Citation Nr: 18141171 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 15-38 477 DATE: October 9, 2018 ORDER Entitlement to service connection for a bilateral hip disability is denied. The request to reopen a claim of entitlement to service connection for a right knee disability is granted. The request to reopen a claim of entitlement to service connection for a left wrist disability is granted. The request to reopen a claim of entitlement to service connection for a lumbar spine disability is granted. REMANDED The underlying claim of entitlement to service connection for a right knee disability is remanded. The underlying claim of entitlement to service connection for a left wrist disability is remanded. The underlying claim of entitlement to service connection for a lumbar spine disability is remanded. Entitlement to a rating in excess of 30 percent for left knee degenerative joint disease status post left knee replacement is remanded. Entitlement to a total rating based on individual unemployability (TDIU) due to service-connected disability is remanded. Whether there was clear and unmistakable error (CUE) in a January 2009 rating decision that denied entitlement to a left wrist disability is remanded. Whether there was clear and unmistakable error (CUE) in a January 2009 rating decision that determined that new and material evidence had not been received to reopen a claim of entitlement to service connection for a right knee disability is remanded. Whether there was clear and unmistakable error (CUE) in a January 2009 rating decision that determined that new and material evidence had not been received to reopen a claim of entitlement to service connection for a lumbar spine disability is remanded. FINDINGS OF FACT 1. The Veteran’s claimed bilateral hip disability is not causally or etiologically related to his active service nor was a bilateral hip disability caused or aggravated by a service-connected disability. 2. An unappealed February 2005 rating decision denied the Veteran’s claim of entitlement to service connection for a right knee disability; evidence obtained since that time raises a reasonable possibility of substantiating the claim. 3. An unappealed February 2005 rating decision denied the Veteran’s claim of entitlement to service connection for a left wrist disability; evidence obtained since that time raises a reasonable possibility of substantiating the claim. 4. An unappealed February 2005 rating decision denied the Veteran’s claim of entitlement to service connection for a lumbar spine disability; evidence obtained since that time raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral hip disability have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2018). 2. New and material evidence has been received since the February 2005 denial of service connection a right knee disability, and that claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 3. New and material evidence has been received since the February 2005 denial of service connection for a left wrist disability, and that claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 4. New and material evidence has been received since the February 2005 denial of service connection for a lumbar spine disability, and that claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1973 to August 1975. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the medical evidence associated with the Veteran’s increased rating claim for a left knee disability indicates that the Veteran may be unemployable due to his left knee disability. This evidence is sufficient to raise the issue of entitlement to a TDIU. See Roberson v. Principi, 251 F.3d 1378, 1384 (2001); Rice v. Shinseki, 22 Vet. App. 447 (2009). Service Connection The Veteran contends that he has a bilateral hip disability which was caused by his service-connected left knee disability. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Establishing service connection requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be granted for certain chronic diseases, including arthritis, when such disability is manifested to a degree of 10 percent or more within one year of discharge from service. See 38 U.S.C. § 1101, 1112, 1133; 38 C.F.R. §§ 3.307, 3.309. When chronic diseases are at issue, the second and third elements for service connection may alternatively be established. A review of the Veteran’s service treatment reports does not reflect any complaints, findings, or treatment for a bilateral hip disability. Clinical evaluation of the lower extremities was normal at the Veteran’s August 1975 separation examination. In an April 2010 statement, the Veteran’s treating chiropractor, D. Ellyson, D.C., indicated that the Veteran has a diagnosis of moderate to severe osteoarthritis and degenerative disc disease in the back and hips which was present because of improper lifting. Dr. Ellyson indicated that because of the turmoil with the Veteran’s knees, his hips and low back have taken a toll and are in bad shape. He noted that the Veteran cannot bend from his knees properly and put weight on the anterior body of the vertebrae and disc and broke his back in five places from lifting heavy objects in a bent over fashion. In a May 2010 statement, Dr. Ellyson stated that the Veteran’s ilio femoral joints (hip sockets) were in terrible shape because he could not bend at the knees and had to improperly bend at the waist which likely caused the anterior aspect of thoracic vertebrae and lumbar vertebrae to be compressed. He reported that his problems started with the knees, went to the hips, and then to the low back. Dr. Ellyson stated that each successive joint had to make up for the lack of the other’s integrity. At a July 2010 VA examination, the examiner reviewed the claims file, interviewed the Veteran, and conducted a clinical evaluation of the Veteran. The Veteran reported that he had been suffering from bilateral hip pain, right worse than left, for thirty years. He related his hip pain to alterations in his posture, gait, and lifting techniques, because of problems with both knees. The examiner noted that the Veteran’s reported “hip pain” referred to pain across the low back with radiation into the upper buttock areas. There was no trochanteric or groin pain. The examiner noted that the Veteran used a cane intermittently and wore knee braces. X-rays of the hips revealed no evidence of hip arthritis or other hip pathology radiographically. Following a review of the claims file, interview with the Veteran, and clinical evaluation, the examiner opined that the Veteran’s bilateral hip condition was less likely than not the result of the service-connected left knee condition. The examiner’s rationale was that there was no evidence of any hip arthritis that could be caused by the Veteran’s knee arthritis and arthroplasty. The examiner noted that the hip pain was related to the degenerative joint and disc disease of the lumbar spine. In considering the evidence of record and the applicable laws and regulations, the Board concludes that the Veteran is not entitled to service connection for a bilateral hip disability. As an initial matter, the Board notes that, with regard to the claim for service connection for a bilateral hip disability on a direct basis, the evidence does not reflect, nor has the Veteran contended, that his claimed bilateral hip disability was incurred in or caused by his active duty service. The Veteran has not argued to the contrary. Similarly, arthritis was not diagnosed within one year of the Veteran’s separation from service. Consequently, service connection is not warranted on a direct or presumptive basis. The Board will now turn to the discussion of secondary service connection. Of note, the Veteran contends that the claimed bilateral hip disability was caused by his service-connected left knee disability. In this case, the VA examiner’s opinion is the most probative evidence of record. That opinion indicated that the Veteran’s claimed bilateral hip disability was less likely as not the result of the service-connected left knee disability. The examiner linked the Veteran’s hip complaints to low back problems. While the Veteran’s chiropractor indicated that the Veteran’s problems started with the knees, went to the hips, and then to the low back and that each successive joint had to make up for the lack of the other’s integrity, he did not specifically provide an opinion linking a bilateral hip disability to the service-connected left knee disability. Moreover, Dr. Ellyson did not include any rationale for the conclusion reached. It is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes probative value to a medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board may disregard a medical opinion that is based on facts provided by a veteran that have been found to be inaccurate or in contradiction with the facts of record. See Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005). A medical opinion based on speculation, without supporting data or other rationale, does not provide the required degree of medical certainty. Bloom v. West, 5 Vet. App. 104, 145 (1999). Consequently, the Board finds that Dr. Ellyson’s statements and opinions lack probative value because they lack specificity and include no rationale for the conclusion reached. In contrast, the VA examiner reviewed the claims file, conducted a physical examination, and included a rationale for the conclusion reached. For these reasons, the Board finds the opinion of the VA examiner to be the most probative opinion of record. Consequently, service connection is not warranted for a bilateral hip disability on a secondary basis. The Veteran contends that his bilateral hip disability was related to his service-connected left knee disability. As a lay person, the Veteran is considered competent to report what comes to him through his senses, but he lacks the medical training and expertise to provide a complex medical opinion such as determining the etiology of a bilateral hip disability. See Layno v. Brown, 6 Vet. App. 465 (1994), Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Here, the lay statements regarding the Veteran’s bilateral hip disability as being related to the service-connected left knee disability is not considered to be competent nexus evidence, as the Veteran is not shown to be medically qualified to provide evidence regarding matters requiring medical expertise, such as an opinion as to etiology. As such, the weight of the competent evidence is against a finding that the Veteran’s bilateral hip disability resulted from his active duty service or was secondary to a to service-connected disability. Therefore, the criteria for service connection have not been met, and the Veteran’s claim is denied. New and Material Evidence A previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. 3.156. Evidence is new if it has not been previously submitted to agency decision makers. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Evidence is material if it, either by itself or considered in conjunction with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be cumulative or redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. The Court interprets the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and views the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” See Shade v. Shinseki, 24 Vet. App. 110 (2010). See service connection regulations above. Right Knee Disability In a September 2010 rating decision, the Veteran’s application to reopen a claim for entitlement to service connection for a right knee disability was not reopened. The Veteran was notified of the decision in September 2010 and he appealed the denial of his claim. The Board notes that the Veteran submitted a claim for the right knee disability in April 2008. The application to reopen a claim for entitlement to service connection for a right knee disability was not reopened in a January 2009 decision. Following receipt of additional evidence, the claim was again considered in a July 2009 rating decision and was again denied. The Veteran was notified of the decision in August 2009. An application to reopen a claim for entitlement to service connection for a right knee disability was once again submitted in March 2010. However, because the July 2009 decision was not final (i.e., the one year period for submission of a notice of disagreement had not expired), that decision was not final. 38 C.F.R. § 20.302. An unappealed February 2005 rating decision originally denied the Veteran’s claim for service connection for a right knee disability. The Veteran did not perfect an appeal of that decision. That decision represents the last final denial of the claim. 38 C.F.R. § 20.1103. In the February 2005 rating decision, the RO concluded that the evidence did not show that the Veteran’s right knee disability was present during service or was otherwise related to service. Since the claim was denied, evidence in the form of VA and private treatment reports, VA examinations reports, and lay statements were submitted. The private treatment reports include an opinion from Dr. Ellyson dated in April 2010. Dr. Ellyson indicated that the Veteran’s [service-connected] left knee was injured during service and the right knee had to put up with a lot of stress and compensate for the left knee weakness. The Board concludes that the newly submitted evidence is material. As such, the claim is reopened. The underlying claim of service connection for a right knee disability will be addressed in the remand section below. Left Wrist Disability In a September 2010 rating decision, the Veteran’s application to reopen a claim for entitlement to service connection for a left wrist disability was not reopened. The Veteran was notified of the decision in September 2010 and he appealed the denial of his claim. The Board notes that the Veteran submitted a claim for the left wrist disability in April 2008. The application to reopen a claim for entitlement to service connection for a left wrist disability was not reopened in a January 2009 decision. Following receipt of additional evidence, the claim was again considered in a July 2009 rating decision and was again denied. The Veteran was notified of the decision in August 2009. An application to reopen a claim for entitlement to service connection for a left wrist disability was once again submitted in March 2010. However, because the July 2009 decision was not final (i.e., the one year period for submission of a notice of disagreement had not expired), that decision was not final. 38 C.F.R. § 20.302. An unappealed February 2005 rating decision originally denied the Veteran’s claim for service connection for a left wrist disability. The Veteran did not perfect an appeal of that decision. That decision represents the last final denial of the claim. 38 C.F.R. § 20.1103. In the February 2005 rating decision, the RO concluded that the evidence did not show that the Veteran’s left wrist disability was present during service or was otherwise related to service. Since the claim was denied, evidence in the form of VA and private treatment reports, VA examinations reports, and lay statements were submitted. The private treatment reports include a January 2009 statement from D. Rickertsen, M.D., which indicates that the Veteran’s left wrist was related to the right wrist injury from the same incident. An April 2010 opinion from Dr. Ellyson indicated that the Veteran’s wrists have suffered since service due to crab walks. The Board concludes that the newly submitted evidence is material. As such, the claim is reopened. The underlying claim of service connection for a left wrist disability will be addressed in the remand section below. Lumbar Spine Disability In a September 2010 rating decision, the Veteran’s application to reopen a claim for entitlement to service connection for a lumbar spine disability was not reopened. The Veteran was notified of the decision in September 2010 and he appealed the denial of his claim. The Board notes that the Veteran submitted a claim for a lumbar spine disability in April 2008. The application to reopen a claim for entitlement to service connection for a lumbar spine disability was not reopened in a January 2009 decision. Following receipt of additional evidence, the claim was again considered in a July 2009 rating decision and was again denied. The Veteran was notified of the decision in August 2009. An application to reopen a claim for entitlement to service connection for a lumbar spine disability was once again submitted in March 2010. However, because the July 2009 decision was not final (i.e., the one year period for submission of a notice of disagreement had not expired), that decision was not final. 38 C.F.R. § 20.302. An unappealed February 2005 rating decision originally denied the Veteran’s claim for service connection for a lumbar spine disability. The Veteran did not perfect an appeal of that decision. That decision represents the last final denial of the claim. 38 C.F.R. § 20.1103. In the February 2005 rating decision, the RO concluded that the evidence did not show that the Veteran’s lumbar spine disability was present during service or was otherwise related to service. Since the claim was denied, evidence in the form of VA and private treatment reports, VA examinations reports, and lay statements were submitted. The private treatment reports include a November 2008 statement from Dr. Rickertsen, which indicates that the Veteran’s back pain was related to the deterioration of his knees. He also stated that the degeneration of the lumbar discs was related to the Veteran’s service. An April 2010 opinion from Dr. Ellyson indicated that the Veteran’s knees took a toll on his back. The Board concludes that the newly submitted evidence is material. As such, the claim is reopened. The underlying claim of service connection for a lumbar spine disability will be addressed in the remand section below. Duty to Assist There is no indication in this record of a failure to notify. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). Pursuant to the duty to assist, a VA examination in this case has been undertaken with regard to the bilateral hip disability. Regarding records, VA must obtain “records of relevant medical treatment or examination” at VA facilities. 38 U.S.C. § 5103A(c)(2). All records pertaining to the condition at issue are presumptively relevant. See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In addition, where the Veteran “sufficiently identifies” other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159(c)(3)). In this case, the Veteran has indicated no such records exist and all pertinent records have been obtained. REASONS FOR REMAND A review of the claims file reflects that a remand is necessary before a decision on the remaining claims can be reached. Service Connection – Right Knee, Left Wrist, and Lumbar Spine In service connection claims, VA must provide a VA medical examination where there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or a service-connected disability; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim. 38 C.F.R. § 3.159(c) (2018); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran has not been afforded VA examinations for the claims for the right knee and left wrist disabilities. VA examinations should be obtained in order to ascertain the etiology of the claimed right knee and left wrist disabilities. With regard to the lumbar spine disability, the Veteran was afforded a VA examination in August 2010. The examiner diagnosed the Veteran with degenerative disc and degenerative joint disease of the lumbar spine and indicated that there was no objective evidence that the lumbar spine condition is secondary to the left knee disability. As such, the examiner did not use the correct standard in rendering the opinion nor did he provide any rationale to support the opinion that was proffered. If VA undertakes the effort to provide the Veteran with a medical examination, it must ensure that the examination is an adequate one. Barr v. Nicholson, 21 Vet. App. 303 (2007). Consequently, the Veteran should be afforded another examination. Increased Rating for Left Knee and TDIU The Veteran was last afforded a VA examination for his left knee disability in April 2010, more than eight years ago. In his substantive appeal, VA Form 9, dated in March 2014, the Veteran indicated that his left knee pain was constant and to a high level. Where there is evidence that a service-connected disability has worsened since the last examination, a new examination may be required to evaluate the current degree of impairment, particularly if there is no additional medical evidence that addresses the level of impairment of the disability since the previous examination. Snuffer v. Gober, 10 Vet. App. 400 (1997). In order to properly adjudicate the increased rating claim, an examination should be obtained to determine the current nature and severity of the service-connected left knee disability. Additionally, with respect to the Veteran’s claim for an increased rating for a left knee disability, the Board notes that in Correia v. McDonald, 28 Vet. App. 158 (2016) the United States Court of Appeals for Veterans Claims (Court) held that adequate examination reports must include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. The Board finds that the VA examination of record is inadequate because they do not include complete findings as to the Veteran’s functional impairment due to pain on active and passive motion, and during weight-bearing and nonweight-bearing. Furthermore, recent Court precedent, citing to a VA clinician’s guide, appears to require in cases such as this, that when evaluating impairment from a given disability, the VA examiner is to estimate additional range of motion loss during flare-ups after eliciting appropriate information from the Veteran, and considering all the information of record, or explain why he or she could not do so. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). Accordingly, the VA examination should include such findings and properly assesses the current level of the Veteran’s service-connected left knee disability. The Board also notes that the Veteran was not provided appropriate notice with respect to the claim for a TDIU. The Veteran should be provided with notice and a VA Form 21-8940. Pursuant to Rice, no formal claim of TDIU is required. However, as the claim requires additional development, on remand, the AOJ should provide the Veteran with a VA Form 21-8940 if he wishes to submit it in support of his claim for TDIU. The TDIU issue is “inextricably intertwined” with the resolution of the service connection claims for the right knee, left wrist, and lumbar spine and the increased rating claim for a left knee disability, therefore, the AOJ must reconsider these claims prior to adjudication of the Veteran’s TDIU claim by the Board. See Harris v. Derwinski, 1 Vet. App. 180 (1991). CUE – Right Knee, Left Wrist, and Lumbar Spine The Board notes that in a September 2010 rating decision, the RO determined that there was not CUE in a January 2009 rating decision with regard to the denial of service connection for the left wrist, and whether new and material evidence had been received to reopen claims for service connection for the right knee and lumbar spine disabilities. In a VA Form 21-4138 dated in March 2011, the Veteran expressed disagreement with the determination that there was not CUE in the January 2009 rating decision with regard to the denial of service connection for the left wrist, and whether new and material evidence had been received to reopen claims for service connection for the right knee and lumbar spine disabilities. When there has been an initial AOJ adjudication of a claim and a notice of disagreement as to its denial, the claimant is entitled to a statement of the case (SOC). See 38 C.F.R. § 19.26 (2018). Thus, remand for issuance of a SOC on these issues is necessary. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). However, these issues will be returned to the Board after issuance of the SOC only if perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). The matters are REMANDED for the following action: 1. Send the Veteran a TDIU claim form (VA Form 21-8940) and a duty-to-assist letter notifying him how to substantiate a TDIU claim pursuant to 38 C.F.R. § 3.159. 2. Schedule the Veteran for a VA examination with an appropriate examiner to determine the etiology of the claimed right knee, left wrist, and lumbar spine disabilities. The claims file must be made available to and reviewed by the examiner prior to the examination. All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the report. The examiner should thereafter provide the following opinions: Is it at least as likely as not (50 percent probability or more) that any current or recent disability of the right knee, left wrist, and lumbar spine: (a) had its onset during active service; or, is otherwise related to any in-service disease, event, or injury. (b) with regard to the right knee and lumbar spine, was a right knee disability or a lumbar spine disability caused or aggravated by a service-connected left knee disability. (c) with regard to the right wrist disability, was a left wrist disability caused or aggravated by the service-connected right wrist disability. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any opinion. A complete rationale for all opinions expressed must be provided. If any opinion cannot be provided without resorting to speculation or remote possibility, the examiner should indicate why that is so. 3. Schedule the Veteran for a VA examination with an appropriate examiner to determine the current severity of his service-connected left knee condition. The claims file must be made available to and reviewed by the examiner prior to the examination. All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the report. The examiner should conduct range of motion testing of the bilateral knees (expressed in degrees) in active motion, passive motion, and (where appropriate) weight-bearing and nonweight-bearing settings. The examiner should render specific findings as to whether there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination. If pain on motion is observed, the examiner should indicate the point at which pain begins (expressed in degrees). In addition, the examiner should indicate whether, and to what extent, the Veteran experiences likely functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use. To the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. If the examination does not take place during a flare-up or after repeated use over time, the examiner should attempt to offer an estimate derived from information procured from relevant sources, including the Veteran’s lay statements. An examination that fails to attempt to ascertain adequate information from relevant sources regarding frequency, duration, characteristics, severity, or functional loss during flare-ups or repeated use over time will be considered inadequate. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). If an opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. A statement of the case, containing all applicable laws and regulations, on the issues of whether there was CUE in the January 2009 rating decision with regard to the right knee, left wrist, and lumbar spine disabilities must be issued, and the Veteran should be advised of the time period in which to perfect his appeal. Only if the Veteran’s appeal as to these issues is perfected within the applicable time period should these issues be returned to the Board for appellate review. The RO/AMC should not return the claims file to the Board until after either (1) the Veteran perfects his appeal as to whether there was CUE in the January 2009 rating decision with regard to the claim foe service connection for a left wrist disability and whether new and material evidence had been received to reopen claims for service connection for the right knee and lumbar spine disabilities, or (2) the time period for doing so expires, whichever occurs first. (Continued on the next page)   5. Then, readjudicate the issues on appeal. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Cryan, Counsel