Veteranclaims’s Blog

June 12, 2019

Single Judge Application; statement of reasons or bases must explain the Board’s reasons for discounting favorable evidence, Thompson v. Gober, 14 Vet.App. 187, 188 (2000), discuss all issues raised by the claimant or the evidence of record; Robinson v. Peake, 21 Vet.App. 545, 552 (2008), aff’d sub nom. Robinson v. Shinseki, 557 F.3d 1335 (Fed. Cir. 2009); Schafrath v. Derwinski, 1 Vet.App. 589, 592 (1991);

Filed under: Uncategorized — Tags: — veteranclaims @ 1:29 pm

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 18-0316
ROBERT S. BARR, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before FALVEY, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
FALVEY, Judge: Navy veteran Robert S. Barr appeals a January 4, 2018, Board of
Veterans’ Appeals decision that denied compensation for substance abuse, claimed as secondary
to service-connected major depression. This appeal is timely, the Court has jurisdiction to review
the Board’s decision, and single-judge disposition is appropriate. See 38 U.S.C. §§ 7252(a),
7266(a); Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
We are asked to review the Board’s statement of reasons or bases. Mr. Barr argues that the
Board erred because it did not discuss whether his substance abuse increased after service and,
additionally, because it did not address a favorable private medical examination. Because the
Board’s statement of reasons or bases does not discuss this favorable evidence, it is inadequate.
Thus, we will set aside the Board’s January 2018 decision and remand the matter for further
proceedings.
I. ANALYSIS
The Board is required to include in its decision a written statement of the reasons or bases
for its findings of fact and conclusions of law that is understandable by the claimant and facilitates
review by this Court. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995)
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(Board’s statement “must be adequate to enable a claimant to understand the precise basis for the
Board’s decision, as well as to facilitate review in this Court”). The statement of reasons or bases must explain the Board’s reasons for discounting favorable evidence, Thompson v. Gober, 14 Vet.App. 187, 188 (2000), discuss all issues raised by the claimant or the evidence of record, Robinson v. Peake, 21 Vet.App. 545, 552 (2008), aff’d sub nom. Robinson v. Shinseki, 557 F.3d 1335 (Fed. Cir. 2009), and discuss all provisions of law and regulation where they are made “potentially applicable through the assertions and issues raised in the record,” Schafrath v. Derwinski, 1 Vet.App. 589, 592 (1991).
Here, the Board failed to provide an adequate statement of reasons or bases. The Board
stated that it found that the veteran’s depression and substance abuse were unrelated, based on a
2017 VA medical examination. Record (R.) at 14-15. However, the Board did not discuss a private
medical opinion submitted by the veteran in late 2017 that specifically addressed and rejected the
2017 VA examiner’s reasoning and concluded that, “[i]n Mr. Barr’s case, more likely than not, his
major depression and substance abuse have been interacting with each other for many years.” R.
at 321. The Board did not address this relevant and favorable evidence or explain its reasons for
rejecting it. See Robinson, 21 Vet.App. at 552; Thompson, 14 Vet.App. at 188. Its failure to do so
renders its statement of reasons or bases inadequate. Id.
The Board also erroneously failed to address whether Mr. Barr’s substance abuse increased
after service. This question was raised by Mr. Barr, who contends that his substance abuse
worsened whenever he became depressed after service. See R. at 3; see also R. at 910 (noting the
“longstanding” connection between the veteran’s depression and his drinking). The question was
also recognized by the Court in its February 2017 remand order, which directed the Board to
“reevaluate the medical evidence with the standard for demonstrating aggravation of a non-serviceconnected
disability.” R. at 562; see also Robinson, 21 Vet.App. at 552; Stegall v. West,
11 Vet.App. 268, 271 (1998) (a remand order by the Court imposes upon the Secretary a
concomitant duty to ensure compliance with the terms of the remand).
The Board declined to address whether the veteran’s substance abuse increased after
service, because such a finding “would only demonstrate that military service directly increased
the Veteran’s substance abuse disorder,” and “a substance abuse disorder . . . can only be
established if it is secondary to an already service-connected disability. ” R. at 15. Mr. Barr’s
argument, however, is that his substance abuse was made worse by his service-connected
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depression. As the depression became manifest during or just after service, the question whether
the veteran’s substance abuse had increased after service is relevant to the issue of secondary
service connection. The Board’s failure to address this issue, or adequately explain its decision not
to address it, renders its statement of reasons or bases inadequate. See Robinson, 21 Vet.App. at
552; Allday, 7 Vet.App. at 527.
Remand is warranted for the Board to provide an adequate statement of reasons or bases
and address the favorable evidence in the first instance. See Tucker v. West, 11 Vet.App. 369, 374
(1998) (remand is appropriate where the Board has failed to provide an adequate statement of
reasons or bases); see also Hensley v. West, 212 F.3d 1255, 1263-64 (Fed. Cir. 2000) (when a court
of appeals reviews a lower court’s decision, it may remand it if the previous adjudicator failed to
make findings of fact essential to the decision). Furthermore, Mr. Barr’s argument that the Board
failed to accord him the benefit of the doubt pursuant to 38 U.S.C. § 5107(b) is inextricably
intertwined with the remanded matter. See Gurley v. Nicholson, 20 Vet.App. 573, 575 (2007)
(recognizing validity of a judicial-economy remand when two issues are inextricably intertwined).
Because the claim is being remanded, the Court need not address Mr. Barr’s additional
arguments that would result in no broader remedy than a remand. See Mahl v. Principi,
15 Vet.App. 37, 38 (2001) (per curiam order) (“[I]f the proper remedy is a remand, there is no need
to analyze and discuss all the other claimed errors that would result in a remedy no broader than a
remand.”). In pursuing his claim on remand, the veteran will be free to submit additional argument
and evidence as to the remanded matter, and he has 90 days to do so from the date of the
postremand notice VA provides. See Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per
curiam order); see also Clark v. O’Rourke, 30 Vet.App. 92, 97 (2018). The Board must consider
any such evidence or argument submitted. See Kay v. Principi, 16 Vet.App. 529, 534 (2002); see
also Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991) (“A remand is meant to entail a critical
examination of the justification for the decision.”).
II. CONCLUSION
On consideration of the foregoing, the Board’s January 4, 2018, decision is SET ASIDE
and the matter is REMANDED for further adjudication.
DATED: June 11, 2019
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Copies to:
Eric A. Gang, Esq.
VA General Counsel (027)

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