Single Judge Application Shade v. Shinseki, 24 Vet. App., Credible Lay Evidence to Reopen

Excerpt from decision below:
"After the briefs were submitted in this case, the Court issued a decision
that conclusively establishes the Board's finding on new and material evidence to be in error. In Shade v. Shinseki, 24 Vet.App. 110 (2010), the veteran had previously been denied service connection for lack of evidence of a current disability and for lack of nexus evidence. When he later submitted a medical diagnosis of the condition for which he sought service connection, both VA and the Board declined to reopen his case because there was still no nexus evidence in the record.
The Court held that the evidence submitted related to an unestablished fact, the existence of a current disability, as required by the Secretary's regulation as properly interpreted. The Court observed that the language of the regulation "does not require new and material evidence as to each previously unproven element of
a claim." Id. at 120. The concurrence reasoned that "[n]ew and material evidence is evidence that–if found credible–would either entitle the claimant to benefits or to some further assistance from the Secretary in gathering evidence." Shade, 24 Vet.App. at 124 (Lance, J., concurring). If anything, the facts of this case are more favorable to the appellant than the facts of Shade.
Here, there was only one stated reason for the previous denial, and the
appellant submitted evidence relevant to that reason. Accepting the sister's lay statement as credible, as required at this stage of the proceedings, see Justus. supra, it constitutes evidence that the appellant's anxiety symptoms did
not preexist service but manfested themselves on his return from service.
Coupled with the appellant's statements that his symptoms began in service, there is
evidence relating to two of the requirements for service connection by continuity of symptomatology. See Barr v. Nicholson, 21 Vet.App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet.App. 488, 495-96 (1997)) (continuity of
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symptomatology may establish service connection if a claimant can
demonstrate (1) that a condition was "noted" during service; (2) there is postservice evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability
and the postservice symptomatology). Among the types evidence that suffice
to require a VA medical opinion is "credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation." McLendon v. Nicholson, 20 Vet.App. 79, 83 (2006).
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-3543
RANDIE L. BREDAHL, 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. Army veteran Randie L. Bredahl appeals through counsel
from a June
11, 2009, Board of Veterans' Appeals (Board) decision that declined to
reopen a previously denied
service-connection claim for anxiety disorder and denied his service-
connection claims for a left
shoulder and low back disabilities. For the following reasons, the Court
will affirm in part and
reverse in part the Board's June 2009 decision, and remand a matter for
further proceedings
consistent with this decision.
I. ANALYSIS
A.
Request To Reopen
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." This Court generally reviews Board
decisions regarding whether
the appellant has submitted new and material evidence sufficient to reopen
a prior claim under the
"clearly erroneous" standard of review set forth in 38 U.S.C. § 7261(a)(4
). See Elkins v. West, 12 Vet.App. 209, 217 (1999); see also Fortuck v. Principi, 17 Vet.App. 173, 178-79 (2003).
"New and material evidence" is defined as follows:


New evidence means existing evidence not previously submitted to agency
decision makers. 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) (2010). New evidence is presumed credible for
purposes of determining whether the claim should be reopened. Justus v. Principi, 3 Vet.App. 510, 513 (1992). "[T]he question of what constitutes material evidence to reopen a claim for service connection depends on the basis on which the prior claim was denied." Kent v. Nicholson, 20 Vet. App. 1, 10 (2006).
In this case the Board found that "[s]ervice connection for anxiety
disorder was last finally denied by an unappealed rating decision by the [regional office] in December 2005." Record (R.) at 5. The stated reason for that denial was that "the evidence continues to show this condition was not incurred in or aggravated by military service." R. at 250. Similarly, the notice letter issued
pursuant to the requirements of the Veterans Claims Assistance Act of 2000 (
VCAA), Pub. L. No. 106-475, § 3(a), 114 Stat. 2096 (codified in part at 38 U.S.C. § 5103(a
)), stated: "Your claim was
previously denied because the condition was not incurred in or aggravated
by military service.
Therefore, the evidence you submit must relate to this fact."1
R. at 228.
The Board listed the additional evidence received since the last (December
2005) denial as
"a statement from the Veteran's sister, VA outpatient notes for 2006, and
numerous private medical
records, including some duplicates from 1983 to 2006." R. at 10. The
record further includes a
mental status report dated July 5, 2006, prepared for purposes of a Social
Security disability claim,
which the Board did not discuss.
The laystatement bythe appellant's sister stated that before service "he
seemed happy& with
a good outlook on life and what was ahead for him in life." R. at 247. She
went on to describe his
severe anxiety symptoms since his return from service. See R. at 237-41.
Furthermore, the Social
Securityexamination recorded the appellant's statements that trace the
onset of his anxietyproblems
1
The appellant additionally challenges the sufficiency of the VCAA notice
letter in a footnote. Because the Court is remanding this claim for a different reason, it need not reach this issue. See Mahl v. Principi, 15 Vet.App. 37,
38 (2001) (per curiam order) ("[I]f the proper remedy is a remand, there is no need to analyze and discuss all the other claimed errors that would result in a remedy no broader than a remand.").
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to various stressors during his service in Germany. This evidence clearly
relates to the issue of in-service incurrence.
The Board, however, focused on the lack of nexus evidence in the record.
It found that "the additional evidence is not new and material, since it does not include [a] competent medical opinion linking the Veteran's current anxiety disorder to service." R. at 12. The Board viewed the lay statement from the appellant's sister as having "little probative value as to the nature or etiology of
[the appellant's] current psychiatric disorder." R. at 11. The discussion
of the new medical treatment notes was confined to the observation that they only dealt with treatment of psychiatric problems since 1999.
After the briefs were submitted in this case, the Court issued a decision
that conclusively establishes the Board's finding on new and material evidence to be in error. In Shade v. Shinseki, 24 Vet.App. 110 (2010), the veteran had previously been denied service connection for lack of evidence of a current disability and for lack of nexus evidence. When he later submitted a medical
diagnosis of the condition for which he sought service connection, both VA
and the Board declined to reopen his case because there was still no nexus evidence in the record.
The Court held that the evidence submitted related to an unestablished fact, the existence of a current disability, as required by the Secretary's regulation as properly interpreted. The Court observed that the language of the regulation "does not require new and material evidence as to each previously unproven element of
a claim." Id. at 120. The concurrence reasoned that "[n]ew and material evidence is evidence that–if found credible–would either entitle the claimant to benefits or to some further assistance from the Secretary in gathering evidence." Shade, 24 Vet.App. at 124 (Lance, J., concurring). If anything, the facts of this case are more favorable to the appellant than the facts of Shade.
Here, there was only one stated reason for the previous denial, and the
appellant submitted evidence relevant to that reason. Accepting the sister's lay statement as credible, as required at this stage of the proceedings, see Justus. supra, it constitutes evidence that the appellant's anxiety symptoms did not preexist service but manfested themselves on his return from service.
Coupled with the appellant's statements that his symptoms began in service, there is
evidence relating to two of the requirements for service connection by continuity of symptomatology. See Barr v. Nicholson, 21 Vet.App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet.App. 488, 495-96 (1997)) (continuity of
3


symptomatology may establish service connection if a claimant can
demonstrate (1) that a condition was "noted" during service; (2) there is postservice evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability
and the postservice symptomatology). Among the types evidence that suffice
to require a VA medical opinion is "credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation." McLendon v. Nicholson, 20 Vet.App. 79, 83 (2006).
The Court is unable to conclude that "the remaining element, a nexus between the current diagnosis and [service] could not be established were [the appellant]
provided a VA medical examination." Shade, 24 Vet.App. at 120. Therefore, the Court will reverse the Board's conclusion that "[n]ew and material evidence has not been received to reopen the claim of service connection for anxiety disorder " (R. at 5), and remand with instructions to reopen this claim. The Board will
have to consider whether a VA nexus opinion should be obtained on remand.

B. Service-Connection Claims
The appellant argues that a remand is required with respect to his left
shoulder and low back
claims because VA violated its duty to assist when it failed to provide
him with medical
examinations addressing the etiology of each condition. This Court has
held that in disability
compensation claims
the Secretary must provide a VA medical examination when there is (1)
competent
evidence of a current disability or persistent or recurrent symptoms of a
disability,
and (2) evidence establishing that an event, injury, or disease occurred
in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon, 20 Vet.App. at 81; see also 38 U.S.C. § 5103A(d)(2). The Court further characterized the third requirement of "an indication" that a disability "may be" associated with service as a "low threshold." McLendon, 20 Vet.App. at 83.
Contrary to the appellant's contention, the Board found that his "assertions of chronic left shoulder and low back problems since service [are] not supported by the contemporaneous record and therefore, [are] not credible." R. at 16. The appellant argues that this reasoning contravenes
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Buchanan v.Nicholson,451F.3d1331,1336(Fed. Cir. 2006)( absence of contemporaneous medical records, without more, does not establish lack of credibility for lay
statements of medical history).
The Court's review of the record reveals that the Board made its
credibility determination
based on the entire record. The Board noted that the only relevant service
medical record pertains
to treatment of an upper back and right shoulder strain and "do[es] not
show any complaints, treatment, abnormalities, or diagnosis referable to any left shoulder or low back problems." R. at 14; see also R. at 380. The Board further noted that the separation examination report recorded no complaints or abnormalities related to shoulder or back problems. After service, the Board noted,
despite filing two earlier service-connection claims, the appellant made
no mention of a connection between low back problems and service until 2006. Finally, the Board noted that the appellant made several statements to treating physicians relating his back problems to various other incidents over
the years, including being thrown from horses while growing up on a farm,
riding on an ATV that flipped over, and incidents working in construction.
The Court discerns no error in the Board's determination that no credible
evidence supported a link between the appellant's current right shoulder and lower back conditions and service. The appellant acknowledges the in-service reference to "upper back strain" (R. at 380), but argues that "the limits of 'upper' are not defined in the medical notes." Appellant's Brief at 20. In the Court's
view, the English language is not so elastic as to include the lower back
in the concept of an "upper back strain." The Court concludes that the appellant has not produced sufficient evidence to satisfy even the low threshold of evidence required to establish a link between the current condition and service. See McLendon, supra. The Court will therefore affirm the Board's findings as to the lower back and left shoulder claims.

II. CONCLUSION
On consideration of the foregoing, the Court AFFIRMS the Board's June 11,
2009, decision
with respect to its determination that the appellant was not entitled to
service connection for a left
shoulder and a lower back condition, REVERSES the Board's determination
that the appellant
submitted no new and material evidence to reopen the anxiety claim, and
REMANDS that claim for
further proceedings consistent with this decision.
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In pursuing his anxiety claim on remand, the appellant will be free to
submit additional
evidence and argument in support of the 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 upon 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 the appellant.
Marsh v. West, 11 Vet.App. 468, 472 (1998).
DATED: March 31, 2011
Copies to:
John S. Berry, Esq.
VA General Counsel (027)
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