UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 13-0567

RAYMOND C. TAYLOR, APPELLANT,

V.

ROBERT A. MCDONALD,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Decided November 25, 2014)

Eric A. Gang and Ryan J. Casson, both of Andover, New Jersey, were on the briefs for the

appellant.

Will Gunn, General Counsel, Mary Ann Flynn, Assistant General Counsel, Rebecca A. Baird,

Deputy Assistant General Counsel, and Jessica M. Swartz, Appellant Attorney, were on the brief for

the appellee.

Before LANCE, DAVIS, and PIETSCH, Judges.

PIETSCH, Judge: Raymond C. Taylor, who served in the Korean demilitarized zone (DMZ) 

during 1968 and 1969, appeals through counsel a December 10, 2012, Board of Veterans' Appeals

(Board)decision that deniedentitlementto service connectionfornon-Hodgkin'slymphoma (lymphoma)

based on a finding that the evidence was sufficient to rebut, under 38 C.F.R. § 3.307(d), a presumption

ofservice connection based on exposure to herbicides. He arguesthat § 3.307(d)isinvalid as applied to

veterans with qualifying service in the Korean DMZ and therefore that the presumption of service

connection for his non-Hodgkin'slymphoma, based on exposure to herbicidesin service,is unrebuttable. 

He argues alternatively that, even if the rebuttal regulation is valid, the Board erred by relying on an

inadequate August 2012 VA medical opinion as sufficient evidence to rebut the presumption. 

For the reasons that follow, we hold that the application of § 3.307(d) to veterans who were

exposed to herbicides during active service in the Korean DMZ is a valid exercise of the Secretary's
authorityto promulgate evidentiaryregulations under38U.S.C. §501(a)(1). However,we agreewith the

appellantthattheBoarderredwhenitdeterminedthattheAugust2012VAmedical opinionwassufficient

torebutthepresumption ofservice connection, asitfailed to provide an adequate statement ofreasons or

bases for that conclusion. We will, therefore, vacate the Board's decision and remand the matter for

readjudication consistent with this decision.

I. BACKGROUND

The followingsummaryofthe claimhistorymostrelevantto the issues onappealisreflected in the

record of proceedings before the Court.

The appellant served on active duty with the U.S. Army from September 1967 to May 1969. 

Record (R.) at 486. His service included 13 months in Korea. R. at 559.

VAmedical notesfromJuly2008 indicate that the appellant had been previouslydiagnosedwith

hepatitis B and hepatitis C. R. at 362-63. In February 2009, a bone marrow biopsy was evaluated as

"suspicious for HepatitisC-relatedB-celllymphoma." R. at 234. AJuly2009medical note indicates a

history of "hepatitis C related B cell lymphoma." R. at 220. An August 2009 medical note indicates

"Non-Hodgkin's B-cell lymphoma secondary to Hep C." R. at 190.

InAugust 2009,the appellantfileda claimfor entitlementtoservice connectionfornon-Hodgkin's

lymphoma, due to Agent Orange (AO) exposure in service. R. at 288. The claimwas denied bytheVA

regional office (RO)inSeptember 2009, due to the lack of evidence that the appellant served inVietnam

or was otherwise exposed to AO in service. R. at 272. The appellant submitted a timely Notice of

Disagreement, claiming that he was exposed to AO while serving in Korea in 1968. R. at 251.

InJune2010,theROissued aStatement oftheCasemaintainingthe denial ofthe appellant's claim

because service records did not show that the appellant was exposed to herbicides during active duty

including service in Korea. R. at 133-34. The appellant perfected his appeal to the Board. R. at 113. 

In June 2012,theBoard issued a request for aVAmedical specialist's opinion based on a finding

thatthe evidence indicated thatthe appellant hadbeenexposedtoherbicides "whileworkingin and around

the demilitarized zone (DMZ) in Korea." R. at 83-84. The Board noted that the appellant's in-service

exposure createdapresumptionofservice connectionforhislymphomaunlessthere is affirmative evidence

2
to the contrary. TheBoard further noted that someVAtreatment records attributedthe lymphoma to the

appellant's hepatitis C and therefore requested that an oncologist "indicate whetherthe evidence in its

entirety supports the conclusion that the Veteran's non-Hodgkin's lymphoma was not incurred in, or

otherwise caused by, his military service." R. at 84.

AVAoncologistresponded inAugust 2012, opiningthat "the absenceofpaststudieswouldmake

determination ofthe etiologyof his disorderimpossible." R. at 80. The doctorfurther opined: "Ibelieve

thatthe evidence suggeststhatthehepatitisCinfectionled to the development ofthe lymphoma." R. at 81.

In December 2012, theBoard issued the decision here on appeal. R. at 2-14. The Board found

that the appellant was exposed to AO in service. R. at 6. The Board furtherfound that non-Hodgkin's

lymphoma is adisease forwhich service connection is presumedbased on exposure toan herbicide agent. 

Id.; see 38 C.F.R. § 3.309(e) (2014). However, the Board found that the August 2012 VA medical

opinion confirmed that it was likely that the appellant's intervening hepatitis C infection led to the

development of lymphoma and that this was sufficient evidence to rebut the presumption of service

connection. R. at 6-9; see 38 C.F.R. § 3.307(d) (2014). The Board considered the positive medical

nexus opinionssubmitted bythe appellant, but found the August 2012 VA medical opinion to be more

probative. R. at 8. 

TheBoard alsofound thatthe evidencewasinsufficienttoestablish anexusto herbicide exposure

on a direct basis, in the absence of an applicable presumption. R. at 9. TheBoard therefore denied the

claim,finding that "themost probative evidence indicatesthattheVeteran's non-Hodgkin'slymphoma is

the result of [hepatitis C] and not the result of herbicide exposure in service, and the evidence does not

suggest that the non-Hodgkin'slymphoma is otherwise related to service (eitherthrough date of onset or

causation)." Id. 

Before theCourt,the appellant arguesthattheBoardwasstatutorilyprecluded fromrebuttingthe

regulatorypresumption ofservice connection applicable tohislymphoma. Appellant'sBr. at 20-25. He

contends that VA's regulations providing for rebuttal of the presumption are ultra vires as applied to

veteranslike himselfwho are entitled to a presumption ofservice connection based on theirservice inthe

Korean DMZ. In the alternative, he argues that the Board erred in finding the August 2012 medical

3
examiner's opinionadequate and thatit constituted sufficient evidence to rebutthe presumption ofservice

connection. Id. at 8-20. 

The Secretary disputes the appellant's arguments, arguing that the Board's decision should be

affirmed. He contendsthatVAregulations providingforrebuttalofthepresumptionofservice connection

as applied to the appellant are a valid exercise of the Secretary's general rulemaking authorityunder 38

U.S.C. § 501(a). He further contendsthattheBoard didnot errinrelyingon theAugust 2012VAmedical

opinion to rebut the presumption. 

II. ANALYSIS

A. Validity of the Challenged Regulation

TheBoard found thatthe appellantwas entitled to a presumption under 38C.F.R. § 3.309(e)that

his non-Hodgkin'slymphomawas causedbyexposure toherbicidesduringhisservice intheKoreanDMZ,

but that the record evidencewassufficient to rebut this presumption under § 3.307(d). Section 3.309(e)

provides that specified diseases associated with exposure to herbicides, including non-Hodgkin's

lymphoma, "shall be service connected ifthe requirements of § 3.307(a)(6) aremet even though there is

no record ofsuch diseaseduringservice, provided furtherthat the rebuttable presumptionprovisions of§

3.307(d) are also satisfied." See also 38 C.F.R. § 3.307(a) (2014) (providing that diseases listed in §

3.309 "will be considered to have been incurred or aggravated byserviceunderthe circumstancesoutlined

in thissection"). Section 3.307(a)(6)requiresthat a claimant'slymphomamanifest to a degree of at least

10%, which is not disputed here. Section 3.307(d) provides for rebuttal of the presumption of service

connection byevidence that "insoundmedicalreasoningandinthe considerationof all evidence ofrecord,

support[s] a conclusion that the diseasewas not incurred in service." 38C.F.R. § 3.307(d). The Board

found that the August 2012 VA medical opinion was sufficient to rebut the presumption under that

standard.

The appellant arguesthat VAdid not have "the authorityto promulgate a rebuttal provision asto

KoreanDMZherbicide claimants," because such claimants are not referenced in 38U.S.C. § 1113,"the

specific authorityfortheSecretaryto promulgate presumption-rebuttal regulations based on geographic

locale and disability type." Appellant's ReplyBr. at 10; see alsoAppellant'sBr. at 21-25. He therefore

4
contendsthat "VA's promulgation of § 3.307(a)(6)(iv) and 3.307(d), to create a rebuttal framework for

KoreanDMZclaimantswith presumed herbicide exposure,was ultra vires, or constitutedadministrative

actionbeyond andoutside oftheSecretary'sexpressorimplieddelegatedauthorityinthepertinent enabling

statute, § 1113." Appellant'sMemorandumofLawinResponse toBriefingOrder at 2. He further argues

that VA's general rulemaking authorityundersection 501(a)istrumped bythe specific rebuttal authority

limitations contained in section 1113. 

We are not persuaded bythe appellant's argument. As an initial matter, the appellant's assertion

that VA created a rebuttal framework forKoreanDMZveterans with presumed herbicide exposure by

promulgating § 3.307(a)(6)(iv) and 3.307(d)is not entirelyaccurate, as he confuses andconflatesthe two

rules at issue. Section 3.307(a)(6)(iv), promulgated by VA in 2011, provides for a presumption of

exposure to herbicides for qualifying veterans who served in the Korean DMZ; it does not establish a

presumption ofservice connection. See 76 Fed.Reg. 4245 (Jan. 25, 2011) (adopting § 3.307(a)(6)(iv)

1

as a final rule). In contrast, VA established a presumption of service connection for non-Hodgkin's

lymphoma in 1994when it extended§3.309(e)beyondveteranswhoservedinVietnamtoinclude allother

veterans exposed to herbicides during active service. 59 Fed. Reg. 5106 (Feb. 3, 1994).

In 1993,VApromulgated§§3.309(e) and 3.307(a)(6), providing forthe presumption ofservice

connection due to herbicide exposure during active service, underthe authorityoftheAgentOrangeAct

of 1991, Pub. L. No. 102-4, § 2, 105 Stat. 11 (1991). See 58 Fed. Reg. 29,107 (May 19, 1993). The

Act established 38U.S.C. § 316 (nowsection 1116), providing that veterans with qualifying service in

Vietnam are entitled to a presumption of exposure to herbicides and a presumption ofservice connection

for specified diseases, including diseases subsequentlyidentified byregulation as having a relation to

exposure to herbicide agents. Pub. L. No. 102-4 § 2.

VAinitiallylimited the § 3.309(e) presumption of service connection toVietnam veterans,see

38 C.F.R. § 3.309(e)(1993); 58 Fed. Reg. at 29,109, but in 1994 amended that provision to make the

In addition, it appears that the Board found that the appellant was actually exposed to herbicides, not

1

presumptively exposed under the regulation. R. at 6 (finding that the appellant's "unit was not one that the Department

of Defense had determined operated in or near the Korean DMZ" and relying on lay evidence to conclude that "the

[appellant] was exposed to herbicides, such as Agent Orange, during his military service").

5
presumption applicable to otherveteranswhowere exposed to herbicides duringactive service,including

those who served in the Korean DMZ, see 59 Fed. Reg. 5106 (Feb. 3 1994); see also 58 Fed. Reg.

50,528, 50,529 (Sept. 28, 1993) (proposed rule explaining the change); 66 Fed. Reg. 23,166, 23,166

(May8, 2001)(stating that the § 3.309(e) presumption appliesto veteranswho did not serve inVietnam

if exposure to herbicides occurred during active militaryservice). VA therebyreduced the evidentiary

burden on non-Vietnam veterans, including thosewith service in theKoreanDMZ,to establish service

connection forspecified diseases based on exposure to herbicides. Thus, even though the appellant did

not serve in Vietnam,theBoard's finding that he was exposed to herbicides in service entitled him to a

presumption of service connection under § 3.309(e) for his non-Hodgkin's lymphoma.

Similarly, contraryto the appellant's contention,VA's promulgation of§ 3.307(d) did not create

a rebuttalframeworkspecificallyforKoreanDMZclaimantswithpresumed herbicide exposure. Rather,

that provision appliesto any claimantwithherbicide exposure—presumed or actual—and alreadyexisted

whenVAcreated the presumption of herbicide exposure for qualifyingKoreanDMZveteransin 2011. 

See 26 Fed. Reg. 1561 (Feb. 24, 1961) (promulgating 3.307(d)). In other words, § 3.309(e) provided

from its outset that its presumption of service connection was rebuttable under § 3.307(d), and VA's

expansion of § 3.309(e)to include all herbicide-exposedveterans,suchasthe appellant(who did notserve

inVietnam),made the presumption rebuttable asto the newlycovered class bynot excepting them from

the § 3.307(d) rebuttal standard. 59 Fed. Reg. 5106 (February 1994).

Nevertheless,despite the appellant's apparent confusion regarding§ 3.309(e),thegravamen of his

argument survives, because he asserts that section 1113 generally prohibits VA from rebutting the

presumption of service connection with respect to Korean DMZveterans, rendering the presumption

absolute. We find that argument unconvincing.

Section 1113 provides as follows:

Where there is affirmative evidence to the contrary, or evidence to establish that an

intercurrent injury or disease which is a recognized cause of any of the diseases or

disabilitieswithinthepurviewofsection1112, 1116, 1117, or 1118 ofthistitle, has been

suffered between the date ofseparation from service and the onset of anysuch diseases

or disabilities, or the disability is due to the veteran's own willful misconduct, service

connection pursuant to section 1112, 1116, or 1118 of this title, or payments of

compensation pursuant to section 1117 of this title, will not be in order.

6
38 U.S.C. § 1113. This provision provides for the rebuttal of the presumption of service connection

established in sections 1112, 1116,1117, and 1118for variousmedical conditions contractedbya veteran

withcertain types ofservice,including, but not limited to, a veteranwhowas aprisoner ofwar or exposed

toradiation (section 1112);was exposed to herbicidesduringqualifyingserviceinVietnam(section1116);

or had qualifying service in the Persian Gulf War (sections 1117 and 1118). See 38 U.S.C. §§ 1112,

1116-1118.

The appellant is correct thatsection 1113 does notreference the service-connection presumption

applicable to his condition. However, VA did not rely solely on section 1113 when it promulgated §

3.309(e); it also designated section 501(a) as the authority for that rule. See 58 Fed. Reg. at 29,109. 

Section 501(a) providestheSecretarywith the authorityto "prescribe allrules and regulationswhich are

necessaryor appropriate to carryout the laws administered bythe Department and are consistent with

those laws,including.. .regulationswith respect to the nature and extent of proofof evidence . . .in order

to establish the right to benefits undersuch laws." 38U.S.C. § 501(a)(1). As an evidentiaryregulation,

§ 3.309(e) clearly falls under the terms of section 501.

The question presented to theCourt iswhetherthe part of § 3.309(e)providingforthe rebuttal of

thepresumption ofservice connectionapplicable tothe appellant'snon-Hodgkin'slymphomaconflictswith

section 1113,renderingthat part ofthe regulation contraryto law. We holdthatit does not. Section 1113

doesnotpurporttolimittheSecretary's authority;rather,it providesforthe potentialrebuttal ofthe specific

presumptions ofservice connectionestablished insections 1112 and 1116-1118. Itis,in effect,silentwith

respect to other presumptions ofservice connection created bytheSecretaryunderthe general authority

granted by section 501(a). It therefore does not conflict with, or limit, the Secretary's authority under

section 501(a)to establish evidentiaryrules,includingservice connection presumptions and the standards

for their rebuttal, in circumstances not contemplated therein.Indeed, the appellant wishes to relyto his

benefit ontheSecretary'ssection 501(a) authorityto extend the presumption of herbicide-related service

connectionbeyond theparameterssetforth in section1116 (whichis applicableonlytoVietnamveterans),

while at the same time arguing that those same parameters (as referenced in section 1113) limit the

Secretary'ssection 501(a) authorityregardingthe rebuttal ofthat presumption. However,those issues are

two sides ofthe same coin:the criteria to rebut the presumption ofservice connection are part and parcel

7
ofthe "nature and extent of proof andevidence" thattheSecretaryhas determined isrequired for veterans

who did not serve inVietnam to satisfythe favorable evidentiaryburden set by§ 3.309(e)—a barlower

than that provided by statute.

We therefore hold that § 3.309(e), insofar as it establishes a rebuttable presumption of service

connection for veterans exposedtoherbicidesin service outside ofVietnam, does not conflictwith section

1113 andrepresents a reasonable interpretation byVAofits authorityundersections 501, 1113, and 1116

that is not arbitrary and capricious. See Mayo Foundation for Medical Educ. and Research v. United

States, 131 S. Ct. 704, 711, (2011) (holding that, under Chevron U.S.A., Inc. v. Natural Res. Def.

Council, Inc., 467 U.S. 837 (1984), courts "may not disturb an agency rule unless it is arbitrary or

capriciousin substance, ormanifestlycontrarytothe statute" (internal quotations omitted));Nat'lOrg. of

Veterans' Advocates, Inc. v. Sec'y of Veterans Affairs, 330 F.3d 1345, 1349–50 (Fed. Cir. 2003)

(applyingChevron standardstoVA'sinterpretation ofitsstatutoryauthorityas contained in regulation);

Jernigan v. Shinseki, 25 Vet.App. 220, 224-225 (2012) (same) . Therefore, § 3.309(e) in this regard

is a valid exercise of the Secretary's rulemaking authority.

B. Rebuttal of the Presumption of Service Connection

The appellant next argues that the Board clearlyerred in finding the August 2012 VA medical

opinionadequate. In the alternative, he contendsthat theBoarderredwhen itfound thattheAugust 2012

VAopinionwassufficientto rebutthe presumption ofservice connection underthe standardssetforthin

§ 3.307(d).

Whether amedical opinion is adequate is a findingoffactthattheCourtreviewsunderthe "clearly

erroneous" standard. See 38 U.S.C. § 7261(a)(4); D'Aries v. Peake, 22 Vet.App. 97, 104 (2008). "'A

findingis "clearlyerroneous"whenalthoughthere is evidence tosupportit,thereviewingcourtonthe entire

evidence is left with the definite and firm conviction that a mistake has been committed.'" Gilbert v.

Derwinski, 1 Vet.App. 49, 52 (1990) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395

(1948)). When applying thisstandard, iftheCourt determines, afterreviewing the record in its entirety,

that the Board's finding of fact is supported by a plausible basis, "'the [Court] may not reverse it even

thoughconvinced that had it been sitting astrier offact,itwould haveweighedthe evidence differently.'" 

Id. (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573-74 (1985)). 

8
Torebut a presumptionofservice connection based on herbicide exposure,section 1113 requires

affirmative evidence tothe contrary, or evidence to establish that an intercurrentinjuryor

diseasewhichis a recognizedcause of anyofthe diseasesordisabilitieswithinthepurview

ofsection . . . 1116 ...ofthistitle, has been suffered between the date ofseparation from

service and the onset of any such diseases or disabilities.

38 U.S.C. § 1113. Section 3.307(d)—which, as discussed above, adopted section 1113's rebuttal

provisionsfor allpresumptionsofservice connectionbasedonherbicide exposureunder§3.309regardless

of where that exposure occurred—further provides that

[e]videncewhichmaybe considered in rebuttal ofservice incurrenceof adisease listed in

§ 3.309will be anyevidence of a natureusuallyaccepted as competentto indicate the time

of existence orinception of disease, and medical judgment will be exercised inmaking

determinations relative to the effect of intercurrent injury or disease. The expression

"affirmative evidence tothe contrary"willnotbe takentorequire a conclusive showing,but

suchshowingaswould,insoundmedicalreasoningand inconsiderationof all evidenceof

record, support a conclusion that the disease was not incurred in service.

38 C.F.R. § 3.307(d)(1).

We cannot agreewiththe appellantthattheBoardclearlyerredwhen it determined thattheAugust

2012 VA opinion was adequate for rating purposes. See D'Aries, 22 Vet.App. at 104; Hilkert v. West,

12Vet.App. 145, 151 (1999) (en banc)("An appellant bearsthe burden of persuasion on appealsto this

Court."), aff'd per curiam, 232 F.3d 908 (Fed. Cir. 2000) (table). Although the appellant faults the

examiner for failing to provide an adequate rationale, theAugust 2012 opinion, when read as a whole,

explainsthe examiner'sreasons—albeittenuous—for concluding that the "evidence suggeststhat [his]

hepatitis C infection led to the development of the lymphoma." R. at 81; seeMonzingo v. Shinseki, 26

Vet.App. 97, 106 (2012) (stating that a medical opinion that does not "explicitlylayout the examiner's

journey" from facts to conclusion is not inadequate so long as the Court can discern the examiner's

reasoning); Acevedo v. Shinseki, 25Vet.App. 286, 294 (2012)(noting thatmedicalreports "must be read

as awhole" in determinations of adequacy). In particular, the examiner supported his conclusion with

citationtomedicalliterature linkinghepatitisCandnon-Hodgkin'slymphoma andnotedthattheappellant's

lymphoma did not manifest until after he had been diagnosed with hepatitis C.

We agree, however, that the Board failed to provide an adequate statement of reasons or bases

foritsfindingthatthe evidence ofrecordwassufficienttorebutthe presumption ofservice connection for

9
the appellant's non-Hodgkin'slymphoma, asitmisstated the ultimate conclusion oftheAugust 2012VA

opinion. Section 1113(a) and § 3.307(d) "establish two separate, although similar,standards, in addition

to 'willful misconduct,' under which a presumption of service connection . . . will be found to be

inapplicable." Goodsell v.Brown, 5Vet.App. 36, 43 (1993). The presumptionwillbe foundinapplicable: 

(1) when there is evidence "to establish that an intercurrent injuryor disease which is a

recognizedcauseof[the chronic disease forwhichservice connection issought] has been

suffered between the dateof separation from service and the onset of anysuch disease[

]"; or(2)whenthere is other "affirmative evidence to the contrary[ofthe presumptionof

service connection]",within themeaningofsection 1113(a) and §3.307(d)that "would .

. . support a conclusion that the disease was not incurred in service." 

 

Id. Under § 3.307(d), "'affirmative evidence to the contrary' will not be taken to require a conclusive

showing, but such showingaswould,in soundmedicalreasoningand in the consideration of all evidence

of record, support a conclusion that the disease was not incurred in service." 38 C.F.R. § 3.307(d).

Here, theBoard applied the second rebuttal standard and relied on theAugust 2012 examination

toconclude that "the recordinthis case includes affirmative evidencewhichfullyrebuts[the] presumption." 

R. at 6-7. Because the examiner did not explicitlyopine that the appellant'slymphomawas not incurred

in service, theBoard focused on the opinion's discussion regardingthe effect ofthe appellant's hepatitis

2

C on his lymphoma. In characterizing the opinion, however, the Board confused the possibility that

hepatitisCledtothedevelopmentofthe lymphomawiththeprobability thatit didso. Although theAugust

2012 opinion states that "the evidence suggeststhat the hepatitisC infection led to the development of

lymphoma,"R. at 81 (emphasis added),theBoard instead citesthe opinionforthe proposition that "itwas

likely that the hepatitisC infection led to the development of the lymphoma," R. at 7 (emphasis added). 

Additionally,theBoardfailedtodiscussthe examiner's concurrentfindingsthat "theabsence of paststudies

wouldmake adeterminationofthe etiologyof[the lymphoma]impossible" andthat "the risk of developing

the tumoris greater" in those exposed toAgent Orange, even forthosewith "a normal immune system." 

We do not mean to suggest that the examiner was required to do so under the regulation. On the contrary,

2

§ 3.307(d) does not define "affirmative evidence to the contrary" as an explicit medical opinion that a condition did not

begin in service but, rather, as evidence that "would, in sound medical reasoning and in the consideration of all evidence

of record, support a conclusion that the disease was not incurred in service."

10
R. at 80-81. The Board also neglected to discuss, in concluding that the opinion is "contrary" to the

statutorypresumption of service connection, the opinion's lack of specificityas to the probabilitythat

hepatitis C was the sole cause of the lymphoma, to the exclusion of Agent Orange exposure as a

contributory cause.

3

Thedistinction between possibilityand probabilityisimportant, particularlyin the context ofthe

rebuttal of a regulatory presumption of service connection, and the Board's failure to recognize this

distinction frustrates judicial review. In particular, we simply cannot know whetherthe Board, had it

accuratelycharacterized and discussed theAugust 2012opinion,wouldhave concluded thatthe evidence

ofrecord constituted "'affirmative evidence to the contrary' . . . as would, in sound medical reasoning . .

. support a conclusion that the disease was not incurred in service." 38 C.F.R. § 3.307(d). 

We thus conclude that the Board's statement of reasons or bases for this determination is

inadequate. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995)("The [Board's]

statement [ofreasons or bases] must be adequate to enable a claimant to understand the precise basisfor

theBoard's decision, aswell asto facilitate reviewinthisCourt."). Accordingly,wewill vacate theBoard's

decision and remand the issue of service connection for non-Hodgkin's lymphoma for the Board to

accuratelyand adequatelydiscussthe evidence ofrecord,includingwhetheritrebutsthe presumption of

service connection under the standardsset forth in 38C.F.R. § 3.307(d). In addition,VAmust consider

"whetherthere is'sufficient competentmedical evidence'" to decide the claimand,if not,obtainadditional

evidence. McLendon v.Nicholson, 20 Vet.App. 79, 85 (2006) (quoting 38 C.F.R. § 3.159(c)(4)(i); see

Douglas v. Shinseki, 23 Vet.App. 19, 24 (2009) (concluding that the Secretary's authorityto develop a

claimnecessarilyincludesthe authorityto collect and develop evidence thatmightrebut the presumption

of service connection). We will deny the appellant's request for reversal of the Board's decision. See

Tucker v. West, 11Vet.App. 369, 374 (1998)(holding that, "where theBoardhasincorrectlyapplied the

The opinion's lack ofspecificity in thisregard stands in contrast to the Board's June 2012 request for a medical

3

opinion as to whether "the evidence in its entirety supports the conclusion that the Veteran's non-Hodgkin's lymphoma

was not incurred in, or otherwise caused by, his military service." R. at 84 (emphasis added).

In addition, we express no view as to whether an intervening cause that was only contributory, as opposed to

exclusive, could ever constitute sufficient "affirmative evidence to the contrary" to rebut the presumption of service

connection. That issue is not ripe for review due to the need for further VA factfinding.

11
law,failedto provide an adequate statement ofreasons or basesforits determinations, orwhere the record

is otherwise inadequate, a remand is the appropriate remedy").

On remand, the appellant isfree to submit evidence and argument on the remandedmatters, and

the Board is required to consider any such relevant evidence and argument. See Kay v. Principi, 16

Vet.App. 529, 534 (2002) (stating that, on remand, the Board must consider additional evidence and

argument in assessing entitlement to the benefit sought); Kutscherousky v. West, 12 Vet.App. 369,

372–73 (1999) (per curiam order). The Court has held that "[a] remand is meant to entail a critical

examination of the justification for the decision." Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991). 

TheBoardmust proceed expeditiously, in accordancewith 38U.S.C. § 7112 (requiring theSecretaryto

provide for "expeditious treatment" of claims remanded by the Court. 

V. CONCLUSION

Accordingly,theDecember10,2012,Boarddecisionthatdeniedentitlementto service connection

fornon-Hodgkin'slymphoma isVACATED, andthatmatterisREMANDEDforreadjudicationconsistent

with this decision.

12