Veteranclaims’s Blog

February 28, 2011

Single Judge Application Shade v. Shinseki, 24 Vet.App., Credibility and Competence

Filed under: Uncategorized — Tags: , , , — veteranclaims @ 4:05 pm

Excerpts from Decision below:
“Therefore, the Board erred when it categorically rejected the lay statements
regarding nexus submitted by Mr. Thomas. See Davidson, 581 F.3d at 1316.
Moreover, because these lay statements provide evidence of a nexus between
Mr. Thomas’s current lumbar spine disability and his post-service symptoms of back pain, they relate to the unestablished fact identified by the Board that was necessary to substantiate his claim. See Shade v. Shinseki, 24 Vet.App. 110, 118 (2010) (“When making a determination whether the submitted evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the

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claim.”). Consequently, the Board was required to provide an adequate
statement of reasons or bases for its finding that the lay statements submitted by Mr. Thomas were not new and material, which the Board failed to do. See 38 U.S.C. § 7104(d)(1)….
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“To the extent that Mr. Thomas believes that the Board failed to presume that the lay statements he submitted were credible because the Board found them to not be competent evidence of a medical nexus, the Court notes that credibility and competency are different concepts with distinct legal definitions. Compare BLACK’S LAW DICTIONARY 423 (9th ed. 2009) (defining credibility as “[t]he quality that makes something (as a witness or some evidence) worthy of belief”), with id. at 322 (defining competence as “[a] basic or minimal ability to do something; qualification, esp[ecially] to testify”); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994).
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-1745
DONALD R. THOMAS, 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: Donald R. Thomas appeals through counsel a February 12, 2009,
Board of Veterans’ Appeals (Board) decision denying his request to reopen a
previously denied claim for benefits for a lumbar spine disability. Record (R.) at 3-8. The Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a) to review the February 2009 Board decision. Because the Board failed to provide an adequate statement of reasons or bases for its decision, the Court will vacate
the February12, 2009, Board decision and remand the matter for readjudication consistent with this decision.

I. FACTS1
Mr. Thomas served on active duty in the U.S. Army from April 1965 to April
1967. Mr. Thomas’s service medical records indicate that he strained his back in
service in October 1966, but
The Court notes that the statement of the case in Mr. Thomas’s brief does
not include “the facts relevant to the issues, with appropriate page references to the Record Before the Agency,” as required by Rule 28(a)(4) of the Court’s
Rules of Practice and Procedure (Rules). Instead, the statement of the
case in Mr. Thomas’s brief provides: “[Mr. Thomas] concedes that the statement of facts contained in the Board’s February 12, 2009, decision are substantially
correct and are incorporated by reference herein.” Appellant’s Brief (Br.)
at 2. The Court reminds counsel that the Court’s Rules are mandatory and that counsel is not permitted to disregard the Rules for his own convenience.
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his separation examination did not contain any complaints, diagnosis, or
treatment for back strain.
In February 1972, Mr. Thomas filed a claim for VA benefits for a back
condition. In June 1972, a VA medical examiner noted that Mr. Thomas suffered from muscle spasms in his back and diagnosed him with a low back strain. In July 1972, a VA regional office denied Mr. Thomas’s claim because it found that his low back strain was not incurred in or aggravated by service. Mr. Thomas did not appeal this decision and it became final.
On several occasions over the next 30 years, Mr. Thomas sought to reopen
his claim for benefits for a back condition, and in rating decisions dated December 1975, January 1984, September 1997, and June 2003, the regional office denied his requests. He did not appeal any of these decisions and they became final.
In March 2005, Mr. Thomas again sought to reopen his claim for benefits
for a back condition. In July 2005, the regional office denied his request because it found that the evidence he submitted was not new and material. Mr. Thomas subsequently submitted private medical records indicating a current diagnosis of a lumbar spine disability and a letter from a fellow service member stating that Mr. Thomas “t[ook] off of duty because he hurt his back.” R. at 170. In April 2006, the
regional office denied Mr. Thomas’s request to reopen his claim, finding
that the statement from his
fellow service member was not new and material evidence because “it does
not show a chronic
disability diagnosed in service.” R. at 150. Mr. Thomas filed a Notice of
Disagreement with this
decision and subsequently perfected his appeal. In July 2008, Mr. Thomas
was afforded a hearing
before the Board where he testified that he suffered from ongoing back
pain since service. One of
Mr. Thomas’s witnesses at the hearing also testified that Mr. Thomas’s
back problems were chronic.
In addition, in December 2008, Mr. Thomas submitted a letter from his
sister, stating that he “had
hurt his back when he was in the Army,” and that he had experienced back
problems since “the early
1970’s.” R. at 13.
In February 2009, the Board issued the decision currently on appeal, which
denied Mr.
Thomas’s request to reopen his previously denied claim for benefits for a
lumbar spine disability
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because he had not submitted new and material evidence.2
Specifically, the Board found that the
private medical records and Mr. Thomas’s statements to medical
professionals that he submitted
following the June 2003 regional office decision were “cumulative of
evidence already of record”
because, although “these records confirm the presence of a diagnosed low
back disability[,] . . . they
do not include competent evidence associating such a disorder with [Mr.
Thomas]’s service.” R. at
7. Moreover, the Board considered the laystatements of Mr. Thomas, his
sister, and a fellow service
member and determined that, “[a]s laypeople, they are without ostensible
medical expertise and are
not competent to provide a diagnosis or opine on a matter
requiringspecialized knowledge.” Id. The
Board also determined that these lay statements were cumulative of
evidence of record regarding
whether a back injury was sustained in service–an issue that was not in
dispute.
On appeal, Mr. Thomas argues that the Board’s statement of reasons or
bases for its decision
is inadequate because the Board (1) failed to presume that the lay
statements he submitted were
credible and (2) failed to discuss whether the lay statements were
evidence of continuing symptoms
of a lumbar spine disability. The Secretary disputes these contentions. Mr.
Thomas did not file a
reply brief.
II. ANALYSIS
A. Credibility of Lay Statements
Mr. Thomas first argues that the Board’s statement of reasons or bases is
inadequate because
the Board failed to “presume (or to even discuss) the credibility of [the]
lay evidence” he submitted,
including his own statements and statements by his sister and a fellow
service member. Appellant’s
Br. at 6. This argument is without merit.
TheSecretarymust reopenapreviouslyandfinallydisallowedclaimwhen”
newandmaterial
evidence” is presented or secured. 38 U.S.C. §§ 5108, 7104(b), 7105(c);
38 C.F.R. § 3.156(a)
(2010). In order to satisfy these requirements, the evidence “must be both
new and material.” Smith
The Court notes that the member issuing the Board’s decision was an ”
acting” member of the Board. Acting
members are authorized to decide appeals to the Board. 38 U.S.C. § 7101(c)(
1)(A). Acting Board members are
appointed by the Board Chairman. It is not necessary that the appointment
of acting Board members be approved by
the Secretary or the President–a requirement for the appointment of
permanent Board members. 38 U.S.C.
§ 7101A(a)(1).
2
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v. West, 12 Vet.App. 312, 314 (1999). “New evidence” is evidence “not
previously submitted to
agencydecisionmakers,”and”materialevidence”is “evidencethat,
byitselforwhenconsideredwith
previous evidence of record, relates to an unestablished fact necessary to
substantiate the claim.”
38 C.F.R. § 3.156(a). “New and material evidence can be neither
cumulative nor redundant.” Id.
When determining the materiality of evidence, “the Board is precluded from
considering the
credibility of the newly submitted evidence; strictly for purposes of
determining whether new and
material evidence has been presented, the Board must presume that the
newly submitted evidence
is credible.” Duran v. Brown, 7 Vet.App. 216, 220 (1994) (Justus v.
Principi, 3 Vet.App. 510, 513
(1992)); see also Cuevas v. Principi, 3 Vet.App. 542, 547-48 (1992).
Here, contrary to Mr. Thomas’s contention, the Board cited Justus and
explained that it was
presuming the credibility of the lay statements he submitted. See R. at 6 (”
In determining whether
evidence is new and material, the credibility of the new evidence is
presumed.” (citing Justus,
3 Vet.App. at 513)). In light of this statement, the Board was not
required to further discuss the
credibility of the lay statements and, importantly, the Board did not make
any findings that the lay
statements were not credible. To the extent that Mr. Thomas believes that
the Board failed to presume that the lay statements he submitted were credible because the Board found them to not be competent evidence of a medical nexus, the Court notes that credibility and competency are different concepts with distinct legal definitions. Compare BLACK’S LAW DICTIONARY 423 (9th ed. 2009) (defining credibility as “[t]he quality that makes something (as a witness or some evidence) worthy of belief”), with id. at 322 (defining competence as “[a] basic or minimal ability to do something; qualification, esp[ecially] to testify”); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994).
Consequently, because Mr. Thomas has not provided any argument as to why the
Board’s discussion of the credibility of the lay statements he submitted constitutes error, the Court concludes that Mr. Thomas has failed to carry his burden of demonstrating error in this regard. See Hilkert v. West, 12 Vet.App. 145, 151 (1999).

B. Continuing Symptoms
Mr. Thomas next argues that the Board’s statement of reasons or bases for
its decision is
inadequate because the Board failed to discuss whether the lay statements
he submitted were
evidence of continuing symptoms of a lumbar spine disability. The Court
agrees.
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A claimant may establish service connection based on his continuous
symptoms if the
claimant candemonstrate(1)thatacondition was“noted”duringservice; (2)
evidence of continuous
symptoms after service; and (3) medical or, in certain circumstances, lay
evidence of a nexus
between the current disability and the post-service symptoms. See Savage v.
Gober, 10 Vet.App.
488, 498 (1997); 38 C.F.R. 3.303(b) (2010). Here, the Board explained that
, “[t]he basis of the June
2003 [regional office] decision was the continued lack of competent
evidence relating [Mr.
Thomas]’s lumbar spine disability (which was diagnosed as degenerative
arthritis of his lumbar
spine) to service”–i.e., evidence of a nexus between the current
disability and the post-service
symptoms. R. at 7.
Mr.Thomassubmittedlaystatementsthatprovideevidenceofanexusbetweenhisin-
service
back injury and his current lumbar spine disability including a letter
from his sister that his chronic
back pain began in service and testimony from Mr. Thomas at a Board
hearing that he injured his
back in service and has experienced ongoing back pain since that injury.
Yet, the Board
categorically discounted these lay statements because Mr. Thomas and his
sister, “[a]s laypeople, []
are without ostensible medical expertise and are not competent to provide
a diagnosis or opine on
a matter requiring specialized knowledge.” R. at 7. However, the Board is
not permitted to find that
lay testimony is necessarily not competent to establish nexus. See
Davidson v. Shinseki, 581 F.3d
1313, 1316 (Fed. Cir. 2009) (rejecting the view that “‘competent medical
evidence is required . . .
[when] the determinative issue involves either medical etiology or a
medical diagnosis'” (emphasis
added) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir.
2007))); see also
Jandreau, 492 F.3d at 1376 (holding that a lay person is competent to
describe observable
symptoms, suchas pain). Therefore,
theBoarderredwhenitcategoricallyrejectedthelaystatements
regarding nexus submitted by Mr. Thomas. See Davidson, 581 F.3d at 1316.
Moreover, because these lay statements provide evidence of a nexus between
Mr. Thomas’s
current lumbar spine disability and his post-service symptoms of back pain,
they relate to the
unestablished fact identified by the Board that was necessary to
substantiate his claim. See ShadeNext Document
v. Shinseki, 24 Vet.App. 110, 118 (2010) (“When making a determination
whether the submitted
evidence meets the definition of new and material evidence, the Board
should take cognizance of
whether that evidence could, if the claim were reopened, reasonably result
in substantiation of the
5

claim.”). Consequently, the Boardwasrequiredto provide an adequate
statement of reasons or bases
for its finding that the lay statements submitted by Mr. Thomas were not
new and material, which
the Board failed to do. See 38 U.S.C. § 7104(d)(1) (stating that 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”); see also Gilbert v. Derwinski, 1
Vet.App. 49, 57 (1990)
(explaining that, to comply with the reasons or bases requirement, 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).
In his brief, the Secretary concedes that the Board did not specifically
discuss Mr. Thomas’s
statements concerning the possibility that the evidence of symptoms that
continued from the date of
the acknowledged in-service injury was related to his current back
disability, but argues that the
Board was not required to discuss these statements because they are ”
cumulative of previous
evidence submitted to VA.” Secretary’s Br. at 8. However, the Board did
not determine that the lay
statements submitted by Mr. Thomas were cumulative evidence of nexus, only
that they were
cumulative evidence of an in-service injury. See R. at 7 (“In any case,
the fact that [Mr. Thomas]
injured his back is not in dispute as service treatment records, which
were already of record at the
time of the last final decision, reflect that he strained his back.”). The
Secretary urges the Court to
now find that the lay statements were cumulative evidence of nexus;
however, this Court is
prohibited from engaging in fact-finding in the first instance. See Elkins
v. Gober, 229 F.3d 1369,
1377 (Fed. Cir. 2000) (“Fact-finding in veterans cases is to be done by
the expert [Board], not bythe
Veterans Court.”). Accordingly, the Court concludes that the Board’s
statement of reasons or bases
for its decision is inadequate and, therefore, remand is warranted. See
Gilbert, 1 Vet.App. at 57.
On remand, Mr. Thomas is free to submit additional evidence and argument
in accordance
with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam
order). See Kay v.
Principi, 16 Vet.App. 529, 534 (2002). The Court reminds the Board that “[
a] remand is meant to
entail a critical examination of the justification for the decision.”
Fletcher v. Derwinski, 1 Vet.App.
394, 397 (1991). In addition, the Board shall proceed expeditiously, in
accordance with 38 U.S.C.
§ 7112 (expedited treatment of remanded claims).
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III. CONCLUSION
Upon consideration of the foregoing, the February 12, 2009, Board decision
is VACATED
and the matter REMANDED for readjudication consistent with this decision.
DATED: February 9, 2011
Copies to:
Peter J. Meadows, Esq.
VA General Counsel (027)
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