ORDER
The appellant appeals an August 9, 1996, decision of the Board of Veterans’ Appeals (BVA or Board) which found, inter alia, that his service-connected post-traumatic stress disorder (PTSD) warranted a 50% disability rating. On appeal, the appellant argues that a higher rating should have been assigned and seeks reversal of the Board’s decision with instructions to award a total disability rating. The appellant’s brief does not address the remaining eight issues decided by the Board; accordingly, the Court deems those claims abandoned. Bucklinger v. Brown,
The Secretary has moved for a remand of the portion of the BVA decision pertaining to the appellant’s PTSD claim in light of
The appellant argues that the Board’s conclusion that he was not entitled to a 100% disability rating pursuant to 38 C.F.R. § 4.132, Diagnostic Code (DC) 9411(196) was arbitrary in light of the Board’s notation that “[t]he record is negative for any evidence that the veteran has social contacts other than with his wife.” R. at 12. At the time the Board issued the decision on appeal, the criteria for a 100% disability rating for PTSD required consideration of whether the claimant’s condition affects the “attitudes of all contacts except the most intimate ... so as to result in virtual isolation in the community.” DC 9411. The appellant asserts that “[b]y finding that Mr. Kingston has no social contacts other than his wife and yet denying a total disability rating under § 4.132, the Board necessarily determined that a veteran’s wife is not one of the most intimate contacts within the meaning of the regulation.” Appellant’s Brief (Br.) at 11. The appellant urges the Court to resolve “the legal issue of whether a spouse is among a veteran’s most intimate contacts within the meaning of ... [DC] 9411.” Appellant’s Opposition to Appellee’s Motion for Remand and to Stay Further Proceedings at 6-7. The appellant also argues that the Board’s finding that the severity of his PTSD was “considerable” was clearly erroneous. Br. at 12.
In Kamas, supra, the Court held that where a statute or regulation changes during the appellate process, the version most favorable to the claimant shall apply. Although the appellant purports to waive his right to readjudication pursuant to Kamas, it is not the function of this Court to determine in the first instance which version of the law is most favorable to the claimant. Baker v. West,
Because the Board will have to compare this appellant’s benefits under both the original and the amended rating schedule, the Court must consider his challenges to the BVA decision before us. See Baker, supra (vacating and remanding a BVA decision pursuant to Kamas, despite appellant’s waiver). In Baker, the Court first ruled on that appellant’s assertion that the Board’s decision was clearly erroneous and, finding that it was not, remanded the matter for readjudieation pursuant to Kamas. It appears that the Court’s holding in Baker was intended to establish a determination on the appellant’s assertion that the BVA decision was clearly erroneous that would be binding on the BVA during readjudication. The precedential value of the Court’s statement that the BVA decision in that case was not clearly erroneous is unclear considering the Court’s ultimate vacation of that decision. Cf. Laruan v. West,
We disagree with the appellant’s basic premise that whether a claimant’s spouse is one of his “most intimate” contacts pursuant to DC 9411 is a matter of law. The issue is not legal but factual and depends upon the evidence presented. One certainly can envision a factual circumstance where the Board would be compelled to find that a particular claimant’s spouse is not one of that claimant’s most intimate contacts. Thus, we cannot accept the appellant’s invitation to hold, as a
The Court finds, however, that the Board has failed to provide an adequate statement of reasons or bases for its implicit determination in this case. 38 U.S.C. § 7104(d)(1); see also Gilbert v. Derwinski
The Court also finds that the Board’s conclusion that the severity of Mr. Kingston’s PTSD is “considerable” is not supported by an adequate statement of reasons and bases. Id. Although the appellant argues that the Board’s finding was clearly erroneous, his brief serves to highlight the evidence of record for which the Board, while acknowledging its existence, simply failed to provide sufficient discussion and analysis “to permit effective judicial review.” Gilbert,
“A remand is meant to entail a critical examination of the justification for the decision. The Court expects that the BVA will reexamine the evidence of record, seek any other evidence the Board feels is necessary, and issue a timely, well-supported decision in this ease.” Fletcher,
On consideration of the foregoing, it is
ORDERED that the Secretary’s motion for remand is granted, the portion of the August 9, 1996, decision of the Board of Veterans’ Appeals assigning a 50% rating to the appellant’s service-connected PTSD is VACATED, and the matter is REMANDED for readjudication.