Donald Mathews v. Robert A. McDonald

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 15-1787
DONALD MATHEWS, APPELLANT,
V.
ROBERT A. MCDONALD,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Decided October 14, 2016)
Glenn R. Bergmann, of Bethesda, MD, was on the brief for the appellant.
Leigh A. Bradley, General Counsel; Mary Ann Flynn, Chief Counsel; Drew Silow, Acting
Deputy Chief Counsel; and Monique A.S. Allen, all of Washington, D.C., were on the brief for
the appellee.
Before SCHOELEN, PIETSCH, and BARTLEY, Judges.
BARTLEY, Judge: Veteran Donald Mathews appeals through counsel a March 30, 2015,
Board of Veterans' Appeals (Board) decision denying service connection for post-operative residuals
of a neck tumor. Record (R.) at 2-29. This appeal is timely and the Court has jurisdiction to review
the Board decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). This case was referred to a panel
to consider whether the Board may sub silentio incorporate its reasons or bases for a finding made
in a prior remand order into a subsequent Board decision. For the reasons that follow, the Court will
set aside the March 2015 Board decision and remand the matter for further development, if
necessary, and readjudication consistent with this decision.
I. FACTS
Mr. Mathews served on active duty in the U.S. Navy from July 1966 to February 1970,
including service in combat in Vietnam. R. at 832, 951.
In July 2002, Mr. Mathews was referred to a private otolaryngologist, Dr. Ralph Cepero, for
a left neck lesion that a biopsy revealed to be "poorly differentiated carcinoma." R. at 880. The
referring physician noted a "history of exposure to Agent Orange" that "may be related to the
etiology of this malignant lesion," which Dr. Cepero described as "a skin primary." Id. Later that
month, Mr. Mathews underwent another biopsy, which was forwarded to Dr. Lester E. Wold, a
physician in the Mayo Clinic's Division of Anatomic Pathology. R. at 1029; see R. at 1031-32. Dr.
Wold examined the specimen and opined:
I concur entirely with your assessment that the histologic and cytologic features
present in this biopsy are those of a malignant neoplasm. The differential diagnosis,
in my opinion, largely rests between metastatic carcinoma and melanoma. In this
regard, I have done immunostains for a variety of keratins . . . , all of which are
negative. Imunnostains for S100 protein are positive and show nuclear staining. . . .
On balance, I believe it is best to consider this metastatic neoplasm most compatible
with melanoma.
R. at 1029.
The mass on the veteran's neck was resected later in July 2002, R. at 892-93, and sent for
pathologic examination, R. at 897-98. The surgical pathologist, Dr. Kris Challapelli, diagnosed a
"large cell anaplastic pleomorphic malignant tumor, metastatic to skin and subcutaneous tissue,
neck," and stated: "The histological features and the immunohistochemical findings . . . suggest the
possibility of primary of a renal cell carcinoma or thyroid carcinoma. Other rare possibilities include
mesothelioma, synovial or epithelioid sarcoma. Melanoma may be possible but less likely. Further
clinical correlation is requested." R. at 897.
In August 2002, Mr. Mathews visited the West Texas Cancer Center to discuss further
treatment options. R. at 929-30. After reviewing Dr. Wold's report and prior computed tomography
(CT) scans, Dr. T.K. George stated that "[t]he most accurate diagnosis is undifferentiated
malignancy, favoring carcinoma," and proposed a course of chemotherapy. R. at 930. Dr. George
indicated that Mr. Mathews desired a second opinion from a pathologist at the University of Texas's
MD Anderson Cancer Center and agreed to arrange a consultation for the veteran. Id.
2
The next month, Dr. Alberto G. Ayala at the MD Anderson Cancer Center conducted the
requested pathologic examination. R. at 921, 925. Dr. Ayala diagnosed "unclassified malignant
neoplasm" and explained that the tumor was "difficult to classify" due to conflicting
immunohistochemical results. R. at 921. He indicated that a colleague, Dr. Victor Prieto, also
reviewed the histology results and "suspects melanoma, but can[]not go any farther." R. at 925.
In January 2003, Mr. Mathews's primary care physician, Dr. Michael Shelton, opined that
the veteran had "a history of being exposed to Agent Orange while serving in South Vietnam and
it appears that this could be related to the etiology of this malignant lesion from a skin primary." R.
at 920.
In June 2003, Mr. Mathews filed a claim for service connection for neck cancer, among other
conditions. R. at 844-57. In September 2003, a VA regional office (RO) denied the claim because
the evidence did not indicate that he had a type of cancer that VA recognized as presumptively
related to herbicide exposure. R. at 809-13. Mr. Mathews filed a timely Notice of Disagreement as
to that decision, R. at 795-96, and submitted a November 2003 letter from his private treating
oncologist, Dr. Pankaj Khandelwal, explaining that the original pathology report indicated an
anaplastic pleomorphic tumor involving the subcutaneous tissue of the neck and that "[d]ifferential
diagnoses include synovial or epithelioid sarcoma," R. at 773. In December 2003, the RO issued a
Statement of the Case (SOC) continuing to deny the claim. R. at 777-94.
In February 2004, Dr. Wold reviewed documents that Mr. Mathews sent him and opined that
"the most likely primary site for [the] tumor is the upper aerodigestive tract." R. at 763. Dr. Wold
indicated that this primary site "correspond[ed]" to respiratory cancers, such as cancers of the lung,
bronchus, larynx, or trachea, and stated: "Without the identification of the primary tumor[,] it is
difficult to be dogmatic in this regard, but the morphology would fit." Id. Later that month, Dr.
Wold clarified that he believed that the tumor was "an undifferentiated carcinoma." R. at 733. Also
in February 2004, another private physician, Dr. Michael Shelton, submitted a letter indicating that
pathology reports for the left neck tumor had "not established a definitive diagnosis." R. at 727.
Mr. Mathews perfected his appeal to the Board in June 2004, arguing that he should be given
the benefit of the doubt and granted service connection for the postoperative residuals of the left neck
tumor because of the uncertainty as to the type and primary site of his cancer. R. at 755-56.
3
In January 2007, Mr. Mathews asked Dr. Wold if the resected tumor could have been
classified as a granular cell tumor. R. at 581-83. Dr. Wold responded: "Nearly all granular cell
tumors are benign. This tumor, in my opinion, show morphologic features of a malignancy.
Although the immunostains do not exclude the possibility of granular cell tumor, the morphology
does." R. at 581. In response to a follow-up inquiry later that month, Dr. Wold stated:
I am aware of the differential diagnosis of "malignant granular cell tumor." Most of
the tumors which were previously classified as "malignant granular cell tumor" have
now been reclassified as alveolar soft part sarcoma. The tumor I reviewed did not
have the typical crystal[l]ine cytoplasmic structures commonly seen in alveolar soft
part sarcoma. Unfortunately I am left with an unsatisfying diagnosis of "malignant
neoplasm."
R. at 579.
Following a January 2007 Board hearing, R. at 560-73, the Board in May 2007 remanded the
claim for further development. R. at 505-15. The Board noted the "inconclusive opinions regarding
the diagnosis, primary [s]ite, and origins of the malignant tumor" and concluded that remand was
required to "obtain samples of the malignant tumor and to thereafter forward them to a panel of VA
oncologists" to resolve those issues. R. at 509. In the remand instructions, the Board specifically
ordered the Appeals Management Center (AMC) to "make arrangements with an appropriate VA
medical facility for the veteran's claims file and tissue sample to be reviewed by a panel of three
oncologists," who could provide "consensus answers" to the outstanding medical questions in the
case. R. at 510 (emphasis in original).
The AMC subsequently attempted to assemble a panel of three compensation-certified
oncologists within Mr. Mathews's local Veterans Integrated Service Network (VISN) to provide the
ordered opinion, but was informed by the Big Spring, San Antonio, and El Paso VA Health Care
Systems that they could not comply with that request.1 R. at 382. In July 2009, an AMC "coach"
emailed the AMC director to inform him that they were "able to get the private exam report, but not
a sample of the tumor," and that "the VAMCs [(VA medical centers)] in that VISN do not have 1
1
The relevant VISN, the VA Heart of Texas Health Care Network, is comprised of 7 VA health care systems,
5 VAMCs, 19 VA outpatient clinics, 29 community-based outpatient clinics, and 13 Vet Centers. See VISN 17: VA
Heart of Texas Health Care Network, http://www.va.gov/directory/guide/region.asp?ID=1017 (last visited Aug. 25,
2016).
4
oncologist, let alone 3." R. at 381. The coach inquired whether there had been "any word from [the
Board]" regarding the terms of the remand order. Id. Later that month, another AMC employee
asked the coach if the Board member had "amended the remand yet?" R. at 380. The coach
responded: "[I]t does have to be an oncologist, but it doesn't have to be a panel of 3." Id.; see also
R. at 379 (July 2009 AMC email: "We have gotten some adjustment to the . . . Remand from [the
Board]. The exam, review and opinion can be made with one oncologist, rather than a panel of 3
oncologists."). The AMC then reached out to and was rebuked by the Dallas VA Health Care
System. R. at 361.
Ultimately, the AMC assigned the case to a private physician, Dr. Maria Chona Aloba, at the
El Paso Cancer Treatment Center, who provided an opinion in October 2009. R. at 333-34, 346-49.
Dr. Aloba reviewed the claims file and opined that the likely histopathology and pathologic diagnosis
of the resected tumor was undifferentiated carcinoma; it was not likely that the tumor was Hodgkin's
disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, soft tissue
sarcoma, or cancer of the lung, bronchus, larynx, or trachea; it was not likely that the resected tumor
was the primary tumor or was taken from the site of origin; the available evidence did not point
toward a likely site of origin; and, based on that evidence, she could not determine the likelihood that
the tumor was caused or aggravated by military service. R. at 333. The next month, the AMC issued
a Supplemental SOC (SSOC) continuing to deny the claim. R. at 334-45.
In December 2009, Mr. Mathews sent a letter to the AMC director that referenced the AMC's
difficulties finding a VAMC with three oncologists on staff who could provide the requested opinion
and stated: "I found it not hard at all to locate a [VAMC] with staff oncologist on board that in fact,
specializes in head and neck cancers so let me lead you to the [VAMC] in Puget Sound." R. at 314.
Mr. Mathews attached to this letter a printout from VA's website listing oncology staff, which listed
nine medical professionals under "Medical Oncology" or "Otolaryngology." R. at 323.
In December 2011, the Board remanded the claim because it found that (1) VA had not
satisfied its duty to assist because it had not asked the veteran for authorization to release a tissue
sample of the resected tumor; and (2) Dr. Aloba's opinion was inadequate because it did not contain
adequate supporting rationale. R. at 245-56. The Board additionally noted:
5
In October 2009, a single oncologist reviewed the claims file and provided answers
to the Board's questions regarding the likely histopathology, diagnosis, and primary
site or origin of the [v]eteran's resected neck tumor. While only one oncologist
provided these answers and not a panel of three, the oncologist was qualified to
provide such opinions, as the subject matter she addressed was within her area of
expertise. Thus, the [v]eteran was not prejudiced by the opinions in the October
2009 report being made by only one oncologist, rather than a panel of three
oncologists, and the Board's remand instructions in this respect were substantially
complied with.
R. at 249.
Pursuant to that remand order, a new VA medical opinion was obtained in April 2013. R.
at 168-70. A registered nurse, Monica C. Rupp, reviewed the veteran's claims file and opined that
the claimed condition was less likely than not incurred in or caused by service. R. at 168-69. Later
that month, Mr. Mathews challenged the adequacy of that opinion and submitted a medical journal
article about epithelioid sarcoma. R. at 146-54.
The Board remanded the claim again in June 2013, finding that (1) VA had not satisfied its
duty to assist because the AMC had not attempted to obtain a tissue sample of the resected tumor
after receiving Mr. Mathews's authorization to do so; and (2) Ms. Rupp's April opinion was
inadequate because it lacked adequate supporting rationale. R. at 135-42. The AMC attempted to
obtain the tissue sample in December 2013, but was informed that the medical facility would not
release it. R. at 114-16. The AMC was, however, able to obtain hematoxylin and eosin stain2 slides,
which it promised to forward to the Albuquerque VAMC. R. at 114.
In January 2014, Dr. James Lin, a staff physician in the hematology/oncology section at the
Albuquerque VAMC, provided an opinion on Mr. Mathews's cancer. R. at 110-11. After reviewing
the claims file, Dr. Lin opined that, based on the original pathology report, the tumor was not likely
a sarcoma of any kind, including synovial or epithelioid sarcoma, and was most compatible with a
melanoma. R. at 110-11. He stated that, because VA does not list melanoma as a cancer that is
presumptively related to herbicide exposure, it was less likely than not that the veteran's melanoma
was related to service. R. at 110. Dr. Lin further indicated that Dr. Aloba's and Dr. Khandelwal's
2
Hematoxylin and eosin staining is a histological tool used to examine tissues, including to diagnose cancer.
See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1762 (32d ed. 2012).
6
diagnoses were based on preliminary pathology reports and should be disregarded because they are
inconsistent with the final pathological report that indicated that the most likely diagnosis was
malignant melanoma. Id. Dr. Lin also stated that it would be speculative to identify the primary site
of the melanoma because the veteran's primary site had not manifested in the more than 10 years
since the resection and melanoma is "one of the least predictable malignancies in terms of . . . the
site of metastasis." R. at 111.
In June 2014, the Board remanded the claim because the record did not reflect that Dr. Lin
had reviewed the stain slides. R. at 85-91. Dr. Lin provided an addendum opinion in October 2014
in which he clarified that he did not have access to a tissue sample or slides when he wrote the
original opinion. R. at 59. He indicated that the pathology slides had "been reviewed by our
pathologists" at the Albuquerque VAMC and that the diagnosis "from our pathologist is 'metastatic
neoplasm most compatible with melanoma,'" the "same as the original diagnosis from the outside
institution." Id. Dr. Lin stated that he was not amending his opinion as his diagnosis had not been
altered by the pathologic review. Id. He also remarked that a recent paper summarizing a pilot study
of 100 veterans enrolled in the Agent Orange registry at the Washington, DC, VAMC had found that
there was no increase in the incidence of melanoma among those veterans as compared to the general
population. Id. He therefore opined that it was less likely than not that Mr. Mathews's melanoma
was caused by herbicide exposure in Vietnam. Id. The AMC subsequently issued an SSOC
continuing to deny the claim, R. at 40-53, and Mr. Mathews responded by challenging the adequacy
of Dr. Lin's addendum opinion on various grounds, R. at 33-35, 38-39.
In January 2015, the Board issued the decision currently on appeal. R. at 2-29. At the outset,
the Board found that VA had satisfied its duty to assist and that there had been substantial
compliance with the prior remand orders because "the limits of current medical knowledge have been
exhausted" in attempting to diagnose and identify the primary site of the veteran's cancer. R. at 6-8.
The Board then concluded that Mr. Mathews was not entitled to service connection for post-
operative residuals of a neck tumor on either a presumptive or direct basis because the evidence of
record preponderated against finding that he had a disease that VA presumes to be associated with
herbicide exposure or a link between his neck tumor and service. R. at 20-29. This appeal followed.
7
II. ANALYSIS
A. Incorporation of Reasons or Bases from Prior Board Remand
Mr. Mathews argues, inter alia, that the Board provided inadequate reasons or bases for its
finding that the AMC had substantially complied with the terms of the Board's prior remand orders.
Appellant's Brief (Br.) at 27-28. Specifically, he contends that the Board did not adequately explain
why an opinion from a panel of three VA oncologists was no longer necessary to decide his claim,
as specified in the May 2007 Board remand. Id. (citing R. at 509-10). The Secretary responds that
the Board was not required to address that question in its most recent decision because the Board
adequately explained in its December 2011 remand order that the veteran would not be prejudiced
by an opinion by a single oncologist who is competent and qualified to address the matter.
Secretary's Br. at 11, 16 (citing R. at 249). In reply, Mr. Mathews asserts that there is no legal
authority that permits the Board to sub silentio incorporate its reasons or bases from a prior remand
order into a later decision and, even if there were, those reasons or bases were inadequate because
the Board did not explain why the AMC's search for compensation-certified oncologists who could
comprise the requested panel was geographically limited to a single VAMC or VISN. Reply Br. at
7-8.
A remand by the Board confers on the claimant a legal right to compliance with the remand
order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Substantial compliance with the remand order,
not strict compliance, is required. Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v.
West, 13 Vet. App. 141, 147 (1999). As with any finding on a material issue of fact and law
presented on the record, the Board must support its substantial compliance determination with an
adequate statement of reasons or bases that enables the claimant to understand the precise basis for
that finding and facilitates review in this Court. 38 U.S.C. § 7104(d)(1); Wanless v. Shinseki,
23 Vet. App. 143, 151-52 (2009), aff'd, 618 F.3d 1333 (Fed. Cir. 2010); Gilbert v. Derwinski,
1 Vet. App. 49, 52 (1990). To comply with this requirement, the Board must analyze the credibility
and probative value of evidence, account for evidence it finds persuasive or unpersuasive, and
provide reasons for rejecting 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).
8
In May 2007, the Board determined that Mr. Mathews's claim contained issues so medically
complex that it was necessary to assemble a panel of three oncologists to review tissue samples of
the resected tumor to reach a "consensus" regarding the proper diagnosis and primary site of the
veteran's cancer, among other questions. R. at 509-10 (emphasis omitted). More than nine years and
three Board remands later, VA has still not obtained the ordered opinion from a three-oncologist
panel, and the Board in its most recent decision did not explain why such an opinion was no longer
necessary. Absent such an explanation, neither the veteran nor the Court can discern the precise
basis for the Board's finding that the AMC had substantially complied with the May 2007 remand
order, rendering inadequate the Board's reasons or bases for that finding. See Gilbert, 1 Vet. App.
at 52.
Although the Secretary is correct that the Board in its December 2011 remand order stated
that, despite the instructions in the May 2007 remand order, the veteran would not be prejudiced by
an opinion from "a single oncologist" so long as the oncologist was "qualified to provide such
opinions," R. at 249, that statement does not, as the Secretary alleges, cure the inadequacy in the
Board's reasons or bases for its most recent decision.
The Court holds that the Board is not permitted to sub silentio incorporate its reasons or bases
from a prior remand order into a later decision. The Secretary has not cited any legal authority, nor
is the Court aware of any, that allows the Board to eschew section 7104(d)(1) in that manner. To
the contrary, the Court suggested in Castellano v. Shinseki, 25 Vet. App. 146, 160 (2011), that the
Board would be required to provide reasons or bases for "its previous determination on a matter" in
each subsequent Board decision, either by addressing it anew, "largely recycl[ing]" its prior reasons
or bases, or "replicat[ing] the language it employed previously."
Furthermore, all of the Board's findings in non-final remand orders are insulated from judicial
review because remand orders are not appealable to this Court. See Forcier v. Nicholson,
19 Vet. App. 414, 425-26 (2006) ("A claimant seeking to appeal before this Court the Secretary or
the Board's failure to fulfill their Stegall duties must, however, first obtain a final Board
decision. . . ." (emphasis added)); see also Breeden v. Principi, 17 Vet. App. 475, 478 (2004) (per
curiam order); 38 C.F.R. § 20.1100(b) (2016) ("A remand is in the nature of a preliminary order and
does not constitute a final decision of the Board."). The Court has never stated, however, that
9
findings in Board remand orders that are unfavorable to the appellant are final and binding. Such
a conclusion would be antithetical to the pro-claimant veterans benefits system and, absent some
indication that Congress intended to make findings in Board remand orders binding and
unreviewable, the Court will not impose such a limitation. See Bowen v. Mich. Acad. of Family
Physicians, 476 U.S. 667, 671-73 (1986) (noting the "strong" presumption of reviewability of agency
action, which may be overcome by evidence of, inter alia, specific congressional intent to preclude
judicial review); see also Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998) ("In the context of
veterans' benefits where the system of awarding compensation is so uniquely pro-claimant, the
importance of systemic fairness and the appearance of fairness carries great weight.").
It is incumbent upon the Board, therefore, to provide or reiterate reasons or bases for
unfavorable findings made in prior remand orders–assuming those reasons or bases still apply, given
that new evidence or argument may have been submitted in the interim, see Kay v. Principi,
16 Vet. App. 529, 534 (2002); Kutscherousky v. West, 12 Vet. App. 369, 372-73 (1999) (per curiam
order); 38 C.F.R. §§ 19.37, 20.1304(a)–so that they become part of a final Board decision and
subject to appellate review. Its failure to do so constitutes a reasons or bases error.
Like all reasons or bases errors, however, this one is subject to review for prejudice.
38 U.S.C. § 7261(b)(2); Shinseki v. Sanders, 556 U.S. 396, 406 (2009) (noting that the statute
requiring this Court to "take due account of prejudicial error [] requires the Veterans Court to apply
the same kind of 'harmless error' rule that courts ordinarily apply in civil cases"). The Court holds
that the Board's error is prejudicial in this case.
The Board in December 2011 found that the veteran was not prejudiced by a single-
oncologist opinion, as opposed to the ordered three-oncologist opinion, because the chosen
oncologist, Dr. Aloba, "was qualified to provide such opinions, as the subject matter she addressed
was within her area of expertise." R. at 249. Given that VA is presumed, when obtaining a medical
opinion, to select a competent medical professional who is qualified to answer the specific medical
questions necessary to decide a claim, it must be presumed that the Board in May 2007 determined
that, due to the medical complexity of the issues involved, a medical opinion from a panel of three
competent oncologists was required to decide the claim. See Parks v. Shinseki, 716 F.3d 581, 585
(Fed. Cir. 2013) ("VA benefits from a presumption that it has properly chosen a person who is
10
qualified to provide a medical opinion in a particular case."); Wise v. Shinseki, 26 Vet App. 517, 525
(2014) ("It is presumed that VA followed a regular process that ordinarily results in the selection of
a competent medical professional."). The Court, therefore, cannot at present say that the Board
adequately explained how having one competent oncologist assess the veteran's tumor could satisfy
the Board's May 2007 remand order that, due to medical complexity and the resultant need for a
"consensus" on the issue, three competent oncologists were needed to assess the tumor. Its failure
to produce an adequate statement of reasons or bases in the decision here on appeal is not harmless
error.
Accordingly, the Court concludes that the Board provided inadequate reasons or bases in its
decision currently on appeal for its finding that the AMC had substantially complied with the Board's
prior remand orders.3 See Gilbert, 1 Vet. App. at 52. Remand is therefore warranted so that the
Board can adequately address that issue.4 See Tucker v. West, 11 Vet. App. 369, 374 (1998) (holding
that 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").
B. Other Arguments
Mr. Mathews also argues that the Board clearly erred in finding that Dr. Lin's January 2014
opinion and October 2014 addendum were adequate for adjudication purposes because the pilot
study that Dr. Lin relied on was flawed or incomplete in several respects. Appellant's Br. at 15-20;
Reply Br. at 1-2. Specifically, the veteran challenges the scientific foundation of the study
itself–i.e., the characteristics of the study population, Appellant's Br. at 17-18; Reply Br. at 1-2 –and
the accuracy of Dr. Lin's representation of the study's conclusions–i.e., the definitiveness and scope
3
To be clear, the Court does not conclude that the Board is prohibited from finding substantial compliance with
its May 2007 remand order unless it obtains an opinion from a panel of three oncologists or that the AMC's efforts to
this point did not necessarily constitute substantial compliance with that remand order. It is only to say that the Board
was required, but failed, to explain its substantial compliance finding in light of its apparent lack of adherence with the
specific terms of the May 2007 remand order.
4
Given this disposition, the Court need not address Mr. Mathews's other reasons-or-bases arguments, which
could not result in a remedy greater than remand. Appellant's Br. at 23-30; Reply Br. at 5-9. Likewise, the Court
declines to address Mr. Mathews's other challenges regarding the Board's alleged lack of substantial compliance with
prior Board remand orders, because the Board necessarily will readjudicate that issue on remand. Appellant's Br. at 20-
23; Reply Br. at 3-5.
11
of those conclusions, Appellant's Br. at 18-19. However, because the study is not part of the record
on appeal, the Court cannot meaningfully review those allegations of error. As such, those
arguments are best addressed by the Board on remand and the Court will not rule on them at this
time. See Hensley v. West, 212 F.3d 1255, 1263 (Fed. Cir. 2000) (noting "the general rule that
appellate tribunals are not appropriate fora for initial fact[]finding").
III. CONCLUSION
Upon consideration of the foregoing, the March 30, 2015, Board decision is SET ASIDE and
the matter is REMANDED for further development, if necessary, and readjudication consistent with
this decision.
12