Veteranclaims’s Blog

January 24, 2011

Single Judge Application of Lay Evidence, Reopen Claim, Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), Shade v. Shinseki, 24 Vet.App.,

Excerpt from Decision below:
“The record supports Mr. Johnson’s first argument. The Board noted that Mr.
Johnson’s claim was denied in September 2003 because there was no evidence of a chronic disability in service or current disability. In support of his claim to reopen, Mr. Johnson stated that (1) his leg problems started when he was in the Marine Corps and persist to the present time, (2) he had pain in both legs while he was in service but was diagnosed with compartment syndrome only in his left leg because he declined to undergo testing in his right leg, and (3) when he started working in the construction industry after military service he experienced the same type of pains in his legs that he experienced during service. Additionally, the record reflects that a doctor told him that if he had compartment syndrome in his left leg that he would have it in his right leg.
Mr. Johnson is competent to report that he has experienced continuous
right-leg pain since service and that a doctor told him that he essentially suffers from right-leg compartment syndrome. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay evidence can be competent and sufficient to establish a diagnosis of a condition when, inter alia, the layperson is reporting a
contemporaneous medical diagnosis
); Washington v. Nicholson, 19 Vet.App.
362, 368 (2005) (noting that a veteran is competent to provide lay evidence regarding those matters that are within his personal knowledge and experience). Although the Board found Mr. Johnson’s statements to be redundant of statements in support of his original claim for benefits, the Board (1) failed to note Mr.
Johnson’s testimony that a doctor had stated that he likely had compartment syndrome with his right leg, and (2) erroneously denied reopening the claim primarily because Mr. Johnson had not submitted a medical opinion addressing his current disability or any nexus to service.

Inasmuch as hearsay evidence generally is permissible below, see Jandreau,
supra, and Mr. Johnson’s testimony is presumed credible for reopening purposes unless it is incredible on its face, Duran v. Brown, 7 Vet.App. 216, 220 (1994), his testimony could substantiate his claim if found to be credible upon reopening. See Jandreau and Washington, both supra.”
—————————————————-

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-4008
KENAN J. JOHNSON, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before KASOLD, Chief Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
KASOLD, Chief Judge: Veteran Kenan J. Johnson appeals through counsel that
part of an
August 27, 2009, decision of the Board of Veterans’ Appeals (Board) that
denied the reopening of
his disability compensation claim for his right leg because he did not
submit new and material
evidence. Mr. Johnson argues that the Board erred when it (1) found his
March 2008 statement and
September 2008 hearing testimony was not new and material, and (2) found
that the duty to assist
was fulfilled even though the Secretary neither obtained private medical
records referenced in Mr.
Johnson’s March 2008 statement nor provided him a medical examination. The
Secretary disputes
these contentions. Single-judge disposition is appropriate. Frankel v.
Derwinski, 1 Vet.App. 23,
25-26 (1990). For the reasons set forth below, the Board’s decision will
be reversed and remanded
for further adjudication.
The record supports Mr. Johnson’s first argument. The Board noted that Mr.
Johnson’s claim
was denied in September 2003 because there was no evidence of a chronic
disability in service or
current disability. In support of his claim to reopen, Mr. Johnson stated
that (1) his leg problems started when he was in the Marine Corps and persist to the present time, (2) he had pain in both legs while he was in service but was diagnosed with compartment syndrome only in his left leg because he declined to undergo testing in his right leg, and (3) when he started working in the construction

industry after military service he experienced the same type of pains in
his legs that he experienced during service. Additionally, the record reflects that a doctor told him that if he had compartment syndrome in his left leg that he would have it in his right leg.
Mr. Johnson is competent to report that he has experienced continuous
right-leg pain since service and that a doctor told him that he essentially suffers from right-leg compartment syndrome. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay evidence can be competent and sufficient to establish a diagnosis of a condition when, inter alia, the layperson is reporting a
contemporaneous medical diagnosis); Washington v. Nicholson, 19 Vet.App.
362, 368 (2005) (noting that a veteran is competent to provide lay evidence regarding those matters that are within his personal knowledge and experience). Although the Board found Mr. Johnson’s statements to be redundant of statements in support of his original claim for benefits, the Board (1) failed to note Mr.
Johnson’s testimony that a doctor had stated that he likely had compartment syndrome with his right leg, and (2) erroneously denied reopening the claim primarily because Mr. Johnson had not submitted a medical opinion addressing his current disability or any nexus to service.
Inasmuch as hearsay evidence generally is permissible below, see Jandreau,
supra, and Mr. Johnson’s testimony is presumed credible for reopening purposes unless it is incredible on its face, Duran v. Brown, 7 Vet.App. 216, 220 (1994), his testimony could substantiate his claim if found to be credible upon reopening. See Jandreau and Washington, both supra.
Accordingly, with firm conviction that the Board clearly erred in finding that new and material
evidence had not be submitted, that finding will be reversed and the matters remanded for full adjudication of the claim. See Shade v. Shinseki, __ Vet.App. __, __ No. 08-3548, slip op. at 9-10 ( Nov. 2, 2010) (noting that the present form of 38 C.F.R. § 3.156 must be read as creating a low threshold); 38 C.F.R. § 3.156(a) (defining new and material evidence as, inter alia, evidence that raises a reasonable possibility of substantiating the claim);see also Padgett v.Nicholson,19Vet.App.133,147-48(2005)(noting that a finding is clearly erroneous and maybe reversed if the Court has a definite and firm conviction that
a mistake has been committed by the Board); Kent v. Nicholson, 20 Vet.App.
1, 10 (2006) (“[T]he
question of what constitutes material evidence to reopen a claim for
service connection depends on
the basis on which the prior claim was denied.”).
2

On the other hand, Mr. Johnson’s assertion, that the Board failed to
obtain private medical
records as a result of information that he provided in his March 2008
statement, is mooted. Now that
the matter will be remanded, Mr. Johnson may submit those records to the
Secretary or request the
Secretary obtain them. 38 C.F.R. § 3.159(c)(1) (obtaining records not in
custody of a Federal
department or agency). Moreover, Mr. Johnson’s argument is premature that
he was not provided
a medical examination. The Secretary generally is not required to provide
such assistance until the
matter is reopened. See Paralyzed Veterans of Am. v. Sec’y Veterans
Affairs, 345 F.3d 1334, 1342-
43 (Fed. Cir. 2003) (“[I]n the absence of new and material evidence, VA is
not required to provide
assistance to a claimant attempting to reopen a previously disallowed
claim, including providing a
medical examination or obtaining a medical opinion.”). Because the
Secretary’s duty to provide him
a medical examination ultimately will depend on the credibility of his
statements – findings that the
Board has not yet made – his assertions are mooted and otherwise more
appropriately addressed
below. See Dunn v. West, 11 Vet.App. 462, 467 (1998) (noting that remand
of appellant’s claim
under one theory moots the remaining theories advanced on appeal).
Upon consideration of the foregoing, the Board’s August 27, 2009, decision
is REVERSED
and REMANDED for further adjudication consistent with this decision.
DATED: January 6, 2011
Copies to:
Matthew D. Hill, Esq.
VA General Counsel (027)
3

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