Veteranclaims’s Blog

May 9, 2022

Single Judge Application; TDIU; the Board did not explain why it believed that an examination by a medical provider in a clinical setting would provide objective information concerning Mr. Steckler’s endurance over prolonged periods of time; Board apparently conflated regular disability rating principles with the criteria for TDIU. See R. at 11-12 (stating that TDIU requires “that the record reflect some factor which places the claimant in a different position than other Veterans with the same disability rating”; relying on 38 C.F.R. §§ 3.321(a), 4.1). Compare 38 C.F.R. § 4.10 (2020) (“The basis of disability evaluations is the ability of the body . . . to function under the ordinary conditions of daily life including employment.”), with Van Hoose v. Brown, 4 Vet.App. 361 (1993) (“The question [in a TDIU case] is whether the veteran is capable of performing the physical and mental acts required by employment.”). See generally 38 C.F.R. § 4.10 (2020) (“[I]t will be remembered that a person may be too disabled to engage in employment although he or she is up and about and fairly comfortable at home or upon limited activity.”);

Filed under: Uncategorized — veteranclaims @ 6:44 pm

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 21-1634
DAVID M. STECKLER, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before PIETSCH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
PIETSCH, Judge: David M. Steckler appeals through counsel a December 10, 2020, Board
of Veterans’ Appeals (Board) decision that denied entitlement to a total disability rating based on
individual unemployability (TDIU) due to service-connected disabilities, effective before June 28, 2013. This appeal is timely, and the Court has jurisdiction to review the Board’s decision under 38
U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate because the issue is of
“relative simplicity” and “the outcome is not reasonably debatable.” Frankel v. Derwinski,
1 Vet.App. 23, 25-26 (1990). For the reasons that follow, the Court will vacate the Board’s decision
and remand the matter for readjudication consistent with this decision.
I. FACTS
Mr. Steckler served on active duty in the U.S. Army from December 1967 to June 1971,
and from February 1973 to August 1989, including in Vietnam. R. at 788, 1389. He was awarded
decorations for his meritorious service, including the Bronze Star Medal, Vietnam Cross of
Gallantry with palm, Combat Infantryman Badge, and Vietnam Service Medal with 4 bronze
service stars. R. at 788.
2
In August 1989, Mr. Steckler filed a claim for service connection for multiple disabilities.
R. at 1617-18. In a November 1989 VA examination, he reported working part time as a diesel
mechanic. R. at 1591. In January 1990, the VA regional office (RO) granted service connection
for a left thumb disability, residuals of burns to the forearms, and bilateral hearing loss. R. at 1578,
1582-84.
In November 2002, Mr. Steckler filed a claim for back and right shoulder disabilities. R.
at 1569. In a January 2003 VA examination, he reported that he “works on state highways with the
State Highway Department as an equipment operator,” which entailed lifting, driving, and
operating equipment; he stated that by the end of each work day, he was unable to use his arms
because of shoulder pains. R. at 1549. In March 2003, the RO granted service connection for a
lumbar spine disability, left and right shoulder disabilities, and tinnitus. R. at 1538-41, 1543-47.
In a July 2007 VA orthopedic consult, Mr. Steckler reported that at work he “has to use his
right and left arm on levers or the steering wheel” when driving a snow plow in the winter, which
increased his shoulder symptoms; he also reported that “the rest of his job[,] which is shoveling or
breaking up cement in the summer time,” exacerbated his shoulder symptoms. R. at 1243.
On February 18, 2010, Mr. Steckler filed a claim for service connection for cardiovascular
disease and for increased ratings for service-connected disabilities. R. at 1500. In March 2010, Mr.
Steckler reported to a private provider that he was experiencing shortness of breath with
overexertion. R. at 1166.
Later in March 2010, Mr. Steckler underwent a VA examination. R. at 1480-88. He
reported that his shoulders “remain increasingly problematic” and that his symptoms increased
during cold exposure. R. at 1481. He also reported working full time as a section supervisor for
the North Dakota Department of Transportation, and that his bilateral shoulder condition inhibited
his ability to perform any activity requiring work overhead, prolonged driving, or lifting objects
away from his body. Id. And Mr. Steckler stated that his low back pain worsened with prolonged
sitting and prolonged standing, especially prolonged standing on concrete or hard surfaces; he
reported that his lumbosacral spine condition inhibited his ability to perform any activity requiring
prolonged sitting, prolonged standing, bending, or lifting. R. at 1481-82.
3
During the physical examination, the VA examiner noted that when the bilateral shoulders
were “exercised by performing elevation [and] extension” for 10 repetitions, there was evidence
of pain on use, with “[f]acial grimacing immediately with exercise [and] continuing throughout
the exercise.” R. at 1483-84, 1487. The VA examiner noted that when the lumbar spine “was
exercised . . . by performing flexion [and] extension” for 10 repetitions, there was evidence of pain
on use with “[f]acial grimacing immediately with exercise [and] continuing throughout the
exercise.” R. at 1484, 1487. And the VA examiner noted normal gait when Mr. Steckler ambulated
down the corridor before and after the examination. R. at 1482.
In November 2010, Mr. Steckler submitted an ischemic heart disease (IHD) disability
benefits questionnaire (DBQ) in which a private physician noted that Mr. Steckler reported that he
experienced dyspnea when he performed activities such as climbing stairs quickly, moderate
bicycling, sawing wood, and jogging at 6 miles per hour. R. at 1422-23. The private physician
opined that Mr. Steckler’s IHD did not impact his ability to work. R. at 1423.
In June 2011, Mr. Steckler left his job as full-time equipment operator with the North
Dakota Department of Transportation, reportedly because his heart disability prevented him from
working. R. at 673-74 (July 2018 VA Form 21-8940, reflecting that he had worked in this position
from March 1999 to June 2011). He reported that he had a high school education and no other
education or training before he became too disabled to work in June 2011. See id.; see also R. at
333-35 (Sept. 2019 VA Form 21-8940 reflecting his report that he had retired because he could no
longer do his job as a result of his physical condition).
In September 2011, Mr. Steckler brought a form with him to a VA examination; in it he
reported that he was an equipment operator with the Department of Transportation, and that he
had been absent from work 14 days in the last 12 months as a result of shoulder pain, back pain,
nausea, and breathing problems. R. at 1382. In October 2011, Mr. Steckler underwent “Bruce
protocol” exercise stress testing at VA; the indication for that testing was dyspnea on exertion; he
exercised for almost 8 minutes, during which he did not develop chest pain; the test was terminated
as result of a fatigue; and the VA physician found normal functional aerobic capacity and her
impression was that the stress test was negative. R. at 1216-17.1 In a June 2012 VA primary care
1 The “Bruce protocol” is “a procedure for assessing cardiovascular health using uphill treadmill walking in
4
note, Mr. Steckler denied any chest pain or shortness of breath “even with activity such as
swimming and yard work.” R. at 1213.
In a July 2013 IHD DBQ, a private provider noted a July 2013 coronary artery bypass graft
(CABG), and Mr. Steckler reported experiencing dyspnea and angina before his CABG when
performing activities consistent with eating, dressing, taking a shower, and slowly walking at 2
miles per hour for 1-2 blocks. R. at 1135-36.
In April 2014, the Board granted entitlement to service connection for ischemic heart
disease (IHD), noting that Mr. Steckler has been diagnosed with coronary artery disease (CAD).
R. at 1113-19. In a May 2014 rating decision, the RO implemented the Board’s decision, granting
service connection for IHD with CAD, assigning an initial rating, effective September 1, 1989,
and a 100% rating effective June 28, 2013. R. at 1054-64, 1071-73. In June 2014, Mr. Steckler
filed a Notice of Disagreement (NOD) with the initial rating, R. at 1040; the RO issued a Statement
of the Case (SOC), R. at 800-33; and Mr. Steckler perfected his appeal by filing a VA Form 9, R.
at 787.
In June 2018, Mr. Steckler and his wife testified at a hearing before the Board. R. at 715-

Mr. Steckler reported that his heart condition was “one of the main reasons” he retired in 2011,
because he had been “getting wor[n] out” and could not do the “fairly strenuous work” anymore.
R. at 718, 730. He reported that when working for the Department of Transportation he tired easily
and experienced “a lot of fatigue” after exertion. R. at 730, 737. He reported that towards the end
of his employment, he could work only 10 to 15 minutes before having to stop to catch his breath.
R. at 731, 737. Mr. Steckler stated that his job entailed no sedentary work. R. at 738. And he stated
that his job required physical activities “all the time,” including activities such as manual
shoveling; operating machinery; repairing large stretches of road, including by paving, blade
patching, chip sealing, and applying gravel and tar. R. at 732-34. He reported that towards the end
of his employment, he was the supervisor but still worked alongside his team. Id. Mrs. Steckler
noted that her husband was “morning to night” and that by 2010 she had noticed him “slowing way
a graded exercise test; each interval is at a specific load level for 3 minutes and is followed by another at a prescribed
incremental increase in treadmill speed and slope.” Bruce protocol, DORLAND’S MEDICAL DICTIONARY ONLINE,
https://www.dorlandsonline.com/dorland/definition?id=100619&searchterm=Bruce+protocol (last visited Apr. 25,
2022).
5
down,” and that he would nap after doing “a little bit of yard cutting,” which for him was not
normal. R. at 741.
In October 2018, the Board increased Mr. Steckler’s initial rating for CAD to 30%, effective
before September 19, 2011, and to 60%, effective from September 19, 2011, to June 28, 2013. R.
at 418-30. The Board found that the issue of entitlement to TDIU had been raised as part and parcel
of the appeal seeking a higher rating for CAD and that the issue of entitlement to TDIU effective
since June 28, 2013, was moot by virtue of his 100% rating for CAD; and the Board remanded the
issue of entitlement to TDIU effective before June 28, 2013. R. at 420-21, 427-28. In September
2019, the RO issued a Supplemental Statement of the Case (SSOC) denying entitlement to TDIU
effective before June 28, 2013. R. at 185-214.
In the December 2020 decision on appeal, the Board denied entitlement to TDIU before
June 28, 2013, based on the determination that “[t]he preponderance of the evidence is against a
finding that, prior to June 28, 2013, the Veteran’s service-connected disabilities prevented him
from securing and following a substantially gainful occupation consistent with his education and
work experience.” See R. at 5-14. The Board considered whether TDIU was warranted during the
period from February 18, 2010, the date on which VA received Mr. Steckler’s claim for service
connection for IHD, to June 28, 2013, the effective date of his 100% rating for IHD. R. at 7.
II. ANALYSIS
TDIU may be awarded “where the schedular rating is less than total, when the disabled
person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful
occupation as a result of service-connected [disability or] disabilities.” 38 C.F.R. §§ 4.15, 4.16(a)
(2020). This Court has interpreted the phrase “unable to secure and follow a substantially gainful
occupation” as having “two components: one economic and one noneconomic.” See Ray v. Wilkie,
31 Vet.App. 58, 73 (2019).2 The Court explained:
2 In Ray, the Court interpreted the phrase “unable to secure and follow a substantially gainful occupation”
when reviewing the Board’s application of § 4.16(b), but the Court synthesized caselaw concerning § 4.16(a) because
that subsection includes that same phrase. See 31 Vet.App. 72-73. Thus, the Court’s guidance in Ray is instructive
here. Id. at 74 (noting that “this is the first occasion in which the Court has interpreted ‘unable to secure and follow a
substantially gainful occupation’ under § 4.16 and provided guidance on what it means to ‘secure and follow’ said
employment.”).
6
In determining whether a veteran can secure and follow a substantially gainful
occupation, attention must be given to
• the veteran’s history, education, skill, and training;
• whether the veteran has the physical ability (both exertional and
nonexertional) to perform the type of activities (e.g., sedentary, light,
medium, heavy, or very heavy) required by the occupation at issue. Factors
that may be relevant include, but are not limited to, the veteran’s limitations,
if any, concerning lifting, bending, sitting, standing, walking, climbing,
grasping, typing, and reaching, as well as auditory and visual limitations; and
• whether the veteran has the mental ability to perform the activities required
by the occupation at issue. Factors that may be relevant include, but are not
limited to, the veteran’s limitations, if any, concerning memory,
concentration, ability to adapt to change, handle work place stress, get along
with coworkers, and demonstrate reliability and productivity.
Id. (internal citations omitted).
The Board is required to provide reasons or bases for its findings and conclusions on all
material issues of fact and law presented in the record, and those reasons or bases must be adequate
to enable an appellant to understand the precise basis for the Board’s decision as well as to facilitate
review in this Court. 38 U.S.C. § 7104(d)(1); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990).
To comply with this requirement, the Board must analyze the credibility and probative value of
the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide
its reasons for rejecting any 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).
First, Mr. Steckler argues that the Board failed to adequately explain its rejection of
medical evidence of fatigue; lay reports from him and his wife of fatigue and lack of endurance;
and his lay report of an inability to perform activities requiring prolonged sitting and standing as
a result of his service-connected back disability. See Appellant’s Brief (Br.) at 8-20. He asserts that
the Board provided inadequate analysis for rejecting his reports of these functional impairments
as not credible. Id. at 12-14, 18 (asserting that his “clinical reports” are not inconsistent with his
reports concerning how long he could perform physical activities before experiencing symptoms
of fatigue and lack of endurance).
7
In response, the Secretary urges the Court to affirm the Board’s decision, arguing that the
Board properly analyzed the favorable evidence and did not clearly err when making its credibility
determination. See Secretary’s (Sec.) Br. at 14-24. To support his argument that the record supports
the Board’s finding that Mr. Steckler’s reports of fatigue were inconsistent with medical records
and with the statements he made in a clinical setting, the Secretary identifies evidence not cited by
the Board. But the Court will not accept the Secretary’s post hoc rationalizations for the Board’s
determinations. See Frost v. Shulkin, 29 Vet.App. 131, 140 (2017) (citing In re Lee, 277 F.3d 1338,
1345-46 (Fed. Cir. 2002) (“‘[C]ourts may not accept appellate counsel’s post hoc rationalization
for agency action.'” (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168
(1962)))); Evans v. Shinseki, 25 Vet.App. 7, 16 (2011) (“[I]t is the Board that is required to provide
a complete statement of reasons or bases, and the Secretary cannot make up for its failure to do
so.”).
The Court is persuaded that the Board erred. For one, the Board failed to provide any
reasons for rejecting Mrs. Steckler’s report of observing that by 2010, her husband was “slowing
way down,” and that he would nap after doing “a little bit of yard cutting,” which for him was
reportedly not normal. R. at 741; see Caluza, 7 Vet.App. at 506. For another, the Board failed to
adequately explain why it summarily rejected as not credible Mr. Steckler’s reports of lack of
endurance (e.g., endurance beyond 10 to 15 minutes) when he sat and stood and exerted himself,
including exerting himself during activities required by his job. See generally Dennis v. Nicholson,
21 Vet.App. 18, 22 (2007) (citing Abernathy v. Principi, 3 Vet.App. 461, 465 (1992)) (“The Court
has long held that merely listing the evidence before stating a conclusion does not constitute an
adequate statement of reasons or bases.”).
Here, the Board stated: “The Veteran has essentially described an inability to engage in any
physical activity due to his service-connected back, shoulder, and heart disabilities.” R. at 10. The
Board explained that “while the Board accepts the Veteran’s statements with regard to the matters
he is competent to address, the Board relies upon the unbiased competent medical evidence with
regard to the specialized evaluation of functional impairment, symptom severity, and the impact
of the service-connected disabilities on the Veteran’s employability.” R. at 11.3 Then, the Board
3 But see Floore v. Shinseki, 26 Vet.App. 376, 381 (2013) (explaining that “medical examiners are
8
found that “the Veteran’s reports of severe incapacitation due to his service-connected disabilities
are less credible and probative than his clinical reports that symptoms are of milder severity and
cause much less functional impairment,” and that “the level of severity claimed by the Veteran is
not borne out by the clinical records and his reports of physical activity.” R. at 10-11 (relying on
Rucker v. Brown, 10 Vet.App. 67, 73 (1997) for the proposition that statements made to clinicians
for the purpose of treatment have heightened credibility).
To support its credibility determination, the Board cited Mr. Steckler’s denial in a June
2012 VA primary care appointment that he experienced shortness of breath or chest pain when
swimming or doing yard work. The Board also cited an August 2011 VA treatment record showing
that he had denied shortness of breath and chest pain; a medical finding of “normal functional
aerobic capacity” during an October 2011 stress test; and the March 2010 VA examiner’s report of
unimpaired gait and station. See R. at 8-10. The Board further relied on evidence showing that “his
METs levels were consistently measured as greater than seven” and that in November 2010 his
private physician had opined that his heart condition did not impact his ability to work. R. at 9-
10.4
As Mr. Steckler asserts, the Board did not identify his reports of “severe incapacitation”
and being unable to perform “any” physical activity, and the Board thereby prevented him from
understanding the precise basis for the Board’s decision and frustrated judicial review. See Gilbert,
1 Vet.App. at 56-57. The Board also did not identify any medical or lay evidence affirmatively
inconsistent with Mr. Steckler’s Board hearing testimony that he lacked endurance when
performing physical activities on the job for longer than 10 to 15 minutes. And the Board failed to
address how the October 2011 VA exercise stress test was terminated as a result of fatigue after
about 8 minutes. See R. at 1216-17; Caluza, 7 Vet.App. at 506.5
responsible for providing a ‘full description of the effects of disability upon the person’s ordinary activity,’ . . . but it is
the rating official who is responsible for [making the unemployability determination]”).
4 But see Geib, 733 F.3d at 1354 (“[A]pplicable regulations place responsibility for the ultimate TDIU
determination on the VA, not a medical examiner.”).
5 The Court will not accept the Secretary’s post hoc rationalization that this fatigue was not attributable to
Mr. Steckler’s heart disability. See Sec. Br. at 17, 20-21; Frost, 29 Vet.App. at 140; Evans, 25 Vet.App. at 16. See
generally Mittleider v. West, 11 Vet.App. 181, 182 (1998) (holding that a veteran is entitled to compensation for all
symptoms that are medically attributable to a service-connected disability, and when there is no medical evidence
9
Further, when the Board rejected Mr. Steckler’s lay report to the March 2010 VA examiner
concerning his inability to engage in physical activities requiring prolonged standing and sitting
as a result of his back pain, the Board failed to identify any medical or lay evidence affirmatively
inconsistent with this report. The Court notes that the Board did not explain why it believed that
an examination by a medical provider in a clinical setting would provide objective information
concerning Mr. Steckler’s endurance over prolonged periods of time
. Ultimately, the Board
summarily rejected Mr. Steckler’s lay reports of lacking endurance (e.g., endurance beyond 10 to
15 minutes) and an inability to sit or stand for prolonged periods, and the Board failed to establish
a proper foundation for drawing inferences against the credibility of those reports from an absence
of medical documentation. See Fountain v. McDonald, 27 Vet.App. 258, 272-73 (2015); Buczynski
v. Shinseki, 24 Vet.App. 221, 224 (2011) (“[T]he Board may not consider the absence of evidence
as substantive negative evidence [disputing a fact].”); Kahana v. Shinseki, 24 Vet.App. 428, 439
(2011) (“The Board, in its role as factfinder, ‘is obligated to, and fully justified in, determining
whether lay evidence is credible in and of itself.'” (emphasis added) (quoting Buchanan
v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006))).
Second, Mr. Steckler argues that the Board failed to adequately analyze whether he was
able to perform the exertional physical tasks required by his work in light of his education, training,
and work history. See Br. at 11-12, 14-16, 20-24. He specifically asserts that “Mr. Steckler’s
abilities to swim and perform yard work are not a sufficient basis to conclude that he can secure
and maintain substantially employment.” Id. at 11-12.
The Secretary responds that “the Board did not need to address [Mr. Steckler’s education,
skills, and training] in light of its conclusion that his service-connected disabilities did not preclude
him from all types of employment.” Sec. Br. at 24-25.
The Court agrees with Mr. Steckler. See generally Quirin v. Shinseki, 22 Vet.App. 390,
395-96 (2009) (after the Court determines that remand is necessary, the Court may address
additional arguments in order to provide guidance to the lower tribunal). Here, the Board noted
that he had worked until June 2011 “as a supervisor for the Department of Transportation” and that
separating the effects and symptoms of the service-connected condition from those of a non-service-connected
condition, the Board is required to resolve reasonable doubt on that issue in the veteran’s favor).
10
he had testified that his job was very physically demanding. R. at 8, 10. The Board then found “it
highly probative that, prior to June 28, 2013, the Veteran was still able to perform a whole range
of activities of daily living that would be consistent with all types of employment, to include
swimming and yard work.” R. at 11.
But the material question is whether Mr. Steckler could perform the physical and mental
acts required by the occupation at issue despite the aggregate impact of his service-connected
disabilities, not whether he was able to perform activities of daily living in a nonemployment
setting. See Ray, 31 Vet.App. at 73; see generally Geib, 733 F.3d at 1354 (“[When] separate
medical opinions address the impact on employability resulting from independent disabilities, the
VA [adjudicator] is authorized to assess the aggregate effect of all disabilities.”). The Board
apparently conflated regular disability rating principles with the criteria for TDIU. See R. at 11-12
(stating that TDIU requires “that the record reflect some factor which places the claimant in a
different position than other Veterans with the same disability rating”; relying on 38 C.F.R.
§§ 3.321(a), 4.1). Compare 38 C.F.R. § 4.10 (2020) (“The basis of disability evaluations is the
ability of the body . . . to function under the ordinary conditions of daily life including
employment.”), with Van Hoose v. Brown, 4 Vet.App. 361 (1993) (“The question [in a TDIU case]
is whether the veteran is capable of performing the physical and mental acts required by
employment.”). See generally 38 C.F.R. § 4.10 (2020) (“[I]t will be remembered that a person may
be too disabled to engage in employment although he or she is up and about and fairly comfortable
at home or upon limited activity.”).

The Court therefore reminds the Board that
[u]nlike the regular disability rating schedule, which is based on the average work-related
impairment caused by a disability, ‘entitlement to TDIU is based on an individual’s
particular circumstances.’ Therefore, when the Board conducts a TDIU analysis, it must
take into account the individual veteran’s education, training, and work history.
Pederson v. McDonald, 27 Vet.App. 276, 286 (2015) (en banc) (quoting Rice v. Shinseki,
22 Vet.App. 447, 452 (2009)). Ultimately, the Board failed to reconcile Mr. Steckler’s physical
ability with “the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required
by the occupation at issue,” including in light of his education, training, and work history. See Ray,
31 Vet.App. at 73 (emphasis added); Pederson, 27 Vet.App. at 286; Gleicher v. Derwinski,
11
2 Vet.App. 26, 28 (1991) (explaining that the Board provided inadequate analysis when it “merely
allude[d] to educational and occupational history” and concluded “that some form of employment
is available,” without attempting “to relate these factors to the disabilities of the appellant”).
For the above reasons, the Court will remand the matter of entitlement to TDIU effective
before June 28, 2013, for the Board to provide adequate reasons or bases for its decision, including
adequately discussing the favorable evidence, the credibility of Mr. Steckler’s reports of functional
impairments resulting from his service-connected disabilities, and the cumulative impact of his
service-connected disabilities on his ability to secure and follow substantially gainful employment.
See 38 U.S.C. § 7104(d)(1); Tucker v. West, 11 Vet.App. 369, 374 (1998) (remand is appropriate
“where the Board has incorrectly applied the law, failed to provide an adequate statement of
reasons or bases for its determinations, or where the record is otherwise inadequate”).
At this time, the Court need not address Mr. Steckler’s remaining arguments. See Best
v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam order). On remand, Mr. Steckler is free to
submit additional evidence and argument, and the Board must consider any such evidence or
argument submitted. See Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam
order); 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” and
that a remand by the Court is not “merely for the purposes of rewriting the [Board’s decision] so
that it will superficially comply with the ‘reasons or bases’ requirement.” Fletcher v. Derwinski,
1 Vet.App. 394, 397 (1991). The Board must treat this matter in an expeditious manner on remand
from the Court in accordance with 38 U.S.C. § 7112.
III. CONCLUSION
Upon consideration of the foregoing analysis, the record of proceedings before the Court,
and the parties’ pleadings, the December 10, 2020, Board decision is VACATED, and the matter
is REMANDED for readjudication consistent with this decision.
DATED: May 5, 2022
12
Copies to:
Zachary M. Stolz, Esq.
VA General Counsel (027)

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