Veteranclaims’s Blog

March 19, 2022

Single Judge Application; When the Secretary fails to respond appropriately to a legally plausible position advanced by an appellant, the Court may assume that he concedes the point. MacWhorter v. Derwinski, 2 Vet.App. 133, 136 (1992).;

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20-4401
JOE L. SMITH, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before LAURER, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
LAURER, Judge: United States Army veteran Joe L. Smith appeals, through counsel, a
May 21, 2020, Board of Veterans’ Appeals (Board) decision denying compensation under
38 U.S.C. § 1151 for residuals of brachial to distal ulnar artery bypass of the left upper extremity. 1
Appellant also appeals a March 19, 2019, Board decision denying service connection for ischemic
neuropathy of the upper left extremity and post-traumatic stress disorder (PTSD) and denying a
request to reopen a service connection claim for a skin disability.2 On July 30, 2020, appellant
moved to consolidate the appeal of both Board decisions, and on October 29, 2020, the Court
granted appellant’s motion. Thus, the Court will address the issues appealed from both Board
decisions.3
1 Record (R.) at 5-12; Appellant’s Brief (Br.) a t 1-2.
2 R. at 320-42, Appella nt’s Br. at 1-2. The March 19, 2019, Board decision also denied service connection
for prostate cancer and sleep apnea. Appellant does not challenge these parts of the Board decision, so the Court
dismisses the appeal on those matters. See Pederson v. McDonald, 27 Vet.App. 276, 281–85 (2015) (en banc) (finding
that the Court may decline to review an issue that appellant has abandoned on appeal). The Court also notes that the
March 19, 2019, Board decision remanded the issue of compensation under 38 U.S.C. § 1151. The Board finally
decided that issue in the May 21, 2020, Board decision also on appeal.
3 See U.S. VET. APP. R. 45(g)(6) (permitting the Clerk of the Court to consolidate appeals).
2
On the May 21, 2020, denial of compensation under section 1151, appellant argues that the
Board clearly erred in finding that appellant suffered no additional disability because of his bypass
surgery. 4 Appellant also contends that the Board clearly erred by implicitly finding that VA
performed the bypass surgery with his consent or that the surgery was emergent.5 And he asserts
that the Board clearly erred in how it weighed evidence addressing whether VA health care
providers failed to timely diagnose his condition.6 Appellant asks the Court to reverse the Board’s
findings.7 The Secretary concedes that the Board failed to adequately support its decision because
it did not reconcile conflicting evidence about whether appellant suffered additional disability and
because the Board failed to perform necessary fact-finding on whether appellant consented to
surgery, whether the surgery was emergent, or whether VA health care providers exercised
reasonable care.8 The Secretary maintains that the Court should remand appellant’s claim.9
The Court agrees with appellant that the Board clearly erred in finding that appellant
suffered no additional disability because of his bypass surgery and will reverse that portion of the
Board’s decision.10 But the Court also finds that the Board has not performed the necessary factfinding
and evidence weighing on the questions of appellant’s consent, whether the surgery was
emergent, and whether VA health care providers exercised a reasonable degree of care. The Court
will therefore remand that portion of the Board’s decision reminding the Board of its legal
obligation and providing words of caution.11
On the March 19, 2019, decision, appellant first contends that the Board erred in denying
his service connection claim for ischemic neuropathy of the upper left extremity because it failed
to discuss favorable evidence, failed to obtain a VA compensation and pension (C&P) opinion,
and failed to obtain outstanding VA treatment records.12 The Secretary concedes error but asks the
4 Appella nt’s Br. a t 18-21.
5 Id. at 21-23.
6 Id. at 19-21.
7 Id. at 21-23.
8 Secreta ry’s Br. a t 12-18.
9 Id.
10 See Gutierrez v. Principi, 19 Vet.App. 1, 10 (2004) (finding reversal to be an appropriate remedy only
when the sole permissible view of the evidence contradicts the Board’s decision).
11 See Tucker v. West, 11 Vet.App. 369, 374 (1998).
12 Appella nt’s Br. a t 23-25.
3
Court to remand appellant’s claim for the Board to address favorable evidence and whether more
development was needed for VA to obtain outstanding records.13 The Court accepts the Secretary’s
concession and agrees that the Board failed to address favorable evidence. The Court also agrees
that it is necessary to remand the question of whether VA satisfied its duty to help appellant obtain
records because the Board provided an inadequate statement of reasons or bases and frustrated
judicial review. Finally, the Court finds that the Board failed to adequately discuss whether
appellant was entitled to a C&P exam and instructs the Board to properly address that question on
remand.
Next, appellant asserts that the Board erred in denying his direct service connection claim
for PTSD because it failed to address favorable evidence and failed to obtain outstanding VA
treatment records.14 Again, the Secretary concedes error but maintains that error can be remedied
by a remand only to consider favorable evidence.15 The Court agrees because it cannot find that
the Board’s failure to address appellant’s records was prejudicial. Thus, the Court will remand
appellant’s claim for the Board to adequately address the materially favorable evidence.
Appellant also argues that the Board erred when it found that he did not appeal an April
2011 rating decision denying his claim for an acquired psychiatric disorder as secondary to his
section 1151 claim.16 The Court agrees that the Board did not adequately explain why the April
2011 rating decision became final because it did not discuss whether appellant’s June 2011 Notice
of Disagreement (NOD) sufficed to appeal his claimed acquired psychiatric disorder.17 Thus, the
Court remands for the Board to adequately address whether the April 2011 rating decision became
final on the matter of appellant’s service connection claim for an adjustment disorder as secondary
to his section 1151 claim.
Finally, appellant says that the Board erred in refusing to reopen his previously final service
connection claim for a skin condition because he did not submit new and material evidence. 18
13 Secreta ry’s Br. a t 18-19.
14 Appella nt’s Br. a t 25.
15 Secreta ry’s Br. a t 21.
16 Appella nt’s Br. a t 19; see R. at 333, 3355-62.
17 See R. at 3326-34.
18 Appella nt’s Br. a t 27-29.
4
Appellant urges the Court to reverse the Board’s decision. 19 Once more, the Secretary concedes
error but asks the Court to remand for the Board to provide a new statement of reasons or bases.20
Because appellant’s claim was originally denied because of the lack of a diagnosed skin condition,
and because he submitted new evidence showing a diagnosis, the Board’s decision was clearly
erroneous and contrary to the sole permissible view of the evidence.21 Thus, the Court will reverse
the Board’s decision and direct that the Board reopen appellant’s service connection claim for a
skin condition.
I. ANALYSIS
A. Compensation Under 38 U.S.C. § 1151
Under 38 U.S.C. § 1151, a veteran may be compensated for a “qualifying additional
disability” that did not result from the veteran’s willful misconduct and that is actually and
proximately caused by hospital care, medical or surgical treatment, or examination furnished by
VA. 22 Medical care, treatment, or examination proximately causes a “qualifying additional
disability” when the disability results from either the “carelessness, negligence, lack of proper
skill, error in judgment, or similar instance of fault on VA’s part” in furnishing the medical
treatment; or the disability results from “an event” that is “not reasonably foreseeable.” 23 To
establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance
of fault on VA’s part in furnishing treatment caused a veteran’s additional disability, a veteran
must show that the treatment caused additional disability or death; and either (1) “VA failed to
exercise the degree of care that would be expected of a reasonable health care provider, ” or (2)
VA furnished the hospital care or medical or surgical treatment without the veteran’s informed
consent.24 The Court reviews the Board’s determinations regarding entitlement to compensation
under section 1151 for clear error.25 A finding of fact is clearly erroneous when the Court, after
19 Id. at 29.
20 Secreta ry’s Br. a t 22-23.
21 See R. at 1589-90, 4663.
22 38 U.S.C. §1151; 38 C.F.R. § 3.361 (2021).
23 38 C.F.R. § 3.361(d).
24 38 C.F.R. § 3.361(d)(1).
25 38 U.S.C. § 7261(a)(4); Bartlett v. Shinseki, 24 Vet.App. 328, 334 (2011); Look v. Derwinski, 2 Vet.App.
157, 161-62 (1992).
5
reviewing the entire evidence, “is left with the definite and firm conviction that a mistake has been
committed.”26

  1. Additional Disability
    At the outset, the Court notes that VA has obtained six medical opinions for appellant’s
    section 1151 claim.27 Yet the Board determined that appellant had no additional disability because
    of his bypass surgery based solely on the January 2020 C&P opinion.28 The Secretary asserts that
    remand is necessary for the Board to weigh the January 2020 C&P opinion against conflicting
    evidence of record. 29 Appellant maintains that reversal is appropriate because the Board has
    performed the necessary fact-finding and weighed the evidence but has clearly erred in its
    determination. 30 The Court agrees with appellant that reversal of the Board’s finding is
    appropriate.
    Because the parties agree that the Board erred,31 the question facing the Court is the proper
    remedy. As a finder of fact, the Board has the duty to weigh the evidence in the first instance. 32
    The Court reviews the Board’s factual findings for clear error but may not weigh evidence itself.33
    But reversal is warranted when the Board has performed the necessary factfinding and weighed
    the evidence and the Court is “‘left with the definite and firm conviction that,’ based on the entirety
    of the evidence, the Board has made a mistake” 34 and that the “only permissible view of the
    evidence is contrary to that found by the [Board].”35
    In deciding that appellant did not suffer additional disability because of bypass surgery , the
    Board addressed appellant’s VA treatment records, his lay statements, and C&P opinions from
    26 United States v. U. S. Gypsum Co., 333 U.S. 364, 395 (1948); see Gilbert v. Derwinski, 1 Vet.App. 49, 52
    (1990).
    27 See R. at 93-94, 284-85, 363-64, 2411-13, 2415, 3673-74.
    28 R. at 10.
    29 Secreta ry’s Br. a t 13-15.
    30 Appella nt’s Br. a t 18-21.
    31 See id., Secretary’s Br. a t 12.
    32 Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006).
    33 Deloach v. Shinseki, 704 F.3d 1370, 1380 (Fed. Cir. 2013).
    34 Andrews v. McDonough, 34 Vet.App. 216, 220 (2021) (quoting Gilbert, 1 Vet.App. at 52).
    35 Johnson v. Brown, 9 Vet.App. 7, 9-10 (1996); see Gutierrez v. Principi, 19 Vet.App. 1, 10 (2004).
    6
    September 2010, June 2015, June 2019, and January 2020.36 The Board also discussed a June 2015
    VA physician’s opinion and an October 2018 independent medical expert (IME) opinion.37 The
    Board not only gave a thorough recitation of the medical evidence but assigned probative value to
    that evidence.38 Thus, the Court finds that the Board conducted the necessary fact-finding and
    weighing of the evidence to resolve whether appellant suffered additional disability after surgery.
    But the Board’s findings were clearly erroneous, and the sole permissible view of the evidence is
    contrary to the Board’s conclusion.
    The Board’s decision hinged on the January 2020 C&P opinion , which the Board found
    probative because it gave “an explanation that contains clear conclusions and supporting data” for
    why appellant suffered no additional disability.39 But despite the Board’s contentions, the January
    2020 examiner offered no support for his conclusion that appellant suffered no additional disability
    after surgery.40 More importantly, the January 2020 examiner credited and relied on the October
    2018 IME opinion, which clearly found that appellant did suffer additional disability because of
    surgery.41 The IME opined that “the inability to revascularize [appellant’s] hand clearly led to
    additional disability.”42 The Board assigned the IME opinion minimal probative value because the
    IME “fail[ed] to properly review [appellant’s] January 2009 VA treatment records.”43 But while
    the IME suggested that there were several questions that he could not answer without reviewing
    January 2009 medical records, he opined without reservation that appellant suffered additional
    disability because of the bypass surgery.44
    36 R. at 7-11.
    37 R. at 7-8.
    38 See R. at 7-11.
    39 R. at 10.
    40 See R. at 93-94.
    41 R. at 93 (using the rationale section of the opinion to direct readers to the October 2018 IME opinion and
    ca lling it “an extensive discussion of the facts of this case by a vascular surgeon and supports the point that there was
    no proven fault in the procedure causing additional disabilities”). The October 2018 IME opined that the disability
    was less likely as not the fault of VA treatment because appellant refused immediate corrective surgery. R. at 364. But
    the question the Board addressed here was simply whether appellant suffered any additional disability because of the
    surgery, and the October 2018 IME clearly opined that he did. Id.
    42 R. at 364.
    43 R. at 8.
    44 R. at 364.
    7
    The June 2019 C&P opinion also established that appellant suffered additional disability
    from surgery. The examiner discussed appellant’s surgery and opined that “[f]ollow up medical
    records show[] the limb is viable but left hand is still severely ischemic with ischemic
    neuropathy.”45 Similarly, the June 2015 C&P opinion found that, after the failed bypass surgery,
    appellant was “on continuous Coumadin treatment to preserve what left upper extremity
    functionality he has left; however, he has significant post-operative left arm and right leg pain.”46
    In fact, the Board provided no medical evidence suggesting that appellant did not suffer
    additional disability because of his bypass surgery. Instead, much of the medical evidence shows
    that appellant suffered additional disability following surgery but that it was unclear whether VA
    health care providers caused the disability by failing to exercise the degree of care expected of a
    reasonable health care provider.47 But whether appellant suffered additional disability and whether
    VA’s failure to exercise a reasonable degree of care proximately caused that additional disability
    are different questions. The distinction is important because an appellant can establish that a
    disability resulting from VA care is proximately caused by that care when VA furnished treatment
    without informed consent—irrespective of the health care provider’s degree of care.48 For that
    reason the first element of a section 1151 claim is simply whether appellant suffered additional
    disability because of VA treatment. 49 The Board’s fact-finding reveals that, on that threshold
    question, the sole permissible view of the evidence is that appellant did suffer additional disability
    because of his bypass surgery.
    Finally, in appellant’s opening brief , he asserted that his surgical scars are an additional
    disability. Appellant argued that “[t]here is no dispute that he has scars that he would not have but
    for the surgery.”50 This is not a new argument, as appellant raised his surgical scars below and
    independent medical evidence has noted and confirmed those scars.51 But despite appellant raising
    this argument before the Agency and fully briefing it here, the Secretary did not respond to the
    45 R. at 284.
    46 R. at 2412.
    47 See R. at 93-94, 363-64.
    48 38 C.F.R. § 3.361(d)(1).
    49 38 C.F.R. § 3.361(b).
    50 Appella nt’s Br. a t 20.
    51 See R. a t 3486 (Appella nt’s May 27, 2010, letter describing postsurgical scars), R. a t 78 (January 25, 2020,
    C&P exam).
    8
    argument. When the Secretary fails to respond appropriately to a legally plausible position
    advanced by an appellant, the Court may assume that he concedes the point.52
    So the Court holds
    that the Secretary conceded that the Board erred by not finding that the only acceptable view of
    the evidence is that appellant’s scars show additional disability resulting from his surgery.
    The Board performed the necessary factfinding and evidence weighing, but its conclusion
    that appellant suffered no additional disability because of his bypass surgery conflicts with the sole
    permissible view of the evidence. So reversal is the appropriate remedy.53 On remand, the Board
    must evaluate the medical evidence to determine the full scope of appellant’s additional disability
    resulting from bypass surgery. And while appellant may submit additional evidence and argument
    on that issue if he wishes,54 the Board is bound by this Court’s conclusion that appellant has
    additional disability resulting from his bypass surgery.55
  2. Informed Consent
    Having determined that reversing the Board’s factual finding on whether appellant has
    additional disability is appropriate, the Court must now resolve the next element of appellant’s
    section 1151 claim. As discussed above, appellant first seeks to prove that VA’s care proximately
    caused his additional disability because VA furnished that care without his informed consent. 56
    And, as before, the parties agree that the Board erred in reaching its decision but disagree on the
    appropriate remedy for that error.57 The Court finds that remand of this issue is appropriate.
    The obvious difference between the issue of whether appellant suffered additional
    disability from surgery and whether appellant gave informed consent for surgery is that the Board
    substantively analyzed the first question and never addressed the second.58 Appellant contends that
    the Court may still reverse the Board on the issue of informed consent because the Board made an
    52 MacWhorter v. Derwinski, 2 Vet.App. 133, 136 (1992).
    53 See Andrews, 34 Vet.App. at 220.
    54 See Kay v. Principi, 16 Vet.App. 529, 534 (2002).
    55 Ramsey v. Nicholson, 20 Vet.App. 16, 38 (2006); see Tobler v. Derwinski, 2 Vet.App. 8, 14 (1991) (noting
    that the Court’s decisions “are to be followed by . . . the Board”); see Allegheny Gen. Hosp. v. NLRB, 608 F.2d 965,
    969-70 (3d Cir. 1979) (“[T]he rule of the case creates a binding legal precept.”); see also Brown v. West, 203 F.3d
    1378, 1381 (Fed. Cir. 2000) (“[I]t is improper for a lower tribunal to review the decision of a higher tribunal.”).
    56 Appella nt’s Br. a t 21-23; see 38 C.F.R. §§ 3.361(d)(1)(ii), 17.32 (2021).
    57 See Secretary’s Br. a t 16-18, Appella nt’s Br. a t 21-23.
    58 See R. at 5-12.
    9
    implicit factual determination.59 But this scenario stretches that reasoning too far. In Miller v.
    Wilkie,60 the Court found that it could review the Board’s implicit determination about a veteran’s
    credibility when the record contained lay reports and the Board did not find those reports
    incredible.61 In reaching that decision, the Court stated that it would conclude that the Board made
    an implicit determination because “[i]f something as fundamental as the veteran’s credibility were
    an issue, we would expect the Board to say something.”62 Here though, whether appellant gave
    informed consent for surgery was not “at issue” when the Board made its factual determinations.
    The Board was clear that it found no additional disability, and it reviewed the evidence and made
    factual findings to that end.63
    To be sure, the Board noted that the September 2010 C&P opinion discussed consent, but
    nothing shows that the Board probed any of the other medical evidence on that question. 64 What’s
    more, as the parties have noted, the issue of consent in a section 1151 claim is complex because,
    even where a veteran does not consent to treatment, VA may provide care in emergency
    situations. 65 There is no indication that the Board considered whether appellant consented to
    surgery or whether the surgery was emergent, so the Court cannot conclude that the Board made
    implicit determinations on those questions. Thus, remand is necessary for the Board to weigh the
    evidence and consider in the first instance whether appellant consented to surgery or whether the
    surgery was emergent.
    Still, the Court is mindful that appellant filed his section 1151 claim in May 2010, that he
    appealed his claim to the Board in February 2013, and that the Board remanded the claim three
    times before issuing an inadequate decision. The Court also notes that the record contains ample
    medical and lay evidence. So the Court remands with words of caution and a reminder to the Board
    of its duties and responsibilities on remand.
    59 Appella nt’s Br. a t 22.
    60 Miller v. Wilkie, 32 Vet.App. 249 (2020).
    61 Id. at 260.
    62 Id.
    63 See R. at 11 (finding compensation “not warranted a s the probative evidence of record shows no findings
    of an additional disa bility”).
    64 R. at 7.
    65 See 38 C.F.R. § 17.32(c)(7).
    10
    Often, when the Court remands a claim to the Board and a medical question is at issue, the
    Board reflexively pursues more medical evidence. But the Board has a legal duty to adjudicate a
    claim when the record contains sufficient evidence.66 Only when “medical expertise is needed for
    equitable disposition of an appeal” may the Board seek another medical opinion. 67 Otherwise, the
    Board must consider and weigh the evidence.68 And when there is an approximate balance of
    positive and negative evidence, the law requires that the Board will give the benefit of the doubt
    to the claimant and resolve the claim in his or her favor.69
    Although the need for a medical opinion and the type of opinion are left to the discretion
    of the Board,70 this appears to be the exact type of claim where an IME opinion “is warranted by
    the medical complexity or controversy involved. . . .” 71 The Board acknowledged as much in
    October 2017 when requesting what would eventually become the October 2018 IME opinion.72
    But confusingly, when the IME stated that he could not locate certain records, the Board did not
    send those records to the IME or request an addendum opinion. Instead, the Board appeared to
    change its mind on the need for an expert and returned to ordering C&P opinions. Though the
    Court cannot direct the Board’s development, it may remind the Board of the potential benefits of
    an IME opinion in a complex medical case in which at least three C&P opinions have been
    inadequate.
    Here, the Board must weigh the evidence and determine whether there is at least an
    approximate balance of positive and negative evidence on the issue of whether appellant gave
    informed consent or whether the surgery was emergent. If so, the Board must then resolve
    reasonable doubt in appellant’s favor. 73 If the Board determines that it needs more medical
    expertise, the Board should clearly explain why, bearing in mind the fact that it may not undertake
    development just to deny a claim.74 To be clear, the Court takes no position on the probative value
    66 38 C.F.R. § 3.304(c) (2021).
    67 38 C.F.R. § 20.906(a) (2021).
    68 Buchanan, 451 F.3d at 1336.
    69 38 U.S.C. § 5107(b); see also Buchanan, 451 F.3d at 1336.
    70 Id.
    71 38 C.F.R. §20.906(d); see Perry v. Brown, 9 Vet.App. 2, 6 (1996).
    72 R. at 354-60.
    73 See 38 U.S.C. § 5107(b).
    74 See Mariano v. Principi, 17 Vet.App. 305, 312 (2003).
    11
    of the evidence or the propriety of a grant or denial, as those are issues beyond its jurisdiction
    here.75 The Court merely reminds the Board of its well-established legal duties.
  3. Degree of Care Expected of a Reasonable Health Care Provider
    Appellant also contends that VA care proximately caused his additional disability because
    VA health care providers failed to timely diagnose and properly treat his medical condition,
    leading to an unnecessary bypass surgery.76 But again, because the Board stopped its analysis at
    the threshold question of whether appellant suffered additional disability, it did not reach this
    argument. So as with appellant’s argument about informed consent, the Board made no factual
    findings for the Court to review, much less reverse.77 Because the Court reverses the Board’s
    clearly erroneous finding that appellant suffered no additional disability from surgery, on remand,
    the Board must address appellant’s argument that VA health care providers did not exercise a
    reasonable degree of care.78
    The Court also echoes its reminder that the Board must first determine whether it can
    adjudicate appellant’s claim on the existing record before seeking more medical evidence.79 And
    should the Board determine that it needs another medical opinion, the Court again notes the likely
    value of an IME opinion in this medically complex case.
  4. Summary of Compensation Under 38 U.S.C. § 1151
    The Court reverses the Board’s finding that appellant suffered no additional disability
    because of his bypass surgery and remands for the Board to discuss the scope of that additional
    disability consistent with this decision. The Court remands the questions of whether appellant gave
    informed consent for surgery, whether that surgery was emergent, or whether VA health care
    providers exercised a reasonable degree of care. But the Court reminds the Board that it must
    adjudicate those questions on the existing record, if possible, and that it must act consistent with
    this Court’s decision.
    75 See Deloach, 704 F.3d at 1380.
    76 See Appella nt’s Br. a t 19-21.
    77 See Andrews, 34 Vet.App. at 222 (rea ffirming that the Court reviews the Board’s factual determinations
    considering the record but does not engage in factfinding itself).
    78 Appellant is free to submit additional argument and evidence on this issue if he chooses. See Kay, 16
    Vet.App. at 534.
    79 38 C.F.R. § 3.304(c).
    12
    B. Left Arm Disability
    Appellant contends that his ischemic neuropathy of the upper left extremity resulted from
    in-service frostbite.80 He argues that the Board erred in denying service connection because it
    failed to obtain all of his service treatment records (STRs) and failed to afford him a related C&P
    exam.81 The Secretary concedes that the Board erred in failing to “discuss[] whether any further
    development was needed to obtain any outstanding [STRs]” and by “failing to consider relevant
    evidence of record.”82 Stated another way, VA concedes error but believes that error is confined
    to the Board’s statement of reasons or bases and that a narrow remand on those grounds is a
    sufficient remedy.
    The Court agrees that the Board erred by failing to consider materially favorable evidence
    of record. Importantly, the Board determined that “no medical professional has suggested” that
    appellant’s upper left extremity neuropathy was related to his military service.83 But on March 10,
    2009, a VA physician opined that the tingling in appellant’s hand could be related to frostbite that
    appellant reported in service.84 Thus, the Court will remand for the Board to address the materially
    favorable evidence it overlooked. 85 And because the Board did not perform the necessary
    factfinding on whether VA satisfied its duty to assist, remand is appropriate on that basis as well.
  5. Records
    VA fails to comply with its duty to assist in obtaining appellant’s outstanding STRs if those
    records were reasonably identified and relevant to the claim on appeal. 86 Whether appellant’s
    outstanding STRs were reasonably identified or relevant are factual findings the Court reviews for
    80 Appella nt’s Br. a t 23-25. Appellant claims entitlement to compensation for a left upper extremity disability
    as part of his section 1151 claim and on a direct basis.
    81 Id.
    82 Secreta ry’s Br. a t 18-19.
    83 R. at 326.
    84 R. at 3186.
    85 See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).
    86 38 C.F.R. § 3.159(c)(3) (2021); Jones v. Wilkie, 918 F.3d 922, 927 (Fed. Cir. 2019).
    13
    clear error.87 But the Court cannot review a factual finding that the Board does not make. 88 And
    the Board must weigh the evidence in the first instance.89
    The Board did not explain its implicit finding that VA satisfied its duty to assist when
    adjudicating appellant’s left arm disability claim.90 Thus, it did not address appellant’s outstanding
    STRs and did not make any factual findings on whether those STRs were reasonably identified or
    relevant to the claim on appeal. Appellant urges the Court to reverse the Board’s implicit finding
    that the duty to assist was satisfied, but that would require the Court to engage in factfinding and
    weighing evidence in the first instance, and such actions exceed the Court’s jurisdiction.91 Thus,
    because the Board’s decision frustrates the Court’s review, remand is appropriate for the Board to
    adequately explain whether VA complied with its duty to assist.92
  6. Compensation and Pension Exam
    Under the duty to assist, the Secretary must provide a medical exam or opinion when there
    is “(1) competent evidence of a current disability or persistent or recurrent symptoms of a
    disability,” “(2) evidence establishing that an event, injury, or disease occurred in service or
    establishing certain diseases manifesting during an applicable presumptive period” for which the
    veteran qualifies, (3) “an indication that the disability or persistent or recurrent symptoms of the
    disability may be associated with the veteran’s service or with another service-connected
    disability,” and (4) insufficient competent evidence on file for the Secretary to decide the claim. 93
    These are sometimes called the McLendon factors. When deciding whether an examination is
    necessary, the Secretary must consider the record, “taking into consideration all information and
    lay or medical evidence (including statements of the claimant). ”94 The Court may overturn the
    Board’s determination that a medical examination is unnecessary only if it is “arbitrary, capricious,
    87 Van Valkenburg v. Shinseki, 23 Vet.App. 113, 120 (2009).
    88 Hensley v. West, 212 F.3d 1255, 1263 (Fed. Cir. 2000) (“[A]ppellate tribunals are not appropriate fora for
    initial fact finding.”).
    89 Deloach, 704 F.3d at 1380.
    90 See R. at 325-26.
    91 See Deloach, 704 F.3d at 1380; Buchanan, 451 F.3d at 1336.
    92 See Hensley, 212 F.3d at 1263 (finding that when a court of appeals reviews a lower court’s decision, it
    may remand the case if the previous adjudicator failed to make findings of fact essential to the decision).
    93 McLendon v. Nicholson, 20 Vet.App. 79, 81 (2006); see 38 U.S.C. § 5103A(d)(2); 38 C.F.R.
    § 3.159(c)(4)(i).
    94 38 U.S.C. § 5103A(d)(2).
    14
    an abuse of discretion, or otherwise not in accordance with law.”95 But the Court reviews the
    Board’s underlying factual determinations under the “clearly erroneous” standard.96 When the
    Board has failed to provide an adequate statement of reasons or bases explaining its
    determinations, then remand is appropriate.97
    First, the Court will address the Secretary’s request that it not consider appellant’s
    argument about a C&P exam because his counsel did not raise that issue below. 98 It is true that this
    Court may decline to hear legal arguments raised here for the first time.99 But the Court finds that
    it would be inappropriate to do so here. VA has an affirmative duty to address issues either raised
    by appellant or reasonably raised by the record.100 Similarly, VA has a duty to provide a C&P
    exam when the record contains evidence that satisfies the McLendon factors.101 The law does not
    require appellant to request an exam at any stage of an appeal, and to refuse to hear appellant’s
    argument would essentially impose that requirement.102 To support his argument, the Secretary
    cites the United States Court of Appeals for the Federal Circuit’s (Federal Circuit’s) decision in
    Dickens v. McDonald,103 but that case is factually distinct. In Dickens the Federal Circuit affirmed
    this Court’s refusal to hear a duty to assist argument in a claim that had been decided by the Board,
    appealed to this Court, remanded to the Board, decided by the Board again, and finally appealed
    to the Court once more.104 That unique procedural history is absent here, where the Board decided
    appellant’s claim, and it is now on appeal before this Court for the first time.105 So the Court will
    consider appellant’s argument.
    95 38 U.S.C. § 7261(a)(3)(A); McLendon, 20 Vet.App. at 81; see also Marrero v. Gober, 14 Vet.App. 80, 81
    (2000).
    96 McLendon, 20 Vet.App. at 81-85.
    97 See Tucker, 11 Vet.App at 374.
    98 See Secretary’s Br. a t 20.
    99 See Maggitt v. West, 202 F.3d 1370, 1377 (Fed. Cir. 2000).
    100 See Robinson v. Peake, 21 Vet.App. 545, 552-56 (2008), aff’d sub nom. Robinson v. Shinseki, 557 F.3d
    1355 (Fed. Cir. 2009).
    101 McLendon, 20 Vet.App. at 81.
    102 See, e.g., Shade v. Shinseki, 24 Vet.App. 110, 117 (2010) (cautioning that VA may not impose a
    requirement beyond that required by the statute).
    103 Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016).
    104 Id. at 1361.
    105 See R. at 322, 484-85.
    15
    Here, the Board appears to have attempted to justify denying appellant a C&P exam
    without discussing the McLendon factors and their related standards of proof. 106 Because the
    Board failed to adequately explain why appellant was not entitled to a C&P exam, the Cou rt’s
    review of that determination is frustrated. So the Court will remand for the Board to adequately
    explain whether appellant is entitled to a C&P exam.107
    C. PTSD
    Appellant contends that the Board erred in denying his direct service connection claim for
    PTSD by failing to adequately explain why it rejected materially favorable evidence and by failing
    to obtain relevant outstanding STRs. 108 The Secretary concedes that the Board “overlooked
    relevant VA medical records . . .” but maintains that the Board did not err in failing to obtain
    outstanding STRs because those STRs are irrelevant to the Board’s basis for denial. 109
    Appellant first argues that the Board erred in discounting a favorable January 2012 PTSD
    diagnosis because it hinged on appellant’s reported history and because it did not conform to the
    DSM-5.110 This Court has held that the DSM-5 applies to all appeals certified to the Board after
    August 4, 2014.111 Appellant did not file his substantive appeal here until December 2017.112 Thus,
    the Board did not err in discounting appellant’s January 2012 PTSD diagnosis because it did not
    conform to DSM-5 criteria.113 But as the Secretary concedes, the Board did err in failing to consider
    other VA treatment records suggesting diagnosis and treatment for PTSD, most notably an April
    22, 2015, psychiatry note showing a “DSM-V diagnosis” of PTSD.114 Because the Board failed to
    106 R. at 325-26. The Court infers that the Board intended to explicitly deny appellant a C&P exam because
    the Board provided a curious citation to Paralyzed Veterans of Am. v. Sec’y of Veterans Affs., stating that “a medical
    examination conducted in connection with claim development could not aid in substantiating a claim when the record
    does not already contain evidence of an in-service event, injury, or disease.” 345 F.3d 1334, 1355-57 (Fed. Cir. 2003).
    107 See Tucker, 11 Vet.App. at 374.
    108 Appella nt’s Br. a t 25-27.
    109 Secreta ry’s Br. a t 21-22. The Secretary also appears to defend the Board’s decision not to afford a ppellant
    a C&P exam, but as appellant notes, he has not contested that decision. Id; Appella nt’s Reply Br. a t 13.
    110 Appella nt’s Br. at 25; see R. at 334.
    111 Golden v. Shinseki, 29 Vet.App. 221, 225 (2018).
    112 R. at 485.
    113 38 C.F.R. §§ 4.125(a), 4.130 (2021); see Martinez-Bodon v. Wilkie, 32 Vet.App. 393, 401 (2020).
    114 See R. at 660-62 (February 19, 2015, mental health note); R. at 983 (October 1, 2013, domiciliary note);
    R. at 1319 (February 20, 2017, emergency department note); R. at 1545 (October 6, 2015, SATP note); R. at 1556
    (September 28, 2015, mental health outpatient group counseling note); R. at 1710-12 (April 22, 2015, psychiatry note).
    16
    explain why it rejected this materially favorable evidence, the Court will remand for the Board to
    address that evidence in the first instance.115
    The Court next turns to appellant’s second argument—that the Board failed to obtain
    outstanding STRs.116 The Board denied appellant’s claim because of the lack of a current PTSD
    diagnosis and the lack of a corroborated stressor.117 But the lack of a current diagnosis alone is a
    sufficient basis for the Board to deny a service connection claim.118 So the Court cannot find that
    the Board’s failure to obtain STRs was prejudicial when those STRs would not address the Board’s
    finding that appellant lacks a current PTSD diagnosis.119
    That said, if on remand the Board reviews the materially favorable evidence it had
    overlooked and finds that appellant does have a PTSD diagnosis, it must then address whether
    appellant has a qualifying stressor.120 If that situation arises, the Board must address appellant’s
    outstanding STRs and determine whether the Board satisfied its duty to assist or whether it must
    obtain those STRs before readjudicating appellant’s claim.121
    Finally, appellant also asserted that the Board erred when it found that appellant did not
    appeal the April 2011 rating decision that denied his claim for an acquired psychiatric disorder, to
    include adjustment disorder with likely alcohol abuse, as secondary to his section 1151 claim.122
    Appellant maintains that the Board failed to sympathetically construe his self -represented June
    2011 NOD that stated he was “not the same as [he] was” before surgery and that he “began to
    drink more often after.”123 The Court agrees that the Board did not sufficiently explain why the
    April 2011 rating decision became final because the Board did not discuss whether appellant’s
    115 Caluza, 7 Vet.App. at 506.
    116 Appella nt’s Br. a t 25-27.
    117 R. a t 336 (“As none of [appella nt’s] diagnoses of PTSD were based upon a verified in-service stressor,
    the claim of service connection for PTSD must be denied.”).
    118 See 38 U.S.C. §§ 1110, 1131.
    119 See 38 U.S.C. § 7261(b) (requiring the Court to “take due account of the rule of prejudicial error”); see
    also Shinseki v. Sanders, 556 U.S. 396, 406 (2009) (noting that the statute requiring this Court to “‘take due account
    of the rule of prejudicial error,’ requires the Veterans Court to apply the same kind of ‘harmless error’ rule that courts
    ordinarily apply in civil cases”).
    120 See 38 C.F.R. § 3.304(f).
    121 See 38 C.F.R. § 3.159(c)(3); see also Quirin v. Shinseki, 22 Vet.App. 390, 396 (2009) (holding that the
    Court may address the appellant’s other arguments to provide guidance on remand).
    122 Appella nt’s Br. a t 19; see R. at 333, 3355-62.
    123 Appella nt’s Br. a t 19 (citing R. a t 3332); see Comer v. Peake, 552 F.3d 1362, 1368 (Fed. Cir. 2009).
    17
    timely filed NOD, read sympathetically, appealed his claimed acquired psychiatric disorder.124
    That error prejudiced appellant because if the Board had determined that he did appeal the April
    2011decision, he might have qualified for an earlier effective date for any potential grant of service
    connection for an acquired psychiatric disorder. On remand, the Board must read appellant’s June
    2011 NOD sympathetically and address whether the April 2011 rating decision on appellant’s
    claim for an acquired psychiatric disorder, as secondary to his section 1151 claim, became final.
    D. Reopening the Skin Condition Claim
    VA will reopen a denied claim if the veteran presents new and material evidence.125
    Deciding whether evidence is “new” differs from deciding whether the evidence is “material.”126
    Evidence is “new” if it was not in the record before. What’s more, new evidence cannot be
    redundant or cumulative of evidence that was already in the record “at the time of the last prior
    final denial of the claim.”127 Evidence is “material” if, on its own or with other evidence, it “relates
    to an unestablished fact necessary” to prove the claim.128 New and material evidence cannot be the
    same evidence that was before VA previously and must raise “a reasonable possibility of
    substantiating the claim.”129 Like other findings of fact, the Court reviews the Board’s finding that
    appellant has not submitted new and material evidence under the “clearly erroneous” standard.130
    A factual finding is “‘clearly erroneous’ when although there is evidence to support it, the
    reviewing court on the entire evidence is left with the definite and firm conviction that a mistake
    has been committed.”131 As discussed above, where the Board has incorrectly applied the law,
    124 See Gilbert, 1 Vet.App. at 57; see also See Comer, 552 F.3d at 1368.
    125 38 U.S.C. § 5108 (2012 & Supp. IV 2017); 38 C.F.R. § 3.156(a) (2021). Since the passage of the Veterans
    Appeals Improvement and Modernization Act of 2017, VA no longer reopens claims based on “new and material
    evidence.” Pub. L. 115-55, 131 Stat. 1105 (codified as amended in scattered sections of 38 U.S.C.); see 38 C.F.R. §
    3.2400 (2021) (explaining that claims VA decided before the effective date of the Act are “legacy appeals” to be
    analyzed under VA’s traditional process, and claims after that date are to be adjudicated under a modernized appeal
    system); 38 C.F.R. § 19.2(a) (2021) (stating the effective date of the Act is February 19, 2019). Instead, claimants can
    file supplemental claims based on “new and relevant evidence.” 38 U.S.C. § 5108(a) (2018 & Supp. II 2021); 38
    C.F.R. § 3.156(d). VA adjudicated appellant’s claim under the legacy appeals system, and therefore the “new and
    material evidence” standard applies here.
    126 38 C.F.R. § 3.156(a).
    127 Id.
    128 Id.
    129 Id.; Shade, 24 Vet.App. at 117-18.
    130 See King v. Shinseki, 23 Vet.App. 464, 467 (2010); see also 38 U.S.C. § 7261(a)(4).
    131 Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992) (quoting U.S. Gypsum Co., 333 U.S. at 395).
    18
    failed to provide an adequate statement of reasons or bases for its determinations, or where the
    record is otherwise inadequate, remand is appropriate.132 But reversal is the appropriate remedy
    when the Board has conducted the necessary fact-finding and the only permissible view of the
    evidence is contrary to the Board’s decision.133
    Appellant submitted a service connection claim for a skin condition in 1988.134 The RO
    denied appellant’s claim in an August 1994 rating decision stating that “[t]here is no record of any
    complaint of or treatment for any skin disease in the available [STRs]” and concluding that
    “[s]ervice connection is denied for the claimed skin condition as none is shown by the evidence of
    record.” 135 Appellant did not appeal that decision, and it became final. In September 2001,
    appellant asked VA to “reevaluate” his “skin condition of both arms.” 136 VA construed appellant’s
    submission as a request to reopen based on new and material evidence, and it denied that claim in
    September 2003. 137 In the decision on appeal, the Board acknowledged that newly submitted
    medical evidence showed a diagnosis of neurodermatitis. 138 But the Board declined to reopen
    appellant’s claim because appellant “has not provided evidence in support of nexus between the
    diagnosed skin disability and his military service, which was not previously considered . . . .” 139
    Unsurprisingly, the parties agree that the Board erred in finding appellant did not submit
    new and material evidence but disagree on the appropriate remedy. The Secretary argues that
    remand is necessary for the Board to “reconcile” the evidence that appellant has a current skin
    disability with the basis of the RO’s 1994 final denial.140 Appellant maintains that reversal is
    appropriate because the Board has addressed the relevant evidence but misapplied the law and
    reached a clearly erroneous conclusion.141 The Court agrees with appellant and finds that the
    Board’s decision was clearly erroneous.
    132 See Tucker, 11 Vet. App. at 374.
    133 See Johnson, 9 Vet.App. at 10.
    134 R. at 4706.
    135 R. at 4663.
    136 R. at 4639.
    137 R. at 4560-62.
    138 R. at 331-32.
    139 R. at 332.
    140 Secreta ry’s Br. a t 22.
    141 Appella nt’s Br. a t 27-29.
    19
    The Board first discussed medical evidence from before the 2003 refusal to reopen the
    claim, noting that a VA exam in July 1988 showed a skin rash and August 2001 VA treatment
    records showed a reported arm rash that began about 12 years before.142 The Board also cited a
    November 2001 VA treatment record documenting an arm rash that began in 1974 and a diagnosis
    of atopic dermatitis.143 The Board then addressed appellant’s newly associated medical records
    and noted a December 2014 diagnosis of neurodermatitis.144 The Board then concluded that the
    newly associated evidence was “cumulative” and “does not tend to establish any point not
    previously demonstrated.”145
    Where the Board found that appellant’s diagnosis is “cumulative” and thus not “new,” it
    cited no evidence that any prior medical record reflected a diagnosis of neurodermatitis. The
    Secretary similarly cites no evidence, nor can the Court find any such evidence in the record. The
    Board may have determined that appellant’s neurodermatitis is the same as his previously
    diagnosed atopic dermatitis,146 but even if the Court charitably recognized that reasoning, it would
    be an impermissible medical judgment and would not save the Board’s decision. 147
    The Board’s finding that appellant’s new diagnosis is not “material” is even more flawed.
    Evidence is generally material when it “relates to an unestablished fact necessary to prove the
    claim,”148 and whether evidence is material “depends on the basis on which the prior claim was
    denied.”149 VA finally denied appellant’s claim in 1994 in part—if not in whole—because he did
    not have a current diagnosis of a skin condition.150 The Board only offered a conclusory statement
    142 R. at 331, 4603, 4713-14.
    143 R. at 331; 4601.
    144 R. at 332; 1589-90.
    145 R. at 333.
    146 See R. at 4601. But see R. at 1589-90.
    147 See Colvin v. Derwinski, 1 Vet.App. 171, 172 (1991) (finding that the Board is prohibited from
    “provid[ing] [its] own medical judgment in the guise of a Board opinion”), overruled on other grounds by Hodge v.
    West, 155 F.3d 1356 (Fed. Cir. 1998).
    148 38 C.F.R. § 3.156(a).
    149 Evans v. Brown, 9 Vet.App. 273 (1996) (holding that evidence is material if it is relevant to and probative
    of an issue that was a specific basis for the denial of the last final disallowance), overruled in part on other grounds
    by Hodge v. West, 155 F.3d. 1356 (Fed. Cir. 1998); see also Anglin v. West, 203 F.3d. 1343, 1347 (Fed. Cir. 2000)
    (stating that Hodge left intact the requirement that the evidence must be relevant to and probative of an issue that was
    a specified basis for the last final denial).
    150 R. at 4663.
    20
    that newly associated evidence was not material, and it did not explain why a new diagnosis of a
    skin condition did not relate to a final denial that depended on the lack of diagnosis of a skin
    condition.151
    Finally, where the Board required appellant to provide nexus evidence, it either misapplied
    the law or misunderstood the facts.152 The precise reason is irrelevant, though, because appellant
    did not need to provide nexus evidence for the newly associated evidence to be new and material.
    The RO finally denied appellant’s claim in 1994 , at least in part, because he had no diagnosis.153
    Whether that was the only basis for the 1994 denial does not matter because the new and material
    evidence standard does not require “new and material evidence as to each previously unproven
    element of a claim.” 154 So whether the Board misunderstood the basis for the 1994 denial or
    required too-high a standard is ultimately irrelevant here because appellant did not need to submit
    nexus evidence in either event.155
    Stated simply, the only permissible view of the record is that the newly associated evidence
    is new and material. At a minimum, there is no indication that appellant was ever diagnosed with
    neurodermatitis in any evidence before the Agency at the time of the final denial in 1994 or the
    denial of reopening in 2003. And there is no argument to be made—nor has the Secretary made
    one—that a diagnosis of a skin condition could not relate to a prior final denial based on the lack
    of diagnosis of a skin condition. Because the Board conducted the requisite factfinding, weighed
    the evidence, and reached a decision, and because that decision is clearly erroneous, the Court will
    reverse the Board’s decision.156 The Court finds that the only acceptable view of the evidence is
    that appellant has submitted new and material evidence and that his service connection claim for
    a skin condition must be reopened.
    151 R. at 333.
    152 R. at 332.
    153 See R. at 4663.
    154 Shade, 24 Vet.App. at 121.
    155 The Court notes that the Board also appears to have overlooked potential nexus evidence. A March 5,
    2014, primary care outpatient note discussing a ppellant’s skin condition stated that he had “minor scarring from [a]
    previous outbreak episode in the 1970s.” R. a t 869-70. Whether this evidence can prove a nexus to service or can
    trigger VA’s duty to provide a medical exam is something the Board should consider on remand.
    156 See Johnson, 9 Vet.App. at 10.
    21
    Appellant also argued that he submitted evidence within 1 year of VA’s 2003 refusal to
    reopen the claim and that VA failed to address that evidence and determine whether it was new
    and material.157 This argument relates to appellant’s skin condition claim, but it is not an argument
    that the Board erred in its analysis of whether appellant submitted new and material evidence.
    Instead, appellant argues that the Board erred by providing inadequate reasons or bases for
    concluding that the September 2003 rating decision ever became final. Under the law in effect at
    that time, when a claimant submitted new and material evidence before the expiration of a claim’s
    appeal period, that evidence was considered as having been filed in connection with the claim.158
    Thus, at that time, VA must have considered whether the evidence was new and material and
    provided a determination “that [was] directly responsive” to the new submission, and until VA did
    so, the claim at issue remained open.159 Here, VA refused to reopen appellant’s skin condition
    claim in September 2003. 160 In January and February 2004, appellant sent statements and
    photographs to VA “as part of [his] complaint for being denied service -connected disability
    payment for [his] skin problems.”161
    Though appellant fully briefed this contention, the Secretary failed to respond to it. Thus,
    the Court accepts the Secretary’s concession that the Board erred by failing to address whether the
    September 2003 rating decision ever became final.162 More specifically, the Court agrees with
    appellant that the Board erred by not explaining why the September 2003 rating decision became
    final when appellant submitted evidence during that decision’s appeal period. On remand, the
    Board must discuss whether VA ever provided a “directly responsive determination” to the
    evidence submitted by appellant in January and February 2004 and whether the September 2003
    rating decision ever became final.163
    157 Appella nt’s Br. a t 28.
    158 38 C.F.R. § 3.156(b) (2003).
    159 Beraud v. McDonald, 799 F.3d 1402, 1405-07 (Fed. Cir. 2014).
    160 R. at 4560.
    161 R. at 4513-15, 4530-46, 4549-50.
    162 See MacWhorter, 2 Vet.App. at 136.
    163 See Beraud, 799 F.3d at 1405-07.
    22
    II. CONCLUSION
    For these reasons, the Board’s May 21, 2020, decision denying compensation under
    38 U.S.C. § 1151 is REVERSED in part, and the matter is REMANDED for further proceedings.
    Those parts of the Board’s March 19, 2019, decision denying service connection for is chemic
    neuropathy of the upper left extremity and PTSD are SET ASIDE, and the matters are
    REMANDED for further development and readjudication. That part of the Board’s March 19,
    2019, decision refusing to reopen appellant’s service connection claim for a skin disability based
    on new and material evidence is REVERSED, and the matter is REMANDED for further
    proceedings.
    DATED: March 18, 2022
    Copies to:
    Amy B. Kretkowski, Esq.
    VA General Counsel (027)

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