Single Judge Application, Shade, 24 Vet.App., No Separate Outcome-Based Element

Excerpt from decision below:
"The Board stated:
New evidence is defined as 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. See 38 C.F.R. § 3.156(a) (2008).
R. at 13. In this statement, the Board requires new and material evidence
to be new, material, and to raise a reasonable possibility of substantiating the claim. While the Board indicated that some of the evidence submitted by the appellant was cumulative, it also indicated that it found the appellant's evidence not new and material because "[t]he additional evidence does not raise a reasonable possibility of substantiating the claim." R. at 17.
Subsequent to the Board's decision in this case, this Court issued its decision is Shade v. Shinseki. 24 Vet.App. 110, 116 (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). In Shade, the Court emphasized "that the phrase 'raise a reasonable possibility of substantiating the claim' does not create a third element for new and material evidence," but was intended to provide" guidance for VA adjudicators in determining whether submitted evidence meets the new and material requirements." Id. at 117. The Board's general statement of law in this matter regarding new and material evidence does not comport with the Court's analysis in Shade. R. at 13.
2


Further, the Board's dispositive statement that the submitted evidence did not raise a reasonable possibility of substantiating the claim indicates that the Board applied the erroneous statement of law to the appellant's claim. R. at 17. Accordingly, the Court will vacate the portion of the Board decision relating to the appellant's claim to reopen and remand the matter so that the Board may apply the appropriate law regarding the analysis of new and material evidence.1
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-3936
BOBBY E. COWAN, 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, Bobby E. Cowan, appeals through counsel a
June 23,
2009, Board of Veterans' Appeals (Board) decision that denied his claim to
reopen his previously
denied claim for service connection for post traumatic stress disorder (
PTSD). Record (R.) at 3-23.
The appellant and Secretary both filed a brief 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
June 2009 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).
The Court notes that the June 2009 Board decision remanded the appellant's
claim for service
connection for residuals of a cold weather injury, bilateral feet.
Accordingly, that claim is not on
appeal. For the following reasons, the Court will vacate that portion of
the Board's June 2009
decision relating to the claim to reopen and remand the matter for
readjudication.
Mr. Cowan served in the U.S. Army from February 1950 to April 1955. R. at
417. In
October 2000, Mr. Cowan filed a claim for service connection for PTSD. R.
at 438. The VA
regional office (RO) denied that claim in a November 2001 rating decision.
R. at 434-37. In that
decision, it was noted that Mr. Cowan had a current diagnosis of PTSD but
that corroboration of his
in-service stressors had not been established. R. at 434-37. Mr. Cowan did
not appeal that decision


and it became final.
In September 2005, Mr. Cowan filed a claim to reopen. R. at 421. The RO
denied his claim
to reopen in March 2006. R. at 342. Subsequently, Mr. Cowan submitted
additional evidence and,
following that submission, the RO readjudicated the claim and continued
its denial in an April 2006
decision. R. at 316. Mr. Cowan appealed that decision and the RO issued a
Statement of the Case
(SOC). R. at 278. In the decision here on appeal, the Board denied Mr.
Cowan's claim to reopen
in June 2009. R. at 3-23.
In the decision on appeal, the Board provided a statement of law regarding
new and material
evidence. R. at 13. The Court observes that the Board's statement of law
indicates that the Board
analyzed the appellant's claim to reopen under a standard that required
three elements to be satisfied
in order for evidence to be considered new and material. R. at 13. The
Board stated:
New evidence is defined as 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. See 38 C.F.R. § 3.156(a) (2008).
R. at 13. In this statement, the Board requires new and material evidence
to be new, material, and to raise a reasonable possibility of substantiating the claim. While the Board indicated that some of the evidence submitted by the appellant was cumulative, it also indicated that it found the appellant's
evidence not new and material because "[t]he additional evidence does not
raise a reasonable possibility of substantiating the claim." R. at 17.
Subsequent to the Board's decision in this case, this Court issued its
decision is Shade v. Shinseki. 24 Vet.App. 110, 116 (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). In Shade, the Court emphasized "that the phrase 'raise a reasonable possibility of substantiating the claim' does not create a third element for new and material evidence," but was intended to provide" guidance for VA adjudicators in determining whether submitted evidence meets the new and material requirements." Id. at 117. The Board's general
statement of law in this matter regarding new and material evidence does not comport with the Court's analysis in Shade. R. at 13.
2


Further, the Board's dispositive statement that the submitted evidence
did not raise a reasonable
possibilityofsubstantiatingtheclaimindicatesthattheBoardappliedtheerroneou
statement of law
to the appellant's claim. R. at 17. Accordingly, the Court will vacate the
portion of the Board
decision relating to the appellant's claim to reopen and remand the matter
so that the Board may
apply the appropriate law regarding the analysis of new and material
evidence.1
Upon consideration of the foregoing analysis and of the appellant's and
the Secretary's briefs,
and a review of the record, that portion of the Board's June 23, 2009,
decision denying the appellant's
claim to reopen his previously denied claim for service connection for
PTSD is VACATED and the
matter is REMANDED.
DATED: June 9, 2011
Copies to:
Sandra E. Booth, Esq.
VA General Counsel (027)
1
On remand, the Board should take appropriate account of the recent change
in 38 C.F.R. § 3.304(f).
3