UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 20-7244

LARRY D. EDWARDS, APPELLANT,

V.

DENIS MCDONOUGH,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Argued September 21, 2022 Decided March 20, 2023)

Glenn R. Bergmann, with whom Bryan Andersen, Joshua Leach, and Thomas M. Polseno,

all of Bethesda, Maryland, were on the brief, for the appellant.

Alex L. Kutrolli, with whom Richard A. Sauber, General Counsel; Mary Ann Flynn, Chief

Counsel; and Selket N. Cottle, Deputy Chief Counsel, all of Washington, D.C., were on the brief

for the appellee.

Before BARTLEY, Chief Judge, and TOTH and LAURER, Judges.

BARTLEY, Chief Judge: Since implementation ofthe Veterans Appeals Improvement and 

Modernization Act of 2017 (AMA) in February 2019, VA claimants may appeal to the Board of 

Veterans' Appeals (Board) by filing a Notice of Disagreement (NOD) using VA Form 10182 and 

electing one of three Board review dockets. See Pub. L. 115-55, 131 Stat. at 115, § 2(x); 38 C.F.R. 

§ 20.202(b)(2022). Where the Board cannot identify which review option was intended, the Board 

is to request clarification of the claimant's intent. 38 C.F.R. § 20.202(f). This appeal was referred 

to a panel of this Court, with oral argument,

1

to address the circumstances under which VA is

required to clarify intent. Specifically, whether § 20.202(f) applies when a claimant elects the 

direct review docket but attaches evidence to the form, indicating the election of a different Board 

review docket.

In the August 5, 2020, decision on appeal, which we have jurisdiction to review pursuant 

to 38 U.S.C. §§ 7252(a) and 7266(a), the Board denied veteran Larry D. Edwards service 

1 Oral argument was held at the University of Iowa College of Law in Iowa City, Iowa. The Court thanks the 

law school for its hospitality and thanks counsel for traveling to Iowa for the argument. See Edwards v. McDonough, 

No. 20-7244, Oral Argument (hereinafter Oral Argument], available at https://www.youtube.com/watch?v=

HbY8NNneR7U.
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connection for a cervical spine injury. Record (R.) at 5-9. Because the Board did so without first 

clarifying the Board review docket the veteran intended to choose, as required by § 20.202(f), the 

Court will set aside the August 2020 Board decision and remand the matter for further development 

and readjudication consistent with this decision. 

I. AMA BOARD REVIEW OPTIONS AND VA FORM 10182

Before discussing the factual background and arguments relevant to this appeal, the Court

provides an overview of the AMA appeals process, including VA Form 10182, the NOD form at 

issue in this case.

Under the AMA, a claimant who receives an adverse initial decision by the agency of 

original jurisdiction (AOJ) has three options to pursue administrative review, including the option 

to file an NOD to appeal the decision directly to the Board. See 38 U.S.C. §§ 5104B, 5104C(a), 

5108; Andrews v. McDonough, 34 Vet.App. 151, 157 (2021). When choosing to appeal directly to 

the Board, a claimant must select one of three Board dockets: the direct review docket, the 

additional evidence docket, or the hearing docket. 38 U.S.C. § 7105(b)(3); see Aviles-Rivera v. 

McDonough, 35 Vet.App. 268, 273 (2022); Andrews, 34 Vet.App. at 157. Each review docket has 

different decision-making schedules and unique rules related to the submission of evidence and 

testimony. Under the direct review docket, the Board reviews the record that was before the AOJ 

at the time of its decision, without considering new evidence and without holding a hearing; under 

the additional evidence docket, the Board reviews any additional evidence that was submitted with 

the NOD form and evidence submitted within 90 days following receipt of the NOD, but does not 

hold a hearing; under the hearing docket, the Board will hold a hearingand will consider additional 

evidence submitted at the hearing orwithin 90 days following the hearing. See generally 38 U.S.C. 

§§ 7105(b)(3)(A)-(C), 7113 (a)-(c); 38 C.F.R. § 20.202(b)(1)-(3). 

Under the AMA, an NOD must, among other things, "be properly completed on a form 

prescribed by the Secretary," 38 C.F.R. § 20.202(a). A claimant elects a Board docket by filing 

VA Form 10182, titled "Decision Review Request: Board Appeal." 87 Fed. Reg. 4718 (Jan. 28, 

2022). Part II of VA Form 10182 requires a claimant to choose one of the three Board review 

dockets and provides an overview of each, summarizing the evidentiary rules for each option and 

the relative processing speed of each docket. SeeR. at 22. Subsections A. and B. of Part III of the 

form provide space for the claimant to identify the specific issue or issues to be appealed and the 
3

date of the decision being appealed, and Part III C. allows the claimant to indicate whether 

"additional sheets" are attached to the form. See, e.g., R. at 22. 2

II. FACTUAL BACKGROUND

Mr. Edwards served honorably on active duty in the U.S. Army from May 1974 to May 

1977. R. at 525. In September 2019, during a VA primary care visit, he was diagnosed with 

degenerative disc disease of the cervical spine. R. at 87. The provider noted that cervical x-ray 

reports revealed severe changes at C6-C7 and ordered an MRI for further evaluation of the cervical 

spine. Id. That same month, Mr. Edwards filed a claim for service connection for a cervical spine 

(neck) injury. R. at 156-61. He reported that, during service, he was in a military police vehicle 

involved in an accident with an Army truck, and he attributed his neck injury to that collision. R. 

at 158. 

During an October 2019 VA neurology consultation, Mr. Edwards reported chronic neck 

pain since approximately 1975. R. at 82. In November 2019, a VA examiner diagnosed cervical 

strain and degenerative arthritis of the spine. R. at 49. The veteran related his condition to an injury 

sustained in a head-on vehicle collision during service and asserted that he experienced soreness, 

aching, sharp pain, and limited range of motion at that time. R. at 50. He reported receiving 

chiropractic treatment and managing his pain with ice and over-the-counter medications. Id. The 

examiner opined that the veteran's condition was less likely than not related to service because

there were "no records from 1974 to 1976 during his service time to indicate that he had 

complained [of] neck pain" and no evidence of neck complaints at separation. R. at 45. The

examiner also indicated, apparently referring to symptoms, that there was a "lack of continuum,"

and no evidence that the veteran actively sought medical treatment for a chronic neck condition 

for over 40 years, and that these facts didn't support that the condition was chronic. Id. The 

examiner concluded that the severe degenerative changes documented in x-ray imaging were 

consistent with aging and normal wear and tear. Id. 

The RO denied service connection in November 2019. R. at 38-40. Mr. Edwards timely 

filed VA Form 10182 and in Part II elected the direct Board review docket. R. at 22. In Part III, he 

2 Since the time that Mr. Edwards filed VA Form 10182, VA has made minimal revisions to the form, none 

pertinent to our decision today. See VA Form 10182, available at https://www.va.gov/vaforms/va/pdf/VA10182.pdf

(last accessed Feb. 24, 2023). 
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marked the box indicatingthat he was attaching additional sheets. Id. To that end, he included with 

the form a statement that he had injured his neck in an accident at Fort Knox between 1975 and 

1976. R. at 20. He described details of the accident, including that he had been a passenger in a 

military police car driving at a high rate of speed in responding to a training range incident when 

the car collided with a 2 1⁄2 ton military vehicle at the top of a hill. Id. He identified a staff sergeant 

by name and rank as the driver of the military police car and recounted that he had mentioned 

several times to the staff sergeant that he was in pain after the accident. Id. Mr. Edwards indicated

that it was his understanding that the staff sergeant had been held responsible for damages to the 

military police car. R. at 21. He asserted that he sought treatment for his neck and back with a 

chiropractor whom he had seen "over 100 times throughout the years" and that a VA physician, 

Dr. Ortiz, advised him that "the injury appears to be very old due to the amount of arthritis that has 

formed around the injured area." R. at 20-21. Finally, Mr. Edwards requested that VA reconsider 

the decision that was made on his injury and locate the Fort Knox accident file.R. at 21.

On November 22, 2019, the Board issued a notice of docketing, informing the veteran that 

"[b]ased on the Board appeal option you selected on the [NOD], your appeal has been placed on 

the Direct Review docket." R. at 18. Mr. Edwards subsequently submitted a written brief 

presentation to the Board. R. at 12-13. In the statement of the issues section he stated, "This is an 

AMA appeal for direct review by the Board of Veteran [sic] Appeals resulting from submission of 

VA Form 10182 on 11/18/2019. This appeal originates from rating decision of 11/09/2019." R. at 

12. There was no substantive argument submitted. R. at 12-13. 

In August 2020, the Board issued the decision on appeal, R. at 5-9, indicating that it had

limited its review to the evidence considered by the RO in November 2019,R. at 6. Still, the Board 

included the veteran's November 2019 statement, which post-dated the RO decision and was 

attached to his VA Form 10182, in its recitation of evidence. R. at 8. The Board concluded that the 

evidence showed a current cervical spine disability but that the reported in-service motor vehicle 

accident was "not reflected in the assembled documents from that time." R. at 9. The Board found 

that the veteran "is in a position to recall his accidents and his symptoms afterward," but that it 

was significant that on the separation medical history form he did not complain of ongoing neck 

problems. Id. The Board asserted that Mr. Edwards's failure to complain of neck problems at

separation "argues against continuity between events in service and the current disorders," as did 

the years between his service and the current findings, and the VA examiner's November 2019 
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opinion. Id. Concluding that the greater weight of persuasive evidence was against continuity 

between the reported in-service accident and the veteran's current cervical spine disorders, the 

Board denied service connection. Id. This appeal followed. 

III. PARTIES' ARGUMENTS

Mr. Edwards argues that when his VA Form 10182 and attached statement are liberally 

read together, a reasonable uncertainty arises as to whether VA could identify which Board review 

option he intended to elect. Appellant's Brief (Br.) at 9-12; Oral Argument at 4:12-4:28. He 

contends that VA was required to contact him and clarify his election in accordance with 

§ 20.202(f) before deciding his appeal. Appellant's Br. at 9; Oral Argument at 9:49-10:08. 

The Secretary argues that the Board was not required to seek clarification of Mr. Edwards's

NOD under § 20.202(f) because the NOD was clear on its face. Oral Argument at 26:16-26:28.

The Secretary asserts that the Board properly notified Mr. Edwards, one year prior to its decision, 

that it had placed his appeal in the direct review docket based on his NOD and provided him with 

meaningful opportunities to change his Board review election; specifically, the veteran had one 

year to modify his NOD by submitting a new NOD. Secretary's Br. at 15-23 (citing 38 C.F.R. 

§ 20.202(c)(2)). The Secretary cites the brief submitted by the veteran to the Board, which 

explicitly stated "This is an AMA appeal for direct review," as further evidence that the veteran 

had adequate notice of which Board review option he had selected. Secretary's Br. at 18 (citing R. 

at 12). The Secretary additionally argues that any error by the Board in construing the NOD was 

harmless because the Board considered the additional evidence provided in Mr. Edwards's attached

statement. Secretary's Br. at 23-30 (citing 38 U.S.C. § 7261(b)(2)) (requiring the Court to "take 

due account of the rule of prejudicial error"). 

IV. OBLIGATION TO CLARIFY INTENT OF NOD 

A. Whether 38 C.F.R. § 20.202(f) Applies in Mr. Edwards's Case 

To determine the circumstances in which § 20.202(f) applies, and whether it applies here, 

we begin, de novo, with the language of the regulation, the plain meaning of which can be derived 

from its text and structure. See Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 409 (1993); Petitti 

v. McDonald, 27 Vet.App. 415, 422-23 (2015). "If the plain meaning of the regulation is clear 
6

from its language, that meaning controls and that is the end of the matter. " Frost v. Shulkin, 

29 Vet.App. 131, 137 (2017); see Brown v. Gardner, 513 U.S. 115, 120 (1994).

Section 20.202(f)istitled "Unclear Notice of Disagreement" and states in relevant part that 

if the Board receives an NOD completed on the form prescribed by the Secretary—in this case, 

VA Form 10182—but cannot identify which denied issue or issues the claimant wants to appeal, 

or which Board review option the claimant intended to select, "then the Board will contact the 

claimant to request clarification of the claimant's intent." 38 C.F.R. § 20.202(f). The Secretary 

primarily assertsthat § 20.202(f) is not applicable in Mr. Edwards's case because,since he checked 

the box for direct Board review, the Board was readily able to identify the veteran's intended 

choice. 

To discern the parameters of the regulation, we begin with its title, which refers to "unclear"

NODs. See Burton v. Shinseki, 25 Vet.App. 1, 4 (2011) (citing Fla. Dep't of Revenue v. Piccadilly 

Cafeterias, Inc., 554 U.S. 33, 47 (2008) ("Section headings are tools available for the resolution 

of a doubt about the meaning of a statute" or regulation); see also DeLuca v. Brown, 8 Vet.App 

202, 207 (1995) (examining "the title of the regulation" to determine its scope). The adjective 

"unclear" is defined as "confused or uncertain in statement or understanding." MERRIAM 

WEBSTER'S COLLEGIATE DICTIONARY, https://unabridged.merriam-webster.com/unabridged/

unclear (last visited Dec. 9, 2022) (hereinafter WEBSTER'S). 

Moving beyond the title, the text of the regulation specifies that it applies in two 

situations—where the Board is unable to identify which denied issue or issues the claimant wants 

to appeal,

3 a concern not at issue here, and where the Board is unable to discern which Board 

review option the claimant intends to select. In this respect the regulatory language is plain, and

clearly mandates that in the second situation, VA "will contact the claimant to request clarification 

of the claimant's intent." 38 C.F.R. § 20.202(f) (emphasis added); see United States v. UPS 

Customhouse Brokerage, Inc., 575 F.3d 1376, 1382 (Fed. Cir. 2009) ("'Will' is a mandatory term, 

not a discretionary one."); Emerson v. McDonald, 28 Vet.App. 200, 208 (2016) (citing Stewart v. 

Brown, 10 Vet.App. 15, 18 (1997).

3 The Court addressed this first situation in Evans v. Shinseki, analyzing a pre-AMA regulation, 38 C.F.R. 

§ 20.101(d) (2001), that concerned Board procedures when determining its own jurisdiction. 25 Vet.App. 7 (2011). 

The Court concluded that the Board was not permittedto dismiss some appeal issues without first affording the veteran 

the benefit of § 20.101(d) procedures. Id. at 14-15. We discuss Evansin greater detail later in this decision. 
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The Court agrees with Mr. Edwards that, when read together, his VA Form 10182 docket 

election and its attached statement were unclear—if not wholly contradictory—concerning the 

docket choice that Mr. Edwards intended, and the Board was required to clarify his intent. Mr. 

Edwards elected the direct review docket, with the printed restriction that the veteran agrees that 

he "will not submit any additional evidence in support of [his] appeal." R. at 22. Simultaneously, 

Mr. Edwards attached a statement to his form that provided new information regarding the 

circumstances of his in-service accident, his symptoms, and the medical care he sought and 

received to treat those symptoms. See R. at 21. Despite the Secretary's protestations to the contrary, 

it is simply not possible to reconcile Mr. Edwards's submission of this new evidence with his 

chosen election. Indeed, it is perfectly clear to the Court that Mr. Edwards's scenario gave rise to

the exact type of confusion or uncertainty suggested in the regulation's title. Compare 38 U.S.C. 

§ 20.202(f) with WEBSTER'S.

At oral argument, the Secretary sought to draw a distinction between the veteran's VA 

Form 10182 and his attached statement. Oral Argument at 31:38-32:16. The Secretary contended

that Form 10182 should be read separately from any attached document and argued that because 

Mr. Edwards checked one of the three Board review options on the form, no clarification was 

required. Id. The Secretary further cautioned that the requirement that VA clarify a claimant's 

Board review election could be burdensome. To that end, he described a recent, unrelated case 

where the claimant submitted a VA Form 10182 electing the direct review Board option and then 

later submitted over 8,000 pages of evidence that he seemingly expected would be considered in 

coordination with his earlier-completed VA Form 10182. Oral Argument at 51:41-53:15. The 

Secretary argued that to require clarification in that case and in Mr. Edwards's case would be 

contrary to the purpose of the AMA. Id. Turning back to the facts of this case, the Secretary then 

rejected the contention that Mr. Edwards's attached statement created ambiguity, arguing that it

did not provide "in clear terms" a request for a Board hearing nor did it reference the submission 

of additional evidence. Oral Argument at 54:10-54:22. The Secretary suggests that such words or 

actions, had they been taken in Mr. Edwards's case, would have resulted in the type of confusion 

that would require the Board to obtain clarification. Id.

The Secretary's arguments are unavailing. First, the Secretary's VA Form 10182 explicitly 

contemplates inclusion of contemporaneous attachments, such as the one submitted by Mr. 

Edwards. Not only that, the Board is obligated "to consider the full context within which [veterans'] 
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submissions are made." Rivera v. Shinseki, 654 F.3d 1377, 1382 (Fed. Cir. 2011). This inquiry is 

guided by the "statutory and regulatory regime that Congress created to protect veterans," Collaro 

v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998), including VA's duty to liberally construe the filings 

of pro se claimants, see Rivera, 654 F.3d at 1380 (acknowledging that VA has a "duty to read the 

documents that a claimant files in support of his [or her] appeal liberally and sympathetically"). 

Second, the Secretary's narrow view of the term "unclear" runs counter to the broad 

language of the regulation and the dictionary definition of "unclear." The regulatory language is 

not circumscribed or limited to any particular situation, but broadly refers to situations in which 

the Board "cannot identify . . . which option the claimant intends to select." 38 C.F.R. § 20.202(f). 

The parameters that the Secretary proposes, that there is no need to clarify intent where a claimant 

elects one of the three options listed, is noticeably absent from the regulatory language. Indeed, 

when the Secretary in August 2018 proposed adding 38 C.F.R. § 20.202, he characterized the new 

AMA regulation as "closely aligned with the process for clarifying [NODs] in the legacy system." 

VA Claims and Appeals Modernization, 83 Fed. Reg. 3918, 39,832 (Aug. 10, 2018) (proposed 

rule). For legacy claims, VA had required that claimants identify the specific determinations with 

which they disagreed; where a claimant submitted an unclear or deficient legacy NOD, the 

Secretary required contact with the claimant and clarification of the intent. 38 C.F.R. § 20.201 

(2019) (Notice of Disagreement); 38 C.F.R. § 19.26 (2019) (Action by agency of original 

jurisdiction on Notice of Disagreement). Explaining how the new AMA regulation addressing the 

three new Board review dockets would work, the Secretary did not narrowly limit potential 

instances of lack of clarity. See 38 C.F.R. § 20.202(f). Instead, he explained that § 20.202(f) would 

apply "when the Board receives a[n NOD] electing more than one evidentiary option, no 

evidentiary option, or when it is otherwise unclear how the appeal should be docketed." 83 Fed. 

Reg. 3918, 39,832 (emphasis added). The Secretary also explained with regard to § 20.202(f) that

"[Board] Veterans Law Judges will retain their discretion to interpret some unclear statements on 

[NODs] in the light most favorable to the veteran." Id. As the Secretary's proposed interpretation 

is much more constrained than the regulatory language, and narrower than his own characterization 

in proposing § 20.202(f), the Court finds his argument unconvincing. 

Further informing our analysis is that VA reiterated its commitment to veteran-friendly 

principles when it finalized the language of the AMA. VA stated that it "takes seriously its 

obligation to administer its [AMA] process in a claimant-friendly way." VA Claims and Appeals 
9

Modernization, 84 Fed. Reg. 138, 139 (Jan. 18, 2019) (final rule). Not only that, in Evans v. 

Shinseki, concerning procedures that apply prior to the Board determining that it has no 

jurisdiction, the Court observed that "[t]he entire veterans claims adjudication process reflects the 

clear congressional intent to create an Agency environment in which VA is actually engaged in a 

continuing dialog with claimants in a paternalistic, collaborative effort to provide every benefit to 

which the claimant is entitled." 25 Vet.App. at 16. The Court in Evans viewed the process as 

requiring VA "to seek clarification and communicate with the appellant as to any perceived 

concern about how the appellant had filled out" the legacy NOD. Id. at 15. 

It is difficult to reconcile the position taken by the Secretary at oral argument in this case, 

which is that there can be no question about a veteran's intent where he checked a single Board 

review option on VA Form 10182, with the position the Secretary took when publishing proposed 

rule 20.202, when he contemplated that the rule would apply in any instance when it is "otherwise 

unclear how the appeal should be docketed."Compare Oral Argument at 27:09-28:30 with 83 Fed. 

Reg. at 39,832. And so, the Court is compelled to conclude, consistent with the language of the 

regulation, that VA's obligation in the face of confusion or uncertainty regarding the claimant's 

NOD docket election is to contact the claimant to ensure that they understand the intent of the 

claimant. 

To be clear, we do not speculate as to whether other scenarios might implicate § 20.202(f)

and VA's obligation to clarify a claimant's NOD docket election. Accordingly, we do not address

the situation where the veteran submits additional statements or evidence after submitting the VA 

Form 10182, a scenario referenced by the Secretary at oral argument. We need not address these 

questions because here Mr. Edwards's VA Form 10182 and attached statement were part of the 

same submission and were explicitly intended to be contemplated together, and his attached 

statement created uncertainty as to which Board review docket he intended to elect. We conclude

only that the § 20.202(f) duty to clarify the veteran's intent attached in this case because the VA 

Form 10182 submission as a whole, consisting of the form itself and the attached statement, raised 

uncertainty that the Board did not acknowledge or attempt to resolve consistent with VA 

regulation. See Arneson v. Shinseki, 24 Vet.App. 379, 387 (2011) ("In the claimant-friendly world 

of veterans benefits, 'the importance of systemic fairness and the appearance of fairness carries 

great weight.'" (quoting Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998))). Thus, based on 
10

the plain language of § 20.202(f), the Court concludes that the Board erred in determining that no

clarification as to the veteran's election was necessary.

B. Whether the Board's Error Is Harmless

Although the Board erred, the Court has a duty to consider whether this error prejudiced 

Mr. Edwards. See 38 U.S.C. § 7261(b)(2); Shinseki v. Sanders, 556 U.S. 396, 406-07 (2009) 

(noting that the statute requiring this Court to "take due account of prejudicial error [ ] requires the 

Veterans Court to apply the same kind of 'harmless error' rules that courts ordinarily apply in civil 

cases"). The Secretary argues that any error in considering the veteran's appeal in the direct appeal 

docket rather than the evidence submission docket was harmless because the Board considered the

statement attached to VA Form 10182 and adequately explained why Mr. Edwards was not entitled 

to service connection. Secretary's Br. at 23-30. The Secretary argues that the Board described the 

statement attached to the NOD and in its analysis it properly discounted lay evidence of an inservice injury or nexus. Id. at 24, 27-30. Further, the Secretary contends that Mr. Edwards remains

free to file a supplemental claim to have any new evidence considered by the AOJ. Oral Argument 

at 36:50-37:24. Mr. Edwards argues that the Board failed to mention or analyze the statement in 

its analysis, creating doubt as to whether the Board weighed the evidence. Reply Br. at 4-5. He 

further asserts that had he known that the Board would not consider his attached statement, he 

would have elected a different Board review option that ensured consideration of his statement. 

Oral Argument at 1:08:41-1:09:05. 

The Court cannot conclude that the Board's error was harmless. See Wagner v. United 

States, 365 F.3d 1358, 1365 (Fed. Cir. 2004) ("Where the effect of an error on the outcome of a 

proceeding is unquantifiable, however, we will not speculate as to what the outcome might have 

been had the error not occurred."); Arneson, 24 Vet.App. at 389 (finding prejudice when an error 

"could have altered" the Board's determinations). The Board adjudicated Mr. Edwards's appeal in 

the direct review lane rather than the evidence submission lane, despite his submission of new 

evidence. See R. at 6. After reciting the evidence of record, including the newly submitted

evidence, the Board found that the favorable evidence in this appeal consisted of the veteran's 

current cervical spine diagnoses and self-reported in-service accident. R. at 9. The Board did not 

recite or discuss the veteran's lay statements regarding continuing neck treatment, but found that 

the weight of the evidence was against continuity between the reported in-service injury and the 
11

veteran's current disabilities, noting the lack of complaints of ongoing neck problems at separation 

and the November 2019 VA examiner's negative opinion. Id. 

Contrary to the Secretary's argument that Mr. Edwards received the benefit of the evidence 

submission lane, it is clear that the Board failed to account for Mr. Edwards's new evidence in its 

analysis, including his statement that he sought neck and back treatment with a chiropractor and 

that he had seen the chiropractor "over 100 times throughout the years." R. at 20. Compare

Secretary's Br. at 23-30 with R. at 9.

Although the Board is presumed to have considered all evidence of record when making 

its decision, Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007), that presumption does 

not relieve the Board of its independent obligation to address potentially favorable, material 

evidence of record and to provide reasons or bases for its weighing of that evidence , Caluza v. 

Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Because 

Mr. Edwards's statement attached to his VA Form 10182 provided, among other things, additional 

detailregarding treatment sought for his neck disability and potential continuity of symptoms since 

service, it was potentially favorable, material evidence that the Board was required to address. 

Consequently, and for the above-described reasons, the Court rejects the Secretary's harmless error 

argument and concludes that remand is required. See 38 U.S.C. § 7261. 

III. QUIRIN GUIDANCE CONCERNING THE ADEQUACY OF THE 

NOVEMBER 2019 VA EXAMINATION

For the sake of guidance to the Board on remand, see Quirin v. Shinseki, 22 Vet.App. 390, 

395 (2009), the Court notes an additional issue that warrants attention. Mr. Edwards argues that

the Board clearly erred in deeming the November 2019 VA examination adequate for adjudication 

purposes. Appellant's Br. at 16-20. The Secretary disputes these contentions. Secretary's Br. at 8-

14. The Court agrees with Mr. Edwards. 

The November 2019 examiner opined that the veteran's condition was less likely than not 

related to service because there were "no records from 1974 to 1976 during his service time to 

indicate that he had complained [of] neck pain," no evidence at separation of complaints of a neck 

condition, a "lack of continuum" and absence of evidence that the veteran actively sought medical 

treatment for his chronic neck condition over 40 years, all of which didn't support thatthe condition 

was chronic since service.R. at 45. The examiner also opined that the severe degenerative changes 
12

documented in x-ray imaging were consistent with aging and normal wear and tear. Id. The Board 

concluded that this medical opinion, among other evidence, supported finding a lack of both 

chronicity and continuity of the veteran's cervical condition since service, and that the opinion was 

persuasive evidence against service connection. R. at 9.

However, a review of the veteran's lay statements, including those made to the November 

2019 examiner, demonstrates that the veteran sought and received chiropractic neck treatment for 

many years. See R. at 50. Because the November 2019 opinion is erroneously premised on the 

absence of Mr. Edwards having sought treatment for a neck condition, the examiner's conclusions 

are flawed. See Reonal v. Brown, 5 Vet.App. 458, 460-61 (1993) ("An opinion based upon an 

inaccurate factual premise has no probative value."). And although the opinion did not rely solely 

on a lack of contemporaneous medical evidence, it is clear that the examiner "failed to consider 

whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability 

such that his claim of service connection could be proven."Buchanan v. Nicholson, 451 F.3d 1131, 

1336 (Fed. Cir. 2006). Notably, the Board did not find that the veteran's lay evidence was not 

credible. See Miller v. Wilkie, 32 Vet.App. 249, 260 (2020) (holding that "if credibility of some 

evidence was a relevant issue for the Board, we would expect some discussion on the matter"). To 

the extent that the VA examiner failed to consider the veteran's lay statements regarding treatment, 

the opinion is inadequate. See Reonal, 5 Vet.App. at 460-61. Thus, in accepting the November 

2019 opinion as probative of a lack of chronicity and continuity post service, and as persuasive 

evidence against service connection, the Board erred. See Mitchell v. Shinseki, 25 Vet.App. 32, 

43-45 (2011) (Board reliance on a medical examination amounts to a finding of adequacy of the 

examination).

Under the AMA, the Board is to remand an appeal to the AOJ for correction of a duty-toassist error under section 5103A if the error occurred prior to the AOJ's decision on appeal. See 

38 C.F.R. § 20.802 (2022). Failure to address the issues described above may affect the probative 

value of any opinion obtained on remand, and the Board is reminded that it cannot otherwise evade 

its statutory duty to discuss all relevant, favorable evidence of record by relying on a VA medical 

opinion that fails to account forsuch evidence. See Gabrielson v. Brown, 7 Vet.App. 36, 40 (1994).

Accordingly, the Court concludes that the Board clearly erred in relying on the November 

2019 VA opinion to deny the veteran's claim. See Ardison v. Brown, 6 Vet.App. 405, 407 (1994)

(holding that the Board errs when it relies on an inadequate medical examination or opinion). 
13

Remand is warranted for the Board to obtain an addendum or new opinion containing adequate

supporting rationale. See Barr v. Nicholson, 21 Vet.App. 303, 311 (2007); Tucker v. West, 11 Vet. 

App. 369, 374 (1998). Since the Court is remanding this case to correct a predecisional duty to 

assist error by the AOJ, we will not consider Mr. Edwards's duty-to-assist argument alleging that 

VA failed to obtain additional records relevant to his claim. On remand, the veteran may identify 

additional records he would like VA to obtain to thoroughly develop and adjudicate his case. See

38 U.S.C. § 5103A(f)(2); 38 C.F.R. § 3.159(c) (2022). The Court reminds the Board that "[a] 

remand is meant to entail a critical examination of the justification for the [Board's] decision,"

Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991), and must be performed in an expeditious 

manner in accordance with 38 U.S.C. § 7112.

IV. CONCLUSION

After considering the parties' briefs, oral argument, the record on appeal, and governing 

law, the August 5, 2020, Board decision is SET ASIDE, and the matter is REMANDED for further 

development and readjudication consistent with this decision.