Barney O. Padgett v. Anthony J. Principi

This version includes the errata issued on 27Jul04 - e

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO . 02-2259

BARNEY O. PADGETT , APPELLANT ,

V.

ANTHONY J. PRINCIPI,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Argued April 29, 2004 Decided July 9, 2004 )

James W. Stewart (non-attorney practitioner), with whom Barton F. Stichman was on the

brief, both of Washington, D.C., for the appellant.

Edward V. Cassidy, Jr., with whom Tim S. McClain, General Counsel; R. Randall Campbell,

Assistant General Counsel; and Cristine D. Senseman, were on the brief, all of Washington, D.C.,

for the appellee.

Before FARLEY, IVERS, and KASOLD, Judges.

FARLEY, Judge, filed the opinion of the Court. KASOLD, Judge, filed a dissenting opinion.

FARLEY, Judge: On December 6, 2002, the veteran filed a Notice of Appeal (NOA) as to

an August 8, 2002, Board of Veterans' Appeals (Board or BVA) decision that had denied his claim

for service connection for osteoarthritis of the right hip on a direct, presumptive, and secondary

basis. Record (R.) at 1-20. The veteran seeks a reversal of the Board decision and the Secretary

argues that the Board decision should be affirmed. The Court will vacate the Board's decision and

remand the matter for readjudication consistent with this opinion.

I. FACTS

The veteran served on active duty in the U.S. Army during World War II from January 1943

to July 1945. R. at 22-23. He is a combat veteran who served in Europe, Africa, and the Middle

East. Id. In March 1943, he injured his left knee as a result of slipping on ice in Plattsburgh, New

York. R. at 43. In July 1944, he re-injured his left knee when he jumped into a ditch to avoid shell

fire. R. at 54, 71. The veteran's service medical records indicate that he was diagnosed with a

sprained left knee, chronic, severe, and synovitis of the left knee, chronic, severe, secondary to the

left-knee sprain. Id. In August 1945, a VA regional office (RO) granted the veteran service

connection for residuals of a left-knee injury, rated at 30% disabling. R. at 92. At some time

thereafter, the rating was reduced to 10%. R. at 149.

In September 1975, the veteran filed claims seeking service connection for arthritis-related

pain in his left leg, left hip, and the left side of his back. R. at 149. In a June 1976 rating decision,

the RO awarded a 30% rating for traumatic arthritis of the left knee, residual sprain of the left knee

with favorable ankylosis. R. at 185. The RO denied service connection for a lumbar-spine disorder

and determined that the evidence did not indicate the existence of a current left-hip disorder. R. at

185-87. The veteran appealed to the Board, claiming that all his arthritis had been caused by his

service-connected left-knee injury. R. at 189-92, 201. In an April 1977 decision, the Board denied

the veteran's claim, finding that the veteran's arthritis of multiple joints other than his left knee was

not incurred while in service, aggravated by service, or caused by an in-service disease or injury.

R. at 211-15.

In March 1993, the veteran sought to reopen his claim for service connection for a right hip

disorder. R. at 218. The RO obtained treatment records from the veteran's orthopedic surgeon,

Dr. Charles H. Shaw. In 1982, Dr. Shaw noted that the veteran was "morbidly obese" and was

suffering from degenerative arthritis of the neck, spine, and knees. R. at 226. In November 1988,

Dr. Shaw wrote that x-rays taken after an October 1988 automobile accident showed, inter alia,

severe degenerative arthritis of the left knee with lesser changes in the right knee, and severe

degenerative arthritis of the right hip with lesser changes in the left hip. R. at 230. The veteran

underwent a right-total-hip arthroplasty in August 1989. R. at 233-37. In January 1991, Dr. Shaw

also recommended a left-total-knee arthroplasty. R. at 237.

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In May 1993, the RO denied the veteran's claim for service connection for a right-hip

disability secondary to his service-connected knee injury, stating that there was no evidence that his

hip condition had been caused by his knee disability. R. at 240, 242. The veteran appealed to the

Board. R. at 246, 260. With his appeal, the veteran submitted additional medical statements from

his private physicians. In a letter dated December 13, 1993, Dr. Shaw stated:

Mr. Padgett historically sustained an injury to his left knee while in

the [s]ervice. This injury has resulted in severe endstage traumatic

osteoarthritis of his knee. He also states that he thinks he sustained

an injury to his hip as a result of that same incident. Over the years

he has developed progressively increasing degenerative disease of

both his left knee and right hip.

It is my feeling that the gait abnormalities associated with the severity

of the disease involving his left knee ha[ve] adversely impacted the

progression of the degenerative disease of his right hip and have in

fact aggravated his symptoms with it. It is my feeling that the

degenerative disease that he has experienced in his right hip is related

to his original injury.

R. at 262. In a letter dated January 11, 1994, Dr. Robert Thoburn, a specialist in internal medicine

and rheumatology, stated:

The patient had an injury to the left knee while in the service. This

has progressed to severe osteoarthritis of the left knee secondary to

trauma. He thinks he sustained an injury to the right hip and has

progressive pain and stiffness of the right hip.

He has an endstage left knee that has resulted in weight shifting to the

right side. It is likely that this has resulted in progression of

osteoarthritis of the right hip. It is consistent that the osteoarthritis of

the right hip and left knee are related to the original injury.

R. at 261. The veteran also submitted an October 1993 letter from Dr. James A. Rawls, in which

Dr. Rawls stated that he had treated the veteran for almost 30 years and noted that "a major problem

most of this time has been osteoarthritis involving the weight-bearing joints, knees, hips, and low

back." R. at 263. In March 1994, after reviewing the new evidence submitted by the veteran, the

RO continued the denial of the veteran's claim. R. at 272-74.

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In May 1994, the veteran filed a Notice of Disagreement (NOD) with respect to the March

1994 RO decision and on December 2, 1994, he was afforded a hearing before an RO hearing

officer. At the hearing the veteran testified that he had injured his hip while in service at the same

time he had re-injured his left knee in 1944. R. at 296-97. In a January 1995 decision, the hearing

officer denied the veteran's claim, stating that the evidence did not provide a sufficient basis for

service connection on either a direct or secondary basis. R. at 303-04.

The veteran filed an appeal with the Board (R. at 319) and submitted additional statements

from Dr. Thoburn and Dr. Shaw (R. at 325, 340). In a letter dated November 3, 1995, Dr. Thoburn

stated "[i]t is my feeling that a shift in weight [because of his altered gait] plus his size and obesity

contributed to accelerated osteoarthritis of his right hip," thereby leading to a total right-hip

replacement. R. at 325. In an October 1996 statement, Dr. Shaw opined that the veteran's irregular

gait pattern resulting from his left-knee injury increased symptoms in the veteran's right hip, which

ultimately required right-hip replacement. R. at 340. Dr. Shaw concluded that "[the veteran's] war-

related injury directly aggravated his symptoms with respect to his hip." Id.

In April 1997, the Board remanded the case to the RO to adjudicate the veteran's claim on

a direct basis, reconsider his claim on a secondary basis as a result of the Court's decision in Allen

v. Brown, 7 Vet.App. 439 (1995) (en banc) (holding that a veteran may be awarded compensation

for the aggravation of a non-service-connected condition by a service-connected disability), and

afford him a hearing before a traveling section of the Board. R. at 354-57.

On June 27, 1997, the veteran underwent a VA examination by Dr. F. Henderson. R. at 360-

63. Dr. Henderson concluded that the veteran suffered from multijoint "degenerative joint disease"

that was "a consequence of the aging process" rather than any one specific injury. Id. at 363.

However, he also stated that the veteran's left-knee injury may have "played a part in the damage that

later required a left-knee replacement, but not necessarily a hip replacement." Id. In addition, Dr.

Henderson noted that he had not reviewed the claims file and that a certified orthopedist should

review the case for a more definitive opinion. R. at 361, 363.

During a February 1999 Board hearing, the veteran again testified that he had injured his right

hip at the same time he had re-injured his knee in 1944. R. at 393-410. In July 1999, the Board

requested an expert medical opinion from the chief of staff of the Columbia, South Carolina, VA

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medical center (VAMC). R. at 413-15. The Board stated that the opinion was requested pursuant

to Veterans Health Administration Directive 10-95-040 (April 17, 1995), 38 C.F.R. § 20.901 (1996),

and 38 U.S.C. § 7109. R. at 413. The doctor who examined the veteran, Dr. John K. Blincow,

concluded that (1) the veteran's right-hip disorder was caused by age-related degenerative arthritis

and was not related to his in-service left-knee injury or a gait abnormality and (2) the veteran's left-

knee disability did not aggravate or cause an increase in severity of his right-hip arthritis. R. at 418-

20.

On August 8, 2002, the Board issued the decision on appeal. R. at 1-19. In its decision, the

Board accorded the VA medical opinions more weight than the opinions of the veteran's private

physicians. R. at 14-18. In doing so, the Board noted the "equivocal and apparently unsubstantiated

nature" of the opinions of the private physicians. R. at 16. The Board also stated that "both of [the

VA opinions] have tremendous probative value as both were based on a thorough review of the

claims file, which is essential [to] formulating a sound opinion." Id. The Board found that the

medical evidence did not indicate a nexus between an in-service injury to the veteran's hip and his

current hip disability or that his hip disability manifested within one year of his discharge and denied

service connection on direct and presumptive bases. R. at 14-17. The Board also denied the

veteran's claim on a secondary basis, concluding that the veteran's hip injury was not related to his

service-connected left-knee disability. R. at 17-18.

In his brief, the appellant argues, inter alia, that (1) the Board erred in relying on the June

1997 VA medical opinion because the examiner did not review the veteran's claims file, did not

discuss the positive medical evidence in the claims file, and did not take as a given that the veteran

injured his right hip in combat (Appellant's Brief (Br.) at 17-18); (2) under the law as it existed in

1999, the Board lacked the legal authority to secure the 1999 VA medical opinion of Dr. Blincow,

and even if the Board had the authority to obtain such an opinion, under 38 U.S.C. § 7104(a) and the

United States Court of Appeals for the Federal Circuit's (Federal Circuit) opinion in Disabled

American Veterans v. Secretary of Veterans Affairs (DAV v. Sec'y), 327 F.3d 1339 (Fed. Cir. 2003),

the Board could not consider the opinion without first remanding the matter to the agency of original

jurisdiction (AOJ) or obtaining the appellant's waiver (Appellant's Br. at 20-24); and (3) the Board's

finding that the veteran's right-hip condition is not related to an in-service injury or his service-

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connected left-knee disability is clearly erroneous because private medical opinions of record provide

the required etiological relation for service connection (Id. at 15-16). The appellant argues further

that because the Board could not properly rely on either VA opinion, the only medical opinions

properly before the Board or the Court support the appellant's claim and the Court should reverse

the Board decision. Id. at 25. In the alternative, the appellant argued that the Court should remand

the case for the Board to correct the errors identified by the appellant in his brief and for compliance

with the duties to notify and assist under the Veterans Claims Assistance Act of 2000 (VCAA), Pub.

L. No. 106-475, 114 Stat 2096. Appellant's Br. at 26 n.2.

The Secretary initially filed a brief in which he argued mainly for a remand based on VA's

failure to comply with the duty to notify under the VCAA. Secretary's Br. at 7-13. However, the

appellant filed a reply brief in which he "waive[d] this Court's consideration on the errors relating

to the VCAA duty to notify discussed in . . . the Secretary's brief." Appellant's Reply Br. at 1-2. The

Secretary, with leave of the Court, then filed a sur-reply brief in order to address the appellant's non-

VCAA related arguments. While the Secretary concedes that the Board erred in relying on the 1997

VA opinion (Secretary's Br. at 10), he argues that the Board had the authority to obtain the 1999 VA

medical opinion of Dr. Blincow pursuant to 38 U.S.C. § 7109 and 38 C.F.R. § 20.901 (2002), and

that opinions obtained pursuant to section 7109 or section 20.901 do not require remand to the AOJ

for initial consideration (Secretary's Sur-Reply Br. at 3-7).

The appellant filed a response to the Secretary's sur-reply brief in which he argued, inter alia,

that Dr. Blincow's medical opinion did not fit under any exception to 38 U.S.C. § 7104(a) that would

allow the Board to initially consider additional evidence. Appellant's Response to Secretary's Sur-

Reply Br. at 2-6. Oral argument was heard on April 29, 2004. During oral argument, the appellant's

representative stated that the appellant's waiver of the Court's consideration of his rights under the

VCAA was intended to extend to 38 C.F.R. § 3.159(b)(1) (2003), under which, inter alia, the

Secretary has obligated himself to "request that the claimant provide any evidence in the claimant's

possession that pertains to the claim."

II. ANALYSIS

A. The Board's Consideration of the 1999 VA Opinion

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This case is controlled by the Federal Circuit's decision in DAV v. Sec'y, supra. In that

decision, the Federal Circuit invalidated 38 C.F.R. § 19.9(a)(2) (2002) because it allowed the Board

to consider additional evidence developed by the Board without having to remand the case to the

AOJ and without requiring a waiver from the appellant. See DAV v. Sec'y, 327 F.3d at 1347. As the

Federal Circuit stated:

Section 19.9(a)(2), in conjunction with . . . 38 C.F.R.

§ 20.1304, is inconsistent with 38 U.S.C. § 7104(a), because

§ 19.9(a)(2) denies appellants "one review on appeal to the Secretary"

when the Board considers additional evidence without having to

remand the case to the AOJ for initial consideration and without

having to obtain the appellant's waiver. Indeed, Congress

unambiguously addressed this issue in 38 U.S.C. § 7104(a) by

decreeing that "all questions in a matter which . . . is subject to

decision by the Secretary shall be subject to one review on appeal to

the Secretary." The VA therefore has no choice but to give effect to

Congress's clear intent. See Chevron [U.S.A., Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984)]. In

compliance with that command, the VA has—until now—generally

required the Board, when considering additional evidence, to remand

the case to the AOJ or obtain the appellant's waiver. See 38 C.F.R. §§

19.9, 20.1304 (2001); cf. INS v. Ventura, 154 L. Ed. 2d 272, 537 U.S.

12, 123 S. Ct. 353, 355 (2002) (per curiam) (noting that the lower-

level decisionmaker can "bring its expertise to bear upon the matter;

it can evaluate the evidence; it can make an initial determination; and,

in doing so, it can, through informed discussion and analysis, help a

[higher] court later determine whether its decision" is appropriate).

When the Board obtains evidence that was not considered by the AOJ

and does not obtain the appellant's waiver, however, an appellant has

no means to obtain "one review on appeal to the Secretary," because

the Board is the only appellate tribunal under the Secretary.

Moreover, the veteran is not effectively able to object to any

of the additional evidence obtained by the Board until after the Board

weighs the evidence and decides the appeal. Although 38 C.F.R.

§ 20.903 . . . requires the Board to notify the appellant of evidence it

has obtained, this notice does not include a statement of the weight

the Board intends to assign to new evidence, an assessment of

whether the evidence is determinative, significant, or of minimal

impact, or a statement whether the new evidence will likely result in

the denial of the appeal, and a list of the claimant's options.

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Accordingly, a mere statement of additional evidence, without more,

does not provide for the veteran to explore effectively a basis for "one

review on appeal to the Secretary" with respect to the additional

evidence as required by 38 U.S.C. § 7104(a).

DAV v. Sec'y, 327 F.3d at 1347.

In the instant case, it is not disputed that the Board obtained and considered the 1999 medical

opinion of Dr. Blincow without remanding the appellant's claim to the RO and without obtaining the

appellant's waiver. However, the Secretary, relying on dicta in DAV v. Sec'y, asserts that 38 U.S.C.

§ 7109 and 38 C.F.R. § 20.901 (2002) provide exceptions to section 7104(a) that allow the Board

to consider additional medical opinions without remanding to the AOJ. In DAV v. Sec'y, the Federal

Circuit indeed recognized that Congress could create exceptions to section 7104(a). In that respect

the Federal Circuit remarked:

[W]hen Congress intended to authorize the Board to obtain additional

evidence without "one review on appeal to the Secretary," it knew

how to do so. Congress has provided express statutory authority to

permit the Board to obtain additional evidence, such as expert

medical opinions in specific cases. See, e.g., . . . 38 U.S.C. § 7109

(2000) (authorizing Board to obtain independent medical opinions

from outside the VA); 38 C.F.R. § 20.901(a) (2002) (authorizing

Board to obtain opinions from the Veterans Health Administration);

38 C.F.R. § 20.901(b) (authorizing Board to obtain medical opinions

from the Armed Forces Institute of Pathology).

DAV v. Sec’y, 327 F.3d at 1347-48 (emphasis added). While it is clear that Congress may provide

exceptions to section 7104(a) through express statutory authority, a close look at section 38 C.F.R.

§ 20.901 (2002) and 38 U.S.C. § 7109 reveals that they do not contain any such exception. Section

20.901 is, obviously, a regulation promulgated by the Secretary, not a statute enacted by Congress.

Moreover, nothing in section 20.901 provides an express exception to section 7104(a). Although,

as the Secretary points out, 38 C.F.R. § 19.9(c)(1) (2002) does purport to exempt medical opinions

obtained pursuant to section 20.901 from initial consideration by the AOJ, section 19.9(c)(1) is also

a regulation, not a statute.

Section 7109 provides:

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(a) When, in the judgment of the Board, expert medical opinion, in

addition to that available within the Department, is warranted by the

medical complexity or controversy involved in an appeal case, the

Board may secure an advisory medical opinion from one or more

independent medical experts who are not employees of the

Department.

(b) The Secretary shall make necessary arrangements with recognized

medical schools, universities, or clinics to furnish such advisory

medical opinions at the request of the Chairman of the Board. Any

such arrangement shall provide that the actual selection of the expert

or experts to give the advisory opinion in an individual case shall be

made by an appropriate official of such institution.

(c) The Board shall furnish a claimant with notice that an advisory

medical opinion has been requested under this section with respect to

the claimant's case and shall furnish the claimant with a copy of such

opinion when it is received by the Board.

38 U.S.C. § 7109. While section 7109 allows the Board to obtain independent medical opinions,

nowhere does it state that the Board may consider those opinions without remanding to the AOJ or

obtaining a waiver from the claimant. See id.

At oral argument the Secretary argued that despite the lack of any language in section 7109

suggesting so, the legislative intent behind section 7109 was to allow the Board to obtain and

consider medical opinions without remand. However, the first question in statutory interpretation

is always "whether Congress has directly spoken to the precise question at issue." Chevron, 467 U.S.

at 842. "If the intent of Congress is clear, that is the end of the matter; for the court, as well as the

agency, must give effect to the unambiguously expressed intent of Congress." Id. at 842-43. As the

Federal Circuit noted in DAV v. Sec'y, "Congress unambiguously addressed this issue [of whether

the Board can consider additional evidence] in 38 U.S.C. § 7104(a) by decreeing that 'all questions

in a matter which . . . is subject to decision by the Secretary shall be subject to one review on appeal

to the Secretary.' The VA therefore has no choice but to give effect to Congress's clear intent." DAV

v. Sec'y, 327 F.3d at 1347; see also VA Gen. Coun. Prec. 1-2003 at 3 (May 21, 2003) (stating that

section 7104(a) "prohibits the Board from considering additional evidence without remanding or

obtaining a waiver" (underlining in original)). The plain language of section 7109 is barren of any

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intent to provide an exception to section 7104(a). See Gardner v. Derwinski, 1 Vet.App. 584, 587-88

(1991) ("Where a statute's language is plain, and its meaning clear, no room exists for

construction."). Section 7109 simply states that the Board may obtain independent medical opinions.

Sections 7104(a) and 7109 may both be given their plain meaning by requiring that the Board

remand claims to the AOJ for consideration of additional evidence. See Talley v. Derwinski, 2

Vet.App. 282, 286 (1992) ("'[E]ach part or section of a statute should be construed in connection

with every other part or section so as to produce a harmonious whole.'" (quoting 2A N. SINGER ,

SUTHERLAND ON STATUTORY CONSTRUCTION § 46.05 (4th ed. 1984))).

Accordingly, we hold that Congress has provided no exception to section 7104(a) that would

allow the Board to consider the additional evidence provided by Dr. Blincow's opinion without

remanding the appellant's claim to the RO for initial consideration or obtaining a waiver from the

appellant. Because the Board's decision was based in part on Dr. Blincow's opinion, that decision

must be vacated. See 38 U.S.C. § 7104(a); DAV v. Sec'y, supra.

B. Remedy

In this matter, the evidence in its entirety was not considered by the proper forum. Therefore,

the appropriate remedy is to remand the claim to the Board to proceed in compliance with the

Federal Circuit's holding in DAV v. Sec'y, supra, and this opinion. See Tucker v. West, 11 Vet.App.

369, 374 (1998) ("[W]here the Board has incorrectly applied the law, failed to provide an adequate

statement of reasons or bases for its determinations, or where the record is otherwise inadequate, a

remand is the appropriate remedy. . . . [T]his will permit the Board to make the appropriate required

determinations[] under the correct legal standards . . . ." (citation omitted)); see also INS v. Ventura,

537 U.S. at 16 ("Generally speaking, a court of appeals should remand a case to an agency for

decision of a matter that statutes place primarily in agency hands. . . . The agency can bring its

expertise to bear upon the matter; it can evaluate the evidence; it can make an initial determination;

and, in doing so, it can, through informed discussion and analysis, help a court later determine

whether its decision exceeds the leeway that the law provides."); Fla. Power & Light Co. v. Lorion,

470 U.S. 729, 744 (1985) ("If the record before the agency does not support the agency action, if the

agency has not considered all relevant factors, or if the reviewing court simply cannot evaluate the

challenged action on the basis of the record before it, the proper course, except in rare circumstances,

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is to remand to the agency for additional investigation or explanation."); Ford Motor Co. v. NLRB,

305 U.S. 364, 375 (1939) ("There is nothing in the . . . principles governing judicial review of

administrative action, which precludes the court from giving an administrative body an opportunity

to meet objections to its order by correcting irregularities in procedure, or supplying deficiencies in

its record, or making additional findings where these are necessary, or supplying findings validly

made in the place of those attacked as invalid."); Wagner v. Principi, No. 02-7347, 2004 U.S. App.

LEXIS 10615 (Fed. Cir. June 1, 2004) (where BVA and this Court had applied the incorrect legal

standard, Federal Circuit determined the correct legal standard and remanded the claim for "further

consideration"). Unless the Board awards the appellant the full benefits sought by the appellant on

appeal to the Board, or obtains a waiver from the appellant, the Board must remand the appellant's

claim to the AOJ for an initial decision based on the additional evidence not yet considered by the

AOJ.

Although the appellant asks the Court to reverse the Board decision, reversal is the

appropriate remedy only when "[t]here is absolutely no plausible basis" for the BVA's decision.

Hersey v. Derwinski, 2 Vet.App. 91, 95 (1992).

If the [factfinder]'s account of the evidence is plausible in light of the

record viewed in its entirety, the [reviewing court] may not reverse it

even though convinced that had it been sitting as the trier of fact, it

would have weighed the evidence differently. Where there are two

permissible views of the evidence, the factfinder's choice between

them cannot be clearly erroneous.

Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) (quoting Anderson v. City of Bessemer City, 470 U.S.

564, 573-74 (1985)). For the Court to consider reversal based upon its view of the facts at this point

would be tantamount to de novo factfinding, which this Court is prohibited from doing by statute.

See 38 U.S.C. § 7261(c) ("In 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.").

The Court will not address the other arguments and issues raised by the appellant. A narrow

decision preserves for the appellant the opportunity to argue any claimed errors upon remand. Best

v. Principi, 15 Vet.App. 18, 20 (2001). Because the appellant's claim must be considered anew upon

remand, the appellant will have the opportunity to present any additional evidence and argument in

11

support of his claim, including his arguments concerning the quality of the medical opinions

provided by his private physicians and VA. See Kay v. Principi, 16 Vet.App. 529, 533 (2002); Best,

15 Vet.App. at 20; Kutscherousky v. West, 12 Vet.App. 369, 372 (1999) (per curiam order).

Although our dissenting colleague expresses concern regarding an alleged error in the weight

afforded Dr. Blincow's opinion, because that issue was never raised to or considered by the Board

or VA the Court has no basis upon which to conclude that such an error would be repeated upon

remand. Moreover, it is not for the Court to determine, in the first instance, the probative value to

be afforded any particular piece of evidence. See 38 U.S.C. § 7261(c). As noted above, pursuant

to DAV v. Sec'y, supra, any new evidence submitted by the appellant on remand must be initially

considered by the AOJ. In addition, the Court notes that the VCAA and its implementing regulations

will apply on remand. See Fortuck v. Principi, 17 Vet.App. 173, 181 (2003).

The Court trusts that, given the appellant's advanced age and the fact that it has now been

more than 11 years since he reopened his claim, the Board will provide for expeditious treatment of

the veteran's claim upon remand. See 38 U.S.C. § 7112.

III. CONCLUSION

On consideration of the foregoing, the August 8, 2002, decision of the Board is VACATED

and the matter is REMANDED.

KASOLD, Judge, dissenting: I respectfully do not agree with the majority's analysis and

conclusion that "Congress has provided no exception to section 7104(a) that would allow the Board

to consider the additional evidence provided by Dr. Blincow's opinion without remanding the

appellant's claim to the RO for initial consideration or obtaining a waiver from the appellant" (ante

at 10), even were the Board to "award the appellant the full benefits sought" (ante at 12). Given that

decision, however, I also respectfully do not agree with the majority's view that a violation of this

requirement means the "decision must be vacated," ante at 10 (emphasis added). Accordingly, I

would review the Board's findings and its ultimate decision.

I. BOARD CONSIDERATION OF MEDICAL OPINIONS OBTAINED UNDER 7109

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The majority correctly notes that Disabled American Veterans v. Secretary of Veterans

Affairs, 327 F.3d 1339, 1347 (Fed. Cir. 2003) (DAV v. Sec'y) stands for the general proposition that,

absent waiver, an award of benefits, or specific statutory authorization, the Board may not consider

evidence in the first instance because such action would deny appellants the section-7104(a) right

to one appeal of a decision of the Secretary. However, the majority's rejection of the Federal

Circuit's guidance that section 7109 is an "express statutory authori[zation]" for the Board to do so

is erroneous and is, in my opinion, based on a faulty and underdeveloped analysis of the statutory

scheme. See DAV v. Sec'y, 327 F.3d at 1347.

The majority focuses its analysis exclusively on the fact that the "plain language" of section

7109 explicitly authorizes the Board to secure a medical advisory opinion, but it does not explicitly

authorize the Board to consider that opinion.1 Ante at 10. The majority then concludes that section

7109 is "barren of any intent to provide an exception to 7104(a)" (ante at 10), and that in order to

comply with section 7104(a), the Board, therefore, must remand a section-7109 medical opinion to

the RO for consideration in the first instance. In short, the Board can obtain the evidence but it

cannot use it.

The majority opinion suffers from four crucial weaknesses: (1) It is contrary to well-

established canons of statutory interpretation; (2) it contradicts, rather than supports, both the

statutory language of section 7104(a) and the Federal Circuit's opinion in DAV v. Sec'y; (3) it is

contrary to the legislative history of section 7109; and (4) it leads to absurd results.

A. Canons of Statutory Interpretation

The majority states that the "plain language" of section 7109 necessitates its conclusion that

the Board can obtain medical opinions under section 7109 but cannot use them. This result,

however, is only "necessary" because the majority's analysis is based on too narrow a focus on one

word – "secure" – and the fact that section 7109 does not include explicit authorization to review the

evidence secured. Although the majority correctly cites Gardner v. Derwinski, 1 Vet.App. 584, 587-

1

Even though section 7109 expressly authorizes the Board to secure an expert medical opinion only from an

independent medical expert who is not a VA employee, the majority simply assumes this section is applicable to and

an authorization of the use of VA doctors. Ante at 10 (broadly stating "section 7109 allows the Board to obtain

independent medical opinions " without differentiating between VA and non-VA employees). Although I concur in

that result of that assumption, I note that it is premised on the explicit recognition in section 7109(a) that the

authorization to use non-VA doctors is "in addition to that available within the Department . . . ."

13

88 (1991), for the proposition that statutory interpretation starts with the plain language of the

statute, that proposition is a starting point and is not the totality of analysis. The majority opinion

fails to consider and apply one of the overriding canons of statutory construction, that when

interpreting a statute "it is not proper to confine interpretation to the one section to be construed."

2A N. SINGER , SUTHERLAND ON STATUTORY CONSTRUCTION § 46:05 (6th ed. 2000) [hereinafter

SUTHERLAND ]. Rather, "the court will not only consider the particular statute in question, but also

the entire legislative scheme of which it is a part." SUTHERLAND , § 46:05 (emphasis added); see

also King v. St. Vincent's Hosp., 502 U.S. 215 (1991) (when interpreting statutes, a court is required

to look at the context and provisions of the law as a whole); Imazio Nursery, Inc. v. Dania

Greenhouses, 69 F.3d 1560 (Fed. Cir. 1995) (when interpreting a statute, all parts must be construed

together without according undue importance to a single or isolated portion). Moreover, a "statute

should be construed so that effect is given to all its provisions, so that no part will be inoperative or

superfluous, void or insignificant, and so that one section will not destroy another unless the

provision is the result of obvious mistake or error." SUTHERLAND , § 46:06.

The statutory scheme of review in this case separately gives the Secretary the authority to

obtain medical opinions at the RO level.2 See 38 U.S.C. § 5103A(d). Those medical opinions are

first considered by the RO, whose decision can be appealed to the Board. See 38 U.S.C. § 7104(a).

Section 7109 gives the Board separate and independent authority to secure advisory medical opinions

when, "in the judgment of the Board, expert medical opinion . . . is warranted by the medical

complexity or controversy involved in an appeal case." 38 U.S.C. § 7109(a) (emphasis added).

When considering these two provisions in concert, it is incongruous that Congress would give

discretionary authority to the Board to obtain a medical opinion but tie its hands in terms of review

in favor of a review by the RO, which already had an opportunity to seek and review medical

opinions. This is not a case of regulatory authorization for the Board to consider evidence that

conflicts with a statutory right to one review, as considered in DAV v. Sec'y. This case involves the

statutory scheme itself. Requiring the Board to send information it is statutorily permitted to secure

2

I note that this statute authorizes the RO to obtain the medical opinion, but it does not explicitly authorize the RO to

consider it, similar to section 7109's authorization for the Board to secure medical opinions. It would be absurd to

conclude the RO could not consider the medical opinion it obtained.

14

back to the RO for initial consideration is inconsistent with the overall statutory scheme and intent

of Congress that the Board resolve conflicts in evidence. See part I.C., below (quoting S. REP. NO .

1844 (1962), reprinted in 1962 U.S.C.C.A.N. 2585, 2585-86).

B. Section 7104(a) and Board Review of Section-7109 Medical Opinions are in Harmony

The majority's analysis purports to hew to the mandates of section 7104(a) and the Federal

Circuit's opinion in DAV v. Sec'y, and to harmonize a perceived conflict between section 7104(a) and

section 7109. Ante at 10-11. In reality, however, there is no conflict between the two sections and

the Board's review of evidence obtained under section 7109. Section 7104(a) states that: "All

questions in a matter which under section 511(a) of this title is subject to decision by the Secretary

shall be subject to one review on appeal to the Secretary." 38 U.S.C. § 7104(a) (emphasis added).

The majority focuses on the "one review on appeal" language without proper consideration of the

rest of this provision, i.e., without considering whether a section-7109 medical opinion is a "question

. . . subject to decision by the Secretary" under section 511(a). Unlike the concern about regulatory

authorization for the Board to take additional evidence in DAV v. Sec'y, obtaining a medical opinion

under section 7109 is an action that statutorily cannot be undertaken by the Secretary. It can only

be undertaken by the Board. There is therefore no indication as to how such an action could ever

be subject to a decision under section 511(a). This is buttressed by examining section 7109 itself.

Paragraphs (a) and (c) of section 7109 commit authority to the Board to, respectively, "secure" the

medical opinion and to furnish notice and a copy of the opinion to the claimant. The only authority

under section 7109 given to the Secretary is the authority under section 7109(b) to make "necessary

arrangements" with medical institutions to provide such opinions at the request of the Board

Chairman.

In other words, the actions of the Board under section 7109, indeed all actions of the Board

taken pursuant to chapter 71 of title 38, are wholly outside the Secretary's section-511(a)-decision-

making process and are not subject to appeal within the Department under section 7104(a).

Accordingly, Board review of medical opinions in the first instance, pursuant to section 7109, is not

in conflict with the right "to one review on appeal" required by section 7104(a) since that right is

limited to review of decisions made by the Secretary.

15

C. Legislative History

A look at the legislative history behind the provision that is now section 7109 further

undermines the majority's analysis.3 The express purpose in enacting the provision that is now

codified as section 7109 was "to improve the appellate procedures applicable to veterans' claims by

authorizing the referral of such claims to independent medical experts" for the purpose of

"resolv[ing] conflicts of evidence in questions involving service connection of disabilities or deaths."

S. REP. NO . 1844 (1962), reprinted in 1962 U.S.C.C.A.N. 2585, 2585-86 (emphasis added). The

scheme described by the majority, i.e., the Board requesting section-7109 medical opinions and then

having to refer them to the RO for initial consideration, does nothing to improve the appellate

procedures. By specifically referencing appellate procedures, and by vesting the authority to procure

such medical opinions in the Department's appellate body, it is difficult, if not impossible, to escape

the conclusion that Congress intended that the Board be able to both procure and review the medical

opinions obtained under section 7109.

D. Absurd Result

The majority's interpretation of section 7104(a) leads to absurd results. See United States v.

X-Citement Video, Inc., 513 U.S. 64, 68-69 (1994) ("Some applications of respondent's position

would produce results that were not merely odd, but positively absurd . . . . We do not assume that

Congress, in passing laws, intended such results."); Timex V.I., Inc. V. United States, 157 F.3d 879,

886 (Fed. Cir. 1998) ("statutory construction that causes absurd results is to be avoided if at all

possible"). If the majority is correct, then, under section 7107, the Board could hold a hearing and

record the testimony of the veteran but, because section 7107 fails to explicitly state that the Board

can consider the veteran's testimony in the first instance, the hearing transcript would have to be sent

to the RO for initial consideration (where the veteran likely already had a hearing, see, e.g.,

38 U.S.C. § 7105(a) (stating that, after the filing of a Notice of Disagreement, "[e]ach appellant will

be accorded hearing . . . rights"); 38 C.F.R. § 3.103(a) (2003) (requiring notice of the right to a

hearing and citing 38 U.S.C. § 501(a) as statutory authority for this right); § 3.105(i) (affording

3

I recognize, of course, that the majority would likely eschew the legislative history because of their view that the intent

of Congress is clear from the face of the statute. See Chevron U.S.A., Inc. v. Nat'l Res. Def. Council, Inc., 467 U.S. 837,

842 (1984). However, as detailed in section I.B., above, the statutory language is decidedly less "clear" than the majority

presents and the constrained reading of "secure" is not required to find harmony between sections 7109 and 7104(a).

16

claimant a hearing prior to severance of service connection, reduction in compensation or pension,

and other reductions and discontinuances)).

Additionally, the Board would no longer be able to assess credibility, except in review of the

RO's assessment, since it is not explicitly authorized to do so, again rejecting the well-recognized

role of the Board to assess credibility. See Cuevas v. Principi, 3 Vet.App. 542, 547 (1992) (noting

that the Board is required to "address the credibility of appellant's sworn testimony or provide

reasons for discounting that testimony"); Wilson v. Derwinski, 2 Vet.App. 16, 20 (1991) (same);

Smith v. Derwinski, 1 Vet.App. 235, 237-38 (1991) ("Determination of credibility is a function for

the [Board]"). This also flies in the face of the well-recognized notion that the party observing

testimony of a witness is best able to assess the credibility of that witness. Cf. Miller v. Fenton,

474 U.S. 104, 114 (1985) (when an "issue involves the credibility of witnesses and therefore turns

largely on an evaluation of demeanor, there are compelling and familiar justifications for leaving the

process of applying the law to fact to the trial court").

Furthermore, in DAV v. Sec'y, 327 F.3d at 1347-48, the Federal Circuit stated: "[W]hen

Congress intended to authorize the Board to obtain additional evidence without 'one review on

appeal to the Secretary,' it knew how to do so." The Federal Circuit goes on to note that Congress

provided "express statutory authority" to obtain additional evidence, and the Court specifically cites

to section 7109 as such an instance. Id. If the Federal Circuit was talking only about "obtaining"

evidence in its narrowest sense, as the majority construes "secure," then there was no need for the

Federal Circuit to note that Congress knew how to authorize the Board to "obtain" such evidence

"without 'one review on appeal to the Secretary'" because the mere "obtaining" of evidence by the

Board would not violate the one-review requirement.

In summary, Congress authorized the Board to secure advisory medical opinions and to hold

a hearing, and its authorization logically includes the authority to consider the information so

obtained. Contrary to the majority's conclusion, this authorization is not inconsistent with the right

to one review, because the one review provided by section 511 is explicitly limited to a review of

the decisions of the Secretary, not decisions of the Board. See 38 U.S.C. § 7104(a). Accordingly,

I would find Board consideration of section-7109 medical opinions fully consistent with the statutory

scheme.

17

II. REMAND WITH VACATUR IS NOT THE ONLY OPTION

Surely no one can believe it appropriate that a combat veteran, having already waited over

eleven years to have his case finally decided, is mandated to wait even longer while his claim is

remanded to the Board so that it can be remanded to the RO, all so that, after nearly a dozen years,

he can begin the process anew. Such a result should occur only if the law requires it and, in this

case, I respectfully submit it does not. It is well settled that "[w]here findings are infirm because of

an erroneous view of the law, a remand is the proper course unless the record permits only one

resolution of the factual issue." Pullman-Standard v. Swint, 456 U.S. 273, 292 (1982) (emphasis

added). Although the majority finds that the Board erred in law by considering Dr. Blincow's

opinion in the first instance, the record in this case, as discussed in section III, below, permits only

one resolution of the key factual issue: Mr. Padgett's right hip injuries were caused by his service-

connected left-knee disability.

The majority's view that any review of the facts would somehow be de novo fact-finding,

ante at 11, also ignores reality and the law. Compare Butts v. Brown, 5 Vet.App. 532, 539 (1993)

(en banc) (conclusions of law reviewed under a de novo standard of review), with Roberson v.

Principi, 17 Vet.App. 135, 147 (2003) (agency fact-finding reviewed under the deferential "clearly

erroneous" standard of review). It is patently clear that the Board considered the evidence of record

and found that the evidence weighed against the veteran, and this Court has clear authority to reverse

findings of the Board adverse to the veteran if they are clearly erroneous. See 38 U.S.C. §§ 7252(a)

("[t]he Court shall have power to affirm, modify, or reverse a decision of the Board or to remand the

matter, as appropriate" (emphasis added)), 7261(a)(4) (authorizing this Court to reverse clearly

erroneous findings of material fact adverse to the claimant); Schroeder v. West, 212 F.3d 1265, 1271

(Fed. Cir. 2000); Mariano v. Principi, 17 Vet.App. 305, 316-17 (2003); Svehla v. Principi,

17 Vet.App. 160, 165-66 (2003).

Moreover, the Board's decision is not void ab initio, and the majority does not state that it

is; indeed, the majority specifically notes that the Board's consideration of the medical opinion would

not have precluded the Board from rendering a decision awarding benefits to Mr. Padgett and that

he could waive the error – neither action is permissible if the decision was void ab initio. See

Breslow v. Brown, 5 Vet.App. 560, 562 (1993) (quoting Hooks v. Hooks, 771 F.2d 935, 949 (6th Cir.

18

1985)) ("A void judgment is to be distinguished from an erroneous one, in that the latter is subject

only to direct attack. A void judgment is one which, from its inception, was a complete nullity and

without legal effect.").

III. THE FACTS IN THIS CASE WARRANT REVERSAL

The facts laid out in the majority opinion are generally complete, however, it is important to

note that, although Mr. Padgett's service medical records do not address a right-hip-injury claim in

service, the Board accepted as fact, pursuant to 38 U.S.C. § 1154(b) (presumptive service-connected

disability sustained in combat), that Mr. Padgett injured his right-hip during combat at the same time

that he injured his left knee. R. at 16. This information was either not known or not considered by

Dr. Blincow, the VA physician who reviewed Mr. Padgett's records and provided an expert medical

opinion; indeed, Dr. Blincow specifically noted that there was no evidence in the record of Mr.

Padgett's having a hip injury in service.4 R. at 418-20. Accordingly, Dr. Blincow's opinion was not

based on all the relevant facts, has questionable probative value, and is entitled to little or no weight.

See Mariano, 17 Vet.App. at 317 (flawed methodology in creating medical report renders report of

"questionable probative value"); Reonal v. Brown, 5 Vet.App. 458, 461 (1993) ("An opinion based

upon an inaccurate factual premise has no probative value."); see also Bielby v. Brown, 7 Vet.App.

260, 268 (1994) ("In order for an expert's opinion to be based upon the facts or data of a case, those

facts or data must be disclosed to or perceived by the expert prior to rendering an opinion[;]

otherwise the opinion is merely conjecture and of no assistance to the trier of fact.") (emphasis in

original).5

4

It appears that Dr. Henderson, another VA doctor, also either did not know or failed to consider the fact that Mr.

Padgett injured his hip during combat. R. at 360-63. The Secretary asserts that Dr. Henderson's opinion should not

have been used by the Board to support its decision based on the fact that Dr. Henderson did not have Mr. Padgett's

medical records. Secretary's Br. at 10.

5

Inasmuch as the Board erroneously determined that Dr. Blincow's opinion was "soundly grounded" and "far

outweighed" the opinions of Drs. Shaw and Thoburn (R. at 18), there is no reason to believe that the Board will not do

so again absent direction from this Court. This creates the ever-real possibility of cyclical remands, as the Board remands

the case to the RO to consider, in the first instance, a medical opinion that is based on incomplete facts, to then be

reviewed by the Board and possibly by this Court before the error is noted and acted upon, presumably by another

remand. The majority's concept that there is no reason to believe the Board will not fix its error, presumes the Board,

unaware of its error (absent discussion in this dissent), would somehow become aware of and remedy the error by giving

less weight to Dr. Blincow's opinion on remand. This is counterintuitive.

19

In reviewing the Board's decision to deny the secondary-service-connected right-hip disability

claim in light of the entire record in this case, there are two doctors with intimate knowledge6 of Mr.

Padgett and his medical status who opine that his left-knee injury "directly aggravated," "adversely

impacted," or otherwise "contributed to" or "resulted in" his right-hip problems. R. at 261-62, 325,

340. The Board noted Dr. Shaw's opinion that Mr. Padgett's "in service left knee injury resulted in

severe traumatic osteoarthritis of the left knee which adversely impacted the progression of

degenerative disease of the right hip and aggravated his symptoms" and that his "in service left knee

injury resulted in an irregular gait pattern which directly aggravated his right hip symptoms."

Further, the Board noted Dr. Thoburn's opinion that Mr. Padgett's "left knee condition resulted in

his weight shifting to the right side, which resulted in the progression of osteoarthritis of the right

hip."7 R. at 17.

In contrast to the opinions of Drs. Shaw and Thoburn, which are based on personal

examinations and knowledge of Mr. Padgett's pertinent medical and physical history, are the

opinions of Drs. Henderson and Blincow, both VA doctors. Dr. Henderson examined the veteran

but did not review the claims file. R. at 361. Dr. Henderson's report also made no mention of Mr.

Padgett's in-service right-hip injury. R. at 360-63. These factors render Dr. Henderson's report of

little or no probative value. See Mariano, 17 Vet.App. at 312; Green v. Derwinski, 1 Vet.App. 121,

124 (1991) (duty to assist requires providing the claimant with a thorough and contemporaneous

6

Dr. Thoburn, a rheumatologist, has been aware of Mr. Padgett's knee condition since at least 1975, when he was

consulted by another doctor who believed Mr. Padgett to have severe degenerative arthritis and a possible torn

medial meniscus of the left knee. R. at 162. In 1976, Dr. Thoburn treated Mr. Padgett for, inter alia, degenerative

arthritis of the left knee. R. at 189-91. Dr. Shaw, an orthopaedic surgeon, began treating Mr. Padgett in 1982,

performed his right-total-hip arthroplasty in 1989, and evaluated his medical condition in follow-up medical

evaluations through 1991. R. at 226-37. Dr. Shaw provided copies of his periodic evaluations to Dr. Thoburn

throughout his treatment of Mr. Padgett. R. at 226-37.

7

W ith regard to the direct-service-connection issue, the Board determined that the opinions of Drs. Shaw and

Thoburn "appear to be largely based on the veteran's self-reported history of having sustained a right-hip injury in

service" a fact that the Board "accepted as true" (R. at 15-16) (emphasis added), and it may be rebutted only by clear

and convincing proof. See Caluza v. Brown, 7 Vet.App. 498, 508 (1995) ("Once this showing [of combat injury] has

been made, the government has the burden to rebut by clear and convincing proof."), aff'd per curiam, 78 F.3d 604

(Fed. Cir. 1996) (table). Inasmuch as the Board finding with regard to secondary service connection is clearly

erroneous, in this dissent the direct-service-connection issue need not be further addressed.

20

medical examination that "takes into account the records of prior medical treatment"); 38 C.F.R.

§ 4.1 ("It is . . . essential both in the examination and in the evaluation of a disability, that each

disability be viewed in relation to its history.").

Moreover, Dr. Henderson's diagnosis was not definitive, "suggest[ing]" that his hip injury

was due to the aging process, "suggest[ing]" that his knee injury in combat did not "necessarily" play

a part in his need for a hip replacement, and further noting that "[f]or a more definitive opinion, it

is suggested that a certified orthopedist review this case." R. at 363. The latter statement diminishes

further the value of this report as probative medical evidence. See Frye v. United States, 293 F.

1013, 1014 (D.C. Cir. 1923) (question involving special knowledge requires witness skilled in that

area); Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992) (same); see also Sklar v. Brown, 5 Vet.App.

140, 146 (1993) (a specialist's opinion on a medical matter outside his or her specialty to be given

little weight); cf. Bloom v. West, 12 Vet.App. 185, 187 (1999) (speculative medical opinion cannot

establish in-service medical nexus to service).

Dr. Blincow's report fares no better. Although direct examination of the veteran by an expert

is not necessary to make the expert's medical report competent, see Black v. Brown, 10 Vet.App. 279,

286 (1997) (Kramer, J., dissenting) ("medical opinions obtained from . . . [medical experts] provide

sufficient bases for awarding a claim . . . and those physicians, by definition, examine only records,

not patients") (citing 38 C.F.R. § 20.901(a), (d)), the lack of a complete and accurate record, at least

as to material and relevant facts, certainly undercuts an expert opinion's probative value. See Bielby,

supra. Dr. Blincow noted in his report that there "is no recorded record of any injury to the patient's

right hip at the time of the [1944 left-knee injury]" (R. at 418) and that "[t]here is no mention of any

injury to the right hip in the medical records" (R. at 419). He makes no reference to the presumptive

occurrence of the right-hip injury under section 1154(b). R. at 418-20. Because Dr. Blincow's report

fails to consider a material and relevant fact, his expert opinion has reduced, if any, evidentiary

value. See Mariano,and Reonal, both supra.

Despite the infirmities in the reports of Drs. Henderson and Blincow, and the lack of such

infirmities regarding the opinions of Drs. Shaw and Thoburn, the Board found that the probative

value of the opinions of Drs. Henderson and Blincow, both VA doctors, "far outweighed" the value

of the opinions of Drs. Shaw and Thoburn. Based on this weighing of the evidence, the Board found

21

that Mr. Padgett's right-hip injury was not secondarily service connected8 and that the preponderance

of the evidence was against the claim. R. at 18. However, given the little probative weight, if any,

that can legally and reasonably be accorded the opinions of Drs. Henderson and Blincow, as opposed

to the opinions of Drs. Shaw and Thorburn that strongly support a secondary service connection for

the right-hip injury, the finding of the Board to the contrary is simply not "plausible in light of the

record viewed in its entirety," leaving me with a definite and firm conviction that the Board clearly

erred in its decision denying Mr. Padgett secondary service connection for his right-hip injury.

Gilbert, 1 Vet.App. at 52 (quoting Anderson, 470 U.S. at 574). See also 38 C.F.R. § 3.303(a) (2003)

("Determinations as to service connection will be based on review of the entire evidence of

record . . ."); Guerrieri v. Brown, 4 Vet.App. 467, 470-71 (1993) ("probative value of medical

opinion evidence is based on the medical expert's personal examination of the patient, the physician's

knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches").

The only plausible resolution of the key factual issue in this case is that Mr. Padgett's right hip

injuries were caused by his service-connected left-knee disability and the Board's decision that the

evidence preponderated against the claim is clearly erroneous. See Pullman-Standard, supra;

Harder v. Brown, 5 Vet.App 183 (1993) ("Taken together, the sum total of all this credible evidence

dictated one result: granting service connection," thus warranting reversal). The Board decision in

this case should be reversed.

For the above reasons, I respectfully dissent.

8

The Board also found the right-hip injury was not directly service connected. As noted in footnote 7, supra, this

issue need not be further addressed.

22