Single Judge Application Shade v. Shinseki, 24 Vet.App

Excerpt from decision below:
"The Board apparently believed that because the record did not show
evidence of a nexus between service and present disability, there was no "
reasonable possibility" that the claim could ultimately be substantiated.
It is now clear that appellant's failure to submit sufficient evidence to
establish his underlying service connection claim is not necessarily fatal to his claim to reopen.
In Shade, the Court recognized that the phrase "must raise a reasonable possibility of substantiating the claim," as it is used in § 3.156(a), creates a standard that requires reopening "if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim." Shade v. Shinseki, 24 Vet.App. 110, 117 (2010) (emphasis added). This is "a low threshold." Id. The Court observes that the appellant has now submitted evidence showing both an in-service injury and a current disability, and it is possible that, if the claim is ultimately reopened, he could be entitled to a medical examination that will provide the missing nexus element.
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See 38 U.S.C. § 5103A(d) (outlining the Secretary's duty to provide a VA
medical examination in compensation claims); see also Shade 24 Vet.App. at 120-21 (reversing a Board decision that had refused to reopen a service-connection claim where the claimant had submitted evidence that could satisfy two of the three elements of a service-connection claim, and recognizing that, if the claim were
reopened, the claimant might be entitled to a VA medical opinion that
could ultimately establish the missing element)."
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-1461
NATHAN ALLEN, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before SCHOELEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
SCHOELEN, Judge: The appellant, Nathan Allen, through counsel, appeals a
February 13,
2009, Board of Veterans' Appeals (Board) decision in which the Board
determined that he had not
submitted new and material evidence sufficient to reopen his claim for
entitlement to service
connection for bilateral optic atrophy. Record (R.) at 11. Additionally,
the Board denied a total
disability rating based on individual unemployability (TDIU). Id. 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). For
the following reasons, the Court will vacate the Board's decision and
remand the matter for further
proceedings consistent with this decision.
I. BACKGROUND
The appellant had active duty in the U.S. Army from December 1971 to
December 1973.
R. at 404. The appellant's enlistment examination revealed 20/100 distance
vision in the right eye
and 20/70 distance vision in the left eye, and it showed that he failed a
color vision test. R. at 593.
A July 1972 service medical record (SMR) indicated that the appellant had
a history of vision
problems. R. at 592. A September 1972 SMR showed impressions of
questionable mild optic


atrophyand questionable earlyheredomacular dystrophy. R. at 619. A
September 1972 Department
of Defense record indicated that the appellant suffered from refraction
error and that he was not fit
for assignment requiring "good vision in each eye." R. at 616. An August
1973 SMR revealed an
impression of optic atrophy. R. at 607. His November 1973 separation
examination indicated that
he had "[p]oor vision (optic atrophy), etiology undetermined, E-3 profile."
R. at 588.
In December 1973, the appellant filed a claim for entitlement to service
connection for eye
problems. R. at 583. In a February 1974 decision, a rating board denied
his claim, finding that the
appellant's eye condition "clearly pre[]existed service and there [was] no
evidence of record to
warrant a finding of aggravation of this condition, by service." R. at 582.
This decision became
final.
InMarch1996,theappellantfiledaVAForm 21-536(
veteran'sapplicationforcompensation
or pension) stating that he was suffering from optic nerve atrophy. R. at
536. In July 2005, he wrote
to VA "in reference to a[n] application [he] submitted in 1995 for
disability." R. at 482. In this
letter, the appellant stated that, while in service, he had to be treated
for eye irritation after working
in a gas chamber. R. at 484. In an August 2005 statement, the appellant's
buddy recalled that the
appellant's eyes became infected while he was performing a gun range
exercise and powder got in
his eyes. R. at 239. In September 2005, the appellant filed a claim for
entitlement to TDIU. R. at
394-95. In a May2006 hearing, the appellant indicated that working with
gunpowder and chemicals
in service caused eye irritation for which he received treatment. R. at
250-51, 253.
In July 2008, the appellant testified before the Board. R. at 15-24. The
appellant stressed
that his eye problems began in service and that he was first diagnosed
with optic atrophy in service.
R. at 19-20. He indicated that his eyes became irritated in boot camp
while working in a gas
chamber. R. at 18. He further stated that he was unable to pass eye tests
after basic training. Id.
In the decision on appeal, the Board determined that the appellanthad not
submitted new and
material evidence sufficient to reopen his previously denied claim for
entitlement to service
connection for bilateral optic atrophy. R. at 7-10. The Board recognized
that the appellant had
submitted additional evidence since his claim was denied in February1974,
but it declined to reopen
this claim because the evidence did not "raise[] a reasonable possibility
of substantiating the
appellant's claim." R. at 9. The Board explained that the appellant had
failed to submit "any
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competent evidence showing that the current eye disorder is etiologically
related to his active duty
or that the pre[]existing eye disorder was aggravated by service." Id. The
Board also denied the
appellant's claim for entitlement to TDIU because he did not have a
service-connected disability.
R. at 10.
II. ANALYSIS
On appeal, the appellant argues that the Board, in determining that he had
failed to submit
new and material evidence, did not account for lay evidence indicating
that his eye condition was
aggravated in service. Appellant's Brief (Br.) at 9-15. The
Secretaryargues that the newlysubmitted
evidence does not "relate to an unestablished fact necessary to
substantiate [the appellant's] claim."
Secretary's Br. at 11.
Pursuant to 38 U.S.C. § 5108, "if 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." "New and material evidence" is defined
as follows:
New evidence means existing evidence not previously submitted to agency
decisionmakers. Material evidence means existing evidence that, by itself
or when
consideredwithpreviousevidenceofrecord,relatesto anunestablishedfact
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) (2010).
At the outset, it should be highlighted that the February 1974 rating
board denied the
appellant's service connection claim because it determined that his optic
atrophy condition "clearly
pre[]existed service" and that there was "no evidence of record to warrant
a finding of aggravation
of this condition by service." R. at 582. The language used is consistent
with a finding by the rating
board that the Government had rebutted the presumption of soundness,
although this is not an issue
that the Board addressed in its decision below. See Wagner v. Principi,
370 F.3d 1089, 1096 (Fed.
Cir. 2004) ("When no preexisting condition is noted upon entry into
service, the veteran is presumed
to have been sound upon entry. The burden then falls on the government to
rebut the presumption
ofsoundnessbyclearandunmistakableevidencethattheveteran's
disabilitywasbothpreexistingand
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not aggravated by service."). The appellant has now submitted evidence
that calls into doubt the
February 1974 rating board's findings that his optic atrophy "clearly pre[]
existed service" and that
there was "no evidence of record to warrant a finding of aggravation of
this condition by service."
As described, this evidence includes hearing testimony from the appellant
indicating that his eye
problems began in service (R. at 19-20) and that his eyes became irritated
while working in a gas
chamber in basic training (R. at 18, 250-51, 253), as well as a buddy
statement that seems to
corroborate this testimony (R. at 239). Although the Board briefly
indicated that the evidence
submitted since 1995 was cumulative of evidence already in the record, it
is not at all apparent that
evidence showing either that the appellant's eye condition began in
service or that he irritated his eyes
in basic training was before the rating board in February 1974. To the
extent that the Board denied
the appellant's attempt to reopen because the evidence he submitted was
cumulative of evidence
already of record, its finding is not supported by an adequate statement
of reasons or bases. See
38 U.S.C. § 7104(d)(1) (requiring the Board to provide not only a
statement of its findings and
conclusions but also of "the reasons and bases for those findings and
conclusions" on material issues
of fact and law).
However, the Board's refusal to reopen this claim appears primarily based
on a finding that
the evidence that the appellant submitted did not raise "a reasonable
possibility of substantiating the
appellant's claim." R. at 9. The Board apparently believed that because
the record did not show
evidence of a nexus between service and present disability, there was no "
reasonable possibility" that
the claim could ultimately be substantiated.
It is now clear that appellant's failure to submit sufficient evidence to
establish his underlying
service connection claim is not necessarily fatal to his claim to reopen.
In ShadeNext Hit, the Court
recognized that the phrase "must raise a reasonable possibility of
substantiating the claim," as it is
used in § 3.156(a), creates a standard that requires reopening "if
newlysubmitted evidence, combined
with VA assistance and considering the other evidence of record, raises a
reasonable possibility of
substantiating the claim." Previous HitShadeNext Hit v. Shinseki, 24 Vet.App. 110, 117 (2010) (
emphasis added). This
is "a low threshold." Id. The Court observes that the appellant has now
submitted evidence showing
both an in-service injury and a current disability, and it is possible
that, if the claim is ultimately
reopened, he could be entitled to a medical examination that will provide
the missing nexus element.
4


See 38 U.S.C. § 5103A(d) (outlining the Secretary's duty to provide a VA
medical examination in
compensation claims); see also Previous HitShadeNext Document, 24 Vet.App. at 120-21 (reversing a
Board decision that had
refused to reopen a service-connection claim where the claimant had
submitted evidence that could
satisfytwo of the three elements of a service-connection claim, and
recognizingthat, if the claim were
reopened, the claimant might be entitled to a VA medical opinion that
could ultimately establish the
missing element).
In finding that the evidence that the appellant has submitted did not
raise "a reasonable
possibilityofsubstantiatingtheappellant'sclaim,"theBoard,whichdid not
havethebenefit ofShade,
incorrectly required the appellant to submit evidence substantiating his
service-connection claim
before that claim was even reopened. The Court will therefore vacate this
portion of the Board's
decision and remand this matter, leaving the Board to reconsider whether
the appellant has submitted
evidence sufficient to reopen his optical atrophy claim under § 3.156(a).
See Elkins v. West,
12 Vet.App. 209, 218 (1999) (remanding matter to allow the Board to
properly apply § 3.156(a) in
the first instance where it had previously adjudicated the veteran's claim
to reopen under a higher
standard than was appropriate).
In light of the decision to vacate the portion of the Board's decision
related to the appellant's
claim to reopen, the Court will also vacate the portion of the Board's
decision pertaining to a denial
of TDIU. See Smith v. Gober, 236 F.3d 1370, 1373 (Fed. Cir. 2001) (where
facts underlying separate
claimsare"intimatelyconnected,"
interestsofjudicialeconomyandavoidanceofpiecemeallitigation
require that claims be adjudicated together); see also Begin v. Derwinski,
3 Vet.App. 257, 258 (1992)
("[T]he appellant's claim for [TDIU] is inextricably intertwined with the
degree of impairment that
is ultimately adjudicated."). The Board should reevaluate this matter on
remand.
III. CONCLUSION
Afterconsideration oftheappellant's andtheSecretary's pleadings, and a
review of the record,
the Board's February 13, 2009, decision is VACATED and the matter is
REMANDED to the Board
for further proceedings consistent with this decision.
DATED: February 28, 2011
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Copies to:
Virginia A. Girard-Brady, Esq.
VA General Counsel (027)
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