Application of Shade v. Shinseki, Reopen Claim by Single Judge

Application of Shade v. Shinseki by single Judge.

"The Court also notes that, subsequent to the Board's decision in this case,
this Court issued its decision is Shade v. Shinseki. __ Vet.App. __, No. 08-3548, slip op. at 10 (Nov. 2, 2010) (holding 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).

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 08-407
L.S. BISHOP, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MOORMAN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
MOORMAN, Judge: The appellant, L.S. Bishop, appeals through counsel a
November 16,
2007, Board of Veterans' Appeals (Board) decision that the appellant had
not submitted new and
material evidence sufficient to reopen claims for service connection for
cervical and lumbar spine
disorders, a right leg disorder, dysthymic disorder, migraine headaches,
shortness of breath,
vasomotor rhinitis, hemorrhoids and colon polyps, hypertension, a left
hand disorder, and carpal
tunnel syndrome. Record (R.) at R. at 1-30. The appellant and Secretary
both filed briefs and the
appellant filed a reply brief. The Court has jurisdiction pursuant to 38 U.
S.C. §§ 7252(a) and
7266(a) to review the November 2007 Board decision. A single judge may
conduct that review
because the outcome in this case is controlled by the Court's precedents
and "is not reasonably
debatable." Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the
following reasons, the
Court will vacate the Board's November 2007 decision and remand the matter
for readjudication.
I. FACTS
In January 1996, May 1996, and November 1997, the regional office (RO)
issued rating
decisions pertaining to the appellant's claims. R. at 370-73, 378-383, 350-
57. The RO denied
entitlement to service connection for right leg and left hand disorders
because the evidence did not


reveal that right leg and left hand disorders were incurred in or
aggravated by service. R. at 543.
Entitlement to service connection for dysthymic disorder was denied
because evidence did not show
that dysthymic disorder occurred in or was caused by service. R. at 540.
The claims of entitlement
to service connection for migraine headaches and shortness of breath were
denied because such
conditions did not arise in service or become compensable within a year
after service. R. at 372,
380, 542. Entitlement to service connection for vasomotor rhinitis,
hypertension, and hemorrhoids
was denied because evidence did not show these conditions were incurred in
or aggravated by
service. R. at 79, 371, 534, 537, 538, 543. Entitlement to service
connection for carpal tunnel
syndrome was denied because there was no evidence of carpal tunnel
syndrome in service or within
a year after discharge. R. at 380. All of these decisions became final.
In its decision now on appeal, the Board found that: there was no new and
material evidence
received that connected a right leg disorder to an alleged traumatic
incident in service (R. at 11);
there was no new and material medical evidence of a diagnosed dysthymic
disorder that related to
any aspect of service (R. at 13); there was no new and material evidence
material to a relationship
between the appellant's migraine headaches and any aspect of service (R.
at 16); there was no new
and material evidence material to the etiology of shortness of breath,
vasomotor rhinitis, and
hemorrhoids (R. at 17, 20, 22); that there was no new and material and
material evidence that
hypertension manifested to a compensable degree within one year of active
service or of a
relationship between hypertension and service (R. at 23); and that no new
and material evidence
showed that a hand disorder and carpal tunnel syndrome were related to
service (R. at 26).
II. ANALYSIS
The parties agree that the issue of whether new and material evidence has
been received to
reopen claims of entitlement to service connection for: a right leg
disorder, dysthymic disorder,
migraine headaches, shortness of breath, vasomotor rhinitis, hemorrhoids
and colon polyps,
hypertension, a left hand disorder, and carpal tunnel syndrome should be
remanded for the Board to
provide an adequate statement of reasons or bases for its decision that
would enable the appellant
to understand the bases for its decision and facilitate judicial review.
38 U.S.C. § 7104(a); Daves
v. Nicholson, 21 Vet.App. 46, 51 (2007). The Court concurs with the
parties that remand is
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warranted for these claims as the Board's analysis of whether the
appellant submitted new and
material evidence regarding these claims is inadequate and does not
facilitate review by the Court.
The Court also notes that, subsequent to the Board's decision in this case,
this Court issued
its decision is Previous DocumentShadeNext Hit v. Shinseki. __ Vet.App. __, No. 08-3548, slip op.
at 10 (Nov. 2, 2010)
(holding 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). The
Board must take
account of this decision when it considers the appellant's case on remand.
For purposes of
determining whether new and material evidence has been presented, the
Board must presume that
the newly submitted evidence is credible. See Justus v. Principi, 3 Vet.
App. 510, 513 (1992); see
also Cuevas v. Principi, 3 Vet.App. 542, 547-48 (1992).
With regard to the appellant's claim for cervical and lumbar spine
disorders, the Court will
vacate and remand these claims as well in light of our recent decision in
Previous HitShadeNext Hit, supra. The Board's
November 2007 decision stated that the evidence submitted by the appellant
was new but that it was
"not material because it is cumulative, does not relate to a previously
unestablished facts [sic]
necessarytosubstantiatetheclaims [sic],
anddoesnotraiseareasonablepossibilityofsubstantiating
the claims." R. at 11. This statement leaves unclear whether the Board
applied a standard for new
and material evidence that does not comport with 38 C.F.R. § 3.159. See
Previous HitShadeNext Hit, supra. Thus, the
Court will vacate the Board's decision with respect to these claims and
remand the matters.
The Court notes that the Board considered the appellant's lay testimony in
the June 2006 and
February 2007 Board hearings to be cumulative of statements made during
the development of the
appellant's previously denied claim. R. at 11. The previous statements
were made in the context of
a medical examination, while his later statements comprised sworn
testimony made during Board
hearings. On remand, the Board should consider the appellant's lay
testimony in light of our
decisions in Previous HitShadeNext Document and Justus, both supra.
III. CONCLUSION
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Upon consideration of the forgoing analysis and of the appellant's and
the Secretary's briefs,
and a review of the record, the Board's November 16, 2007, decision is
VACATED and the matters
are REMANDED.
DATED: November 24, 2010
Copies to:
Virginia A. Girard-Brady
General Counsel (027)
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