Robinson v. Mansfield

On Appeal from the Board of Veterans’ Appeals.

Before the Court is Marvin Robinson’s appeal of a May 17, 2004, Board of Veterans’ Appeals (Board) decision in which he was denied service connection on a secondary basis for heart disease and a thyroid disability. In that decision, the Board also remanded the issue of entitlement to an increased disability rating for Mr. Robinson’s service-connected peptic ulcer disease. The remanded matter is not before the Court. Because Mr. Robinson has failed to demonstrate any error in the Board decision or any reason his new theory of entitlement should enjoy the benefit of a discretionary remand from this Court, the Board decision will be affirmed. See Maggitt v. West, 202 F.3d 1370, 1377 (Fed.Cir.2000).

I. FACTS

Mr. Robinson served on active duty in the U.S. Navy from October 1986 to April 1988. In November 1988, he was awarded *548service connection for peptic ulcer disease effective from the day following the date of his discharge from service.

In December 1998, he filed a claim for VA benefits for, among other things, heart and thyroid conditions, which he asserted had their onset in February 1996. In September 1999, a VA regional office denied him service connection for heart disease and a hyperthyroid condition secondary to his service-connected peptic ulcer disease. Mr. Robinson filed a Notice of Disagreement in November 1999 asserting that he disagreed with the regional office’s denial of “service connection for heart disease and hyperthyroid condition as secondary to [his] service[-]connected peptic ulcer disease.” Record (R.) at 139 (emphasis added). That Notice of Disagreement was submitted along with a letter from attorney John F. Cameron, informing VA that attorney Cameron was being designated as Mr. Robinson’s attorney. R. at 141-42. Attorney Cameron asked that multiple documents, including Mr. Robinson’s Notice of Disagreement, be associated with Mr. Robinson’s claims file.

In October 2001, the Board remanded Mr. Robinson’s claims to the regional office for additional development. Specifically, the Board ordered the regional office, among other things, to (1) “arrange for a VA examination by an appropriate specialist in order to determine the nature, severity, and etiology of the thyroid disorder” and (2) “arrange for a VA examination by a cardiovascular specialist in order to determine the nature, severity, and etiology of any cardiovascular disorder.” R. at 189-90. The examiner was specifically directed to opine as to whether those conditions were related to or aggravated by Mr. Robinson’s service-connected peptic ulcer disease.

The report from a November 2002 VA thyroid and parathyroid diseases examination reflects the examiner’s opinion that Mr. Robinson’s “chest pain ... claimed as heart problems ... was secondary to his [hjyperthyroidism” and that “[t]here is no heart problem that is attributable to his service[-]connected peptic ulcer disease!;] and his thyroid condition ... is not related to his service-connected peptic ulcer disease.” R. at 697. There is of record a document that purports to be the report from a November 2002 VA heart examination. See R. at 698. Under the heading “[examination results,” that document states only the following: “Please see the Thyroid/Parathyroid compensation and pensions examination.” Id.

The Board, in the May 2004 decision now on appeal, denied service connection on a secondary basis for heart disease and a thyroid disability. In so doing, the Board relied on the November 2002 VA examination report, which “found no relationship between the service-connected peptic ulcer disease and the two later arising diseases.” R. at 9.

In his brief, Mr. Robinson raises three arguments. First, he contends that the Board violated Stegall v. West, 11 Vet.App. 268, 271 (1998), by failing to ensure compliance with the October 2001 Board remand order. In that regard, he argues that the examiner failed to discuss the etiology of the thyroid and cardiovascular conditions, as ordered by the Board. Appellant’s Brief (Br.) at 8. His second argument is related to his first — that the Secretary violated the duty to assist by relying on inadequate medical examination reports. See id. at 9-10. His third and final argument is that the Board violated Schroeder v. West, 212 F.3d 1265 (Fed.Cir.2000), by failing to adjudicate whether he is entitled to service connection on a direct basis for heart disease and a thyroid disability.

In response, the Secretary contends that Mr. Robinson is challenging the propriety *549of the November 2002 VA examination for the first time on appeal and that the “Court should refrain from considering such arguments raised for the first time on appeal.” Secretary’s Br. at 9. He further contends that, should the Court consider the argument concerning the propriety of the November 2002 VA examination, that examination did comply with the Board’s prior remand instructions. The Secretary asserts that Mr. Robinson was represented before the Board by the same attorney representing him before the Court and that, as a consequence, the issue should be deemed to have been waived. Id. at 13-14. Responding to Mr. Robinson’s final argument, the Secretary asserts that Mr. Robinson “has consistently maintained to the [AJgency since the initial filing of his claim in 1998 that he believed his disabilities were caused on a secondary basis by his service-connected disability” and, thus, the Board did not err in failing to adjudicate entitlement to service connection for heart disease and a thyroid disability on a direct basis. Id. at 17.

On February 8, 2007, the Court issued an order notifying the parties that it was interested in resolving, among other things, the following two questions raised in this appeal: First, whether or not representation by counsel before the Agency is a factor to be considered in determining whether the Court should apply the exhaustion doctrine to affirm a Board decision rather than adjudicate or remand a new theory of entitlement first raised on appeal. And, second, whether representation by counsel before the Agency has any effect on the Court’s analysis of whether VA fulfilled its obligation to consider and decide all issues reasonably raised by the claim. The Court then allowed the parties to file supplemental pleadings addressing these issues. In addition, the Court allowed for the filing of amicus briefs.

In response to that order, the Court received supplemental pleadings from the parties and multiple amicus briefs. The gist of Mr. Robinson’s supplemental pleading and the amicus filings is that the Court cannot impose an exhaustion requirement because to do so would violate the principles established in the U.S. Supreme Court’s decision in Sims v. Apfel, 530 U.S. 103, 120 S.Ct. 2080, 147 L.Ed.2d 80 (2000). In addition, they argue that the Court should not treat differently appellants represented by counsel and unrepresented appellants and that the U.S. Court of Appeals for the Federal Circuit’s decision in Andrews v. Nicholson, 421 F.3d 1278 (Fed.Cir.2005), should be read narrowly to apply only in the context of motions to revise based upon clear and unmistakable error.

In his supplemental pleading, the Secretary argues that the Court can apply the exhaustion doctrine because 38 U.S.C. § 7105(c)(3) provides that an appeal to the Board “should set out specific allegations of error of fact or law.” 38 U.S.C. § 7105(c)(3). He further notes that VA’s regulation essentially mimics the statute. See 38 C.F.R. § 20.202 (2006) (“The Substantive Appeal should set out specific arguments relating to errors of fact or law made by the agency of original jurisdiction in reaching the determination, or determinations, being appealed.”). Citing Andrews, the Secretary goes on to assert that whether an appellant is represented by counsel is relevant in assessing the Secretary’s obligation to read claims sympathetically. The Secretary asserts that, in this case, Mr. Robinson was represented by counsel for the entire six years that his appeal was pending before VA and that, at no time before VA did Mr. Robinson raise arguments regarding service connection on a direct basis. In essence, the Secretary argues that this case is more about a represented appellant’s failure to raise arguments than it is about the Secretary’s duty *550to sympathetically read a claim. The Court heard oral argument in this matter on May 23, 2007.

II. ANALYSIS

A. Is Mr. Robinson’s Argument on Appeal for Service Connection on a Direct Basis for Heart Disease and a Thyroid Disability a Separate Claim for Disability Benefits for Those Conditions?

Our ability to exercise jurisdiction over this appeal hinges on whether Mr. Robinson is advancing a new claim or merely a new argument in support of his claim. If Mr. Robinson is advancing a new claim, we lack jurisdiction over this appeal because there is no final Board decision on that claim. See 38 U.S.C. §§ 7252(a), 7266(a); see also Breeden v. Principi, 17 Vet.App. 475, 478 (2004). If, on the other hand, Mr. Robinson is advancing a new argument in support of his claim, then we possess jurisdiction over this appeal and can consider the new argument or remand the matter for the Board to consider it in the first instance. See Maggitt v. West, 202 F.3d 1370, 1377-78 (Fed.Cir.2000) (holding that this Court has discretion to hear arguments presented to it in the first instance, provided that it otherwise has jurisdiction over the claim).

In Roebuck v. Nicholson, we held that “although there may be multiple theories or means of establishing entitlement to a benefit for a disability, if the theories all pertain to the same benefit for the same disability, they constitute the same claim.” 20 Vet.App. 307, 313 (2006). Roebuck built upon our decision in Bingham v. Principi in which we held that “direct and presumptive service connection are, by definition, two means (i.e., two theories) by which to reach the same end, namely service connection.” 18 Vet.App. 470, 474 (2004), aff'd, 421 F.3d 1346 (Fed.Cir.2005). In affirming Bingham, the Federal Circuit recognized that separate theories in support of a claim for a particular benefit are not equivalent to separate claims and that a final denial on one theory is a final denial on all theories. See Bingham, 421 F.3d at 1349 (“[W]e similarly cannot recognize an exception [to the rule of finality] based on a purported legal error committed by the Board based on its failure to consider all possible theories that may support a claim.”).

There is, however, an early decision in which this Court reached a conclusion unlike the conclusions discussed above. In Perman v. Brown, a decision issued before Congress eliminated the well-grounded-claim requirement by enacting the Veterans Claims Assistance Act of 2000, this Court, without any legal analysis, held that a claim for disability benefits on a theory of secondary service connection is separate and distinct from a claim for disability benefits on a theory of direct service connection for that same disability. 5 Vet.App. 237, 239 (1993). As explained below, the Federal Circuit overruled this holding.

Under the no longer existent well-grounded-claim requirement, VA’s duty to assist was not triggered until some evidence was presented in support of each element of the claim. See Morton v. West, 12 Vet.App. 477, 486 (1999). It was under the well-grounded-claim requirement that this Court endorsed a theory-by-theory concept of what constitutes a claim. In Schroeder v. West, upon which we based our decision in Bingham, the Federal Circuit repudiated the theory-equals-claim concept and held that, where a veteran sought benefits for an eye condition and his claim was well grounded based on in-service exposure to Agent Orange, VA’s duty to assist was triggered and VA had *551an obligation to explore all legal theories, including those unknown to the veteran, by which a veteran might be awarded service connection for such disability. 212 F.3d 1265, 1269-71 (Fed.Cir.2000). Schroeder, like the Federal Circuit’s subsequent decision affirming our decision in Bingham, repudiates the each-theory-equals-a-distinct-claim concept. Although the question in Perman arose in the context of whether a Notice of Disagreement had been timely filed, and that opinion has never been explicitly overruled, we conclude that in its decision in Schroeder and in affirming our decision in Bingham, the Federal Circuit overruled Perman sub silencio. The proposition that separate theories in support of a claim for benefits for a particular disability equate to separate claims for benefits for that disability is no longer the law. See Bingham, 421 F.3d at 1349; see also Roebuck, 20 Vet.App. at 313.

Here, Mr. Robinson, who has been represented by attorney Cameron since the submission of his original Notice of Disagreement in November 1999, has pursued YA benefits for heart disease and a thyroid disability only on a secondary basis — that is, on the theory that those conditions are attributable to his service-connected peptic ulcer disease. In his brief in this appeal, Mr. Robinson contends, for the first time, that he is entitled to service connection for those disabilities on a direct basis and that the Board erred in failing to address service connection on a direct basis. See Appellant’s Br. at 11-12. In fact, at oral argument, Mr. Robinson even conceded that his claim for benefits on a secondary basis has no merit and that all that he pursues now is service connection on a direct basis. Because, as explained above, his new argument in support of disability benefits on a direct basis does not constitute a separate claim, we possess jurisdiction over the matter and will consider the argument. See Maggitt, 202 F.3d at 1377-78. We now address the issue of exhaustion.

B. Did the Board Err in Failing To Discuss Service Connection on a Direct Basis?

Having determined that the appellant’s theory may be properly raised to the Court, we turn to the question of whether it was error for the Board not to explicitly address this theory. As explained below, there are two reasons why we are not persuaded by Mr. Robinson’s argument that the Board erred in failing to discuss service connection on a direct basis. First, Mr. Robinson’s reliance on Schroeder is misplaced. And, second, the facts of this case, particularly the fact that Mr. Robinson has been represented by counsel since November 1999, compel us to conclude that the Board did not err in failing to discuss entitlement to disability benefits on a direct basis.

1. Schroeder Does Not Support Mr. Robinson’s Argument

Mr. Robinson’s terse argument in his brief that the Board erred in failing to discuss service connection on a direct basis is premised entirely on the Federal Circuit’s decision in Schroeder. See Appellant’s Br. at 11-12. The appellant in Schroeder appealed a Board decision denying him service connection for a bilateral eye disorder on a direct basis and as a result of Agent Orange exposure. See id. at 1267. On appeal, this Court concluded that the Board had erred in finding the Agent Orange claim not well grounded. This Court, however, affirmed the Board’s decision denying service connection on a direct basis on the basis that that “claim” was not well grounded.

As discussed above, the Federal Circuit expressly rejected this Court’s decision that two different theories equaled two *552separate claims and that the duty to assist attached to one theory but not the other. See supra pp. 550-51; Schroeder, 212 F.3d at 1271 (holding that “once a veteran has properly made ... a ... claim for a current disability as a result of a specific in-service occurrence or aggravation of a disease or injury, the agency’s duty to assist ... attaches to the- investigation of all possible in-service causes of that current disability, including those unknown to the veteran”). Indeed, VA had itself misconstrued the appellant’s one claim (based upon two separate theories) as two separate claims. See Schroeder 212 F.3d at 1267 (“The agency treated Schroeder’s submission as two new claims, one for direct service connection ... and a second for service connection ... associated with Agent Orange exposure.... ”). VA then denied them both. The ultimate issue was whether those two separate denials could be severed and treated as denials of separate claims, the effect of which would have been that, under the well-grounded-claim requirement then in effect, the duty to assist would have attached to the Agent Orange “claim” and not the direct “claim.” In Schroeder, the Federal Circuit answered that question in the negative, and our decisions in Bingham and Roebuck were built on the foundation the Federal Circuit established in Schroeder.

Mr. Robinson’s case is entirely different. VA has consistently denied Mr. Robinson service connection on a secondary basis only. As a consequence, Schroeder, which dealt with the Board’s denial of a particular benefit claimed on more than one basis, does not fit the facts of this case. Nothing in the Federal Circuit’s decision in Schroeder supports Mr. Robinson’s position that the Board is required to explicitly discuss a particular theory. As a consequence, Schroeder does not support Mr. Robinson’s argument that the Board was required to discuss service connection on a direct basis.

To summarize, the Federal Circuit’s ultimate conclusion in Schroeder is “well grounded as to one theory, well grounded as to all theories.” In other words, the duty to assist applies to the entire claim, which might require assistance in developing more than one theory in support of that claim. Schroeder does not address whether VA has an obligation to explicitly discuss sua sponte a particular theory in the first place.

2. The Board Did Not Err in Failing To Address All Issues Raised by Mr. Robinson or the Evidence of Record.

Notwithstanding the foregoing, we recognize that, the Board is required to consider all issues raised either by the claimant, Schroeder, 212 F.3d at 1271, or by the evidence of record, Solomon v. Brown, 6 Vet.App. 396, 402 (1994). Indeed, by regulation, the Board is required to construe an appellant’s arguments “in a liberal manner for purposes of determining whether they raise issues on appeal.” 38 C.F.R. § 20.202. In addition, the Board is obligated to consider all issues reasonably raised in an appeal. See Urban v. Principi 18 Vet.App. 143, 145 (2004) (“When reviewing [the appellant’s] claim, the Board was obligated to consider all reasonably raised matters regarding the issue on appeal.”); Brannon v. West, 12 Vet.App. 32, 35 (1998) (concluding that the Board must “adjudicate all issues reasonably raised by a liberal reading of the appellant’s substantive appeal including all documents and oral testimony in the record prior to the Board’s decision”).

Nonetheless, in addressing those theories, the Court has held that the Board is not required to discuss all of the evidence of record but rather it must discuss the relevant evidence. Dela Cruz v. Principi 15 Vet.App. 143, 149 (2001); see *553also Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991) (Board must discuss, inter alia, all relevant evidence). The Court’s caselaw in this regard has been affirmed by the Federal Circuit. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed.Cir.2000) (holding that “absent specific evidence indicating otherwise,” VA is presumed to have reviewed all evidence in the record when making a determination as to service connection). Even very recently the Federal Circuit reaffirmed that the Board’s failure to mention something in its decision does not trigger a presumption that it was not considered. Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed.Cir.2007).

The essential logic of all these cases is the same. As a nonadversarial adjudicator, the Board’s obligation to analyze claims goes beyond the arguments explicitly made. However, it does not require the Board to assume the impossible task of inventing and rejecting every conceivable argument in order to produce a valid decision. The question of the precise location of the line between the issues fairly raised by the appellant’s pleadings and the record and those that are not must be based on the record in the case at hand; therefore, it is an essentially factual question. However, we disagree with the dissent as to the fundamental nature of the line. Our dissenting colleague suggests that “ ‘all possible’ ” causes must be investigated by the Secretary. Ante pp. 558-59 (quoting Schroeder, 212 F.3d at 1271 (emphasis in original)).

However, Congress has not used such unbounded language. For example, the duty to provide a medical examination as to whether a particular theory of service connection has merit is explicitly limited to situations where there is already some evidence in the record of a current disability and some evidence that “indicates” that the disability “may be associated” with the claimant’s military service. 38 U.S.C. § 5103A(d)(2)(B). If Congress had wanted the Secretary to automatically provide an examination on all possible theories, then section 5103A would not read the way it does. In this regard, we note that if the evidence is insufficient to reach the low threshold necessary to trigger the duty to assist, see McLendon v. Nicholson, 20 Vet.App. 79, 83 (2006), then any failure to discuss the theory is necessarily not prejudicial.

Our dissenting colleague supports her belief in the Secretary’s duty to investigate all possible theories by suggesting that causes “unknown” to the appellant are those that “could not have been previously raised by the appellant.” Ante p. 559. This is simply not true. It is entirely possible that the record might “indicate” a theory of entitlement, but that a lay appellant might not be sophisticated enough to recognize the theory. Hence, a theory can be both unknown to the appellant and suggested by the record. See Ingram v. Nicholson, 21 Vet.App. 232, 256-57 (2007) (“[I]t is the Secretary who knows the provisions of title 38 and can evaluate whether there is potential under the law to compensate an averred disability based on a sympathetic reading of the material in a pro se submission.”). Accordingly, we conclude that the Board is not required sua sponte to raise and reject “all possible” theories of entitlement in order to render a valid opinion. The Board commits error only in failing to discuss a theory of entitlement that was raised either by the appellant or by the evidence of record. This standard is generous to veterans but respects the reality that the Secretary does not have the resources to investigate sua sponte every conceivable unsupported theory of entitlement. In this case, neither the appellant *554nor the record raised the theory of entitlement to service connection on a direct basis and, thus, the Board did not err in failing to discuss that theory.

a. Service connection on a direct basis was not raised by the appellant to the Board.

First, we consider whether direct service connection was argued below. To do so, we must consider how to read the appellant’s submissions. In the Secretary’s supplemental memorandum of law, filed in response to the Court’s February 8, 2007, order, the Secretary acknowledges that as a matter of practice <fVA reads all submissions sympathetically, even when a claimant is represented by counsel.” Secretary’s Supplemental Memorandum at 8. The Secretary goes on to assert that “in the six years [that Mr. Robinson’s] appeal was pending before [VA], neither he nor his counsel presented any argument to support his claims.” Id. at 9. The Secretary is correct. In neither his January 2000 nor his May 2001 Substantive Appeal did Mr. Robinson assert anything of real substance.1 In fact, the argument section on the January 2000 Substantive Appeal form, signed by Mr. Robinson and attorney Cameron, was left blank. R. at 152. On that form, Mr. Robinson merely checked a box that indicated that he wanted to appeal all of the issues listed on the Statement of the Case and any Supplemental Statements of the Case that he had received. See id. The May 2001 Substantive Appeal form, again signed by Mr. Robinson and attorney Cameron, contains little more. The argument section of that appeal form contains only the following statement: “I disagree with all of the conclusions in your office’s Statement of the Case, dated April 18, 2001. The [r]egional office failed to consider all of the evidence and failed to follow the correct legal standards in reaching its conclusions.” R. at 174.

The presence of attorney Cameron throughout the appeals process before the Agency is a significant factor that solidifies our conclusion. See Andrews, 421 F.3d at 1283 (holding that VA’s obligation to sympathetically read a clear-and-unmistakable-error motion does not apply to pleadings filed by an attorney); see also Overton v. Nicholson, 20 Vet.App. 427, 438 (2006) (“A claimant’s representation by counsel does not alleviate VA’s obligation to provide compliant notice; however, that representation is a factor that must be considered when determining whether that appellant has been prejudiced .... ”); id. at 438-39 (“[I]t is not unreasonable to conclude that an appellant’s attorney is acting with the full authority and knowledge of his client and thus, to attribute to his client the attorney’s actions and communications.”). We presume that attorney Cameron, an experienced attorney in veteran’s law, says what he means and means what he says. In this case, to the extent that attorney Cameron made arguments to VA, he specifically used the term “secondary service connection” and presented arguments consistent with the meaning of that term. Where an attorney uses terms of art that make sense in the context used, the Board may reasonably conclude that there is no ambiguity to be resolved with a sympathetic reading or a liberal construction of the pleadings. In contrast, where a lay person uses a term of art, the Board should still read the whole submission critically rather than assuming that the language was used correctly. Ingram, 21 *555Vet.App. at 256 (“[A] sympathetic reading of the appellant’s pleadings cannot be based on a standard that requires legal sophistication beyond that which can be expected of a lay claimant....”).

Ultimately, there was nothing in Mr. Robinson’s appeal to the Board, prepared on his behalf by attorney Cameron, that the Board could have been expected to liberally construe or read sympathetically in order to determine that Mr. Robinson was seeking to have his claim adjudicated on a theory of direct service connection in addition to a theory of secondary service connection. Therefore, the Board did not err by failing to adjudicate his claim on the basis of direct service connection. The Statement of the Case to which Mr. Robinson himself referred in his May 2001 Substantive Appeal made it clear that the regional office had adjudicated and denied his heart and thyroid claims solely on a secondary-service-connection basis. See R. at 179-81. In his appeal to the Board, Mr. Robinson merely asserted that he disagreed with that specific conclusion. In that appeal, prepared on his behalf by attorney Cameron, Mr. Robinson did not address the issue on entitlement to service connection on a direct basis. Indeed, as noted above, it was in Mr. Robinson’s brief to this Court that he first contended that he was seeking service connection on a direct basis. As a result, we find that no amount of liberal construction by the Board of Mr. Robinson’s arguments on appeal could have led it to believe that Mr. Robinson was taking issue with VA’s failure to adjudicate his claims on a direct theory as opposed to a secondary one. See Schroeder, 212 F.3d at 1271; see also 38 C.F.R. § 20.202.

b. Service connection on a direct basis was not suggested by the record before the Board.

Turning to whether the evidence of record before the Board raised the issue of service connection on a direct theory, we note that in his opening brief Mr. Robinson does not point to any evidence that he contends raised that theory or that should have compelled the Board to adjudicate his claim on a direct theory in addition to a secondary theory. We therefore have no basis for concluding that the Board erred in failing to address the claim in terms of a theory of direct service connection. See Solomon, 6 Vet.App. at 402. While Mr. Robinson belatedly tries to point to evidence in the record in his reply brief, the Court is not required to consider his belated argument in support of his belated theory. See, e.g., Burton v. Principi, 15 Vet.App. 276, 277 (2001) (per curiam order) (“We should not encourage the kind of piecemeal litigation in which the appellant here has engaged.”); Tubianosa v. Derwinski, 3 Vet.App. 181, 184 (1992) (noting that the appellant “should have developed and presented all of his arguments in his initial pleading”); Fugere v. Derwinski, 1 Vet.App. 103, 105 (1990) (“[ajdvancing different arguments at successive stages of the appellate process does not serve the interests of the parties or the Court” because piecemeal litigation hinders the deci-sionmaking process).

Our dissenting colleague indicates that she would find the evidence first mentioned. in Mr. Robinson’s reply brief sufficient to demonstrate prejudicial error by the Board. We disagree. There is simply no medical or lay evidence of continuity of symptomatology that links the symptoms reported in 1988 to Mr. Robinson’s current condition in a way that suggests that direct service connection. It is impractical to require the Board to explicitly mention every prior medical record noting any type of symptom and state that there is no evidence that the symptom is directly connected to .the current condition. Such a *556remand would “ ‘unnecessarily impos[e] additional burdens on the [Board] and ... VA with no benefit flowing to the veteran.’ ” Sabonis v. Brown, 6 Vet.App. 426, 430 (1994) (quoting Soyini v. Derwinski, 1 Vet.App. 540, 546 (1991)). Under Gonzales and Newhouse, both supra, we must presume that the Board considered this evidence and found it too scant to warrant comment. That conclusion is not clearly erroneous so we must affirm.

For all the reasons stated above, based on the evidence contained in the record, as well as Mr. Robinson’s statements throughout his appeal, the Court concludes that the Board did not erred in failing to adjudicate his claim for VA benefits for heart disease and a thyroid disability on a direct basis. See Schroeder, 212 F.3d at 1271.

C. Compliance With the 2001 Board Remand Order

“[A] remand by this Court or the Board confers on the ... claimant, as a matter of law, the right to compliance with the remand orders.” Stegall, 11 VetApp. at 271. When “the remand orders of the Board or this Court are not complied with, the Board itself errs in failing to [ejnsure compliance.” Id. Such an error can constitute the basis for a remand by this Court. Id.

As an initial matter, Mr. Robinson did not raise his argument regarding VA’s compliance with the Board’s remand order of 2001 before the Board in 2004 when the matter was returned to the Board following its prior remand order. Nevertheless, rather than remanding the case for the Board to discuss that argument in the first instance, we will consider it ourselves. It is not surprising that Mr. Robinson’s Ste-gall argument bears a striking resemblance to his argument that the Board erred in failing to adjudicate service connection on a direct theory. He argues that the November 2002 VA examiner failed to comply with the Board’s October 2001 remand order because the examiner addressed only secondary service connection and did not provide an opinion regarding the etiology of the heart and thyroid conditions. See Appellant’s Br. at 8 (“Dr. Schroff improperly limited his reports only to the issue of whether the two conditions were caused by or related to the [a]ppel-lant’s [peptic ulcer disease].”). Again, we are not persuaded.

The Board’s remand order, read in its entirety, does not support Mr. Robinson’s argument. The relevant paragraphs of the 2001 Board remand order state that the regional office “should arrange for a VA examination ... in order to determine the nature, severity, and etiology” of Mr. Robinson’s heart and thyroid disorders. R. at 189-90. Although such broad language arguably supports Mr. Robinson’s argument, it cannot be read out of context. In that regard, later in the relevant paragraphs of the order, the Board made it abundantly clear that the examiner was requested to opine only as to whether the heart and thyroid conditions were “caused or ... aggravated by the service[-]conneeted peptic ulcer disease,” in other words, as to whether the heart and thyroid conditions are related to Mr. Robinson’s service on a secondary basis. Id. The examiner did not “improperly” limit his opinion, as Mr. Robinson contends; he complied with the Board’s directive regarding the medical examination and opinion required. Appellant’s Br. at 8. In sum, the examiner answered the questions posed by the Board and did not err in failing to render an opinion on a subject other than that to which the Board directed him.

D. Duty To Assist Argument

Mr. Robinson argues that the Secretary violated his duty to assist by relying on the inadequate November 2002 VA examina*557tion report. Because the Court has already concluded that that examination complied with the Board’s October 2001 remand instructions, Mr. Robinson’s duty-to-assist argument — a corollary of his previous argument — is unavailing.

E. Remand Under Maggitt v. West, 202 F.3d 1370 (Fed.Cir.2000)

Despite the complete absence of error in the Board decision on review, the Court still has the power to remand this matter if some other factor renders remand appropriate. 38 U.S.C. § 7252(a). An example of such a factor is an intervening change in law. See, e.g., Vaughn v. Principi, 336 F.3d 1351 (Fed.Cir.2003). However, our power to find that a non-error remand is appropriate does not mean that an appellant is entitled to such a remand when