Veteranclaims’s Blog

November 8, 2010

Followup on New and Material and Moray v. Brown, See Shade v. Shinseki Posted 7 November 2010

To follow up on the Shade v. Shinseki opinion posted yesterday, citing to Moray and New and Material evidence, here is a memorandum decision by Judge Hagel from 2009 which also addresses VA’s improper use of Moray.

“The Board provides no further reasons or bases for this determination beyond
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citing to Moray v. Brown, 5 Vet.App. 211 (1993). This Court has stated that, although Moray held that “a lay assertion of medical causation will not suffice to reopen a claim. . . . where the determinative issue is not one of medical causation but of continuity of symptomatology, lay testimony may suffice to reopen a claim.” Falzone v. Brown, 8 Vet.App. 398, 403 (1995); see 38 C.F.R. § 3.303(a) (VA must consider all evidence, including medical and lay evidence). Thus, the Court finds that the Board erred in failing to address Mr. Mayhew’s lay statements. Id.
Because the Board erred in finding that VA adequately notified Mr. Mayhew
under section 5103(a) and failed to provide adequate reasons or bases for its
determinations regarding new and material evidence, the Court will vacate the October 24, 2006, Board decision and remand the matter for readjudication consistent with this decision. Mlechick, 503 F.3d at 1345; Caluza, 7 Vet.App. at 506; Gilbert, 1 Vet.App. at 57; Falzone, 8 Vet.App. at 403.”
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 06-3577
CHARLES E. MAYHEW, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before HAGEL, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30 (a),
this action may not be cited as precedent.
HAGEL, Judge: Charles E. Mayhew appeals through counsel an October 24,
2006, Board
of Veterans’Appeals (Board) decision denying his request to reopen his
previouslydisallowed claim
for entitlement to VA benefits for bilateral pes planus. Record (R.) at 1-
11. The Court has
jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a) to review that
decision, and a single judge
may conduct that review. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (
1990). Because the
Board did not provide adequate reasons or bases for its determinations and
VA did not fulfill its duty
to notify, the October 24, 2006, Board decision is vacated and the matter
is remanded for
readjudication consistent with this decision.
I. FACTS
Mr. Mayhew served on active dutyin the U.S. Marine Corps from January1968
to July1969,
including service in Vietnam. R. at 53. His August 1967 service entrance
examination diagnosed
him with pes planus, but noted that he denied any history of “foot trouble
.” R. at 15-17, 30. The
service medical records also note that in March and April 1969, Mr. Mayhew
was treated for foot
pain and recommended for a three-month medical profile. R. at 48-50. Mr.
Mayhew’s July 1969
separation examination indicated that his feet were normal. R. at 47.

In March 1986, Mr. Mayhew applied for VA benefits for a foot condition. R.
at 61-64. An
April 1987 VA medical examination report noted that he had experienced
swelling of the hand
joints, wrists, and feet and diagnosed him with rheumatoid arthritis. R.
at 70-71, 87-88. In June
1987, a VA regional office denied Mr. Mayhew’s claim. R. at 91-93. Mr.
Mayhew did not appeal
that decision and it became final.
In October 1988, Mr. Mayhew filed a claim for “flat feet,” which was
construed as a request
to reopen his previously denied claim. R. at 108-11. Following a November
1988 regional office
denial of his request, Mr. Mayhew appealed to the Board, stating that he
had suffered pain in his feet
and arches during service that resulted in a medical profile that barred
him from combat until his
rotation home. R. at 153, 170. He further stated that the pain stopped
upon his return home but
returned in 1977. R. at 153, 170. The regional office continued to deny Mr.
Mayhew’s claim in
December 1988 and March 1989. R. at 116-18, 145-47. He appealed these
denials and was afforded
a hearing before the regional office in November 1989. At the hearing, Mr.
Mayhew testified that
his service in Vietnam, and specifically the weight he had to carry due to
his duties as a M-60
machine gunner and as a member of the 81mm mortar team, caused severe
damage to his feet. R.
at 179-86. In July 1990 the Board denied Mr. Mayhew’s claim. R. at 200-04.
In the July 1990
decision, the Board stated that:
Although there were increasing symptoms as a result of combat stress,
there has been
no showing of any increase in the basic pathology of the preexisting pes
planus
during active militaryservice. The temporaryincrease in symptoms as a
result of the
rigors of combat operations is understandable. However, the increase in
symptoms
was only a temporary exacerbation.
R. at 203. Mr. Mayhew did not appeal this decision and it became final.
In June 2002, Mr. Mayhew again sought to reopen his previously denied
claim for VA
benefits for flat feet. R. at 206-07. In October 2002, VA sent Mr. Mayhew
a letter informing him
that the previous denial of his claim was final and that to reopen his
claim, he must submit “new and
material evidence.” R. at 225. The October 2002 letter stated that new
evidence could be
“documents, statements from laypersons, medical reports, or other similar
evidence,” and stated that
to be material the evidence “must bear directly and substantially upon the
issue for consideration.”
R. at 226.
2

In March 2003, the regional office denied Mr. Mayhew’s request to reopen
his claim. R. at
258-63. Later that same month, Mr. Mayhew filed a Notice of Disagreement.
R. at 249-50. In
February2004, the regional office issued a Statement of the Case that
continued to deny his request,
which Mr. Mayhew appealed later that month. R. at 272-77, 279-80. In a
July 2004 letter, Mr.
Mayhew’s representative stated that Mr. Mayhew’s foot symptoms in service
were an early
manifestation of rheumatoid arthritis and that his rheumatoid arthritis
compounded his pes planus.
R. at 293.
At a July2004 hearing, Mr. Mayhew testified that his flat feet exacerbated
his problems with
rheumatoid arthritis. R. at 298-308. Mr. Mayhew also testified that the
problems with his feet
required a 4-month medical profile in 1969 and that he had been taking ”
pain killers” and “over-the-
counter medications” since 1969. R. at 299-303. He stated that he did not
have symptoms until
1983 because he “went to the bottom” and took “a lot of pills.” R. at 299-
300, 303. At the July
2004 hearing, the decision review officer stated that “the Board of
Veterans’ Appeals in their
September 9, 1990, decision made a specific finding that your pre-existing
foot disorder did not
permanently increase in basic pathology during active military service.” R.
at 302. The decision
review officer did not explain why the Board had denied Mr. Mayhew’s
initial claim. In September
2004, a regional office issued a Supplemental Statement of the Case
denying Mr. Mayhew’s request
to reopen his previously denied claim. R. at 311.
In October 2006, after additional development of his claim, the Board
issued the decision on
appeal,denyingMr.
Mayhew’srequesttoreopenhisclaimforentitlementtoVAbenefitsforbilateral
pes planus. R. at 1-11. The Board determined that the July 1990 decision
was final and that the
“[e]vidence received since the July 1990 Board decision does not relate to
an unestablished fact
necessary to substantiate the claim.” R. at 3. The Board found that VA had
adequately discharged
its duty to notify Mr. Mayhew of the evidence necessary to substantiate
his claim through the
October 2002 letter, February 2004 Statement of the Case, and the July
2004 hearing. R. at 4. In
so finding, the Board noted that Mr. Mayhew was not given “full, adequate
notice” before the
adjudication of his claim, but found that, because the July 2004 hearing
officer notified him of the
“reasons his claim for entitlement to service connection for bilateral pes
planus were previously
denied,” that he was not “prejudiced” by the lack of pre-adjudicatory
notice. R. at 4-6.
3

On appeal, Mr. Mayhew argues that the October 2002 letter did not
adequately notify him
of the evidence necessary to substantiate his claim and that that error
was prejudicial and was not
alleviated by post-decisional documents. Appellant’s Br. at 5-9.
Additionally, Mr. Mayhew argues
that the Board failed to provide adequate reasons or bases for its
determination that his medical
testimony regarding post-service symptomatology was not new and material
evidence. Appellant’s
Br. at 10-13.
In response, the Secretary concedes that the June 2002 letter did not
adequately notify Mr.
Mayhew. Secretary’s Br. at 9. However, the Secretary argues that “the
error did not affect the
essential fairness of the adjudication” because a “reasonable person could
be expected to understand
from the notice what was needed to support his claim.” Secretary’s Br. at
10-11. The Secretary
argues that because Mr. Mayhew’s testimony could not be considered new and
material evidence,
the Board did not have a duty to discuss it. Secretary’s Br. at 9.
II. ANALYSIS
A. Duty to Notify
Pursuant to section 5103(a) of title 38, U.S. Code, VA is required to
inform the claimant of
(1) the information and evidence not of record that is necessary to
substantiate the claim, (2) which
portion of that information and evidence, if any, that the claimant is
expected to provide, and (3)
which portion of that information and evidence, if any, that VA will seek
to obtain. In a claim to
reopen a previously and finally denied claim, “VA must notify a claimant
of the evidence and
information that is necessary to reopen the claim and VA must notify the
claimant of the evidence
and information that is necessary to establish his entitlement to the
underlying claim for the benefit
sought by the claimant.” Kent v. Nicholson, 20 Vet.App. 1, 9 (2006).
Further, for cases involving
a request to reopen a previously denied claim, “the [Veterans Claims
Assistance Act] requires the
Secretary to look at the bases for the denial in the prior decision and to
respond with a notice letter
that describes what evidence would be necessary to substantiate that
element or elements required
to establish service connection that were found insufficient in the
previous denial.” Id. Failure to
complywith anyof these requirements mayconstitute remandable error.
Quartuccio v. Principi, 16
Vet.App. 183, 188 (2000).
4

The purpose of section 5103(a) notification “‘is to ensure that the
claimant’s case is presented
to the initial decisionmaker with whatever support is available, and to
ensure that the claimant
understands what evidence will be obtained by the VA and what evidence
must be provided by the
claimant’ prior to the initial adjudication of his claim.” Sanders v.
Nicholson, 487 F.3d 881, 886
(Fed. Cir. 2007), cert. granted sub nom. Peake v. Sanders, 128 S. Ct. 2935 (
U.S. June 16, 2008) (No.
07-1209) (quoting Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir.
2006)). Such notice may
not be satisfied by “post-decisional communications from which a claimant
might have been able
to infer what evidence the VA found lacking in the claimant’s presentation
.” Mayfield, 444 F.3d at
1333. Notice to be provided under the Veterans Claims Assistance Act
is required to have different contents from the post-decisional notices,
and it is
designed for different purposes–to ensure that the claimant’s case is
presented to the
initial decisionmaker with whatever support is available, and to ensure
that the
claimant understands what evidence will be obtained by the VA and what
evidence
must be provided by the claimant.
Id.
Whether a claimant has received adequate notice under the Veterans Claims
Assistance Act
is a “substantially factual determination” by the Board. Mayfield, 444 F.
3d at 1335. Such a
determination is reviewed under a “clearly erroneous” standard of review.
Garrison v. Nicholson,
494 F.3d 1366, 1370 (Fed. Cir. 2007). A factual finding is clearly
erroneous “when although there
is evidence to support it, the reviewing court on the entire evidence is
left with the definite and firm
conviction that a mistake has been committed.” United States v. U.S.
Gypsum Co., 333 U.S. 364,
395 (1948).
A claimant has the initial burden of demonstrating that a notice error has
occurred. Sanders,
487 F.3d at 891. Once a notice error has been established, such errors are
reviewed under the rule
of prejudicial error. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir.
2004); see 38 U.S.C.
§ 7261(b)(2) (requiring the Court to “take due account of the rule of
prejudicial error”). All “notice
errors should be presumed prejudicial, requiring reversal unless the VA
can show that the error did
not affect the essential fairness of the adjudication.” Sanders, 487 F.3d
at 889. To rebut the
presumption of prejudicial error, VA has the burden of persuading the
Court that the purpose of
notice was not frustrated. Id. That burden requires that the
Secretarydemonstrate, for example, “(1)
5

that any defect was cured by actual knowledge on the part of the claimant
, (2) that a reasonable
person could be expected to understand from the notice what was needed, or (
3) that a benefit could
not have been awarded as a matter of law.” Id.
In this case, the Board relied upon the October 2002 letter, February 2004
Statement of the
Case, and the July 2004 hearing to establish that VA fulfilled its duty to
notify. R. at 4. The Court
notes that there is no February 2004 Statement of the Case in the record.
In any event, a Statement
of the Case is a post-decisional document that is inadequate to establish
proper notice. Mlechick v.
Mansfield, 503 F.3d 1340, 1345 (Fed. Cir. 2007). However, neither of the
documents nor the
hearing relied upon by the Board in its October 2006 decision states why
Mr. Mayhew’s previous
claim was denied. Kent, 20 Vet.App. at 10. Because, as conceded by the
Secretary, VA did not
adequately notify Mr. Mayhew why his previous claim was denied, the
Board’s determination is in
error. Kent, 20 Vet.App. at 10; see 38 C.F.R. § 3.103(a), (c). Thus, the
Court must determine
whether that error was prejudicial. Mayfield, 444 F.3d at 1335; Sanders,
487 F. 3d at 891; Newhouse
v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007).
The Secretary argues that there was no prejudice because “a reasonable
person could be
expected to understand from the notice what was needed to support his
claim to reopen.” Secretary’s
Br. at 10. In support of this argument, the Secretary states that the
October 2002 letter informed Mr.
Mayhew of what “would be considered new and material evidence sufficient
to reopen his claim, as
well as the evidence that would be necessary to substantiate a claim for
service connection for
bilateral pes planus.” Secretary’s Br. at 10. However, as noted above,
this letter did not state the
reasons that Mr. Mayhew’s previous claim had been denied. The Secretary
provides no further
reasons for why there was no prejudice.
The Board decision states that there was no prejudice because the July
2004 hearing notified
Mr. Mayhew of the “reasons his claim for entitlement to service connection
for bilateral pes planus
was previously denied.” R. at 4-6. However, at the July 2004 hearing, the
decision review officer
only states that the September 1990 Board decision made a finding of fact
that a “pre-existing foot
disorder did not permanently increase in basic pathology during active
military service.” R. at 302.
The decision review officer does not state why Mr. Mayhew’s initial claim
was denied. Because, in
attempting to rebut the presumption of prejudice, the Secretary and the
Board decision rely solely
6

on evidence that does not adequately discuss the reasons for the previous
denial of Mr. Mayhew’s
claim as required by Kent, the Court finds that Mr. Mayhew has not been
provided adequate notice
and that that error is prejudicial. Mlechick, 503 F.3d at 1345.
B. Reasons or Bases
In rendering its decision, the Board is required 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.” 38 U.S.C. § 7104(d)(1). The statement 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. Gilbert v.
Derwinski, 1 Vet.App. 49, 57 (1990). To comply with this requirement, the
Board must analyze the
credibilityand probative value of the evidence, account for the evidence
that it finds to be persuasive
or unpersuasive, and provide the reasons for its rejection of any material
evidence favorable to the
claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995) aff’d, 78 F.3d 604 (
Fed. Cir. 1996) (table).
The Board may commit remandable error when it fails to provide an adequate
statement of its
reasons or bases. See Gilbert, 1 Vet.App. at 57.
Mr. Mayhew argues that the Board failed to provide adequate reasons or
bases for its
determination that his testimony regarding post-service symptomatology was
not new and material
evidence. Appellant’s Br. at 10-13. He asserts that, when determining
whether evidence is
“material,” the Board needs only to determine if it “relate[s] to an
unestablished fact necessary to
substantiate the claim.” Appellant’s Br. at 11-12 (citing 38 C.F.R. § 3.
156(a)). Mr. Mayhew argues
that his testimonyis material because he testified to the continuityof his
symptoms and his increased
foot pain while in service. Appellant’s Br. at 11-12.
The Secretary contends that Mr. Mayhew’s lay statements are not new and
material because
they cannot establish that his “pre-existing pes planus was permanently
aggravated in service”
because the medical evidence reveals that he was diagnosed with both pes
planus and rheumatoid
arthritis. Secretary’s Br. at 9. The Secretary further argues that,
because Mr. Mayhew’s testimony
could not be considered new and material evidence, the Board did not have
a duty to discuss it.
Secretary’s Br. at 9. However, the October 24, 2006, Board decision
onlystates that “laystatements,
even if new, cannot serve as a predicate to reopen a previously disallowed
claim.” R. at 8 (internal
parentheses omitted). The Board provides no further reasons or bases for
this determination beyond
7

citing to Moray v. Brown, 5 Vet.App. 211 (1993). This Court has stated
that, although Moray held that “a lay assertion of medical causation will not suffice to reopen a claim. . . . where the determinative issue is not one of medical causation but of continuity of symptomatology, lay testimony may suffice to reopen a claim.” Falzone v. Brown, 8 Vet.App. 398, 403 (1995); see 38
C.F.R. § 3.303(a) (VA must consider all evidence, including medical and lay evidence). Thus, the Court finds that the Board erred in failing to address Mr. Mayhew’s lay statements. Id.
Because the Board erred in finding that VA adequately notified Mr. Mayhew
under section 5103(a) and failed to provide adequate reasons or bases for its
determinations regarding new and material evidence, the Court will vacate the October 24, 2006, Board decision and remand the matter for readjudication consistent with this decision. Mlechick, 503 F.3d at 1345; Caluza, 7 Vet.App. at
506; Gilbert, 1 Vet.App. at 57; Falzone, 8 Vet.App. at 403.

III. CONCLUSION
On consideration of the foregoing, the October 24, 2006, Board decision is
VACATED and
the matter is REMANDED for readjudication consistent with this decision.
DATED: January 23, 2009
Copies to:
Glenn R. Bergmann, Esq.
VA General Counsel (027)
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