Single Judge Application, Shade, 24 Vet.App. at 121; Issue of Reopening

Excerpt from decision below: "In Shade, the Court 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. Shade, 24 Vet.App. at 121. ============================ ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 10-2756 HENRY ALFREDSON, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before IVERS, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. IVERS, Judge: The appellant, Henry Alfredson, appeals through counsel the June 8, 2010, decision of the Board of Veterans' Appeals (Board) that determined that new and material evidence had not been presented to warrant reopening the previously denied claims of entitlement to service connection for a right knee disorder and for a left knee, left leg disorder. This appeal is timely and the Court has jurisdiction over the matters on appeal pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate where the issue is of "relative simplicity" and the "outcome is not reasonably debatable." 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 June 2010 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 June 1953 to June 1956. Record (R.) at 2382. He filed a claim for VA compensation benefits for leg trouble shortly after his discharge from military service. R. at 2390-91. The VA regional office (RO) denied his claim in July 1956, noting that there was no evidence of complaints or abnormalities during his military service or discharge examination. R. at 2324. In March 2000, the RO acknowledged that the appellant was attempting to reopen his claim. R. at 398-402; see R. at 403. In support of his claim, the appellant had submitted an April 2000 letter from Dr. Kenneth S. Glass, who opined that "the internal derangement of the knee is therefore related to the gentleman's service activities." R. at 404. The report further indicated that Dr. Glass reviewed a magnetic resonance image (MRI) that was positive for medial meniscal tear. Id. In June 2000, the RO denied the appellant's claim. R. at 388-95. The RO acknowledged that the appellant sustained an injury while in military service, but ultimately concluded that Dr. Glass' statement did "not provide a new factual basis for the grant of service connection." R. at 392. Since the July 1956 rating decision denying service connection for a left leg disorder and the June 2000 rating decision declining to reopen the right knee claim, the appellant has submitted additional statements from Dr. Glass (R. at 171, 194), medical reports including the results of a 2003 MRI (R. at 193), and statements from "comrades [he] served on active duty with in Korea, who witnessed the accident which [caused his] present disability." R. at 91; see R. at 92, 93, 94, 95. Of note, a March 2004 letter from Dr. Glass notes his review of the 2003 MRI, and opines that the appellant's right knee injury was "due to service of 1955." R. at 194. Also, in January 2005, Dr. Glass opined that "[i]t is my opinion that [the appellant's] right knee injury is a direct result from his military service." R. at 171. The Board issued the decision currently on appeal on June 8, 2010. R. at 3- 18. In its decision, the Board found that the appellant had not submitted new and material evidence sufficient to warrant reopening the claims for service connection for his current right knee disorder and left knee, left leg disorder. Id. Regarding the right knee disorder, the Board discussed the evidence that had been submitted since the June 2000 rating decision noting that, in June 2000, his claim had been denied because the evidence did not show that the appellant's "current right knee disability was related to an in[-]service injury." R. at 13. The Board found that new medical evidence did not "relate to that unestablished fact of a positive correlation between the [ v]eteran's current right knee disorder and his service." Id. The Board dismissed the recent statements from Dr. Glass, stating that "they ultimately only contain cumulative evidence." R. at 14. Regarding the left knee, left leg 2 disorder, the Board evaluated the evidence submitted since the July 1956 rating decision, and similarly concluded that, while new, evidence submitted in support of the claim was not "material" so as to warrant reopening. R. at 15-17. II. ANALYSIS In his brief, the appellant argues that the VA failed to provide proper notice of the evidence necessary to substantiate his claim; that the Board improperly weighed the evidence when considering whether to reopen the claims; and that the Board's decision denying reopening is contrary to recent caselaw. Appellant's Brief (Br.) at 6-15. The Secretary urges the Court to affirm the Board's decision, arguing that the appellant has not demonstrated prejudicial error in the adjudication of his claims. Secretary's Br. at 6-10. 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 follows: 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). 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)). However, the Secretary is not required "to consider the patently incredible to be 3 credible." Id.; see also King v. Brown, 5 Vet.App. 19, 21 (1993) (noting that Board must not assume credibility of evidence "when the evidentiary assertion is inherently incredible or when the fact assertedis beyondthecompetenceof the person makingthe assertion")( citingEspiritu v.Derwinski, 2 Vet.App. 492 (1992)). In Shade, the Court 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. Shade, 24 Vet.App. at 121. 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). See Suaviso v. Nicholson, 19 Vet.App. 532, 533-34 (2006); Elkins v. West, 12 Vet.App. 209, 217 (1999) (en banc). "'A finding is "clearly erroneous" when although there is evidence to support it, the reviewing court on 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 conceded that the appellant submitted evidence that is " new" insofar as the evidence was first considered after a previous disallowance. R. at 13-14, 15. Evidence added to the appellant's claims file since the previous disallowances of his claims include medical treatment records, a 2003 MRI, statements from friends who contended that they witnessed an in-service accident, and medical opinion statements from Dr. Glass. R. at 91-101, 171, 193, 194. The Board concluded that all the newly submitted evidence was cumulative of medical evidence previously considered and that the evidence did not relate to an unestablished fact necessary to substantiate the claim. R. at 13-16. 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 forVA adjudicatorsin determining whethersubmitted evidencemeets the new and material requirements." Id. at 117. The Board's analysis in this matter regarding new and material evidence does not comport with the Court's analysis in Shade, particularlywith respect to the medical opinions of Dr. Glass. R. at 14. As explained above, the Board is precluded from considering the probative weight and credibility of newly submitted evidence in a claim to reopen based on new and material evidence. Justus, 3 Vet.App. at 513. The Board must presume that the evidence is credible. Id. "Once the 4 evidence is found to be new and material and the case is reopened, the presumption that it is credible and entitled to full weight no longer applies. In the adjudication that follows the reopening, the Boardhavingacceptedprovisionallyforreopeningpurposesthecredibilityofthenew, then must determine, as a question of fact, both the weight and credibility of the new evidence in the context of all the evidence, new and old." Id. In its June 2010 decision, the Board framed its determinations as those of materiality of the new evidence, but ultimately those determinations centered around the credibility and probative weight of the evidence. See R. at 10-17. The evidence of pertinent medical examinations, medical opinions, treatment records that postdate the last final denial, and the supportive lay testimony all bear directly and substantially on his claim for service connection for his right and left knee conditions. This is particularly true of the medical opinion of Dr. Glass, which expressly stated that it was based on a 2003 MRI, i.e., medical evidence that postdated the previous disallowance of the claims. See R. at 194. The Board erred in not reopening the appellant's claim when the evidence of record included a newlysubmitted medical opinion that relates to the unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). This evidence bears directly and substantially on the appellant's claim for service connection for his right and left knee claims being related to his military service. Id. It was error for the Board to weigh the evidence before reopening the appellant's claim and, as stated above, 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 June 2010 decision to the extent that it found that no newandmaterial evidence hadbeenreceivedto reopentheappellant's claimsandremandthematters to the Board for readjudication. 38 U.S.C. § 7261(a)(4); 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 claim requires, including a medical examination and opinion. 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 by the [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 5 subject to decision by the Secretary shall be the subject to one review on appeal to the Secretary."); Shade, supra. In light of the need to remand the claims, the appellant's remaining assertions of error are moot. See Dunn v. West, 11 Vet.App. 462, 467 (1998) (remand of the appellant's claim under one theory moots the remaining theories advanced on appeal). III. CONCLUSION Upon consideration of the foregoing, the parties' briefs, and the record on appeal, the Board's June 8, 2010, decision that found that no new and material evidence had been submitted to warrant reopening the claims for service connection for a right knee and left knee, left leg disorder is REVERSED and the matters are REMANDED for readjudication consistent with this decision. DATED: October 26, 2011 Copies to: Eric A. Gang, Esq. VA General Counsel (027) 6