Panel Application; Otero-Castro v. Principi, 16 Vet.App. 375, 380 (2002) (“The basic principles that apply to construing statutes apply equally to construing regulations.”). If it is not clear, “the Court may look to other sources, including the history and purpose of the regulation.” Bailey v. Wilkie, 33 Vet.App. 188, 194 (2021); see Kisor, 139 S. Ct. at 2415 (explaining that to exhaust the traditional tools of regulatory construction, “a court must ‘carefully consider[]’ the text, structure, history, and purpose of a regulation” (quoting Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 n.9 (1984))). “[D]eference [to the Agency] can arise only if a regulation is genuinely ambiguous[,] . . . after a court has resorted to all the standard tools of interpretation.” Kisor, 139 S. Ct. at 2414;

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-0517
JOAN NAILOS, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans’ Appeals
(Argued June 17, 2021 Decided August 10, 2021)
Christopher F. Attig, of Little Rock, Arkansas, for the appellant.
Mark D. Vichich, with whom William A. Hudson, Jr., Principal Deputy General Counsel;
Mary Ann Flynn, Chief Counsel; and Sarah W. Fusina, Deputy Chief Counsel, all of Washington,
D.C., were on the brief for the appellee.
Before GREENBERG, MEREDITH, and TOTH, Judges.
MEREDITH, Judge, filed the opinion of the Court. GREENBERG, Judge, filed a
dissenting opinion.
MEREDITH, Judge: The appellant, Joan Nailos, surviving spouse of the veteran,
William F. Nailos, appeals through counsel1 an October 22, 2018, Board of Veterans’ Appeals
(Board) decision that denied an effective date prior to May 30, 2017, for the award of aid and
attendance benefits. Record (R.) at 2-9.2 This appeal is timely, and the Court has jurisdiction to
review the Board’s decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). This matter was
referred to a panel of the Court to determine under what circumstances 38 C.F.R. § 3.402(c)(1)
permits an effective date for the award of increased dependency and indemnity compensation
(DIC) based on the need for aid and attendance earlier than the date of receipt of the claim for aid
1 The appellant was initially self-represented and filed an informal brief. However, after the Court requested
that the Veterans Consortium Pro Bono Program respond to whether representation could be secured, counsel entered
an appearance on behalf of the appellant, and the Court permitted both parties to submit substitute

Panel Application; educational benefits; 38 C.F.R. § 21.9635(o); Carr, 961 F.3d at 173; the Federal Circuit interpreted the phrase “may receive” as referring only to an initial calculation of a veteran’s entitlement and not to the amount of benefits that a person may, in fact, receive; It then concluded that the statute does not preclude an individual, who has accumulated and used a total of 48 months of educational benefits from a combination of chapters, from receiving an extension in benefits until the end of a semester. Carr, 961 F.3d at 173;

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 16-3438
SAMANTHA E. CARR, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
ROBERT M. CARR, INTERVENOR
On Remand from the U.S. Court of Appeals for the Federal Circuit
(Decided February 19, 2021)
Samantha E. Carr, pro se.
Meghan Flanz, Interim General Counsel; Mary Ann Flynn, Chief Counsel; Selket N. Cottle,
Deputy Chief Counsel; and Sara W. Fusina, Senior Appellate Attorney, all of Washington, D.C.,
were on the brief for the appellee.
Robert M. Carr, pro se, as intervenor.
Before BARTLEY, Chief Judge, and PIETSCH and TOTH, Judges.

TOTH, Judge: Air Force veteran Robert Carr transferred a portion of his 48 months of
education benefits to his daughter, Samantha Carr, so that she could pay for her college tuition.
After she used these benefits to pay for two semesters, Ms. Carr began the fall 2013 semester with
a single day of entitlement remaining. Invoking 38 C.F.R. § 21.9635(o), she sought to extend her
benefits until the end of the semester, but the Board determined that subsection (y) of that
regulation prohibited a transferee from receiving an extension—even though a veteran in the same
situation would be entitled to one.
Ms. Carr brought this appeal to challenge the validity of § 21.9635(y), arguing that it is
inconsistent with its authorizing statute, 38 U.S.C. § 3319. We didn’t reach that question in our
initial decision because we concluded that 38 U.S.C. § 3695 prevented anyone—veteran or
dependent—from receiving benefits in excess of 48 months. The Federal Circuit reversed our
decision, however, interpreting the phrase “may receive” as referring not to the amount of benefits
a person may receive,

Single Judge Application; pain; functional loss; If pain causes functional loss, it “must be rated at the same level as if that functional loss were caused by some other factor.” Mitchell v. Shinseki, 25 Vet.App. 32, 37, (2011); For an examination to adequately capture functional loss, the examiner must opine whether pain could significantly limit functional ability and, if feasible, portray that opinion “‘in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.'” Sharp, 29 Vet.App. at 32 (quoting Deluca v. Brown, 8 Vet.App. 202, 206 (1995));

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UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-6885
BILLY MOSLEY, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before TOTH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
TOTH, Judge: Navy veteran Billy Mosley seeks a rating higher than 10% for his back
disability, for the period from January 22, 2010, to October 19, 2017, and ratings higher than 10%
for a left and a right knee disability, for the period since January 22, 2010.* When rating joint
disabilities, the Board should rely on VA examinations that consider whether and to what extent
pain, or other factors listed in 38 C.F.R. §§ 4.40 and 4.45, limit a veteran’s ability to function.
Sharp v. Shulkin, 29 Vet.App. 26, 32 (2017). Mr. Mosley argues that a May 2010 VA exam is
inadequate to properly rate his functional loss and that the Board’s assessment of functional loss is
not supported by an adequate statement of reasons or bases.
For the back disability, the Secretary concedes that the Board didn’t explain why it relied
on the May 2010 exam to rate the veteran’s back disability for the period between January 2010
and October 2017, as that exam did not adequately portray the extent of the veteran’s functional
loss for that period. The Court accepts this concession and remands as to that matter. With respect

The veteran raises no argument as to the Board’s denial of a rating in excess of 40% for his back disability
for the period since October 19, 2017, so any appeal as to

Single Judge Application; Wait v. Wilkie, 33 Vet.App. (2020); The Court held in Wait v. Wilkie, 33 Vet.App. 8, 17 (2020), that “[t]o establish the presence of a disability . . . there must be competent evidence specific to the claimant tending to show that his or her impairment rises to a level to affect earning capacity, which may include showing manifestations of a similar severity, frequency, and duration as those VA has determined by regulation would cause impaired earning capacity in an average person.”;

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UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-9062
ANDREW M. THORPE, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before TOTH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
TOTH, Judge: Retired Army veteran Andrew M. Thorpe appeals a September 2019 Board decision, which determined that new and material evidence had not been received to reopen a service-connection claim for a left shoulder disorder.1 He argues that (1) the Board’s new and material evidence determination was clearly erroneous, and (2) the Board erred in relying on an inadequate medical examination. For the reasons set forth below, the Court affirms.
I. BACKGROUND
Mr. Thorpe served from 1986 to 2007. During his last year of service, he filed a VA compensation claim for a “shoulder injury” that he said occurred in July 2000. R. at 1871. In 2008, the regional office (RO) denied service connection for both a left and right shoulder disorder. The RO decision listed in the “evidence” section the veteran’s service treatment records (STRs) from November 3, 1985, until April 18, 2006. R. at 1770. And based on these records, the RO concluded that there was no evidence of a current left shoulder disability. Mr. Thorpe did not pursue an appeal and the 2008 decision became final.
1 The Board also reopened and remanded a claim for service connection for a left knee disorder and remanded a claim for service connection for bilateral pes planus. Because remands are not final decisions, the

Single Judge Application; In Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018), the U.S. Court of Appeals for the Federal Circuit overruled nearly 20 years of precedent when it held that “pain in the absence of a presently diagnosed condition can cause functional impairment,” which may qualify as a “disability” under 38 U.S.C. § 1110. 886 F.3d at 1368, overruling Sanchez-Benitez v. West, 13 Vet.App. 282, 285 (1999), appeal dismissed in part and vacated in part on other grounds sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001); The Federal Circuit held that pain alone may constitute a disability if it causes functional impairment, even without an identifiable underlying pathology. Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018); The Federal Circuit’s decision provides a means of establishing service connection without an explicitly diagnosed condition;

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UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20-1615
TYRONE HARTMAN, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before PIETSCH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
PIETSCH, Judge: The self-represented appellant, Tyrone Hartman, appeals a
December 17, 2019, Board of Veterans’ Appeals (Board) decision in which the Board reopened
and denied a claim for service connection for left knee degenerative joint disease (DJD) claimed
as chondromalacia. Record (R.) at 5-9. The Board’s decision to reopen the claim is favorable to
the appellant and the Court will not disturb it. See Medrano v. Nicholson, 21 Vet.App. 165, 170
(2007). This appeal is timely and the Court has jurisdiction over the matter on appeal pursuant to
38 U.S.C. §§ 7252(a) and 7266. Single-judge disposition is appropriate when the issues are of
“relative simplicity” and “the outcome is not reasonably debatable.” Frankel v. Derwinski,
1 Vet.App. 23, 25-26 (1990). For the reasons that follow, the Court will vacate the part of the
December 17, 2019, decision that denied service connection for left knee DJD claimed as
chondromalacia and will remand the matter for readjudication consistent with this decision.
I. BACKGROUND
Mr. Hartman served on active duty in the U.S. Air Force from October 1969 to August 1979. R. at 921-23. 3. In September 1973 he injured his left knee playing basketball. R. at 1872. In
June 1974, he reported continued left knee pain, especially on bending, and he had a small effusion
2
in the left knee. Id. A physician prescribed medication and rest and advised Mr.

Single Judge Application; we have held that a fair process violation can be found where the process by which the Board reaches an adverse credibility determination is unfair to the claimant. See Smith v. Wilkie, 32 Vet.App. 332, 338-39 (2020). In Smith, we held that the Board violates principles of fair process when it changes an earlier favorable credibility determination (or a statement that would lead a claimant to believe there had been a favorable credibility determination) without notifying the claimant or providing an opportunity to respond to the credibility-determination change. Id. at 334;

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UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 20-0423
CLYDE MILLER, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before BARTLEY, Chief Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
BARTLEY, Chief Judge: Veteran Clyde Miller appeals through counsel a November 19,
2019, Board of Veterans’ Appeals (Board) decision that denied service connection for a right ankle
disability and for residuals of a head injury, including headaches, and declined to reopen a
previously denied claim for service connection for an acquired psychiatric disorder. Record (R.)
at 5-24.1 For the reasons that follow, the Court will set aside those portions of the November 2019
Board decision that denied service connection for residuals of a head injury and declined to reopen
a previously denied claim for an acquired psychiatric disorder and remand those matters for
readjudication consistent with this decision. The Board will affirm that portion of the November
2019 Board decision that denied service connection for a right ankle disorder.
1 In the same decision, the Board reopened previously denied claims for service connection for diabetes and
the right ankle disability. R. at 11, 13. Because these determinations are favorable to Mr. Miller, the Court will not
disturb them. See Medrano v. Nicholson, 21 Vet.App. 165, 170 (2007) (“The Court is not permitted to reverse findings
of fact favorable to a claimant made by the Board pursuant to its statutory authority.”), aff’d in part, dismissed in part
sub nom. Medrano v. Shinseki, 332 F. App’x 625 (Fed. Cir. 2009). In addition, the Board denied service connection
for

Single Judge Application; failure define term or degree; Mr. Thornton cites Johnson v. Wilkie, 30 Vet.App. 245, 255 (2018), arguing that the Board must disclose the standard under which it is operating. Appellant’s Br. at 26. But Johnson focused on a situation where the Board failed to define a term of degree (specifically, “very frequent”) that could be applied inconsistently across similar cases without a clear definition. 30 Vet.App. at 255;

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UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20- 0882
NORMAN F. THORNTON, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before FALVEY, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
FALVEY, Judge: Army veteran Norman F. Thornton through counsel appeals a January
23, 2019, Board of Veterans’ Appeals decision denying a rating above 50% for post-traumatic
stress disorder (PTSD) and denying a rating above 40% for a disability manifested by fatigue, joint
pain, gastrointestinal bleeding, headaches, shortness of breath, nausea, body shakes, and diarrhea
as due to an undiagnosed illness.1 The appeal is timely, the Court has jurisdiction to review the
Board decision, and single-judge disposition is appropriate. See 38 U.S.C. §§ 7252(a), 7266(a);
Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
As for the PTSD claims, we are asked to decide whether the Board incorrectly applied the
rating schedule, the benefit of the doubt doctrine, the rule on the assignment of the higher of two
ratings, and the duty to maximize benefits, and whether the Board gave an adequate statement of
reasons or bases. As for the undiagnosed illness claim, we are asked to decide whether the Board
incorrectly selected an analogous rating or incorrectly applied 38 C.F.R. § 4.88b, Diagnostic Code
(DC) 6354, and whether the Board gave an adequate statement of reasons or bases. For the reasons
below, we will affirm the Board’s decision.
1 The Board granted entitlement to a total disability rating based on individual unemployability (TDIU).
Record (R.) at 5. This is a favorable finding that this Court cannot disturb.

Single Judge Application; In Rizzo v. Shinseki, the U.S. Court of Appeals for the Federal Circuit previously held that VA need not affirmatively establish an examiner’s competency. 580 F.3d 1288, 1291 (Fed. Cir. 2009), overruled by Francway v. Wilkie, 940 F.3d 1304, 1308 (Fed. Cir. 2019) (finding that the presumption of competency requires nothing more than is required for veterans in other contexts—i.e., simply that the veteran raise the issue—and that, once the veteran raises such a challenge, the presumption has no further effect and VA must satisfy its burden of persuasion as to the examiner’s qualifications). But, to the extent that Francway did not overrule the holding in Rizzo, the issue here is not the examiner’s competency; In addition, in Sickels v. Shinseki, the Federal Circuit found unpersuasive the veteran’s argument—that he should not be required to assert that the examiner was insufficiently informed—because, like in Rizzo, he had not raised that concern before the Board. 643 F.3d 1362, 1366 (Fed. Cir. 2011) (finding that an examiner’s competency and whether the examiner was sufficiently informed were similar in that a veteran must challenge both and, because Mr. Sickels had not done so, the Board was not required to address the issue of whether the examiner understood the adjudicator’s instructions);

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UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-1993
JACK T. BREWSTER, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before FALVEY, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
FALVEY, Judge: Marine Corps veteran Jack T. Brewster appeals through counsel a
December 3, 2018, Board of Veterans’ Appeals decision denying service connection for an
acquired psychiatric disorder, including post-traumatic stress disorder (PTSD) and major
depressive disorder, and for a skin rash, including porokeratosis (skin condition), including as
secondary to the acquired psychiatric disorder. The appeal is timely; the Court has jurisdiction to
review the Board decision; and single-judge disposition is appropriate. See 38 U.S.C. §§ 7252(a),
7266(a); Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
We are asked to decide whether the Board erred in applying the presumption of regularity
when assessing the adequacy of a June 2018 VA examination. Because the Board provided
inadequate reasons or bases for applying the presumption and for ultimately denying the acquired
psychiatric disorder claim, and because the skin rash claim is sufficiently intertwined with the
acquired psychiatric disorder claim, the Court will set aside the Board decision and remand those
matters.
I. FACTS
Mr. Brewster served on active duty from December 1993 to October 1997. Record (R.) at 531. He is service connected for right knee arthritis, limited extension and instability of the right
2
knee associated with arthritis, and bilateral tinnitus. See R. at 419-420. In November 2010, the
veteran filed claims for service connection for an acquired psychiatric condition and a skin rash.
R. at 4549-50. After several VA

Single Judge Application; writ; The Board’s decision to remand this matter, in order to obtain additional, and impliedly negative evidence, is an exercise of “naked and arbitrary power.” See Yick Wo v. Hopkins, 118 U.S. 356, 366 (1886) (Matthews, J.); In Wolfe v. Wilkie, 32 Vet.App. 1 (2009), we issued a writ even though the petitioner had the ability to appeal the matter to the Court. The circumstances here are similar in that regard and equally as egregious. This is illustrative of systemic legal errors that can be corrected in the context of a petition. See Mathis v. Shulkin, 137 S. Ct. 1994, 1995 (2017)(Sotomayor, J., concurring) (noting the continuing “dialogue over whether the current system for adjudicating veterans disability claims can be squared with VA’s statutory obligations to assist veterans in the development of their disability claims.”); (Gorsuch, J., dissenting)(“Congress imposed on the VA an affirmative duty to assist—not impair—veterans seeking evidence for their disability claims.”). The conduct of VA here is certainly emblematic of a systemic, bureaucratic disorder, which we are uniquely ordained to deal with;

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 19-4765
KATHY GARDNER-DICKSON, PETITIONER,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, RESPONDENT.
Before GREENBERG, MEREDITH, and FALVEY, Judges.
O R D E R
FALVEY, Judge, filed the opinion of the Court. GREENBERG, Judge, filed a dissenting
opinion.
During the Vietnam era, Air Force veteran Herbert E. Dickson was stationed at the Korat
Royal Air Force Base in Thailand. Years after service, he developed ischemic heart disease and
filed a claim for VA disability compensation. He told VA that temporary duty had brought him
near the perimeter of the base where herbicides were sprayed and to the flight line near aircraft
that carried Agent Orange. Although VA presumes both herbicide exposure in certain veterans
who served on or near the perimeters of military bases in Thailand and an etiological link between
the presumed exposure and ischemic heart disease, it did not immediately grant the veteran’s claim.
Rather, on April 2, 2019, the Board of Veterans’ Appeals (Board) remanded the matter for further
evidentiary development.
Mr. Dickson promptly filed a motion for Board reconsideration and, when that was denied,
he filed the petition that is before us today. Mr. Dickson unfortunately passed away during these
proceedings, and his widow, Ms. Kathy Gardner-Dickson, has been substituted as the petitioner.
The petition was denied in a single-judge decision because the petitioner had adequate alternative
means to obtain the desired relief and had not shown that the petition was in aid of our jurisdiction.
A motion for a panel decision was filed and the case was submitted to the panel, which heard oral
argument on July 8, 2020.
We are

Single Judge Application; Francway v. Wilkie, 940 F.3d 1304, 1308 (Fed. Cir. 2019) (“[O]nce the veteran raises a challenge to the competency of the medical examiner, the presumption [of competence] has no further effect, and, just as in typical litigation, the side presenting the expert ( here [,] the VA) must satisfy its burden of persuasion as to the examiner’s qualifications.” ); Francway, 940 F.3d. at 1309 (“‘[W]hether an examiner is competent and whether he has rendered an adequate exam[ination] are two separate inquiries.'” (quoting Mathis v. McDonald, 834 F.3d 1347, 1351 (Fed. Cir. 2016) (Hughes, J., concurring in denial of rehearing en banc)));

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UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20-2915
THOMAS M. CLAYTON, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MEREDITH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
MEREDITH, Judge: The pro se appellant, Thomas M. Clayton, appeals a January 16, 2020,
Board of Veterans’ Appeals (Board) decision that declined to reopen claims for benefits for a
respiratory disorder, including as due to smoke inhalation, and obstructive sleep apnea (OSA), and
denied benefits for hearing loss and an acquired psychiatric disorder, including a depressive
disorder and anxiety. Record (R.) at 4-21. The Board reopened a claim and granted benefits for
tinnitus. These are favorable findings that the Court may not disturb. See Medrano v. Nicholson,
21 Vet.App. 165, 170 (2007), aff’d in part, dismissed in part sub nom. Medrano v. Shinseki,
332 F. App’x 625 (Fed. Cir. 2009); see also Bond v. Derwinski, 2 Vet.App. 376, 377 (1992) (per
curiam order) (“This Court’s jurisdiction is confined to the review of final Board . . . decisions
which are adverse to a claimant.”). This appeal is timely, and the Court has jurisdiction to review
the Board’s decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is
appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons,
the Court will affirm the Board’s decision declining to reopen claims for benefits for a respiratory
disorder, including as due to smoke inhalation, and OSA, and denying benefits for hearing loss
and an acquired psychiatric disorder, including a depressive disorder and anxiety.
2
I. BACKGROUND
The