Thursday, September 29, 2011
Single Judge Application, Pain, C.F.R. 3.159(c)(4)(i)(A), Locklear v. Nicholson, 20 Vet.App. 410, 418 n.6 (2006)
Excerpt from decision below:
"While pain alone is not a disability for compensation purposes, it may constitute a symptom of a disability about which the appellant is competent to testify. See Locklear v. Nicholson, 20 Vet.App. 410, 418 n.6 (2006) (noting that the appellant's chest pains
may alone suffice to satisfy the first prong of 38 C.F.R. § 3.159(c)(4)(i)(A))."
====================================
"Where the following four criteria are present, the Secretary is required to provide a medical examination to a veteran seeking disability compensation: (1) Competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2)
evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent symptoms of a disability maybe associated with the veteran's service or with another service-connected disability; and (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet.App. 79, 81 (2006) (citing 38 U.S.C. §
5103A(d)(2)). In deciding whether an examination is necessary, the Secretary must consider the record as a whole, "taking into consideration all information and lay or medical evidence (including statements of the claimant)." 38 U.S.C. § 5103A(d)(2). The third criterion, associating a disability or persistent symptoms thereof with service, is a "low threshold," McLendon, 20 Vet.App. at 83, which requires neither medical nor necessarily competent evidence to substantiate it. See Waters v. Shinseki, 601 F.3d 1274, 1277 (Fed. Cir. 2010)
=====================================
----------------------------------------------------
Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-3177
LOWELL D. JOHNSON, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before SCHOELEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
SCHOELEN, Judge: The appellant, Lowell Johnson, appeals through counsel a
May 19,
2009, Board of Veterans' Appeals (Board) decision that denied his request
for entitlement to service
connection for a left knee disability and a right knee disability; a
compensable disability rating for
service-connected hypertension; and a disability rating in excess of 20%
for service-connected
peripheral neuropathy of the right lower extremity. 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). For
the following reasons, the Court will vacate the Board's May 19, 2009,
decision and remand these
matters for further proceedings consistent with this opinion.
I. BACKGROUND
The appellant served on active dutyin the U.S. Army from July1967 until
March 1970, with
service in Vietnam. Record of Proceedings (R.) at 2373. His service
medical records (SMRs)
indicate that he twisted his knee in November 1967 and again the next
month. R. at 2451. Neither
entry indicates which knee the appellant injured. However, a radiographic
report from December
1967 states under the clinical history section: "Pain L[eft] knee since
November." R. at 2450.
During his March 12, 1970, separation examination the appellant indicated
that he had a "trick" or
locked knee. R. at 2455. However, the results of the examination showed "
normal" lower
extremities. R. at 2453.
A VA examination on August 4, 2003, reported a history of hypertension,
neuropathy, right
knee arthroscopic surgery in 1988, and "f[ractured] left patella." R. at
2430. In September 2003,
the appellant was examined for left knee pain subsequent to a fall. R. at
2427-29. An x-rayrevealed
"[o]ld adductor magnus insertion avulsion, which is solid healed with
deformity. The knee joint is
otherwise normal." R. at 2428. The same examination diagnosed well-
controlled hypertension. R.
at 2429.
In November 2004, the appellant filed a claim for entitlement to service
connection for
several different medical conditions including diabetes, leg neuropathy,
and bilateral knee
disabilities. R. at 2436-47. After considering the appellant's SMRs, VA
treatment records from
2003 to 2005, and a compensation and pension (C & P) examination for
peripheral neuropathy on
2005, the regional office (RO) granted service connection for peripheral
neuropathywith a disability
rating of 10%, but denied entitlement for service connection for the
appellant's bilateral knee
condition and hypertension in April 2005. R. at 2375-88.
The RO received additional VA medical treatment records after the
appellant filed a Notice
of Disagreement. The treatment records from November 30, 2005, document
that the appellant
complained of chronic pain in several joints, including his knee. R. at
2275. The records also
document a diagnosis of hypertension from 1993 and arthroscopic knee
surgeryin 1988. R. at 2766.
The appellant's treatment records from June 2005 document a surgical
history of "R[ight] knee x 2
for [a] Baker's cyst [and] tendon repair." R. at 2217. The RO granted
service connection for
hypertension in March 2006, but assigned a noncompensable disability
rating. R. at 1398-1402.
The appellant's C & P examination for hypertension and peripheral
neuropathy from June
2006 documents hypertension and right kneecap surgery in 1974. R. at 1304-
11. Following the
appellant's Substantive Appeal, the RO obtained additional VA and private
medical records that
included blood pressure readings from 2007 and surgical histories
documenting two right knee
arthroscopic surgeries. R. at 125, 265, 1164. The RO issued a Supplemental
Statement of the Case
in May 2007, which continued to deny the appellant's claims. R. 988-92.
2
On March 23, 2009, the appellant appeared at an informal hearing before
the Board. He
argued that his claims for peripheral neuropathy and hypertension should
be remanded to the RO for
a contemporaneous medical examination. R. at 21-22. The appellant's
representative argued: "The
veteran believes that remand is necessary in this case because medical
information of record is no
longer probative . . . ." R. at 21. He also argued that his claims for his
bilateral knee conditions
should be remanded formedicalexaminations to
determinetheetiologyoftheconditions and for VA
to obtain medical records relating to his right knee surgeries. R. at 22-
24. In May 2009, the Board
issued its decision granting an increased disability rating for peripheral
neuropathy, but denying the
appellant's other claims. R. at 3-19.
II. ANALYSIS
Establishing service connection generally requires medical or, in certain
circumstances, lay
evidence of (1) a current disability; (2) incurrence or aggravation of a
disease or injury in service;
and (3) a nexus between the claimed in-service injury or disease and the
current disability. See
Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v.
West, 12 Vet.App. 247, 252
(1999); Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78
F.3d 604 (Fed. Cir. 1996)
(table).
A. Medical Examinations for Knees
The appellant argues that the Secretary breached his duty to assist by
failing to provide a VA
medical examination to determine the etiology of his bilateral knee
conditions. Appellant's Brief
(Br.) at 6. In particular, he asserts that the evidence establishes that
he suffers from a current
bilateral knee disability and that his lay observations of a "persistent
and chronic knee condition
since service" and medical records documenting pain in both knees are
sufficient to demonstrate the
disability. Id.
In response, the Secretary argues that the Board properly determined that
there was
insufficient evidence to show that there is a current disability in either
knee, a chronic disability of
the left knee in service, and an in-service injury to the right knee.
Secretary's Br. at 3-7. Further, he
respondsbyarguingthattheappellant's "vague"assertionsofa"
persistentandchronickneecondition"
3
are insufficient to establish entitlement to an examination and that
without evidence of an in-service
injury of the right knee an examination could not provide the basis for
service connection. Id. at 7.
Where the following four criteria are present, the Secretary is required
to provide a medical
examination to a veteran seeking disability compensation: (1) Competent
evidence of a current
disability or persistent or recurrent symptoms of a disability; (2)
evidence establishing that an event,
injury, or disease occurred in service; (3) an indication that the
disability or persistent symptoms of
a disability maybe associated with the veteran's service or with another
service-connected disability;
and (4) insufficient competent medical evidence on file for the Secretary
to make a decision on the
claim. McLendon v. Nicholson, 20 Vet.App. 79, 81 (2006) (citing 38 U.S.C. §
5103A(d)(2)). In deciding whether an examination is necessary, the Secretary must consider the record as a whole, "taking into consideration all information and lay or medical evidence (including statements of the claimant)." 38 U.S.C. § 5103A(d)(2). The third criterion, associating a disability or persistent symptoms thereof with service, is a "low threshold," McLendon, 20 Vet.App. at 83, which requires neither medical nor necessarily competent evidence to substantiate it. See Waters v. Shinseki, 601 F.3d 1274, 1277 (Fed. Cir. 2010)
The Court reviews the Board's conclusion that a medical examination or
opinion is not
necessary pursuant to section 5103A(d) under the "arbitrary, capricious,
an abuse of discretion, or
otherwise not in accordance with the law" standard of review pursuant to
38 U.S.C. § 7261(a)(3)(A).
McLendon, 20 Vet.App. at 81. The Board's underlying determinations whether
the appellant has a
currentdisabilityandwhethertheappellantsufferedanin-serviceevent,injury,
ordiseasearefindings
of fact subject to the "clearly erroneous" standard of review. Id. at 82;
see 38 U.S.C. § 7261(a)(4).
In the decision here on appeal, the Board found that the evidence failed
to establish that the
appellant suffered from a left or right knee disability. R. at 6. The
Board stated that "the records tend
to show that he had no chronic disability of the left knee or injury to or
disability of the right knee
during service." Id. The Board went on to state: "[A]s there is no medical
evidence of record of a
current left or right knee disability or of a chronic left or right knee
disability in service, under the
facts of this case, the Board has no duty to provide a VA examination or
obtain a medical opinion."
R. at 16.
4
The Board found that because of the absence of an "underlying pathology"
the appellant did
not suffer from a bilateral knee disability, even though the appellant
suffered from chronic knee pain.
R. at 7. While pain alone is not a disability for compensation purposes, it may constitute a symptom of a disability about which the appellant is competent to testify. See Locklear v. Nicholson, 20 Vet.App. 410, 418 n.6 (2006) (noting that the appellant's chest pains
may alone suffice to satisfy the first prong of 38 C.F.R. § 3.159(c)(4)(i)(A)). Consequently, the
appellant's observations of persistent and chronic knee pain combined with medical records documenting
pain in both of his knees and a history of knee surgeries may be sufficient to establish "competent evidence of a current disability or persistent or recurrent symptoms of a disability." McLendon, 20 Vet.App. at 81. There is no requirement that the appellant present evidence of a chronic knee disability in service. See id.
Therefore, the Court will vacate the Board's decision and remand the
matter for the Board to consider
whether the record contains "competent evidence of . . . persistent and
recurrent symptoms of a
[bilateral knee] disability" and whether the symptoms may be associated
with the appellant's service.
See id.
With respect to the right knee, the Board also determined there was no in-
service injury. The
Court finds that the Board failed to provide an adequate statement of
reasons or bases with regard to
its determination. See R. at 6; Allday v. Brown, 7 Vet.App. 517, 527 (1995
) (the Board must provide
a statement of reasons or bases adequate to enable a claimant to
understand the precise basis for its
determination, and to facilitate review in this Court); and Caluza, 7 Vet.
App. at 506 (holding that
Board must analyze the credibility of all evidence and provide the reasons
for its rejection of any
material evidencefavorableto theclaimant). TheBoardstatedthat:"[s]
ervicetreatmentrecordsshow
that the Veteran was treated for a twisted left knee in November and
December 1967." R. at 5.
However, the Board failed to explain how it reached this conclusion. There
is ambiguity in whether
the injuries in service are for only the left knee or for both knees. See
R. at 2451. The SMR entries
on November 27 and December 8 list only"twistedknee"without explaining
which knee was treated.
Id. Furthermore, in his separation physical, the appellant complained of a "
trick" or locked knee
without indicating which knee, or knees, the condition pertained to. R. at
2455. The Board's
conclusory statement does not provide the Court with the kind of
discussion required for it to
5
ascertain whether the Board fully considered the ambiguities in the
appellant's records. Where
appellatereview is frustrated because the Board provided inadequate
reasons or basesfor its decision,
remand is the appropriate remedy. See Cogburn v. Nicholson, 19 Vet.App.
427, 430 (2006).
Accordingly, on remand, the Board must also reevaluate the evidence and
provide an adequate
statement of reasons or bases for its determination whether the record
demonstrates that the appellant
sustained an in-service injury to his right knee.
When deciding whether an examination is necessary, the Board is reminded
that it shall
consider the evidence of record, "taking into consideration all
information and lay or medical
evidence (including statements of the claimant)." 38 U.S.C. § 5103A(d)(2);
see, e.g., R. at 22, 2275
(appellant's lay statements that he has suffered from a persistent and
chronic knee condition since
service, and VA treatment records documenting complaints of chronic pain
in the knee); R. at 2217
(appellant's medical records that list two right knee surgeries for a
Baker's cyst and tendon repair
under past surgical history); R. at 2428 (radiological report that stated
that the x-ray of the appellant's
left knee showed "[o]ld adductor magnus insertion avulsion, which is solid
healed with deformity");
R. at 2430 (appellant's medical records indicating right knee arthroscopic
surgeryin 1988 and "fx left
patella"); and R. at 2455 (separation physical fromMarch1970thatreported a "
trick"or locked knee).
If, after applying the McLendon elements, the Board determines that a
medical examination is not
warranted, it must provide an adequate statement of reasons or bases in
support of its decision.
Duenas v. Principi, 18 Vet.App. 512, 519 (2004).
B. Contemporaneous Examinations for Hypertension and Peripheral Neuropathy
The Secretary's dutyto assist requires a thorough and contemporaneous
medical examination
when the record does not adequately reveal the current state of the
claimant's disability. See
38 U.S.C. § 5103A(d)(1); Green v. Derwinski, 1 Vet.App. 121, 124 (1991);
see also
Caffrey v. Brown, 6 Vet.App. 377, 381 (1994). The record is inadequate and
a contemporaneous
examination is necessarywhen the "evidence indicates there has been a
material change in a disability
or that the current ratingmaybe incorrect." 38 C.F.R. § 3.327(a) (2011);
seePalczewski v. Nicholson,
21Vet.App. 174, 182 (2007) (submission of new evidence or allegation that
a disability has worsened
may require a new medical examination to be provided, but "mere passage of
time between those
6
events does not"); Caffrey, 6 Vet.App. at 381 (finding 23-month-old
examination too remote to be
contemporaneous where appellant submitted evidence indicating disability
had since worsened);
Olson v. Principi, 3 Vet.App. 480, 482 (1992) ("Where the veteran claims a
disability is worse than
when originally rated, and available evidence is too old to adequately
evaluate the current state of the
condition, the VA must provide a new examination.").
Here, the Board did not address whether the duty to assist required VA to
obtain another
medical examination. The Board reviewed the March 2005 and June 2006 VA
examinations for
blood pressure readings, and based its peripheral neuropathy rating
decisions on a June 2006
examination. R. at 9-10.
The Court finds that the Board did not provide adequate reasons and bases
for its decision to
rely on the 2005 and 2006 examinations given the appellant's argument at
his 2009 hearing that the
medical examinations before the Board were not adequate to describe his
current medical conditions.
R. at 21 ("The veteran believes that remand is necessary in this case
because medical information of
record is no longer probative regarding the severity of his peripheral
neuropathy of the right lower
extremity and hypertension[.]" (emphasis added)). The Secretary argues
that the appellant did not
allege that his conditions had worsened; instead, he argues that the
appellant was only basing his
request for a new examination on the passage of time. Secretary's Br. at 7-
8. Although the appellant's
argument is not a model of clarity, it is clear that he questioned the
adequacy of the medical evidence
of record and the Board did not address his assertions, frustrating
judicial review.
Accordingly, the Court will remand the appellant's claim for increased
disability ratings for
hypertension and peripheral neuropathy for the Board to provide an
adequate statement of reasons or
bases for its decision. See 38 U.S.C. § 7104(a), (d)(1); Duenas, 18 Vet.
App. at 519 (remanding for
Board to provide an adequate statement of reasons and bases for its
decision that a VA medical
examination was not required).
C. Other Arguments
Given this disposition, the Court will not, at this time, address the
other arguments and issues
raised by the appellant. See Best v. Principi, 15 Vet.App. 18, 20 (2001) (
per curiam order) (holding
that "[a] narrow decision preserves for the appellant an opportunity to
argue those claimed errors
7
before the Board at the readjudication, and, of course, before this Court
in an appeal, should the Board
rule against him"). On remand, the appellant is free to submit additional
evidence and argument on
the remanded matters, and the Board is required to consider any such
relevant argument. See Kay v.
Principi, 16 Vet.App. 529, 534 (2002) (stating that, on remand, the Board
must consider additional
evidence and argument in assessing entitlement to benefit sought);
Kutscherousky v. West,
12 Vet.App. 369, 372-73 (1999) (per curiam order). The Court has held that
"[a] remand is meant
to entail a critical examination of the justification for the decision."
Fletcher v. Derwinski,
1 Vet.App. 394, 397 (1991). The Board must proceed expeditiously, in
accordance with 38 U.S.C.
§ 7112 (requiring the Secretary to provide for "expeditious treatment" of
claims remanded by the
Court.).
III. CONCLUSION
Afterconsideration of the appellant's and theSecretary's pleadings,
andareviewof the record,
the Board's May 19, 2009, decision is VACATED and the matter is REMANDED
to the Board for
further proceedings consistent with this decision.
DATED: September 21, 2011
Copies to:
Glenn R. Bergmann, Esq.
VA General Counsel (027)
8
Single Judge Application, Attorney Resentation and Liberally Construed, Cogburn v. Shinseki, 24 Vet.App. 205, 213 (2010)
Excerpt from decision below:
"This Court has recently clarified that, although a veteran's claim must always be liberally construed, "representation [by an attorney]
may be a factor in determining the degree to which the pleading is liberally construed."
Cogburn v. Shinseki, 24 Vet.App. 205, 213 (2010) (emphasis added)"
=======================
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-1917
PAULINE C. BAKER, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before HAGEL, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
HAGEL, Judge: Pauline C. Baker appeals through counsel a May 19, 2010,
Board of
Veterans' Appeals (Board) decision that reopened but denied a claim for
entitlement to dependency
and indemnity compensation. Mrs. Baker's Notice of Appeal was timely and
the Court has
jurisdiction to review the Board decision pursuant to 38 U.S.C. § 7252(a).
Neither party requested
oral argument or identified issues theybelieve require a precedential
decision of the Court. Because
the Board failed to adjudicate all theories of entitlement reasonably
raised by the record, the Court
will vacate the May 2010 Board decision and remand the matter for further
development, if
necessary, and readjudication consistent with this decision.
I. FACTS
Mrs. Baker is the widow of veteran Richard J. Baker, who served on active
dutywith the U.S.
Navy from November 1962 to November 1966 and from May 1967 to December
1973. No
abnormalities were noted at Mr. Baker's entrance examination. Service
treatment records from
December 1968 indicate that Mr. Baker twice sought treatment for headaches
described as
"persistent" and "frequent." Record (R.) at 208, 210. Similarly, a May
1971 service treatment note
reflects Mr. Baker's complaints of headaches every other day that
localized near the left temple and
caused a pain that started as a dull ache but would get sharper. In June
1973, he again sought
treatment for dizzy spells, sudden lightheadedness, and headaches.
Post-service medical records from Air Force and Naval hospitals where Mr.
Baker sought
treatment between February 1976 and February 1987 indicate continued
complaints of headaches
and migraines, often described as vascular and persistent, recurring, or
experienced for many years.
In early March 1987, Mr. Baker was admitted to an Air Force medical center
emergency
room with recent symptoms of headaches, confusion, disorientation,
lethargy, nausea, and slurred
speech. A history of migraine headaches with an onset in 1972 was noted.
Mr. Baker died on May 5, 1987. The immediate cause of death was presumed
to be a
midbrain tumor. Following an autopsy, however, the death certificate was
amended to change the
immediate cause of death to a stroke due to or a consequence of a vascular
malformation. Major
diagnoses at that time were "[m]arked diffuse autolytic change - brain (
'Respirator Brain'),
"[h]erniation of[the]midbrain,brainstem,cerebellartonsils,"and"[p]neumonia [
of the] right middle
lobe." R. at 1097. In the autopsy report, the examiner stated that
[g]ross examination of the optic chiasm[1
] showed a web of anastomosing[2
] small
vessels surrounding it. Several of these were thrombosed.[3
] The gross and
microscopic appearance of these vessels was consistent with cerebral
arterial
occlusive disease. This is a rare disorder of uncertain etiology marked by
occlusion
of the main branches of the carotid artery with formation of collateral
vessels.
R. at 1099. The examiner explained that this rare disorder was known as
Moyamoya Disease and
that, although it was more prevalent in children, it was also known to
occur in adults. He explained
that "[t]he characteristic presentation in the adult patients was a sudden
alteration in consciousness
frequently associated with a massive subarachnoid bleed from the ruptured
collaterals," and opined
that "[t]his was probably the case with Mr. Baker." R. at 1099.
The optic chiasm is "the part of the hypothalamus formed by the
decussation, or crossing, of the fibers of the
optic nerve from the medial half of each retina." DORLAND'S ILLUSTRATED
MEDICAL DICTIONARY 342 (32d ed. 2011)
[hereinafter DORLAND'S].
2
1
Anastomosis is "a connection between two vessels." DORLAND'S at 75.
Thrombosis is "the formation, development, or presence of a thrombus."
DORLAND'S at 1923. A thrombus
is "a stationary blood clot along the wall of a blood vessel, frequently
causing vascular obstruction." Id.
3
2
The examiner noted that Mr. Baker "had a history of migra[i]ne headaches
that date[d] back
to 1972," and that this history "suggest[ed] the presence of altered
vascular reactivity." R. at 1099.
The examiner also noted that Mr. Baker "had a history of smoking three to
four packs of cigarette[s]
per day for in excess of [25] years," which was "clinically significant in
that smokers under 65 years
have twice the death rate from coronary arterial occlusive disease than
non-smokers." R. at 1098.
The examiner then summarized his findings: "[T]he anatomic findings are
consistent with a
dia[g]nosis of cerebral arterial occlusive disease—Moyamoya [D]isease.
The rupture of some of the
collateralvesselsprobablyresultedin hemorrhage,
increasedintracranialpressure[,] andMr.Baker's
death." R. at 1100.
Mrs. Baker applied for dependency and indemnity compensation in April 1987.
This claim
was denied by a VA regional office in July 1987 on the basis that the
evidence did not indicate that
Mr. Baker's death was service connected. Mrs. Baker did not appeal this
decision and it became
final.
In December 2004, Mrs. Baker requested that her dependency and indemnity
compensation
claim be reopened and indicated that her late husband was involved in
Project Shipboard Hazardand
Defense (SHAD). Project SHAD "was part of the joint service chemical and
biological warfare test
program conducted during the 1960s" and "encompassed tests designed to
identify US warships'
vulnerabilities to attacks with chemical or biological warfare agents and
to develop procedures to
respond to such attacks while maintaining a war-fighting capability." R.
at 136.
In a July2006 compensation and pension examination inquiry, the regional
office confirmed
that Mr. Baker had participated in two Project SHAD operations, "Scarlet
Sage[,] with exposure to
Bacillus subtilis[4
] var[iant] niger[,] also called Bacillus globigii[,] . . . and . . .
Purple Sage[,] with
exposure to Methylacetoacetate."5
R. at 268. The regional office therefore requested that a VA
Bacillus is "a genus of bacteria of the family Bacillaceae, including
large aerobic or facultatively anaerobic,
spore-forming, rod-shaped cells, the great majority of which are gram-
positive and motile. Most species are saprophytic
soil forms; three are pathogenic or potentially pathogenic." DORLAND'S at
190. Bacillus subtilis is "a species that is a
common saprophyte in soil and water, often a laboratory contaminant, and
can cause conjunctivitis. It also produces the
antibiotic bacitracin." Id.
5
4
The record indicates that Methylacetoacetate is "a sarin nerve agent
simulant." R. at 136.
3
examiner determine "whether [Mr. Baker's] cause of death was a direct or
contributory result of
exposure to stimulants as a result of his participation in Project SHAD."
R. at 269.
This opinion was obtained from a VA neurologist later that month. After
reviewing the
claims file, the neurologist noted that "[t]he autopsy findings showed
that [Mr. Baker] had cerebral
vascular occlusive disease and vascular malformation causing him to have a
stroke." R. at 240.
With regard to the agents to which Mr. Baker was exposed during his
involvement with Project
SHAD, the neurologist stated that
[a] tracer that was used of bacillus globigii has not been known to
consistently cause
disease in healthyadult humans. The studies on autopsyshowed that this was
not the
cause of the infection in [Mr. Baker's] right lung. The cause of death was
due to
congenital vascular malformation causing a stroke. The clinical course was
one that
is commonly the case of improvement, and then he developed cerebral edema
with
brain stem compression and this probably caused his respiratory arrest
with
contributoryfactorsofright-sidedpneumoniaduetostaph[6
] andklebsiella[7
] andnot
due to the agent that is mentioned in the tests.
R. at 240-41. The neurologist therefore opined that Mr. Baker's "
participation in Project SHAD . . .
and [operation] SCARLET-SAGEwith exposure to bacillus globigii did not
cause[his] death, either
from that or exposure to Methylacetal acetate in Purple Sage." R. at 241.
In August 2006, the regional office issued a rating decision again denying
Mrs. Baker
dependency and indemnity compensation on the basis that her husband's
death was not service
connected. Mrs. Baker filed a Notice of Disagreement in October 2007 and,
after further
development, appealed to the Board. In both her appeal and her Notice of
Disagreement, Mrs. Baker
argued that bacillus globigii was known to "cause Q-Fever[8
] in 3-6% of humans that inhaled the
6
Staph, short for Staphylococcus, is "a ubiquitous genus of gram-positive,
mainly facultatively anaerobic
bacteria . . . ." DORLAND'S at 1765. They "are important inhabitants of
the skin, cutaneous glands, and mucous
membranes; several species are important pathogens, causing a wide
varietyof infections, as well as producing a number
of toxins." Id.
Klebsiella is "a genus of bacteria of the family Enterobacteriaceae, made
up of small, gram-negative,
facultatively anaerobic, nonmotile rods, usually occurring singly; they
are widely distributed in nature, including in the
intestines. They are a frequent cause of nosocomial urinary and pulmonary
infections and of wound infections."
DORLAND'S at 988.
Q fever is "an acute, generallyself-limited infection caused byCoxiella
burnetii, characterized byfever, chills,
headache, myalgia, malaise, and occasionally rash, and sometimes
complicated by mild pneumonia . . ., hepatitis, and
endocarditis. In humans, it is usually acquired by inhalation of airborne
organisms in dust or aerosols contaminated by
8
7
4
chemical agent and that humans will continue to have flu-like symptoms
and diarrhea, sore throat,
fever, cough[,] and other cold symptoms—that will continue for years and
then humans die 20 years
later." R. at 95; see also R. at 60. She asserted that her husband's
medical "records match these
symptoms flawlessly," R. at 60, 95, and that it was therefore her belief
that he "was one of the 3-6%
of . . . soldiers sprayed . . . that developed Q-Fever and never received
medical treatment due to the
fact that everything about . . . [Project] SHAD . . . was kept classified
for over 30 years." R. at 60.
The Board issued the decision now on appeal in May 2010. Initially, the
Board concluded
that new and material evidence had been submitted by Mrs. Baker and
therefore reopened her
dependency and indemnity compensation claim. In assessing the merits of
that claim, the Board
noted Mrs. Baker's contention that her husband had contracted Q fever as a
result of his participation
in Project SHAD and that this condition contributed to his death. The
Board also noted that service
and post-service medical records indicated treatment for various ailments,
including, on many
occasions, headaches, but observed that none of them "refer[red] to Q
fever or to any relationship
between [Mr. Baker's] symptoms and his service." R. at 13. Finally, the
Board found the VA
neurologist's July2006 opinion to be highlyprobativeand"inlinewith the
autopsyreport" insomuch
as it concluded that Mr. Baker died as a result of "a congenital vascular
malformation." R. at 16.
Relying on this opinion, the Board concluded that the preponderance of the
evidence did not indicate
that Mr. Baker's death was related to his service and therefore denied Mrs.
Baker entitlement to
dependency and indemnity compensation.
II. ANALYSIS
A. Dependency and Indemnity Compensation
On appeal, Mrs. Baker does not contest the Board's finding that Mr.
Baker's participation in
Project SHAD did not cause or contribute to his death. Instead, she argues
that the Board erred by
"onlyconsider[ing] whether [Mr. Baker's] cause of death was the result of
chemical exposure" when
"[t]he evidence of record . . . clearly raise[d] another issue which the [
Board] did not consider or
discuss, whether [Mr. Baker's] in-service vascular headaches were the
first manifestations of the
infected domestic animals." DORLAND'S at 693.
5
[M]oyamoya [D]isease which led to his death bystroke." Appellant's Brief (
Br.) at 4. The Secretary
contends that Mrs. Baker "did not raise this theory of entitlement [to
dependency and indemnity
compensation] when she sought to reopen her claim[,] nor was such a theory
suggested by the
evidence of record that would reasonably put the Board on notice that such
a theory was plausible
and must be developed." Secretary's Br. at 4. The Secretary argues that
the Board therefore did not
err in failing to consider and discuss this theory of entitlement.
In Robinson v. Peake, this Court explained that, because proceedings
before VA are
nonadversarial, "the Board's obligation to analyze claims goes beyond the
arguments explicitly
made." 21 Vet.App. 545, 553 (2008), aff'd sub nom. Robinson v. Shinseki,
557 F.3d 1355 (Fed. Cir.
2009). As the Court explained, "[i]t is entirely possible that the record
might 'indicate' a theory of
entitlement, but that a lay appellant might not be sophisticated enough to
recognize the theory,"
meaning that "a theory can be both unknown to the appellant and suggested
by the record." Id.
(citing Ingram v. Nicholson, 21 Vet.App. 232, 256-57 (2007)). On the other
hand, the Board is not
required "to assume the impossible task of inventing and rejecting every
conceivable argument in
order to produce a valid decision." Id. Accordingly, "[w]here a fully
developed record is presented
to the Board with no evidentiary support for a particular theory of
recovery, there is no reason for
the Board to address or consider such a theory." Robinson, 557 F.3d at
1361. In other words, "[t]he
Board commits error only in failing to discuss a theory of entitlement
that was raised either by the
appellant or by the evidence of record." Robinson, 21 Vet.App. at 553.
Here, having been reopened following the submission of new and material
evidence, Mrs.
Baker's claim was one for entitlement to dependency and indemnity
compensation. A surviving
spouse is eligible for dependency and indemnity compensation under 38 U.S.
C. § 1310(a) and
38 C.F.R.§3.312(a)wheretheevidencedemonstratesthata service-connected
disability"was either
the principal or a contributory cause of death." 38 C.F.R. § 3.312(a) (
2011). A disability is service
connected where the evidence of record demonstrates (1) a current
disability, (2) incurrence or
aggravation of a disease or injury in service, and (3) a nexus between the
in-service injury or disease
and the current disability. 38 U.S.C. § 1110; Davidson v. Shinseki, 581 F.
3d 1313, 1315-16 (Fed.
Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004);
38 C.F.R. § 3.303 (2011);
6
see also 38 U.S.C. § 1310(a) (providing that "[t]he standards and
criteria for determining whether
or not a disability is service-connected shall be those applicable under
chapter 11 of this title").
Here, the Board found, and the evidence of record overwhelminglyindicates,
that Mr. Baker
suffered a stroke that resulted in a hemorrhage when some of the
collateral vessels near the optic
chiasm ruptured, which in turn caused intracranial pressure leading to his
death. The evidence of
record is equally clear, and the Board again found, that this stroke
resulted from a vascular
malformationcausedbyararecerebral
vascularocclusivediseaseofuncertainetiologythatis known
as Moyamoya Disease. Some of the evidence of record—namely, the
autopsyreport—indicates that
Mr. Baker's history of migraine headaches is consistent with the manner in
which this condition
manifests. See R. at 1099 ("Mr. Baker's history of migraine headaches
suggests the presence of
altered vascular reactivity."). The autopsy examiner dated the onset of
this symptomatolgy to1972,
during Mr. Baker's active duty service, R. at 1098, but, in fact, the
first indication in the record of
proceedings of Mr. Baker seeking treatment for headaches is found in the
December 1968 service
treatment notes, in which his headaches were described as "persistent" and "
frequent." R. at 208,
210. Further, additional service treatment records indicate that Mr. Baker
continued to suffer from
headaches through June 1973, approximately five months prior to his
separation from service. R.
at 1343, 1374. There is also a bevy of post-service medical records
suggesting that this symptom
persisted following his separation, until the time of his death. R. at 930,
935, 938, 956, 959, 964,
968-70, 972, 980, 1023, 1035-1039.
In sum, this body of evidence suggests that: (1) Mr. Baker's death
resulted from a rare
cerebral vascular disease of uncertain origins; (2) one symptom of this
disease exhibited by Mr.
Baker was migraine headaches; (3) these migraine headaches began during Mr.
Baker's active duty
service and continued, to one extent or another, throughout his service;
and (4) headaches continued
to plague him following his separation from service until the time of his
death. Despite this
evidence, the Board gave no consideration whatsoever to the possibility
that this disease, although
not diagnosed until Mr. Baker's death, had an onset during his active duty
service. See 38 C.F.R.
§ 3.303(d) (providing that a disease that is first diagnosed following
the veteran's separation from
service may still be granted service connection "when all the evidence,
including that pertinent to
service, establishes that the disease was incurred in service"). Likewise,
the Board gave no
7
consideration to whether the condition might be service connected as a "
chronic disease" pursuant
to 38 C.F.R. § 3.303(b) or, alternatively, by showing continuity of
symptomatology pursuant to that
sameprovision. SeegenerallySavagev.Gober, 10 Vet.App. 488, 495-97 (1997).
Instead, the Board
focused solely on the theory of entitlement to dependency and indemnity
compensation expressly
raised by Mrs. Baker—that her husband contracted Q fever during Project
SHAD, which went
untreated for many years and ultimately caused or contributed to his death.
This was error, as the
Board was required not only to develop and adjudicate the theories of
entitlement expressly raised
by Mrs. Baker, but also those reasonably raised by the record. Robinson,
21 Vet.App. at 553.
In reaching the conclusion that this theory of entitlement was reasonably raised by the record,
the Court notes that there is no indication that Mrs. Robinson was
represented by an attorney during the course of proceedings below. See R. at 5 (listing Disabled American
Veterans as Mrs. Baker's representative); see also Comer v. Peake, 552 F.3d 1362, 1370 (Fed. Cir.
2009) (explaining that assistance provided to claimants by veterans service organizations is
invaluable but not equivalent to representation by a licensed attorney). This Court has recently
clarified that, although a veteran's claim must always be liberally construed, "representation [by an attorney]
may be a factor in determining the degree to which the pleading is liberally construed." Cogburn v. Shinseki,
24 Vet.App. 205, 213 (2010) (emphasis added). Accordingly, here, the Board
was required to take into account the nature of Mrs. Baker's representation when assessing the
evidence of record for the purpose of identifying and fully developing all issues and theories of
entitlement pertinent to Mrs. Baker's claim for dependency and indemnity compensation. The Court
concludes that a liberal examination of this evidence would have led to the development and
adjudication of the alternative theory now expressly presented by Mrs. Baker on appeal. Because this did
not happen, the Court
will remand this claim for readjudication consistent with this decision.
See Robinson, 21 Vet.App.
at 553.
B. Remedy
The Court notes that Mrs. Baker argues that reversal, not remand, is the
appropriate remedy
under the circumstances of this case. She argues that "[t]he only
permissible view of [the] evidence
is that [Mr. Baker's] [M]oyamoya [D]isease, which was the cause of his
death, began in service and
should, then, have been service connected." Appellant's Br. at 7. The
Court disagrees.
8
It is true that reversal is the appropriate remedy when there is but one
permissible view of
the evidence, and that view is contrary to the Board's decision. Gutierrez
v. Principi, 19 Vet.App.
1, 10 (2004) (citing Johnson v. Brown, 9 Vet.App. 7, 10 (1996)). It is
also true that, in the present
case, the theoryof entitlement outlined above byMrs. Baker was most
certainly raised bythe record.
However, this case involves complex medical questions that the Board did
not even attempt to
address in the decision on appeal. "[W]here the Board has incorrectly
applied the law, failed to
provide an adequate statement of reasons or bases for its determinations,
or where the record is
otherwise inadequate, a remand is the appropriate remedy." Tucker v. West,
11 Vet.App. 369, 374
(1998); see Hicks v. Brown, 8 Vet.App. 417, 422 (1995). Under the
circumstances of this case, the
Court is not convinced that the "only permissible view of the evidence"
necessitates a finding that
Mr. Baker's death was service connected, and remand is therefore the
appropriate remedy. See
Gutierrez, 19 Vet.App. at 10.
Onremand,theBoardshould determinewhetheradditionaldevelopment,
includingobtaining
another VA medical opinion that explicitly considers this alternative
theory of entitlement, is
necessary. See McLendon v. Nicholson, 20 Vet.App. 79, 83-84 (2006). Mrs.
Baker will also be free
to submit additional evidence and argument on remand in accordance with
Kutscherousky v. West,
12 Vet.App. 369, 372-73 (1999) (per curiam order). See Kay v. Principi, 16
Vet.App. 529, 534
(2002). The Board is reminded that "[a] remand is meant to entail a
critical examination of the
justification for the decision" by the Board. Fletcher v. Derwinski, 1 Vet.
App. 394, 397 (1991). In
addition, the Board shall proceed expeditiously, in accordance with 38 U.S.
C. § 7112 (expedited
treatment of remanded claims).
9
III. CONCLUSION
Upon consideration of the foregoing, the May 2010 Board decision is
VACATED and this
matter is REMANDED for additional development, if necessary, and
readjudication.
DATED: September 21, 2011
Copies to:
Shannon L. Brewer, Esq.
VA General Counsel (027)
10
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))."
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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
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