Veteranclaims’s Blog

April 26, 2011

Single Judge Application, Shade v. Shinseki, 24 Vet.App., Boggs v. Peake, 520 F.3d, Clemons v. Shinseki, 23 Vet.App.

Filed under: Uncategorized — Tags: , , , , , — veteranclaims @ 6:12 pm

Excerpt from decision below:
“Mr. Wieczorkowski also argues that Shade v. Shinseki, 24 Vet.App. 110, 119-20 (2010), is controlling here, and supports the reopening of his claim. Shade, however, is inapposite. Shade involved a claim that had been denied for lack of evidence of a current disability and any nexus between the asserted disability and service. Id. at 119. In support of reopening the claim, the claimant submitted evidence of a current disability of the same type he had in service. Id. at 120. Shade clarified that in such cases medical evidence of a nexus was not needed to reopen the claim. Id. Rather, as long as there was evidence of record of an in-service disability and new and material evidence of a current disability of the same type, there was a “reasonable possibility of substantiating the claim” which warranted reopening the claim. Id. at 119-20.
In contrast to Shade, where new and material evidence was submitted with regard to a factor upon which the claim previously had been denied, Mr. Wieczorkowski submitted no new and material evidence with regard to the only factor upon which his claim previously had been denied, to wit: nexus. Otherwise stated, Mr. Wieczorkowski’s claim previously was denied for lack of nexus evidence and it could only be reopened with the submission of new and material evidence on that issue. See 38 C.F.R. § 3.156(a) (material evidence “relates to an unestablished fact necessary to substantiate the claim”). Based on the record on appeal, the Board’s finding that no nexus evidence was submitted – and therefore new and material evidence warranting the reopening of his claim had not been submitted – is plausible and not clearly erroneous, and Mr. Wieczorkowski fails to demonstrate Board error in denying the reopening of his claim for benefits for a low-back disability.”
========================================
“On the other hand, the record supports Mr. Wieczorkowski’s alternative argument that the Board erred by failing to process his claim as a new claim for benefits for a foot condition, more specifically peripheral neuropathy. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (Board “must determine all potential claims raised by the evidence, applying all relevant laws and regulations, regardless of whether the claim [is] specifically labeled”); see also Boggs v. Peake, 520 F.3d 1330, 1337 (Fed. Cir. 2008) (“[C]laims based upon distinctly diagnosed diseases or injuries must be considered separate and distinct claims.”); Clemons v. Shinseki, 23 Vet.App. 1, 5 (2009)(when determining scope of a claim, Secretary must consider” the claimant’s description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim”).”

—————————————————-

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 09-0192
NORBERT WIECZORKOWSKI, 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 Norbert Wieczorkowski appeals through counsel
that part
of a December 22, 2008, decision of the Board of Veterans’ Appeals (Board)
that denied service
connection for hearing loss and tinnitus, and denied Mr. Wieczorkowski’s
attempt to reopen his
claims for benefits for a low-back disability and bilateral pes planus.1
Mr. Wieczorkowski contends
that the Board erred by failing to (1) provide a VA medical examination
for his claims for benefits
for hearing loss and tinnitus, (2) reopen his claim for benefits for a low-
back disability, and (3)
reopen his claim for benefits for pes planus, or, in the alternative,
liberally construe his request for
benefits for a foot condition as a new claim for peripheral neuropathy.
The Secretary disputes these
contentions. Single-judge disposition is appropriate. Frankel v. Derwinski,
1 Vet.App. 23, 25-26
(1990). For the reasons stated below, the Board’s decision will be in part
affirmed, and in part set
aside and the matters remanded for further adjudication.
Pes planus is more commonly known as flatfoot. See DORLAND’S ILLUSTRATED
MEDICAL DICTIONARY
1441 (31st ed. 2007) [hereinafter DORLAND’S].
1

I. Hearing Loss and Tinnitus
The Board’s statement is inadequate with regard to its denial of Mr.
Wieczorkowski’s claim
for benefits for hearing loss and tinnitus. Specifically, although the
Board found no record evidence
of any complaints of hearing loss or tinnitus, it failed to discuss or
assess the credibility of Mr.
Wieczorkowski’s hearing testimony that he has had periodic hearing loss
since he first experienced
such hearing loss in the service. See Record (R.) at 278-79 (“When I was
in the service and we came
back from that maneuver, I couldn’t hear . . . . I told the commanding
officer, I can’t hear you talking
. . . . [A]t times I still get this lack of hearing.”). The Board’s
failure to discuss this potentially
favorable evidence frustrates judicial review. See Thompson v. Gober, 14
Vet.App. 187, 188 (2000)
(Board must provide an adequate statement of reasons or bases “for its
rejection of any material
evidence favorable to the claimant”); Allday v. Brown, 7 Vet.App. 517, 527 (
1995) (Board’s
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”); Ashley v. Brown,
6 Vet.App. 52, 56 (1993)
(Board must address sworn testimony of claimant). Remand is warranted.
Tucker v. West, 11
Vet.App. 369, 374 (1998) (remand is appropriate “where the Board has
incorrectly applied the law,
failed to provide an adequate statement of reasons or bases for its
determinations, or where the
record is otherwise inadequate”).
II. Low-Back Disability
Mr. Wieczorkowski initially was denied entitlement to benefits for a low-
back disability in
an unappealed and final 1955 rating decision. R. at 484; see DiCarlo v.
Nicholson, 20 Vet.App. 52,
55-56 (2006) (an unappealed decision becomes final at the expiration of
the time of appeal). He
attempted to reopen his claim in 1997, but it was rejected in a 1999 Board
decision, which noted
that, although newlysubmitted evidence demonstrated a current back
disability and service medical
records noted a bruised back, a nexus between the disability and service
was still lacking, and thus
the new evidence was “not so significant that it must be considered to
fairly decide the merits of the
claim.” R. at 174 (citing 38 C.F.R. § 3.156(a) (1999) (defining “new and
material” evidence as, inter
alia, “evidence . . . which by itself or in connection with evidence
previously assembled is so
significant that it must be considered in order to fairly decide the
merits of the claim”)); see R. at
2

169, 171. Mr. Wieczorkowski did not appeal that decision and it became
final. DiCarlo, supra.
Mr. Wieczorkowski again sought to reopen his claim in 2004, but his
attempt was rejected
in the Board decision on appeal because the newly submitted evidence – a
fellow soldier’s lay
statement documenting Mr. Wieczorkowski’s in-service injury (“buddy
statement”) – (1) was
cumulative and (2) did not raise a reasonable possibility of
substantiating the claim because it did
not provide a nexus between the current disability and service. R. at 11.
Mr. Wieczorkowski correctly points out that the buddy statement comes from
a different
sourcethanMr.Wieczorkowski’sprevioustestimonyregardinghis in-serviceinjury,
andis therefore
corroborative, not merely cumulative of the fact that Mr. Wieczorkowski
suffered an in-service
injury. See Forrest v. Brown, 4 Vet.App. 276, 279 (1993) (statements from
a former military
policeman and a social worker, although “similar” to statements by the
veteran previously in the
record, are “corroborative statements from different sources, and thus
cannot be rejected as ‘merely
cumulative'”); Paller v. Principi, 3 Vet.App. 535, 538 (1992) (finding a
newly submitted statement
by a doctor whose own testimony was previously of record “cumulative,” but
a newly submitted
statement from a different doctor “corroborative”); R. at 32-33.
Despite the Board’s incomplete characterization of the buddy statement,
however, Mr.
Wieczorkowski has not demonstrated that the buddy statement constitutes ”
material” evidence
sufficient to reopen his claim. 38 C.F.R. § 3.156(a) (2010) (material
evidence “relates to an
unestablished fact necessaryto substantiate the claim”). Although the
buddystatement corroborated
an in-service injury, it did not address the unestablished fact when his
claim was last denied in 1999,
to wit: nexus between Mr. Wieczorkowski’s current disability and his
service. See Bostain v. West,
11 Vet.App. 124, 127 (1998) (noting that the “last final disallowance” of
a claim was the denial of
a request to reopen the claim); Evans v. Brown, 9 Vet.App. 273, 285 (1996) (
holding that evidence
must be new and material “since the time that the claim was finaly
disallowed on any basis, not only
since the time that the claim was last disallowed on the merits”),
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 did not overrule the aforementioned
part of Evans). As such,
Mr. Wieczorkowski fails to demonstrate that the buddy statement
constitutes material evidence or
that the Board erred in not reopening his claim. See Hilkert v. West, 12
Vet.App. 145, 151 (1999)
3

(en banc) (appellant bears burden demonstrating error on appeal).
Mr. Wieczorkowski also argues that Previous DocumentShadeNext Hit v. Shinseki, 24 Vet.App. 110, 119-
20 (2010), is
controlling here, and supports the reopening of his claim. Previous HitShadeNext Hit, however,
is inapposite. Previous HitShadeNext Hit
involved a claim that had been denied for lack of evidence of a current
disability and any nexus
between the asserted disability and service. Id. at 119. In support of
reopening the claim, the
claimant submitted evidence of a current disability of the same type he
had in service. Id. at 120.
Previous HitShadeNext Hit clarified that in such cases medical evidence of a nexus was not
needed to reopen the claim.
Id. Rather, as long as there was evidence of record of an in-service
disability and new and material
evidence of a current disabilityof the same type, there wasa “reasonable
possibilityof substantiating
the claim” which warranted reopening the claim. Id. at 119-20.
In contrast to Previous HitShadeNext Document, where new and material evidence was submitted with
regard to a factor
upon which the claim previously had been denied, Mr. Wieczorkowski
submitted no new and
material evidence with regard to the only factor upon which his claim
previously had been denied,
to wit: nexus. Otherwise stated, Mr. Wieczorkowski’s claim previouslywas
denied for lack of nexus
evidence and it could only be reopened with the submission of new and
material evidence on that
issue. See 38 C.F.R. § 3.156(a) (material evidence “relates to an
unestablished fact necessary to
substantiate the claim”). Based on the record on appeal, the Board’s
finding that no nexus evidence
was submitted – and therefore new and material evidence warranting the
reopening of his claim had
not been submitted – is plausible and not clearly erroneous, and Mr.
Wieczorkowski fails to
demonstrate Board error in denying the reopening of his claim for benefits
for a low-back disability.
See Woehlaert v. Nicholson, 21 Vet.App. 456, 461 (2007) (“The Court
reviews the Board’s
determination of whether new and material evidence has been presented
since a prior adjudication
under the ‘clearly erroneous’ standard.”); Gilbert v. Derwinski, 1 Vet.App.
49, 52 (1990) (Board
finding is not “clearly erroneous” if plausible in light of the record and
absent a firm conviction that
the Board erred); see also Hilkert, supra.
III. “Foot Condition” Claim
Mr. Wieczorkowski initially was denied entitlement to benefits for pes
planus in an
unappealed and final 1955 rating decision, because the condition was a ”
developmental abnormality
4

– not a disability under the law.” R. at 484; see DiCarlo, supra. He
attempted to reopen his claim
in 1997 (see R. at 428 (stating that “I wish to re-open my claim for . . .
my feet”)), but it was rejected
in a 1999 Board decision. In 2004, he filed for benefits for a bilateral
foot condition. See R. at 160
(“I am filing a claim . . . for bilateral feet condition.”). The Secretary
construed the filing as an
attempt to reopen his pes planus claim. Although Mr. Wieczorkowski argues
that the Secretaryerred
by ultimately not reopening his claim, that argument is not supported by
the record. The Board
found that Mr. Wieczorkowski was diagnosed with peripheral neuropathy and
that none of the
evidence raised a reasonable possibility of substantiating a pes planus
claim. Based on the record
on appeal, that finding, and the finding that new and material evidence
sufficient to reopen the claim
was not submitted, are plausible and not clearly erroneous. See Woehlaert
and Gilbert, both supra.
On the other hand, the record supports Mr. Wieczorkowski’s alternative
argument that the Board erred by failing to process his claim as a new claim for benefits for a foot condition, more specifically peripheral neuropathy. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (Board “must determine all potential claims raised by the evidence, applying all relevant laws and regulations, regardless of whether the claim [is] specifically labeled”); see also Boggs v. Peake, 520 F.3d 1330, 1337 (Fed. Cir. 2008) (“[C]laims based upon distinctly diagnosed diseases or injuries must be considered separate and distinct claims.”); Clemons v. Shinseki, 23 Vet.App. 1, 5 (2009)(when determining scope of a claim, Secretary must consider” the claimant’s description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim”).

The record reflects that Mr. Wieczorkowski described his request for
benefits as a claim “for bilateral feet condition” and did not request “to reopen” his claim, as he did in 1999. R. at 160, 428.
2
The medical reports submitted with Mr. Wieczorkowski’s 2004 claim
reflected complaints of
numbness of his feet, which reasonably entails a neuropathic issue. See
DORLAND’S at 1287
(defining neuropathyas, inter alia, “afunctional disturbance or
pathological change in the peripheral
nervous system”); R. at 129 (“He complains of numbness in his feet and
legs. . . . He states that
2
Although the Secretary argues that Mr. Wieczorkowski referred to his claim
as one for a “bilateral flat
feet condition” during the processing of the claim, Mr. Wieczorkowski only
labeled his condition as such after the
Secretary had interpreted his claim erroneously as one for “bilateral
flatfeet.” R. at 75 (rating decision); R. at 67
(Notice of Disagreement).
5

initially it was only in his feet but now it has progressed up his legs
.”). Moreover, the primary
diagnosis in the submitted medical reports is peripheral neuropathy of the
lower extremities. See R.
at 138 (medical report documenting “residual left leg numbness”), 130 (”
IMPRESSION: 1.
Generalized sensorimotor peripheral neuropathy of lower extremities”), 124 (
medical report listing
his diagnoses, including, “[d]iffuse neuropathy of the lower extremities
by emg without clear
etiology”); see also DORLAND’S at 673 (defining “extremity” as, inter alia,
a “lower limb” or “foot”).
In light of the Board’s failure to properly identify and adjudicate Mr.
Wieczorkowski’s claim for benefits for a foot condition based on peripheral neuropathy, that matter will be remanded. See Boggs, Clemons and Tucker, all supra.

IV. Remand and Conclusion
On remand, Mr. Wieczorkowski may present, and the Board must consider, any
additional evidence and argument in support of the matters remanded. See Kay v.
Principi, 16 Vet.App. 259, 534 (2002). These matters are to be provided expeditious treatment on remand. See 38 U.S.C. § 7112.

Accordingly, that part of the December, 22, 2008, decision of the Board
denying the reopening of Mr. Wieczorkowski’s claims for benefits for a low-back
disability and for pes planus is AFFIRMED, and that part of the decision denying serviceconnection for hearing loss and tinnitus, and failing to address his reasonably raised claim for peripheral neuropathy, is SET ASIDE and the
matters REMANDED for further adjudication.
DATED:
April 15, 2011
Copies to:
Virginia A. Girard-Brady, Esq.
VA General Counsel (027)
6

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