dissenting:
I respectfully dissent from the majority’s interpretation and application of the United States Court of Appeals for the Federal Circuit’s (Federal Circuit) decision in Schroeder v. West, 212 F.3d 1265 (Fed.Cir.2000), and from the majority’s application of Sims v. Apfel, 530 U.S. 103, 120 S.Ct. 2080, 147 L.Ed.2d 80 (2000), and Maggitt v. West, 202 F.3d 1370 (Fed.Cir.2000) in this case.
The appellant argues that “[t]he Board and Secretary failed to address Mr. Robinson’s two claims on a direct service connection basis to adjudicate whether his thyroid condition and/or his heart condition were caused in part by his military duties in service.” Appellant’s Brief (Br.) at 11-12. He contends that this failure is a violation of the Federal Circuit’s holding in Schroeder, which he contends requires VA to assist the claimant by investigating “all possible in-service causes of that current disability, including those unknown to the veteran.” Appellant’s Br. at 12 (quoting Schroeder, 212 F.3d at 1271 (emphasis in original, omitted in Br.)). The majority concludes that Schroeder, because it dealt with a Board denial based on both a direct theory of service connection and a pre*559sumptive theory of service connection, addresses only the consequences of the Board denying benefits on multiple bases previously raised by the appellant, and is not applicable because this case has involved only the denial of benefits on one basis — secondary service connection. Ante p. 552.
Although Schroeder undeniably arose in the context of the Board denying benefits on multiple bases that were previously raised by the appellant, I see no reason to limit what is, in my view, its essential holding, as the majority does. The Federal Circuit did not qualify VA’s obligation to assist a claimant, nor does the Schroeder holding turn on the procedural posture of the case. I believe the breadth of the Federal Circuit’s language also undermines the majority’s assertion that “Schroeder does not address whether VA has an obligation to explicitly discuss sua sponte a particular theory in the first place.” Ante p. 552. If VA’s obligation to investigate causes of a disability includes those causes that are “unknown” to the claimant, these causes would not and could not have been previously raised by the appellant. VA would necessarily have the obligation to consider those causes sua sponte. In fact, sua sponte consideration of claims and theories is exactly what is required of VA as a result of VA’s duty to investigate all possible in-service causes of a condition as well as VA’s duty to read pro se pleadings — such as the appellant’s initial application for benefits — sympathetically. See Andrews v. Nicholson, 421 F.3d 1278, 1282 (Fed.Cir.2005) (“Roberson [v. Principi, 251 F.3d 1378 (Fed.Cir.2001)] requires, with respect to all pro se pleadings, that the VA give a sympathetic reading to the veteran’s filings.” (quoting Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed.Cir.2004) and citing Moody v. Principi, 360 F.3d 1306, 1310 (Fed.Cir.2004))); see also R. at 122-25.
To be clear, VA’s duty to assist a claimant by investigating all possible in-service causes of a current disability is not absolutely limitless — it is an inquiry into what is possible. VA must consider factors such as the circumstances of service, the type of disability for which the claimant seeks benefits, and any evidence of record. Regulatory provisions already suggest circumstances in which VA is not obligated to provide assistance, for example, where the claimant is ineligible for the benefit sought because of “lack of qualifying service, lack of veteran status, or other lack of legal eligibility;” if the claim is “inherently incredible or clearly lack[s] merit;” or if the application requests a “benefit to which the claimant is not entitled as a matter of law.” 38 C.F.R. § 3.159(d)(l-3) (2007). There is no argument that Mr. Robinson’s application is not substantially complete, or that he lacks qualifying service, veteran status, or legal eligibility, or that his claim is inherently incredible, or that he is not entitled to benefits as a matter of law.
VA’s duty to assist the claimant is the cornerstone of the nonadversarial claims adjudication system the Agency is meant to operate. The Federal Circuit has explained the current nature of the duty to assist, contrasting it with its former incarnation:
On November 9, 2000, Congress enacted the VCAA [Veterans Claims Assistance Act], Pub.L. No. 106-475, 114 Stat. 2096 (codified in scattered sections of 38 U.S.C.), which “amend[ed] title 38, United States Code, to reaffirm and clarify the duty for the Secretary of Veterans Affairs to assist claimants for benefits under laws administered by the Secretary, and for other purposes.” Among other things, the VCAA removed the requirement of former § 5107(a) that a claimant first establish a well-grounded *560claim before VA was to begin providing assistance. Further, it amended existing §§ 5102 and 5103 and added new §§ 5100 and 5103A, expanding VA’s duty to assist claimants in several respects. Specifically, new § 5103A(a) imposes on VA a duty to assist a claimant by making reasonable efforts to assist him or her in obtaining evidence necessary to substantiate a claim for benefits. 38 U.S.C. § 5103A(a). Further provisions outline the details of providing such assistance in obtaining information, evidence, and records from government and private sources; informing the claimant if VA is unable to obtain pertinent evidence; and providing a medical examination or medical opinion when necessary to resolve the claim.
Paralyzed Veterans of Am. v. Sec’y of Veterans Affairs, 345 F.3d 1334, 1338-39 (Fed.Cir.2003).
The critical change in VA’s duty to assist wrought by the VCAA regards when the duty is triggered. The duty to assist is now triggered by VA’s receipt of a “substantially complete application for benefits,” 38 C.F.R. § 3.159(c) (2007), which means, for a case such as Mr. Robinson’s, an application “containing the claimant’s name ... sufficient service information for VA to verify the claimed service, if applicable; [and] the benefit claimed and any medical condition(s) on which it is based.” 38 C.F.R. § 3.159(a)(3) (2007).
In October 2001, the Board remanded Mr. Robinson’s claim “for compliance with the notice and duty to assist provisions contained in the [VCAA].” R. at 187. I cannot say why VA never considered the possibility of direct service connection in this case because it cannot be ascertained from the record why VA elected only to consider the claim on a secondary basis. The Board decision here on appeal provides very little guidance. After listing the various statutory and regulatory provisions governing the direct theory of service connection (R. at 8), the Board went on only to evaluate the case as a claim for benefits on a secondary basis, having concluded that “the veteran contends that [his current conditions] were caused or aggravated by service-connected peptic ulcer disease, rather than due directly to any incident of active service.” R. at 8. The Board did not provide a sufficient explanation of the reasons or bases for concluding that the appellant’s arguments were competent to limit VA’s development and adjudication of the case. See 38 U.S.C. § 7104(d)(1) (requiring the Board, in rendering its decision, to provide a written statement of the reasons or bases for its “findings and conclusions[ ] on all material issues of fact and law presented on the record”); see also Espiritu v. Derwinski, 2 Vet.App. 492, 494-95 (1992) (indicating that evidence regarding medical diagnoses provided by a person without “medical knowledge” is not probative); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990) (holding that the Board’s statement of reasons or bases must be adequate to enable a claimant to understand the precise basis for the Board’s decision, as well as to facilitate review in this Court).
Moreover, I disagree with the majority’s statement that the record is devoid of evidence relevant to the matter of direct service connection. See ante pp. 554-55. In his reply brief, responding to the Secretary’s argument that there is no evidence that he suffered an event, injury or disease in service related to his claimed disabilities (Secretary’s Br. at 14), he cites recurrent chest pain experienced during active duty (Reply Br. at 7 (citing R. at 36)), and notes that an August 1988 examination report “recorded that Mr. Robinson was having ‘irregular chest pains’ and was ‘see[ing] black dots in front of eyes (both eyes).’ ” *561Reply Br. at 7 (citing R. at 111). Pursuant to 38 U.S.C. § 7104(a), “[decisions of the Board shall be based upon the entire record in the proceeding and upon consideration of all evidence and material of record and applicable provisions of law and regulation.” As discussed above, there was evidence of record that could have implicated a direct theory of service connection, but the Board did not consider that theory of entitlement. In failing to do so, it violated section 7104(a)’s mandate by failing to base its decision on “applicable provisions of law and regulation.” Section 7104(a) is operative regardless of what the appellant argues or when he argues it; it is indisputably the Board’s obligation to consider all applicable provisions of law and regulation, not the appellant’s obligation to tell the Board which provisions apply.
Additionally, and again pursuant to my view of Schroeder, presuming that VA has the obligation to investigate all possible in-service causes of a current disability, if it were possible that a claimant, by affirmative instruction to the Agency, could waive consideration of such development, I would not find that the appellant here has done so. See Janssen v. Principi, 15 Vet.App. 870, 374 (2001) (holding that, in order expressly to waive consideration of a legal provision, “the appellant must first possess a right, he must have knowledge of that right, and he must intend, voluntarily and freely to relinquish or surrender that right”). I do not believe that the appellant’s failure to raise a point affirmatively during proceedings below constitutes express voluntary relinquishment of consideration of that point.
I would find that remand is warranted in this case based on VA’s failure to comply with Schroeder, the Board’s failure to consider all applicable provisions of law, and the Board’s failure to provide an adequate statement of reasons or bases for its conclusion that YA properly assisted Mr. Robinson in developing his claim.
The majority also discusses the relationship between Maggitt v. West, 202 F.3d 1370 (Fed.Cir.2000) and Sims, and concludes that “Sims does not affect Mag-gitt.” Ante p. 557. For the reasons set forth below, I disagree with this conclusion.
In Maggitt, the Federal Circuit held that this Court has discretion to hear arguments presented to it in the first instance, provided that the Court otherwise possesses jurisdiction over the claim. See 202 F.3d at 1377. Addressing whether the Court could invoke an exhaustion requirement against an appellant to promote judicial efficiency, the Federal Circuit stated that “the Veterans Court is uniquely positioned to balance and decide the considerations regarding exhaustion in a particular case.” Id. at 1378. As explained below, however, in light of the Supreme Court’s subsequent decision in Sims, I conclude that a “judicially imposed issue-exhaustion requirement” has no place in the veterans benefits system, but I believe the majority imposes one de facto in its disposition of this case. 530 U.S. at 110, 120 S.Ct. 2080.
At issue in Sims was whether a Social Security claimant seeking judicial review of an administrative law judge’s decision waived court consideration of any issues that were not raised in her request for review by the Social Security Appeals Council. See id. at 105, 120 S.Ct. 2080. The Supreme Court observed that the laws and regulations governing the Social Security Administration do not require issue exhaustion and that “the desirability of a court imposing a requirement of issue exhaustion depends on the degree to which the analogy to normal adversarial litigation applies in a particular administrative proceeding.” Sims, 530 U.S. at 109, 120 S.Ct. *5622080. Because “Social Security proceedings are inquisitorial rather than adversarial,” the Supreme Court held that a court-imposed issue exhaustion requirement was inappropriate in the Social Security context. Id. at 110, 120 S.Ct. 2080.
The laws and regulations governing veterans’ benefits do not require issue exhaustion. Although the Secretary asserts that 38 U.S.C. § 7105(d)(3) and 38 C.F.R. § 20.202 (2007) impose such a requirement, I disagree. First, the statute and regulation both use the permissive word “should” to encourage, but not require, the claimant to raise particular issues for review. See 38 U.S.C. § 7105(d)(3) (“The appeal should set out specific allegations of error of fact or law, such allegations related to specific items in the statement of the case.”); 38 C.F.R. § 20.202 (“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 ... being appealed.... The Board will construe such arguments in a liberal manner for purposes of determining whether they raise such issues on appeal.”). The use of nonmandatory phrasing means that the statute and regulation do not impose an issue exhaustion requirement. See Douglas v. Derwinski, 2 Vet.App. 435, 439 (1992) (“Nowhere does the regulation state that only the issues raise in the Form 1-9 must be considered; nor does the regulation state that the B[oard] must consider only the evidence pertinent to the issues raised explicitly in the Form 1-9.”). Second, like the Social Security adjudication scheme, the veterans benefits adjudication process is nonadversarial in nature. See Andrews, 421 F.3d at 1283 (“[PJroceedings before the Board, like those before the Social Security Appeals Council, are non[ Jadversarial.”); see also Thurber v. Brown, 5 Vet.App. 119, 124 (1993) (“VA’s nonadversarial claims system is predicated upon a structure which provides for notice and an opportunity to be heard at virtually every step in the process.”). Thus, I would conclude, in accord with the Supreme Court holding in the nonadversarial Social Security setting, that the imposition of an issue exhaustion requirement in the adjudication of veterans benefits claims is undesirable.1
Although the majority states that “the Court does not require that an issue be argued to the Board in order for it to be raised here,” ante p. 557, the majority goes on to state that “Sims does [not] allow an unsupported theory of entitlement to be raised at any time so as to entitle an appellant to a remand not based on error.” Id. As a result, the majority finds no reason to remand this ease for the Board to conduct any further development or adjudication of the appellant’s claim, which, in fact, imposes the issue exhaustion requirement that Sims prohibits. With the understanding that Sims precludes such a result regardless of the appellant’s failure to raise this argument below, I believe that the Court should exercise its discretion to remand this matter to the Agency for proper adjudication of the direct service connection theory in the first instance. *563See Maggitt, 202 F.3d at 1378-79 (allowing this Court to hear an argument raised before it in the first instance, assuming.the Court has jurisdiction over the claim, or remand the matter to the Board for adjudication in the first instance); see also Hensley v. West, 212 F.3d 1255, 1263 (Fed.Cir.2000) (stating that “appellate tribunals are not appropriate fora for initial fact finding”); Zevalkink v. Brown, 102 F.3d 1236, 1244 (Fed.Cir.1996) (stating that this Court “is not a trier of fact and is not in a position to make ... factual determination[s]”); see also 38 U.S.C. § 7261(c). I also note that it should not matter what Mr. Robinson wrote on his Substantive Appeal, as both the statute and regulation governing the content of a Substantive Appeal use only hortatory language in'telling claimants what to include.
The majority relies, in part, on Bonhomme v. Nicholson, 21 Vet.App. 40 (2007) (per curiam order), to bolster its conclusion that a “discretionary, non-error remand,” ante p. 558, is unwarranted in this case. Bonhomme addresses an application to reopen a previously and finally denied claim. The process for reopening a claim involves the submission of new and material evidence. In Bonhomme, after the Board rendered an adverse decision on the appellant’s application and while appeal of that Board decision was pending at the Court, the appellant obtained additional evidence. Bonhomme, 21 Vet.App. at 41. The appellant urged the Court to vacate the Board decision and remand the matter on appeal based on the newly obtained evidence, hot based on any flaw in the Board’s decision on the evidence before it at that time. Id. As the Court explained, the Court’s review of a given Agency decision “is limited to reviewing the correctness of the Agency’s factual and legal conclusions based on the record before the [AJgency at the time of its decision.” Id. at 43. The Bonhomme Court noted that granting the appellant’s motion for remand “would not be in keeping with our role as an appellate- court,” id., because it would require the Court to engage in factfinding in the first instance or would cause the Court to operate as “a mere procedural reset button where any appellant ■ could obtain unlimited remands simply by submitting some new document to VA, which the Court would have to assume is relevant.” Id. at 44.
There are several reasons not to rely on Bonhomme as the majority does. First, because it involves an application to reopen a claim, Bonhomme addresses only the question of what the Court may do when additional evidence is submitted after the Board denies an application to reopen, whereas in the instant case, the dispute is about the Agency’s treatment of the claim based on the evidence of record. The majority’s assertion that “[t]he logic of Bonhomme is only stronger in the situation where the appellant’s request for a ... remand is not even supported by new evidence,” ante p. 557, is fallacious; if the appellant were to offer new evidence in the instant case, the Court could not consider it in the first instance. Accordingly, remand is not less appropriate here because Mr. Robinson did not submit new evidence; it is more appropriate because he has asserted an error — or at least incompleteness — in VA’s review of the evidence of record. Second, Bonhomme explains what the submission of additional evidence in the application to reopen context does allow: “An appellant may submit new evidence to the Secretary while a claim is on appeal to this Court, but such evidence would constitute a new claim to reopen and would not entitle the appellant to an effective date based upon the date that the claim on appeal was received.” Bonhomme, 21 Vet.App. at 42 (citing Jackson v. Nicholson, 449 F.3d 1204, 1208 (Fed.Cir.*5642006)). Thus, the proper course of action in Bonhomme was clear, and there was no cause for the Court to consider remanding the case based on the submission of new evidence. Finally, Bonhomme clearly states that “[t]he issue before the Court is whether the submission of evidence proffered after a final Board decision provides sufficient justification to nullify the finality of that decision. We hold under the facts of this case that it does not.” Bonhomme, 21 Vet.App. at 41 (emphasis added). The emphasized language suggests that the Court in Bonhomme viewed its holding as one limited in applicability to the facts before it and I believe the Court would do well to heed that limitation in this case.
The effect of the majority’s reading of Mr. Robinson’s pleadings to the Court is that Mr. Robinson, notwithstanding his argument to the Court that the Board should have considered his claims on a direct basis and highlighting some evidence that was before the Board that may suggest the plausibility of his claims on that basis, ends up with an affirmed — and thus final — Board decision on his claim. This occurs even though the Board at no point addressed the possibility that he might prevail on his claim on any theory of entitlement other than secondary service connection. In order to challenge this determination, Mr. Robinson will have to present new and material evidence to reopen his claim, in which case — should he prevail — he will receive a much later effective date for his award. See Kent v. Nicholson, 20 Vet.App. 1, 5 (2006); see also 38 U.S.C. §§ 5108, 7104(b)(1). It is doubtful that Mr. Robinson could prevail on a motion for revision on the basis of clear and unmistakable error (CUE), because not only is he without the benefit of any evidentiary development of the direct-service-connection theory, but this Court’s adjudication of a matter generally amounts to a final decision that cannot be reviewed by a lower adjudicatory forum. See 38 C.F.R. § 20.1400(b)(2) (2007) (“All final Board decisions are subject to revision under this subpart except:.... Decisions on issues which have subsequently been decided by a court of competent jurisdiction.”); see also Disabled Am. Veterans v. Gober, 234 F.3d 682, 693 (Fed.Cir.2000) (upholding regulation because “it is improper for a lower tribunal ... to review the decision of a higher tribunal”).
I am alarmed by the majority’s decision, in concluding that this case need not be remanded for a Board decision in the first instance and in rejecting the appellant’s argument made to the Court, to accord such significance to the fact that the appellant was represented by an attorney during the appeal process. To be clear, I do not wish to condone or endorse actions by attorneys that may hamper their clients’ efforts to secure benefits, nor actions that hinder proper function of VA’s adjudicatory system. Nevertheless, neither the Secretary nor the majority cites any statutory or regulatory authority for the conclusion that represented appellants should be treated differently from their unrepresented counterparts in VA’s development of evidence. There is simply no basis in law to justify narrowing VA’s duty to assist with the development of claims, based on the majority’s artificial distinction between represented and unrepresented claimants. Absent congressional action to limit VA’s duty to assist in claims by represented veterans, I believe the Court acts today to impede “Congress’s clear desire to create a framework conducive to efficient claim adjudication” Sanders v. Nicholson, 487 F.3d 881, 889 (Fed.Cir.2007).
The Court’s decision results in a perverse incentive for claimants to elect not to engage attorneys to represent them before the Agency, despite recent legislation permitting claimants to hire attorneys much *565earlier in the claims process than previously allowed. See The Veterans Benefits, Health Care, and Information Technology Act of 2006, Pub.L. No. 109-461, § 101, 120 Stat. 3403 (2006). Mr. Robinson, as a result of the majority’s decision in his case, received less favorable treatment from this Court than he would have received had he represented himself before the Agency. This result presents a peculiar conundrum for any claimant seeking benefits in a purportedly nonadversarial, manifestly pro-claimant adjudicatory system. See Summers v. Gober, 225 F.3d 1293 (Fed.Cir.2000).
To summarize, I would hold that VA failed to fulfill its duty to assist as outlined in Sehroeder and the Court should remand this case for correction of this error. Alternatively, I believe this Court should, in its discretion and pursuant to Maggitt, remand the case for VA to consider the direct theory of service connection in the first instance.
. Although I would not impose a judicial issue exhaustion requirement, I note that the Federal Circuit has recognized that regulations impose a limited issue exhaustion requirement in the context of motions to revise based upon clear and unmistakable error. In Andrews, the Federal Circuit actually discussed Sims and distinguished it on the basis that 38 C.F.R. § 20.1404(b) imposes a "regulatory requirement for exhaustion.” Andrews, 421 F.3d at 1284. Importantly, however, the Federal Circuit has established that “VA has an antecedent duty to sympathetically read a [clear-and-unmistakable-error] motion that is filed pro se before determining whether a claim has been pled with specificity.” Johnston v. Nicholson, 421 F.3d 1285, 1287 (Fed.Cir.2005).