Persistent or Recurrent Symptoms, Shade v. Shinseki; McClendon v. Nicholson

"On appeal, the appellant argues that the medical opinion was adequate to reopen the claim because it described "'persistent or recurrent symptoms of disability.'"
Appellant's Brief (Br.) at 7 (quoting 38 U.S.C. § 5103A(d)(2)(A)). The Secretary defends the Board's decision on the grounds that the opinion provides only "a possible link between ankle symptoms" and an in-service injury without providing a diagnosis. Secretary's Br. at 7.


The appellant is correct. If a claim was previously denied due to insufficient medical evidence and the new evidence would be sufficient to at least trigger the Secretary's duty to assist the appellant in developing further evidence, then the newly submitted evidence meets the standard to reopen the claim. Shade v. Shinseki, __ Vet.App. __, __ No. 08-3548, slip op. at 15-16 (Nov. 2, 2010). As the appellant argues, persistent or recurrent symptoms of a disability are sufficient to trigger the Secretary's duty to provide a medical examination under section 5103A(d). See McLendon v. Nicholson, 20 Vet.App. 79, 81 (2006)."
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 08-4155
BRUCE KIRK, 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, Bruce Kirk, through counsel, appeals an
August 20, 2008,
Board of Veterans' Appeals (Board) decision denying reopening of his claim
for service connection
for residuals of a left ankle sprain and two other conditions claimed as
secondary to his ankle
condition. Record (R.) at 3-13. 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 that follow,
the Court will vacate the
August 20, 2008, decision and remand the matters for further proceedings
consistent with this
decision.
The Board decision on appeal denied reopening of the appellant's claim
because the new
evidence "does not contain a diagnosis of a left ankle disability" even
though the medical opinion
describes current symptoms that maybe related to service. R. at 10. On
appeal, the appellant argues
that the medical opinion was adequate to reopen the claim because it
described "'persistent or
recurrent symptoms of disability.'"
Appellant's Brief (Br.) at 7 (quoting 38 U.S.C.
§ 5103A(d)(2)(A)). The Secretary defends the Board's decision on the
grounds that the opinion
provides only "a possible link between ankle symptoms" and an in-service
injury without providing
a diagnosis. Secretary's Br. at 7.


The appellant is correct. If a claim was previously denied due to
insufficient medical
evidence and the new evidence would be sufficient to at least trigger the
Secretary's duty to assist
the appellant in developing further evidence, then the newly submitted
evidence meets the standard
to reopen the claim. Previous DocumentShadeNext Document v. Shinseki, __ Vet.App. __, __ No. 08-3548,
slip op. at 15-16 (Nov. 2,
2010). As the appellant argues, persistent or recurrent symptoms of a
disability are sufficient to
trigger the Secretary's duty to provide a medical examination under
section 5103A(d). See
McLendon v. Nicholson, 20 Vet.App. 79, 81 (2006). The Board and the
Secretary's brief are both
incorrect in asserting that the claim cannot be reopened without a formal
diagnosis of the appellant's
current condition. In this case, the medical opinion refers to "ongoing
symptoms of pain, stiffness,
and instability in the ankle" and relates these symptoms to the
appellant's in-service injury. R. at 60.
This is clearlysufficient to at least trigger further assistance under
section 5103A(d) and McLendon.
Accordingly, Board's decision denying reopening will be reversed.
The Secretary concedes that the two conditions claimed as secondary to the
ankle condition
are inextricably intertwined. The Court agrees and will remand those
matters as well.
After consideration of the appellant's and the Secretary's briefs, and a
review of the record,
the Board's August 20, 2008, decision is REVERSED to the extent that it
denied reopening of the
appellant's left ankle claim and all three matters are REMANDED to the
Board for further
proceedings consistent with this decision.
DATED: Nov. 16, 2010
Copies to:
Glenn R. Bergmann, Esq.
VA General Counsel (027)
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