Citation Nr: 1807995 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 12-13 149 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Whether new and material evidence has been submitted to reopen a previously denied claim of entitlement to service-connection for a right upper extremity disability, previously characterized separately as right arm and right shoulder disabilities. 2. Whether new and material evidence has been submitted to reopen a previously denied claim of entitlement to service connection for a left foot disability. 3. Whether new and material evidence has been submitted to reopen a previously denied claim of entitlement to service connection for a left knee disability. 4. Entitlement to service-connection a for left thigh disability 5. Entitlement to service-connection for a right wrist disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Kutrolli, Associate Counsel INTRODUCTION The Veteran had active duty training for service (ACDUTRA) from August 1986 to February 1987, and from July 25, 1987 to August 8, 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The issue of entitlement to service-connection for a left foot disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran did not submit a Substantive Appeal, VA Form 9, following a February 2009 Statement of the Case (SOC) that declined to reopen previously denied service-connection claims for left foot and right shoulder disabilities, and denied service-connection for right arm and left knee disabilities; thus, the March 2008 rating decision became final. 2. Evidence submitted since the March 2008 rating decision is cumulative or redundant of evidence already of record, and does not raise a reasonable possibility of substantiating the service-connection claim for a right upper extremity disability. 3. Evidence submitted since the March 2008 rating decision was not previously considered by the VA, is not cumulative or redundant of evidence already of record, relates to an unestablished fact, and raises a reasonable possibility of substantiating the service-connection claim for a left foot disability. 4. Evidence submitted since the March 2008 rating decision is cumulative or redundant of evidence already of record, and does not raise a reasonable possibility of substantiating the service-connection claim for a left knee disability. 5. The Veteran does not have a current left thigh disability. 6. The Veteran's right wrist disability was neither incurred in, nor is related to service. CONCLUSIONS OF LAW 1. New and material evidence was not submitted to reopen the claim of entitlement to service-connection for a right upper extremity disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 2. New and material evidence was submitted to reopen the claim of entitlement to service-connection for a left foot disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. New and material evidence was not submitted to reopen the claim of entitlement to service-connection for a left knee disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 4. The criteria for establishing entitlement to service-connection for a left thigh disability have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 5. The criteria for establishing entitlement to service-connection for a right wrist disability have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist In this case, neither the appellant nor her representative has raised any issues with the duty to notify or duty to assist. When an appellant fails to raise procedural arguments, the Board is not required to search the record and address them. Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. New and Material Evidence Governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. Rating actions from which an appeal is not timely perfected become final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. In general, Board decisions which are unappealed become final. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C.A. § 5108. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). New evidence means existing evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has emphasized that the final sentence of 38 C.F.R. § 3.156(a), especially the phrase "raise[s] a reasonable possibility of substantiating the claim," does not create a third element or separate determination in the reopening process, but is a component of the question of what is new and material evidence. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (noting that 38 U.S.C.A. § 5108 requires only new and material evidence to reopen). Shade further holds that 38 C.F.R. § 3.156 "suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim[.]" Id. Further, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, and regulations do not require new and material evidence as to each previously unproven element of a claim. Id. Rather, the Board should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. Id., see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Court has elaborated on what constitutes "new and material evidence." New evidence is not that which is cumulative of other evidence already present in the record. In determining whether new and material evidence has been submitted, the Board must consider the specific reasons for the prior denial. Evans v. Brown, 9 Vet. App 273, 283 (1996). See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans, 9 Vet. App. at 273. For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). A. Right Upper Extremity Disability The Veteran was previously denied service-connection for a right shoulder disability in August 1993, September 1993, October 1993, and November 1993 because the record did not show a diagnosis of a right shoulder disability. In May 1998 and February 2002, the claim was again denied because the Veteran did not submit any new evidence after seeking to reopen the claim. In March 2008, the claim was denied because, although there was evidence of treatment for a right shoulder disability, there was no link to service. The Veteran was also denied service-connection for a right arm disability in the same rating decision. Service-connection for a right arm disability was denied because there was no evidence of a current disability that was linked to service. A Substantive Appeal was not received after a Statement of the Case was issued in February 2009. Therefore, the March 2008 decision became final. At the time of the March 2008 rating decision, the Veteran's contention that she suffers from a right arm and shoulder condition that is related to a fall during ACDUTRA was known. Her service records reveal she fell in July 1987 and injured her right shoulder. She had complaints of right shoulder pain at the time. The diagnosis was contusion/strain to the right shoulder with no diagnosis for the right arm. X-rays taken that day were normal. X-rays on August 11, 1987, were also normal. The RO also noted the VA examination on August 3, 1993. The exam showed there was no swelling or deformity of the right shoulder. There was good stability with full range of motion. The diagnosis was history of contusion of the right shoulder in July 1987, and twice in civilian life. No diagnosis of a current right shoulder disability was provided. In addition, the examiner noted full range of motion of the right elbow, arm, hand, and wrists. No diagnosis of a right arm disability was provided. Also, of record were treatment records from Saint Joseph's Hospital dated September 1987. Those records showed that the Veteran had underwent physical therapy for pain in her shoulder, but did not reflect any right shoulder diagnosis. June 1993 medical records from Mount Sinai and the Diagnostic Imaging Center also did not show a right shoulder disability. Further, EMG testing showed that the right median nerve motor and sensory conduction measurements were well within normal limits. There was normal electrical continuity of the right ulnar nerve, and there was no definite neurogenic or myopathic disturbance of muscle function. Since the March 2008 rating decision, the record contains additional evidence including, in relevant part, a magnetic resonance imaging (MRI) from Saint Joseph's Hospital dated November 28, 1997, as well as a MRI from the 35th Street Clinic in Milwaukee dated February 19, 2009. The November 1997 MRI shows moderate cortical irregularity and a small amount of subcortical edema adjacent to the greater tuberosity, and minor impingement on the supraspinatus tendon at the right acromioclavicular joint. The February 2009 MRI shows a rotator cuff tear in the right shoulder, degenerative changes in the humeral head, and degenerative joint disease. While these records are new, they do not express any opinion as to the etiology of the conditions. Therefore, they do not relate to an unestablished fact necessary to substantiate the claim. Accordingly, the claim to reopen the previously denied service connection claim for an upper extremity disability is again denied. B. Left Foot Disability The Veteran was first denied service-connection for a left foot disability in August 1993. Service-connection was denied because the August 1993 VA examination (VAX) did not show a left foot disability, with the exception of bilateral flat feet, which was found to be congenital in nature. The Veteran did not submit a timely notice of disagreement with that decision; thus, the decision became final. Reopening was again denied in May 1998 and February 2002 for failing to submit new evidence. In March 2008, a claim to reopen the left foot disability was again denied due to the lack of evidence of a disease or disability that was linked to service. A Substantive Appeal was not received. Therefore, the March 2008 decision became final. Since then, the record contains new evidence not previously considered, including additional lay statements, RO hearing testimony, and additional VA and private medical records. The lay statements and RO hearing testimony are redundant of other statements previously considered, and thus, are not material. However, the record also contains new evidence from Saint Joseph's Hospital which is material. That evidence shows the Veteran sought treatment for left foot pain in March 1991 after being involved in a bus accident a month prior. She indicated the pain began after the accident. The Veteran was diagnosed with degenerative joint disease of the feet. The diagnosis is inconsistent with the August 1993 VAX which did not show a left foot disability, except for bilateral flat feet that was found to be congenital. The March 1991 examiner did not render an opinion as to the etiology of the degenerative changes in the left foot, and the August 2010 VA examiner did not appear to consider the March 1991 treatment record in rendering an opinion as to the etiology of the Veteran's current osteoarthritis in the left foot. Given the temporal proximity of the March 1991 diagnosis to the Veteran's service, it is possible that the degenerative changes noted in the March1991 report are related to the fall in July 1987. For these reasons, the claim is reopened. See Remand Directives (below). C. Left Knee Disability Service-connection for a left knee disability was originally denied in March 2008. Service-connection was denied due to the lack of evidence showing treatment or diagnosis of a left knee condition in the service records. The March 2008 rating decision became final when the Veteran failed to timely submit a Substantive Appeal. Since then, additional relevant evidence has been added to the record, including lay statements and medical reports from the 35th Street Clinic, Saint Joseph's Hospital, and the VAX in August 2010. The lay statements made in September 2010 did not address the left knee, nor did the statements during the hearing with the decision review officer (DRO); thus, they cannot be new and material. Next, new medical records from Saint Joseph's show treatment for the left knee, but the Veteran reported that her left knee pain started after she was in a motor vehicle accident. More specifically, she was a passenger in a bus when it collided with a car and causing injuries to her body. This goes against the claim; thus, it is not new and material. Finally, a February 2009 MRI from the 35th Street Clinic shows left knee diagnoses, but there is no link to the Veteran's military service. Thus, it too is immaterial. For these reasons, the Board finds new and material evidence has not been submitted to reopen the previous denial of service-connection for a left knee disability. III. Service-connection The Veteran is also seeking service-connection for right wrist and left thigh disabilities. However, as outlined below, the preponderance of the evidence demonstrates that service connection is not warranted for either of these disabilities. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if preexisting such service, was aggravated thereby. 38 U.S.C.A. 1110, 1131 (West 2015); 38 C.F.R. § 3.303(a) (2017). In general, service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993); see also Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). The Board must assess the credibility and weight of all of the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert, 1 Vet App. at 49. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). Where a veteran has served for 90 days or more during a period of war, or during peacetime service after January 1, 1947, and a chronic disorder, such as arthritis, becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309 (2017). In order to show a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b) (2017). A recent decision of the United States Court of Appeals for the Federal Circuit (Federal Circuit Court), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue. A. Left Thigh Disability The Veteran contends that she is entitled to service connection for a left thigh disability. However, as outlined below, the preponderance of the evidence demonstrates that service connection for a disability of the left thigh is not warranted. The Veteran's service treatment records do not reflect that she suffers from a disability of the left thigh that manifested during, or as a result of, active military service. In April 1968 she was seen with complaints involving the left hip. There is no evidence of a chronic disability of the left thigh during active military service or within one year of separation. Likewise, there is no evidence of a current disability of the lift thigh that manifested during, or as a result of, active military service. A critical element of service-connection is evidence of a current disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (holding that there cannot be a valid claim without a current disability). In this case, there is no evidence of a current left thigh disability. The Board considered VA and private medical records which do not show a diagnosis of a left thigh disability. The Board also considered the August 2010 VA examination which found no evidence of a left thigh disability. Although the Veteran has reported left thigh pain, pain alone, without a diagnosed or identifiable malady or condition, does not constitute a disability for which service-connection may be granted. E.g., Sanchez-Benitez v. Brown, 13 Vet. App. 282, 285 (1999). Because there is no evidence of a current left thigh disability, the claim must be denied. Brammer, 3 Vet. App. at 225. In the present case, there is no evidence of a chronic disability during military service or within one year of separation from active duty. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The claim of entitlement to service connection for a left thigh disability must be denied. B. Right Wrist Disability The Veteran contends that her right wrist disability is related to the July 1987 fall during ACDUTRA. However, as outlined below, the preponderance of the evidence is against her claim. The Veteran's service treatment records are silent for a right wrist injury or disease. In this regard, after her fall in July 1987, she complained and sought treatment for back, shoulder, and left foot pain, but not right wrist pain. Her statements to doctors at or near the time of injury are more probative than statements made later. See Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (holding that the Board may consider may factors when assessing the credibility and weight of lay evidence, including statements made during treatment, self-interest or bias, internal consistency, and consistency with other evidence); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (finding statements made to physicians for purposes of diagnosis and treatment are more probative because the declarant has a strong motive to tell the truth in order to receive proper care); Curry v. Brown, 7 Vet. App. 59, 68 (1994) (finding contemporaneous evidence was more probative than history reported by claimant). Likewise, the evidence of record does not show that the Veteran suffers from a current disability that manifested during, or within one year, or her separation from active service. According to an August 2010 VA medical examination, the examiner opined that the right wrist disability is unrelated to service. The August 2010 VAX revealed that the Veteran cannot move her right wrist. On physical examination of the right wrist, there was no swelling or inflammation and no evidence of fracture or dislocation of any bones. Passive range of motion testing was normal, even after repetition, and passive range of motion of her right hand or fingers did not cause any pain or discomfort. The examiner diagnosed the Veteran with right sided hemiparesis and opined that it was unrelated to service. The examiner noted that the Veteran was involved in at least two motor vehicle accidents between 1991 and 1995. In the first accident, she was thrown during a collision between the bus she was riding in and another vehicle. During the second, she was in a car and hit the dashboard. The Veteran also reported receiving extensive physical therapy for her right shoulder between 1994 and 1995. The examiner opined that the right sided hemiparesis was due to a traumatic brain injury or stroke sustained sometime between 1993 and 1995. Although the Veteran denied the same, the examiner found evidence of hyperreflexia in the biceps and triceps tendon which indicated a stroke or TBI. The examiner concluded that it would be mere speculation to find that the 1987 fall aggravated the right sided hemiparesis. The examiner thoroughly reviewed the claims file, conducted a physical examination of the Veteran, and considered the Veteran's lay statements and reported medical history before arriving at his medical opinion. Therefore, the August 2010 medical opinion is adequate for adjudication purposes and is entitled to more probative weight than the Veteran's lay etiological opinions. Finally, the Board recognizes that the Veteran believes she suffers from a disability of the left thigh that manifested as a result of military service. However, the record does not contain any evidence to suggest that the Veteran has the requisite training or expertise to offer a medical opinion as complex as linking a current medical condition to military service. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). For these reasons, the Board finds the preponderance of the evidence is against a finding that the right wrist condition was incurred in or is related to service. Thus, the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Accordingly, the claim for entitlement to service-connection for a right wrist disability is denied. ORDER New and material evidence was not received to reopen the service-connection claim for a right upper extremity disability. New and material evidence was received to reopen the service-connection claim for a left foot disability. New and material evidence was not received to reopen the service-connection claim for a left knee disability. Entitlement to service-connection for a left thigh disability is denied. Entitlement to service-connection for a right wrist disability is denied. REMAND As previously discussed, new records from Saint Joseph's Hospital show the Veteran sought treatment for left foot pain in March 1991 after being involved in a bus accident a month prior. She indicated the pain began after the accident. The Veteran was diagnosed with degenerative joint disease of the feet, although the examiner did not render an opinion as to the etiology of the degenerative changes in the left foot. The 1991 diagnosis is inconsistent with the subsequent August 1993 VAX which did not show a left foot disability, except for bilateral flat feet that was found to be congenital. Furthermore, the record indicates the Veteran currently has osteoarthritis in her left foot. See August 2010 VAX. While the August 2010 examiner opined that it was naturally occurring, he did not appear to consider the March 1991 treatment record showing degenerative changes in the left foot. Given the temporal proximity of the March 1991 diagnosis to the Veteran's service, it is possible that the degenerative changes noted in the March1991 report are related to the fall in July 1987. Thus, a new examination and medical opinion is warranted to assess the nature and etiology of the Veteran's current left foot disability. Accordingly, the case is REMANDED for the following action: 1. Obtain a new examination and medical opinion from a qualified physician to assess the nature and etiology of any left foot disability. The examiner should review the claims file and note that review in the report. The examiner must set forth supporting facts and must provide a thorough rationale for all opinions expressed. If any of the requested opinions cannot be provided without resorting to speculation, the examiner should explain why an opinion cannot be provided (e.g., lack of sufficient information, limits of medical knowledge, etc.). The examiner must respond to the following question: For any diagnosed left foot condition, is it at least as likely as not (50% probability or greater) that it was caused by, or is related to the in-service fall on July 31, 1987? The examiner is to consider and discuss the following: (i) the Veteran's service treatment records; (ii) the VAX on August 3, 1983; (iii) medical records from Saint Joseph's Hospital; (iv) and the VA examination on August 20, 2010. 2. Then, readjudicate the claim. If the decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for a response. After the Veteran is given an opportunity to respond, the case should be returned to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ____________________________________________ B. MULLINS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand portion is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017). Department of Veterans Affairs