Single Judge Application, Savage v. Shinseki, 24 Vet.App. 110, 116(2010), Reopen Claim, New and Material, Substantiating the Claim

Excerpt from decision below:
"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 6. The Board stated:
New evidence is defined as existing evidence not previously submitted to
the VA, and material evidence is defined as 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 6. 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 [newly submitted] evidence thus does not raise a reasonable possibility of substantiating the [appellant's] claim for service connection." R. at 7.
Subsequent to the Board's decision in this case, this Court issued its
decision is Shade v.
2

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 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 separate 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 evidence 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 6. 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 7. Accordingly, the Court will vacate the Board's decision denying 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."
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-1083
LUIS A. RIVERA-FONTANEZ, 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, Luis A. Rivera-Fontanez, appeals through
counsel a
January 4, 2010, Board of Veterans' Appeals (Board) decision that denied
his claim to reopen his
previously denied claim for entitlement to service connection for an
acquired psychiatric disorder, to
include schizophrenia. Record (R.) at 3-10. The appellant and Secretary
both filed briefs 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 January 2010 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). For the following reasons, the
Court will vacate the Board's
January 2010 decision relating to the claim to reopen and remand the
matter for readjudication.
The appellant served on active duty in the U.S. Army from December 1969 to
November 1971.
R. at 937. In 1972, the appellant was diagnosed with depressive neurosis.
R. at 742. He applied for
service connection for that condition, and the claim was denied in a
September 1972 rating decision.
R. at 731-32. The appellant did not appeal the decision, and it became
final. The appellant was granted
service connection for duodenal ulcer disease, effective from February
1972. R. at 697. In January
1976, the appellant filed a claim for service connection for a
neuropsychiatric disorder, asserting that
it was secondary to his service-connected duodenal ulcer disease. R. at
691. That claim was denied
in a July 1979 rating decision that determined that there was no evidence
to establish that the appellant's


duodenal ulcer was the direct or proximate cause of a neuropsychiatric
disorder. R. at 564-65. The
appellant did not appeal that decision, and it became final.
In March 2003, the appellant filed a claim to reopen his previously denied
claim for entitlement
to service connection for a psychiatric disorder as secondary to his
service-connected duodenal ulcer.
R. at 255. In a July 2003 rating decision, VA acknowledged that the
appellant was undergoing
continuing treatment for a psychiatric condition but found that there was
no evidence demonstrating
a nexus between this current condition and service or between the service-
connected duodenal ulcer
and the psychiatric condition. R. at 136-43. The appellant did not appeal
that decision.
In July 2006, the appellant again requested that his claim for entitlement
to service connection
for a psychiatric condition as secondary to his service-connected duodenal
ulcer be reopened. R. at
134. The claim was rejected because VA determined that no new and material
evidence had been
submitted. R. at 104-10. The appellant filed a Notice of Disagreement in
November 2006 and VA
issued a Statement of the Case was issued in December 2006. R. at 66-82,
95. In May 2007, the
appellant and his wife testified before the Board. R. at 45-61. On January
4, 2010, the Board denied
the appellant's claim. R. at 3-10.
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 6. The
Board stated:
New evidence is defined as existing evidence not previously submitted to
the VA, and
material evidence is defined as 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 6. 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 [newly submitted] evidence
thus does not raise a
reasonable possibility of substantiating the [appellant's] claim for
service connection." R. at 7.
Subsequent to the Board's decision in this case, this Court issued its
decision is Previous DocumentShadeNext Hit v.
2


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 and does not include a
separate outcome-based
element).
In Previous HitShadeNext Hit, the Court emphasized that the phrase "raise a reasonable
possibility of
substantiating the claim" does not create a separate 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 evidence 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 Previous HitShadeNext Document.
R. at 6. 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 7. Accordingly, the Court will vacate the
Board's decision denying 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.
The Court notes that the appellant also argues that the notice he received
in August 2006 was
deficient in that it did not clearly state why his claim had been
previously denied and what evidence
was required to reopen the claim. Appellant's Brief at 10; R. at 127-33.
The Court observes that any
lack of clarity has been, in fact, cured. The notice requirements imposed
on the Secretary and the
benefits conferred on the appellant by those notice requirements have been
fulfilled through the course
of this litigation and the Court's decision to vacate and remand the
Board's decision. See Kent v.
Nicholson, 20 Vet.App. 1, 9 (2006). On remand the appellant will have an
opportunity to submit
additional evidence.
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 January 4, 2010,
decision denying the appellant's
claim to reopen his previously denied claim for entitlement to service
connection for an acquired
psychiatric disorder, to include schizophrenia, is VACATED and the matter
REMANDED.
DATED: August 22, 2011
Copies to:
Nancy L. Foti, Esq.
VA General Counsel (027)
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