Allday v. Brown, 7 Vet.App. 517, 527 (1995);
    see 38 U.S.C. § 7104(d)(1); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990).
    9
    Here, the Board noted that the claims were previously remanded for additional
    development and found that “[t]he requested development has been completed to the extent
    possible, and no further action is necessary to comply with the Board’s remand directives.” R. at 7.
    The Board did not expressly find that the duty to assist the appellant in obtaining VA medical
    records had been satisfied or otherwise explain why no further action was necessary. The appellant
    contends that VA failed to comply with the prior remand and to satisfy the duty to assist him
    because the Agency did not make as many requests as necessary to obtain the 1989 and 1999
    medical records; rather, VA only made one request from a VA medical center, made no requests
    of any Federal records centers or other facility, and did not reference in the February 2020
    notification letter any attempts to obtain records from December 2018. Appellant’s Br. at 6-9.
    As to the records from 2018 and after, the appellant did not respond to the Secretary’s
    arguments that VA medical records postdating December 2018 were associated with the claims
    file and thus VA complied with that part of the Board’s September 2019 remand order. Secretary’s
    Br. at 10-11; see Reply Br. at 2-3; see also R. at 60, 109-306. The Court thus finds his argument
    in that regard unpersuasive. See Coker, 19 Vet.App. at 442; see also Locklear, 20 Vet.App. at 416.
    Regarding the Youngstown, Ohio, VA clinic records from 1989 and 1999, although the
    parties make competing arguments as to whether VA made the necessary efforts to obtain those
    records, the Court’s review is frustrated by the Board’s failure to make the necessary factual
    findings in the first instance. See Hensley v. West, 212 F.3d 1255, 1263 (Fed. Cir. 2000)
    (“[A]ppellate tribunals are not appropriate fora for initial fact finding.”); see also 38 U.S.C.
    § 7261(c). In that regard, the Board stated that “[t]he requested development has been completed
    to the extent possible,” yet the Board did not discuss whether, in light of the reference in the
    February 2020 notice generically to a “VA Medical Center,” R. at 2522, VA made appropriate
    requests for records from the Youngstown, VA clinic; whether any such records may exist; and, if
    so, whether or why further efforts to obtain those records would be futile. The Court may not
    resolve these factual disputes or evaluate their potential effect on the Board’s findings. 1 See
    Deloach v. Shinseki, 704 F.3d 1370, 1380 (Fed. Cir. 2013) (“[T]he evaluation and weighing of
    1 Although the record appears to contain conflicting statements from the appellant as to the existence of these
    records, compare R. at 2449, 3974-75, and 3981, with R. at 28, the Court may not resolve in the first instance that
    disputed factual question, see Tadlock v. McDonough, 5 F.4th 1327, 1337 (Fed. Cir. 2021).
    10
    evidence are factual determinations committed to the discretion of the factfinder—in this case, the
    Board.”).
    The Court notes that, although the appellant generally asserts that his “VA records are of
    obvious importance to [his] claims,” Appellant’s Br. at 7, the record reflects that he solely averred
    treatment for his lower back and knees at the Youngstown, Ohio, VA clinic. See R. at 2779-80,
    3975; see also Mlechick v. Mansfield, 503 F.3d 1340, 1345 (Fed. Cir. 2007) (holding that this
    Court’s statutory duty to take due account of the rule of prejudicial error permits the Court “to go
    outside of the facts as found by the Board to determine whether an error was prejudicial by
    reviewing ‘the record of the proceedings before the Secretary and the Board'” (quoting Newhouse
    v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007))). Because he does not allege treatment for the
    other disabilities on appeal or explain how records pertaining to his back and knees could
    potentially affect his claims for those other conditions, the Court cannot conclude that he has
    demonstrated that any failure to obtain these records was prejudicial with respect to claims other
    than for his back and knees. See 38 U.S.C. § 7261(b)(2); Sanders, 556 U.S. at 409. Accordingly,
    the Court’s remand on these grounds is limited to the lower back and knee claims.
    Given this disposition, the Court will not now address the remaining arguments and issues
    raised by the appellant with respect to those claims. See Quirin v. Shinseki, 22 Vet.App. 390, 395
    (2009) (noting that “the Court will not ordinarily consider additional allegations of error that have
    been rendered moot by the Court’s opinion or that would require the Court to issue an advisory
    opinion”); Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam order). Additionally, because
    the appellant asserts that his vertigo may be secondary to his lower back condition, that matter is
    inextricably intertwined with the remanded matters and must therefore also be remanded.
    See Tyrues v. Shinseki, 23 Vet.App. 166, 177-78 (2009) (en banc) (finding that the Court has
    discretion to determine whether claims denied by the Board are so inextricably intertwined with a
    matter still pending before VA that claims should be remanded to await development or disposition
    of a claim not yet finally decided), aff’d, 631 F.3d 1380 (Fed. Cir. 2011), vacated, 565 U.S. 802
    (2011), reinstated as modified en banc, 26 Vet.App. 31 (2012) (per curiam order), aff’d, 732 F.3d
    1351 (Fed. Cir. 2013); see also Smith v. Gober, 236 F.3d 1370, 1372 (Fed. Cir. 2001) (holding
    that, where the facts underlying two claims are “intimately connected,” the interests of judicial
    economy and of avoiding piecemeal litigation require the claims to be appealed together).
    11
    On remand, the appellant is free to submit additional evidence and argument on the
    remanded matters, including the specific arguments raised here on appeal, and the Board is
    required to consider any such relevant evidence and argument. See Kay v. Principi, 16 Vet.App.
    529, 534 (2002) (stating that, on remand, the Board must consider additional evidence and
    argument in assessing entitlement to the benefit sought); Kutscherousky v. West, 12 Vet.App. 369,
    372-73 (1999) (per curiam order). The Court reminds the Board that “[a] remand is meant to entail
    a critical examination of the justification for the decision,” Fletcher v. Derwinski, 1 Vet.App. 394,
    397 (1991), and the Board must proceed expeditiously, in accordance with 38 U.S.C. § 7112.
    D. Lungs
    The appellant states that he is appealing the Board’s denial of benefits for a lung or
    breathing disability. Appellant’s Br. at 5, 14-15. However, he does not develop any argument
    regarding that claim in his analysis, and thus the Court need not address the matter. See Coker,
    19 Vet.App. at 442; see also Locklear, 20 Vet.App. at 416. Accordingly, the Court will affirm the
    Board’s decision denying entitlement to disability compensation for a lung disability.
    III. CONCLUSION
    After consideration of the parties’ pleadings and a review of the record, the Board’s
    September 28, 2020, decision denying entitlement to disability compensation for disabilities of the
    cervical spine, bilateral ankles, and lungs is AFFIRMED. The Board’s decision denying
    entitlement to disability compensation for vertigo and disabilities of the lower back and bilateral
    knees is VACATED, and the matters are REMANDED for further proceedings consistent with
    this decision.
    DATED: November 16, 2021
    Copies to:
    Christopher A. Porco, Esq.
    VA General Counsel (027)

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