*1 if in-service alleged deci- cated even that the Board’s also determine We had by Mr. Forcier oc of the VA stressor described diagnoses sion to favor curred, would not meet the criteria for prog- Dannhardt’s over Nurse examiners diagnosis post-traumatic a clearly erroneous. note was not ress disorder, necessary which is es stress considering for that condi service connection tablish or inadequate reasons provided Board the Board to requiring A remand tion. Forcier that Mr. for its conclusion bases alleged of an address evidence evidence not credible provided had where, benefit produce would no stressor occurred, in-service stressor alleged here, lack of establish that the the facts Board did first note that the we to the absence of diagnosis was due findings for reasons bases written diagnostic criteria. See Stadin this issue in accordance regard acknowledge, § 7104. We U.S.C. (“[E]ven did not discuss though Board however, ques engaged Board relating aggravation, all the evidence improper analysis and used an tionable produce would purpose remand for that on this rendering its decision approach appellant.”) benefit considering a that when note issue. We provision regarding pertinent M21-1 IV. CONCLUSION rating specialists consid requirement foregoing, the consideration of the On changes occurring of behavior er evidence is AF- June Board decision incident, at the time of FIRMED. “[g]iven Forcier’s] speculated [Mr. disciplinary problems, history of
preservice [ab that his to assume
it is reasonable to his own was due leave]
sence without result of sexual as
misconduct We also note 18.
sault.” provision de considering M21-1
when as an scribing of alcohol abuse COBURN, Appellant, Frank E. change, the example of behavior was more evidence that there determined to “his abuse was due
that such alcohol NICHOLSON, Secretary R. James military sendee” rather aptitude lack of Affairs, Appellee. of Veterans R. at assault. alleged than the No. 03-1345. illogical, improper, and are Such inferences a cavali unsupported by the record. Such Appeals United States Court the evidence approach assessing er to- Claims. Veterans confidence undermine all tends to 26, 2006. Jan. Board. however, determine, any error
We de- nonprejudicial because pre- the medical evidence
termination post- diagnosis
ponderated against
traumatic stress disorder was findings fully
erroneous. The Board’s indi- by medical evidence that
supported *2 Jarvi,
Theodore C. Tempe, Arizona, onwas the brief for the appellant. McClain, Counsel; Tim S. General R. Campbell, Randall Assistant General Counsel; Carolyn F. Washington, Deputy Counsel; Assistant Szynklew- M. Alice ski, D.C., all of Washington, were on the appellee. brief for the KASOLD, LANCE, Before SCHOELEN, Judges.
KASOLD, Judge, filed LANCE, Judge, Court. filed a dissenting opinion. analyzes po- record which KASOLD, Judge: opinion of n relationship any service . tential between appeals Frank E Coburn Veteran post-ser- inservice and injury(ies) and/or 24, 2003, decision March
through counsel at 594. symptoms.” vice (Board) Appeals- of Veterans’ of the Board *3 on presently claims Board remanded service connec entitlement to that denied arrange an or- appeal with .instructions leg and of left tion for residuals ascertain cur- thopedic examination to injuries. injuries, right hip left and and nature, severity, etiology and rent argues must Secretary The leg hip. orthopedic disorders of either West, Stegall v. pursuant to be remanded R. at 595-99. (1998), specif because in was undertaken An examination Octo- in a March 2001 ic contained instructions in 2002. The examiner noted ber to secure a Board remand order file port that he had reviewed the claims not followed. Mr. Co- examination were history, and the submitted medical and report is satisfied with the burn likely least as concluded that it “at such and not raise issue leg hip problems and had not” that argues the Board-decision error. He in service as result of their onset clearly and should be re erroneous The pole incident. at 658. telephone below, forth For the reasons set versed. “given also examiner stated will set aside and the Board’s decision patient history of traumas or denies other remanded. falls, likely explanation most this is the I. BACKGROUND R. at my opinion.” 658.. of the October 2002 examination report duty in the served on active Mr. Coburn medical nexus on record January Army January from U.S. for Mr. Coburn. (R.) at The National 1956. Record 26. reports that all Personnel Records Center appeal, the 2003 In the decision medical records of Mr. Coburn’s service -as rejected the examiner’s Board destroyed and in a missing presumed incompetent appeared “to be February solely upon fire. R. at 626. the veteran’s own state- history.” R. filed a claim for service his medical regarding Mr. Coburn ments injuries “the leg 21. stated that exam- hip for bilateral That Board connection of medical the absence stating injuries that his were sustained iner’s review noted legs telephone of an veteran’s from a evidence service when jumped “appears and that the examiner Leonard in service” pole assigned at Fort while of numerous ignored sequela Wood, R. at 79. His sister Missouri. beginning injuries after service left knee his claim with subsequently supported - opinion.” R. at forming telephone that she knew the concluded that there was The Board mother, her who told pole incident from linking any of Co- competent Mr. was as- her about it while Mr. Coburn disabilities to burn’s medical Wood, signed at Fort Leonard Missouri. R. at 21-22. his claims. denied
A March 2001 Board decision noted that family and his have to some “the veteran ANALYSIS ÍI. for inservice groundwork extent laid the . Other Stegall A Waiver of injuries, there is evidence with Remand, Bases for injuries disabilities” post-service Secretary argues “although there are some but found that Ste- file, pursuant remanded matter must be there is no medical VA records gall compliance with Appeals to enforce the 2001 the Court of for Veterans Claims that, alia, order or- Board’s remand inter of a final decision of Veter- (RO) regional dered a VA office Appeals, adversely ans’ a person affected orthopedic Mr. a VA Coburn with exami- by such decision shall of ap- file notice purpose ascertaining nation for the a peal with the days Court within 120 after opinion. Secretary’s medical nexus Brief date which notice decision is ” (Br.) at 15. The asserts that added)); mailed .... (emphasis also given Mr. although Coburn was an ortho- Nicholson, Padgett pedic this examination did (2005), grounds, withdrawn comply with the 2001 Board remand (2005) (“ ‘Secretary [ ] *4 order because in his making decision the ”); right appeal has no of to this Court.’ medical examiner did not review the medi- v. Vet.App. Williams 15 198 file, cal records or the claims which was (2001) 7252(a) (citing section for the propo- specifically required by the remand order. sition Secretary may that not seek Coburn, Secretary’s Br. at 16-17. Mr. decision). Therefore, a review of Board hand, argues other is satisfied grant Stegall the Court will not a remand with the medical examination report and in by the face of opposition Mr. Coburn. does not seek another and he argues Stegall provides proce- further Mr. argues Coburn that reversal veteran, dural rights to the not the Secre- is in this appropriate case and he further tary. Additionally, argues Mr. Coburn states that he not does seek remand for that he not contest the Board’s deter- the purposes development. of additional mination the section of its decision enti- However, appropriate reversal rem tled AND “REASONS BASES FOR edy only permissible when the of view the CONCLUSIONS, FINDINGS AND Pre- contrary evidence is deci Board’s (R. liminary matter: Duty to Assist” at 4 Brown, sion. Vet.App. See Johnson 7) through and that he “does not seek a (1996). Generally, where Board has purposes remand for develop- additional law, incorrectly applied pro failed to Appellant’s ment.” Br. at 7-8. adequate vide an or statement reasons right Court notes to “com determinations, bases for its or where the pliance with the remand provided orders” record is otherwise a inadequate, in Stegall process right guaranteed is a is the appropriate remedy. See Tucker claimants, VA Secretary. not the See Ste West, (1998); Vet.App. see also gall, 11 at 271 Vet.App. that re (finding (d)(1) 7104(a), § 38 U.S.C. (stating by mand the Court or the Board “confers decisions of Board shall be claimant, the veteran other or as a applicable provisions of regulation law and law, right compliance matter of Board shall a written the remand imposes orders” and on the statement of reasons or bases for its con a duty “concomitant to ensure clusions); Allday v. compliance with the terms the remand” (1995) 517, 527 (holding added)). Moreover, (emphasis it is the adequate “must be enable claimant to appellant, Secretary, not the who has the precise understand the basis for right a decision Board decision, as as well to facilitate (stat 7252(a) § the Court. See 38 U.S.C. Court”). informed review in this may the Secretary not seek re decision); notes, however, that, view of U.S.C. Court also (“In 7266(a) order to review to a Stegall compli- obtain contrast remand for order, Inadequate B. Reasons and Bases which is a anee with Court appellant, a remand on to an guaranteed service connection to be For necessitat one grounds, particularly (1) awarded, there must be medical evi is frustrated review appellate ed because (2) disability; of a current dence bases, or inadequate reasons because of evidence, circumstances, lay or in certain exclusively appellant’s right. Upon ag incurrence or evidence of and the Board deci review of (3) gravation injury; or disease below, sion, the Court discussed of a nexus between the medical evidence is defective finds that the Board decision claimed in-service disease thereby preventing in its or bases reasons injury. disease or See Hick present concludes by the Court and proper review (1999). West, son reversal, remand, appropri one element will result The absence Johnson, remedy. Tucker and ate See connection. In this in the denial v. Nichol see also Kowalski supra; both case, injured Mr. that he Coburn states son, (duty sister reports knee while service. His fully explain decision Board to *5 His hearing about the in-service incident. lost); records are O’Hare heightened when however, by confirmed injury, cannot be (1991) Derwinski, Vet.App. v. his service medical records because almost (same). lost, through no fault of Mr. all of them are that Regarding Mr. Coburn’s assertion postservice He has numerous in Coburn. he not seek remand for further devel- juries arguably that could be the cause of the notes that there is opment, Court claimed current disabilities. The his briefing in clear indication the opines medical nexus the record intentionally knowingly that and he from claimed that Mr. suffers his Coburn right to his to a remand. seeking waive disabilities disabilities and that these Vet.App. Principi, Janssen v. See to likely least than not” related his “at as (2001) (holding proce- to waive a injury. rendering at in-service “must represented dural examiner stated opinion, his medical must have knowl- right, first he possess and the claims file all that he had reviewed intend, right, and he must edge of available medical records. or voluntarily freely, relinquish sur- and Moreover, right”). render could have found that The Board his briefing,
overall context of Court against Mr. preponderated the evidence perceives the assertion that remand is having reported in- suffered Coburn’s being sought as an meant It did not. The Board injury.1 service that reversal position bolster Mr. Coburn’s had no found that Mr. Coburn could have not, remedy as the appropriate Or, It not. disability. did current explicit as an waiver of a perceives, dissent found that he suffered Indeed, instance, Board could have remand. waiver would, essence, reported but of a constitute there was no medical nexus between appeal. an abandonment of the Unlike disability. his injury and current dissent, the to stretch Court not inclined not; its reasons or did at least to this extent. Board arguments Mr. Coburn’s evi- appropriate on the have been options would only possible 1. We note connec- the elements service dence in record. imply possible find- tion do not adequately duty bases do not that con- support adequately aspects discuss those the report indicating clusion. the conclusion opposite medical examiner’s. Rather, rejected the medical See Vet.App. Fortuck the Board found that report because (2003) (It is incumbent upon the Board report postservice failed to address the “analyze credibility probative Coburn, injuries by leading Mr. suffered evidence, value the [material] account the Board to conclude that the medical for the evidence that it persuasive finds examiner had not considered entire unpersuasive, the reasons for conclusion, however, file. That is in stark rejection material evidence fa contrast made statements (citations vorable the claimant.” omit medical examiner in medical report. Brown, ted)); Meyer 9 only explicitly The medical examiner not (Board reject cannot evidence favor stated he reviewed the claims file and providing able to claimant without an ade provided, all reports he also ex- quate statement of reasons or bases for its plicitly appellant’s “perti- noted that decision). duty heightened when, This past history nent and findings” here, as records are lost (R. 656), were the claims file no fault through of claimant. See Russo concluded stating that “[g]iv- (1996) (when patient en that the history denies other service medical records are presumably falls,” traumas or likely most explana- destroyed, Secretary has heightened duty tion was that his current disabilities were assist the in developing his “at as likely least not” the result of his *6 claim, and has a heightened duty Board (R. 658). “evaluate and discuss its decision all of In reaching the conclusion the med- may the evidence that be favorable to the ical examiner had not reviewed the claims appellant”). file, the Board did not address peated the medical examiner rejected The Board also the medi that he had reviewed the claims file or his cal report because the Board determined specific reference to the appellant’s “perti- had examiner relied on the testi past history mony nent medical Mr. findings” Coburn. reliance that were in the claims file. Given the on a veteran’s statements a renders medi explicit acknowledgment examiner’s cal report incredible if the Board appellant’s past history being- rejects medical statements the veteran. See part Kowalski, of the claims file that he supra had re- (citing Wilson v. Derwins viewed, ki, 614, Board should have (1992), discussed 2 Vet.App. 618 for the whether the medical examiner’s statement proposition may that Board disregard that Mr. injuries Coburn denied other opinion solely medical on the rationale (which led the opinion medical examiner to con- that the medical was on a veteran); clude his current history given disabilities were related see also injury) Brown, the in-service constituted a deni- Reonal v. 5 Vet.App. 460 (1993) any or, instead, al postservice injuries (finding may reject Board medical postservice injuries provided by not addressed in the based on facts file. reject- previously inaccurate); claims Inasmuch as Board veteran found to be report ed the medical because Board Swann (1993)
concluded the medical examiner failed to (finding Board is not bound to ac file, consider the claims the Board cept had uncorroborated account of veteran’s West, (Fed.Cir.1998); F.3d must the credi- history but assess medical provided West, the evidence bility weight Vet.App. see also Hardin it). (Board In this in- rejecting (1998) by the veteran may its own not substitute stance, what it deter- the Board addressed independent judgment it conflicting but never facts mined were evidence). only medical nexus When the regard to the cred- finding rendered rejected report evidence is statements ibility of Mr. Coburn’s appears incomplete, may be confusing or examiner. See Swann report for clarification or new sent back O’Hare, the medical supra. both Either obtained, Bowling v. may Principi, (be- rejected improvidently report (finding un statements were credi- cause Mr. Coburn’s (2000), § “if further der 38 C.F.R. 19.9 ble) failed to or the Board clarification of the evidence evidence or of reasons or bases adequate statement appellate ... for a deci proper is essential any finding that unstated sion,” shall remand case to were credi- Mr. Coburn’s statements 19.9(a) (2003). RO); If C.F.R. ble. determines it can render a deci rejection note We further any sion on the claim in the absence of instance —the of the medical information, it must provide medical nexus the record only one the record —left reasons statement of or bases adequate it was in same condition largely de for that and its ultimate determination remanded the matter when the 2001 Board cision. obtaining a medical purpose remand, claims file assessment because the will nexus On Mr. Coburn R. at 594. assessment. contained such present additional evi opportunity Yet, explain why failed the 2003 Board argument support dence and proceed to render a decision on it could claim, must and the Board consider basically when, claim based on presented. See so evidence, the 2001 Board determined same 529, 534 Kay *7 opinion a nexus that a remand for medical (2002). expects The Court the Secre necessary. required The Board is was of treatment tary provide expeditious will a full of the reasons or provide explanation on remand. See 38 U.S.C. this matter for its decisions. See 38 U.S.C. bases § 7104(a), (d)(1); Allday, supra; see also 5103A; §. Wells v. 38 U.S.C. III. CONCLUSION (Fed.Cir.2003) (stating F.3d 5103A(d) places duty a that section analysis, de- foregoing on the Based a Secretary to medical examina ASIDE and cision of the Board is SET such is opinion opinion where nec tion or for further devel- matter REMANDED is on veteran’s essary to make a decision opinion. opment consistent with disability compensation). claim for that, caution the Board Finally, we LANCE, dissenting: Judge, it may reject opinions, it although with the black- generally agree IWhile then its own medical may not substitute I majority, articulated letter law rejected. for See Colvin judgment those of law to Derwinski, disagree application (1991), find- majority’s The Hodge this case. grounds by facts of other overruled at- ing of a reasons-or-bases error is an record is adequate grant of service fashioning remedy a tempt Appellant’s at around the connection.” Br. at 8. of all appellant’s unequivocal waiver issues dispute is no opin There that a medical adequacy than other evidence. ion on an premise based inaccurate factual reversal, support ap- To his claim for competent is not evidence. See Reonal pellant strategic forego made a decision to (an adequacy development review the opinion based an upon inaccurate factual vehemently and to case attack the Sec- value). premise has no probative There is retary’s suggestion that case should an question opinion based on be remanded. This Court should not dis- premise inaccurate it factual if assumes appellant’s knowing and volun- did the Board finds reasons, tary waiver. For these view, In my not occur. Id. a medical follow, I respectfully the reasons must opinion is also' based on an fac inaccurate dissent. premise tual it when assumes that there intervening injuries
were no between ser vice and and that as THE I. MAJORITY’S REASONS contrary sumption ex OR REMAND BASES press findings. That is the case here. My disagreement with majority’s opinion The medical nexus at issue analysis reasons-or-bases can stated on faulty premise, and there is no I nutshell. believe that way from to determine what the reasons or bases was ade- opinion doctor’s would have been had he quate because it clear that the Board considered the factual accepted basis concluded nexus the Board. Accordingly, it is not compe opinion of based on an inaccu- tent evidence on the medical nexus issue. premise. rate factual The basis for that conclusion was that majority voluminous evi- glosses over facts sur- dence of record rounding contradicted opinion reasonable the medical with a two- interpretation opinion’s summary sentence of its conclusion. plain language. majority places following: Despite would add the the ex- higher much burden the Board to me- aminer’s the appellant’s assertion ticulously reviewed, dissect the medical every and medical records were to explicitly reject every interpretation of paragraph “History Present Ill- it than one chose. As ness” section begins patient with “The below, detailed I do not ports” believe this failure or “he reports.” R. 656. Fur- *8 thermore, to explicitly all interpreta- despite plethora address other the of medical tions frustrates our review of whether the evidence that documented in a knee supports (which evidence the unambigu- years car accident 20 after service ous conclusion that the opinion began period medical of documented continuous faulty premise. Applying was based complaints, re-injuries treatment), an unnecessarily high infra, the opinion reasons-or-bases medical no contains deciding standard rather than ap- the issue of the mention accident or presented perpetuates the pellant’s subsequent complaints hamster-wheel and treat- reputation of ignores veterans law and the ment. The Board seized on these in facts appellant’s pointed argument observing opinion the “ap- “[h]av- doctor’s adjudication had his in pears claims entirely ten on the medical years, he believes that the evidence of history elicited from the veteran” and that years injuries following the in the months and ignored to have “appears the doctor injuries af- the R. at 8-14. The Board fur numerous left knee accident. sequela of forming beginning February ther that in acknowledged ter service opinion.” R. at 20-21. The that the 1975 automo appellant denied stating that a medical several cases cited had ever R. at 15. bile accident occurred. an inaccurate factual opinion based analysis, In its that there the Board states no supplied by veteran is premise problem no a left evidence of knee “until “[tjhere is value and concluded probative May 1975, nearly years after discharge. linking any of competent [the no evidence The bulk of medical evidence thereafter atR. disabilities to service.” appellant’s] complaints treatment for knee ... reflects in a motor vehicle accident occurred 21. accident, May Following majority relies on To extent that history lengthy veteran’s medical reveals I opinion, in the medical ambiguity problems, including left re- course of knee responsibility it is the Board’s believe that injuries R. at 19. When T thereafter.” first in interpret decision, I no read the Board’s have trou give must deference stance and we Derwinski, 2 Hersey understanding ble how the Board inter interpretation. its (1992). case, 91, 94 In this preted' opinion or what evi medical that he had in his rejecting doctor asserted factual dence relied on n premise. prior all of the medical evidence. reviewed though opinion Even medical ultimate conclu R. at 656. inconsistent, disturbingly patient denies was: “Given sion interpretation it is As not. we not falls,” history of his cur traumas or reviewing opinion itself likely “at as as rent disabilities were least bases, adequate reasons or injury. of his not” the result do not believe that the review has Court’s quoted language makes clear at 658. been frustrated. premise that the doctor’s emphasis majority places great no other inter that the sustained the Board’s conclusion doctor did
vening injuries. To the this conclu extent claims file. Giv review the must defer questioned, could be we sion medical evidence of an en the wealth of interpretation Board’s reasonable accident, intervening phrasing of the supra. Hersey, See erroneous. history, complete and the absence detail, great As the Board discussed in mention of the records of the acci evi overwhelming there is an quantum report, dent in the doctor’s Board rea premise in the record that the dence claim to sonably discredited the doctor’s R. at 345 intervening injury false. the whole claims file. reviewed 524, 535, -47, 405, 517, 521, 537. The Moreover, does not benefit extensively discusses the Board’s decision . interpretation from' It the alternative 1975, which dating records from could be true that the doctor reviewed the postservice automo amply document the entire claims file but chose believe where the left bile accident *9 appellant’s history denial of a of interven injury injured and knee was the additional However, ing injuries. this would ren unloading vehicle while the he sustained evi opinion competent doctor’s der the R. at 8. seeking before medical treatment. why the 'doctor It not matter dence.- does by discussing continued the The Board the ap accepted premise the false 1975 the medical records that documented not occur. What and re- car accident did many complaints pellant’s 436 cited ample development.”
matters is evi- tional Br. at 8. He wants us his was dence that conclusion based on rejection review Board’s of med- therefore, and, false premise was not com- opinion ical and its ultimate denial ser- petent evidence. vice connection for clear error. Unlike the I majority, accept appellant’s belief majority places emphasis on also years development enough opinion the fact that the makes a doctor’s I willing and am to review the issue he has boilerplate having reference to reviewed presented. history. R. at 656. However, the acknowledged Turning to the actually issue raised “the examiner noted that the claims file appellant, I support cannot an award was during reviewed this examination.” compensation benefits based on an inad- view, my majority’s R. at 20. In asser equate clearly questionable and tion that a more thorough discussion was opinion. I Accordingly, since find that the required misapplies re the burden. Our appellant has purposefully unequivo- and view is not frustrated where we under cally abandoned and waived consideration (the stand opinion the Board’s conclusion of all Stegall issues would warrant a was incompetent assumed no remand or a remand additional devel- injuries) what intervening and evidence is opment, including clarification of (the relied on to reach this conclusion lan VA opinion examiner’s or a new VA medi- guage opinion the ample and evi infra, cal I would affirm injury). dence of an intervening See Gil the Board’s denial of service connection Derwinski, 49, bert v. the grounds that competent, there (1990) (deriving our reasons-or-bases stan probative credible evidence of link- Pitts, Camp dard from 411 U.S. current disabilities 142-43, S.Ct. L.Ed.2d 106 or injury event in service. (1973), Inti Longshoremen’s Ass’n. Bd., Nat’l Mediation 870 F.2d
(D.C.Cir.1989)). in a position We are II. THE APPELLANT’S WAIVER determine Board’s whether the conclusion OF OTHER ISSUES erroneous, was remanding Despite preceding analysis, I must case parse for the Board to further state that do not agree irredeemably ambiguous opinion cannot denial of service connection in this case. change language ample or the evidence Had issue presented been for our re- proves appellant did suffer view, I would have remanded this matter “ injury. intervening Such remand ‘un sug- Board —as the has necessarily impos[es] additional burdens gested apparent the RO’s fail- —based on the BVA ... with no VA benefit comply ure to with the Board’s ” flowing to the veteran.’ Sabonis Nonetheless, mand order. I find (quoting appellant, counsel, who is represented by Derwinski, Soyini v. knowingly voluntarily has waived (1991)). Barring completely gratuitous true matter, remandable error Board, change of heart therefore, I would affirm the deci- thing that change could outcome sion. development would be further Upon finding the claim. made that the 2002 VA medical clear in opening brief examiner’s not competent “[h]e purposes seek a remand for necessary opin- addi- medical nexus
437 Court, appeal on to this the claimed disabili linking the ion counsel, through in appellant, to has stated service, required ties the Board to no uncertain terms that he does want adequate to the RO for an return the case First, to the Court consider this error. examination, in accordance al appellant’s opening the brief does not order, the remand Secre prior Secretary to lege any failure the com assist, tary’s statutory duty to and control order, ply with the Board’s 2001 remand 38 U.S.C. ling regulations. See and therefore error 5103A(d) (Secretary § shall a med deemed v. should be abandoned. See Ford opin or a medical ical examination obtain Gober, 531, (1997); 10 Buck Vet.App. 535 on necessary to make a decision ion when Brown, 5 linger Vet.App. v. West, claim); Vet.App Stegall the West, (1993); Henderson v. 12 Vet. (1998) (remand on cf. by the Board confers (1998) (deeming 18-19 claims App. right compliance the veteran the not ad appellant abandoned where did imposes on the Sec the order and remand brief, dress them in initial but asserted duty to ensure retary the concomitant brief). Second, reply them in if there was (2004) (if § ex 38 C.F.R. 4.2 compliance); appellant doubt intended suffi report does contain amination compliance with the right waive his detail, rating upon it is incumbent cient remand, prior response to Secre inadequate board to return the remand, tary’s urging Stegall the appel re purposes). Rather than for evaluation granting lant opposed that relief matter, proceeded the Board mand argued: deny connection the basis A or the Board remand Court competent medical evidence there was no appellant confers to VA claimed disabilities linking compliance with the terms of the This was remandable error. service. appellant case mand order. 5103A(d); Stegall, supra; See U.S.C. orthopedic with the quite comfortable Derwinski, Vet.App. Green following which he received examination (1991) (“[FJulfillment duty statutory not seek [Board] [requires] thorough contem assist Stegall requires that another.... poraneous medical one which instruc- [RO] [Board’s] follow prior into account the records of takes tions, happened in exactly that is what treatment, so that the evaluation case. disability fully of the claimed will be a (emphasis original). Br. Reply one.”); also informed Suttmann posi- has taken Clearly, (1993) (same). com- tion that the medical examination VA The examiner’s should have been the remand order plied with the terms of Board, rejected by Stegall remand is not war- and therefore opin sought clarification should ranted. ion with another provided duty-to-as- with the complied Furthermore, concerning
VA examination that Prin issue, 2001 remand order. Mariano v. frame the an effort to sist Cf. (“[R]eli Court, cipi, appel- issues brief, lant, noncomplying such a examination included a sec- opening ance on in his “Preliminary especially it is the Statement— adjudication, where tion entitled Br. Being at 7-8. Appealed.” which the Board is Not principal upon What he “does stated that relied, explicitly Therein permissible.”). is not *11 any regarding ciency theory of the inadequate raise issues evidence based on the development Having his case. his had Secretary estopped from find- adjudication years, claims in for ten he ing that a VA is incompe- that evidence believes is ade- tent he adjudicates when a claim on the grant quate connection of his merits after a Stegall remand. We should leg hip bilateral and conditions. He does not override his decision we and should purposes not seek remand addi- decide the has he raised. development.” Br. at 7-8 (emphasis tional See Janssen v. added). “in He further stated he is (2001) (permitting appellant to ex- agreement Finding of Fact # 1 in the plicitly waive the Court’s consideration on which decision states that the RO [Board] appeal any duty-to-assist and VCAA [him] has notified evidence needed error). However, notice I because do not to substantiate the claim has obtained wrongs believe two make a right, fully developed necessary all evidence affirm would A decision. Ste- equitable disposition for the the claims” gall cloak error cannot a medical opinion and he does not contest the Board’s state- competence in false where it is based on an ment of findings reasons bases for premise. inaccurate factual “duty regarding conclusions to assist.” my view, In position be- added). Br. 7 (emphasis Finally, at in his analogous fore the Court to invoca- position conclusion he again stated his 3.655(b) (2005) tion 38of C.F.R. at the Secretary argue “the to entitled now regulation VA level. That provides that the case needs to remanded to “when claimant fails to for an just obtain new VA examination conjunction examination scheduled in got doesn’t like the examination it claim, an original compensation the claim first time. There no matter on shall be rated the evidence of supports an argument such for re- record.” Id. The has stated be- Equity mand. calls for the case to be fore the Court does not seek a “[h]e decided the evidence of Br. at record.” purposes mand for of additional develop- (Br. 7-8) “[e]quity ment” at and that calls foregoing excerpts The from the appel- for the case to be decided evidence briefs unequivocally lant’s (Br. 18). of record” at the appel- Just as demonstrate appellant, through adjudication lant can force an of the exist- counsel, a purposeful has made decision by Board, I believe that forego procedural compliance represented an appellant who is counsel order, with the remand unambiguous and who is in his wishes can he has decided that does not want this My do the same at this level. caveat is Court consider error in the develop- that appellants should be aware that ex- ment of If his case. there was doubt plicitly waiving procedural obvious errors desire, as to the his reaction to does not entitle them special consider- Secretary’s it. brief eliminated When ation the arguments they choose to presented suggestion with the make. remanded, appellant vigorously case be majority critiques my position asserted that power had no instance, trying saying: “[I]n raise error waiver of a con- Appellant’s would, essence, Reply cede. Br. 1-2. constitute an engaged view, has in a appeal.” my deliberate abandonment of the however, strategy to limit our suggestion review the suffi- their puts the cart *12 Secretary’s concession error should majority can the the horse before consequence should be he the issue fail deciding this claim only make with reopen to his claim decid- must now seek has raised appellant that the before By paternalis- and material evidence. of re- new accept his waiver to ing whether manufacturing taking tically before VA appellant error. The mandable brinksman- appellant’s risk out of the retroactively -imrefuse could not 3.655(b) appellants majority encourages ship, after under for an examination positions and dis- litigation on the take extreme his claim based the Board decides working with the Sec- Similarly, courages them from we must of record. error, as waiving retary where there is remandable what issues decide in his Secretary conceded brief this the merits of the issues evaluate before we coop- decision will lead less un- case. This His choice to raise presented. disposed by that should be constitute eration cases does not arguments meritorious joint Appellants have According- motions remand. appeal. of an an abandonment error, waiver, but to waive remandable ly, accept I would encouraged do they should not be so of the has the merits issue address raise, argument, on the belief that the Court will find reject his and based chosen to their if merits, way implicitly not on a undo waiver on the deny appeal fails. For that their for reversal theory of abandonment. above, reason, and the reasons stated majority’s contrary characterization disagree majority’s approach accepted sound and procedurally respectfully case and must dissent. their actually reveals dis- judicial position has fores- appointment in this case.
worn the remandable error
However, judges as is to appellate our role issues raised on
decide the proceedings before parties
agency. Advocates charged build responsibility COKER, Appellant, Brian K. develop process, that record. claimants, Secretary may counsel, strategic make tactical and choices. Once NICHOLSON, R. James
made, choices, improvident those however Affairs, Appellee. of Veterans they may appear retrospect, become a No. 02-1107. proceeding, and it is our part judges strategic to overrule those role of Appeals United States Court appel- litigation represented decisions Claims. Veterans Acting merely contrib- lants. otherwise 2, 2006. Feb. congestion utes to the of an overburdened system expense of thousands adjudication. who await
eligible claimants position
Had the been cor-
rect, to waive the remandable his decision put in this case him
error would
substantially money in having closer to gamble rejecting
hand.