Aggregated by Superinsight from public-domain sources, as of 2026-09-08.
2 Vet. App. 103
Douglas v. Derwinski, 2 Vet. App. 103, decided 1992-01-24.
STEINBERG, Associate Judge: This case is properly before the Court under 38 U.S.C. §§ 7252, 7266 (formerly §§ 4052 and 4066) and involves an appeal by Navy veteran Charles M. Douglas, from a March 23, 1990, Board of Veterans’ Appeals (BVA or Board) decision denying service connection for basal-cell carcinoma of the neck. The veteran claims that this disease and others from which he suffers resulted from his exposure at the conclusion of World War II to ionizing radiation from the atomic bomb site at Hiroshima. In addition, during a February 6, 1990, hearing before the BVA, the veteran’s representative urged that, alternatively, the Board consider the issue of direct service connection for the appellant’s carcinoma based on excessive exposure to the sun during his tenure as a deckhand in the Pacific Theater. The Board did not address this issue in its decision. We hold that the Board erred in its failure to address the issue of direct service connection and in its failure to apply the correct standard in its review of the causal relationship between the veteran’s exposure to ionizing radiation and his subsequent development of basal-cell carcinoma of the neck. We also hold that the Board failed in several respects to carry out its statutory duty to assist the claimant. For the reasons stated below, we vacate the Board’s decision, re*105tain jurisdiction, and remand the record for readjudication and proceedings consistent with this opinion.
I. BACKGROUND
The veteran served on active duty in the United States Navy from May 28, 1945, to May 21, 1946. R. at 7-8. During the bulk of this time he served aboard the USS Gainard, while it was stationed in the Pacific Theater from the early fall of 1945 through the spring of 1946. R. at 7, 64. The veteran testified under oath, at his February 6, 1990, hearing before the BVA, that throughout his service aboard the USS Gainard and, prior to that time, aboard the USS Admiral W.S. Benson, he served as a deckhand, performing “the basic work on the ship” — manning the guns, chipping, painting, and bringing in the anchors. R. at 104, 105.
He further testified to the BVA that while stationed in Japan he was transported two times to the atomic bomb site at Hiroshima. R. at 91. The veteran further testified that immediately after his discharge from service he began to experience skin ailments. He noticed “red places” and “scabby areas” on his face. R. at 107. He recounted that in the 1950s his physician removed what the veteran believed was a cancerous growth from his neck. R. at 97. In addition, he recalled, although he could not furnish dates, that a cancerous growth was removed from his eyelid and another from his lower back. R. at 100, 103-104, 106. The record does not contain any medical records pertinent to these assertions.
The veteran’s skin problems also included the development on his neck of a basal-cell carcinoma (“an epithelial tumor that seldom metastasizes but has potentialities for local invasion and destruction” (Dorland’s Illustrated Medical Dictionary 272 (27th ed. 1988) (Dorland’s)) which was excised by a private physician in 1973. In a letter dated September 15, 1987, the physician, Dr. Abraham stated in pertinent part:
On October 2,1973 a basal cell carcinoma was excised from the right neck. He has also sun damaged skin ... along with an occasional actinic keratosis [“a sharply outlined, red or skin-colored, flat or elevated” rough or warty growth which “may give rise to a squamous cell carcinoma ... and is caused by excessive exposure to the sun” (Dorland’s at 875)].
R. at 51.
On several occasions between 1984 and 1986, a private physician, Dr. Yarbrough, diagnosed the appellant as having numerous “actinic keratoses”. They appeared twice in 1984 on his scalp, forehead, cheeks, neck, and the left side of his nose. In 1985, the actinic keratoses persisted in these areas, as well as the chest and right ear. In 1986, such growths were again diagnosed on the appellant’s forehead, ears, nose, lip, and back. On each occasion, Dr. Yarbrough removed the actinic keratoses using “cryosurgery” (“destruction of tissue by the application of extreme cold” (Dorland’s at 403)). R. at 40.
The veteran testified under oath to the BVA that there is no family history of skin problems or skin cancer. R. at 47, 94. Moreover, with regard to his lifestyle after service, he testified:
I came back and I was a rate clerk and a dispatcher for a trucking company. That is inside work of course. And then I went to Marshall University and I graduated from there. Then I worked for the International Nickel Company. I worked for them for 26 years. I was their inside supervisor for their inside sales personnel. This went on until I was disabled 13 years ago.
R. at 96. In response to a question from a panel member, he indicated that his exposure to the suii after discharge was “no more than the average inside office worker.” R. at 97.
In addition to the skin problems that the veteran developed after his discharge from the service, he acquired a variety of other impairments that he claims are service-connected. On June 23, 1987, the veteran reopened a claim for service connection based on “radiation exposure” with regard to all of these impairments. R. at 49. (In August 1986, the veteran had filed a similar claim (R. at 16); although the record does *106not reflect the disposition of that claim, it seems fair to assume that it was denied). The Veterans’ Administration (now the Department of Veterans Affairs) (VA) Regional Office (RO) denied his claim in a rating decision dated August 12,1987. The BVA has remanded these other claims to the originating agency. Charles M. Douglas, BVA 89-03499 (hereafter Douglas), at 2 (Mar. 23, 1990).
Subsequent to the August 12, 1987, rating decision, the RO reopened the veteran’s claim after receiving Dr. Abraham’s letter indicating the sun-damaged skin, the occasional actinic keratosis, and the removal of the basal-cell carcinoma from the neck. R. at 51. It requested and obtained from the Defense Nuclear Agency (DNA) a report analyzing the level of radiation to which the veteran was exposed at Hiroshima. R. at 64. The report stated that a scientific dose reconstruction had determined that the maximum possible radiation dose received externally, inhaled, or ingested by an individual at either Hiroshima or Nagasaki for the full duration of the occupation, under the worst-case scenario, equaled less than one rem. Based on this finding, it concluded that the “great majority” of occupation forces probably received no radiation exposure. Ibid.
Ultimately, the VA’s Chief Benefits Director (CBD), in an undated letter to the RO, concluded, pursuant to 38 C.F.R. § 3.311(c)(l)(ii) (1991), that there was “no reasonable possibility that the veteran’s disability was the result of such exposure.” R. at 69. In a rating decision, dated April 18, 1989, the RO again denied the veteran’s claim, stating that the sole issue for consideration was “basal cell carcinoma of the skin secondary to exposure to ionizing radiation.” R. at 73. In the Statement of the Case, the RO stated in its “Reasons FoR Decision”:
A well-known risk factor in the development of basal cell carcinoma is exposure to the sun. The medical evidence also indicates the presence of actinic keratos-es which are due to excessive exposure to the sun. The evidence indicates the' veteran’s basal cell carcinoma is more likely due to exposure to the sun rather than the low levels of ionizing radiation he would have been exposed to while in Hiroshima.
R. at 83. The decision stated nothing about the potential for the veteran to establish direct service connection, pursuant to 38 U.S.C. § 1110 (formerly § 310) and 38 C.F.R. § 3.303(a) (1991), based on excessive exposure to the sun during service.
On June 20, 1989, the veteran appealed this decision to the BVA on the basis that in considering his claim for service connection based on exposure to ionizing radiation, the RO should have addressed not only the basal-cell carcinoma of the neck but also the other disorders the veteran had included in his claim. R. at 84-85. At the February 6, 1990, hearing before the BVA, the veteran’s representative urged the Board to address the appellant’s claim regarding basal-cell carcinoma in two alternative ways, either as the result of ionizing radiation or as the result of direct service connection on the basis of excessive exposure to the sun during service. R. at 89-90, 107-108, 108. He specifically referred to the sun-exposure thesis three times. Ibid. He also suggested that the Board obtain additional medical evidence from Dr. Abraham to corroborate the veteran’s testimony. R. at 108.
In its decision, dated March 23, 1990, the Board did not address the sun-exposure thesis. Rather, the Board framed the issue before it as “entitlement to service connection for basal cell carcinoma of the neck” and addressed only ionizing radiation as a possible cause. Douglas at 2. The “Evidence” considered by the panel included the report of the DNA, medical records, and other materials relating to the veteran’s alleged exposure to ionizing radiation at Hiroshima. However, the Board did not categorize as evidence the reference in the medical records to the veteran’s “sun-damaged” skin or the references in the RO rating decision and BVA hearing to this potential cause of his illness. Instead, it stated that Dr. Abraham had “treated the veteran for damaged skin and actinic kera-tosis.” R. at 3 (emphasis added). In its enumeration of the applicable law and reg*107ulations, the Board did not include reference or citation to the statutory provision and the corresponding regulation (38 U.S.C. § 1110; 38 C.F.R. § 303(a)) under which the veteran is potentially entitled to direct service connection based on exposure to the sun during service. Douglas at 4. Nor did it state the standard that the CBD is required to apply under 38 C.F.R. § 3.311b(c)(l) regarding exposure to ionizing radiation.
In the “Discussion And Evaluation” and “Findings of Fact” sections, the Board opined that the veteran “was probably exposed” to minimal radiation which “probably played no causal role in his development of skin cancer.” Douglas at 5. Thus, it concluded that “[b]asal cell carcinoma of the neck was not incurred in or aggravated by wartime service, and its in-currence in service may not be presumed.” Douglas at 6.
II. ANALYSIS
A. Consideration of the Entire Evidence
The BVA decided the veteran’s claim for disability compensation for basal-cell carcinoma of the neck based solely on the veteran’s contention that the disease was caused by his exposure to ionizing radiation at Hiroshima. Douglas at 2. Although in his Notice of Disagreement or substantive appeal to the BVA (R. at 75, 85), the veteran had not rested his claim on the alternative ground of direct service connection, under 38 U.S.C. § 1110 and 38 C.F.R. § 303(a) (1991), based on sun exposure during service, his representative had thrice raised that thesis in the BVA hearing and substantial evidence existed in the record and hearing before the BVA in support of that thesis. Consequently, the BVA’s failure to address that issue violated 38 U.S.C. § 7104(a) (formerly § 4004), which requires in pertinent part:
Decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record and applicable provisions of law and regulation.
Ibid. (Emphasis added.) Implementing this provision is 38 C.F.R. § 3.303(a) which requires that:
[determinations as to service connection will be based on review of the entire evidence of record, with due consideration to the policy of the Department of Veterans Affairs to administer the law under a broad and liberal interpretation consistent with the facts in each individual case.
38 C.F.R. § 3.303(a) (1991) (emphasis added).
Specifically, the Board did not address the following evidence: (1) the veteran’s sworn testimony that he was stationed in the Pacific Theater during much of his tenure and served as a deckhand (R. at 104-105, 108), that his family history showed no skin cancer or skin problems (R. at 94-95), and that since his discharge from service his employment activities had been indoors and he had not engaged in any significant outdoor recreational activities (R. at 96, 97); (2) the physician’s report that the veteran has had a number of skin growths, at least one of them malignant (R. at 40, 51, 100, 103-104, 106); (3) a BVA panel member’s comment on the veteran’s fair complexion (R. at 107); (4) Dr. Abraham’s letter recounting that the veteran not only had a basal-cell carcinoma, which the physician removed from his neck in 1973, but also that the appellant had “sun-damaged skin ... along with an occasional actinic keratosis” (R. at 51); (5) Dr. Yar-brough’s treatment records indicating that between 1984 and 1986 he saw the veteran four times for treatment of actinic keratos-es (R. at 40); and (6) the rating board’s statement that “[t]he evidence indicates the veteran’s basal cell carcinoma is more likely due to exposure to the sun [rather than to ionizing radiation]” (R. at 83).
The Board’s failure to address this evidence or the potential for establishing direct service connection based on this evidence does not necessarily lead to the logical conclusion that it did not “consider” the evidence. However, as discussed in part B, below, the Board was also statutorily required to address in its decision the evi*108dence it considered, and its failure so to address the evidence is thus conclusive on the issue of whether or not it complied with its obligation under section 7104(a) to consider all the evidence. Hence, the Court concludes that the Board failed to consider “all evidence and material of record” and “the entire record in the proceeding” as statutorily mandated by section 7104(a) or “the entire evidence of record” as required by regulation under 38 C.F.R. § 3.303(a). Moreover, because the evidence outlined above was sufficiently substantial to constitute at least a well-grounded claim for direct service connection, see 38 U.S.C. § 5107(a) (formerly § 3007), Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990) (“A well grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation”), we hold that the section 7104(a) error was “prejudicial” within the meaning of 38 U.S.C. § 7261(b) (formerly § 4061).
B. Reasons or Bases
Concomitant with the Board’s failure to consider relevant testimonial and other evidence is its failure to carry out its obligation under 38 U.S.C. § 7104(d)(1) (formerly § 4004) to state the reasons or bases supporting its decision. As suggested above, even if the Board in fact did consider, in connection with the issue of direct service connection for excessive sun exposure during service, all the evidence outlined above, and dismissed it and the issue, the Board was required, under section 7104(d)(1), to state “the precise basis for [its] decision [and its] response to the various arguments advanced by the claimant”. Hatlestad v. Derwinski, 1 Vet.App. 164, 169 (1991) (citing Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990)). The fulfillment of this task requires “an analysis of the credibility or probative value of the evidence submitted by and on behalf of the veteran in support of his claim [and] a statement of the reasons or bases for the implicit rejection of this evidence by the Board.” Gilbert, 1 Vet.App. at 59; Hatlestad, 1 Vet.App. at 169; Peyton v. Derwinski, 1 Vet.App. 282, 285 (1991).
By the veteran’s sworn testimony, he served as a deckhand in the Pacific Theater for several months. R. at 104-105. He also testified that immediately upon discharge he began to suffer from skin ailments and eventually developed at least one carcinoma which had to be removed. R. at 97, 100, 103, 106, 107. In the same letter that discussed the removal of the basal-cell carcinoma from the veteran’s neck, Dr. Abraham stated that the veteran had sun-damaged skin. R. at 51. At the veteran’s BVA hearing, it was adduced that he has fair skin, has had no family history of skin problems, and had worked indoors upon his return from service, R. at 95, 96-97, 107. In light of the evidentia-ry record, whether the Board believed that the veteran did or did not demonstrate the applicability or potential applicability of the statutory provisions and regulations relating to direct service connection, 38 U.S.C. § 1110 and 38 C.F.R. § 3.303(a), it should have so stated and provided the reasons or bases for its conclusions. See Peyton, 1 Vet.App. at 286-87.
Direct service connection for a disease or injury may be established by demonstrating that it was actually incurred in or aggravated during military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). A claim for direct service connection for skin cancer (or for any other illness or injury) is not invalid, as a matter of law, if evidence of it did not manifest during service or within one year thereafter. Manifestation within the applicable rebuttable presumption period simply entitles a veteran to a presumption of service connection so long as other requirements of the presumption provisions are established. See 38 C.F.R. § 3.307(a), (d) (1991). VA has made efforts in its regulations to ensure that the presumptions are used to aid a veteran in his or her ability to obtain disability benefits rather than to impede that ability. The regulations provide in pertinent part:
Sendee connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit *109service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and Department of Veterans Affairs regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid.
38 C.F.R. § 3.303(d) (1991) (emphasis added); see generally Sokowski v. Derwinski, 2 Vet.App. 75, 78 (1991). Consequently, the development of a cancerous growth or of multiple growths years after service does not eradicate the veteran’s potential for recovery under 38 U.S.C. § 1110 and 38 C.F.R. § 3.303(a).
C. Duty to Assist Regarding Direct Service Connection
The Court has held that 38 U.S.C. § 241(2) (reenacted as § 7722(c) by Pub.L. No. 102-83, § 2(a), 105 Stat. 378 (1991)) imposed, inter alia, at the time in question an affirmative duty to distribute, on an individualized basis, “full information to eligible veterans ... regarding all benefits and services to which they may be entitled under laws administered by [VA]”. See Akles v. Derwinski, 1 Vet.App. 118, 121 (1991). Because of the nonadversarial nature of the VA benefits program, exemplified in this provision, a claimant’s claim may not be ignored or rejected by the BVA merely because it does not expressly raise the provision which corresponds to the benefits sought. Akles, 1 Vet.App. at 121. Consequently, when confronted with evidence demonstrating the potential applicability of a statutory provision or regulation that was not expressly raised by the claimant earlier, the BVA must inform the claimant that he or she may be eligible under that provision.
In Akles v. Derwinski, the appellant was eligible for a benefit, entitlement to which he had not raised below. There, the Court stated in pertinent part:
There is no requirement in the law that a veteran must specify with precision the statutory provisions or the corresponding regulations under which he is seeking benefits. Section 241(2) places the burden on the Secretary to ‘distribute full information to eligible veterans ... regarding all benefits and services to which they may be entitled under laws administered by the Department of Veterans Affairs.’
Akles, 1 Vet.App. at 121 (quoting 38 U.S.C. § 7722(c) (then § 241(2)).
Similarly, even though the appellant in the instant case raised for the first time before the BVA the issue of direct service connection for basal-cell carcinoma resulting from sun exposure in service, the record, described in part A, above, is replete with references to a relationship between excessive sun exposure and the skin cancer and with grounds for inferring that this exposure could reasonably have been attributable to service.
Thus, the Board should have inferred a claim for direct service connection and should have then informed the veteran, pursuant to 38 U.S.C. § 241(2), of his potential entitlement under that claim. For the Secretary or the Court to require a claimant to “develop expertise in laws and regulations on veterans benefits before receiving any compensation” would eliminate the nonadversarial policies around which the veterans benefits program was established. Ibid.
The continuum requiring the Secretary to aid veterans and their dependents in the claims process is carried one step beyond the Secretary’s section 241(2) duty, by his additional statutory duty to assist a claimant who has submitted a well-grounded claim. Although section 241(2) requires the Secretary to “distribute full information” in a neutral manner to eligible veterans and their dependents about benefits to which they may be entitled, 38 U.S.C. § 5107 (formerly § 3007) requires the Secretary to do more — “assist” veterans who have submitted well-grounded claims “in developing the facts pertinent to the claim.” This duty to assist extends to all issues raised by a liberal reading of the substantive appeal {see 38 C.F.R. § 19.-123(a) (1991)) as well as “all [other] doc*110uments or oral testimony submitted prior to the B.VA decision.” EF v. Derwinski, 1 Vet.App. 324, 326 (1991).
Here, the numerous references in the veteran’s sworn testimony and elsewhere in the record, indicating a potential relationship between his basal-cell carcinoma and sun exposure in service as a deckhand, implicitly raised the issue of direct service connection for his basal-cell carcinoma. Thus, the veteran had submitted a well-grounded claim, a “plausible” one, one “capable of substantiation”. Murphy, 1 Vet.App. at 81. The Secretary was, therefore, required to aid the veteran in developing pertinent facts on the issue of sun exposure during service and its relationship to his subsequent development of skin cancer. Here, such assistance would have required a VA compensation and pension (C & P) examination, or an independent medical examination, evaluating the veteran’s service and medical history to determine whether his deckhand exposure to the sun could reasonably have caused his basal-cell carcinoma. Accord Sokowski, 2 Vet.App. at 77 (duty to assist required, at a minimum, a C & P examination or independent medical evaluation to determine whether actinic keratoses which developed into basal-cell carcinomas in veteran who served in Pacific theater were service-connected). Furthermore, because the appellant’s medical evidence of record provided diagnoses only as recent as 1987, an examination was also necessary to determine whether and to what extent the appellant continues to suffer with basal-cell carcinomas.
D. Failure to Adhere to 38 C.F.R. § 3.103(c)(2)
Related to the BVA’s duty to assist a veteran who submits a well-grounded claim is the following regulatory duty imposed on VA personnel who conduct hearings:
It is the responsibility of the VA personnel conducting the hearings to explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant’s position.
38 C.F.R. § 3.103(c)(2) (1991). Although this regulation does not expressly refer to the BVA, its application to the Board is demonstrable. Chapter 19 of 38 C.F.R., entitled “Board of Veterans [sic] Appeals”, is not the only set of regulations applicable to the Board. 38 U.S.C. § 7104(c) provides that the Board is bound in its decisions “by [inter alia] the regulations of the Department [of Veterans Affairs]”. The corresponding regulation, 38 C.F.R. § 19.103 (1991), provides: “The Board shall be bound by the laws and regulations of the Department of Veterans Affairs”. In addition, there exists in that chapter 19 a cross reference to 38 C.F.R. § 3.103. Section 19.101(c) discusses the Department’s policy of “providing assistance to the appellant”, and concludes with a cross reference which states: “Due Process—procedural and appellate rights with regard to disabili-ty_ See § 3.103.” These statutory and regulatory provisions thus make clear that, the BVA is required to adhere to chapter 3 in its adjudications; whereas chapter 3' is intended to apply to all adjudicative bodies throughout the VA claims process, chapter 19 is intended to establish only those duties and procedures peculiar to the BVA. We, therefore, hold that section 3.103(c)(2) is fully applicable to the BVA.
In light of the duty imposed on the BVA by section 3.103(c)(2), the Board should have fully explained to the veteran that his exposure to the sun during service, his later development of basal-cell carcinoma, and his physician’s statement about his sun-damaged skin raised the issue of direct service connection for his illness. This would have enabled the veteran to focus on submitting proof on that issue. Accordingly, the Board should have suggested the submission of evidence necessary to establish that claim, such as a medical opinion explicitly concerning the relationship between the veteran’s sun exposure in service and the development of the illness, as well as additional lay evidence.
E. Radiation Claim—Application of the Standard Set Forth in § 3.311b(c)(l)(ii)
When it is determined, pursuant to 38 C.F.R. § 3.311b(b) (1991), that a veteran *111(1) was exposed to ionizing radiation during service, (2) subsequently developed a ra-diogenic disease as described in the regulation, and (3) manifested the disease within one of the time frames specified in the regulation, the claim is referred to the CBD, pursuant to section 3.311b(b)(iii), for consideration under 38 C.F.R. § 3.311b(c). Under section 3.311b(c), the CBD must determine, based on “sound scientific and medical evidence”, whether it is “at least as likely as not” that the veteran’s disease resulted from exposure to radiation in service, or whether there is “no reasonable possibility” that the veteran’s disease resulted from exposure to radiation in service. If the CBD is unable to draw either conclusion, he or she is required to “refer the matter to an outside consultant.” 38 C.F.R. § 3.311b(c)(i), (ii). Pursuant to section 3.311b(c)(ii), if the CBD determines that there is “no reasonable possibility” that the veteran’s disease resulted from radiation exposure in service, the CBD must inform the RO in writing of that conclusion and the rationale for it.
In this case, the CBD concluded that there is “no reasonable possibility that the veteran’s disability was the result of such exposure.” R. at 69. The BVA, in its review of the RO denial of the claim, erred by veering from this standard (as did the RO (R. at 83)). In its “Findings of Fact” the Board stated that the “radiation exposure probably played no causal role in his development of skin cancer.” Douglas at 5. “[T]he BVA, in reviewing the RO denial of the claim, must use the same standard for its decision as that ... set forth in 38 C.F.R. § 3.311b(c)(1) and (2).” Sawyer v. Derwinski, 1 Vet.App. 130, 135 (1991). The Court has held that the “absence of ‘probability’ [imposes] a higher standard [of proof on the veteran’s evidence] than ‘no reasonable possibility’ ”. Ibid. Consequently, it is critical that a BVA or RO review of a CBD opinion seek to ensure that there is “no reasonable possibility” that a veteran’s skin cancer resulted from exposure to radiation, rather than to conclude that such a nexus “probably” did not occur. Thus, the veteran’s claim that his skin cancer was caused by ionizing radiation must be readjudicated de novo in conformance with the guidelines in 38 C.F.R. § 3.311b(b) and (c). See Sawyer, 1 Vet.App. at 133-34, 135.
III. CONCLUSION
Accordingly, the Secretary’s motion for summary affirmance is denied, since the Court is not satisfied that the criteria set forth in Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990), have been met. For the foregoing reasons, the Board’s March 23, 1990, decision is vacated, the Court retains jurisdiction, and the record is remanded to the Board for prompt readjudication and proceedings consistent with this opinion. On remand, the Board shall consider the entire evidence of record. Furthermore, it shall assist the veteran by obtaining a medical examination, which explicitly addresses the issue of direct service connection as a result of sun exposure, and permit, indeed invite, the veteran to submit new evidence with respect to that claim. The Board shall provide in its decision an adequate statement of reasons or bases for its conclusions, including “an analysis of the credibility or probative value of the evidence submitted by ... the veteran in support of his claim, [and, if it rejects the claim,] a statement of the reasons or bases for the ... rejection of this evidence”. Gilbert, 1 Vet.App. at 59. Finally, the Board shall utilize the proper standard, as set forth in 38 C.F.R. § 3.311b(c) in reviewing the veteran’s radiation exposure claim. The Secretary shall file with the Clerk of the Court and serve upon the appellant a copy of the Board’s decision on remand. Within 14 days after such filing, the appellant shall notify the Clerk whether he desires to seek further review by the Court.
VACATED AND REMANDED.
2 Vet. App. 435
Douglas v. Derwinski, 2 Vet. App. 435, decided 1992-05-21.
STEINBERG, Associate Judge, filed the opinion of the Court.
STEINBERG, Associate Judge: Because this opinion overrules a portion of Sawyer v. Derwinski, 1 Vet.App. 130, 135 (1991), this case has been presented to the full Court for en banc consideration. See Bethea v. Derwinski, 2 Vet.App. 252, 254, (1992) (“only the en banc Court may overturn a panel decision”).
In an earlier opinion in this case, dated January 24, 1992, the Court vacated the decision of the Board of Veterans’ Appeals (BVA or Board) and remanded the record for readjudication. Douglas v. Derwinski, 2 Vet.App. 103 (1992) (hereafter referred to as Douglas I). On February 21, 1992, the Secretary of Veterans Affairs (Secretary) filed a motion for reconsideration or, in the alternative, en banc review. The Secretary makes the following primary arguments: (1) the BVA was not required to consider, under 38 C.F.R. § 3.303(a) (1991), the issue of direct service connection for appellant’s basal-cell carcinoma; (2) 38 C.F.R. § 3.103(c)(2) (1991), governing hearing rights, does not apply to the Board in its conduct of hearings; (3) 38 U.S.C. § 7722(c) (previously contained in § 241(2)) does not apply generally to the BVA; and (4) in the evaluation of claims based on exposure to ionizing radiation, the BVA is not required to apply the standard of review set forth in 38 C.F.R. § 3.311b(c)(l)(ii) (1991), but, rather, is required to apply the more traditional standard set forth in paragraph (f) of the regulation. Appellee’s Motion for Reconsideration (Mot. for Recons.).
For the reasons set forth below, the en banc Court will grant the Secretary’s motion for review, and reaffirm all parts of the January 24, 1992, opinion with the exception of the part relating to the Secretary’s fourth contention above, and vacate that portion of Douglas I, specifically, part II.E., 2 Vet.App. at 110-11. The Secretary’s motion for panel reconsideration will be denied as moot. On May 4, 1992, the Court received from the Secretary notice of action taken by the BVA in this case to comply with the Court’s January 24, 1992, opinion. See Douglas I, 2 Vet.App. 103. The BVA had issued a decision on April 8, 1992, remanding the record to the originating agency for the submission of additional evidence on the issue of direct service connection for basal-cell carcinoma and actinic keratosis, for the conduct of a thorough medical examination, and for adjudication of the issue of direct service connection for skin diseases resulting from in-service exposure to the sun. Since the Court will affirm all parts of Douglas I that relate to the Board’s remand order, its instructions to the originating agency are not in conflict with this opinion.
We will summarize the facts previously before the Court and the Court’s conclu*438sions in Douglas I, and will then address the Secretary’s objections to those conclusions.
I.
The appellant appealed to the Court the BVA’s March 23, 1990, denial of his claim for service connection for basal-cell carcinoma of the neck. Charles M. Douglas, BVA 89-03499 (Mar. 23, 1990). He claimed that the carcinoma resulted from his exposure at the close of World War II to ionizing radiation from the atomic bomb site at Hiroshima. Ibid.
Medical evidence submitted by the veteran to the Department of Veterans Affairs (VA or Department) suggested that his basal-cell carcinoma may have resulted directly from excessive exposure to the sun during his tenure as a deckhand in the Navy, and the veteran’s representative thrice raised this alternative ground at a hearing before the BVA. Douglas I, 2 Vet.App. at 106-07. However, the BVA made no findings with regard to this contention, addressing only whether exposure to ionizing radiation could have caused the veteran’s illness. Regarding the possibility of direct service connection, the Court found the BVA’s decision defective for failing (1) to consider the entire evidence pursuant to 38 U.S.C. § 7104(a) (formerly § 4004) and 38 C.P.R. § 3.303(a); (2) to provide adequate reasons or bases, pursuant to 38 U.S.C. § 7104(d)(1), for its findings; (3) to fulfill its statutory duty to assist, under 38 U.S.C. § 5107(a) (formerly § 3007), and its related obligations under 38 U.S.C. § 7722(c); and (4) to adhere to 38 C.F.R. § 3.103(c)(2). In addition, the Court held that the BVA’s decision was defective because the Board did not apply to the radiation claim the standard of review set forth in 38 C.F.R. § 3.311b(c)(l)(ii).
II.
A. Consideration of the Entire Evidence
In its earlier opinion, the Court held that the BVA had failed to adhere to 38 U.S.C. § 7104(a) and 38 C.F.R. § 3.303(a), which require that the Board consider the entire evidence of record in making its decisions. The Court enumerated several references in the record to the veteran’s fair skin, substantial exposure to the sun during service, and resulting medical problems, which implied a claim under 38 U.S.C. § 1110 (formerly § 310) and 38 C.F.R. § 3.303(a), for direct service connection for basal-cell carcinoma arising from sun exposure. Douglas I, 2 Vet.App. at 107. Moreover, the Court pointed out the three times that the veteran’s representative at the BVA hearing had urged consideration of the theory of direct service connection based on sun exposure. Id. at 106. Evidence supporting the viability of this theory was before the BVA but was either not considered by it, or, in the alternative, considered but not addressed in its decision.
The Secretary now argues that neither the case law nor the regulations “compel[ ]” the Court’s holding. Mot. for Recons. at 4. He further argues that, under 38 C.F.R. § 19.123 (1991), the Board is required to address only issues raised in the VA Form 1-9 (substantive appeal to the BVA) or those which may be reasonably construed from that document. Ibid. We disagree with the Secretary and conclude that the statute, regulations, and case law clearly support the Court’s holding that the Board was required to consider all the evidence and that it failed to do so here.
Section 7104(a) of title 38, United States Code, requires in pertinent part:
Decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record and applicable provisions of law and regulation.
(Emphasis added.) Section 3.303(a) of VA’s regulations similarly requires that “[djeter-minations as to service connection will be based on review of the entire evidence of record’’. 38 C.F.R. § 3.303(a) (1991) (emphasis added).
When the Court “find[s] the terms of a statute unambiguous, judicial inquiry is complete except in rare and exceptional circumstances”, as where “application of the statute as written will produce a result ‘demonstrably at odds with the intentions *439of its drafters’ Demarest v. Manspeaker, 498 U.S. 184, 111 S.Ct. 599, 604, 112 L.Ed.2d 608 (1991) (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571, 102 S.Ct. 3245, 3250, 73 L.Ed.2d 973 (1982)); see Thompson/Center Arms Co., A Div. of the K. W. Thompson Tool Co. v. United States, 924 F.2d 1041, 1044 (Fed.Cir.1991) (“[o]nly very clear evidence of contrary legislative intent can displace the plain meaning of a statute”). Review of the legislative history reveals no intention by Congress to limit the BVA’s consideration of evidence to only that evidence supporting a legal issue expressly raised in the Form 1-9 substantive appeal. Similarly, nowhere do the statutory provisions relating to the claimant’s filing a “formal appeal” in order to perfect an appeal to the BVA (initiated by the filing of a Notice of Disagreement with a regional office decision, followed by a Statement of the Case by a regional office) provide that only legal issues raised in the formal appeal, and evidence pertinent to those issues, must be considered by the Board. See 38 U.S.C. § 7105(d)(3), (4), (5) (formerly § 4005). We have been presented with no evidence more persuasive of the meaning of 38 U.S.C. § 7104(a) “ ‘than the words by which the legislature undertook to give expression to its wishes.’ ” Griffin, 458 U.S. at 571, 102 S.Ct. at 3250 (quoting United States v. American Trucking Assns., Inc., 310 U.S. 534, 543, 60 S.Ct. 1059, 1063, 84 L.Ed. 1345 (1940)). Thus, if the evidence of record supports entitlement to disability compensation under a statutory provision or regulation not raised or argued in the Form 1-9 appeal, the BVA may not decline to consider it.
The Secretary seeks to bypass the plain meaning of the above statutory and regulatory provisions as well as the applicable precedents of this Court, arguing that 38 C.F.R. § 19.123 (see 57 Fed.Reg. 4,112 (1992) (to be codified at 38 C.F.R. § 20.202)) limits the review by the BVA to the four comers of the Form 1-9 substantive appeal. Mot. for Recons, at 3-4. However, this interpretation of the regulation fails to accord with the language of the regulation itself, which, as reformulated, states that claimants “should” set forth in their substantive appeals to the BVA the “specific arguments relating to errors of fact or law”. “[Arguments” made will be construed liberally to determine whether they raise cognizable issues. 57 Fed.Reg. 4,112 (1992). Nowhere does the regulation state that only the issues raised in the Form 1-9 appeal must be considered; nor does the regulation state that the BVA must consider only the evidence pertinent to the issues raised explicitly in the Form 1-9 appeal. Moreover, a contrary interpretation of the regulation would conflict with the mandates of 38 U.S.C. § 7104(a) and 38 C.F.R. § 3.303(a), discussed above, requiring that the BVA consider all the evidence of record.
Furthermore, the Secretary’s interpretation of the actions the BVA must undertake in evaluating appeals is also contrary to a basic principle of the VA claims process that claims will be processed and adjudicated in an informal, nonadversarial atmosphere, and that to ensure a just outcome under this rubric VA will assist claimants in many ways. See Littke v. Derwinski, 1 Vet.App. 90, 91-92 (1990). This principle has been codified in many statutory provisions requiring VA to take a variety of steps to aid veterans in the development, presentation, and consideration of their claims. See 38 U.S.C. §§ 5106 (formerly § 3006), 5107(a), (b), 5109 (formerly § 3009), 7722(c), (d). Only if all the evidence of record is considered by the BVA may these obligations properly be fulfilled, as exemplified in EF v. Derwinski, 1 Vet.App. 324, 326 (1991). There, the Court stated that, although the arguments made in a Form 1-9 appeal to the BVA often frame the nature of that appeal: “there is nothing magical about the statements actually on the 1-9 form, given the VA’s nonad-versarial process. The VA’s statutory ‘duty to assist’ must extend this liberal reading to include issues raised in all documents or oral testimony submitted prior to the BVA decision.” Id. at 326 (emphasis added).
For the reasons above, the BVA’s failure to adhere to 38 U.S.C. § 7104(a) and *44038 C.F.R. § 3.303(a) by “acknowledgpng] and actpng] upon relevant assertions and issues which the record clearly shows” was, under 38 U.S.C. § 7261(a)(3)(A), “not in accordance with law”, requiring the Court to set aside the Board’s decision. Payne v. Derwinski, 1 Vet.App. 85, 87 (1990). In Payne, the Court remanded the case to the BVA to consider the applicability of 38 C.F.R. § 3.310(a) (1991), governing entitlement to service connection for secondary conditions, since evidence in the record before the Board had suggested that a right-knee disability had arisen from a service-connected left-knee disability, and the BVA had not considered, or, at least, acknowledged, the right-knee evidence supporting consideration of that regulation. Id. at 87. In Schafrath v. Derwinski, 1 Vet.App. 589, 592-93 (1991), the Court held that the BVA’s failure to acknowledge or consider 38 C.F.R. § 4.40 (1991), governing application of a compensable rating due to pain, which was “made potentially applicable through assertions and issues raised in the record”, was unlawful where the BVA did not acknowledge or consider the regulation, even though it was never mentioned by the claimant.
Similarly, in the instant case, the appellant presented sufficient evidence to require consideration and discussion of the application of 38 U.S.C. § 1110 and 38 C.F.R. § 3.303(a) (as it concerns entitlement to direct service connection) to the evidence supporting direct service connection for basal-cell carcinoma based on sun exposure during service. Moreover, his representative even raised, explicitly, at his hearing the theory of sun exposure as the cause of his basal-cell carcinoma. Douglas I, 2 Vet.App. at 106. EF, Payne, and Schafrath have established that the Board is not free to ignore an applicable regulation and the evidence supporting its application despite an appellant’s failure to raise explicitly in his substantive, formal appeal the applicability of the regulation and the evidence pertinent to it. See also Schaper v. Derwinski, 1 Vet.App. 430, 434 (1991) (quoting Smith v. Derwinski, 1 Vet.App. 267 (1991)) (in remanding to BVA for, inter alia, failure to make determination on appellant’s challenge as to validity of asserted debt, court stated that “ ‘[i]n reviewing a benefits decision, the Board must consider the entire record, all of the evidence, and all of the applicable laws and regulations’ ”); Peyton v. Derwinski, 1 Vet.App. 282, 286-87 (1991) (instructing Board on remand to consider potentially applicable regulations which it failed to cite or discuss). Consequently, we reaffirm that the Board’s failure to consider and discuss specifically all of the evidence before it and the legal issue raised thereby was prejudicial error warranting a remand in this case. See 38 U.S.C. § 7261(a)(3)(A).
B. Application of 38 C.F.R. § 3.103(c)(2)
The Court’s previous conclusions regarding the applicability of 38 C.F.R. § 3.103(c)(2) (1991) are also not overcome by the Secretary’s arguments. See Mot. for Recons, at 4-7. We continue to maintain that, under 38 U.S.C. § 7104(c) and 38 C.F.R. § 19.103 (1991), the Board is required to adhere to “the regulations” of the Department. Douglas I, 2 Vet.App. at 110. Neither the statutory provision nor the implementing regulation delineate particular regulations, such as 38 C.F.R. § 3.103(c)(2), with which the Board need not comply. See Demarest, 111 S.Ct. at 604 (most persuasive evidence of purpose of statute is words chosen by legislature to express its wishes). Moreover, as pointed out in Douglas I, the applicability of chapter 3 of title 38 of the Code of Federal Regulations to the BVA is demonstrated in chapter 19. Entitled “Board of VeteRans Appeals”, chapter 19 specifically cross-references section 3.103 at the conclusion of its discussion, in subsection 19.101(c), of “providing assistance to the appellant”.
In his reconsideration motion, however, the Secretary argues that the Court’s position conflicts with VA’s adjudication and appeals process as “envisioned by parts 3 and 19 of title 38” of the Code of Federal Regulations. Mot. for Recons, at 4. The Secretary asserts that the portion of chapter 3 dealing with “administrative provisions”, of which section 3.103 is a part, applies to the originating agencies — the regional offices — but not to the BVA. Id. at *4415. Rather, the Secretary asserts, the only portions of chapter 3 applicable to the BVA are the “benefits provisions”. Ibid.
This argument is unpersuasive. First, the cross-reference in subsection 19.101(c) to section 3.103 demonstrates that VA itself has adopted a contrary position. Moreover, the plain language of the statutory and regulatory provisions at issue demonstrates that Congress and VA have “envisioned” a Board of Veterans’ Appeals bound by the regulations that bind the entire Department.
The Secretary also posits in support of his argument that the references in chapter 3 to “claimánts” as contrasted with “appellants”, to which reference is made more predominantly in chapter 19, demonstrate the exclusion of VA’s subsection 3.103(c)(2) responsibilities from the obligations imposed on the BVA. Mot. for Recons, at 5-
Hearings in connection with proposed adverse actions and appeals shall be held before VA personnel having original determinative authority who did not participate in the proposed action or the decision being appealed.
38 C.F.R. § 3.103(c)(1) (1991) (emphasis added). The provision indicates that, although parties whose claims are before a regional office are predominantly labelled in the Code of Federal Regulations as “claimants” and parties before the BVA are predominantly labelled as “appellants”, both sets of parties fall within the purview of section 3.103(c) since “adverse actions” involving “claimants”, and “appeals” involving “appellants” are both encompassed in the regulation. (It should be noted that similar language in the M21-1 Adjudication Procedure Manual makes clear that the phrase “original determinative authority” in subsection 3.103(c)(1) refers to VA personnel authorized to preside over hearings, “acting as a hearing agency for the BVA”, conducted locally for claimants who choose not to make an appearance before the Board in Washington, D.C., or await the arrival of a travelling panel of the Board, see VA Adjudication Procedure Manual, M21-1, § 18.17a(l), d; the phrase does not imply that section 3.103(c)(1) deals only with hearings concerning initial claims made to the VA regional office.)
Indeed, VA’s own Adjudication Procedure Manual, M21-1, deflates the Secretary’s argument about the relevance of the labels “claimant” and “appellant” in the Code of Federal Regulations to the division of responsibility within the Department. Chapter 18 of the Manual is entitled “Appeals”. Section 18.17 is entitled “Hearings, General”. The section begins with paragraph (a), which states that the “claimant” in an appealed case may have a hearing before the BVA in Washington or may make an appearance at the regional office “prior to the submission to the BVA”. Here, the Department is clearly using “claimant” in discussing an appealed case.
Additional support for the Court’s interpretation is found in the M21-1 Manual section 18.18, entitled “Conduct of Hearings”. It states in subparagraph (1) of paragraph (a), in pertinent part: “The due process requirements stated in [38 C.F.R. 3.103] are for application throughout the adjudicative process.” (Bracketed portion not added.) The guideline does not exclude any part of the regulation from application by the BVA. Moreover, paragraph (c) of that section of the guideline, discussing the nonadversarial and “Ex Parte” nature of hearings on appeal, explicitly applies section 3.103(c)(2), stating: “Suggestions to the claimant as to submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant’s position should be made.” Because this paragraph has been included in the Manual since at least March 18, 1983, it may reasonably be considered a more consistent VA interpretation of the regulation than that provided by the Secretary in his arguments in this case.
Accordingly, the Court’s conclusion that subsection 3.103(c)(2) applies to the *442BVA not only derives from the plain language of the statutory and regulatory provisions involved, but is buttressed by VA’s own internal guidelines which contradict the position the Secretary has taken here. For these reasons, the Court continues to hold that, under 38 C.F.R. § 3.103(c)(2), the BVA was obliged to have fully explained to the veteran that his exposure to the sun during service, his later development of basal-cell carcinoma, and his physician’s statement about his sun-damaged skin raised the issue of direct service connection for his illness, and to have suggested to him the submission of additional evidence he may have overlooked that would have helped his case. Douglas I, 2 Vet.App. at 110.
C. Application of 38 U.S.C. § 7722(c)
In Douglas I, the Court held that 38 U.S.C. § 241(2) (reenacted in § 7722(c)) required the Board to provide in this case “full information ... regarding all benefits and services to which [the veteran] may be entitled under laws administered by [VA]”. The obligations set forth in that provision were held to require the Board to have apprised the veteran of his potential entitlement to service-connected disability compensation for basal-cell carcinoma caused by excessive exposure to the sun during service. On August 6, 1991, Congress reenacted 38 U.S.C. § 241(2) in section 7722(c). P.L. No. 102-83, § 2(b), 105 Stat. 378, 400 (1991). When a “law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to appellant” generally applies. See Karnas v. Derwinski, 1 Vet.App. 308, 313 (1991). Because the language contained in paragraph (c) of section 7722 is nearly identical to that of former section 241(2) and because application of the new provision — section 7722 — is no less favorable to the appellant than application of the old, the new provision governs in this case.
38 U.S.C. § 7722(c) provides, in pertinent part:
The Secretary shall distribute full information to eligible veterans and eligible dependents regarding all benefits and services to which they may be entitled under laws administered by the Department and may, to the extent feasible, distribute information on other governmental programs (including manpower and training programs) which the Secretary determines would be beneficial to veterans.
Relying on the language of the statutory provision and Akles v. Derwinski, 1 Vet. App. 118, 121 (1991), the Court held in Douglas I that, because the BVA was confronted with evidence in this case that raised the issue of entitlement to direct service connection for the veteran’s basal-cell carcinoma, the Board was required under section 7722(c) to inform the veteran that the legal issue of direct service connection was presented and that its development could entitle him to disability compensation. Douglas I, 2 Vet.App. at 109.
The Secretary argues that this case is distinguishable from Akles, and that, therefore, the obligations of section 7722(c) should not be imposed on the BVA here. Mot. for Recons, at 8. More specifically, he argues that the Court found former section 241(2) applicable in Akles only because VA’s M21-1 Manual requires that a regional office infer from a claim for disability compensation the issue of entitlement to special monthly compensation. Absent such a requirement in that Manual, contends the Secretary, the BVA is not required to infer issues from the record before it, unless the veteran “sought benefit information from the outreach program” or “was unaware of how to present a claim for benefits”. Mot. for Recons, at 8.
The Court is unpersuaded by the Secretary’s attempt to distinguish Akles. Indeed, Akles is controlling in the evaluation of the BVA’s obligations in this case. There, the Court found the requirements of former section 241(2) applicable to the BVA because the actions it required were (and continue to be under section 7722(c)) “in keeping” with the “essence” of VA’s non-adversarial system and because requiring veterans to develop expertise in the laws *443and regulations would be contradictory to that system. Akles, 1 Vet.App. at 121. The Court also discussed the BVA’s statutory duty, under section 5107(a), to assist the veteran.
The existence of the guideline concerning special monthly compensation simply provided an additional reason that VA should have considered the veteran for special monthly compensation in Akles. The Court expressly stated that “[h]ere, the failure by the VA to consider the veteran for special monthly compensation is even more grievous” because of the Manual provision requiring that VA infer a claim for special monthly compensation. Ibid.
The Secretary also argues that the obligations of section 7722 do not apply generally to the BVA. Mot. for Recons, at 9. Again, we remind the Secretary that the BVA, as a component of VA and as an entity under the authority of the Secretary, is bound by statute and regulation to adhere to VA laws and regulations. See 38 U.S.C. § 7104(c); 38 C.F.R. § 19.103. The title of section 7722, “Outreach services”, does not connote a separate branch of VA, alone responsible for carrying out the mandates of the provision. Instead, it imposes duties on the Secretary generally to effectuate the purpose of the subchapter. Indeed, section 7722 previously has been held by the Court to require of VA, to the extent feasible, individualized actions that comport with the provision’s mandates. See Morris v. Derwinski, 1 Vet.App. 260, 264-65 (1991); Littke v. Derwinski, 1 Vet.App. 90, 92 (1990). The BVA, having been presented with the question of direct service connection by the veteran’s service representative, certainly could feasibly have distributed information to the veteran on that issue.
D. Application of 38 C.F.R. § 3.311b
We do, however, find the last of the Secretary’s contentions telling. In considering in Douglas I whether the BVA applied the proper standard in the evaluation of the veteran’s radiation claim, the Court relied on the holding in Sawyer v. Derwinski, 1 Vet.App. 130, 135 (1991), that 38 C.F.R. § 3.311b(c)(1)(ii) requires that the adjudicators, including the BVA, evaluating a claim under regulation section 3.311b may reject the claim only if they find that there is “no reasonable possibility” that the veteran’s carcinoma resulted from exposure to ionizing radiation. Douglas I, 2 Vet.App. at 111. As in Sawyer, the Court held that the BVA’s failure to apply that standard was prejudicial error. Ibid.
The Secretary has persuaded us that, notwithstanding the Court’s holding in Sawyer, paragraph (c)(1)(h) does not provide the standard for the BVA’s adjudication of claims for entitlement to service-connected disability compensation based on exposure to ionizing radiation. Instead, paragraph (c) applies only to a determination which the Chief Benefits Director is required to make as a prelude to the formal adjudication of a claim covered by section 3.311b. As the Secretary points out, the BVA’s treatment of the issue is governed by paragraph (f), which provides, in pertinent part:
The determination of service connection will be made under the generally applicable provisions of this part, giving due consideration to all evidence of record, including any opinion provided by the Chief Medical Director or an outside consultant, and to the evaluations published pursuant to § 1.17 of this title.
38 C.F.R. § 3.311b(f) (1991). Only paragraph (f) addresses explicitly the determination of service connection — made by the regional offices and the BVA — in radiation claims filed under section 3.311b. Hence, we agree with the Secretary that the BVA must adhere to the more traditional standard set forth in paragraph (f) and need not apply the specific “no reasonable possibility” standard imposed on the Chief Benefits Director in paragraph (c)(l)(ii). Of course, the Chief Benefits Director is still required to apply the standard set forth in paragraph (c) and a failure to do so would necessitate a remand by the Board for that purpose. See 38 C.F.R. § 19.182(a) (reformulated in 57 Fed.Reg. 4,105 (1992) (to be codified at 38 C.F.R. § 19.9)) (remand to agency of original jurisdiction required *444when BVA discovers procedural defect during course of review).
III.
In view of the foregoing discussion and after consideration of the Secretary’s motion for review en banc, that motion is granted, and the Court en banc has reconsidered the panel opinion. The Court, en banc, reaffirms the panel’s original opinion in Douglas I with the exception of part II.E. thereof, 2 Vet.App. at 110-11, which is vacated and superseded by the holding in part II.D., above. The Secretary’s motion for panel reconsideration is denied as moot.
It is so Ordered.