FIRST CASE OPINION

Wright v. Shulkin
United States Court of Appeals for Veterans Claims
February 27, 2017, Decided

No. 16-0087

Reporter
2017 U.S. App. Vet. Claims LEXIS 249 

Melvin Wright, Appellant, v. David J. Shulkin, M.D., Secretary of Veterans Affairs, Appellee.

Judges:  [*1] Before DAVIS, Chief Judge.

Opinion by: DAVIS

Opinion

MEMORANDUM DECISION

DAVIS, Chief Judge: U.S. Army veteran Melvin Wright appeals through counsel a September 28, 2015, Board of Veterans'
Appeals (Board) decision that denied an effective date earlier than August 31, 2011, for the award of a disability rating of 30%
for left knee degenerative joint disease (DJD). For the following reasons, the Court will set aside the Board's September 2015
decision and remand the matter for further proceedings.

I. ANALYSIS

The Board is required to support its decision with a written statement of the reasons or bases 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). 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. Mansfield, 21 Vet.
App. 545, 552 (2008), aff'd sub nom Robinson v. Shinseki, 557 F.3d 1355 (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).

In August 2010 Mr. Wright filed a claim for service connection for "residuals of left knee injury" that he traced to a fall during
training in Manheim Germany. Record (R.) at 1634. The Board  [*2]  found that "the matter of the appropriate disability ratings
for left knee DJD has remained pending from the date of receipt of his original claim for service connection." R. at 8-9. In April
2011, Mr. Wright received a 10% disability rating for the left knee, effective the date of the claim, for "retropatellar pain
syndrome," on the basis of painful movement of the joint. R. at 587; See 38 C.F.R. § 4.59 (2016). Mr. Wright almost
immediately filed a request for increased rating leading to multiple VA medical examinations, which the Board correctly
recognized as new and material evidence received within the appeal period, and therefore relating to the original claim. See 38
C.F.R. § 3.156(b). In a November 2012 rating decision, VA increased the disability rating to 30%, changing the disability
description to "[DJD] left knee, and calcified tendonitis with limited extension." R. at 565. In the decision here on appeal, the
Board assigned an effective date of August 31, 2011, stating that this is the first date on which medical evidence established
flexion limited to 20 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5261.

Mr. Wright does not raise any contentions of error in the Board's determination of an effective date for the disability based on
limitation [*3]  of flexion under DC 5261.1 Rather, he argues that the Board erred in failing to consider evidence tending to
show that he should receive an additional rating for instability of the left knee under DC 5257. See R. at 142 (May 2011
physical therapy consult noting knee gives out frequently), 153 (April 2011 orthopedic consult indicating knee will give way
every other day). See Murray v. Shinseki, 24 Vet.App. 420 (2011) (noting separate ratings for instability and limitation of
motion allowed because based on different symptoms).

"[T]he Court [] has jurisdiction to remand to the Board any matters that were reasonably raised below that the Board should
have decided, with regard to a claim properly before the Court, but failed to do so." Clemons v. Shinseki, 23 Vet.App. 1, 3
(2009). Mr. Wright's claim for residuals of a service-connected left knee injury encompasses the symptoms he described and
the information that the Secretary obtained in support of the claim. Id. at 5. The medical reports in the record clearly raised the
issue of a possible disability rating for instability of the left knee joint. Therefore, the Court will remand the matter for Board
consideration.

Mr. Wright and his VFW representative struggled with issues of whether statements in certain rating decisions referred to
an [*4]  earlier effective date or to a claim for increased rating. See Comer v. Peake, 552 F.3d 1362, 1369-70 (Fed. Cir. 2009)
(holding that veteran does not lose his pro se status because of the assistance of a veterans service organization). The Board
discerned an unadjudicated claim for an increased rating for the knee disability and referred that claim to the agency of original
jurisdiction. The Secretary argues that Mr. Wright's arguments with respect to instability of the left knee pertain to the referred
matter and are not part of the Board decision here on appeal.

There is no indication in the record, however, that at any time during development of Mr. Wright's claim, VA ever considered
the possibility of a disability rating for instability, as opposed to limitation of motion, of the left knee. Thus, it is not clear that
the Board intended or VA would perceive that this issue is part of the referred claim. This is not a case where the Board clearly
bifurcated claims. Cf. Locklear v. Shinseki, 24 Vet.App. 311, 315 (2011) (and cases cited thereat).

The Board's failure to address favorable evidence and consider issues raised by the record renders its statement of reasons or
bases inadequate. See Robinson, 21 Vet.App. at 553; Thompson, 14 Vet.App. at 188, Allday; 7 Vet.App. at 527. In view of these
deficiencies, the Court will set aside the Board's determination of the  [*5]  effective date for disability benefits for DJD and
remand the matter. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that remand is the appropriate remedy "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"). In pursuing his claim on remand, Mr. Wright will be free to submit additional
argument and evidence as to the remanded matter, and the Board must consider any such evidence or argument submitted. See
Kay v. Principi, 16 Vet.App. 529, 534 (2002).

II. CONCLUSION

For the foregoing reasons, the Court SETS ASIDE the Board's determination of an effective date for disability benefits for DJD
of the left knee as set forth in its September 28, 2015, decision and REMANDS the case for further proceedings consistent with
this decision.

DATED: February 27, 2017

ANSWER TO TEST 2

For the foregoing reasons, the Court SETS ASIDE the Board's determination of an effective date for disability benefits
for DJD of the left knee as set forth in its September 28, 2015, decision and REMANDS the case for further proceedings
consistent with this decision.

11 The Court therefore will regard this issue as abandoned. See Pederson v. McDonald, 27 Vet.App. 276, 283 (2015) (en banc)
(stating that "this Court, like other courts, will generally decline to exercise its authority to address an issue not raised by an
appellant in his or her opening brief").
DATED: February 27, 2017

ANSWER TO TEST 3

The case under consideration pertains to an appeal before the honorable office of the United States Court of
Appeals for Veterans Claims. Accordingly, appellant Melvin Wright in August 2010 filed a claim for service
connection for "residuals of left knee injury" that he traced to a fall during training in Manheim Germany. In April
2011, he received a 10% disability rating for the left knee. Unsatisfied however with such, appellant filed a request
for increased rating which was granted in a decision dated November 2012 to the effect that VA increased the
disability rating to 30%, changing the disability description to "[DJD] left knee, and calcified tendonitis with
limited extension.

On appeal, appellant argues that that the Board erred in failing to consider evidence tending to show that he should
receive an additional rating for instability of the left knee under DC 5257. He argued that the May 2011 physical
therapy consultation noted that his knee gives out frequently. The same is true in the April 2011 orthopedic
consultation indicating that his knee will give way every other day.

On the basis of such arguments and pieces of evidence presented by the appellant, the honorable office of the
United States Court of Appeals for Veterans Claims resolves to remand the case stating to that effect that, “remand
is the appropriate remedy "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.”
 SECOND CASE OPINION
Evans v. McDonald
United States Court of Appeals for Veterans Claims
August 24, 2016, Decided
No. 15-1621

Judges:  [*1] Before GREENBERG, Judge.

Opinion by: GREENBERG

Opinion

MEMORANDUM DECISION

GREENBERG, Judge: The appellant, Ricky L. Evans, appeals through counsel an April 1, 2015, Board of Veterans'
Appeals (Board) decision that denied entitlement to benefits based on service connection for normocytic anemia, 1
to include as secondary to residuals of a pilondal cyst. Record (R.) at 2-10. The appellant argues that the Board (1)
relied on an inadequate July 2014 VA examination; (2) provided an inadequate statement of reasons or bases for
not finding that a theory of service connection for normocytic anemia secondary to service-connected hepatitis B
had been raised by the record; and (3) provided an inadequate statement of reasons or bases for its treatment of
the appellant's lay testimony. Appellant's Brief at 9-19. For the following reason, the Court will vacate the April 2015
Board decision and remand the matter for readjudication.

Justice Alito noted in Henderson v. Shinseki  [*2]  that our Court's scope of review in this appeal is "similar to that of
an Article III court reviewing agency action under the Administrative Procedure Act, 5 U.S.C. § 706." 562 U.S. 428,
432 n.2, 131 S. Ct. 1197, 179 L. Ed. 2d 159 (2011); see 38 U.S.C. § 7261. The creation of a special court solely for
veterans, and other specified relations, is consistent with congressional intent as old as the Republic. See
Hayburn's Case, 2 U.S. (2 Dall.) 409, 410, 1 L. Ed. 436, 2 Dall. 409 n. (1792) ("[T]he objects of this act are
exceedingly benevolent, and do real honor to the humanity and justice of Congress."). "The Court may hear cases
by judges sitting alone or in panels, as determined pursuant to procedures established by the Court." 38 U.S.C. §
7254. Accordingly, the statutory command of Congress that a single judge may issue a binding decision, pursuant
to procedures established by the Court, is "unambiguous, unequivocal, and unlimited." Conroy v. Aniskoff, 507 U.S.
511, 514, 113 S. Ct. 1562, 123 L. Ed. 2d 229 (1993); see generally Frankel v. Derwinski, 1 Vet.App. 23, 25-26
(1990).

The appellant had active service with the U.S. Army from September 1980 to July 1983 as a heavy construction
equipment operator. R. at 3170 (Form DD-214). In April 1982, the appellant was seen for rectal bleeding. R. at 129.
In May 1982, the appellant underwent surgery for a pilonidal cyst. R. at 102, 106, 108, 110. In February 1983, he
again sought treatment for a pilonidal cyst. R. at 100. In July 1983 the appellant underwent a separation
examination that resulted in a clinically normal [*3]  evaluation. See R. at 113-14.

In October 1997, emergency visit records indicate that the appellant was seen for complaints of rectal pain and
bleeding. R. at 3005-06. May 2004 emergency visit records reflect that the appellant was again seen for complaints

11 "Normocytic anemia" is "anemia with erythrocytes of normal size but a proportionate decrease in hemoglobin content, packed
red cell volume, and number of erythrocytes per cubic millimeter of blood." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 79 (32d
ed. 2012).
of rectal bleeding. R. at 3116-17. In July 2004, VA treatment records show that the appellant was admitted at the
Tuskegee VA Homeless Domiciliary, with issues of homelessness and unemployment, wherein he reported a 20
year history of rectal bleeding, with hemorrhoids and diverticulosis, and normocytic anemia noted. R. at 2632. Upon
discharge in November 2004, VA treatment records indicate the appellant had "hemorrhoids, which have been
troubled with rectal bleeding for 20 years and that may be related to his diagnosis of diverticulosis. He has
normocytic anemia, which may be related to his rectal bleeding." R. at 3067; see also R. at 3070 ("CBC [(complete
blood count)] changes show normocytic anemia, this may be related to chronic rectal bleeding.").

In September 2004, the appellant filed for benefits based on service connection for "passing blood [through] bowel,
and a [pilonidal cyst] and Hepatitis B." R. at 3152-55. In December 2005, the appellant submitted a statement
indicating that he passes blood every [*4]  day. R. at 3140. In February 2006, the appellant again submitted a
statement, indicating that he passes blood "all the time." R. at 3095.

In September 2008, the regional office granted the appellant service connection for Hepatitis B and awarded a 40%
disability rating, effective February 11, 2008, but denied service connection for blood in stool, pilonidal cyst, status
post cystectomy, diverticulitis, and normocytic anemia. R. at 606-19. In November 2008, the appellant submitted a
statement in connection with Social Security Administration disability benefits noting that he still passes blood just
about every day. R. 544.

In July 2014, the appellant underwent a VA examination, wherein the examiner opined that, "[w]hile the etiology of
the Veterans [sic] anemia is uncertain (due to the wide variety of conditions that cause normocytic anemia, many of
which are developmental or genetic), the likelihood that it is related to heme + stools 32 years ago is remote at
best." R. at 30. The examiner added that "[r]ectal bleeding of such long duration would tend to have significant
consequences, and the type of anemia present would tend NOT to be normocytic in nature." R. at 30 (emphasis in
original). As to the relation between the appellant's normocytic [*5]  anemia and his service-connected residuals of a
pilonidal cyst, the examiner stated that a pilonidal cyst is more commonly found in the coccyx region and that they
"tend NOT to communicate with the rectum and very seldom are associated with any form of rectal bleeding, nor do
they themselves have a tendency to bleed in sufficient quantity to produce an anemia." R. at 30. The examiner
concluded by opining that the appellant's normocytic anemia is less likely than not caused by, related to, or
worsened beyond natural progression by military service, pilonidal cyst in service, or rectal bleeding in service. R. at
30-31.

In April 2015, the Board issued the decision currently on appeal, wherein it denied the appellant benefits based on
service connection for normocytic anemia. R. at 2-10. In reaching this decision, the Board found the appellant to be
competent to report rectal bleeding. R. at 9. The Board also stated "while the veteran has reported a long history
[of] rectal bleeding during and since service, he does not allege recurrent or continuous symptoms of normocyctic
anemia specifically during service and since service discharge." R. at 9. The Board did not challenge the credibility
of the appellant's reports that he had [*6]  a long history of rectal bleeding. See R. at 2-10. The Board instead relied
heavily on the July 2014 VA examination and stated that "[n]o competent medical opinions are of record to counter
the negative nexus opinion rendered by the July 2014 examiner." R. at 9.

The Court concludes that the Board provided an inadequate statement of reasons or bases for relying on the July
2014 VA examination. See 38 U.S.C. § 7104(d)(1) ("Each decision of the Board shall include . . . a written
statement of the Board's findings and conclusions, and the reasons or bases for those findings and conclusions, on
all material issues of fact and law presented in the record."); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990) (the
Board is required to provide a written statement of the reasons or bases for its findings and conclusions, adequate
to enable an appellant to understand the precise basis for the Board's decision as well as to facilitate review in this
Court). The examiner stated that "[r]ectal bleeding of such long duration would tend to have significant
consequences, and the type of anemia present would tend NOT to be normocytic in nature." R. at 30. This
statement indicates that if the appellant was indeed suffering from long-term rectal bleeding, his current disability
would be worse; the examiner therefore [*7]  rejected the premise that the appellant did indeed suffer from long-
term rectal bleeding.

However, the Board found the appellant competent to testify to long-term rectal bleeding, and did not question his
credibility regarding any of his statements. See R. at 9. It is therefore unclear how the Board could rely on an
examination when it appears based on the Board's findings, that the examination was based on an inaccurate
factual premise. See Reonal v. Brown, 5 Vet.App. 458, 460 (1993) ("A medical opinion based on an inaccurate
factual premise has no value."). Remand is required for the Board to provide an adequate statement of reasons or
bases for its decision or provide a new examination that is consistent with the Board's findings. If the Board does
provide a new medical examination, it should consider whether a theory of service connection for normocyctic
anemia secondary to hepatitis B has been raised by the record or expressly by the appellant. See Appellant's Brief
at 13-14; see also Robinson v. Mansfield, 21 Vet. App. 545, 552-53 (2008) (the Board is required to address all
issues and theories that are reasonably raised by the claimant or the evidence of record), aff'd sub nom. Robinson
v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009).

Because the Court is remanding the matter, it will not address the appellant's remaining arguments.  [*8]  See Dunn
v. West, 11 Vet.App. 462, 467 (1998). On remand, the appellant may present, and the Board must consider, any
additional evidence and arguments. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). This matter is to be provided
expeditious treatment on remand. See 38 U.S.C. § 7112; see also Hayburn's Case, 2 U.S. (2 Dall.) 409, 410, 1 L.
Ed. 436, 2 Dall. 409 n. (1792) ("[M]any unfortunate and meritorious [veterans], whom Congress have justly thought
proper objects of immediate relief, may suffer great distress, even by a short delay, and may be utterly ruined, by a
long one . . . ." (internal quotation marks omitted)).

Based on the foregoing reason, the April 1, 2015, Board decision is VACATED and the matter is REMANDED for
readjudication.

DATED: August 24, 2016

ANSWER TO TEST 2

Based on the foregoing reason, the April 1, 2015, Board decision is VACATED and the matter is
REMANDED for readjudication.

DATED: August 24, 2016

ANSWER TO TEST 3

The case at bar is an appeal by appellant, Ricky L. Evans before the honorable office of the United States Court of
Appeals for Veterans Claims. Accordingly, the appellant had an active service with the U.S. Army from September
1980 to July 1983 as a heavy construction equipment operator.

In September 2004, the appellant filed for benefits based on service connection for "passing blood [through] bowel,
and a [pilonidal cyst] and Hepatitis B." Likewise, in December 2005, he submitted a statement indicating that he
passes blood every day. In February 2006, the appellant again submitted a statement, indicating that he passes blood
"all the time."

From such application, in September 2008, the regional office granted his service connection for Hepatitis B and
awarded a 40% disability rating, but denied service connection for blood in stool, pilonidal cyst, status post
cystectomy, diverticulitis, and normocytic anemia.

Furthermore, in April 2015, the Board issued a Decision to the effect that "while the veteran has reported a long
history [of] rectal bleeding during and since service, he does not allege recurrent or continuous symptoms of
normocyctic anemia specifically during service and since service discharge. In effect, it did not challenge the
credibility of the appellant's reports, but however relied heavily on the July 2014 VA examination and stated that
"[n]o competent medical opinions are of record to counter the negative nexus opinion rendered by the July 2014
examiner."

Unsatisfied with such Decision, the appellant on appeal argued that the Board (1) relied on an inadequate July 2014
VA examination; (2) provided an inadequate statement of reasons or bases for not finding that a theory of service
connection for normocytic anemia secondary to service-connected hepatitis B had been raised by the record; and (3)
provided an inadequate statement of reasons or bases for its treatment of the appellant's lay testimony.

From such arguments, the honorable office of the United States Court of Appeals for Veterans Claims was
constrained to remand the case stating that, “Each decision of the Board shall include . . . a written statement of the
Board's findings and conclusions, and the reasons or bases for those findings and conclusions, on all material issues
of fact and law presented in the record." The Board is required to provide a written statement of the reasons or bases
for its findings and conclusions, adequate to enable an appellant to understand the precise basis for the Board's
decision as well as to facilitate review in this Court.