Single Judge Application of Shade v. Shinseki, 24 Vet.App., Low Threshold to Reopen

Excerpt from decision below:
However, other portions of Shade are relevant. The Court will review
whether the Board applied the "low threshold" in determining whether the new evidence raised a reasonable possibility of substantiating the claim. Id. at 9. While the above-quoted language from the examiner's report is not a model of drafting clarity, the doctor's report indicates two things. First, there was not an in-service event (a motor vehicle accident) that caused the degenerative
joint disease. See R. at 95 ("It is less likely than not this veteran[']s [degenerative joint disease] of the [right] knee was caused by or the result of a laceration to the right leg from a [motor vehicle accident] during military service").
Second, the motor vehicle accident after service and the accident during
service may have contributed to the progression/severity of the degenerative joint disease, but the examiner could not determine the impact of each factor without resorting to speculation, which she was not willing to do. Therefore despite the contribution of the motor vehicle accident to the severity and progression
of the degenerative joint disease, the Board concluded that the lack of an
in-service internal injury to the right knee established that there was no in-service connection, and consequently there was no new and material evidence to reopen the claim. In other words, while there is a statement that can be interpreted as a possible nexus, there can be no actual nexus because
there was no evidence of an internal injury in service. Without new evidence of this required first element of service connection, there could be no reasonable possibility of substantiating the claim, even under the low threshold of Shade. See Shedden, supra; Shade, 24 Vet.App. at 118 n.7.

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 08-3997
WILLIAM L. PAXTON, APPELLANT,
v.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before DAVIS, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.

DAVIS, Judge: U.S. Navy veteran William L. Paxton appeals through counsel
from an October 24, 2008, decision of the Board of Veterans' Appeals (Board) that (
1) denied entitlement to
service connection for post-traumatic stress disorder (PTSD) and
degenerative joint disease of the
right wrist; (2) found no new and material evidence sufficient to reopen a
previouslydenied service-
connection claim for degenerative arthritis of the right knee; and (3)
denied entitlement to an
increased rating for residuals of a fractured left clavicle, residuals of
fractured right long finger, and
laceration residuals on the right leg. For the following reasons, the
Court will affirm the Board's
October 2008 decision in part, set aside a recharacterized claim for a
psychiatric disability, and
remand the matter of depression for adjudication by the Board.
Mr. Paxton was involved in a motorcycle accident in September 1967, while
in service. He
sustained injuries to his left clavicle and right long finger, as well as
abrasions and lacerations. He
was discharged in January 1969, and in July 1972 he was granted service
connection for residuals
of fractured left clavicle, fracture of right long finger, and right leg
injury. In 1974, he was involved
in another motorcycle accident and suffered additional injuries, including
a head injury.


I. ANALYSIS
A. Service-Connection Claims
As an initial matter, the Court notes that Mr. Paxton does not appeal the
Board's denial of
service connection for PTSD. The Court, therefore, will not address that
matter. See Cromer v.
Nicholson, 19 Vet.App. 215 (2006) (holding that issues not raised in
appellant's brief will not be
addressed by the Court).
Mr. Paxton first argues that the Board failed to liberally construe his
claim for PTSD and
consider whether he is entitled to service connection for depression. The
Secretary concedes that
remand is appropriate in this respect. In considering Mr. Paxton's PTSD
claim, the Board noted that
he reported suffering from depression and that a VA clinical psychologist
diagnosed him with
depression. See Record (R.) at 14, 88, 415. The Board, however, did not
consider whether Mr.
Paxton is entitled to service connection for depression, but limited its
analysis to his stated claim for
PTSD. For this reason, remand is required for the Board to consider in the
first instance whether
service connection is warranted for depression. See Clemons v. Shinseki,
23 Vet.App. 1, 5-6 (2009).
Next, Mr. Paxton argues that the Board erred in denying his service-
connection claim for
degenerative joint disease of the right wrist. He asserts that the Board
failed to discuss favorable
evidence, improperlydiscounted his lay statements, and provided inadequate
medical examinations
in February 2006 and March 1997.
Mr. Paxton argues that the Board "discounted favorable medical evidence [
that] diagnosed
the existing medical condition"–specifically, x-ray evidence that
established the diagnosis of
degenerative joint disease. Appellant's Brief (Br.) at 16. The Board,
however, did discuss x-ray
evidence dated from 1997 and 2004. The Board noted that the 1997 x-ray
showed no evidence of
degenerativearthritis,andthatthe2004x-ray"showedradiocarpal
degenerativechangeswhichwere
new since the study of 1997." R. at 16. The Board reasoned: "[D]
egenerative joint disease of the
right wrist was not first identified until the February 2004 x-ray report,
some 37 years after the 1967
accident in service and long after the expiration of the presumptive
period for service connection for
arthritis." Id. Based on this analysis of the evidence of record, the
Court cannot conclude that the
Board improperly discounted the x-ray evidence related to the right wrist.
2


Mr. Paxton also argues that the Board improperlydiscounted his
laystatements. The Board,
however, explained its analysis of Mr. Paxton's lay statements and found
that his statements lacked
credibility. The Board noted that Mr. Paxton had not complained of right
wrist pain for 25 years
after service and that he did not claim to have wrist pain when he
described his injuries after the
1967 in-service motorcycle accident. The Court discerns no error with the
Board's determination
that Mr. Paxton's lay statements lack credibility, as the Board explained
that it placed greater weight
and probative value on the "pertinently negative medical reports in
service and for decades
thereafter." R. at 17.
Finally,Mr.Paxton asserts thathis
February2006andMarch1997VAmedicalexaminations
were inadequate. A medical examination is adequate where it "describes the
disability, if any, in
sufficient detail so that the Board's 'evaluation of the claimed
disability will be a fully informed
one.'" Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007) (quoting Ardison v.
Brown, 6 Vet.App. 405,
407 (1994)). The adequacy of a medical examination is a factual
determination reviewed under the
"clearly erroneous" standard of review. See Nolen v. Gober, 14 Vet.App.
184 (2000).
Mr. Paxton argues that the February 2006 examination "found the claimed
right wrist
condition was causally interconnected with appellant's service-connected
right finger, and its
symptoms were aggravated by the right finger" but that "the examiner did
not consider the
interrelationship between the service-connected (right finger) condition
and the diagnosed claimed
(right wrist) condition." Appellant's Br. at 18. The examiner, however,
did not find that the right
wrist and right finger conditions were interconnected and that one
aggravated the other. Rather, the
examiner stated that movement makes the wrist hurt, but that the "pain
goes away when he stops
activity that is aggravating it." R. at 91. Thus the examiner does not
appear to have indicated that
the right finger aggravates the wrist condition, but that activity in
general aggravates it. The Court,
therefore, cannot conclude that the February 2006 VA examination was
inadequate.
As to the March 1997 VA examination report, Mr. Paxton argues that it was
inadequate
because it failed to consider secondary causation–that is, that the
service-connected right finger
condition and right wrist condition are interrelated. The examiner noted
that Mr. Paxton had an
injury to his right long finger and that he had right wrist pain. The
examiner also stated that the right
wrist injury was of "undetermined etiology" but that he did not determine
that it is "likely due to his
3


motorcycle accident many years ago as he would show greater degenerative
change at this time had
it been." R. at 555. Consequently, based on his stated observations,
reasoning, and conclusions,
there does not seem to be any reason the examiner should have considered
secondary causation.
Basedontheexaminer's statements,theCourtcannot
concludethattheMarch1997examination was
inadequate.
B. New and Material Evidence
A previously disallowed claim may be reopened on the basis of new and
material evidence.
See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a) (2010). 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 it must raise a reasonable possibility of
substantiating the claim.
Id. The regulation "must be read as creating a low threshold," and "
suggests a standard that would
require reopening if newly submitted evidence, combined with VA assistance
and considering the
other evidence of record, raises a reasonable possibility of
substantiating the claim." ShadeNext Hit v.
Shinseki,24Vet.App.110,117(2010). "[T]he
phrase'raiseareasonablepossibilityofsubstantiating
the claim' does not create a third element for new and material evidence."
Id. at 10. Instead, it is
intended to guide VA adjudicators in "determining whether submitted
evidence meets the new and
material requirements." Id. However, "[f]or reopening, 38 U.S.C. § 5103A(
a) does not require VA
to provide assistance to a claimant if there is no reasonable possibility
that such assistance would
aid in substantiating the claim." Id. at n.7.
The Board found that the regional office denied the claim because there
was "no internal
injury to the right knee in the 1967 motorcycle accident [] and [because]
the veteran's right knee
arthritis was not related to the in-service laceration."1
R. at 22. Consequently, the Board determined
that for evidence to be material, it would have to show "an internal
injury to the right knee in service
as well as medical nexus evidence." Id.
1
In order to establish service connection for a present disability, "the
veteran must show: (1) the existence of
a present disability; (2) in-service incurrence or aggravation of a
disease or injury; and (3) a causal relationship between
the present disability and the disease or injury incurred or aggravated
during service." Shedden v. Principi, 381 F.3d
1163, 1166-67 (Fed. Cir. 2004).
4


Mr. Paxton argues that new evidence–the February 2006 VA medical
examination
report–raises a reasonable possibility of substantiating his claim for
right knee disability. He points
to the following statement by the examiner:
It is less likelythan not this veteran[']s [degenerative joint disease] of
the [right] knee
was caused by or the result of a laceration to the right leg from a [motor
vehicle
accident] during military service as no documentation was found regarding
involvement of the [right] knee joint or sequela to that injury and the
veteran had a
[motor vehicle accident] after leaving the service in which it is at least
as likely as not
a contributing factor in the progression and/or severity of this veteran[']
s
[degenerative joint disease] of the [right] knee[.] It is at least as
likely as not that the
[motor vehicle accident] while in service may have contributed to
progression/severityofthis veteran[']s[degenerativejointdisease]ofthe[
right] knee.
The impact that each factor had in the progression and sequela of this
veteran[']s
[degenerative joint disease of the right] knee I can not resolve without
resulting in
mere speculation.
R. at 95.
Mr. Paxton argues that the Board was required to assume the examiner's
statements to be true
forthepurposesofdeterminingwhethertherewassufficientevidenceto reopenthe
claim. However,
there is no indication that the Board failed to accept the truthfulness of
the examiner's statements,
or that the examiner was anything less than forthright in her assessment
of Mr. Paxton's right knee
disability.
Mr. Paxton also argues that the Board ignored the favorable nexus opinion
contained in the
new medical opinion. He asserts that the favorable nexus opinion raises a
reasonable possibility of
substantiating his claim and that his claim should have been reopened. He
further argues that, under
Previous HitShadeNext Hit, he is not required to submit new and material evidence as to both previously unproven element of his claim in order for his claim to be reopened, but that submitting evidence of a possible nexus is enough to reopen his claim.
Mr. Paxton bases his argument that nexus evidence alone is sufficient to
reopen his claim on a specific passage from Shade. That passage states:
Section 3.159(c)(4)(iii) provides that § 3.159(c)(4), stating the
circumstances in which VA will provide a medical examination, will only apply to claims to reopen once new and material evidence has been submitted. However, that language does not require new and material evidence as to each previously unproven
element of a claim.
5


Id. at 14. Mr. Paxton is relying on the second sentence of the quote.
However, taken in context, it is clear that the statement applies to the requirements of § 3.156(c)(4) and the duty to assist veterans in obtaining medical opinions when the claim is to reopen and new and material evidence is required.
Mr. Paxton has already received a medical opinion, and his eligibility for
a medical opinion is not at issue. Therefore this portion of Shade is not relevant to Mr. Paxton's case.
However, other portions of Shade are relevant. The Court will review
whether the Board applied the "low threshold" in determining whether the new evidence raised a reasonable possibility of substantiating the claim. Id. at 9. While the above-quoted language from the examiner's report is not a model of drafting clarity, the doctor's report indicates two things. First, there was not an in-service event (a motor vehicle accident) that caused the degenerative
joint disease. See R. at 95 ("It is less likely than not this veteran[']s [degenerative joint disease] of the [right] knee was caused by
or the result of a laceration to the right leg from a [motor vehicle
accident] during military service").
Second, the motor vehicle accident after service and the accident during
service may have contributed to the progression/severity of the degenerative joint disease, but the examiner could not determine the impact of each factor without resorting to speculation, which she was not willing to do. Therefore despite the contribution of the motor vehicle accident to the severity and progression
of the degenerative joint disease, the Board concluded that the lack of an
in-service internal injury to the right knee established that there was no in-service connection, and consequently there was no new and material evidence to reopen the claim. In other words, while there is a statement that can be interpreted as a possible nexus, there can be no actual nexus because
there was no evidence of an internal injury in service. Without new evidence of this required first element of service connection, there could be no reasonable possibility of substantiating the claim, even under the low threshold of Shade. See Shedden, supra; Shade, 24 Vet.App. at 118 n.7. Because the new
evidence does not raise a reasonable possibility of substantiating the claim, the Court discerns no error with the Board's determination.
It could also be argued that the February 2006 VA medical examination
report should have been returned to the examiner for clarification. If a medical report "does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes." 38 C.F.R. § 4.2 (2010). However, as discussed above, the examination report is clear that there was not
6


an in-service event that caused the degenerative joint disease. The Court
need not instruct the Board
to send the statement back for clarification because, without evidence on
this critical point, which
is required for an award of service connection, any clarification of the
examiner's statements
regarding a possible nexus could not raise a reasonable possibility of
substantiating the claim. See
Woehlaert v. Nicholson, 21 Vet.App. 456, 463 (2007) ("once the Board
decided that the appellant's
claim could not be reopened, the Secretary's conditional duty to provide
the appellant with a new
medical examination was extinguished" and the adequacy of the examination
became moot); cf.
Soyini v. Principi, 1 Vet.App. 540, 546 (1991) (refusing to remand for a
more complete statement
of reasons and bases by the Board, where the appellant could not establish
service connection
because there was no evidence of an in-service incident, because it "would
result in this Court's
unnecessarily imposing additional burdens on the [Board] with no benefit
flowing to the veteran").

C. Increased Ratings for Service-Connected Disabilities
Mr. Paxton is service connected for a fractured left clavicle, residuals
of fractured right long
finger, and laceration residuals on the right leg. He currently has a
noncompensable rating for each
claim. He sought an increased rating for each, and the Board declined to
increase any of the ratings.
With respect to his left clavicle rating, Mr. Paxton argues that the Board
failed to consider
evidence of "nonunion of the fragments." R. at 776. The Secretary responds
that the evidence Mr.
Paxton refers to is from 1967. In increased-rating claims, where "the
present level of disability, not
the medical history, is of primary concern," Francisco v. Brown, 7 Vet.App.
55, 58 (1994), a 1967
medical report cannot establish the present level of the disability.
Consequently, it was not error for
the Board to fail to consider the 1967 report in a claim for increased
rating.
With respect to his right long finger rating, Mr. Paxton argues that he
would be entitled to
an increased rating if there is evidence of ankylosis. See 38 C.F.R. § 4.
71a, Diagnostic Code 5226
(2010). He asserts that the February 2006 VA medical examiner did not
evaluate his finger, and
therefore the Board erred by denying his claim for an increased rating.
However, the February 2006
examination did include a description of the left long finger disability,
as well as an analysis of
changes between 2004 x-rays and 1997 x-rays. See R. at 90. This argument,
therefore, is without
merit.
7


With respect to his right leg lacerations rating, Mr. Paxton argues that
VA failed to provide
an examination for his scars. Again, Mr. Paxton is mistaken, as the
February 2006 examiner
described the scar as "20 cm x 0.2 cm well healed, non tender, slightly
mobile, and lighter than the
surrounding tissue." R. at 93. The examiner also noted that "the veteran
states that he has no pain
or discomfort with the scar itself." R. at 92. Consequently, this argument
is without merit as well.

II. CONCLUSION
On consideration of the foregoing, the Court AFFIRMS IN PART the October
24, 2008, Board decision, SETS ASIDE a recharacterized claim for a psychiatric
disability, and REMANDS the matter of depression for adjudication by the Board. On remand, Mr. Paxton will be free to submit additional evidence and argument in support of his depression claim, and the Board is required to consider any such evidence and argument. See Kay v. Principi, 16 Vet.App. 529, 534
(2002). A final decision by the Board following the remand herein ordered
will constitute a new
decision that, if adverse, may be appealed to this Court on the filing of
a new Notice of Appeal with
the Court not later than 120 days after the date on which notice of the
Board's new final decision is
mailed to Mr. Paxton. See Marsh v. West, 11 Vet.App. 468, 472 (1998).

DATED: January 13, 2011
Copies to:
John S. Berry, Esq.
VA General Counsel (027)
8