Veteranclaims’s Blog

May 1, 2022

Single Judge Application; missing records; service treatment records; VA ADJUDICATION PROCEDURES MANUAL (M21-1), III.ii.2.C.1.a through III.ii.2.C.1.c (noting that Army clinical records are rarely included in the STRs, are retired to the National Personnel Records Center after one calendar year after the end of the calendar year during which the service member received treatment, and a separate request must be made for records of inpatient hospital treatment by the name of the facility and dates the service member was treated);

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 21-2099
MARTY E. SNIDER, 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: Self-represented veteran Marty E. Snider appeals a January 11,
2021, Board of Veterans’ Appeals (Board) decision denying entitlement to service connection for
cervical spine degenerative disc disease, traumatic brain injury (TBI), and special monthly
compensation (SMC) based on the need for regular aid and attendance or due to housebound status.
Record (R.) at 5-12. For the reasons that follow, the Court will set aside the January 2021 Board
decision and remand the matter for further development, if necessary, and readjudication
consistent with this decision.
I. FACTS
Mr. Snider served on active duty in the U.S. Army from June to November 1989. R. at 2649 Service treatment records (STRs) reflect that, in July 1989, he was hospitalized for three
days at Fort Jackson for pharyngitis, upper respiratory infection, and viral syndrome. R. at 2584-2650.

Following active service, he joined the Army National Guard and had April 1989 enlistment
and March 1993 annual examinations, each reflecting normal head, face, neck, scalp, nose, ears,
eyes, and spine. R. at 2807, 2813. In his report of medical history at these examinations, he denied
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frequent or severe headaches; dizziness; fainting spells; eye, ear, nose, or throat problems; head
injury; and arthritis. R. at 2815, 2818.
In December 2011, Mr. Snider filed a claim for service connection for head and neck injury,
reporting a brain injury during service requiring 3 days’ hospitalization at Fort Jackson in July
1989 for a high fever. R. at 2783-84, 2802. In February 2013, the RO denied service connection
for a neck disorder and TBI, finding no diagnosis of either condition, and entitlement to SMC,
finding no service-connected conditions. R. at 2441-44. Mr. Snider disagreed with that decision,
R. at 2427, and, following an October 2014 Statement of the Case, R. at 2009-36, he perfected his
appeal, R. at 1992.
In December 2013, the Social Security Administration (SSA) awarded disability benefits
as of September 2011 based on TBI, cognitive disorder, major depressive disorder with psychotic
behavior, generalized anxiety disorder, chronic headaches, left shoulder degenerative joint disease,
cervical and thoracic degenerative disc disease, diabetes, and polyneuropathy. R. at 2050-56. The
SSA records include November 2011 X-rays showing degenerative changes of the cervical spine
and a normal head CT scan. R. at 2343, 2345. The SSA records also reflect that Mr. Snider
consistently reported in-service TBI and neck injury to his healthcare providers, with headaches
and muscle spasm in his neck since that injury. R. at 2144, 2176, 2209, 2227, 2243, 2302, 2309,
2319, 2333, 2338. The SSA records further include assessments for TBI by Dr. Vale, Dr.
McDonald, and Dr. Amarakone. R. at 2169, 2259, 2273, 2283. The SSA records further indicate
that chronic headaches could reasonably be caused by cervical degenerative disc disease. R. at
2243.
At a July 2018 VA examination, the examiner noted that the SSA records showed cervical
degenerative disc changes, but because the STRs showed no neck or cervical injury, she offered a
negative linkage opinion. R. at 803, 811-12. The examiner found no diagnosis of TBI, based on
the lack of notation of TBI in the STRs. R. at 811-13. The examiner reviewed the available
medical records showing memory challenges, hallucinations, and diagnosis of neurocognitive
disorder, and concluded that the veteran was not a reliable historian. R. at 814. Yet, the examiner
found no complaint of memory, attention, concentration, or executive function impairment;
persistent orientation to time, place, and situation; normal consciousness; and no subjective
symptoms of mental, physical, or neurological conditions attributable to TBI. R. at 819-20.
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At a February 2019 Board hearing, Mr. Snider testified that his in-service head injury was
incurred during self-defense training in July 1989 at Fort Jackson, describing that he was hit under
the chin, lifting him up and knocking him unconscious. R. at 1903-06. He reported that he was
hospitalized for 3 days. R. at 1907. He additionally described an earlier head injury, without
treatment, recalling that he was accidentally hit in the back of the head with a pole another soldier
was carrying. R. at 1910. Mr. Snider further reported pain, headaches, and neck problems since
the in-service head injuries. R. at 1909, 1910-11, 1913-14, 1928. Mr. Snider finally testified that
he had unsuccessfully tried to obtain his in-service hospitalization records. R. at 1936. Following
the hearing, the Board remanded in May 2018 for a new examination. R. at 943-47.
At the resulting April 2019 examination, Mr. Snider described that he sustained a head and
neck injury during self-defense training and lost consciousness, with persistent memory problems
and neck pain since. R. at 605, 612. The examiner provided a negative linkage opinion for cervical
spine degenerative disc disease, noting that there is no documentation for neck injury or
degenerative disc disease in the STRs and explaining that these findings can be related to age alone
or prior trauma. R. at 628-29. The examiner found no complaint of memory, attention,
concentration, or executive function impairment; normal judgment; appropriate social interaction;
persistent orientation to time, place, and situation; normal consciousness; normal motor activity
and visual spatial orientation; and no subjective symptoms of mental, physical, or neurologic
conditions attributable to TBI. R. at 605-07. Like the July 2018 VA examiner, the April 2019
examiner found no diagnosis of TBI based on the lack of objective evidence of in-service TBI in
the STRs. R. at 604, 609, 628.
In the January 2021 decision on appeal, the Board noted the veteran’s July 1989
hospitalization for viral syndrome but found no in-service treatment for neck injury or TBI. R. at
8, 10. The Board found the VA examinations highly probative based on the examiners’ review of
the STRs showing no in-service neck condition and attributing currently diagnosed cervical
degenerative disc disease to the normal aging process. R. at 8-9. The Board found that
degenerative disc disease did not manifest until many years following service based on the lack of
clinical diagnosis in medical records. R. at 9-10. The Board similarly relied on the VA
examinations and STRs to find no diagnosis of TBI and denied service connection. R. at 10-11.
The Board noted the veteran’s lay statements as to in-service TBI but found the veteran not
4
competent to diagnose TBI. R. at 11. The Board finally denied SMC, noting the lack of serviceconnected
conditions. R. at 11-12. This appeal followed.
II. JURISDICTION AND STANDARD OF REVIEW
Mr. Snider’s appeal is timely, and the Court has jurisdiction to review the January 2021
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).
The Board’s determinations regarding service connection and whether the duty to assist has
been satisfied are findings of fact subject to the “clearly erroneous” standard of review set forth in
38 U.S.C. § 7261(a)(4). See Nolen v. Gober, 14 Vet.App. 183, 184 (2000); Davis v. West,
13 Vet.App. 178, 184 (1999). “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.’ ” Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992)
(quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)); accord Gilbert v.
Derwinski, 1 Vet.App. 49, 52 (1990).
The Board must support its material determinations of fact and law with adequate reasons
or bases. 38 U.S.C. § 7104(d)(1); Pederson v. McDonald, 27 Vet.App. 276, 286 (2015); Allday v.
Brown, 7 Vet.App. 517, 527 (1995); Gilbert, 1 Vet.App. at 56-57. To comply with this
requirement, the Board must analyze the credibility and probative value of evidence, account for
evidence it finds persuasive or unpersuasive, and provide reasons for its rejection of material
evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam,
78 F.3d 604 (Fed. Cir. 1996) (table). The Board must also address all potentially favorable
evidence. See Thompson v. Gober, 14 Vet.App. 187, 188 (2000) (per curiam order).
III. ANALYSIS
Liberally construing Mr. Snider’s informal brief, the Court finds he argues that, despite
what the records show, he has consistently reported his in-service head and cervical injuries and
the continuing symptoms of these injuries since service. Appellant’s Informal Brief (Br.) at 1; De
Perez v. Derwinski, 2 Vet.App. 85, 86 (1992). The Secretary concedes these points as to cervical
degenerative disc disease, specifying that the Board failed to provide adequate reasons or bases
for finding no evidence of continuity of cervical spine symptoms since service despite the veteran’s
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lay statements in this regard. Secretary’s Br. at 6-7. The Secretary additionally notes that the
Board’s finding that the April 2019 examiner attributed cervical spine arthritis to the normal aging
process is not plausibly based in the examination report, because the examination report reflects
only that arthritis can be related to age alone or prior trauma, not that it was in this case. Id. The
Secretary finally concedes that the issue of entitlement to SMC is inextricably intertwined with the
issue of service connection for a cervical spine disorder and, thus, must be remanded along with
the cervical spine claim. Id. at 7-8. However, the Secretary does not concede error with regard to
TBI and urges the Court to affirm the Board’s denial of service connection for that condition.
Secretary’s Br. at 5-6, 8-9.
The Court agrees with the parties that the Board provided inadequate reasons or bases for
denying service connection for cervical spine degenerative disc disease. Regarding continuity of
cervical spine symptoms, the veteran provided lay statements as to headaches, neck pain, and
muscle spasm since service in the SSA records. R. at 2144, 2176, 2209, 2227, 2243, 2302, 2309,
2319, 2333, 2338. He provided similar testimony at the February 2018 Board hearing. R. at 1909,
1910-11, 1913-14, 1928. Mr. Snider repeated these contentions at the April 2019 VA examination
and further described memory problems since service. R. at 605, 612. Because the Board did not
consider these statements of continuing cervical spine symptoms since service, the Court accepts
the Secretary’s concession that the Board provided inadequate reasons or bases for denying service
connection for that condition. R. at 8-10; see Caluza, 7 Vet.App. 506; Gilbert, 1 Vet.App. at 56-

The Court also accepts the Secretary’s concession that the Board misquoted the April 2019
VA examiner’s opinion regarding the etiology of the veteran’s cervical spine degenerative disc
disease. The examiner explained that these findings can be related to either age alone or prior
trauma, R. at 628, but the Board restated the examiner’s opinion as attributing cervical degenerative
disc disease to the normal aging process, R. at 9. That was a mischaracterization of the examiner’s
opinion.
The Court concludes that the Board made a similar reasons-or-bases error with respect to
the favorable evidence of continuity of TBI symptoms. Although the Secretary does not concede
this point with regard to TBI, Secretary’s Br. at 5-6, the Board did not address any of the foregoing
lay statements, which likewise support a finding of continuing TBI symptoms since service. Thus,
its reasons or bases for denying service connection for TBI are also inadequate and frustrate
judicial review. See Caluza, 7 Vet.App. 506; Gilbert, 1 Vet.App. at 56-57.
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Furthermore, the Board additionally erred to the extent that it found that the veteran does
not have clinically diagnosed TBI, R. at 11, without discussing the assessments of TBI made by
Drs. Vale, McDonald, and Amarakone in the SSA records, R. at 2169, 2259, 2273, 2283. The
Board’s discussion of the SSA records is limited to noting the veteran’s report of his subjective
history as suggestive of TBI diagnosis and provides no explanation for rejecting the potentially
favorable evidence of clinical diagnoses provided by qualified healthcare providers. R. at 10.
Although the Board is presumed to have considered all the evidence of record when making
its decision, see Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007), that presumption
does not relieve the Board of its independent obligation to address the potentially favorable,
material evidence of record and to provide the reasons or bases for its weighing of that evidence,
see Caluza, 7 Vet.App. at 506. The Board’s failure to discuss the potentially favorable TBI
assessments in the SSA records further diminished the adequacy of its reasons or bases for denying
service connection for TBI. See Thompson, 14 Vet.App. at 188 (noting that the Board must provide
an adequate statement of reasons or bases “for its rejection of any material evidence favorable to
the claimant”); see also Allday, 7 Vet.App. at 527.
Moreover, the veteran argues that records are missing and that VA therefore failed to
satisfy its duty to assist in developing his cervical spine and TBI claims. Appellant’s Informal Br.
at 1. The Secretary responds that this argument is underdeveloped for failure to identify the
missing records. Secretary’s Br. at 9. However, the veteran testified in February 2019 that he had
tried, and failed, to obtain the records of his in-service hospitalization. R. at 1936. Here, the Board
noted that the veteran was hospitalized, as he testified, but characterized his hospitalization as due
to viral syndrome rather than TBI or neck injury. R. at 8, 10. The Board based that characterization
on the post-discharge screening note of acute medical care, which listed viral syndrome as the
diagnosis requiring hospitalization; however, that record does not detail the veteran’s treatment
while he was hospitalized in July 1989. R. at 2585. The hospital records themselves do not appear
to be of record, and the Board did not address whether it separately sought to obtain those inpatient
clinical records. See VA ADJUDICATION PROCEDURES MANUAL (M21-1), III.ii.2.C.1.a through
III.ii.2.C.1.c (noting that Army clinical records are rarely included in the STRs, are retired to the
National Personnel Records Center after one calendar year after the end of the calendar year during
which the service member received treatment, and a separate request must be made for records of
inpatient hospital treatment by the name of the facility and dates the service member was treated)
.
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The Board’s failure to address this constitutes error necessitating remand. On remand, the Board
must address whether its duty to assist has been satisfied with respect to the inpatient
hospitalization records. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(2) (2021).
As to entitlement to SMC, the Court accepts the Secretary’s concession that that issue is
inextricably intertwined with service connection for cervical spine degenerative disc disease.
Secretary’s Br. at 7-8. The Board denied SMC, noting the lack of any service-connected
conditions, R. at 11-12, and the Board’s readjudication of the cervical spine claim on remand may
result in the award of service connection for cervical spine degenerative disc disease. Because
these claims are inextricably intertwined, they must be remanded together. See Smith v. Gober,
263 F.3d 1370, 1372 (Fed. Cir. 2001) (explaining that, “in the interests of judicial economy and
avoidance of piecemeal litigation,” claims that are “intimately connected” should be adjudicated
together); Henderson v. West, 12 Vet.App. 11, 20 (1998) (“[W]here a decision on one issue would
have a ‘significant impact upon another’, and that impact in turn ‘could render any review by this
Court of the decision on the [other issue] meaningless and a waste of judicial resources, the two
[issues] are inextricably intertwined.'” quoting Harris v. Derwinski, 1 Vet.App. 180, 183 (1991)).
Given this disposition, the Court need not address Mr. Snider’s remaining arguments,
which could not result in a remedy greater than remand. However, the Court will provide guidance
to the Board for readjudication of the claim upon remand. See Quirin v. Shinseki, 22 Vet.App.
390, 396 (2009) (holding that, to provide guidance to the Board, the Court may address an
appellant’s other arguments after determining that remand is warranted). Here, the SSA records
further indicate that chronic headaches could reasonably be caused by cervical spine degenerative
disc disease. R. at 2243. The Board is required to address all issues and theories that are
reasonably raised by the claimant or the evidence of record. If the Board awards service
connection for cervical spine degenerative disc disease on remand, it should address whether the
veteran is entitled to service connection for chronic headaches as secondary to that condition. See
Robinson v. Peake, 21 Vet.App. 545, 552 (2008), aff’d sub nom. Robinson v. Shinseki, 557 F.3d
1355 (Fed. Cir. 2009).
In addition, his TBI claim may encompass a claim for service connection for chronic
headaches, which the Board should consider on remand. See Clemons v. Shinseki, 23 Vet.App. 1,
5 (2009) (per curiam order) (holding that a claim for service connection may be expanded beyond
a veteran’s lay description of a disability to include any disability “that may reasonably be
8
encompassed by several factors including: the claimant’s description of the claim; the symptoms
the claimant describes; and the information the claimant submits or that the Secretary obtains in
support of the claim.”)
In accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam
order), Mr. Snider is free to submit any additional arguments and evidence on remand, including
any additional arguments he made to this Court; the Board must consider any such evidence or
argument submitted. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Court reminds the
Board that “[a] remand is meant to entail a critical examination of the justification for the [Board’s]
decision,” Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991), and must be performed in an
expeditious manner in accordance with 38 U.S.C. § 7112.
IV. CONCLUSION
Upon consideration of the foregoing, the January 11, 2021, Board decision denying service
connection for cervical spine degenerative disc disease, TBI, and SMC based on the need for
regular aid and attendance or housebound status is SET ASIDE, and those matters are
REMANDED for further development, if necessary, and readjudication consistent with this
decision.
DATED: April 29, 2022
Copies to:
Marty E. Snider
VA General Counsel (027)

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