Veteranclaims’s Blog

December 14, 2010

New Evidence, Shade v. Shinseki; Kent v. Nicholson

“In Shade v. Shinseki, the Court held that new evidence would raise a reasonable possibility of substantiating the claim if when considered with the old evidence it would at least trigger the Secretary’s duty to assist by providing a medical opinion. __ Vet.App. __, __, No. 08-3548, slip op. 2010 WL 4300776 at 9-10 (Nov. 2, 2010); see also Kent v. Nicholson, 10 Vet.App. 1, 10 (2006) (whether evidence is material “depends on the basis on which the prior claim was denied”); Evans v. Brown, 9 Vet.App. 273, 273 (1996) (holding evidence is material if it is relevant to and probative of an issue that was a specific basis for the denial of the last final disallowance), overruled, in part, on other grounds by Hodge v. West, 155 F.3d. 1356 (Fed. Cir. 1998); see also Anglin v. West, 203 F.3d. 1343, 1347 (Fed. Cir. 2000) (stating that Hodge left intact the requirement that the evidence must be relevant to and probative of an issue that was a specified basis for the last final denial).”
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-1810
RICHARD BARKLEY, APPELLANT,
V.
ERIK K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before LANCE, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
LANCE, Judge: The appellant, through counsel, appeals a March 30, 2009,
Board of
Veterans’ Appeals (Board) decision denying the appellant’s request to
reopen his claim for service
connection for chemical pneumonitis due to lead poisoning. Record (R.) at
3-17. This appeal is
timely, and the Court has jurisdiction to review the Board’s decision
pursuant to 38 U.S.C.
§§ 7252(a) and 7266(a). The Board remanded the appellant’s request to
reopen a claim for service
connection for bipolar disorder due to lead poisoning. R. at 7-8, 12-16.
As there is no final Board
decision, the Court does not have jurisdiction over that claim and will
not discuss it further. See
Hamptom v. Gober, 10 Vet.App. 481 (1997). Single-judge disposition is
appropriate. See
Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons that
follow, the Court will
affirm the March 30, 2009, decision.
I. FACTS
The appellant served on active duty from June 1959 to March 1963. R. at
403. Service
medical records dated October 27, 1960, show that the appellant presented
at the U.S. Naval Station
Dispensary in San Diego, California, with complaints of chest pain, cough,
shaking chills, fever,
increased back pain, frequency of urination, and a high temperature after
painting with lead paint

without a mask four days earlier. R. at 914-15. Lieutenant H.E. Gard
noted that the appellant’s chest
x-ray revealed “large infiltrate in the left lower lung field,” and
diagnosed the appellant with
chemical pneumonitis, pneumonia, and acute lead poisoning. R. at 914, 946.
The appellant stayed
in the hospital for over a month, and when the examining physician
determined that his lungs had
completely cleared up without residual effects, he was considered fit for
duty and discharged from
the hospital. R. at 915. The examiner conducting the appellant’s discharge
examination noted that
he examined the appellant’s mouth, throat, ears, sinuses, nose, lungs, and
chest. R. at 903. The
examiner checked “normal” under the “lungs and chest” portion of the
clinical evaluation and only
noted defective vision under the defects and diagnoses section. R. at 903-
04.
Nineteen years later, in August 1979, the
appellantclaimedentitlementtoserviceconnection
for lead poisoning. R. at 982-89. The VA regional office (RO) denied the
claim in September 1979,
determining that his in-service illness was “acute and transitory,” and
that it had resolved without
residuals. R. at 869, 968-70. Subsequently, the appellant submitted VA
medical records, private
medical records, and lay statements to the RO. R. at 125-81, 198, 222, 495-
535, 591-654, 789-847.
On appeal, the Board denied the appellant’s request to reopen his claim
for service
connection, finding that the appellant did not provide new and material
evidence that he currently
suffers from chemical pneumonitis, the chronic residuals of chemical
pneumonitis, or a respiratory
disorder that have been associated with his in-service lead poisoning. R.
at 4, 10, 968-70, 86.
II. ANALYSIS
The appellant contends that the Board imposed too high a burden of proof
when it
determined that the appellant did not provide the new and material
evidence required to reopen his
claim. Appellant’s Brief (Br.) at 3. The appellant further contends that
the Board erred when it
ignored various pieces of evidence he submitted with his request to reopen
the claim. Appellant’s
Br. at 3.
Pursuant to 38 U.S.C. § 5108, “if new and material evidence is presented
or secured with
respect to a claim which has been disallowed, the Secretary shall reopen
the claim and review the
former disposition of the claim.” See Elkins v. West, 12 Vet.App. 209, 212 (
1999) (en banc)
(reiterating that before VA may address the merits of a claim that had
previously been disallowed,
VA must first determine that new and material evidence has been presented).
New and material
evidence is defined as follows:
2

New evidence means existing evidence not previously submitted to agency
decisionmakers. Material evidence means existing evidence that, by itself
or when
considered with previous evidence of record, relates to an unestablished
fact
necessary to substantiate the claim. New and material evidence can be
neither
cumulative nor redundant of the evidence of record at the time of the last
prior final
denial of the claim sought to be reopened, and must raise a reasonable
possibility of
substantiating the claim.
38 C.F.R. § 3.156(a)(2010). In ShadeNext Hit v. Shinseki, the Court held that new
evidence would raise a
reasonable possibility of substantiating the claim if when considered with
the old evidence it would
at least trigger the Secretary’s duty to assist by providing a medical
opinion. __ Vet.App. __, __, No.
08-3548, slip op. 2010 WL 4300776 at 9-10 (Nov. 2, 2010); see also Kent v.
Nicholson, 10
Vet.App. 1, 10 (2006) (whether evidence is material “depends on the basis
on which the prior claim
was denied”); Evans v. Brown, 9 Vet.App. 273, 273 (1996) (holding evidence
is material if it is
relevant to and probative of an issue that was a specific basis for the
denial of the last final
disallowance), overruled, in part, on other grounds by Hodge v. West, 155
F.3d. 1356 (Fed. Cir.
1998); see also Anglin v. West, 203 F.3d. 1343, 1347 (Fed. Cir. 2000) (
stating that Hodge left intact
the requirement that the evidence must be relevant to and probative of an
issue that was a specified
basis for the last final denial).
Since the en banc opinion in Elkins, this Court has generally reviewed
whether the appellant
has submitted new and material evidence so as to reopen a prior claim
under the “clearly erroneous”
standard of review set forth in 38 U.S.C. § 7261(a)(4). See Elkins, 12
Vet.App. at 216; see also
Fortuck v. Principi, 17 Vet.App. 173, 178-79 (2003) (Board determinations
as to whether new and
material evidence has been presented reviewed under the “clearly erroneous”
standard of review).
“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.'” Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992) (quoting
United States v. U.S.
Gypsum Co., 333 U.S. 364, 395 (1948)).
The appellant is correct that evidence he submitted to reopen his claim
need not be sufficient
to grant benefits. Appellant’s Br. at 3; see Previous HitShadeNext Hit, supra. However,
because the appellant did not
cite a single statement in the Board’s decision to support an argument
that the incorrect standard was
applied, the Court is not persuaded that the Board applied a standard more
restrictive than that
expressed in Previous HitShadeNext Document. Id.
3

The appellant next asserts the Board ignored various medical records.
Appellant’s Br. at 8-
10. However, the appellant’ merely lists records then makes a conclusory
statement that they raise
a reasonable possibility of substantiating the claim. In the absence of
any analysis, the Court is not
persuaded. See Shinseki v. Sanders, 129 S.Ct. 1696, 1705-06 (2009) (
appellant has burden of
showing he suffered prejudice as result of error). Nonetheless, the Court
does observe that to the
extent that some of these records relate the appellant’s symptoms to a
diagnosis other than chemical
pneumonitis due to lead poisoning, that would be a separate claim from the
one addressed in the
Board’s decision. See Boggs v. Peake, 520 F.3d. 1330, 1335-36 (Fed. Cir.
2008); see also Clemons
v. Shinseki, 23 Vet.App. 1, 7-8 (2009). The Court lacks jurisdiction to
consider such a claim in the
absence of a Board decision ruling on it. See Jarrell v. Nicholson, 20 Vet.
App. 326, 331-32
(2006)(en banc). The appellant is free to file a new claim addressing
other diagnoses of his
condition if VA is not already processing such a claim.
Upon a review of the record in its entirety, the Board’s decision does not
leave the Court with
a “definite and firm conviction that a mistake has been committed.” Hersey,
2 Vet.App. at 94; see
38 U.S.C. §§ 5108, 7104(d)(1); 7261(a)(4); 38 C.F.R. § 3.156. To the
extent that the appellant
argues that the Board’s reasons or bases are inadequate, the Court’s
ability to conduct judicial review
of the Board’s decision was not frustrated by any such deficiency. See 38
U.S.C. § 7104(d)(1);
Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990).
III. CONCLUSION
After consideration of the appellant’s and the Secretary’s briefs, and a
review of the record,
the Board’s March 30, 2009, decision is AFFIRMED.
DATED: November 22, 2010
Copies to:
John S. Berry, Esq.
VA General Counsel (027)
4

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