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9.3. Reasons and Bases of BVA Determinations
The Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision, as well as to facilitate review in the Court. 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet. App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). A remand is the appropriate remedy "where the Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate." Tucker v. West, 11 Vet. App. 369, 374 (1998).
It is the Board's duty to analyze and discuss evidence supporting its conclusion and to provide reasons for its rejection of evidence favorable to the claimant. See Martin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144, 156 (1991) ("'[L]itigating positions' are not entitled to deference when they are merely appellate counsel's 'post hoc rationalizations' for agency action, advanced for the first time in the reviewing court."); see also Thompson v. Gober, 14 Vet. App. 187, 188 (2000) (Board must provide an adequate statement of reasons or bases "for its rejection of any material evidence favorable to the claimant"). The Board's recitation of the lay and medical evidence in the pages preceding its conclusion is not a sufficient surrogate for an account of the evidence the Board found persuasive or unpersuasive. Dennis v. Nicholson, 21 Vet. App. 18, 22 (2007).
The Court "has long held that merely listing evidence before stating a conclusion does not constitute an adequate statement of reasons or bases." Dennis, 21 Vet. App. at 22 (citing Abernathy v. Principi, 3 Vet. App. 461, 465 (1992)). Though the Board is not required to discuss all evidence in the record, it must address evidence that appears on its face to be relevant, material, and favorable to the appellant's claim. See Thompson v. Gober, 14 Vet. App. 187, 188 (2000) (stating that the Board must provide an adequate statement of reasons or bases "for its rejection of any material evidence favorable to the claimant"); see also Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (finding that the Board is not required to discuss all evidence of record but must discuss relevant evidence); Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991) (stating that the Board must discuss, inter alia, all relevant evidence); Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005) (it is the Board's duty, as factfinder, to determine the credibility and weight to be given to the evidence); Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that the Board is responsible for assessing the credibility and weight of evidence and that the Court may overturn the Board's decision only if it is clearly erroneous).
In its role as factfinder, the Board must first "determin[e] whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc." Buchanan v. Nicholson, 451 F.3d 1331, 1334-37 (Fed. Cir. 2006); Miller v. Derwinski, 3 Vet. App. 201, 204 (1992). In certain situations, lay evidence may be used to diagnose a veteran's medical condition. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (stating that "[l]ay testimony is competent . . . to establish the presence of observable symptomatology and 'may provide sufficient support for a claim of service connection'" (quoting Layno v. Brown, 6 Vet. App. 465, 469 (1994))); Washington v. Nicholson, 21 Vet. App. 191, 195 (2007) (holding that, "[a]s a layperson, an appellant is competent to provide information regarding visible, or otherwise observable, symptoms of disability"). Further, lay evidence may be competent to show continuity of symptomatology under 38 C.F.R. § 3.303(b). See Davidson, 581 F.3d at 1315-16 (rejecting the view that "competent medical evidence is required . . . [when] the determinative issue involves either medical etiology or a medical diagnosis") (citing Jandreau, 492 F.3d at 1376-77); Savage v. Gober, 10 Vet. App. 488, 497 (1997).
When considering lay evidence, the Board should determine whether the veteran's disability is the type of disability for which lay evidence is competent. Jandreau, 492 F.3d at 1377. If the disability is of the type for which lay evidence is competent, the Board must weigh that evidence against the other evidence of record in making its determination regarding the existence of a service connection. See Buchanan, 451 F.3d at 1334-37. An appellant's attorney is "not qualified to provide an explanation of the significance of the clinical evidence." Kern v. Brown, 4 Vet. App. 350, 353 (1993).
It is the Board that must determine in the first instance whether the evidence warrants a particular rating under the diagnostic code. See Hensley v. West, 212 F.3d 1255, 1263 (Fed. Cir. 2000) ("Appellant tribunals are not appropriate fora for initial fact finding."); see 38 U.S.C. § 7104(d)(1) (requiring the Board to provide a written statement of the reasons or bases for its "findings and conclusions on all material issues of fact and law presented on the record"); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990) (holding that the Board's statement of reasons or bases is adequate when it is sufficient to enable a claimant to understand the precise basis for the Board's decision and to facilitate review in this Court); Smallwood v. Brown, 10 Vet. App. 93, 97 (1997) (explaining that the Board's determination of an appropriate schedular disability rating is a finding of fact subject to the "clearly erroneous" standard of review); see also SanchezBenitez v. Principi, 259 F.3d 1356, 1360 (Fed. Cir. 2001) (holding that a Board finding is not clearly erroneous if, after reviewing the record and the parties' briefs, the Court concludes that there was a plausible basis for the Board's finding).
"Part of the Board's consideration of how much weight to assign [a medical opinion] is the foundation upon which the medical opinion is based." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (medical opinion should "support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (it is the Board's duty "to analyze the credibility and probative value of evidence"); Owens v. Brown, 7 Vet. App. 429, 433 (1995) (it is the province of the Board to weigh and assess the evidence of record); see also 38 U.S.C. § 7104(d)(1).
Furthermore, it is the Board, not the medical examiner, that is required to discuss evidence potentially favorable to the appellant. See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008) (a medical opinion need not explicitly discuss every conceivably relevant piece of information to be adequate); see also Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) ("The medical examiner provides a disability evaluation and the rating specialist interprets medical reports in order to match the rating with the disability."), rev'd on other grounds sub nom. Moore v. Shinseki, 55 F.3d 1369 (Fed. Cir. 2009).