Single Judge Application, New and Material, Reasonable Possibility, Shade v. Shinseki, 24 Vet.App. 110, 121 (2010)

Excerpt from decision below: "New and material evidence is evidence that would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Shade v. Shinseki, 24 Vet.App. 110, 121 (2010). Subsequent to the Board's decision in this case,thisCourt issued its decision in Shade, supra, which held 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. Id. 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 3 adjudicators in determining whether submitted evidence meets the new and material requirements." Id. at 117. The Court further held that the term "reasonable possibility" contemplates the likely entitlement to a nexus medical examination, as opposed to the likely entitlement to the benefit sought. Id. at 121. In making the determination of materiality, "the Board is precluded from considering the credibility of the newly submitted evidence; strictly for purposes of determining whether new and material evidence has been presented, the Board must presume that the newly submitted evidence is credible." Duran v. Brown, 7 Vet.App. 216, 220 (1994) (citing Justus v. Principi, 3 Vet.App. 510, 513 (1992))." ========================= Skip navigation U.S. Court of Appeals for Veterans Claims View | Download | Details Previous document | Next document . 10-0997 ReedRA_10-997.pdf Search Terms: INJURY CreationDate: 09/20/2011 16:29:17 Creator: PrintServer150 ModDate: 09/28/2011 13:46:04 Producer: Corel PDF Engine Version 15.0.0.431 Title: X_XMPMETA_DC_TITLE: Times New Roman X_XMPMETA_XMPRIGHTS_MARKED: True ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 10-0997 ROSS A. REED, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before FARLEY, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. FARLEY, Judge: The appellant, Ross A. Reed, appeals that part of the December 1, 2009, Board of Veterans'Appeals (Board)decision that determinedthatnew and material evidence had not been submitted to reopen his claims for service connection for a left knee disorder and a low back disorder. Record (R.) at 3-15. 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). Because the Board erred in finding that no new and material evidence was offered to reopen the claims, the Court will reverse the decision and remand the matters for further proceedings consistent with this decision. I. FACTS The appellant served on active duty in the U.S. Army from August 1970 to February 1972. Record (R.) at 690. His original claim, filed in March 1972 (R. at 614-15), for entitlement to service connection for back and knee disorders was denied in May 1974 (R. at 577- 78). The VA regional office (RO) at that time found that the appellant's in-service back Previous DocumentinjuryNext Hit was "acute" and that he had no "right" knee disorder. R. at 577-78. Over the following years, the appellant made several unsuccessful attempts to reopen the previously denied claims for entitlement to service connection for a back and a left knee disorder. See, e.g., R. at 234, 541-42, 546. In April 1994, the appellant clarified that it was his left knee, not his right, that was injured in service. R. at 442. Also added to the record was an October 1995 VA medical examination report that included diagnoses of mechanical low back pain and "degenerative joint disease of the left knee." R. at 332. The appellant attempted to reopen his claim for service connection for his back and left-knee conditions in March 2006. R. at 147. The RO denied reopening in December 2006. R. at 118-22. The appellant submitted a Notice of Disagreement in December 2007. R. at 106. In support of his claims, he submitted a letter from Dr. Daniel Hinshaw, his treating physician, who opined that the Previous HitinjuryNext Document documented in the appellant's service medical records is related to his current chronic back pain. R. at 64. In the December 1, 2009, decision on appeal, the Board denied reopening the appellant's claims for entitlement to service connection for his left knee and back disorders. R. at 3-15. The Boardnotedthat the May1974 ratingdecision was final andthat, sincethatdecision,"new"evidence had been submitted. R. at 12. With regard to the Veteran's claim of service connection for a back condition, the RO held that the back strain in 1970 in service was an acute condition that did not exist after 1970, until the present time and could not be related to service. With regard to the left knee claim, the RO denied service connection for lack of evidence of a left knee disability. R. at 11. The Board listed the evidence that the appellant had submitted in support of his claim since the 1974 denial, but ultimately concluded that it was not sufficient to warrant reopening the claim. See R. at 11-12. The Board discussed the opinion submitted by Dr. Hinshaw, but found that "it does not substantiate the Veteran's claim because it does not provide evidence of a currently diagnosed back disability that is related to service." II. ANALYSIS In his brief before this Court, the appellant argues that the Board applied the wrongdefinition of what constitutes new and material evidence sufficient to warrant reopening his claims. Appellant's Brief (Br.) at 5-9. He contends that the Board should have applied the version of the applicable regulation "in effect when the veteran attempted to reopen his claims in 1994 and 1998, 2 and which is more favorable to the veteran." Id. at 5. Alternatively, he argues that, irrespective of whichdefinition ofnewandmaterial evidencewasused,theBoarderredin not reopeningtheclaims. Id. at 5, 10-12. The Secretary concedes that the Board's statement of reasons or bases for declining to reopen the appellant's claims is inadequate. Secretary's Br. at 5. Specifically, the Secretarypoints to the Board's inconsistent statements noting that "a December 2007 VA physician's letter provided a positive nexus" for the back claim but nevertheless finding that the opinion "did not 'substantiate the Veteran's claim because it does not provide evidence of a current back disability.'" Secretary's Br. at 7. The Secretary also points out that the Board noted that the 1974 rating decision denied the appellant's left knee claim on the basis that there was no current disability but the Board denied reopening because "there was no evidence of a nexus to service." Id. at 9. The Secretary urges the Court to remand the matter for readjudication. Id. at 10. He disagrees with the appellant that reversal is the appropriate remedy. Id. at 10-13. Pursuant to 38 U.S.C. § 5108, "[i]f 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." 38 U.S.C. § 5108. New and material evidence is defined as: New evidence means existing evidence not previously submitted to agency decisionmakers. 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) (2011). New and material evidence is evidence that would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Shade v. Shinseki, 24 Vet.App. 110, 121 (2010). Subsequent to the Board's decision in this case,thisCourt issued its decision in Shade, supra, which held 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. Id. In Shade, the Court emphasized "that the phrase 'raise a reasonable possibilityof substantiating the claim 'does not create a third element for new and material evidence," but was intended to provide "guidance for VA 3 adjudicators in determining whether submitted evidence meets the new and material requirements." Id. at 117. The Court further held that the term "reasonable possibility" contemplates the likely entitlement to a nexus medical examination, as opposed to the likely entitlement to the benefit sought. Id. at 121. In making the determination of materiality, "the Board is precluded from considering the credibility of the newly submitted evidence; strictly for purposes of determining whether new and material evidence has been presented, the Board must presume that the newly submitted evidence is credible." Duran v. Brown, 7 Vet.App. 216, 220 (1994) (citing Justus v. Principi, 3 Vet.App. 510, 513 (1992)). The Board's determination of whether a claimant has submitted new and material evidence is generally reviewed under the "clearly erroneous" standard of review set forth in 38 U.S.C. § 7261(a)(4). Suaviso v. Nicholson, 19 Vet.App. 532, 533-34 ( 2006); Elkins v. West, 12 Vet.App. 209, 217 (1999) (en banc). A finding of fact is clearly erroneous when the Court, after reviewing the entire evidence, "'is left with the definite and firm conviction that a mistake has been committed.'" Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). Here, the Board denied reopening the appellant's claims for service connection for a back disability and a left knee disability based on the finding that, although the appellant had submitted "new" evidence, it was not "material" because it failed to show a current disability related to service. R. at 12, 15. In coming to this conclusion, the Board reviewed the evidence submitted since the last final denial of the claims in May 1974. R. at 12, see also R. at 577-578. As to the back condition, the Board stated that in 1974 the claim had been denied because "there was no evidence of a back disabilitythat was related to service." R. at 12. However, the Board conceded that a December 2007 VA physician's letter provided a positive nexus between the appellant's back strain in service and his current back pain. See R. at 12, see also R. at 64. Nevertheless, the Board inexplicably denied reopening because the December 2007 nexus opinion did not "substantiate the Veteran's claim because it does not provide evidence of a current back disability. . . ." Id. The Board erred in not reopening the appellant's claim when the evidence of record included the December 2007 medical opinion that relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. 4 § 3.156(a). This evidence bears directly and substantiallyon his claim for service connection for his back disorder being related to his military service. Id. Similarly, the Board erred in denying reopening of the appellant's left knee disability claim. See R. at 12. Specifically, the Board bases its denial of reopening the appellant's left knee claim on the basis that there was no evidence of a nexus to service. Id. Yet, the Board explicitly stated that the 1974 rating decision denied the claim "for lack of evidence of a left knee disability." R. at 11. Recourse to the 1974 rating decision reveals that service connection for a right knee condition was denied for lack of evidence of a disability. R. at 577-78. In 1976 (R. at 554), and again in April 1994 (R. at 442), the appellant made clear that he was seeking service connection for a left knee disability. Irrespective of which knee was considered, insofar as the denial was based on the lack of a current disability, the newly submitted evidence of record reveals degenerative joint disease of the left knee. R. at 332. However, the Board failed to address the appellant's current diagnosis, which bears directly and substantially on his claim for service connection. The newly submitted evidence meets the regulatory requirements such that the appellant's claim should be reopened. The Court is required to reverse "a finding of material fact . . . if the finding is clearly erroneous." 38 U.S.C. § 7261(a)(4). Accordingly, the Court will reverse the December 1, 2009, Board decision that found that no new and material evidence had been received to reopen the appellant's claims forserviceconnection for his back and left knee disorders, and remand the matters to the Board for readjudication. 38 U.S.C. § 7261(a)(4); Duran, 7 Vet.App. at 220; Justus, 3 Vet.App. at 513. Further, once the claims are remanded, the Board must return the matter to the RO for adjudication to afford the appellant one review on appeal and to complete any development that the reopened claims require. Disabled Am. Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339, 1347 (Fed. Cir. 2003) ("When the Board obtains evidence that was not considered bythe [regional office] and does not obtain the appellant's waiver, however, an appellant has no means to obtain 'one review on appeal to the Secretary,' because the Board is the only appellate tribunal under the Secretary."); see 38 U.S.C. § 7104(a) ("All questions in a matter which . . . is subject to decision by the Secretary shall be subject to one review on appeal to the Secretary"); Shade, supra. 5 III. CONCLUSION On consideration of the foregoing, the parties' briefs, and the record on appeal, that part of the December 1, 2009, Board decision that found that no new and material evidence had been submitted to warrant reopening the claims for service connection for a back disorder and a left knee disorder is REVERSED and the matters are REMANDED for readjudication consistent with this decision. DATED: September 21, 2011 Copies to: Michael A. Leonard, Esq. VA General Counsel (027) 6 S