UNITED STAT ES COURT OF AP P EALS FOR VETERANS CLAIMS

N O

. 12-0218

H AR M ON C AR

TER , J R ., A P P E L L

A N T ,
V

. E R I C K. S H I

N S E K I , S E C R E TA R Y O F V E TE R

A N S A F F A I R S , A P P E L L E E

.
On Appea l from the B oard of Veter ans' Appea ls (Argued Nove mber 20, 2013 De cided Ma y 20, 2014)

Heather Vanhoose of Parke rsburg , West Virginia, w as on the brie f for the appe llant.
Ronen Morris , with whom W ill A. Gunn , Gene ral Counsel; David L. Quinn , Acting Assistant Gene ral Counsel; and Leslie C. Rogall , Deputy Assistant Gene ral Counsel, all of Washington, D.C., wer e on the br ief for

the appe llee.
Be fore KASOL D, Chief Judge , HAGEL and MOORMAN, Judges

. HAGEL , Judge , filed the opinion of the Court. KASOL D, Judge , filed an opinion concur ring in part and dissenting in part.
HAGEL , Judge : This case returns to the Court following a decision by the Boa rd of Veter ans' Appea ls (B oard) that was issued in response to a J uly 2010 Court or der g ranting a joint motion for

rema nd in a previous appea l (Doc ket Number 10-0545) involving the same claim. Har mon Ca rter, J r., now appea ls throug h counsel the resulting Fe bruar y 18, 2011, Boa

rd decision that ag ain denied entitlement to VA disability benef its for deg ener ative disc disease of the lumbosacra l spine. Mr. Carter continues to be repr esente d by the same counsel who repr esente d him in the prior proce eding and who neg otiated and signe d the joint m otion for rema nd on his behalf in the prior appea l. The Secre tary has conce ded, and the Court so finds, that Mr. Carter ' s Notice of Appea l was timely , and the Court has jurisdiction to revie w the Boa rd decision pursuant to 38 U.S.C. § 7252(a)

. On J uly 12, 2013, the matter was submitt ed to a panel of the Court to consider an issue of first impression: Whenthe appellant is repr esente d by an attorney , can a joint motion for rema nd of an appea l to the Boa rd limit the scope of the Boa rd' s independe nt duty to sear ch the rec ord for issues rea sonably raised by the re cord? Ora l argument was he ld on November 20, 2013. W e now hold that wher e an attorney -re prese nted appellant enter s into a joint motion for

rema nd identifying specific Boa rd err ors, the terms of that rema nd can be considere d a fac tor when det er m i ning the scope of the Board' s duty to sear ch the rec ord for other iss ues t hat are reasonably raised by it. We also hold that when we apply this rule to the fac ts presente d here , the terms of the joint motion for rema

nd of the prior appea l (Doc ket Number 10-0545) wer e sufficie nt to require the Boa rd on re mand to once a g ain re view the rec ord to de termine if there wer e any issues rea sonably raised e ven thoug h not specified by the joint moti on.

I. F ACTS Mr. Carter serve d on active duty in the U.S. Army from November 1965 to November 1967. There is some evidenc e in the rec ord that Mr. Carter had a pree x isting low-bac k disability at the time he enter ed service

. There also is evidenc e that Mr. Carter was treat ed fo r low-bac k pain during service

. The medical examination administered at the time of his separ ation from service , howeve r,

reve aled no a

bnormalities of the spine. I n J uly 1989, Mr. Carter soug ht private treatment for low back pain and filed a claim for VA benef its for that disability

. A VA reg ional office denied this claim in October 1990. Mr. Carter appea led that decision to the Boa rd and reque sted a hear ing. Record (R.) at 660. I t is unclea r from 1
t h e rec ord of proce eding s what actions wer e taken betwee n 1990 and 2005, but Mr. C arte r m akes no argument that the appe al to the B oard w as not adjudicated. I n May 2005, Mr. Carter soug ht to reope n his previously denied claim for benef its. I n Aug ust 2005, the reg ional office denied the claim beca use it found that the evidenc e submitt ed was neither

new nor materia l. Mr. Carter appea led the regiona l office decision, submitt ing in support of the appea l November 2005 and J une 2006 letters from his private phy sician, Dr. L ouis Keppler

. Both of these

On Octob er 29 , 20 13 , the Secretar y filed a substitu te reco rd of pr ocee dings

. A ll citations to the reco rd in this 1 op inion refer to the su

bstitute reco rd of p ro ceed ing s. 2letters opined that Mr. Ca rter' s low back disability , althoug h prese nt when he e ntere d service , was ag g rava ted by service to a sig nificant de g ree
. I n May 20 0 6 , M r. Carter underw ent a VA examination administered by Gene L

. Dunca n, M.D. I n his repor

t, Dr. Dunca

n found that Mr. Carter ' s curr ent low back disability was not incurre d in or agg ravated by his s er v i ce. R. at 426. The reg ional office reope ned Mr. Carter ' s claim i n J uly 2006 and denied it o n the merits. R. at 256. Mr. Carter filed a Notice of Disag ree ment shortly there afte r. As a result of Mr. Carter ' s appea l, VA conducte d another medical exami n at i o n i n November 2007. That exam was administered by Nurse Subbarao, B.N

. R. at 217. Nurse Subbarao

rea ched the same c onclusion as did Dr. Dunc an. I n September 2009, the Boa rd denied Mr. Carter ' s claim, and he appea led t o t h e Court. I n Marc h 2010, attorney Heather Vanhoose enter ed an appea ranc e at the Court as counsel on behalf of Mr. C ar t er (Docke t Number 10-0545). That same mont h, Attorney Vanhoose reque sted a copy of Mr. Carter ' s claims file. I n J une 2010, Mr. Carter , throug h Attorney Vanhoose , enter ed into a joint motion fo r remand. I n that motion, the parties ag ree d that the September 2009 Boa rd decision contained two err ors: (1) The Boa rd failed to provide adequate rea so n s o r b as es for discounting favor able private medical evidenc e and (2) the Boa rd failed to provide adequate rea sons or bases for reje cting lay

statements from Mr. Ca

rter a nd his wife. R. at 44-45. The Clerk of the Court g rante d the parties' motion in J uly 2010, incorporating t h e t er m s o f the joint motion by ref ere nce. At the

2 time that the part i es en tere d into the joint motion for rema nd, Attorney Vanhoose had not y et

rec eived the c laims file. I n Aug ust 2010, following the joint motion for rema nd, the Boa

rd sent a letter to Mr. Carter , 3 notify ing him that the c ase w as re turned to the Boa rd and that he had 90 da

y s to submit additional argument or evidenc e. See R. at 34-37 (her einaf ter "90- Day L etter" ). The front pag e of the Fe bruar y 4

See U.S. V ET

. A PP

. R. 45 (g) (stating th at th e C lerk of th e Court m ay

act o n jo int m otio ns to rem and a c ase). 2

In add ition to Mr. Carter, the letter w as also se nt t o M r
. Roy Spicer of Disabled A m erican Veterans, the 3 veterans service or gan ization that w as Mr. Carter's form er rep resentative. R. at 36

. It w as not, how ever, sent to A ttorney Vanhoose at th at time

. The 90-Day

L etter relates to a req uirem ent of 38 C.F.R. § 20 .13 04

. T he notice pr ovided in this letter and its 4 attached " 90 -Day Letter Response Form " varies in a sig nif icant w ay from the text of § 20 .13 04

. T hat regulation pr ovides, regard ing the per iod to subm it new evidence or argum ent, that " [a] n app ellant and his or her rep resentative, if any , w ill 32011 Boa

rd decision listed Disabled American Veter ans as Mr. C arte r' s repr es en t at i ve. However , the notice letter transmitting the Fe bruar y 2011 Boa

rd decision, to which a copy of the decision was attache d, was annotated to indicate that the letter was sent to Mr. Carter as well as his repr esentative, Attorney Vanhoose

. The notice letter does not bear the name of Disabled Americ an Veter ans. R. at 2-3. Attorney Vanhoose contends that she did not rec eive a copy of the Boa rd decision at that time, and the Sec reta

ry has conc eded this issue. On Dec ember 13, 2010, VA sent Attorney Vanhoose Mr. Carter ' s claims file. The claims file included a copy of the 90-Da y L etter, previously s en t t o Mr. Carter in Aug ust 2010. Attorney Vanhoose did not submi t any new e vidence or raise new arg uments on behalf of Mr. Car ter to the Boa rd. On Feb ru ary 18, 2011, 68 day s afte r the date on which the parties ag ree that Attorney Vanhoose rec eived the 90-Da y L etter as part of the claims file, and 227 day s afte r the Court g rante d the joint motion for rema

nd, the Boa

rd issued the decision on appea l, rea djudicating Mr. Carter ' s low back claim as specifie d in the Court's rema nd order

. The Boa

rd found that Mr. Cart er 's l o w back disability pre exis ted service and that his disability had not been perma nently worsene d during service

. The Boar d specific all y co n s idere d, but then rejected, favora ble private medical evidence , including Dr. Keppler ' s opinions , fi n d i ng them not probative beca use they wer e based on Mr. Carter ' s self-r eporte d medi cal history , which the Boa rd found was clea

rly contra dicted by the evidenc e of r ecor d. The B oard a lso found both Mr. Carter ' s and hi s wife' s lay testimony

reg arding ag g rava tion of his low back disability to be vag ue and inconsistent with the medical evidenc e, and thus not credible or

probative. The Boa

rd denie d Mr. Carter ' s claim, and this appea l followed. I n this , Mr. Carter ' s second appea l of an adver se decision on the same claim, he identifies three purported err ors. Mr. Carter asser ts that the Boa

rd (1) "f ailed to adjudicate the theory of direc t

be granted a per iod of 90 day s follow ing the m ailing of notice to them that an app eal has been certified to the Bo ard for app ellate review and that the app ellate reco rd has been transf err ed to the Bo ard , or un til the da te the ap pella te decisio n is promu lga ted by the Boa rd of Veteran s' App eals, whiche ver come s first, du ring which they may submit

. . . ad dition al evide nce ." 38 C.F.R. § 20 .13 04 (a) (2 01 3) (emphas is add ed)

. Notab ly , § 20 .13 04 (c) , althoug h not m entioned in the 90 -Day Letter, pr ovides that the Bo ard may i ssu e its decisio n befor e the 90 day s from the notice of transm ission of the reco rd to the Bo ard

. T he par ties did not raise this po int in their br iefs or at or al argum ent. T hu s, the Court w ill not add ress the pr ej udicial im pact, if any , it m ay hav e had in this case. While no pr ovision of § 20 .13 04 app lies to a rem and from the Court to the Bo ard , the Court un der stands that VA ' s ro utin e p ractice is to send a " 90 -day letter" w hen a ca se is rem anded to the B oar d b y this Court. 4service connec tion" of his back disorder, (2) "f ailed to seek clar ification of a private medical opinion," pursuant to Savage v. Shinseki , 24 Vet.App. 259, 269-70 (2011), and (3) "e rre d by relying on inadequate VA medic al examinations." Appe llant's Septe mber 4, 2012, B rief ( Br .) at 4, 8-9.

II. THE P ARTIES' ARG UMENTS On appea l, Mr. Carter argues that the Court sho u l d ad d re s s the three additional purported

err ors in the first instance and set aside the Fe bruar y 2011 Boa

rd decision. Mr. Carter asser ts that the arguments reg arding the t hree new error s, which he now raises before t h e C o urt, wer e reasonably raised by the reco rd , t h u s the Boa rd had an independe nt duty to consider and adjudicate them, reg ardle ss of the terms of a joint motion for rema n d , an d t h at failure to do so is err or requiring another rema

nd to the Boa

rd. He further contends that there was insufficient notice and opportunity to submit additional argument and evide nce to the B oard on r emand. The Secre tary argues that, when a claim is rema nded by the Court on the basis o f a joint motion for rema

nd, the Boa

rd, on rema

nd, is not re q u i red to conduct another revie w of the entire

re cord with a view toward identifying issues not specifie d in the joint motion. I n this cas e, t h e Secre tary asser

ts that, beca

use Mr. Carter did not submit any arguments to the Boa rd subsequent to the Court's g ranting of the J uly 2010 joint m o t i on for rema nd, he is prec luded from raising new issues or ar g ument in this j udicial appe al. On Oc t o b er 24, 2013, the National Veter ans L eg al Service s Prog ram (Amicus) filed an amicus curia e brief with the Court to addre ss the broade r implications of a Court decision reg arding joint mot ions for re mand. Amicus asse rted that " [t ]he sc ope of a [j oint motion for r emand] should

neve r be a fac tor in de termining the scope of the Boa rd' s duties on rema

nd or whether the doctrine of exhaustion of administrative reme dies should apply ." Amicus Curiae Br

. at 2

. T h e re asoni ng behind this asser

tion is three -fold: (1) based on the Court's curr ent ca s e l aw , in Mahl v. Principi , 1 5 Ve t

. Ap p
. 37, 38 (2001) (per curiam order ), and Best v. Principi , 15 Vet.App. 18 (2001) (per curiam or der) , joint motions f or rema nd "se cure [] the most e x peditious r elief for the appellant and

conser ve[] judicial resour ces," and are "of ten the optimal course of action for both the appellant and the Court," id. at 4; (2) the B oard ha s an indepe ndent duty to addre ss arguments rea sonably raised in the rec ord, reg ardle ss of t he terms of a joint motion for remand, Id. at 6; and (3) the Secr etar y ' s

5position would result in few er settlements and incre ased consumption of scar ce judicial resour ces,

Id. I n response to the Ami cus brief, the S ecr etar y first argues t hat, i f t he Board is " require d to

sua sponte scour the rec ord for ever y potential issue as if the joint ag ree ment did not exis t," then joint motions for rema

nd would no longe r be eff icient and there would be no rea son for the parties to set out specific instructions for the Boa rd re g ardingthe terms of the agr eeme nt. Secre tary ' s Response to Amicus Curiae Br

. at 2. The Secre tary further asser ts that the theory proposed by Amicus is misguided beca

use "[a]n appellant' s ultimate interest is not in running the hamster whee l of rema nds but in secur ing benef

its to which he o r s h e i s en t i tled." Id. at 5. The Secre tary contends that his "positio n favor s fuller discussions and neg otiations betwee n repr esente d parties, and encour ag es appell an t s to advanc e arguments on rema nd to the Boa

rd. The long- term result of more fully delineating t h e i s s u es on appea l and identifying those issues to the Boa rd will result in few er subsequent appea ls to the Court." Id. Second, the case law s et fo rt h in Best and Mahl relates to

rema nds by the Court, which should be treated differ ently than rema nds based on joint motions for

rema nd. At oral arg

ument, the Secre tary stated that a joint motion f or rema nd is " an ag ree ment, it is

a compromise, it is a strateg ic compromise betwee n the parties enter ed into in a purely adver sarial sy stem. I t is enter ed into by at t o rn ey s. An attorney has ever y rig ht to conce de or to g ive up a particula r point in hopes that the outcome is more desirable ." Ora l Argument at 25:00-26:10, Carter

v. Shinseki , U.S. V E T

. A PP

. N O

. 12-0218 (Argued Nov. 20, 2013) (ava ilable at http:// www.usc ourts.cavc .g ov/oral-a rg ument s

_ audio.php). I n contra st, rema nds not predic ated on

a joint motion for rema

nd–in wh i ch t h er e is no ag ree ment betwee n the parties and the Court has discretion to de cide c ases on the narr owest possible g rounds–leave it to the parties or the Boa rd to resolve the issues on rema nd. Finally , the Secre tary points out that the exhaustion doctrine is entirely discretionar

y and require s a case -by -ca se analy sis. See Secre tary ' s Supplemental Br

. at 14 ( citing Maggitt v. W

est , 202 F.3d 1370, 1378 ( Fe d. Cir. 2000)).

6III. ANALYSIS

A. Eff ect of Attorney -Repre sented Joint Ag ree ment Embodied in J oint Moti on for Rema nd 1. Opportunity to Submit Additi onal Argument or Evidenc e on Re mand I t is undisputed that Mr. C ar t er and his repr esentative wer e entitled to submit additional argument or evide nce to the Boa rd on re mand. The July

2010 joint mot ion for re mand stated, " On

rema nd, [Mr. Carter ] should be fre e to submit additional evidenc e and argument reg arding his claim. See Kay v. Principi , 16 Vet.App. 529, 534 (2002); Kutscherousky v. W est , 12 Vet.App. 369, 372-73 (1999) (per curiam order)." R. at 46. Additionally , at oral argument, the Secre tary acknow ledg ed that "the appellant is alway s fre e to prese nt new arguments and submit additional evidenc e [on rema nd]." Ora l Argument at 39:30; see also 38 C.F.R. §§ 19.37 (2013), 20.1304(a)

. I t is further undisputed that betwee n the date on w hich t he C ourt g rante d the joint moti on for r emand on July 6, 2010, and the date of the Boa

rd decision on Fe bruar

y 18, 201 1 , M r. C arte r did not raise any new arguments or prese nt any

new e vidence to the Boa rd. 2. Arguments or Issues Re asonably Raised by the Rec ord Mr. Carter argues that the Boa rd al wa y s h as a duty to consider and adjudicate arguments

rea sonably raised by the rec ord reg ardle ss of the terms of a joint motion f or rema nd and reg ardle ss of whether additional argument or evidenc e has been submitt ed on rema nd. Amicus ag ree s, stating that "[t]he scope of a [

joint motion for remand] should neve r be a fac tor in deter mining t h e s cope of t he Board' s duties on rema nd or whether the doctrine of exhaus t i o n o f administrative remedies should apply ." Amicus Curiae Br

. at 2. The Secre tar y ar gu es t h at the terms of a joint motion for

rema nd limit the Boa

rd' s require ments on rema nd, and the Boa

rd need only addre ss issues raised in the joint moti on for r emand or any additional arguments or evidenc e pre sented to it on remand. This argument, specific ally raised by the parties, require s the Court to deter mine the brea dth of the B oard' s obligations following a joint motion f or rema nd, as we ll as the Court' s discretion to addre ss or ref

use to addre ss arguments raised f or the fir st tim e on appe al to the Court. i. History of the Exhaustion Doctrine The issue of whether the Court should consider arguments raised befor e it in the first instance

wa s addre ssed i n Maggitt

. I n that case , the U.S

. Court of Appeals for the Fe dera l Circuit (F ederal Circuit) held t hat t his Court has j urisdiction to hear a rg uments prese nted t o it in the first instance,

7provided that it otherwise has jurisdiction over t h e claim. The Fe dera l Circuit deter mined that, althoug h this Court may hear arg uments raised for the first time on appea l, "it is not compelled to do so in ever

y instance," and can consider, ref use to hear , or rema

nd arguments prese nted to it in the first instance. 202 F.3d at 1 3 7 7

. T h e deter mination of whether to invoke the exhaustion of administrative remedies doctrine ag ainst a par ty is case- specific : "The test is whether the interests of the individual we i gh h eavily ag ainst the instit utional interests the doctrine exis ts to serve
. . . . Those instit utional interests ar e, in the main, to protec t ag ency administrative authority and to promote j udicial efficienc y ." Id. The Fede ral Ci rcuit conti n u ed , stating that "the decision whether to invoke the doctrine is a matter of discretion" and that this Court "is uniquely positioned to balanc e and dec ide the conside rations re g ardingexhaustion i n a par ticular c ase." Id. at 1378. I n Robinson v. Peak

e , this Court was ag ain prese nted with a question of "issue exhaustion" when a theory (or arg ument) was raised by t h e ap p el l an t for the first time on appea l. 21 Vet.App. 5 45, 553 (2008), aff'

d sub nom. Robinson v. Shinseki , 557 F.3d 1355 (F ed. Cir. 2009). The Cour t deter mined that, beca

use proce eding s before VA are nonadversari a l , "the Boa rd' s obliga

tion to analy ze claims g oes beyond the arguments expli citly made." Id

. On appea l, the Fe dera l Circuit held that the Boa

rd is oblig ated to c onsider arguments or issues rea sonably raised by the rec ord, even if not raised by the claimant, and sug g ested that the Boa rd err s if it fails to do so. Robinson , 557 F.3d at 1361. I n Massie v. Shinseki, 25 Vet.App. 123, 130 (2011), this Court noted the "unc erta inty "

cre ated by the Fe dera l Circuit's failure to discuss Maggitt in its decision in Robinson

. Maggitt , which

was decide d nine y ear s befor e Robinson , stated clea rly that the Court could, based on the exhaustion doctrine, ref

use to hear arguments raised for the first time on appea l to the Court. Maggitt , 202 F.3d at 1377 (noting that the Court is "not compelled" to hear arg uments raised for the first time on appea l "in ever y instance" ). Howeve r, the languag e in R o b i n s o n could be rea d to indicate the opposite. Robinson , 557 F.3d at 1362 (holding that, once an issue has been expressly raised befor e the Boa rd, the Boa rd is require d to consider any other theories rea sonably raised by the re co rd ). This "unc erta i n t y " ar i s es wher e the Boa rd has failed to addre ss an arg ument rea sonably raised by the

rec ord, but not raised by co u n s el b ef o re the Boa

rd, and raises the question of whether the Court maintains discretion to ref use to hea r such a n argument if raise d for the f irst time on appeal.

8The appellant in Massie , who was r epre sented by the same counsel throug hout the entirety

of the appea l, raised an issue for the first time on appea l to the Court. The Court det ermined that VA' s interest in having a fair and fu l l o p portunity to consider all of the appellant' s theories outweig hed the appellant' s interests in having his arguments hear d for the first time on appea l to the Court. The appellant' s "attempt on appea l to this Court to obtain a rema nd by prese nting a differ ent theory depende nt upon differ ent provisions of law would, if succe ssful, only perpe tuate the ever incre asing ' hamster- whee l reputat i o n o f veter ans law.' " 25 Vet.App. at 128 (quoting Coburn v. Nicholson , 19 Vet.App. 427, 434 (2006))

. On appea l, the Fe dera l Circuit decide d the case on other g rounds and stated, "w e need not addre ss the [C ourt of Appea ls for Veter ans Claims] discussion of exhaustion or the eff

ect of Maggitt on this case ." Massie v. Shinseki , 724 F.3d 1325, 1329 (F ed. Cir. 2013). Be fore the Court now is the issue of whether a joint motion for rema nd can limit the Boa

rd' s responsibility with reg ard to revie w of the rec ord on rema nd and how th i s impacts the Court's exercise of

discretion with re g ard to the e x haustion doctrine.

ii. J oint Moti on for Rema nd A joint motion for rema

nd, when draf

ted proper ly , identifies the essential, undisputed fac ts

nece ssary for the adjudication of the claim; the relief soug ht; and most importantly , clea r instructions to the Boa

rd as to what it is r equire d to a ddress, and what actions it is require d to take, on rema nd. This inc rea ses both a dminist rative and judicial eff iciency

. J oint motions for rema nd are inhere ntly differ ent t h an C o u rt rema nds under Best and Mahl beca use they are neg otiated and ag ree d to by adver se, consenting parties. I t i s t h e parties' responsibility to "e numera te[ ] clea r and specific instructions to the Boa

rd" in t h e d ra ft ing of a joint motion for rema nd. Forcier v. Nicholson , 19 Vet.App. 414, 426 (2006). Fur ther, it is well settled that piece meal litigation is not favor ed. See Fugere v. Derwinski , 1 Vet.App. 103, 105 (1990) (" Advanc ing differ ent arguments at succe ssive stag es of the appellate proce ss does not serve the interests of the parties or the Court. Such a prac tice hinders the decision-making proce ss an d raises the undesirable specte r of piece meal litigation." ), aff' d , 972 F.2d 331 (F ed. Cir. 1992); see also Gen. Elec. Co. v. Int'l Trade Comm'n , 692 F.3d 1218, 1220 (F ed. Cir. 2012) (quoting McLish v. Rof f , 141 U.S. 661, 665-66 (1891) (" Fr om the very foundation of our judicial sy stem the object and policy of the acts of cong ress in relation to appea ls

9and writs of err or
. . . have been to save the expense and delay s of repe ated appea ls in the same suit,

and to have the whole ca se and e very matter in controve rsy

in it decided in a si ng le appeal." )). As the Fe dera l Circuit rec ently stated, "' [W ]here litigants have once battled for the court' s decision, they should be neither require d, nor without g ood rea son permitted, to battle for it aga i n
. ' " Dixon v. Shinseki , 741 F.3d 1367, 1378 (F ed. Cir. 2014) (quoting Official Comm. of the Unsec ured Creditors of Color T

ile, Inc. v . Coopers & Lybrand, LL P , 322 F.3d 147, 167 ( 2d Cir. 2003)). A joint motion for rema nd is an effec t i ve tool for identifying err ors and speedily and eff iciently resolving a veter an' s claim. Properly used, it benef its the appellant, the Secre tary , and the Court. I mproperly or negl i gen t l y u s ed, howeve r, it has just the opposite eff ect on eac h of these entities, in that it results in the waste of resour ces for the Court and the Secre tary an d ca u s es an

unnece ssary

delay in resolving the matters c omplained of by the appe llant. The crux of the issue now befor e the Court is: Whether a veter an, throug h counsel, may make a st rate g ic decision to enter into an ag ree ment with the Secre tary that tailors the Board' s duties on

rema nd, in an eff

ort to adjudicate the appea l more expeditious ly

. The answe r is, it depends upon the specific ity of the ag ree ment interpre ted in the context of other fac ts prese nt in the appea l. The Court finds the Fe dera l Circuit's holding in Carbino v. W est , 168 F.3d 32, 34 (F ed. Cir. 1999), instructive. There , the Fe dera l Circuit ag ree d with other courts that had held that "the failure of an appellant to include an issue or argument in the opening brief will be deeme d a waiver of the issue or argument." Id. ; see also Piecze nik v. Dyax Corp. , 265 F.3d 1329, 1332-33 (F ed. C ir. 2001) ("It is well s ettled that an appellant is not permitted to make new arguments that it did not make in its opening brief." ). When parties ente r into a joint moti on for rema nd, they imply that the terms of the ag ree ment will control. The curr ent fac ts are notably distinguishable from those prese nted in Maggitt , Robinson , and Massie b ec au s e t h ose case s did not involve a joint motion for rema nd; howeve r, those case s are instructive. S pecif

ically , the C ourt will co n sider the principles described in Maggitt reg arding the Court's discretion in applying the exhaustion doctrine as applied within the context of a joint motion for rema nd, wher e the appellant is repr esente d by counsel. I n this reg ard, th e t er m s o f the joint motion for rema

nd will have a bear ing on what might otherwise be rea sonably raised by the rec ord. The Boar d' s duty

to consider issues re asonably raised by the re cord must be viewed in light of the

10terms and scope of the joint motion and the fac t that attorney s are presumed to know their case and

to tailor their pl eading s based on the facts and law. Cf. Robinson , 21 Vet.App. at 554 (n o ting that "the prese nce of [an] attorney [ ]t hroug hout the appea ls proce ss b ef ore the ag ency is a signific ant fac tor" and further stating the "[w]here an attorney uses terms of art that make sense in the context used, the Boa

rd may rea sonably conclude that there is no ambig uity t o b e re s o l v ed with a sy mpathetic rea ding or a liberal construction of the pleading s.") ; see also Strickland v. W ashington , 466 U.S. 668, 690 (1984) (" [C ]ounsel is strong ly presumed to have rende red adequate assistance and made a ll significa

nt decisions in the exercise of rea sonable prof

essional judg ment.")

. Thus, when an at t o rn ey agr ees to a joint motion for rema nd based on specific issues and raises no additional issues on rema nd, the Boa

rd is require d to f

ocus on the arguments specific ally advanc ed by the attorney in the motion, see Forcier , 19 Vet.App. at 426, and those terms will serve as a factor for consideration as to whether or t o what ex tent other iss ues ra ised by the re cord ne ed to be addressed. I ndeed, we are not ignor ant of the fact that there often are issues not raised by an attorney beca

use, based on his or her full understanding of the case , the issue is not favor able to the client or other

wise is frivolous. Cf. Stri ckland , 466 U.S. at 690; Robinson , 21 Vet.App. at 554. 5 iii. Application The question thus prese nted is whether the languag e in the J uly 2010 joint motion for rema nd is clea r and specific enoug h to instruct the Boa rd of its responsibilities on rema nd and for the Court to asce rtain wheth er t he ag ree ment was followed. See Forcier , 19 Vet.App. at 426 (noting that parties' failure in a joint motion for rema nd to "state cle ar ly the purpose of the rema nd and to set forth detailed direc tions to descr ibe the action the Boa rd should take upon rema nd" can result "in terms too vag ue and ambig uous to g ive rise to any further Boa rd duties")

. The Court conclude s that the instructions in the joint motion at issue wer e sufficie ntly clea r and prec ise to r equire the Boa rd

on rema nd to addre ss arguments rea sonably raised by the re cord.

Of course, if, for ex am

ple, after a j oint m otio n for rem and is granted by the Court, n ew law is decided on an 5 issu e that w as encom

passed w ithin the j oint m otio n for rem and or if the Bo ard fails to pr ovide suf ficient reaso ns or bases for its decisio n on rem and regard ing the issu e(s) it w as ob ligated to add ress by the j oint m otio n for rem and, those issu es m ay be raised to th e Court on app eal. Other than the argum ent based on Sa vag e , discussed belo w , Mr. Carter raises no argum ents regarding th e B oar d's reasons or bases for its decision. 11I n examining the J uly 2010 joint motion for rema nd, the Court finds that the parties ag ree d that the September 2009 Boa rd decision contained two err ors which they , by implication, considere d potentially prejudicia l: (1) The Boa rd failed to provide adequate rea sons or bases fo r d i s counti ng favor able private medical evidenc e and (2) the Boa rd failed to provide adequate rea sons or bases for reje cting lay statements made by Mr. Carter and his wife. R. at 44-45. Howeve r, the j o i nt motion further provides that " the B oard should f ully assist [Mr. Carter ] with his c laim by reex amining the evide nce of record and seeking any other evidenc e that i s n ec essary to support its decision. See Fletche r v. Derwinski , 1 Vet.App. 394 (1991)

. " R. at 46 (empha sis added)

. This is about as clea r an expression of an enfor cea ble provisi on as can be identified. As discussed above, the parties could have lim i t ed the Boa

rd' s duties on rema

nd by using clea

r lang uag e descr ibing the limit ation. The terms used would need to be sufficie ntly clea r to be understood by the Boa rd and, should the Boa

rd' s compliance be questioned, to be enfor cea ble by t h e Court. Her e, howeve r, the parties chose to require the B oard to e x amine the e ntire re cord f or any issues rea sonably

raised the rein. iv. Mr. Carter ' s Three Newly Raised Arg

uments The Court will now addre ss Mr. Carter ' s three asser tions of Boa

rd err or: Whether the Boa rd (1) failed to adjudicate his claim based on the theory that he is entitled to benef its on a direc t basis, (2) err ed by relying on inadequate VA medical opinion s , an d (3 ) failed to seek clar ification of a private medical examination repor t. The Court will revie w these issues based on the rec ord as a whole, including the terms of the joint mot ion for re mand. There is no dispute that upon his entry to service , the Army noted that Mr. Carter had a back condition. The rec ord ref

lects that Mr. Carter ' s claim for benef its has been proce ssed as a claim for ag g rava tion of t hat bac k condition. I n support of his argument that a cla im for benefits on a direct basis was reasona

bly raised by the record, Mr. Carter points to an in-ser vice medic al record dated J anuar y 31, 1966, noting an injury to the L -5 verte bra. He asser ts that this is an injury separ ate from the back condition that pre- exis ted service and that it occur red when he fell off the back of a "5- ton truck on De cembe r 22, 1965." Appellant' s I nitial Br. at 5-6 (citing R. 693-94). The rec ord, howeve r, ref

lects that Mr. Carter repor ted falling off a 5-ton truck on Dec ember 22, 1966, close to 11 months afte r the J anuar y 1966 notation of an L -5 injury

. Moreove r, as the Secre tary points out, a statement from Mr. Carter ' s private doctor noted that h i s L -5 condition

12"pr e-dated his service time." R. at 296. F inally , Mr. Carter did not raise the issue of

entitlement to benef its on a direc t basis on rem an d

. The joint motion for rema nd specific ally provided that Mr. Carter "c ontends that his low back disorder was aggravated by service ." R. at 43 (empha sis added) ;

see also R. at 45 (" M o re o ver, in its analy sis, the Boa rd noted that [Mr. Carter ] and his spouse contend that his low back disorder was ag g ra v at ed during milit ary service .")

. Nothing in the j oint motion indi cate s that Mr. Carter ' s back injury was incur

red in ser vice. Given the scope of the joint motion for rema nd and the scant rec ord evidenc e possibly raising the issue, Mr. Carter fails to demonstrate that his claim for benef its for his back disorder on a direc t basis was re asonably

raised by the re cord or that the Boa rd er red by not addre ssing this claim. See Hilkert v. W

est , 12 Vet.App. 145, 151 (1999) (en banc) (holding that the appellant bear s the burden of demonstrating e rror

on appea l); see also Robinson , 557 F.3d at 1362. Wit h reg ard to Mr. Carter ' s second argument, the Court simil arly finds that the Boa rd did not

err by failing to sua sponte addre ss whether the May 2006 and November 2007 VA examination repor ts wer e inadequate based on a now-a lleg ed failure of the examiners to consider Mr. Carter ' s lay statements upon separ ation from service

. Her e, the rec ord ref lects that both VA examiners revie wed 6 the record in forming their opi nions and, in the absence of clea r evide nce to the contra

ry , medical examiners are presumed to be competent to rende r such opinions and the Boa rd is entitled to rely on their repor

ts absent a challeng e ther et o
. See Sicke ls v. Shinseki , 643 F.3d 1362, 1366 (F ed. Cir. 2011); Rizzo v. Shinseki , 5 8 0 F. 3 d 1 2 8 8 , 1290-91 (F ed. Cir. 2009). I n light of this fac t, the Court conclude s that Mr. Carter fails to de monstrate that any inadequa cy in these repor ts was rea sonably raised by the rec ord. See Robinson , 557 F.3d at 1362. Fur ther, beca use Mr. Carter was repr esente d and counsel did not raise the adequa cy of t hese medical opi nions i n t he J uly 2010 joint motion or befor e the B oard on rema nd, and bec ause those me dical opinions were in the rec ord at the time of the joint motion, Mr. Carter fails to demonstrate err or in this reg ard. See Hilkert , 12 Vet.App. at 151. Mr. Carter ' s third argument is based on this Court's decision in Savage

. Mr. Carter contends that the Boa

rd shoul d h av e soug ht clar ification of his private doctor' s May 2006 opinion befor e

T he Court notes that, althoug h Mr. Carter refers to a Novem ber 20 11 VA exam ination, giv en that there is no 6 such exam ination in the reco rd and that the Bo ard decisio n on app eal is from Febr uary 20 11 , it app ears that he inten ded to d ispute the Novem

ber 20 07 VA exam ination. 13assig ning it less weig ht than the May 2006 and November 2007 VA examination repor ts beca use the assig nment of less we ight wa s based on a lack of clar ity as to w hether the private doc tor revie wed Mr. Carter ' s treatment r ecor ds. Mr. Carter , howeve r, misunderstands Savage

. I n Savage , the Court expli ci t l y limit ed VA' s duty to seek clar ification of private medical repor ts to situations wher e "the mi ssing information is rele vant, factual, and obje ctive–that is, not a matter of opinion." 24 Vet.App. at 270. Specifica lly , the C ourt held t hat when a private medical repor t is the only evidenc e on a materia l issue, and materia l medical evidence ca n n o l o ng er be obtained as to that issue, y et clar ification of a rele vant, o bjective fac t would rende r the private medical report competent for the assig nment of weight, the Secreta ry must attempt to obtain such clar ification. Id . at 267. Her e, the rec ord contains two VA medical repor ts that addre ss the prec ise issue discussed by the private examiner' s repor t, such that, even without the repor t, there is competent medical evidenc e

answe ring the question at issue. Additionally , the Boa rd did not reje ct the private examiner' s repor t; rathe r, it assig ned less weig ht beca use the d o ctor had not explained whether he had revie wed the entire rec ord. Under such circ umstances, wher e there are competent medical rec ords that adequately address Mr. Carter ' s condition, the Secre tary was not require d to seek clar ification of t h e p ri v at e doctor' s op i n i o n
. Acc ording ly , the C ourt conclude s that Mr. C arte r has not satisfied hi s burden of demonstrating err or on appe al. See H ilkert , 12 Vet.App. at 151. B. N otice and O pportunity to Submi t Additional Arg ument and Evidenc e I n Mr. Carter ' s supplemental memorandum, he argue s t h at the Boa rd failed to provide his

curr ent repr esentative, Attorney Vanhoose , with sufficie nt notice and opportunity to submit additional arg

ument or evidenc e befor e the Boa rd on rema

nd. He asser

ts that the Boa

rd err oneously mailed the 90-Da

y L etter to his former repr esentative, Disabled Americ an Veter ans, and listed that org anization as his curr ent repr esentative on the Fe bruar y 2011 decision. Acc ording ly , he contends that he was unable to exhaust his administrative reme dies prior to appea ling this matter to the Court. The Court disag ree s. Attorney Vanhoose has conce ded that she was in possession of the 9 0 -D ay L etter in Dec ember 2010, when she rec ei ved a copy of Mr. Carter ' s claims file, at least 67 day s befor e the Boa rd issued its decision in Fe bruar y 2011. See Ora l Argument at 3:00-6:00; see also R. at 3. At oral

14argument, Attorney Vanhoose stated that she did not revie w the claims file until after the Fe bruar y 2011 Boa rd decision had issued. Id. The mere fac t that Attorney Vanhoose chose not to revie w Mr. Carter ' s claims file immediately upon rec eipt does not demonstrate a lack of notice that Mr. Carter ' s appea l was returne d to the Boa rd for adjudication following the joint motion for re m an d. I n fac t, when the joint motion for rema nd was g rante d by the Court, Attorney Vanhoose had notice that Mr. Carter ' s claim was no long er be fore the Court and had r eturne d to the Boa rd. The Court has held that notice err ors can be cure d by demonstrating actua l rec eipt. Matthews v. Principi , 19 Vet.App. 23, 29 ( 2005) (holding that appellant' s counsel' s rec eipt of the appellant' s claims file in Aug ust 1997 that included a copy of the Statement of the Case "w as sufficie nt to cure any potential defe ct in the Secre tary ' s mailing of the [S tatement of the Case] in Aug ust 1996 to the appellant' s then-re prese ntative" ); Clark v. Principi , 15 Vet.App. 61, 64 (2001) (holding that the Boa rd' s "ma iling defe ct was cure d by the appellant' s actua l rec eipt of a copy of the J une 1999 Boa rd d ec i s i o n i n J anuar

y 2000") ; cf. Hauck v. Brown, 6 Vet.App. 518, 519 (1994) (stating that notic e defe cts are not overc ome wher e there is no evidenc e of actua l rec eipt)

. Her e, Attorney Vanhoose had actua l rec eipt of the 90-D ay L etter when she rece ived M r. C arte r' s claims file in Dec ember 2010. 7 See Ora l A rg ument at 3:00-6:00. She also neg otiated for, and was succe ssful in obta ining, a return of the appea l to the Boa

rd in the J uly 2010 joint motion f or rema nd. Thus, Attorney Vanhoose had ample time to take action and contact the B oard pr ior to its Februa ry 2011 decision, but chose not to do so. Although the Boa

rd issued its de cision less than 90 day s afte r Attorney Vanhoose ' s rec eipt of the claims file, she acknow ledg ed that she did not rec eive the Boa rd decision unti l Dec ember 2011. See Appellant' s Marc h 27, 2012, Opposi tion to Motion to Dismiss. Acc ording ly , Attorney Vanhoose ' s decision not to submit arguments to the Boa rd ca nnot be said to have been influence d by issuance of the Fe bruar y 20 1 1 Bo ar d decision. Whether by err or or omission or a conscious decision not to act, she simply did not do so. During the 12-month period betwee n Dec ember 2010 and 2011, Attorney Vanhoose could have raised arguments to the Boa rd and the Boa

rd would have

A bsent any argum ent to the contrar y , the Court w ill pr esum e that Mr. Carter also received a cop y of the Aug ust 7 20 10 90-Day

L etter in its norm al course. See Sth ele v. Princip i , 1 9 Ve t. App. 11 , 16 (20 04 ) (statin g that the Court h as long " reco gn ized that ' [t]here is a pr esum ptio n of regularity un der w hich it is pr esum ed that governm ent offi cials " hav e pr op erly discharged their official duties"'") (q uoting Ashley v. De rwinski , 2 Vet.App. 30 7, 30 8-09 (1 99 2) ). 15been require d to consider them, despite the Board 's issuance of its decision during that period.

Acc ording ly , the appellant' s counsel of rec ord h ad n otice and an opportunity to participate and submit arguments to the Boa rd befor e the matter was rea djudicated by t h e Bo ar d and could have participated during the more than one-y ear period befor e she appar ently rec eived notice in Dec ember 2011 of the Boa

rd' s rea djudication. There fore , neither Mr. Carter nor counsel wer e preve nted from prese nting a dditional argument or evide nce, but r ather opted not to do so. Wit h regard to the contention that the Fe bruar y 2011 Boa

rd decision is void beca

use the Boa rd listed the wrong repr esentative, this argument is not persua sive. The misidentification of Mr. Carter ' s repr esentative on the cover of the Boa rd decision does not alter the substance of the decision. Rather, the misidentification relates only to when Attorney V a n h o o s e r e ceive d notice of the decision, thus, beg inning the 120- day period duringwhich a timely appea l could be filed. 8 Her e, Attorney Vanhoose asser ted, and the Secre tary subsequently conce ded, that she did not

rec eive actua l notice of the Fe bruar y 2 0 1 1 Bo ard decision until Dec ember 2011. See Appellant' s Marc h 27, 2012, Opposition to Motion to Dismiss; see also Secre tary ' s Motion to Wit hdraw Motion to Dismiss. Thus, Mr. Carter h ad 1 20 day s from that date of actua l rec eipt to file his Notice of Appea l. See Ashley v. Derwinski , 2 Vet.App. 62, 65-67 (1992)

. Mr. Carter filed his Notice of Appea l with the Court on J anuar

y 19, 2012, well within the 120 day s. There fore , the Court f ound that Mr. Carter ' s Notice of Appea l was timely

. Consequently , the Court cannot conclu d e that the Boa rd' s

err or–listing Mr. Carter ' s previous repr esentative on the Fe bruar y 2011 d ec i sion–is prejudicia l or somehow rende rs the decision void. See Sellers v. Shinseki, 25 Vet.App. 265, 274 (2012) (explaining that the issue of how notice was rec eived by the parties is moot wher e actua l rec eipt s er ves to establish finality for purposes of appea l to this Court); see also Conway v. Principi , 353 F.3d 1369, 1374 (F ed. Cir. 2004).

See 38 U.S.C. § 72 66 (noting that " a per son adversely aff ected by [a decisio n of the Bo ard ] shall file a notice 8 of app eal w ith the Court w ithin 12 0 day s after the date on w hich notice of the decisio n is m ailed pursuant to [3 8 U.S.C.] section 71 04 (e) ," w

hich req uires the Bo ard to m ail a cop y of its decisio n to the claim ant and any auth or ized rep resentative). 16C. Sum mary

The Court now holds that when re prese nted par ties enter into a joint motion for re mand of

an appea l from this Court to the Boa rd, the parties must g ive clea r direc tion to the Boa

rd of the err ors that they ag ree are raised by the rec ord and specify what further action the Boa rd must take with respe ct to the claim. Fur

ther, the deg ree to which the joint motion for rema nd relieve s the Boa

rd of the duties it possesses will be deter mined by the terms of the joint motion for rema nd in the context of the other fac ts prese nt in the case
. I n this case , beca use it is clea

r that Mr. Carter did not surre nder the rig ht for a new rec ord revie w by the Boa rd–indee d he prese rve d i t

– t h e Board was require d to addre ss issues rea sonably raised by the rec ord and, as such, was require d to addre ss issues identified by such review, as well as those matters speci fi ed i n the j oint motion for remand. I n deter mining whether an issue was rea sonably raised by the rec ord, the Boa rd also considers the joint motion for

rema nd, which is part of the rec ord. This rule rec onciles the various g oals behind joint motions for

re m an d , including, most importantly , assisting veter ans in obtaining their benef its in the mos t expeditious manner

possible. I n s u m , the Court wishes to make clea r that the intended eff

ect of this decision is n o t t o discourag e joint motions for r emand. On the contra ry , the Court understands and appre ciates their importance

. Howeve r, the Court cautions ag ainst rema nds mere ly for the sake of rema nds. J udicial eff iciency is not incre ased when cou n s el enter s into a joi nt motion for remand before revie wing a client' s claims file or rec ord and fails to provide g uidance to the Boa rd conce rning its responsibilities

on rema nd. Remands of such ilk c ause unnece ssary delay , waste scar ce resour ces, and are harmful to the entire sy stem, including to the Court, VA , and, most importantly , the veter an.

IV. CONCLUSION Upon considera

tion of the fore g oing, the Fe bruar y 18, 2011, Boa

rd decision is AFF I RMED.

KASOL D, Chief

Judge , concur

ring in part and dissenting in part: I fully concur in the Court's (1) holding today that the terms of a joint motion for rema nd (JM R) ar e fo r consideration when deter mining what issues might rea sonably be raised by the rec ord, as well as the Court's application

17of that holding, and (2) application of Savage v. Shinseki , 24 Vet.App. 259 (2011), to the fac ts in this

case
. I cannot ag ree , howeve r, with the majority ' s view of profe ssional responsibility with reg ard to manag ing a case. Succinctly stated, t he S ecr etar y confirmed at o ra l argument that, with reg ard to claims rema

nded by the Court, it is his prac tice to se nd claimants and counsel a letter informing them that they have 90 day s to submit additional evidenc e befor e the Boa rd will rende r its decision. Given this prac tice, I believe it is well within the para meters of competent repr esenta tion and proper

case manag ement that an attorney prac ticing befor e this Court and awa re of the Secre tary ' s prac tice might wait for the Secre tary ' s 90-day l et t er b efor e revie wing a claims file afte r a matter has been

rema nded to the Boa

rd and befor e finalizing the evidenc e and argumen t co unsel might wish to prese nt. I n finding otherwise, t h e m ajority essentially require s counsel to examine a claims file for such a letter, just in case the letter was sent to the wrong counsel, as was the case h er e. There

ce rt ainly is lore about VA err ors, but I do not believe even that rises to the level of requiring an appellant' s counsel to sear ch for a misdirected 90-day letter that counsel is not awa re has been issued. Rather, the Se cr etar

y err ed in this case when he sent a 90-day letter to the wrong repr esentative, and that err or was the cause of Mr. Carter ' s counsel not being provided the proper ly anticipated notice prior to issuanc e of the Boa rd decision now on appea l – notice that indisputably is the prac tice of the Secr et ar y
. T h e l ac k of notice, in turn, is why Mr. Carter ' s counsel did not pres en t ad d itional argument below. I ndeed, had counsel for Mr. Carter been provided t he 90-day notice, she could have raised the two issues that are raised in this appea l but – in the context of the parties' J MR without s ubsequent a rg ument prese nted below – not reasonably raised by the re cord. The 90-day notice letter also would have permitted counsel to timely focus on Mr. Carter ' s claim and

secur e a medical opinion within the 90-day notice period, which p ra ct i ce , incidentally , would provide a more curr ent opinion than one obtained immediately afte r a Court rema nd and well befor e issuance of

the 90-da y letter provide d by

the Secr etar

y
. 9

T he m aj or ity also place s em phasis on the fact that Mr. Carter's counsel did not review the claim s file for m or e 9 than 12 m onths after receiving it, but such em phasis is a red h err ing

. Either th e Secretary has a pr actice of pr oviding a 90 -day notice letter or he do es not. E ither counsel can rely on that or they

cannot. 18As to the majority ' s relianc e on Matthews v. Principi , 19 Vet.App. 23, 29 (200 5 ), i t i s

misplaced. Ye s, Matthews held that ac tual rec eipt of a notice in a claims file may cure a potential notice defe ct in the orig inal mailing of that notice, and reje cted an arg ument th at an appellant' s counsel should not be re q u i re d t o sear ch the contents of the claims file in order to prese rve a veter an' s rig hts to appea l. Id. But, Matthews involved a claims file that was forwa rded to a newly reta ined counsel who knew a Statement of the Case (SOC) had been issued befor e he reque sted and

rec eived the claims file, such that the rea sonably prudent counsel would know that the SOC should be contained in the claims file. I n those limit ed circ umstances, rec eipt of the claims file cure d any defe ctive mailing of the SOC to the previous repr esentative. Id. at 25, 29. Matthews did not involve

a counse l who secur ed a r emand to the Boar d, the S ecr etar y ' s prac tice of pr oviding a 90-day letter befor e a Boa

rd decision is rende red, and no knowledg e on the part of counsel that a 90-day letter had been issued. I n sum, Mr. Carter was denied fair proce ss and a meaning ful opportunity to participate in his claim, and this matter should be rema nded to now provide that proce ss and opportunity

. See Haney

v. Nicholson , 20 Vet.App. 301 , 3 0 5 (2 0 0 6 ) (Secr etar y "is require d to provide fair proce ss in the adjudication of claims" (citing Austin v. Br o w n , 6 Vet.App. 547 (1994)) ); Thurber v. Brown , 5 Vet.App. 119, 122-26 (1993) (noting gen er al principles of fair proce ss and stating that "V A' s nonadver sarial claims sy stem is predic ated upon a structure which provid es fo r n otice and an opportunity to be hear d at virtually ever y step in the proce ss") ; see also W agner v. United States , 365 F.3d 1358, 1365 (F ed. Cir. 2004) (" Where the e ffe ct of a n err or on the outcome of a proce eding is unquantifiable, howeve r, we will not speculate as to what the outcome might have been had the err or not occur red." ); Arneson v. Shinseki , 24 Vet.App. 379, 389 (2011) (findin g prejudice when err or "c ould have altere d" the Boa rd' s deter minations); Ove rton v. Nicholson , 20 Vet.App. 427, 435, 444 (2006) (any err or depriving a claimant of "a meaning ful opportunity to participate eff ectively in the proce ssing of h i s o r her claim .

. . must be considered prejudicial" and remanding wher e claimant was not able to meaning fully participate in the adjudication of his claim).

19