Alexander A. Medlin v. Douglas A. Collins

Case: 24-3304 Page: 1 of 22 Filed: 04/06/2026

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 24-3304

ALEXANDER A. MEDLIN, APPELLANT,

V.

DOUGLAS A. COLLINS,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Decided April 6, 2026)

Glenn R. Bergmann and David S. Ames, of Rockville, Maryland, were on the brief for the

appellant.

Michael R. Hogan, Acting Principal Deputy General Counsel; Mary Ann Flynn, Chief

Counsel; Melissa A. Timbers, Deputy Chief Counsel; and Spencer S. Horseman, all of Washington,

D.C., were on the brief for the appellee.

Before BARTLEY, TOTH, and FALVEY, Judges.

TOTH, Judge, filed the opinion of the Court. BARTLEY, Judge, filed a dissenting opinion.

TOTH, Judge: From time to time it becomes necessary for courts to revisit their most

frequently cited caselaw to ensure that governing standards haven't drifted from their original

meaning due to overfamiliarity and so risk becoming boilerplate. This reconsideration motion,

which the Court grants, provides occasion to look closely at how the Court assesses whether the

Board satisfied its duty to provide adequate reasons and bases for its decision.

Contending that the Court overlooked his argument and engaged in improper factfinding,

Air Force veteran Alexander A. Medlin moved for reconsideration of a memorandum decision that

affirmed a March 2024 Board decision denying his claim for a psychiatric disorder. Mr. Medlin's

claim for benefits was premised on his contention that his decline in performance during service

constituted the requisite in-service event, or alternately, served as evidence of a psychiatric

disability incurred during service. On appeal, Mr. Medlin argued that the Board provided

insufficient reasons and bases to support its decision because it mischaracterized his performance

Case: 24-3304 Page: 2 of 22 Filed: 04/06/2026

evaluations and so downplayed evidence relevant to the in-service injury or event element. The

Court affirmed, discerning that the Board provided adequate reasons to support its finding.

We granted reconsideration to discuss in greater detail the nature of the Board's duties to

provide reasons and bases for its decisions under 38 U.S.C. § 7104. The Court thus withdraws its

August 2025 memorandum decision and issues this decision in its place. In so doing, we hold that

the Board provided findings and explanations as to all material issues of fact and law; it analyzed

and discussed the credibility and relative probative value of the material evidence; it explained

which items of evidence it regarded as more persuasive than others; and, it provided reasons for

rejecting the appellant's reading of potentially favorable evidence in the form of the military

personnel records. Because there is no basis to conclude that the Board failed to satisfy its duty to

provide adequate reasons and bases, and no clear factual errors for us to correct, the Court affirms.

I. BACKGROUND

Mr. Medlin served in the Air Force from 1985 until 1993 when he was discharged for

failing to meet the Air Force's weight standards. R. at 1977. His theory of service connection for

his psychiatric disorders is based on his weight gain during service: specifically, he asserts that his

in-service weight gain reflects an event (for the purposes of establishing service connection)

because it was either evidence of declining performance standards or of his emerging psychiatric

conditions.

Mr. Medlin's weight problems began about 6 years after enlistment. In July 1991, he was

placed in a weight management program to help him lower his body fat percentage to meet the Air

Force's weight standards. From 1991 to 1993, he failed his weight management programs, as

reflected in official reprimands for failure to maintain weight standards and annual performance

evaluations. See, e.g., R. at 1897 (August 1992 reprimand), 1935 (November 1992 performance

evaluation).

Despite his difficulty maintaining weight standards, he excelled in work performance and

was promoted shortly before his discharge. Across several categories of his performance

evaluations, he was lauded as being highly skilled, exceeding standards and expectations, and

setting examples for others. See, e.g., R. at 1936. His lowest marks were in categories such as on-

and off-duty conduct, knowledge about primary duties, and compliance with Air Force

standards—presumably due to his weight issues. Nonetheless, his overall marks were good: for

2

Case: 24-3304 Page: 3 of 22 Filed: 04/06/2026

knowledge of primary duties, he was noted as having "[e]xtensive knowledge of all primary duties

and all related positions"; for on- and off-duty conduct, he set "the example for others"; and for

compliance with standards, he was found to meet Air Force standards. R. at 1935. But because Mr.

Medlin struggled to maintain his weight to meet Air Force standards, he was recommended for an

honorable discharge in 1993. See R. at 1903.

The record before the Court does not reveal much for the period between Mr. Medlin's

discharge and the early 2000s, when he began seeking mental health treatment. One of the first

medical records in the file is a primary care note from May 2005, where Mr. Medlin "den[ied] any

history [of] depression, anxiety or related disorders." R. at 2459. In June 2007, he "reluctantly"

met with a social worker. R. at 2440. He appeared to seek treatment because "his primary care

provider and his live-in girlfriend expressed concern with his moodiness." R. at 2440. At the

appointment, Mr. Medlin denied experiencing depression symptoms but "admit[ted] to anxiety."

R. at 2440. He primarily reported issues with irritability and anger "for years," in addition to many

experiences with anxiety. In terms of his military history, the social worker noted that he referred

to his service experience "with fond terms." R. at 2442. The social worker's assessment was

generalized anxiety disorder; the pair agreed that he would try individual psychotherapy. R. at

2443.

Shortly after, in January 2008, Mr. Medlin had a consultation with a VA psychiatrist, Dr.

Komareth. R. at 2227. After an in-depth interview, Dr. Komareth observed that the veteran had

"some depression, a severe temper and anger management problems and alcohol abuse history."

R. at 2227. Dr. Komareth prescribed a treatment plan that included medication and supportive

therapy.

In June 2010, Mr. Medlin was evaluated in preparation for a deployment to Afghanistan as

an employee of Defense Finance and Accounting Service. His treating physician noted that he "has

had some problems with chronic depression and anxiety for approximately 2 to 3 years" and that

his symptoms are "well controlled" with medication and personal therapy. R. at 2212.

Then, in June 2016, Mr. Medlin filed a claim for a psychiatric disorder. In September, he

filed another claim for bipolar disorder and depression. In the ensuing decision, VA denied service

connection for bipolar disorder and other psychiatric conditions. Mr. Medlin quickly filed a Notice

of Disagreement (NOD). He included a letter from his treating psychiatrist, Dr. Komareth, who

said that he had been treating Mr. Medlin since 2008. Dr. Komareth explained that the veteran had

3

Case: 24-3304 Page: 4 of 22 Filed: 04/06/2026

a long history of psychiatric symptoms and that he probably has had a psychiatric condition for

many years. He added that Mr. Medlin reported he had mental health symptoms while in the Air

Force. R. at 1128. The Agency continued to deny the claim, and Mr. Medlin continued to appeal.

As part of his appeal to the Board, he submitted another letter from Dr. Komareth, which reiterated

that "it is highly probable that he had [bipolar disorder] for many years even while he was in the

Air Force before I saw him." R. at 441. At his Board hearing, Mr. Medlin reported that his

psychiatric symptoms began in service and that his decline in performance evidenced his emerging

symptoms. R. at 210-13. He testified that towards the end of his service he was having a hard time

concentrating (R. at 210), "screwing up" at work (R. at 212), and having marital problems that led

to divorce (R. at 212-13). He also said that, shortly after his discharge, he tried to get a job as a

corrections officer but was denied for failing the psychological testing. R. at 210.

The Board denied his claim, and he appealed to the Court with help from the same law firm

that represents him in this appeal. In a memorandum decision, the Court remanded for the Board

to address whether the duty to assist required it to obtain a VA nexus opinion, an error that the

Secretary had conceded. On remand, the Board found that VA had no duty to provide an exam. It

issued several findings (discussed further below) to support that determination, including rejecting

the veteran's theories that his in-service weight gain reflects an in-service event because it was

either evidence of declining performance standards or evidence of his emerging psychiatric

conditions.

On appeal, Mr. Medlin argues that the Board did not provide an adequate statement of

reasons and bases for its determinations that (1) his service records do not show a decline in

performance, (2) his reports of in-service psychiatric symptoms are not credible, and (3) the

September 2016 letter from Mr. Medlin's treating psychiatrist is not probative. See Appellant's Br.

at 6. He attacks these findings in an effort to overturn the Board's ultimate determination that he

did not have an in-service event or symptoms that would trigger a need for VA to provide a medical

exam. See 38 C.F.R. § 3.159(c) (2025). He also argues that the Board clearly erred in failing to

remand to obtain private records under the duty to assist.

4

Case: 24-3304 Page: 5 of 22 Filed: 04/06/2026

II. ANALYSIS

A.

In the seminal decision of Gilbert v. Derwinski, 1 Vet.App. 49 (1990), we noted that 38

U.S.C. § 7104 establishes a discrete duty upon the Board to explain its various findings and does

not displace 38 U.S.C. § 7261, which sets out the standards of review by which the Court assesses

error in a Board decision.1 Examining both statutory provisions, Gilbert held in unequivocal terms

that the Court assesses for clear error the discrete findings and supporting analysis of the Board.

"[I]n order for a finding of material fact made by [the Board] to be set aside, this Court must

conclude that the finding is 'clearly erroneous.'" Id. at 52. Significantly, the act of assessing discrete

findings of the Board for error constituted a similar but nonetheless distinct task from assessing

whether the Board rendered all necessary findings as to material facts and issues and whether its

explanation supporting such findings was adequate for purposes of judicial review. As to the duty

to provide reasons and bases, Gilbert noted that to "facilitate judicial review," the Board must

"articulate with reasonable clarity its 'reasons or bases' for decisions," including identifying "those

findings it deems crucial to its decision," accounting for "evidence it finds persuasive or

unpersuasive" through "clear analysis." Id. at 57.

Although this formulation has been refined over the years, Gilbert's basic framework

remains controlling. A survey of three decades of caselaw assessing the Board's duty under section

7104 reveals several basic principles that inform how the Court reviews whether the Board

satisfied its duty under section 7104. We restate these principles here. First, as overall background,

section 7104 establishes a duty for the Board and does not purport to set out a superordinate

standard of review for this Court that displaces the "clear error," "arbitrary and capricious," or

"abuse of discretion" standards set out in section 7261 by which the Court assesses agency error

in a particular finding. Id. at 52. Instead, evaluating whether the Board satisfied its duty to provide

reasons and bases entails a discrete inquiry with a specific methodology assessing identifiable

factors that have been set out clearly across scores of cases from this Court.

Second, the touchstone in assessing whether the Board satisfied its reasons and bases duty

is whether the decision is intelligible and so is "adequate to enable a claimant to understand the

1

At the time Gilbert was issued, the reasons and bases duty was codified at 38 U.S.C. § 4004, whereas the

Court's scope of review was codified at 38 U.S.C. § 4061. Those provisions are currently codified at 38 U.S.C. §§

7104 and 7261, respectively, and are identical in all material respect to the versions interpreted in Gilbert.

5

Case: 24-3304 Page: 6 of 22 Filed: 04/06/2026

precise basis for the Board's decision and to facilitate review in this Court." Southall-Norman v.

McDonald, 28 Vet.App. 346, 355 (2016). This naturally focuses on whether the Board has

rendered all the necessary findings on material issues of fact and law and whether its analysis of

such findings is intelligible to the claimant and Court alike. Id.; Gilbert, 1 Vet.App. at 57. If the

Court needs to guess what the Board's reasoning might be as to a material issue of fact or law, the

Board has violated its duty to provide adequate reasons and bases.

Third, and most relevant here, the duty to provide reasons and bases extends to material

issues of law and fact "upon which the outcome of the litigation depends." Gilbert, 1 Vet.App. at

52. By covering only material facts, the reasons and bases duty does not require the Board to

discuss every peripheral fact or detail in a record whose ultimate relevance to dispositive findings

is unclear. See Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007). Because they

influence dispositive rulings, material facts are "crucial" to a decision such that in their absence a

reviewing court would have to supply a vital link in the reasoning for a finding. Gilbert, 1 Vet.App.

at 57. As to material issues of fact and law, the Board "must identify those findings it deems crucial

to its decision and account for the evidence which it finds to be persuasive or unpersuasive." Id.

For issues of law, the Board must address all regulations that are "made potentially applicable

through the assertions and issues raised in the record." Thomas v. McDonough, 97 F.4th 850, 853

(Fed. Cir. 2024) (citing Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991)).

Finally, when reviewing matters under section 7104, the Court assesses the Board's

decision "as a whole," rather than isolating a single aspect or sentence of the Board decision.

Janssen v. Principi, 15 Vet.App. 370, 379 (2001). As Gilbert noted, material issues of fact and law

are those that affect the outcome of litigation. Because the duty does not extend to non-material

issues, a misstatement or other error cannot be deemed to invalidate the Board's reasons and bases

unless it can be shown to adversely affect or render unclear the Board's reasoning with respect to

a dispositive ruling. Valiao v. Principi, 17 Vet.App. 229, 232 (2002). In other words, the

misstatement must affect the outcome of the litigation. Gilbert, 1 Vet.App. at 52 (explaining that

material facts are those on which "the outcome of the litigation depends"). Because the reasons

and bases duty applies only to material factors, a misstatement relating to non-material factors

does not constitute a violation.

Combining all these discrete duties, a Board decision satisfies the reasons and bases duty

when, read as a whole, it renders findings on all material issues of fact and law and provides

6

Case: 24-3304 Page: 7 of 22 Filed: 04/06/2026

sufficient analysis for the claimant and the Court to understand the rationale supporting such

findings. This requires the Board to sufficiently analyze the credibility and probative value of

evidence, account for evidence that it finds persuasive or unpersuasive, and provide reasons for

rejecting any material evidence favorable to the claimant. Arline v. McDonough, 34 Vet.App. 238,

247 (2021).

Here, the appellant's reconsideration motion challenged the Court's review of the Board's

reasons or bases duty on the grounds that the review constituted improper "factfinding." Because

these two issues—the Board’s duty to provide reasons and bases and the Court’s obligation to

review the Board decision against the evidence of record—are so closely bound, we address this

as well.

The term "factfinding" has been used overbroadly in veterans law to such a degree that it

risks becoming wholly untethered from how that term is understood elsewhere in law. As a term

of art, factfinding means entering specific findings as to dispositive elements of a legal claim

according to the evidence of record.2 This is no different in veterans law or administrative law in

general. Reflecting this common understanding, we issued our decision in Gilbert that mandates

that the Board enter factual findings as to all material issues "'upon which [the] outcome of the

litigation depends'." 1 Vet.App. at 52 (alteration in original) (quoting Black's Law Dictionary, 881

(5th ed. 1979)).

Factfinding, in other words, always relates to material facts: this Court has never held that

judicial review is not allowed unless the Board provides a line-item accounting of every detail in

a record. Indeed, the common law principle spelled out in Chenery v. SEC, 332 U.S. 194, 196

(1947), that a reviewing court cannot uphold a policy determination on grounds different than

those provided by the agency, has never been read to suggest that judicial review is limited to only

those details expressly cited by the administrative agency. See Sanders v. Shinseki, 556 U.S. 396,

406 (2009) (holding that the Court assesses the prejudicial effect of error by making a case specific

assessment in the same manner as federal district courts under 28 U.S.C. § 2111). And for good

2

In criminal law, the Sixth Amendment secures, among other things, the right of a criminal defendant to

have a jury determine all the statutory elements of an offense as well as any fact that raises the statutory minimum or

maximum sentence. See Alleyne v. United States, 570 U.S. 99 (2013); Apprendi v. New Jersey, 530 U.S. 466 (2000).

Civil law offers an ever narrower account of factfinding, where the Seventh Amendment has been interpreted as

requiring no more from a jury than to resolve genuine issues of material fact. See Celotex Corp. v. Catrett, 477 U.S.

317 (1986). The Seventh Amendment has never been read to prohibit judges from reading the evidence of record and

granting summary judgment or dismissing pleadings that fail to state a plausible claim for relief. Id.; Bell Atl. v.

Twombly, 550 U.S. 544, 570 (2007).

7

Case: 24-3304 Page: 8 of 22 Filed: 04/06/2026

reason: in addition to making judicial review impossible, it would redirect the Board's focus from

discussing the most probative evidence and salient issues to addressing every peripheral item of

evidence or face automatic remand. This, in turn, would place incredible strain on Board

adjudicators and extend the intolerably long wait for Board decisions.

Instead, our caselaw is clear that once the Board has entered findings as to all matters

controlling the outcome of litigation, the Court reviews such findings for clear error in the same

way that all federal courts of appeal review the findings of trial courts. Here again is Gilbert on

that point: "While the Supreme Court's discussion of 'clearly erroneous' was within the context of

one judicial tribunal reviewing another judicial tribunal, the same principles govern our situation."

Gilbert, 1 Vet.App. at 52 (emphasis added) (citing Supreme Court cases). Further, insofar as they

are called to assess error, reviewing courts are not only allowed but required to review and discuss

the evidence of record and match it against the dispositive findings and rationale offered by the

Board to see if they bear a plausible basis in the record. Hyper-formalist notions, where a reviewing

court is prohibited from discussing any evidence not expressly discussed by the Board (or is limited

to repeating the same terminology as the lower tribunal) are not compatible with how federal courts

conduct judicial review. See Golden v. Collins, 161 F.4th 1346, 1352 (Fed. Cir. 2025).

At the appellate level, improper factfinding occurs in two ways. First, it transpires when

an appellate court considers matters outside the appellate record, such as conducting independent

factual research. See, e.g., Rogozinski v. Derwinski, 1 Vet.App. 19, 20 (1990) (holding that review

in this Court shall be on the record of proceedings before the Secretary and Board). 3 Second,

improper factfinding happens when an appellate court subjects the findings of a lower tribunal to

de novo review rather than affording the appropriate deference mandated by the governing

standard of review. Here again we turn to Gilbert, as it describes what improper factfinding looks

like for this Court: "It is not the function of this Court to decide whether a veteran was injured or

whether any such injury occurred in or was aggravated during military service; rather, it is the

function of this Court to decide whether such factual determinations made by [the Board] in a

particular case constituted clear error." Gilbert, 1 Vet.App. at 53; see also Tadlock v. McDonough,

3

Reflecting on the centuries of legal thought, St. Thomas Aquinas cited to the longstanding prohibition on

judges considering extra-record evidence. The judge, Aquinas observed, must only arrive at the truth within the

boundaries of the process duly set out by the legislator, without using his private knowledge or relying on information

unduly obtained. Summa Theologica II-II, Q. 67. Art. 2.

8

Case: 24-3304 Page: 9 of 22 Filed: 04/06/2026

5 F.4th 1327, 1338 (Fed. Cir. 2021) (explaining that this Court erred when it made the initial

finding on a claim element that the Board never reached or addressed).

Notably, both notions—the prohibitions on extra-record evidence and de novo review of

existing findings—track perfectly the scope of review that Congress set out for this Court in 38

U.S.C. § 7261. First, section 7261(b) limits our review to the "record of proceedings before the

Secretary and the Board of Veterans Appeals." Second, regarding the appropriate deference by the

Court, section 7261(c) establishes that "[i]n no event shall findings of fact made by the Secretary

or the Board of Veterans' Appeals be subject to trial de novo by the Court." In sum, improper

judicial factfinding turns on whether we (1) considered matters outside the appellate record or (2)

subjected existing findings of the Board to de novo review rather than under the "clearly

erroneous" standard. See Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709, 714 (1986) ("If [the

Court of Appeals] was of the view that the findings of the District Court were 'clearly erroneous'

within the meaning of Rule 52(a), it could have set them aside on that basis . . . . But it should not

simply have made the factual findings on its own.").

B.

Turning to this case: Mr. Medlin challenges the Board's explanation for three of its

findings: (1) that his service records do not show a decline in performance, (2) that his reports of

in-service psychiatric symptoms are not credible, and (3) that the September 2016 letter from Mr.

Medlin's treating psychiatrist is not probative. Appellant's Br. at 6-7.

Decline in performance. Mr. Medlin raises three arguments relevant to this finding,

contending that either his declining performance or his weight gain in service is the "event" that

shows his emerging psychiatric conditions for service-connection purposes. This is relevant

because the Board may have obtained a VA exam to evaluate a nexus if it found a decline in his

performance.

First, he challenges the Board's discussion of his performance evaluations "dated in

November 1991 and November 1992" that cover his performance from "September 1990 to . . .

November 1992." R. at 10. The Board observed that the veteran had been promoted during that

period and presumed that the promotion was based on good job performance. R. at 10. In his new

position, the veteran "continued to receive the highest marks in all categories concerning

knowledge of primary duties based on technical expertise and compliance with military standards

based on factors that included weight and fitness." R. at 10. It was significant to the Board that,

9

Case: 24-3304 Page: 10 of 22 Filed: 04/06/2026

despite the veteran failing to meet weight standards, his performance did not decline. Per the

Board, the lack of evidence showing an overall decline in performance supported the conclusion

that the veteran's testimony that he had a decline in performance in service was not credible and

that his service records do not show an indication of mental health symptoms during service. R. at

9. Mr. Medlin calls this finding inaccurate, arguing that the November 1992 performance review

shows that he did not have the highest marks in "conduct." R. at 1935. Indeed, in the "conduct"

category, Mr. Medlin was marked four out of five, which means that he "[s]et the example for

others." R. at 1935.

This record evidence, however, does not contradict the Board's finding or render it

implausible. The appellant's argument is premised on the notion that the Board made a definitive

finding that, during the pertinent service period, he scored the highest marks in all categories

except two. But the Board's finding was more general than this and centered upon the overall

quality of Mr. Medlin's performance in service, notwithstanding any deficiencies relating to weight

issues. To that end, the Board observed that, during the period in question (until November 1992),

Mr. Medlin was promoted to a new position, and his overall performance did not decline. That the

Board elected to focus on overall performance and so discussed the broader picture presented by

the evaluations rather than rendering discrete findings corresponding to minute, line-items within

the evaluations does not call into question its analysis that, considered as a whole, the evidence of

record failed to show a decline in performance. This is a plausible reading of the evidence, even if

it can be argued that it's possible to read the same evidence of record differently.

Mr. Medlin next argues that the "Board concluded, essentially, that physical fitness itself

is not part of military performance standards" when it said that his decline in military weight

standards "'does not reflect a decline in his work performance.'" Appellant's Br. at 12 (quoting

R. at 11). The Court takes issue with the premise of this argument, as there is no indication that

the Board surmised that weight and fitness standards were wholly unrelated to overall performance

standards. It noted that "the fact that [Mr. Medlin] was found in the last two performance

evaluations only to meet military standards rather than to set the example or exemplify them does

not reflect a decline in his work performance." R. at 11. The Board drew a distinction between

weight standards and work performance, explaining that, although the veteran was falling behind

in weight standards, his work performance and relationships with others were above par. R. at 14

("[T]he service personnel records show he consistently received high marks for the quality of his

10

Case: 24-3304 Page: 11 of 22 Filed: 04/06/2026

work throughout his service, and indeed had recently been promoted toward the end of his

service."). Contrary to the appellant's view, the Board never found that weight standards do not

comprise an aspect of performance standards.

Alternately, the appellant contends that, even if the Board did not err in its findings about

performance, Mr. Medlin's in-service weight gain itself "may be evidence of the beginning of

psychiatric symptoms during service." Appellant's Br. at 14. Indeed, Mr. Medlin argued below that

his "in-service weight issue is an in-service event for purposes of service connection." R. at 28.

But the Board disposed of this argument by finding no evidence of psychiatric symptoms during

service. See R. at 18. Because the Board discussed the veteran's weight gain in depth, the Board

considered and rejected the notion that the in-service weight gain was a psychiatric symptom.

In his brief to the Court, Mr. Medlin provided additional support for this argument,

explaining that his in-service weight gain can be viewed as a symptom of bipolar disorder and,

thus, could represent the early stages of bipolar disorder. Importantly, he says "the evidence shows

that Mr. Medlin experienced clinically significant weight gain during service," which indicates the

onset of his bipolar disorder. Appellant's Br. at 17. But "the evidence" that the veteran points to

was simply not before the Board. See Appellant's Br. at 17 (citing MERCK MANUAL 1767 (20th ed.

2018)). The Court has the authority to "take judicial notice of facts of universal notoriety that are

not subject to reasonable dispute." Monzingo v. Shinseki, 26 Vet.App. 95, 103 (2012).

The facts of Monzingo are instructive. There, the Court took judicial notice of the fact that

a particular medical article was published and that VA had knowledge of that medical article. But

it added that the findings and conclusions within that published medical article "are neither facts

of universal notoriety nor facts not subject to reasonable dispute." Id. at 104. Thus, the Court did

not take judicial notice of the article's findings and conclusions and did "not evaluate the Board's

decision through the lens of those findings and conclusions." Id. And because those reports were

also "not raised by Mr. Monzingo below or reasonably raised by the record," the Court found no

Board error in not addressing them. Id. We reach a similar result here.

The Court is known to rely on the Merck Manual or other medical reference books for

information on facts of universal notoriety, mostly to define certain diseases or conditions. But

here, Mr. Medlin relies on the Merck Manual for findings and conclusions that are subject to

reasonable debate. For instance, the Merck Manual suggests, but does not definitively conclude,

that the presence of a mental health condition might be accompanied by weight gain or loss. The

11

Case: 24-3304 Page: 12 of 22 Filed: 04/06/2026

qualifying nature of this language renders the pertinent findings and conclusions subject to

reasonable debate, especially as those findings and conclusions apply to a particular case. Thus, in

this case, the Court will not take judicial notice of the Merck Manual's findings and conclusions

on this topic and will therefore not evaluate the Board's decision through the lens of those findings

and conclusions. See id.

After removing the Merck Manual from consideration, the overall argument falls flat. In

essence, the appellant asserts that the Board did not adequately address his theory that his weight

gain in service was evidence of a psychiatric condition, either because the weight gain was a

symptom of the psychiatric condition or because it was evidence of the onset of a psychiatric

condition. But the Board did address this theory when it concluded that the veteran did not have

symptoms of a psychiatric condition in service.

Credibility. Mr. Medlin asserts two reasons why the Board's credibility assessment is

erroneous. "When assessing the credibility of lay evidence, the Board may consider factors such

as facial plausibility, bias, self-interest, and consistency with other evidence of record." Southall-

Norman, 28 Vet.App. at 355. Indeed, the "'Board, as a fact finder, is obligated to, and fully justified

in, determining whether lay evidence is credible'" in light of "'conflicting statements'." Gardin v.

Shinseki, 613 F.3d 1374, 1379 (Fed. Cir. 2010) (quoting Buchanan v. Nicholson, 451 F.3d 1331,

1337 (Fed. Cir. 2006)). This assessment is a "quintessential factual determination[]" reviewed

"under the clearly erroneous standard." Kays v. Snyder, 846 F.3d 1208, 1212 (Fed. Cir. 2017).

He first argues that the Board used its findings about a lack of decline in performance to

discredit his credibility and, since (as argued above) that finding is inadequate, its credibility

finding is further unsupported. Since the Court sees no error in the finding about the absence of a

decline in performance, this argument also fails.

Second, he takes issue with the Board's reliance on a 2007 treatment record noting that he

recalled his time in the military "with fond terms." R. at 14. He argues that the Board

"manufactured a determination as to the likely emotions Mr. Medlin would have felt while

experiencing psychiatric symptomatology." Appellant's Br. at 18. The Court disagrees; it seems

the appellant has again taken a particular sentence of the Board's decision out of context to allege

error. Yes, the Board noted that Mr. Medlin recalled his military service fondly in 2007. But that

same paragraph draws a broader picture as to why the Board did not believe Mr. Medlin's reports

that his psychiatric symptoms began in service. The Board noted that Mr. Medlin denied

12

Case: 24-3304 Page: 13 of 22 Filed: 04/06/2026

psychiatric symptoms in February 1993 and May 2005; that, in 2010, he told a treatment provider

that the onset of psychiatric symptoms occurred only a few years earlier; that, in 2008, he reported

that he was discharged for weight gain and did not mention having psychiatric symptoms during

service. Taken altogether, the Board did not rely on Mr. Medlin's reports (that were made in

connection with his claim) that his symptoms began during service. This paragraph reflects that

the Board considered and weighed a totality of the evidence, just as it is supposed to do. Thus,

contrary to the appellant's contentions otherwise, the Board correctly considered the totality of the

evidence in reaching its determination, and its statement of reasons or bases is adequate. See

Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (noting that it is the "duty [of] the Board

to analyze the credibility and probative value of evidence"). It did that here and made a permissible

credibility determination.

Dr. Komareth's Opinions. Mr. Medlin last challenges the Board's finding that Dr.

Komareth's 2016 and 2018 opinions were unreliable. A VA medical report is adequate when it is

based on the veteran's relevant medical history and describes the medical issues in sufficient detail

so that the Board's evaluation of the claimed disabilities will be fully informed. Sharp v. Shulkin,

29 Vet.App. 26, 31 (2017). VA examiners do not have a reasons-or-bases requirement and so do

not have to "explicitly lay out [their] journey from the facts to a conclusion." Monzingo,

26 Vet.App. at 106. That said, they do have to provide a "reasoned medical explanation"

connecting their conclusions to the supporting data. Nieves-Rodriguez v. Peake, 22 Vet.App. 295,

301 (2008). A determination that a VA medical report is adequate is factual in nature and is

accordingly reviewed by this Court for clear error. Id.

The Board found Dr. Komareth's opinions unreliable because he wrote them "in response

to his request for such a letter in support of a claim for service connection, and thus . . . had an

incentive to misrepresent his medical history for purposes of substantiating the claim." R. at 15.

Mr. Medlin argues that the Board failed to address the fact that Dr. Komareth treated him since

2008 and, thus, Dr. Komareth did not offer an opinion "based exclusively on statements made

contemporaneous with the claim for benefits." Appellant's Br. at 19. Again, the appellant's

argument misconstrues the Board's findings. The Board acknowledged that the letter came from

the veteran's "treating psychiatrist" but discredited the opinion because it was obtained in pursuit

of a claim for benefits and premised on the veteran's statements, which were deemed not credible.

R. at 17-18. Because the appellant misreads the Board's findings, his assertions of error fail.

13

Case: 24-3304 Page: 14 of 22 Filed: 04/06/2026

In sum, the Board spent three full pages discussing its reasoning as to why it found that the

evidence, when viewed as a whole, did not support a finding that Mr. Medlin's performance

declined in service. Indeed, it's virtually impossible to read the 1,200 or so words of analysis the

Board spells out and claim that it's insufficient to allow the claimant to understand the precise basis

of the Board's decision. It analyzed the probative value of dozens of discrete pieces of evidence,

from Mr. Medlin's 1993 separation exam to various treatment records spanning 20 years, to his

performance evaluations, to his statements at hearing describing his condition. It discussed why it

found the February 1993 separation exam and May 2005 VA treatment record where he denied a

history of depression, anxiety, and other related disorders more probative than other records and

his later statements attesting to in-service manifestations of that disability. R. at 14. It found

probative a June 2010 VA treatment record where he reported experiencing depression and anxiety

for "the past two to three years at the time." Id. Further, the Board explained why it rejected Mr.

Medlin's later statements regarding in-service depression and anxiety as less probative than his

earlier statements that described his service in "fond terms," and it noted that his leaving service

due to weight management issues was probative towards its conclusion that no in-service disability

manifested. Id. As such, it rendered a requisite credibility determination: that Mr. Medlin's

accounts failed to square with the balance of the evidence, which failed to show a discernible

decline in performance in service sufficient to satisfy the requisite in-service element.

Considering this extensive analysis, it is implausible to read the Board's decision and claim

that it failed to (1) sufficiently analyze the credibility and probative value of evidence; (2) account

for evidence that it finds persuasive or unpersuasive; or (3) provide reasons for rejecting any

material evidence favorable to the claimant. Southall-Norman, 28 Vet.App at 355. Whatever minor

discrepancy exists in its discussion of Mr. Medlin's performance evaluations does little to cast

doubt on the Board's broader conclusion that his performance evaluations from November 1992

didn't show a marked decline in performance. The Board's analysis of Mr. Medlin's performance

in service spans several pages and is more than sufficient to enable him to understand the precise

basis for the decision and to allow review by this Court. Whether a different trier of fact may have

viewed the same evidence and arrived at different conclusions than the Board is irrelevant when

assessing whether the Board satisfied its reasons and bases duty. Under section 7104(d), the Board

entered all the requisite findings on all elements and material issues and so satisfied its duty.

14

Case: 24-3304 Page: 15 of 22 Filed: 04/06/2026

C.

This point—that the Board said all that we need to review its decision—also serves as a

good point to respond to our dissenting colleague's concerns. We agree with her that our decision

should not be read as altering our reasons or bases review. We cannot do that. Nor do we need to;

the reasons or basis requirement is well settled: the Board violates it when it fails to sufficiently

explain its decision and so frustrates our review. When it comes to facts, that review is for clear

error. Gilbert, 1 Vet.App. at 52. In the cases our colleague cites, VA's failure to make required

findings or address issues raised in the record frustrated our review. Here there is no such failure.

Indeed, all our reasons or bases decisions rest on the intelligibility of the agency decision;

after all, the obligation to provide understandable reasons or bases is not a unique feature of

veterans law. By the time Congress gave the Board such a requirement, it was a well established

feature of administrative law. Gilbert, 1 Vet.App. at 56 (citing Sec. & Exch. Comm'n v. Chenery

Corp., 332 U.S. 194, 201 (1947)). Congress created the reasons or bases requirement for most

agencies when it enacted the Administrative Procedure Act (APA) in 1946, and that requirement

remains there to this day. See 60 Stat. 237; see also 5 U.S.C § 557(C).

Decades before this Court was created, the Supreme Court clarified that the reasons or

bases requirement did not oblige agencies to make findings about every detail in the record or

discuss every matter in a case; the focus was on only those issues material to the agency's decision.

See Minneapolis & St. L. Ry. Co. v. United States, 361 U.S. 173, 193 (1959). And under this

requirement, the Supreme Court has instructed reviewing courts that, absent clear error in the

actual findings, they must "uphold a decision of less than ideal clarity if the agency's path may

reasonably be discerned." Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281,

286 (1974). Thus, courts have understood this to mean that, "[a]lthough findings are required when

an agency performs its adjudicatory function, reversing an agency order for failure to abide by this

command is inappropriate when the path followed by the agency can be discerned and when its

statement is sufficiently precise to permit meaningful judicial review." Wasson v. S.E.C., 558 F.2d

879, 884 (8th Cir. 1977); see also Aero Mayflower Transit Co. v. I.C.C., 711 F.2d 224, 232 (D.C.

Cir. 1983) (explaining that "Courts often have refused to strike down an agency ruling for allegedly

inadequate supportive explanation when reasonably able to discern the path of the agency's

reasoning" and collecting cases).

15

Case: 24-3304 Page: 16 of 22 Filed: 04/06/2026

We know from the Supreme Court that our scope of review is "similar to that of an Article

III court reviewing agency action under the Administrative Procedure Act, 5 U.S.C. § 706."

Henderson v. Shinseki, 562 U.S. 428, 432 n.2 (2011). And Congress gave the Board the same

reasons or bases obligation as other agencies. 38 U.S.C. § 7104(d)(1). From the beginning we have

understood that reasons or bases obligation to be rooted in the same principles of administrative

law. See Gilbert, 1 Vet.App. at 56. And it is hard to understand where this Court would get the

authority to take the same statutory language and create greater obligations to thrust on a cabinet

level agency; "we struggle to see on what basis a court could impose such a procedure on VA."

Bilharz v. Collins, 38 Vet.App. 366, 379 (2025).

At bottom, the reasons or basis requirement centers on the ability to understand the Board

decision. Gilbert, 1 Vet.App. at 57. But as in all areas of administrative law, "[t]his duty of

explanation is not intended to be a mandate for administrative verbosity or pedantry. If a reviewing

court can discern 'what the [V]LJ did and why he [or she] did it,' the duty of explanation is

satisfied." Piney Mountain Coal Co. v. Mays, 176 F.3d 753, 762, n 10 (4th Cir. 1999) (quoting

Lane Hollow Coal Co. v. Dir., Off. of Workers' Comp. Programs, 137 F.3d 799, 803 (4th Cir. 1998).

As our dissenting colleague points out, there have been many circumstances in which we

found that the Board fell short of providing an adequate explanation, but this is not such a case.

The Board provided a detailed explanation for why it found that Mr. Medlin's performance had not

declined in service, and the Board did not clearly err; its determination is plausible even with the

record that Mr. Medlin now focusses on. Thus, Mr. Medlin's "contention that the agencies failed

to consider certain evidence is a quibble with how the agencies weighed the evidence." Smith v.

Garland, 103 F.4th 1244, 1253 (7th Cir. 2024), cert. denied, 145 S. Ct. 1059 (2025). When, as

here, we can review the Board's factual finding for clear error, the Board's failure to provide a

specific discussion of some piece of the evidence does not frustrate our review; in other cases,

such a failure might be fatal to our understanding. See, e.g., post at 19, (collecting cases).

D.

Finally, in our original memorandum decision, we also declined, on grounds of issue

exhaustion, to entertain an allegation that the Board failed to satisfy its duty to assist. The appellant

has not challenged this ruling in his reconsideration motion and so the Court merely restates its

earlier ruling, albeit with compressed analysis.

16

Case: 24-3304 Page: 17 of 22 Filed: 04/06/2026

Here, Mr. Medlin was represented by the same counsel in the previous Court appeal in

2022. The appellant did not make a duty-to-assist argument at that time, despite the necessary

information that he believes raised the issue being present in the record since 2016. R. at 1602.

When the Court remanded the claim in 2022, the Board was instructed to consider the appellant's

remaining arguments; the previous briefing on the issues was included in the record to aid the

Board. And although counsel did not continue to represent the veteran before the Board,4 neither

The American Legion (the representative on remand) nor counsel submitted a new argument on

the Board's duty to help the veteran obtain private records. Thus, regardless of the break in

representation between the veteran's first and second Court appeals, current counsel had multiple

opportunities to assist the veteran in raising this issue before the Board and this Court. Waiting

until now to raise this argument demonstrates the type of piecemeal litigation tactics and

gamesmanship that the doctrine of issue exhaustion seeks to prevent.5

"When presented with a new issue on appeal, the Veterans Court can exercise sound

discretion to reject the newly raised argument under the doctrine of issue exhaustion." Stinson v.

McDonough, 92 F.4th 1355, 1363 (Fed. Cir. 2024) (citing Maggitt v. West, 202 F.3d 1370, 1377-

78 (Fed. Cir. 2000)). In exercising this discretion, the Court must determine "'whether the interests

of the individual weigh heavily against the institutional interests' in 'protect[ing] agency

administrative authority' and 'promot[ing] judicial efficiency.'" Morris v. McDonough, 40 F.4th

1359, 1362 (Fed. Cir. 2022) (quoting Maggitt, 202 F.3d at 1377) (alterations in original). Invoking

issue exhaustion is appropriate particularly where the issues are procedural, Scott, 789 F.3d at

1381, and where the veteran is represented by the same counsel at the Court as before the Board,

Massie, 25 Vet.App. at 127-28. Thus, to preserve judicial efficiency and protect administrative

4

It does appear that counsel faxed their briefing to VA on behalf of Mr. Medlin but did not raise other

arguments. R. at 36-71.

5

The Court notes that the veteran's argument on this point contends that the record reasonably raised the

issue of the missing private treatment records. See Robinson v. Peake, 21 Vet.App. 545, 552-53 (2008), aff'd sub nom.

Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). This Court has acknowledged that there exists a tension between

the Court's discretion to decline to hear arguments first raised on appeal and the Board's duty to address issues

reasonably raised by the record. Massie v. Shinseki, 25 Vet.App. 123, 130 (2011). But we nevertheless exercise that

discretion here given that Mr. Medlin only argued to VA about missing VA records and, in his motion for

reconsideration, he admits that it was only "[d]uring the course of this Court appeal, [that] Mr. Medlin realized the

significance of the missing evidence." Motion for Reconsideration at 5. If Mr. Medlin's counsel didn't know he had

relevant private treatment records, we don't understand how the Board could have.

17

Case: 24-3304 Page: 18 of 22 Filed: 04/06/2026

authority, the Court exercises its discretion not to entertain this argument under the doctrine of

issue exhaustion. See Morris, 40 F.4th at 1362; Maggitt, 202 F.3d at 1377.6

III. CONCLUSION

Accordingly, the Board's March 12, 2024, decision is AFFIRMED.

BARTLEY, Judge, dissenting: I strongly oppose the majority's attempt to dilute this Court's

review of Board factfinding and reasons or bases compliance, which would, if successful, result in

decisions that abdicate our appellate authority rather than analyze and rigorously review VA's

compliance with the law. Fortunately, although the majority decision is precedential, it is powerless

to overturn prior precedent concerning factfinding and reasons or bases compliance, and it cannot

restrict our review of Board reasons or bases. Ultimately, the majority cannot use this case as a

vehicle to curtail future Court review of Board decisions. As to Mr. Medlin's case specifically,

because the majority here weighs a material fact in the first instance and ignores or justifies the

Board's mischaracterization of the veteran's November 1992 annual performance report, all of

which requires remand, I dissent.

In beginning its analysis, the majority references a handful of well-known veterans law

cases that focus on some core aspects of how the Court assesses whether the Board has met its

statutory reasons or bases responsibility. Unless the majority's summary is an attempt to proscribe

further growth in this area of law or prevent practitioners from using the entirety of precedent

reasons or bases caselaw to assess compliance, I have no problem with it – as far as it goes. But a

summary is just that, a summary. Omitted are many core principles concerning assessment of

Board reasons or bases. For example, there is no reference whatsoever to extensive caselaw

addressing assessment of reasons or bases as to medical evidence, a key factor in vast numbers of

6

Our discretion is not driven by this, but we note that it is difficult to understand how the purported duty to

assist error could have been prejudicial. In his motion for reconsideration, Mr. Medlin invites us to review new records

that he obtained to prove prejudicial error. Even assuming that these records are fair game for our error review (a

premise we accept only for argument's sake, see 38 U.S.C. § 7252(b)), the Board denied his claim because of no in-

service event or injury. Mr. Medlin doesn't explain or suggest how the records he submitted now, or the records he

thinks are otherwise missing from the record, would help prove an in-service injury. In his briefing Mr. Medlin

highlights treatment around the year 2000. The records he obtained and wants us to consider concern treatment in

1999. Mr. Medlin left service in 1993. No matter how we look at it, we don't see how treatment more than half a

decade after leaving service would impact the Board's conclusion that Mr. Medlin did not have an in-service injury or

event. The Board's finding remains plausible. And we can't understand how any perceived error harmed Mr. Medlin.

See Slaughter v. McDonough, 29 F.4th 1351, 1355 (Fed. Cir. 2022).

18

Case: 24-3304 Page: 19 of 22 Filed: 04/06/2026

cases. To pluck just two cases of many, in Gabrielson the Court held that the reasons or bases

function is similar to cross-examination in adversarial litigation, requiring the Board to critically

examine unfavorable medical evidence. Gabrielson v. Brown, 7 Vet.App. 36, 40 (1994). And in

Savage, the Court determined that the Board may not reject unclear or insufficient private medical

evidence without first either asking the expert for clarification or adequately explaining why

clarification isn't necessary to decide the claim consistent with the duty to assist. Savage v.

Shinseki, 24 Vet.App. 124, 135 (2010). These decisions, and tens of others, may provide more

useful and targeted guidance concerning what is required for the Board to accomplish its statutory

reasons or bases duty.

The majority goes on to assert, without support, that the term "factfinding" is used

overbroadly in veterans law—because, the majority claims, in referring to factfinding we focus on

facts that are not material or not dispositive. Ante at 7.7 I completely agree that the Court should

not waste its time on facts that are not material to the case. But, in fact, the majority presents no

evidence that the Court routinely does so. Material facts are not limited to those directly dispositive

of entitlement to service connection (or other claimed VA benefit). For example, one of the issues

in this case is whether Mr. Medlin's performance declined in service—whether or not it declined

is a material fact because the answer to that question is necessary to determine whether the veteran

is entitled to an examination and linkage opinion that could, in turn, result in facts directly

dispositive as to service connection. To suggest that evidence triggering VA's obligation to further

develop a claim isn't material to a claim because such evidence isn't dispositive until that

development occurs upends the entire veteran-friendly, paternalistic system. And the majority

certainly cannot want to achieve such a result, nor can it do so by means of a three-judge panel

opinion.

After faulting the Court's use of the term factfinding, the majority proceeds to identify two

circumstances of inappropriate judicial factfinding: where the Court considers extra-record

7

In discussing this Court's purported overly broad use of factfinding, the majority seems to conflate

"material" and "dispositive." Ante at 7. Facts may be material to the ultimate determination without being directly

dispositive as to that determination. Dispositive facts are those that are "decisive of a legal matter," while material

facts include those that "make[] a difference in the result to be reached in a given case." BLACK’S LAW DICTIONARY

(12th ed. 2024).

19

Case: 24-3304 Page: 20 of 22 Filed: 04/06/2026

evidence or conducts de novo review of the Board's factual findings. Ante at 8-9. I don't disagree

that those are examples of improper judicial factfinding, but the majority limits its scope to those

two circumstances and omits one that matters in Mr. Medlin's case: the Court reviewing and

weighing facts in the first instance. The Federal Circuit has been clear that this Court "exceed[s]

its statutory authority when it improperly weigh[s] evidence in the first instance." Stinson v.

McDonough, 92 F.4th 1355, 1362 (Fed. Cir. 2024). As discussed below, the majority ignores this

controlling principle in Mr. Medlin's case.

Moving to the specifics of Mr. Medlin's case, in his briefs and motion for reconsideration

the veteran argued, among other things, that the Board failed to acknowledge that his November

1991 and November 1992 annual performance evaluations8 demonstrated declining performance

as compared to earlier reports. The record undisputedly shows that from 1985 through 1989 the

veteran received the highest possible marks as to all performance categories. The November 1991

report reflects highest marks as to all but two categories. The November 1992 report, Mr. Medlin's

final performance report in service, reflects highest marks as to all but three categories. The veteran

argued that these facts show declining performance at the end of his military career and constitute

an in-service event necessary for entitlement to service connection or at least entitlement to a VA

examination and linkage opinion consistent with VA's duty to assist him in the development of his

claim.

The Board addressed the lower marks as to two categories but did not acknowledge the

lower mark for the third category. Unlike the Board, the majority here acknowledges that in 1992

the veteran failed to receive highest marks in three performance categories. But the majority then

proceeds to determine that the marks received for those three categories are "good," even though

the Board never referenced the third category and certainly did not characterize his mark in it as

good. Ante at 2. To the extent that the Court concluded that any decline in that third category did

not reflect a decline in performance, ante at 2, 10, the Court erroneously weighed that evidence in

the first instance without the Board initially doing so. See Stinson, 92 F.4th at 1362.

And to the extent that the majority relies on an assumption that the Board considered Mr.

Medlin's lower marks in the third category and implicitly—by not mentioning them—found them

8

His performance evaluations were recorded on Air Force (AF) Form 910, Performance Report. That form

requires assessment of seven categories: performance of assigned duties; knowledge of primary duties; compliance

with standards; conduct on/off duty; ability to supervise/lead; compliance with individual training requirements; and

communication with others.

20

Case: 24-3304 Page: 21 of 22 Filed: 04/06/2026

not material, the Court long ago rejected that circular logic. In Thompson v. Gober, this Court

recognized that, to comply with the Federal Circuit's instruction that we not make factual findings

on our own, remand was required for the Board to address material evidence in the first instance.

14 Vet.App. 187, 188-89 (2000) (citing Hensley v. West, 212 F.3d 1225, 1263 (Fed. Cir. 2000)). In

so doing, the Thompson majority rejected the proposition, offered by a dissenting judge in that

case, that "[t]he Board's selection of which documents it finds material to discuss is in itself a

finding of fact" and that when the Board declines to discuss evidence, it is a factual finding that

the evidence "was not of such weight as to warrant discussion" to which this Court should defer.

Id. at 190-91 (Holdaway, J., dissenting).

The majority tries to resurrect the Thompson dissent, requiring us to assume that evidence

of a lower mark in a third category wasn't material because, if it was, the Board would have

discussed it. But how then would we distinguish between material facts not addressed because they

weren't considered at all and material facts not addressed because the Board found them not

material? This is left unanswered, both in the majority's decision and in the Thompson dissent.

This only illuminates the circular impossibility of that reasoning. But, in any event, the majority

cannot here, under the auspices of a three-judge panel opinion, flip the holding in Thompson to

make the dissent our touchstone.

As noted, supra at n.2, Air Force performance is based on only seven categories total. The

Board recognized that, after 4 years of receiving highest marks in all seven categories, Mr. Medlin

in 1991 received lower marks than previously in two (~29%) of the seven categories. It then

indicated that a year later, in 1992, Mr. Medlin again received lower marks in two of seven

categories. The lower mark in the third category was not mentioned. Absent from the majority

opinion is any explanation as to how an additional lower mark in 1992, in three categories instead

of two, was immaterial where a central argument on appeal to the Board was the veteran's declining

performance. It defies belief that receiving lower marks in three of the seven categories (~43%)

instead of two of the seven categories (~29%) could be immaterial to the question of whether the

veteran's performance declined.

In addition, although "work performance" is not listed as a category or defined on any of

the performance reports, the Board used that undefined phrase in seeming juxtaposition with, and

as superior to, the listed performance categories. R. at 11 (Board finds that the fact that Mr. Medlin

was found in the last two performance evaluations only to meet military standards in two categories

21

Case: 24-3304 Page: 22 of 22 Filed: 04/06/2026

rather than to exemplify them does not reflect a decline in "work performance"). And the majority

adopts the same tack, ante at 2, 10. Even if "work performance" means the same as "performance

of assigned duties," the Board may not assume, without adequate analysis, that a single

performance category listed on the report (such as "performance of assigned duties") better

represents a service member's performance than other listed performance categories singly or

combined. And when the Board does so, as it did in this case, the Court should be clear in rejecting

such a significant, and unexplained, assumption if it is material to the case, as it was in this case.

Moreover, both the Board and the Court appear to have concluded—without saying so or citing to

any authority for such premise—that a decline in a performance category doesn't actually indicate

declination unless or until it deteriorates to an objectively substandard quality.

In conclusion, rather than embrace our statutory responsibility to ensure thoughtful and

analytical review of the Board's reasons or bases, the majority embraces a rubber stamp approach

and encourages the Court to take that approach in the future. I respectfully dissent, both from this

short-sighted view of our responsibility and from the Court's affirmance of Mr. Medlin's Board

decision.

22