Veteranclaims’s Blog

February 8, 2011

Single Judge Application of Shade v. Shinseki, 24 Vet.App. and Kent v. Nicholson, 10 Vet.App; ReOpen Claim with New Lay Testimony

Excerpts from Decision below:

Moreover, because the claim was previously denied based on a lack on evidence of an in-service incurrence or aggravation, new evidence can be material and sufficient to reopen the claim if it is related to that fact alone. See 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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In that regard, the Board noted that, after the last final denial of the
claim, Mr. Rinehart provided “new testimonial evidence . . . submitted for the purpose of demonstrating an in-service injury or event.” R. at 15. The Board went on to concede, “[f]or the sake of discussion only, . . . that the Veteran’s statements regarding his duties in service could be considered competent lay evidence regarding an in-service injury or event.” Id. (emphasis added).
The Board’s decision to limit the concession to “the sake of discussion”
was in error. The Board determined that the lay evidence presented was new, and because it related to a previously unestablished fact (i.e., an in-service injury or event), the Board should have determined that the evidence was material. Contrary to the Board’s implication, credibility of the lay statements is
immaterial for purposes of reopening; “the credibility of ‘new’ evidence
is to be presumed in making a reopening determination.” Shade v. Shinseki, 24 Vet.App. 110 (2010); see also Layno v. Brown, 6 Vet.App. 465, 469-70 (1994) (recognizing that a witness is competent to testify as to matters that
are “actually observed” and “within the realm of his personal knowledge”).

Because Mr. Rinehart presented new and material evidence, the Court will reverse the Board’s ultimate conclusion to the contrary, and will direct the Board to reopen the claim.
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 09-3241
BOBBIE C. RINEHART, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before DAVIS, Judge.

MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

DAVIS, Judge: U.S. Navy veteran Bobbie C. Rinehart appeals pro se from a
July 6, 2009, Board of Veterans’ Appeals (Board) decision that declined to reopen his service-connection claim for a low back disability. For the reasons stated below, the Court will reverse the Board decision and remand the matter for further proceedings consistent with this decision.
Mr. Rinehart served on active duty from May 1944 to May 1946. After
service, he filed a service-connection claim for a back disability. That claim was finally denied on its merits in 1972 for lack of evidence that the low back problem was incurred in service or within one year following service, and denied again in June 1988 because the evidence did not show that the back condition was incurred in or aggravated by service. See Record (R.) at 1388, 1304. The Board decision here on appeal, however, ultimately determined that because there was no “competent clinical evidence indicating a possible nexus to service, the Board concludes that the additional evidence is not new and material.” R. at 17.

I. ANALYSIS
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). New and material evidence is defined as follows:
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).

The Board’s determination as to whether the appellant has submitted new and material evidence so as to reopen a prior claim must be supported by a written statement of the reasons or bases for its findings, and that statement must be adequate to enable an appellant to understand the precise basis for the Board’s decision and to facilitate informed review in this Court. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995). The Court reviews the Board’s conclusion in that regard 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).
First, the Court notes that the Board inexplicably based its determination
as to whether Mr. Rinehart had submitted new and material evidence on its determination that there was no “clinical” nexus evidence. Nexus evidence, however, need not be “clinical” in all cases. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (expressly rejecting the view that “competent medical evidence is required . . . [when] the determinative issue involves either medical etiology or a medical diagnosis”). Moreover, because the claim was previously denied based on a lack on evidence of an in-service incurrence or aggravation, new evidence can be material and sufficient to reopen the claim if it is related to that fact alone. See 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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In that regard, the Board noted that, after the last final denial of the
claim, Mr. Rinehart provided “new testimonial evidence . . . submitted for the purpose of demonstrating an in-service injury or event.” R. at 15. The Board went on to concede, “[f]or the sake of discussion only, . . . that the Veteran’s statements regarding his duties in service could be considered competent lay evidence regarding an in-service injury or event.” Id. (emphasis added).
The Board’s decision to limit the concession to “the sake of discussion”
was in error. The Board determined that the lay evidence presented was new, and because it related to a previously unestablished fact (i.e., an in-service injury or event), the Board should have determined that the evidence was material. Contrary to the Board’s implication, credibility of the lay statements is
immaterial for purposes of reopening; “the credibility of ‘new’ evidence
is to be presumed in making a reopening determination.” Shade v. Shinseki, 24 Vet.App. 110 (2010); see also Layno v. Brown, 6 Vet.App. 465, 469-70 (1994) (recognizing that a witness is competent to testify as to matters that
are “actually observed” and “within the realm of his personal knowledge”).

Because Mr. Rinehart presented new and material evidence, the Court will reverse the Board’s ultimate conclusion to the contrary, and will direct the Board to reopen the claim.
The Court further notes that, without expressly finding the lay evidence
sufficient to reopen the claim, the Board went on the examine the merits of the underlying case before concluding that there was no new evidence indicating nexus. As the Board acknowledged, however, once “new and material evidence has been submitted, the claim must be reopened. The VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist a veteran in developing the facts necessary for his claim has been satisfied.” R. at 11 (emphasis added). Here, the Board’s analysis of the nexus evidence in the case was premature; once the claim has been reopened, the Board must consider whether Mr. Rinehart is entitled to a medical nexus examination. See Shade, supra. In making its determination, the Board should take into account the evidence in the record regarding continuity of symptomatology since service. See, e.g., R. at 306, 1167; see Savage v. Gober, 10 Vet.App. 488, 495 (1997).
The Court also notes that Mr. Rinehart argues that he is a combat veteran
entitled to the relaxed evidentiary standards set forth in 38 U.S.C. § 1154(b). Because the Board did not consider this matter, there is insufficient information in the record for the Court to determine whether section
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1154(b) is applicable here. Once the claim is reopened on remand, the
Board must consider this matter in the first instance.
In addition, on remand, Mr. Rinehart is free to submit additional evidence
and raise another additional arguments to the Board, and the Board must address such
evidence and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Board shall proceed expeditiously, in accordance with 38 U.S.C. §§ 5109B, 7112 (requiring Secretary to provide for “expeditious treatment” of claims remanded by Board or Court).

II. CONCLUSION
On consideration of the foregoing, the Court REVERSES the Board’s July 6,
2009, decision and orders the Board to reopen Mr. Rinehart’s service-connection claim for a low back disorder. The Court REMANDS that matter for further proceedings consistent with this decision.

DATED: January 19, 2011
Copies to:
Bobbie C. Rinehart
VA General Counsel (027)
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