Veteranclaims’s Blog

February 9, 2011

Single Judge Application of Shade v. Shinseki, 24 Vet.App.; Can Evidence Substantiate the Claim

This single judge’s reasoning does give some insight into the low threshold to reopen found in Shade and his views that “VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118.”

Excerpts from Single Judge Decision below:

==============================================================
“The threshold for determining whether new and material evidence raises a reasonable
possibility of substantiating a

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claim is “low.” See Shade v. Shinseki, 24 Vet.App. 110, 117 (2010).
Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be
reopened, either by triggering the Secretary’s duty to assist or through
consideration of an alternative theory of entitlement. Id. at 118. Finally, when evaluating whether evidence justifies reopening a claim, the Board is required to discuss the reasons or bases for its findings and conclusions on material issues of fact and law. Allday v. Brown, 7 Vet.App. 517, 527 (1995).

=====================================================

The Board further explained that the
evidence failed to show any relationship between the appellant’s current
degenerative disc disease of the lumbar spine and his active military service Id. However, in coming to this conclusion the Board applied the wrong legal standard.
As stated earlier, when evaluating the materiality of newly submitted
evidence, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, but rather should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory. See Shade, supra.
Accordingly, it was error for the Board to focus solely on whether the appellant’s newly submitted evidence could provide the nexus that was found to be missing in 1997. Id.

====================================================================

Accordingly, it appears that the appellant’s newly submitted evidence
could reasonably result in an award of service connection if his claim was reopened under the low standard contemplated by law. See Shade, surpa. This is because the new evidence, if found competent and credible, could allow the appellant to achieve service connection for his DDD under continuity of symptomatology. See Savage v. Gober, 10 Vet.App. 488, 495 (1997) (explaining that continuity of symptomatology is a distinct and separate path to service connection); 38 C.F.R. § 3.303(b) ( 2010).

========================================================
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-0360
RUSSELL J. GEORGE, APPELLANT,
V.
ERIC 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, Russell J. George, through counsel, appeals a
December 15, 2008, Board of Veterans’ Appeals (Board) decision that denied a reopening of his claim for entitlement to service connection for a low-back disability. Record (R.) at 3. Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). This appeal is timely, and the Court has jurisdiction over the case pursuant to 38 U.S.C.
§§ 7252(a) and 7266. For the reasons set forth below, the Court will vacate the Board’s decision and remand the matter for further proceedings consistent with this decision.

I. BACKGROUND
The appellant served on active duty in the U.S. Army from June 1965 to May
1967. R. at 615. In April 1966, while the appellant was in service, he was
hospitalized for acute lumbar strain; however, upon discharge from the hospital the appellant was found asymptomatic. R. at 816-18.
Upon discharge from the Army, the appellant’s spine was found to be normal.
R. 812-20. In July 1994, the appellant filed a claim seeking service connection for a low-back condition based on the lumbar strain he suffered in 1966. R. at 807-11. In October 1994, this claim was denied by the Sioux Falls, South Dakota, regional office (RO). R. at 635.
The appellant’s case was appealed to the Board, but the Board continued to deny the appellant service connection. R. at 636.
The Board acknowledged the appellant’s assertions and the medical evidence
that was submitted; however, it concluded that the evidence of record did not clearly establish that the appellant had a currently diagnosed low-back disorder and that it failed to link any low-back disorder to an in-service incident. R. at 639-40.
In April 2004, the appellant requested that VA reopen his low-back
disorder claim. R. at 610-12. In support of his request, the appellant submitted multiple medical records and lay testimony stating that he had suffered from back pain since his time in service. R. at 49-59, 184, 321, 484-93, 579-80, 587-89, 610. In September 2004, the Indianapolis, Indiana, RO declined to reopen the appellant’s claim. R. at 4. His claim was appealed to the Board. R. at 3. In the decision
on appeal, the Board found that the appellant had not submitted new and
material evidence that would allow his low-back claim to be reopened. Id.

II. ANALYSIS
In his briefing materials, the appellant maintains that his case must be
remanded for the Board to provide an adequate statement of reasons or bases because the Board did not specifically discuss 1) a July 2004 medical report by Doctor Steven J. Svabek, and 2) a statement from his brother asserting that the appellant complained of back pain after leaving the Army. Appellant’s Brief (Br). at 6-9; Reply Br. at 2-4. After consideration of the pleadings and the record, the Court
agrees with the appellant.
As a matter of law, a previously disallowed claim can be reopened upon the
submission of new and material evidence. Woehlaert v. Nicholson, 21 Vet.App. 456, 460 (2007) (citing 38 U.S.C. §§ 5108, 7105(c)). The evidence “must be both new and material.” Smith v. West, 12 Vet.App. 312,314 (1999). “New” evidence means “evidence not previously submitted to agency decision makers.”
38 C.F.R. § 3.156(a) (2010). “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.” Id. “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.” Id.
The threshold for determining whether new and material evidence raises a reasonable
possibility of substantiating a
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claim is “low.” See Shade v. Shinseki, 24 Vet.App. 110, 117 (2010).
Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be
reopened, either by triggering the Secretary’s duty to assist or through
consideration of an alternative theory of entitlement. Id. at 118. Finally, when evaluating whether evidence justifies reopening a claim, the Board is required to discuss the reasons or bases for its findings and conclusions on material issues of fact and law. Allday v. Brown, 7 Vet.App. 517, 527 (1995).

In this case, the Board, in evaluating the evidence submitted by the
appellant, found first that the last prior denial of his claim in 1997 was based on a lack of medical evidence relating his low-back disorder to his in-service accident. R. at 10. The Board then found that much of the evidence received since the 1997 Board decision was “‘new’ in that it was not of record at the time” of the prior decision, but that the evidence was not “‘material’ because it d[id] not raise a reasonable possibility of substantiating the [appellant’s] claim.” R. at 11. The Board further explained that the evidence failed to show any relationship between the appellant’s current degenerative disc disease of the lumbar spine and his active military service Id. However, in coming to this conclusion the Board applied the wrong legal standard.
As stated earlier, when evaluating the materiality of newly submitted
evidence, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, but rather should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory. See Shade, supra.
Accordingly, it was error for the Board to focus solely on whether the appellant’s newly submitted evidence could provide the nexus that was found to be missing in 1997. Id.

Furthermore, this error would appear to be prejudicial, as Dr. Svabek’s July 2004 medical report and the statement from the appellant’s brother might meet the low threshold for reopening his low-back disability claim.
In this regard, the Court notes that Dr. Svabek’s opinion provides a clear
and current diagnosis of degenerative disk disease (DDD), along with a statement that the appellant has a long history of back pain. R. at 587-589. The Court also observes that the statement from the appellant’s brother asserts that the appellant entered the Army free of back pain, but had back problems after discharge and has complained of back pain to this day. R. at 184. This evidence is significant as
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the Board found in 1997 that it was “unclear if the veteran had a currently diagnosed low back disorder” and dismissed the appellant’s then submitted evidence on continuity of symptomatology because it found that the appellant’s testimony could not link his symptoms to a condition. R. at 639.
Accordingly, it appears that the appellant’s newly submitted evidence could reasonably result in an award of service connection if his claim was reopened under the low standard contemplated by law. See Shade, surpa. This is because the new evidence, if found competent and credible, could allow the appellant to achieve service connection for his DDD under continuity of symptomatology. See Savage v. Gober, 10 Vet.App. 488, 495 (1997) (explaining that continuity of symptomatology is a distinct and separate path to service connection); 38 C.F.R. § 3.303(b) ( 2010). Alternatively, it may be sufficient to trigger the Secretary’s duty to obtain a medical opinion. See McLendon v. Nicholson, 20 Vet.App. 79, 81 (2006). Accordingly, the Board’s decision must be vacated so that it can provide an adequate explanation for its rejection of both law and evidence material to the potential reopening of the appellant’s claim. See Allday, supra.
Accordingly, the Court will vacate the December 15, 2008, Board decision.
On remand, the appellant is free to submit additional evidence and argument, including the arguments raised in his briefs to this Court, in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order), and the Board must consider any such evidence or argument submitted. 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).

III. CONCLUSION
After consideration of the appellant’s and the Secretary’s briefs, and a
review of the record, the Board’s December 15, 2008, decision is VACATED and the matter is REMANDED to the Board for further proceedings consistent with this decision.
DATED: January 26, 2011
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Copies to:
Daniel G. Krasnegor, Esq.
VA General Counsel (027)
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1 Comment »

  1. Seems very similar to my situation and will try to quote in my reopen claim.
    I am trying to reopen my lower back (discectomy and partial laminectomy) claim denied in 1986. Acute and transitory is the only thing on the award letter. I requested my C file, rating decision, and Medical History Record from my Aug 75 retirement exam, but nothing from VA. I deny and injury and No medical treatment from retirement until Dec 83. After 20 months of doctor visits I had surgery for hnp L5-S1 in Aug 1985. Continuity of symptomatology is one way I’m using to reopen my. Also trying to get limping from left meniscectomy in 1974 and right medicos tear in 1975 considered. Had a TKR
    in 2010.

    Comment by John Moreau — March 3, 2011 @ 7:55 pm


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