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

Single Judge Application Shade v. Shinseki, 24 Vet. App., Credible Lay Evidence to Reopen

Excerpt from decision below:
"After the briefs were submitted in this case, the Court issued a decision
that conclusively establishes the Board's finding on new and material evidence to be in error. In Shade v. Shinseki, 24 Vet.App. 110 (2010), the veteran had previously been denied service connection for lack of evidence of a current disability and for lack of nexus evidence. When he later submitted a medical diagnosis of the condition for which he sought service connection, both VA and the Board declined to reopen his case because there was still no nexus evidence in the record.
The Court held that the evidence submitted related to an unestablished fact, the existence of a current disability, as required by the Secretary's regulation as properly interpreted. The Court observed that the language of the regulation "does not require new and material evidence as to each previously unproven element of
a claim." Id. at 120. The concurrence reasoned that "[n]ew and material evidence is evidence that–if found credible–would either entitle the claimant to benefits or to some further assistance from the Secretary in gathering evidence." Shade, 24 Vet.App. at 124 (Lance, J., concurring). If anything, the facts of this case are more favorable to the appellant than the facts of Shade.
Here, there was only one stated reason for the previous denial, and the
appellant submitted evidence relevant to that reason. Accepting the sister's lay statement as credible, as required at this stage of the proceedings, see Justus. supra, it constitutes evidence that the appellant's anxiety symptoms did
not preexist service but manfested themselves on his return from service.
Coupled with the appellant's statements that his symptoms began in service, there is
evidence relating to two of the requirements for service connection by continuity of symptomatology. See Barr v. Nicholson, 21 Vet.App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet.App. 488, 495-96 (1997)) (continuity of
3


symptomatology may establish service connection if a claimant can
demonstrate (1) that a condition was "noted" during service; (2) there is postservice evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability
and the postservice symptomatology). Among the types evidence that suffice
to require a VA medical opinion is "credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation." McLendon v. Nicholson, 20 Vet.App. 79, 83 (2006).
----------------------------------------------------


Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-3543
RANDIE L. BREDAHL, APPELLANT,
v.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before DAVIS, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.

DAVIS, Judge: U.S. Army veteran Randie L. Bredahl appeals through counsel
from a June
11, 2009, Board of Veterans' Appeals (Board) decision that declined to
reopen a previously denied
service-connection claim for anxiety disorder and denied his service-
connection claims for a left
shoulder and low back disabilities. For the following reasons, the Court
will affirm in part and
reverse in part the Board's June 2009 decision, and remand a matter for
further proceedings
consistent with this decision.
I. ANALYSIS
A.
Request To Reopen
Pursuant to 38 U.S.C. § 5108, "if 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." This Court generally reviews Board
decisions regarding whether
the appellant has submitted new and material evidence sufficient to reopen
a prior claim under the
"clearly erroneous" standard of review set forth in 38 U.S.C. § 7261(a)(4
). See Elkins v. West, 12 Vet.App. 209, 217 (1999); see also Fortuck v. Principi, 17 Vet.App. 173, 178-79 (2003).
"New and material evidence" is defined as follows:


New evidence means existing evidence not previously submitted to agency
decision makers. Material evidence means existing evidence that, by itself or when
considered with previous evidence of record, relates to an unestablished
fact necessary to substantiate the claim. New and material evidence can be
neither cumulative nor redundant of the evidence of record at the time of the last
prior final denial of the claim sought to be reopened, and must raise a reasonable
possibility of substantiating the claim.
38 C.F.R. § 3.156(a) (2010). New evidence is presumed credible for
purposes of determining whether the claim should be reopened. Justus v. Principi, 3 Vet.App. 510, 513 (1992). "[T]he question of what constitutes material evidence to reopen a claim for service connection depends on the basis on which the prior claim was denied." Kent v. Nicholson, 20 Vet. App. 1, 10 (2006).
In this case the Board found that "[s]ervice connection for anxiety
disorder was last finally denied by an unappealed rating decision by the [regional office] in December 2005." Record (R.) at 5. The stated reason for that denial was that "the evidence continues to show this condition was not incurred in or aggravated by military service." R. at 250. Similarly, the notice letter issued
pursuant to the requirements of the Veterans Claims Assistance Act of 2000 (
VCAA), Pub. L. No. 106-475, § 3(a), 114 Stat. 2096 (codified in part at 38 U.S.C. § 5103(a
)), stated: "Your claim was
previously denied because the condition was not incurred in or aggravated
by military service.
Therefore, the evidence you submit must relate to this fact."1
R. at 228.
The Board listed the additional evidence received since the last (December
2005) denial as
"a statement from the Veteran's sister, VA outpatient notes for 2006, and
numerous private medical
records, including some duplicates from 1983 to 2006." R. at 10. The
record further includes a
mental status report dated July 5, 2006, prepared for purposes of a Social
Security disability claim,
which the Board did not discuss.
The laystatement bythe appellant's sister stated that before service "he
seemed happy& with
a good outlook on life and what was ahead for him in life." R. at 247. She
went on to describe his
severe anxiety symptoms since his return from service. See R. at 237-41.
Furthermore, the Social
Securityexamination recorded the appellant's statements that trace the
onset of his anxietyproblems
1
The appellant additionally challenges the sufficiency of the VCAA notice
letter in a footnote. Because the Court is remanding this claim for a different reason, it need not reach this issue. See Mahl v. Principi, 15 Vet.App. 37,
38 (2001) (per curiam order) ("[I]f the proper remedy is a remand, there is no need to analyze and discuss all the other claimed errors that would result in a remedy no broader than a remand.").
2


to various stressors during his service in Germany. This evidence clearly
relates to the issue of in-service incurrence.
The Board, however, focused on the lack of nexus evidence in the record.
It found that "the additional evidence is not new and material, since it does not include [a] competent medical opinion linking the Veteran's current anxiety disorder to service." R. at 12. The Board viewed the lay statement from the appellant's sister as having "little probative value as to the nature or etiology of
[the appellant's] current psychiatric disorder." R. at 11. The discussion
of the new medical treatment notes was confined to the observation that they only dealt with treatment of psychiatric problems since 1999.
After the briefs were submitted in this case, the Court issued a decision
that conclusively establishes the Board's finding on new and material evidence to be in error. In Shade v. Shinseki, 24 Vet.App. 110 (2010), the veteran had previously been denied service connection for lack of evidence of a current disability and for lack of nexus evidence. When he later submitted a medical
diagnosis of the condition for which he sought service connection, both VA
and the Board declined to reopen his case because there was still no nexus evidence in the record.
The Court held that the evidence submitted related to an unestablished fact, the existence of a current disability, as required by the Secretary's regulation as properly interpreted. The Court observed that the language of the regulation "does not require new and material evidence as to each previously unproven element of
a claim." Id. at 120. The concurrence reasoned that "[n]ew and material evidence is evidence that–if found credible–would either entitle the claimant to benefits or to some further assistance from the Secretary in gathering evidence." Shade, 24 Vet.App. at 124 (Lance, J., concurring). If anything, the facts of this case are more favorable to the appellant than the facts of Shade.
Here, there was only one stated reason for the previous denial, and the
appellant submitted evidence relevant to that reason. Accepting the sister's lay statement as credible, as required at this stage of the proceedings, see Justus. supra, it constitutes evidence that the appellant's anxiety symptoms did not preexist service but manfested themselves on his return from service.
Coupled with the appellant's statements that his symptoms began in service, there is
evidence relating to two of the requirements for service connection by continuity of symptomatology. See Barr v. Nicholson, 21 Vet.App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet.App. 488, 495-96 (1997)) (continuity of
3


symptomatology may establish service connection if a claimant can
demonstrate (1) that a condition was "noted" during service; (2) there is postservice evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability
and the postservice symptomatology). Among the types evidence that suffice
to require a VA medical opinion is "credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation." McLendon v. Nicholson, 20 Vet.App. 79, 83 (2006).
The Court is unable to conclude that "the remaining element, a nexus between the current diagnosis and [service] could not be established were [the appellant]
provided a VA medical examination." Shade, 24 Vet.App. at 120. Therefore, the Court will reverse the Board's conclusion that "[n]ew and material evidence has not been received to reopen the claim of service connection for anxiety disorder " (R. at 5), and remand with instructions to reopen this claim. The Board will
have to consider whether a VA nexus opinion should be obtained on remand.

B. Service-Connection Claims
The appellant argues that a remand is required with respect to his left
shoulder and low back
claims because VA violated its duty to assist when it failed to provide
him with medical
examinations addressing the etiology of each condition. This Court has
held that in disability
compensation claims
the Secretary must provide a VA medical examination when there is (1)
competent
evidence of a current disability or persistent or recurrent symptoms of a
disability,
and (2) evidence establishing that an event, injury, or disease occurred
in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon, 20 Vet.App. at 81; see also 38 U.S.C. § 5103A(d)(2). The Court further characterized the third requirement of "an indication" that a disability "may be" associated with service as a "low threshold." McLendon, 20 Vet.App. at 83.
Contrary to the appellant's contention, the Board found that his "assertions of chronic left shoulder and low back problems since service [are] not supported by the contemporaneous record and therefore, [are] not credible." R. at 16. The appellant argues that this reasoning contravenes
4


Buchanan v.Nicholson,451F.3d1331,1336(Fed. Cir. 2006)( absence of contemporaneous medical records, without more, does not establish lack of credibility for lay
statements of medical history).
The Court's review of the record reveals that the Board made its
credibility determination
based on the entire record. The Board noted that the only relevant service
medical record pertains
to treatment of an upper back and right shoulder strain and "do[es] not
show any complaints, treatment, abnormalities, or diagnosis referable to any left shoulder or low back problems." R. at 14; see also R. at 380. The Board further noted that the separation examination report recorded no complaints or abnormalities related to shoulder or back problems. After service, the Board noted,
despite filing two earlier service-connection claims, the appellant made
no mention of a connection between low back problems and service until 2006. Finally, the Board noted that the appellant made several statements to treating physicians relating his back problems to various other incidents over
the years, including being thrown from horses while growing up on a farm,
riding on an ATV that flipped over, and incidents working in construction.
The Court discerns no error in the Board's determination that no credible
evidence supported a link between the appellant's current right shoulder and lower back conditions and service. The appellant acknowledges the in-service reference to "upper back strain" (R. at 380), but argues that "the limits of 'upper' are not defined in the medical notes." Appellant's Brief at 20. In the Court's
view, the English language is not so elastic as to include the lower back
in the concept of an "upper back strain." The Court concludes that the appellant has not produced sufficient evidence to satisfy even the low threshold of evidence required to establish a link between the current condition and service. See McLendon, supra. The Court will therefore affirm the Board's findings as to the lower back and left shoulder claims.

II. CONCLUSION
On consideration of the foregoing, the Court AFFIRMS the Board's June 11,
2009, decision
with respect to its determination that the appellant was not entitled to
service connection for a left
shoulder and a lower back condition, REVERSES the Board's determination
that the appellant
submitted no new and material evidence to reopen the anxiety claim, and
REMANDS that claim for
further proceedings consistent with this decision.
5


In pursuing his anxiety claim on remand, the appellant will be free to
submit additional
evidence and argument in support of the claim, and the Board is required
to consider any such
evidence and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). A
final decision by the
Board following the remand herein ordered will constitute a new decision
that, if adverse, may be
appealed to this Court upon the filing of a new Notice of Appeal with the
Court not later than 120
days after the date on which notice of the Board's new final decision is
mailed to the appellant.
Marsh v. West, 11 Vet.App. 468, 472 (1998).
DATED: March 31, 2011
Copies to:
John S. Berry, Esq.
VA General Counsel (027)
6