lumbosacral Holley V. Principi

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02-0592

Holley.John.02-0592.wpd

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UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 02-0592

John T. Holley, Appellant,

v.

Anthony J. Principi,

Secretary of Veterans Affairs, Appellee.

Before GREENE, Judge.

MEMORANDUM DECISION

Note: Pursuant to U.S. Vet. App. R. 30(a),

this action may not be cited as precedent.

GREENE, Judge: Veteran John T. Holley appeals, pro se, an April 15,

2002, Board of Veterans' Appeals decision (Board) that found no clear and

unmistakable error (CUE) in a 1983 Board's denial of a disability rating

greater than 20% for his service-connected back condition. Record (R.) at

1-14. He also appeals the Board's determination that there was CUE in a

November 1983 Board decision and concluded that the effective date for an

increased rating for his service- connected back disorder was January 29,

1981. Id. The appeal is timely, and the Court has jurisdiction pursuant

to 38 U.S.C. 7252(a) and 7266(a). Single-judge disposition is

appropriate when, as here, the issue is of relative simplicity and the

outcome is not reasonably debatable. See Frankel v. Derwinski, 1 Vet.App.

23, 25-26 (1990). For the reasons that follow, the Court will remand the

matter for further adjudication.

I. FACTS

Mr. Holley served on active duty in the U.S. Air Force from January

1974 to January 1977. R. at 16-17. In July 1977, a VA regional office (

RO) awarded VA service connection for his low- back condition and assigned

a 10% disability rating. R. at 60-61. He appealed that rating

determination and on October 19, 1979, the Board reduced Mr. Holley's

disability rating to

noncompensable after x-rays taken during a VA medical examination

revealed no significant abnormalities. R. at 74, 105-09. In August 1980,

Mr. Holley asserted that his back condition should be rated 100% disabling

. R. at 111, 114-19. He also requested service connection for a nervous

condition and his inability to work, alleging both were secondary to his

service-connected back condition (R. at 116, 132-33, 137, 151), and for

left-sided paralysis and sciatic nerve pain (neuritis) (R. at 125, 128-29,

138). In November 1980, a VA medical report diagnosed Mr. Holley as

having "chronic back pain;" an orthopedic consultation revealed an

impression of "chronic lumbosacral strain;" and a radiology report

concluded: "Examination is compared with previous exam of 6-18-77 and

shows no change. There is slight narrowing of the L4-5 disc space. Minor

sacralization of the lateral elements of L5 on the right[,] otherwise

bones and joints are normal." R. at 144. The diagnosis rendered by the

radiologist was "questionable degenerative disc disease L4-5 otherwise

negative. Unchanged." Id. A December 22, 1980, VA disability evaluation

documented "chronic recurrent low back problem," and an x-ray report

showed "L4-5 degenerative disc disease with minimal reversed

spondylolisthesis." R. at 148, 150.

In January 1981, the RO determined that the December 22, 1980, VA

medical examination revealed no evidence of recurrent back strain and that "

reverse spondylolisthesis L4 on L5 is a [congenital disease] and not a

disability under the law" and, thus, continued a noncompensable rating for

Mr. Holley's back condition. R. at 156-57. The RO also denied numerous

additional claims, including, inter alia, claims for a rating of total

disability based on individual unemployability (TDIU) and service

connection for left-sided paralysis and for a nervous condition. Id. Mr.

Holley timely appealed that RO decision; he contended that he was entitled

to a rating of TDIU and should also be awarded service connection for

left-sided paralysis, sciatic neuritis, and a nervous condition associated

with his back problem (R. at 159, 162, 223-28). With his appeal, he

submitted VA clinical records dated August 12, 1980, that diagnosed him as

having "recurrent lumbosacral strain" with spasms, tenderness in the left

sciatic notch, inability to heel-and-toe walk, and pain radiating down his

left leg and hip. R. at 213. A VA treatment record dated January 29,

1981, revealed a diagnosis of "chronic recurrent mechanical back problem"

and "left sciatic pain and muscle spasm." R. at 171. In February 1981,

Mr. Holley was treated at a VA medical center for chronic sciatic pain and

reported anxiety and depression problems secondary to his back problems.

R. at 169-70. The

examiner stated in the report: "[P]atient should be referred back to [sic]

for pain management, after [workup] for etiology of pain is completed." R.

at 169. Mr. Holley was also treated at a VA orthopedic clinic that same

month and was prescribed Clinoril and referred to the "Brace Shop" for a "

low Holt corset." R. at 188.

In March 1981, the RO issued a Statement of the Case (SOC) and under

38 C.F.R. 4.71(a), Diagnostic Code (DC) 5295 (1980) continued the

noncompensable rating for Mr. Holley's service- connected back strain. R.

at 166. The RO found that he did not have "low back strain with

characteristic pain on motion." Id. The SOC did not address his claims

for a rating of TDIU and service connection for left-sided paralysis and a

nervous condition. R. at 165-67. Mr. Holley filed a Substantive Appeal

in March 1981. R. at 181. He contended that he could not work, was

partially paralyzed secondary to his back problem, and suffered chronic,

sciatic nerve pain and muscle spasms daily. Id. A Supplemental SOC (SSOC)

was issued in April 1981 that addressed the medical records from November

6, 1980, to January 6, 1981, and found no change in Mr. Holley's condition

and only "one complaint of chronic low back pain" during that time. R. at

195. In response to the SSOC, Mr. Holley submitted another Substantive

Appeal contending that he had been totally disabled since August 12, 1980,

because of his back condition and chronic, sciatic pain and that his

condition should be evaluated under DC 5293 (intervertebral disc syndrome

). R. at 198. He argued that the medical records dated November 4,

1980, December 1, 1980, January 29, 1981, and February 1981 substantiated

his claim. Id. In his appeal to the Board, Mr. Holley asserted that his

back condition should also be rated under DC 8520 (severe sciatic

involvement) and DC 8619 (neuritis). R. at 209-12. He argued that VA

medical treatment reports dated from August 12, 1980, to February 23, 1981,

documented that he suffered from chronic severe left sciatic pain, muscle

spasms, chronic neuritis, and a tender sciatic notch. R. at 209-12, 227.

In June 1981, a VA treatment record revealed "recurrent left sciatic pain"

with a decreased left-knee jerk and Mr. Holley was prescribed bed rest,

heat, Robaxin, and Tylenol #3 for pain. R. at 217. In July 1981, Mr.

Holley again requested that VA evaluate his conditions under DCs 8520 and

8619; consider his claim for a TDIU rating; and notify him of what

evidence was missing from his file to "secure my benefits if my claim is

below 60%." R. at 223, 233-34. He also submitted a statement dated July

22, 1981, from Dr. Reiner, a private physician. In that statement, Dr.

Reiner described Mr. Holley's treatment

in November 1980 for chronic pain in his left leg and treatment in June

1981 that revealed continuing problems with pain in his back and left leg

and a weight loss of 40 pounds. R. at 230. On August 18, 1981, a VA

treatment record included a diagnosis of Mr. Holley as having "recurrent

sciatic pain," and Mr. Holley submitted another letter to VA that stated

that he had "severe sciatic neuritis back problem, mechanical back problem,

strain (severe), [range of motion] down, long[-] standing chronic

intermittently severe left sciatic pain, muscle spasms (chronic), down

reflexes in left knee" and he requested a rating of at least 60% for these

conditions under DCs 5293, 8619, and 8520. R. at 216, 224-26. On

December 21, 1981, a VA treatment record reported "chronic intermittent

low back and left sciatic pain" and diagnosed Mr. Holley as having a "

chronic mechanical back problem [with] sciatica." R. at 237. A VA

treatment record in March 1982 reported "chronic recurrent left sciatica."

R. at 237, 248.

In March 1982, the Board defined the issue as "Entitlement to an

increased (compensable) rating for low[-]back strain" and remanded the

claim to the RO for an orthopedic and neurological examination to

ascertain the severity of Mr. Holley's back condition. R. at 244-46. The

Boar d decision stated: "[T]he claim should be reviewed by the originating

agency. If the benefit sought on appeal is not granted, the veteran and

his representative should be furnished an [sSOC]. The claims folders

should then be returned to the Board for further appellate consideration,

if in order." R. at 246. The Board remand did not refer to Mr. Holley's

other claims on appeal for a rating of TDIU, and service connection for

left-side paralysis, sciatic pain, and a nervous condition. R. at 244-46.

A March 22, 1982, VA medical report revealed that Mr. Holley had "chronic

recurrent left sciatica" and that his prescriptions for Robaxin and

Tylenol #3 had been refilled. R. at 248. In May 1982, a VA neurological

examination was conducted that diagnosed Mr. Holley as having "chronic

lumbar herniated disc, which extends back into the active military duty

most likely, with numerous visits to orthopedic and neurological

specialists in 1975 and 1976." R. at 253. The examiner opined that Mr.

Holley's condition was compatible with an L5-S1 disc with a compression of

the S1 root causing the sensory disturbance which was found on examination

in the lateral aspect of the left foot." R. at 252-53.

In June 1982, the RO assigned Mr. Holley a 20% disability rating for

his service-connected back condition under 38 C.F.R. 4.71a, DC 5293,

effective January 21, 1981, and denied, inter alia,

his claims for a rating of TDIU, and service connection for degenerative

disc disease, reverse spondylolthesis, left-sided paralysis and a nervous

condition. R. at 258-60. The RO did not furnish Mr. Holley an SSOC as

directed by the Board's 1982 remand order for the claims that were denied.

R. at 263-64. Mr. Holley appealed that RO decision on the basis that he

believed that his back condition should be rated as 40% disabling under DC

5293. R. at 266.

In August 1982, the RO issued an SSOC that stated: "To warrant an

assignment of 40[%], it must be shown there be [sic] persistent symptoms,

compatible to sciatic neuropathy with characteristic pain and demonstrable

muscle spasm, absence of ankle jerk, or other neurologic findings

appropriate to the cite of the diseased disc and it must be shown that

there are recurrent attacks with only intermittent relief." R. at 271-73.

The RO concluded in the SSOC that Mr. Holley's condition did not warrant a

rating greater than 20% for his back condition. Id. Mr. Holley submitted

a Substantive Appeal for "low back strain[,] now diagnosed [as] herniated

disc L5-S1." R. at 277. In March 1983, the Board denied entitlement to a

rating greater than 20% and to an effective date earlier than January 29,

1981. R. at 282-89. The Board stated:

The recent examination showed that the veteran has a decreased pinprick

sensation on the lateral aspect of the left foot which is in the

distribution of the S1 root. Station and Gait are unremarkable. The

veteran does not have further disc symptomatology as described in the

rating criteria and the findings are otherwise compatible with a moderate

intervertebral disc syndrome.

R. at 288. Mr. Holley did not appeal that decision. R. at 1-432. In

1999, Mr. Holley filed a motion alleging CUE in the March 1983 Board

decision. He asserted that he was entitled to a rating greater than 20%

for his back condition under DC 5293 because the 1983 Board had (1) failed

to consider all the evidence of record; (2) erred by not awarding him

special monthly compensation for "loss of major joints;" (3) failed to

consider 38 C.F.R. 4.40, 4.45, and 3.321(b)(1); and (4) failed to

acknowledge in its decision that he was diagnosed in February 1981 as

having severe recurring sciatic pain attacks. R. at 306-07, 309, 392-404.

In February 2001, the Board denied Mr. Holley's CUE motion concluding that

the 1983 Board did not err in assigning a 20% rating and an effective date

of January 29, 1981. R. at 319-30. Mr. Holley appealed to the Court, and

in April 2001, the Court vacated the Board's decision and remanded the

matter for readjudication in light of the newly

enacted Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-

475, 114 Stat. 2096, now codified in part at 38 U.S.C. 5102, 5103, and

5103A. R. at 390. After further adjudication, the Board in the decision

here on appeal determined that the March 1983 Board had committed CUE when

assigning Mr. Holley an effective date of January 1981 for his increased

rating because the effective date should have been December 1, 1980. The

Board concluded:

In the March 1983 Board decision, the Board determined that an

earlier effective date prior to January 29, 1981, for the

assignment of a compensable evaluation for the veteran's

service-connected back disability was not warranted on the

basis that January 29, 1981, was the earliest date on which it

was ascertainable that an increase in disability has occurred.

However, as pointed out by the veteran's representative, a VA

clinical record dated December 1, 1980, noted that "[patient]

has chronic recurrent low back problem [and] has been taking

Robaxin [and] Tylenol #3. He is service connected for this [

and] wants refill which he takes on PRN basis. Refill Robaxin [

and] Tylenol #3." The representative is quite correct in that

the two findings are essentially identical, and no sound reason

existed to choose the later [sic]. The Board now finds that

the VA clinical record of December 1, 1980, made it

ascertainable that an increase in disability warranting a

compensable evaluation for a herniated lumbar disc, L5-S1, with

compression to the S1 nerve root of the left lower extremity,

had occurred as of that date and it was error for the Board not

to so find at the time of the Board's March 1983 decision.

R. at 11. Concerning any CUE in the 1983 Board decision that denied a

rating greater than 20% for Mr. Holley's back condition, the Board stated:

In this case, the record fails to provide a basis on which to conclude

that the March 1983 Board decision was clearly erroneous on the increased

evaluation issue. The March 1983 Board decision noted the veteran's

service medical history and subsequent medical history in detail and

concluded that an evaluation in excess of 20[%] was not warranted. . . . [

I]n regard to the Board's March 1983 decision denying entitlement to an

evaluation in excess of 20[%] for a herniated lumbar disc, L5-S1, with

compression of the S1 nerve root of the left lower extremity, a review of

the record reflects no error in the Board's adjudication of the veteran's

appeal which, had it not been made, would have manifestly changed the

outcome when it was made.

R. at 10. This appeal followed.

Mr. Holley argues that the Board decision here on appeal erred

by not finding CUE in the 1983 Board decision that denied a rating greater

than 20% because the 1983 Board assertedly (1) failed to consider all

evidence of record, specifically medical reports dated August 1980 (

Appellant's Brief (Br.) at 13-15); (2) failed to consider 38 C.F.R. 3.

459, 4.40, 4.45, 4.66, 4.71, 4.120, 4.123, 4.124 (Id. at 15); (3) failed

to evaluate his claim under DC 8520 for paralysis of the sciatic nerve (Id.

at 15-16); and (4) failed to consider his claim for nervousness,

depression, and anxiety secondary to his service-connected back pain (Id.

at 16). Mr. Holley also contends that the Board decision here on appeal

erred by not determining that the 1983 Board should have assigned an

effective date in August 1980 for his increased rating and failed to

provide an adequate statement of reasons or bases because it failed to

address all his CUE arguments in its decision. Further, he argues that

his claims for a nervous condition and a rating of TDIU remain

unadjudicated. Id. at 19-20.

The Secretary counters that the Board decision here on appeal should

be affirmed. He contends that Mr. Holley's argument that the Board erred

in finding that the 1983 Board had considered all evidence of record is

without merit. Secretary's Br. at 21-22. He maintains that the August

1980 x-ray reports do not reveal findings that would result in a different

outcome if the 1983 Board or the Board decision here on appeal had further

discussed the x-rays in its decision. The Secretary contends that Mr.

Holley is asking that the Court re-weigh the evidence before the March

1983 Board, which is not a basis for CUE. Id. at 22. Further, the

Secretary argues that under Andre v. Principi, 301 F.3d 1354, (Fed. Cir.

2002), the Court lacks jurisdiction to consider Mr. Holley's additional

arguments that there was CUE in the 1983 Board decision because he did not

first raise them to the Board. He requests that the Court affirm the

April 2002 decision on appeal. Id. at 24.

II. APPLICABLE LAW AND ANALYSIS

A previous Board decision must be reversed or revised where

evidence establishes CUE. 38 U.S.C. 7111; 38 C.F.R. 20.1400-20.1411 (

2004). For CUE to exist either (1) the correct facts in the record were

not before the adjudicator or (2) the statutory or regulatory provisions

extant at the time were incorrectly applied. See Damrel v. Brown, 6 Vet.

App. 242, 245 (1994); 38 C.F.R. 20.1403, 20.1404. In addition, "the

error must be 'undebatable' and of the sort 'which, had it not been made,

would have manifestly changed the outcome at the time it was made.'" Id. (

quoting

Russell v. Principi, 3 Vet.App. 310, 313-14 (1992) (en banc)); see also

Bustos v. West, 179 F.3d 1378, 1380 (Fed. Cir. 1999) (expressly adopting "

manifestly changed the outcome" language of Russell, supra). "In order

for there to be a valid claim of [CUE], . . . [t]he claimant, in short,

must assert more than a disagreement as to how the facts were weighed or

evaluated." Russell, 3 Vet.App. at 313; see 38 C.F.R. 20.1404. That is

because, "even where the premise of error is accepted, if it is not

absolutely clear that a different result would have ensued, the error

complained of cannot be, ipso facto, clear and unmistakable." Fugo v.

Brown, 6 Vet.App. 40, 43-44 (1993); see 38 C.F.R. 20.1403. On appeal of

a Board determination that there was no CUE in a prior final Board

decision, the Court's review is limited to determining whether the Board's

conclusion was "arbitrary, capricious, an abuse of discretion, or not

otherwise in accordance with law" (38 U.S.C. 7261(a)(3)(A)) and whether

the decision is supported by an adequate statement of reasons or bases (38

U.S.C. 7104(d)(1)). See Russell, 3 Vet.App. at 315.

The Court has held that "the Board [must] articulate with reasonable

clarity its reasons or bases for decisions, and in order to facilitate

judicial review, 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." Gilbert v. Derwinski, 1 Vet.App. 49, 57 (

1990). Generally, when the Board does not provide an adequate statement

of reasons or bases, the decision will be vacated and the matter remanded

for further action. See Hicks v. West, 12 Vet.App. 86 (1998); Meeks v.

Brown, 5 Vet.App. 284, 288 (1993).

A. Earlier Effective Date

To the extent that Mr. Holley argues for an earlier effective date,

the Board decision here on appeal lacks an adequate statement of reasons

or bases for its finding that December 1, 1980, was the proper effective

date. See Gilbert, supra. The Board determined that there was CUE in the

1983 Board decision because a VA medical record dated December 1, 1980 (R.

at 172) provided the same findings as the January 29, 1981, medical record (

R. at 171) that was used by the 1983 Board to determine the proper

effective date. R. at 11. A review of the record on appeal reveals that

VA medical records dated August 12, 1980, provided essentially the same

findings (recurrent low back with prescriptions of Robaxin, Tylenol #3,

and bed rest). Compare R. at 172 with R. at 213. However, there is no

discussion of this medical evidence in the 1983 Board decision. See R. at

282-

90. Although the 1983 Board was not required to summarize the evidence

reviewed in making its decision, the 2002 Board was required to discuss

adequately all material issues of fact and law in its decision. Eddy v.

Brown, 9 Vet.App. 52 (1996). Accordingly, the 2002 Board erred by not

considering the August 12, 1980, VA medical report, when it found CUE in

the 1983 Board decision and awarded an effective date of December 1, 1980,

for Mr. Holley's 20% disability rating. Therefore, remand is required for

the Board to consider all the medical evidence of record and to provide an

adequate statement of reasons or bases for its conclusion that December 1,

1980, was the proper effective date in light of the August 12, 1980,

medical records. See 38 C.F.R. 3.400 (1982).

B. Increased Rating

At the time of the 1983 Board's decision, DC 5293 (intervertebral

disc syndrome) provided that a veteran is entitled to a 10% disability

rating for mild symptomatology; a 20% disability rating for moderate

disability consisting of "recurrent attacks"; a 40% disability rating for

severe disability consisting of "recurrent attacks, with intermittent

relief"; and a 60% disability rating for pronounced disability consisting

of "persistent symptoms compatible with sciatic neuropathy with

characteristic pain and demonstrable muscle spasm, absent ankle jerk, or

other neurological findings. . . .with little intermittent relief." 38 C.

F.R. 4.71(a), DC 5293 (1982); See also R. at 10. According to the

evidence of record, the 1983 Board evaluated Mr. Holley's low-back

disability under DC 5293. The evidence of record reveals numerous VA

medical reports dated from 1980 through 1983 that document that Mr. Holley

had a consistent diagnosis of chronic recurrent lower back problems that

required him to take Robaxin and Tylenol #3, and to undertake bed rest.

See R. at 142-44 (chronic back pain, narrowing of the L4-5 disc space),

148-150 (L4-L5 degenerative disc disease), 169 (chronic sciatic pain), 171 (

chronic recurrent lower back and left sciatic pain and muscle spasm), 172 (

chronic recurrent lower back problem), 173 (acute episode of low-back and

left-leg pain), 188 (chronic lumbosacral strain, sent to "Brace Shop for a

low Holt corset"), 213 (acute low-back pain radiating down leg and hip,

some spasm, tenderness left sciatic notch), 214 ("long[-]standing chronic

intermittently severe left-sciatic pain"), 216 (recurrent episodes of

sciatic pain), 217 (chronic low- back pain, recurrent left-sciatic pain),

230 (chronic back ache with pain down left leg), 237 (chronic mechanical

back problem, left sciatic pain), 248 (chronic recurrent pain, left

sciatic). The most recent medical evidence before the 1983 Board was a VA

neurological examination conducted in

May 1982 that revealed a "chronic lumbar herniated disc" that caused "

sensory disturbance" in Mr. Holley's left foot. R. at 252.

However, the Board decision here on appeal failed to discuss how that

medical evidence before the Board in 1983 did not meet the DC 5293

criteria for a disability rating of 40%, which required "severe; recurring

attacks, with intermittent relief," especially in light of the voluminous

medical records reporting that Mr. Holley was having chronic recurrent

back problems with sciatic pain. Further, the Board decision failed to

discuss whether the 1983 Board committed CUE by not evaluating Mr.

Holley's condition under DCs 8520 and 8619. R. at 209-12, 233-34. The

Board's failure to consider and discuss these issues in its decision

prevents the Court from conducting a meaningful review of the Board

decision or Mr. Holley to understand its rationale, and, thus, its

statement of the reasons or bases for its decision is inadequate. See 38

U.S.C. 7104(d)(1). As the Court held in Gilbert, "a bare conclusory

statement, without both supporting analysis and explanation, is neither

helpful to the veteran, nor 'clear enough to permit effective judicial

review,' nor in compliance with statutory requirements." Gilbert, 1 Vet.

App. at 57 (quoting International Longshoreman's Ass'n v. National

Mediation Bd., 870 F.2d 733, 735 (D.C. Cir. 1989). Accordingly, the

Board decision here on appeal that found no CUE in the 1983 Board's

decision that denied a disability rating greater than 20% was not

supported by an adequate statement of reasons or bases and will be

remanded.

C. Pending Claims

In 1982, Mr. Holley presented to the RO and the Board claims for

entitlement to service connection for sciatic neuritis, left-sided

paralysis, a nervous disorder/depression, and a rating of TDIU. See R. at

159, 162, 181, 198, 209-12, 216, 223-28. Apparently, he now argues that

the RO or the Board committed CUE by failing to adjudicate those claims.

Although the Court has jurisdiction to decide whether claims remain

pending for adjudication, such jurisdiction is not invoked by raising a

CUE motion. See Livesay v. Principi, 15 Vet.App. 165, 179 (2001) (en banc

) ("CUE provides a procedural device that allows for a final RO or Board

decision to be reversed or revised."). In this case, however, there is no

evidence in the record that the Board has rendered a final adverse

decision on Mr. Holley's claims for service connection for left-sided

paralysis, sciatic neuritis, a nervous disorder, and a rating of TDIU.

See Roberson v. Principi, 17 Vet.App. 135, 138

(2003) (per curiam order) (concluding that Court has jurisdiction over

issue of pendency of unadjudicated TDIU rating claim because issue was

presented to RO and Board); see also Fenderson v. West, 12 Vet.App. 119 (

1999) (vacating Board decision and remanding to Board for appropriate

procedural compliance, specifically the issuance of a SOC); see also

Norris v. West, 12 Vet.App. 413, 422 (1999) (rejecting contention that

RO's failure to adjudicate informally raised TDIU claim constitutes final

disallowance of the claim and concluding that when VA has failed to comply

during adjudication process with certain procedural requirements mandated

by law or regulation, claim remains pending in that VA adjudication

process, and, therefore, there is no final adverse RO decision that can be

subject to CUE attack). Although the 1983 Board decision may be a final

decision as to the rating and effective date assigned for Mr. Holley's

service-connected back disorder, that decision is not a final decision on

his claims for service connection for his left-sided paralysis, sciatic

neuritis, a nervous disorder, and a rating of TDIU, because that decision

never addressed those claims. The June 1982 RO decision did deny those

claims after they were remanded by the Board in March 1982. See R. at 244-

46, 258-60. However, it appears from the evidence of record that the RO

failed to comply with the Board's March 1982 remand order to issue an SOC

for any denied claims. See 38 U.S.C. 7105(a), (d)(1); Hanson v. Brown,

9 Vet.App. 29, 31-32 (1996) (concluding that unadjudicated claim normally

remains open and pending until final action is taken by RO unless claim is

withdrawn); 38 C.F.R. 3.160© (2004) (defining "[p]ending claim" as

application that "has not been finally adjudicated"); see also Stegall v.

West, 11 Vet.App. 268, 271 (1998). Accordingly, there are neither

sufficient findings of fact by the Board nor a sufficiently detailed

record for the Court to determine whether there are pending unadjudicated

claims. The Court trusts that VA will examine the matter and promptly

take whatever action is required. Further, the Board has not addressed Mr.

Holley's additional allegations of CUE. Therefore, they are not properly

before the Court. See 38 U.S.C. 7252(a); Andre, 301 F.3d at 1361-62 ("

each 'specific' assertion of CUE constitutes a claim that must be the

subject of a decision by the Board before [this] Court can exercise

jurisdiction over it"); Russell, 3 Vet.App. at 315 (Board decision on

specific issue of CUE is necessary for this Court to exercise its

jurisdiction); see also 38 U.S.C. 7111(e) (claim of CUE in Board

decision shall be raised to Board in first instance and decided by Board

on merits).

However, on remand VA shall address all Mr. Holley's CUE arguments and

provide an adequate statement of reasons or bases for its decision.

Upon consideration of the foregoing analysis, the record on appeal,

and the parties' pleadings, and having "take[n] due account of the rule of

prejudicial error" under 38 U.S.C. 7261(b)(2), the Board decision will

be vacated and the CUE matters remanded for issuance of a readjudicated

decision supported by an adequate statement of reasons or bases. See 38 U.

S.C. 5109A, 7104(a), (d)(1); 38 C.F.R. 3.105; Fletcher v. Derwinski,

1 Vet.App. 394, 397 (1991). On remand, Mr. Holley is free to submit

additional evidence and argument on the remanded claim, including the

arguments raised here on appeal, and the Board must consider any such

evidence or argument submitted. See Kay v. Principi, 16 Vet.App. 529, 534 (

2002) (stating, in case where Court remanded and declined to address

appellant's arguments and evidence concerning Board error, that, on remand,

appellant is free to raise such arguments and evidence to the Board and

the Board must address them).

III. CONCLUSION

Upon consideration of the foregoing, the April 15, 2002, Board

decision is VACATED and the matter is REMANDED for action consistent with

this decision.

DATED: January 14, 2005

Copies to:

John T. Holley

PO Box 90842

Los Angeles, CA 90009

General Counsel (027)

Department of Veterans Affairs

810 Vermont Avenue, NW

Washington, DC 20420

[sixthscents]

WOW... Go Holly Go!... can you believe the "stick to it ness of this guy?" ... I read the whole thing and the VA simply failed again and again to comply with the court order.... its just another example that the VA HATES to change their decison, even when theer is a huge amount of evidence but... did you notice.........

Not the first MRI

Not the first EMG

This is all based on physical exams and x-rays...

I have found that one of the MOST effective objective (well mostly) objective tests is the EMG... for VA purposes they seem to lend MORE credence to its results than to even an MRI...

but it is an established fact that MRI's while suggestive are NOT definitive...

where's the myleogram?

I think that if the proper tests had been done PRIOR to the submission of the claim originally... and EMG's wree around in the 80's, as well as MRI's... well I "opine" that the error here was made by the VA BUT... it would have been MUCH harder for the rater to deny evidence which supports each other... like an MRI whihc shows disk space narrowing or forimina etc... and an EMG which shows paralysis of nerves, partial or complete....

I think that this case, while certainly demonstrating that the VA can make an error, or CUE itself... is an even BETTER example of what you need to HAVE evidence wise prior to a claim, or at least as supplemental to a claim...

Again and agian.. I must state that EMG's for low back injuries, or upper body i.e. lumbar and cervical... are VERY good, and if they compliment the finding of an MRI... well in MY experience thats the whole ball of wax right there....

Mr. Holley has done a great job with his appeals, but I must wonder, if he had made sure all these tests were done, or just requested them... well what would have happened. I mean they could have shown a completely normal study, but honestly people who are at his point normally have a valid complaint. No that its service connected etc. BUT we must remember...

Establish Diagnosis (provide multiple opinions or evidence which supports each others conclusions)

Establish Service Connection (hardest is PTSD)

File a claim for the correct injury... or illness (and youd be suprised that this is where many many cases actually fail)

anyway my 2 cents

[Vike17]

Without reading the entire decision, I would have to agree with Sixthsense when he stated;

"Mr. Holley has done a great job with his appeals, but I must wonder, if he had made sure all these tests were done, or just requested them... well what would have happened. I mean they could have shown a completely normal study, but honestly people who are at his point normally have a valid complaint. No that its service connected etc. BUT we must remember"

I willing to bet that if he had those medical tests before VA during the initial adjudication, the outcome of his claim proabably would have been quite different. Based on the evidence at the time of his initial claim that was before the VA, it looks like a 10% - 20% evaluation was in order. So it appears the VA may have dropped the ball when they reduced his rating from 10% to 0%, which is actually pretty rare when the BVA does it.

As I've been saying all along that, for the most part, many appeals are won at he BVA and the Court based on additional evidence that the decision maker didn't have atthe time of their decision. Many times if that evidence was of record when the RO had it, the outcome of the claim proabaly would have been at least more favorable to the veteran.

Vike 17

Edited March 6, 2007 by Vike17