Veteranclaims’s Blog

September 29, 2011

Single Judge Application, New and Material, Reasonable Possibility, Shade v. Shinseki, 24 Vet.App. 110, 121 (2010)

Excerpt from decision below:
“New and material evidence is evidence that would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. Shade v. Shinseki, 24 Vet.App. 110, 121 (2010).
Subsequent to the Board’s decision in this case,this Court issued its decision in Shade, supra, which held that the issue of reopening must be confined to the subject of existence of new and material evidence alone and does not include a separate outcome-based element. Id. In Shade, the Court emphasized “that the phrase ‘raise a reasonable possibility of substantiating the claim ‘does not create a third element for new and material evidence,” but was intended to provide “guidance for VA
3

adjudicators in determining whether submitted evidence meets the new and material requirements.” Id. at 117. The Court further held that the term “reasonable possibility” contemplates the likely entitlement to a nexus medical examination, as opposed to the likely entitlement to the benefit sought. Id. at 121. In making the determination of materiality, “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) (citing Justus v. Principi, 3 Vet.App. 510, 513 (1992)).”
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-0997
ROSS A. REED, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before FARLEY, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
FARLEY, Judge: The appellant, Ross A. Reed, appeals that part of the
December 1, 2009,
Board of Veterans’Appeals (Board)decision that determinedthatnew and
material evidence had not
been submitted to reopen his claims for service connection for a left knee
disorder and a low back
disorder. Record (R.) at 3-15. This appeal is timely, and the Court has
jurisdiction to review the
Board’s decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-
judge disposition is
appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
Because the Board erred in
finding that no new and material evidence was offered to reopen the claims,
the Court will reverse
the decision and remand the matters for further proceedings consistent
with this decision.
I. FACTS
The appellant served on active duty in the U.S. Army from August 1970 to
February 1972.
Record (R.) at 690. His original claim, filed in March 1972 (R. at 614-15),
for entitlement to service
connection for back and knee disorders was denied in May 1974 (R. at 577-
78). The VA regional
office (RO) at that time found that the appellant’s in-service back Previous DocumentinjuryNext Hit
was “acute” and that he had
no “right” knee disorder. R. at 577-78. Over the following years, the
appellant made several
unsuccessful attempts to reopen the previously denied claims for
entitlement to service connection

for a back and a left knee disorder. See, e.g., R. at 234, 541-42, 546.
In April 1994, the appellant
clarified that it was his left knee, not his right, that was injured in
service. R. at 442. Also added
to the record was an October 1995 VA medical examination report that
included diagnoses of
mechanical low back pain and “degenerative joint disease of the left knee.”
R. at 332.
The appellant attempted to reopen his claim for service connection for his
back and left-knee
conditions in March 2006. R. at 147. The RO denied reopening in December
2006. R. at 118-22.
The appellant submitted a Notice of Disagreement in December 2007. R. at
106. In support of his
claims, he submitted a letter from Dr. Daniel Hinshaw, his treating
physician, who opined that the
Previous HitinjuryNext Document documented in the appellant’s service medical records is related to
his current chronic back
pain. R. at 64.
In the December 1, 2009, decision on appeal, the Board denied reopening
the appellant’s
claims for entitlement to service connection for his left knee and back
disorders. R. at 3-15. The
Boardnotedthat the May1974 ratingdecision was final andthat,
sincethatdecision,”new”evidence
had been submitted. R. at 12.
With regard to the Veteran’s claim of service connection for a back
condition, the RO
held that the back strain in 1970 in service was an acute condition that
did not exist
after 1970, until the present time and could not be related to service.
With regard to
the left knee claim, the RO denied service connection for lack of evidence
of a left
knee disability.
R. at 11. The Board listed the evidence that the appellant had submitted
in support of his claim since
the 1974 denial, but ultimately concluded that it was not sufficient to
warrant reopening the claim.
See R. at 11-12. The Board discussed the opinion submitted by Dr. Hinshaw,
but found that “it does
not substantiate the Veteran’s claim because it does not provide evidence
of a currently diagnosed
back disability that is related to service.”
II. ANALYSIS
In his brief before this Court, the appellant argues that the Board
applied the wrongdefinition
of what constitutes new and material evidence sufficient to warrant
reopening his claims.
Appellant’s Brief (Br.) at 5-9. He contends that the Board should have
applied the version of the
applicable regulation “in effect when the veteran attempted to reopen his
claims in 1994 and 1998,
2

and which is more favorable to the veteran.” Id. at 5. Alternatively, he
argues that, irrespective of
whichdefinition ofnewandmaterial evidencewasused,theBoarderredin not
reopeningtheclaims.
Id. at 5, 10-12. The Secretary concedes that the Board’s statement of
reasons or bases for declining
to reopen the appellant’s claims is inadequate. Secretary’s Br. at 5.
Specifically, the Secretarypoints
to the Board’s inconsistent statements noting that “a December 2007 VA
physician’s letter provided
a positive nexus” for the back claim but nevertheless finding that the
opinion “did not ‘substantiate
the Veteran’s claim because it does not provide evidence of a current back
disability.'” Secretary’s
Br. at 7. The Secretary also points out that the Board noted that the 1974
rating decision denied the
appellant’s left knee claim on the basis that there was no current
disability but the Board denied
reopening because “there was no evidence of a nexus to service.” Id. at 9.
The Secretary urges the
Court to remand the matter for readjudication. Id. at 10. He disagrees
with the appellant that
reversal is the appropriate remedy. Id. at 10-13.
Pursuant to 38 U.S.C. § 5108, “[i]f 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.” 38 U.S.C. § 5108. New and material
evidence is defined as:
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) (2011). New and material evidence is evidence that
would raise a reasonable
possibility of substantiating the claim if, when considered with the old
evidence, it would at least
trigger the Secretary’s duty to assist by providing a medical opinion.
Shade v. Shinseki, 24 Vet.App.
110, 121 (2010).
Subsequent to the Board’s decision in this case,thisCourt issued its
decision in Shade, supra,
which held that the issue of reopening must be confined to the subject of
existence of new and
material evidence alone and does not include a separate outcome-based
element. Id. In Shade, the
Court emphasized “that the phrase ‘raise a reasonable possibilityof
substantiating the claim ‘does not
create a third element for new and material evidence,” but was intended to
provide “guidance for VA
3

adjudicators in determining whether submitted evidence meets the new and
material requirements.”
Id. at 117. The Court further held that the term “reasonable possibility”
contemplates the likely
entitlement to a nexus medical examination, as opposed to the likely
entitlement to the benefit
sought. Id. at 121.
In making the determination of materiality, “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) (citing Justus v.
Principi, 3 Vet.App. 510,
513 (1992)).
The Board’s determination of whether a claimant has submitted
new and material
evidence is generally reviewed under the “clearly erroneous” standard of
review set forth in
38 U.S.C. § 7261(a)(4). Suaviso v. Nicholson, 19 Vet.App. 532, 533-34 (
2006); Elkins v. West,
12 Vet.App. 209, 217 (1999) (en banc). A finding of fact is clearly
erroneous when the Court, after
reviewing the entire evidence, “‘is left with the definite and firm
conviction that a mistake has been
committed.'” Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) (quoting
United States v. U.S. Gypsum
Co., 333 U.S. 364, 395 (1948)).
Here, the Board denied reopening the appellant’s claims for service
connection for a back
disability and a left knee disability based on the finding that, although
the appellant had submitted
“new” evidence, it was not “material” because it failed to show a current
disability related to service.
R. at 12, 15. In coming to this conclusion, the Board reviewed the
evidence submitted since the last
final denial of the claims in May 1974. R. at 12, see also R. at 577-578.
As to the back condition,
the Board stated that in 1974 the claim had been denied because “there was
no evidence of a back
disabilitythat was related to service.” R. at 12. However, the Board
conceded that a December 2007
VA physician’s letter provided a positive nexus between the appellant’s
back strain in service and his
current back pain. See R. at 12, see also R. at 64. Nevertheless, the
Board inexplicably denied
reopening because the December 2007 nexus opinion did not “substantiate
the Veteran’s claim
because it does not provide evidence of a current back disability. . . .”
Id. The Board erred in not
reopening the appellant’s claim when the evidence of record included the
December 2007 medical
opinion that relates to an unestablished fact necessary to substantiate
the claim. 38 C.F.R.
4

§ 3.156(a). This evidence bears directly and substantiallyon his claim
for service connection for his
back disorder being related to his military service. Id.
Similarly, the Board erred in denying reopening of the appellant’s left
knee disability claim.
See R. at 12. Specifically, the Board bases its denial of reopening the
appellant’s left knee claim on
the basis that there was no evidence of a nexus to service. Id. Yet, the
Board explicitly stated that
the 1974 rating decision denied the claim “for lack of evidence of a left
knee disability.” R. at 11.
Recourse to the 1974 rating decision reveals that service connection for a
right knee condition was
denied for lack of evidence of a disability. R. at 577-78. In 1976 (R. at
554), and again in April
1994 (R. at 442), the appellant made clear that he was seeking service
connection for a left knee
disability. Irrespective of which knee was considered, insofar as the
denial was based on the lack
of a current disability, the newly submitted evidence of record reveals
degenerative joint disease of
the left knee. R. at 332. However, the Board failed to address the
appellant’s current diagnosis,
which bears directly and substantially on his claim for service connection.
The newly submitted
evidence meets the regulatory requirements such that the appellant’s claim
should be reopened.
The Court is required to reverse “a finding of material fact . . . if the
finding is clearly
erroneous.” 38 U.S.C. § 7261(a)(4). Accordingly, the Court will reverse
the December 1, 2009,
Board decision that found that no new and material evidence had been
received to reopen the
appellant’s claims forserviceconnection for his back and left knee
disorders, and remand the matters
to the Board for readjudication. 38 U.S.C. § 7261(a)(4); Duran, 7 Vet.App.
at 220; Justus,
3 Vet.App. at 513.
Further, once the claims are remanded, the Board must return the matter to
the RO for
adjudication to afford the appellant one review on appeal and to complete
any development that the
reopened claims require. Disabled Am. Veterans v. Sec’y of Veterans
Affairs, 327 F.3d 1339, 1347
(Fed. Cir. 2003) (“When the Board obtains evidence that was not considered
bythe [regional office]
and does not obtain the appellant’s waiver, however, an appellant has no
means to obtain ‘one review
on appeal to the Secretary,’ because the Board is the only appellate
tribunal under the Secretary.”);
see 38 U.S.C. § 7104(a) (“All questions in a matter which . . . is
subject to decision by the Secretary
shall be subject to one review on appeal to the Secretary”); Shade, supra.
5

III. CONCLUSION
On consideration of the foregoing, the parties’ briefs, and the record on
appeal, that part of
the December 1, 2009, Board decision that found that no new and material
evidence had been
submitted to warrant reopening the claims for service connection for a
back disorder and a left knee
disorder is REVERSED and the matters are REMANDED for readjudication
consistent with this
decision.
DATED: September 21, 2011
Copies to:
Michael A. Leonard, Esq.
VA General Counsel (027)
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