Single Judge Application, Shade, 24 Vet.App., No Separate Outcome-Based Element

Excerpt from decision below:
"The Board stated:
New evidence is defined as 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. See 38 C.F.R. § 3.156(a) (2008).
R. at 13. In this statement, the Board requires new and material evidence
to be new, material, and to raise a reasonable possibility of substantiating the claim. While the Board indicated that some of the evidence submitted by the appellant was cumulative, it also indicated that it found the appellant's evidence not new and material because "[t]he additional evidence does not raise a reasonable possibility of substantiating the claim." R. at 17.
Subsequent to the Board's decision in this case, this Court issued its decision is Shade v. Shinseki. 24 Vet.App. 110, 116 (2010) (holding that the issue of reopening must be confined to the subject of existence of new and material evidence alone and does not include a separate outcome-based element). In Shade, the Court emphasized "that the phrase 'raise a reasonable possibility of substantiating the claim' does not create a third element for new and material evidence," but was intended to provide" guidance for VA adjudicators in determining whether submitted evidence meets the new and material requirements." Id. at 117. The Board's general statement of law in this matter regarding new and material evidence does not comport with the Court's analysis in Shade. R. at 13.
2


Further, the Board's dispositive statement that the submitted evidence did not raise a reasonable possibility of substantiating the claim indicates that the Board applied the erroneous statement of law to the appellant's claim. R. at 17. Accordingly, the Court will vacate the portion of the Board decision relating to the appellant's claim to reopen and remand the matter so that the Board may apply the appropriate law regarding the analysis of new and material evidence.1
==============================
----------------------------------------------------


Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-3936
BOBBY E. COWAN, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MOORMAN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
MOORMAN, Judge: The appellant, Bobby E. Cowan, appeals through counsel a
June 23,
2009, Board of Veterans' Appeals (Board) decision that denied his claim to
reopen his previously
denied claim for service connection for post traumatic stress disorder (
PTSD). Record (R.) at 3-23.
The appellant and Secretary both filed a brief and the appellant filed a
reply brief. The Court has
jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a) to review the
June 2009 Board decision.
A single judge may conduct that review because the outcome in this case is
controlled by the Court's
precedents and "is not reasonably debatable." Frankel v. Derwinski, 1 Vet.
App. 23, 25-26 (1990).
The Court notes that the June 2009 Board decision remanded the appellant's
claim for service
connection for residuals of a cold weather injury, bilateral feet.
Accordingly, that claim is not on
appeal. For the following reasons, the Court will vacate that portion of
the Board's June 2009
decision relating to the claim to reopen and remand the matter for
readjudication.
Mr. Cowan served in the U.S. Army from February 1950 to April 1955. R. at
417. In
October 2000, Mr. Cowan filed a claim for service connection for PTSD. R.
at 438. The VA
regional office (RO) denied that claim in a November 2001 rating decision.
R. at 434-37. In that
decision, it was noted that Mr. Cowan had a current diagnosis of PTSD but
that corroboration of his
in-service stressors had not been established. R. at 434-37. Mr. Cowan did
not appeal that decision


and it became final.
In September 2005, Mr. Cowan filed a claim to reopen. R. at 421. The RO
denied his claim
to reopen in March 2006. R. at 342. Subsequently, Mr. Cowan submitted
additional evidence and,
following that submission, the RO readjudicated the claim and continued
its denial in an April 2006
decision. R. at 316. Mr. Cowan appealed that decision and the RO issued a
Statement of the Case
(SOC). R. at 278. In the decision here on appeal, the Board denied Mr.
Cowan's claim to reopen
in June 2009. R. at 3-23.
In the decision on appeal, the Board provided a statement of law regarding
new and material
evidence. R. at 13. The Court observes that the Board's statement of law
indicates that the Board
analyzed the appellant's claim to reopen under a standard that required
three elements to be satisfied
in order for evidence to be considered new and material. R. at 13. The
Board stated:
New evidence is defined as 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. See 38 C.F.R. § 3.156(a) (2008).
R. at 13. In this statement, the Board requires new and material evidence
to be new, material, and to raise a reasonable possibility of substantiating the claim. While the Board indicated that some of the evidence submitted by the appellant was cumulative, it also indicated that it found the appellant's
evidence not new and material because "[t]he additional evidence does not
raise a reasonable possibility of substantiating the claim." R. at 17.
Subsequent to the Board's decision in this case, this Court issued its
decision is Shade v. Shinseki. 24 Vet.App. 110, 116 (2010) (holding that the issue of reopening must be confined to the subject of existence of new and material evidence alone and does not include a separate outcome-based element). In Shade, the Court emphasized "that the phrase 'raise a reasonable possibility of substantiating the claim' does not create a third element for new and material evidence," but was intended to provide" guidance for VA adjudicators in determining whether submitted evidence meets the new and material requirements." Id. at 117. The Board's general
statement of law in this matter regarding new and material evidence does not comport with the Court's analysis in Shade. R. at 13.
2


Further, the Board's dispositive statement that the submitted evidence
did not raise a reasonable
possibilityofsubstantiatingtheclaimindicatesthattheBoardappliedtheerroneou
statement of law
to the appellant's claim. R. at 17. Accordingly, the Court will vacate the
portion of the Board
decision relating to the appellant's claim to reopen and remand the matter
so that the Board may
apply the appropriate law regarding the analysis of new and material
evidence.1
Upon consideration of the foregoing analysis and of the appellant's and
the Secretary's briefs,
and a review of the record, that portion of the Board's June 23, 2009,
decision denying the appellant's
claim to reopen his previously denied claim for service connection for
PTSD is VACATED and the
matter is REMANDED.
DATED: June 9, 2011
Copies to:
Sandra E. Booth, Esq.
VA General Counsel (027)
1
On remand, the Board should take appropriate account of the recent change
in 38 C.F.R. § 3.304(f).
3

Single Judge Application, Shade v. Shinseki, 24 Vet.App., Boggs v. Peake, 520 F.3d, Clemons v. Shinseki, 23 Vet.App.

Excerpt from decision below:
"Mr. Wieczorkowski also argues that Shade v. Shinseki, 24 Vet.App. 110, 119-20 (2010), is controlling here, and supports the reopening of his claim. Shade, however, is inapposite. Shade involved a claim that had been denied for lack of evidence of a current disability and any nexus between the asserted disability and service. Id. at 119. In support of reopening the claim, the claimant submitted evidence of a current disability of the same type he had in service. Id. at 120. Shade clarified that in such cases medical evidence of a nexus was not needed to reopen the claim. Id. Rather, as long as there was evidence of record of an in-service disability and new and material evidence of a current disability of the same type, there was a "reasonable possibility of substantiating the claim" which warranted reopening the claim. Id. at 119-20.
In contrast to Shade, where new and material evidence was submitted with regard to a factor upon which the claim previously had been denied, Mr. Wieczorkowski submitted no new and material evidence with regard to the only factor upon which his claim previously had been denied, to wit: nexus. Otherwise stated, Mr. Wieczorkowski's claim previously was denied for lack of nexus evidence and it could only be reopened with the submission of new and material evidence on that issue. See 38 C.F.R. § 3.156(a) (material evidence "relates to an unestablished fact necessary to substantiate the claim"). Based on the record on appeal, the Board's finding that no nexus evidence was submitted – and therefore new and material evidence warranting the reopening of his claim had not been submitted – is plausible and not clearly erroneous, and Mr. Wieczorkowski fails to demonstrate Board error in denying the reopening of his claim for benefits for a low-back disability."
========================================
"On the other hand, the record supports Mr. Wieczorkowski's alternative argument that the Board erred by failing to process his claim as a new claim for benefits for a foot condition, more specifically peripheral neuropathy. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (Board "must determine all potential claims raised by the evidence, applying all relevant laws and regulations, regardless of whether the claim [is] specifically labeled"); see also Boggs v. Peake, 520 F.3d 1330, 1337 (Fed. Cir. 2008) ("[C]laims based upon distinctly diagnosed diseases or injuries must be considered separate and distinct claims."); Clemons v. Shinseki, 23 Vet.App. 1, 5 (2009)(when determining scope of a claim, Secretary must consider" the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim")."

----------------------------------------------------


Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 09-0192
NORBERT WIECZORKOWSKI, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before KASOLD, Chief Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
KASOLD, Chief Judge: Veteran Norbert Wieczorkowski appeals through counsel
that part
of a December 22, 2008, decision of the Board of Veterans' Appeals (Board)
that denied service
connection for hearing loss and tinnitus, and denied Mr. Wieczorkowski's
attempt to reopen his
claims for benefits for a low-back disability and bilateral pes planus.1
Mr. Wieczorkowski contends
that the Board erred by failing to (1) provide a VA medical examination
for his claims for benefits
for hearing loss and tinnitus, (2) reopen his claim for benefits for a low-
back disability, and (3)
reopen his claim for benefits for pes planus, or, in the alternative,
liberally construe his request for
benefits for a foot condition as a new claim for peripheral neuropathy.
The Secretary disputes these
contentions. Single-judge disposition is appropriate. Frankel v. Derwinski,
1 Vet.App. 23, 25-26
(1990). For the reasons stated below, the Board's decision will be in part
affirmed, and in part set
aside and the matters remanded for further adjudication.
Pes planus is more commonly known as flatfoot. See DORLAND'S ILLUSTRATED
MEDICAL DICTIONARY
1441 (31st ed. 2007) [hereinafter DORLAND'S].
1


I. Hearing Loss and Tinnitus
The Board's statement is inadequate with regard to its denial of Mr.
Wieczorkowski's claim
for benefits for hearing loss and tinnitus. Specifically, although the
Board found no record evidence
of any complaints of hearing loss or tinnitus, it failed to discuss or
assess the credibility of Mr.
Wieczorkowski's hearing testimony that he has had periodic hearing loss
since he first experienced
such hearing loss in the service. See Record (R.) at 278-79 ("When I was
in the service and we came
back from that maneuver, I couldn't hear . . . . I told the commanding
officer, I can't hear you talking
. . . . [A]t times I still get this lack of hearing."). The Board's
failure to discuss this potentially
favorable evidence frustrates judicial review. See Thompson v. Gober, 14
Vet.App. 187, 188 (2000)
(Board must provide an adequate statement of reasons or bases "for its
rejection of any material
evidence favorable to the claimant"); Allday v. Brown, 7 Vet.App. 517, 527 (
1995) (Board's
statement "must be adequate to enable a claimant to understand the precise
basis for the Board's
decision, as well as to facilitate review in this Court"); Ashley v. Brown,
6 Vet.App. 52, 56 (1993)
(Board must address sworn testimony of claimant). Remand is warranted.
Tucker v. West, 11
Vet.App. 369, 374 (1998) (remand is appropriate "where 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").
II. Low-Back Disability
Mr. Wieczorkowski initially was denied entitlement to benefits for a low-
back disability in
an unappealed and final 1955 rating decision. R. at 484; see DiCarlo v.
Nicholson, 20 Vet.App. 52,
55-56 (2006) (an unappealed decision becomes final at the expiration of
the time of appeal). He
attempted to reopen his claim in 1997, but it was rejected in a 1999 Board
decision, which noted
that, although newlysubmitted evidence demonstrated a current back
disability and service medical
records noted a bruised back, a nexus between the disability and service
was still lacking, and thus
the new evidence was "not so significant that it must be considered to
fairly decide the merits of the
claim." R. at 174 (citing 38 C.F.R. § 3.156(a) (1999) (defining "new and
material" evidence as, inter
alia, "evidence . . . which by itself or in connection with evidence
previously assembled is so
significant that it must be considered in order to fairly decide the
merits of the claim")); see R. at
2


169, 171. Mr. Wieczorkowski did not appeal that decision and it became
final. DiCarlo, supra.
Mr. Wieczorkowski again sought to reopen his claim in 2004, but his
attempt was rejected
in the Board decision on appeal because the newly submitted evidence – a
fellow soldier's lay
statement documenting Mr. Wieczorkowski's in-service injury ("buddy
statement") – (1) was
cumulative and (2) did not raise a reasonable possibility of
substantiating the claim because it did
not provide a nexus between the current disability and service. R. at 11.
Mr. Wieczorkowski correctly points out that the buddy statement comes from
a different
sourcethanMr.Wieczorkowski'sprevioustestimonyregardinghis in-serviceinjury,
andis therefore
corroborative, not merely cumulative of the fact that Mr. Wieczorkowski
suffered an in-service
injury. See Forrest v. Brown, 4 Vet.App. 276, 279 (1993) (statements from
a former military
policeman and a social worker, although "similar" to statements by the
veteran previously in the
record, are "corroborative statements from different sources, and thus
cannot be rejected as 'merely
cumulative'"); Paller v. Principi, 3 Vet.App. 535, 538 (1992) (finding a
newly submitted statement
by a doctor whose own testimony was previously of record "cumulative," but
a newly submitted
statement from a different doctor "corroborative"); R. at 32-33.
Despite the Board's incomplete characterization of the buddy statement,
however, Mr.
Wieczorkowski has not demonstrated that the buddy statement constitutes "
material" evidence
sufficient to reopen his claim. 38 C.F.R. § 3.156(a) (2010) (material
evidence "relates to an
unestablished fact necessaryto substantiate the claim"). Although the
buddystatement corroborated
an in-service injury, it did not address the unestablished fact when his
claim was last denied in 1999,
to wit: nexus between Mr. Wieczorkowski's current disability and his
service. See Bostain v. West,
11 Vet.App. 124, 127 (1998) (noting that the "last final disallowance" of
a claim was the denial of
a request to reopen the claim); Evans v. Brown, 9 Vet.App. 273, 285 (1996) (
holding that evidence
must be new and material "since the time that the claim was finaly
disallowed on any basis, not only
since the time that the claim was last disallowed on the merits"),
overruled, in part, on other grounds
by Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998); see also Anglin v. West,
203 F.3d 1343, 1347
(Fed. Cir. 2000) (stating that Hodge did not overrule the aforementioned
part of Evans). As such,
Mr. Wieczorkowski fails to demonstrate that the buddy statement
constitutes material evidence or
that the Board erred in not reopening his claim. See Hilkert v. West, 12
Vet.App. 145, 151 (1999)
3


(en banc) (appellant bears burden demonstrating error on appeal).
Mr. Wieczorkowski also argues that Previous DocumentShadeNext Hit v. Shinseki, 24 Vet.App. 110, 119-
20 (2010), is
controlling here, and supports the reopening of his claim. Previous HitShadeNext Hit, however,
is inapposite. Previous HitShadeNext Hit
involved a claim that had been denied for lack of evidence of a current
disability and any nexus
between the asserted disability and service. Id. at 119. In support of
reopening the claim, the
claimant submitted evidence of a current disability of the same type he
had in service. Id. at 120.
Previous HitShadeNext Hit clarified that in such cases medical evidence of a nexus was not
needed to reopen the claim.
Id. Rather, as long as there was evidence of record of an in-service
disability and new and material
evidence of a current disabilityof the same type, there wasa "reasonable
possibilityof substantiating
the claim" which warranted reopening the claim. Id. at 119-20.
In contrast to Previous HitShadeNext Document, where new and material evidence was submitted with
regard to a factor
upon which the claim previously had been denied, Mr. Wieczorkowski
submitted no new and
material evidence with regard to the only factor upon which his claim
previously had been denied,
to wit: nexus. Otherwise stated, Mr. Wieczorkowski's claim previouslywas
denied for lack of nexus
evidence and it could only be reopened with the submission of new and
material evidence on that
issue. See 38 C.F.R. § 3.156(a) (material evidence "relates to an
unestablished fact necessary to
substantiate the claim"). Based on the record on appeal, the Board's
finding that no nexus evidence
was submitted – and therefore new and material evidence warranting the
reopening of his claim had
not been submitted – is plausible and not clearly erroneous, and Mr.
Wieczorkowski fails to
demonstrate Board error in denying the reopening of his claim for benefits
for a low-back disability.
See Woehlaert v. Nicholson, 21 Vet.App. 456, 461 (2007) ("The Court
reviews the Board's
determination of whether new and material evidence has been presented
since a prior adjudication
under the 'clearly erroneous' standard."); Gilbert v. Derwinski, 1 Vet.App.
49, 52 (1990) (Board
finding is not "clearly erroneous" if plausible in light of the record and
absent a firm conviction that
the Board erred); see also Hilkert, supra.
III. "Foot Condition" Claim
Mr. Wieczorkowski initially was denied entitlement to benefits for pes
planus in an
unappealed and final 1955 rating decision, because the condition was a "
developmental abnormality
4


– not a disability under the law." R. at 484; see DiCarlo, supra. He
attempted to reopen his claim
in 1997 (see R. at 428 (stating that "I wish to re-open my claim for . . .
my feet")), but it was rejected
in a 1999 Board decision. In 2004, he filed for benefits for a bilateral
foot condition. See R. at 160
("I am filing a claim . . . for bilateral feet condition."). The Secretary
construed the filing as an
attempt to reopen his pes planus claim. Although Mr. Wieczorkowski argues
that the Secretaryerred
by ultimately not reopening his claim, that argument is not supported by
the record. The Board
found that Mr. Wieczorkowski was diagnosed with peripheral neuropathy and
that none of the
evidence raised a reasonable possibility of substantiating a pes planus
claim. Based on the record
on appeal, that finding, and the finding that new and material evidence
sufficient to reopen the claim
was not submitted, are plausible and not clearly erroneous. See Woehlaert
and Gilbert, both supra.
On the other hand, the record supports Mr. Wieczorkowski's alternative
argument that the Board erred by failing to process his claim as a new claim for benefits for a foot condition, more specifically peripheral neuropathy. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (Board "must determine all potential claims raised by the evidence, applying all relevant laws and regulations, regardless of whether the claim [is] specifically labeled"); see also Boggs v. Peake, 520 F.3d 1330, 1337 (Fed. Cir. 2008) ("[C]laims based upon distinctly diagnosed diseases or injuries must be considered separate and distinct claims."); Clemons v. Shinseki, 23 Vet.App. 1, 5 (2009)(when determining scope of a claim, Secretary must consider" the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim").
The record reflects that Mr. Wieczorkowski described his request for
benefits as a claim "for bilateral feet condition" and did not request "to reopen" his claim, as he did in 1999. R. at 160, 428.
2
The medical reports submitted with Mr. Wieczorkowski's 2004 claim
reflected complaints of
numbness of his feet, which reasonably entails a neuropathic issue. See
DORLAND'S at 1287
(defining neuropathyas, inter alia, "afunctional disturbance or
pathological change in the peripheral
nervous system"); R. at 129 ("He complains of numbness in his feet and
legs. . . . He states that
2
Although the Secretary argues that Mr. Wieczorkowski referred to his claim
as one for a "bilateral flat
feet condition" during the processing of the claim, Mr. Wieczorkowski only
labeled his condition as such after the
Secretary had interpreted his claim erroneously as one for "bilateral
flatfeet." R. at 75 (rating decision); R. at 67
(Notice of Disagreement).
5


initially it was only in his feet but now it has progressed up his legs
."). Moreover, the primary
diagnosis in the submitted medical reports is peripheral neuropathy of the
lower extremities. See R.
at 138 (medical report documenting "residual left leg numbness"), 130 ("
IMPRESSION: 1.
Generalized sensorimotor peripheral neuropathy of lower extremities"), 124 (
medical report listing
his diagnoses, including, "[d]iffuse neuropathy of the lower extremities
by emg without clear
etiology"); see also DORLAND'S at 673 (defining "extremity" as, inter alia,
a "lower limb" or "foot").
In light of the Board's failure to properly identify and adjudicate Mr.
Wieczorkowski's claim for benefits for a foot condition based on peripheral neuropathy, that matter will be remanded. See Boggs, Clemons and Tucker, all supra.

IV. Remand and Conclusion
On remand, Mr. Wieczorkowski may present, and the Board must consider, any
additional evidence and argument in support of the matters remanded. See Kay v.
Principi, 16 Vet.App. 259, 534 (2002). These matters are to be provided expeditious treatment on remand. See 38 U.S.C. § 7112.

Accordingly, that part of the December, 22, 2008, decision of the Board
denying the reopening of Mr. Wieczorkowski's claims for benefits for a low-back
disability and for pes planus is AFFIRMED, and that part of the decision denying serviceconnection for hearing loss and tinnitus, and failing to address his reasonably raised claim for peripheral neuropathy, is SET ASIDE and the
matters REMANDED for further adjudication.
DATED:
April 15, 2011
Copies to:
Virginia A. Girard-Brady, Esq.
VA General Counsel (027)
6

Single Judge Application Shade v. Shinseki, 24 Vet.App., Reopen Claim

Excerpt from Decision Below:

" Nor may the Board decline to reopen claims based on newly submitted evidence if such evidence, combined with VA assistance and considering the other evidence of record, would raise a reasonable possibility of substantiating the claims. See Shade v. Shinseki, 24 Vet.App. 110, 117 (2010) (explaining that § 3.156 creates a low threshold for determining whether new evidence creates a reasonable possibility of substantiating a claim) In 2004, the RO denied the claim for entitlement to service connection for GERD on the basis that "the medical evidence of record fails to show the current diagnosis for this condition, the extent to which it maybe disabling, and whether it is related to an in-service condition," and denied the claim for entitlement to service connection for tinea versicolor on the basis that "the medical evidence of record fails to show that you are currently diagnosed with tinea versicolor or a history of treatment for tinea versicolor from the time
of your separation from service to the present." R. at 657. Thus, the
Board's own statement that the new evidence "shows the veteran was treated for tinea versicolor . . . and GERD" indicates that this new evidence does relate to an unestablished fact necessary to substantiate the claim—a current diagnosis of both tinea versicolor and GERD. See 38 C.F.R. § 3.156(a). Because the Board made the favorable determination that the evidence showed a current diagnosis of GERD and tinea versicolor, and the RO explicitly denied the claims, in part, on the basis
that current diagnoses were lacking, and VA assistance might effectuate proof of a medical nexus and chronicity, the Court concludes that the Board clearly erred in determining that the new evidence was immaterial. See 38 U.S.C. §§ 5108, 7261; 38 C.F.R. § 3.156(a); Shade and Gilbert, both supra"

----------------------------------------------------


Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-1294
WILLIAM L. BROWN, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MOORMAN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
MOORMAN, Judge: The pro se appellant, William L. Brown, appeals an August
29, 2008,
Board of Veterans' Appeals (Board) decision that denied his request to
reopen claims of entitlement
to service connection for tinea versicolor1
and gastroesophageal reflux disease (GERD), denied
entitlementto anincreasedevaluation forservice-connectedhypertension
evaluatedat0%disabling,
and dismissed claims of entitlement to an initial ratingin excess of 10%
for service-connected hallux
valgus2
of the left and right foot because the appellant failed to perfect his
appeal.3
Record (R.) at
Tinea versicolor is: "a common, chronic, usually symptomless disorder,
characterized by macular patches of
various sizes and shapes, with colors from white in pigmented skin to tan
or brown in pale skin. . . ." DORLAND'S
ILLUSTRATED MEDICAL DICTIONARY 1956 (31st ed. 2007)[hereinafter "DORLAND'S
"].
Hallux valgus is: "angulation of the great toe away from the midline of
the body, or toward the other toes; the
great toe may ride under or over the other toes." DORLAND'S at 894.
The Court notes that in the Board's summary of the issues and introduction,
it incorrectly states one issue as
"[w]hether the appellant has submitted a timely notice of disagreement to
a March 2004 rating decision . . . ." when the
actual issue, as discussed correctly within the Board's decision, was
whether the Substantive Appeal had been perfected.
R. at 3; see R. at 4-8 ("In this case, the issue is whether the veteran
filed a timely VA Form 9, substantive appeal; if he
did not, the Board does not have jurisdiction."). The Court concludes the
veteran was not prejudiced by the initial
typographical errors, because, as discussed below, the Board thoroughly
discussed the pertinent issue and made the
correct findings of law and fact as to the issue of whether it had
jurisdiction. See Shinseki v. Sanders, 129 S. Ct. 1696,
1708 (2009) (quoting 38 U.S.C. § 7261(b)(2)).
3
2
1


3-18. The appellant filed an informal brief and a reply brief; the
Secretary filed a brief. This appeal
is timely, and the Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(
a) and 7266(a). A single
judge may conduct this review because the outcome in this case is
controlled by the Court's
precedents and "is not reasonably debatable." Frankel v. Derwinski, 1 Vet.
App. 23, 25-26 (1990).
For the following reasons, the Court will affirm in part and vacate in
part the Board's August 2008
decision, and remand the claims forentitlement to service connection for
GERD and tinea versicolor
and entitlement to a higher disability rating for hypertension.
I. FACTS
Mr. Brown served in the U.S. Navy from December 1989 to December 1993. R.
at 367. In
September 2003, Mr. Brown filed for entitlement to service connection for
hypertension, right hand
disorder, left foot bunion, a skin condition, and gastroenteritis. R. at
931-33. On March 30, 2004,
a VA regional office (RO) issued a decision granting service connection
for hallux valgus of the left
and right foot, each at 10% disabling, hypertension at 0% disabling, and
denying service connection
for contracture of the right 5th finger, GERD, and tinea versicolor. R. at
653-58. In May 2004, Mr.
Brown filed a Notice of Disagreement (NOD) and requested a Statement of
the Case (SOC). R. at
645. On July 23, 2004, VA acknowledged receipt of Mr. Brown's NOD and
provided an SOC. R.
at 615-37. There is no indication in the record that Mr. Brown perfected
his Substantive Appeal to
the Board.
In November 2004, Mr. Brown underwent a VA compensation and pension
hypertension
examination. R. at 593-94. In July 2005, Mr. Brown filed a statement in
support of claim,
requesting VA reopen his claims for a skin condition, hypertension, and
acid reflux based on new
and material evidence. R. at 576-77. On September 26, 2005, VA sent Mr.
Brown a notice letter,
explaining that they were working on his application for an increase in
service-connected
compensationforhypertension andentitlementto
serviceconnectionforGERDandtineaversicolor.
R. at 483-88. In January 2006, Mr. Brown underwent another VA compensation
and pension
hypertension examination. R. at 475-81. A February2, 2006, RO decision
continued the evaluation
of hypertension at 10% disabling and determined that new and material
evidence had not been
submitted to reopen the claims for entitlement to service connection for
GERD and tinea versicolor.
2


R. at 516-19. In March 2006, Mr. Brown filed an NOD as to the denial of a
rating in excess of 10%
for his hypertension and entitlement to service connection for tinea
versicolor and GERD. R. at 468-
69.
In a May 2006 statement in support of claim, Mr. Brown asserted
entitlement to service
connection for pseudofolliculitis barbae.4
R. at 435. On August 14, 2006, the RO denied service
connection for pseudofolliculitis barbae after Mr. Brown failed to appear
for a scheduled VA
examination. R. at 396-97.
In October 2006, Mr. Brown filed an NOD as to the August 14, 2006,
February 2, 2006, and
March 30, 2004, RO decisions. R. at 337-62. In January2007, the RO issued
an SOC as to the issue
of the expiration of the appeal period for the March 30, 2004, RO decision.
R. at 210-18. In
December 2006, Mr. Brown underwent a VA compensation and pension skin
examination. R. at
293-94. He was diagnosed with pseudofolliculitis barbae, acne keloidalis
nuchae, and tinea
versicolor (noted as currently quiescent, but with summertime
exacerbations). R. at 293-94. In
October 2006, Mr. Brown perfected his Substantive Appeal to the Board. R.
at 306-31.
In January 2007, the RO granted entitlement to service connection for
pseudofolliculitis
barbae at 10% disabling, effective May 15, 2006. R. at 219-25. The
appellant subsequently filed
several VA forms asserting various contentions. In turn, the RO issued
several Supplemental
Statements of the Case (SSOC). On January 1, 2008, the Board certified the
appeal as to reopening
the claims for service connection for tinea versicolor and GERD based on
new and material
evidence, an increased rating for hypertension, and the issue of the
expiration of the appeal period
for the March 30, 2004, RO decision. R. at 27. On January 4, 2008, the
appellant underwent a VA
examination for hypertension. R. at 65-70. The 2008 examiner opined "
evaluation for underlying
conditions of kidney disease not found after laboratory evaluation
accomplished with lab as copied
showing normal renal function," and that there was no clinical evidence to
support the diagnosis of
valvular disease. R. at 68. Later that month, the RO issued an SSOC that
maintained the rating
evaluation of 0% for hypertension, determined new and material evidence
had not been submitted
to reopen the claims for service connection for tinea versicolor and GERD,
and found that the time
4
Pseudofolliculitis barbae is popularly known as razor bumps. DORLAND'S at
1565.
3


period for submitting a formal appeal for the March 30, 2004, RO decision
had expired. R. at 62-64.
On August 29, 2008, the Board issued the decision here on appeal.
II. ANALYSIS
A. The Hallux Valgus, Tinea Versicolor, and GERD Claims
The appellant argues that the evidence of record reveals he timely
appealed the March 2004
RO decision. See Appellant's Informal (App.) Brief (Br.) at 13-17. The
Secretary counters that the
Board did not clearly err in making the determination that the appellant
failed to file a Substantive
Appeal after the RO issued a July 2004 SOC. Secretary's Br. at 10-13. To
clarify further, the Board
and both parties agree that the appellant filed a timely NOD as to the
March 2004 RO decision. See
R. at 7; App. Br. at 13-14; Secretary's Br. at 10. However, the crux of
the issue is whether the
appellant perfected his Substantive Appeal. See Jarrell v. Nicholson, 20
Vet.App. 326, 331 (2006)
(en banc) ("The request for appellate review by the Board is initiated by
filing an NOD and is
completed by filing a Substantive Appeal."). The RO explained in a January
2007 SOC that the
appeal period for its March 2004 decision had expired. R. at 210-18.
Further, the evidence of
record, as well as the appellant's recital of the evidence (see App. Br.
at 13-14), does not indicate that
the appellant perfected his appeal of the March 2004 RO decision to the
Board within the requisite
time period. See 38 U.S.C. § 7105(d)(3); 38 C.F.R. § 20.302(b)(1) (2010).
Should the Board determine that VA has closed the appeal for failure to
file a timely
Substantive Appeal,"the Board may decline to exercise jurisdiction over
the appeal as a prudential
matter." Percy v. Shinseki, 23 Vet.App. 37, 46 (2009). Further, it is the
Board's province to
determine whether the appellant timely perfected his appeal. See 38 U.S.C.
§ 7105(d)(3) ("The
[RO] may close the case for failure to respond after receipt of the [SOC],
but questions as to
timeliness or adequacy of response shall be determined by the Board
. . . ."). Thus, based on the
evidence of record, the Court cannot conclude that the Board clearly erred
in determining that the
appeal as to the March 2004 RO decision was not perfected, that it did not
have jurisdiction over the
claims of an initial rating in excess of 10% for service-connected hallux
valgus of the left and right
feet, and that the initial issue as to the claims of entitlement to
service connection for tinea versicolor
and GERD was whether new and material had been presented to reopen. See 38
U.S.C. § 5108;
4


United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); Gilbert v.
Derwinski, 1 Vet.App. 49,
52 (1990); R. at 7-8. The Board's determination that it did not have
jurisdiction over the hallux
valgus claims is affirmed.
However, the Secretaryconcedes that the Board's 2008 decision should be
remanded in part,
because the Board failed to provide an adequate statement of reasons or
bases to support its finding
that new and material evidence had not been submitted to reopen the claims
for tinea versicolor and
GERD. Secretary's Br. at 14-18. On further review, it is evident that the
Board's determination
involves more than an inadequate statement of reasons or bases.
"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."
38 U.S.C. § 5108. "New" evidence means existing evidence not previously
submitted to Agency
decisionmakers. 38 C.F.R. § 3.156(a) (2010). "Material evidence means
existing evidence that, by
itself or whenconsideredwith previous evidence of record, relates to an
unestablished fact necessary
to substantiate the claim." Id. Such 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." Id. The
Court reviews whether an
appellant has submitted new and material evidence to reopen a previously
denied claim under the
"clearlyerroneous"standardofreview,where,ashere,thenew-and-material-
evidencedetermination
is "'fact intensive' and . . . requires 'the weighing of conflicting
evidence and testimony.'" Suaviso
v. Nicholson, 19 Vet.App. 532, 533 (2006) (quoting Prillaman v. Principi,
346 F.3d 1362, 1367
(Fed. Cir. 2003)); see 38 U.S.C. § 7261(a)(4); Elkins v. West, 12 Vet.App.
209, 217 (1999) (en banc)
("[W]e hold that new-and-material-evidence determinations will now
generally be reviewed under
a deferential standard and that the standard will ordinarily be the
'clearly erroneous' standard.");
Gilbert, supra.
In this case, the Board found the submitted evidence to be "new," but
stated:
[T]he Board finds that this evidence is not material. The submitted
evidence merely
shows that the veteran was treated for tinea versicolor beginning in 2005,
and GERD
beginning in 2006. This is at least 12 years after separation from service,
and none
of the medical evidence contains competent evidence to show that the
veteran has
tinea versicolor, or GERD, that is related to his service. The Board
therefore finds
that the submitted evidence does not raise a reasonable possibility of
substantiating
5


the claims.
R. at 11. This analysis is primarily flawed because it indicates the Board
failed to take into account
the RO's 2004 final denial of these two claims. The Board may not refuse
to reopen a claim on a
different basis than the one on which the claim was originally denied. See
Molloy v. Brown,
9 Vet.App. 513, 516 (1996) (concluding that "where evidence supports
service incurrence of an
injury, the Board may not, on the one hand, deny the claim for lack of
medical evidence and later, when medical evidence is submitted, refuse to reopen the claim due to the lack of evidence of service incurrence."). Nor may the Board decline to reopen claims based on newly submitted evidence if such evidence, combined with VA assistance and considering the other evidence of record, would raise a reasonable possibility of substantiating the claims. See Shade v. Shinseki, 24 Vet.App. 110, 117 (2010) (explaining that § 3.156 creates a low threshold for determining whether new evidence creates a reasonable possibility of substantiating a claim) In 2004, the RO denied the claim for entitlement to service connection for GERD on the basis that "the medical evidence of record fails to show the current diagnosis for this condition, the extent to which it maybe disabling, and whether it is related to an in-service condition," and denied the claim for entitlement to service connection for tinea versicolor on the basis that "the medical evidence of record fails to show that you are currently diagnosed with tinea versicolor or a history of treatment for tinea versicolor from the time
of your separation from service to the present." R. at 657. Thus, the
Board's own statement that the new evidence "shows the veteran was treated for tinea versicolor . . . and GERD" indicates that this new evidence does relate to an unestablished fact necessary to substantiate the claim—a current diagnosis of both tinea versicolor and GERD. See 38 C.F.R. § 3.156(a). Because the Board made the favorable determination that the evidence showed a current diagnosis of GERD and tinea versicolor, and the RO explicitly denied the claims, in part, on the basis
that current diagnoses were lacking, and VA assistance might effectuate proof of a medical nexus and chronicity, the Court concludes that the Board clearly erred in determining that the new evidence was immaterial. See 38 U.S.C. §§ 5108, 7261; 38 C.F.R. § 3.156(a); Shade and Gilbert, both supra. Because the new evidence is material, the claims for tinea versicolor and GERD must be remanded for further development and readjudication. See Molloy, 9 Vet.App. at 517. The appellant is free to submit additional evidence and raise his arguments to the Board on remand; and the Board is required to
6


consider them as it provides expeditious treatment of this matter. See 38
U.S.C. § 7112; Kay v.
Principi, 16 Vet.App. 529, 534 (2002); Kutscherousky v. West, 12 Vet.App.
369, 372 (1999) (per
curiam order); see also Mahl v. Principi, 15 Vet.App. 37, 38 (2001) (per
curiam order) (explaining
"if the proper remedyis 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").
B. The Hypertension Claim
The appellant argues that the Board clearly erred in determining he was
not entitled to a compensable disability rating for his service-connected hypertension. See App. Br. at 24-26. Under 38 C.F.R. § 4.104, Diagnostic Code (DC) 7101 (2010), hypertensive vascular disease is given a 10% disability rating if diastolic pressure is predominantly 100 or more, or systolic pressure is
predominantly 160 or more. As a reminder to both parties and the Board:
when blood pressure (BP) readings are written as a fraction, the systolic pressure comes before the diastolic pressure. See WEBSTER'S MEDICAL DESK DICTIONARY 80-81 (1986).
The appellant does not cite to evidence that indicates the Board clearly
erred in its determination that "the medical evidence does not show that the veteran
predominantly has had a diastolic pressure of 100 or more, or a systolic pressure of 160 or more." R. at 13-14 (emphasis added); see App. Br. at 24-25 (listing five separate BP readings over the course of two years that show a diastolic pressure of less than 100 and systolic pressure of less than 160, and listing the readings from a 2008 VA examination in which the average systolic pressure was greater than 160).
However, the Board failed to provide the appellant with an accurately worded analysis of the evidence, transposing the words diastolic and systolic when stating that: "VA progress notes, dated between July 2004 and 2007, contain 24 blood pressure readings, in which the diastolic readings ranged from 112-168, and the systolic readings ranged from 55 to 100." R. at 13. Upon review of the record, it is clear that the BP readings showed systolic readings of 112-168, and diastolic
readings of 55-100. See R. at 97-98 (December 2006 BP reading of 140/100),
103 (April 2007 BP reading of 112/70), 229-33 (December 2006 BP readings of 150/82, 144/86); 235-38 (May 2006 BP readings of 146/61, 131/55); 241-44 (January 2006 BP readings of 151/89, 150/90, 150/81), 246 (October 2005 BP reading of 168/92 listed on December report), 250 (March 2005 BP reading of 131/84, June 2005 BP reading of 156/84), 255 (March 2005 BP reading of 130/100), 260-61
7


(December 2004 BP readings of 152/88, 140/96), 262 (November 2004 BP
reading of 128/80), 263-64 (October 2004 BP readings of 146/86, 128/79), 266-73 (September 2004 BP readings of 142/89, 149/79, 153/85, 133/80). One such transcription might be easily explained, but the Board further states that there were only "two systolic readings of 100" in March 2005 and December 2006. R. at 13. In March 2005 and December 2006 there were only two diastolic readings of 100. R. at 97-98, 255.
The Board is required to provide a written statement of the reasons or
bases for its findings and conclusions on all material issues of fact and law presented on the record; the statement must be adequate to enable a claimant to understand the precise basis for the Board's decision, as well as to facilitate review in this Court. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Simon v. Derwinski, 2 Vet.App. 621, 622 (1992); Gilbert v.
Derwinski, 1 Vet.App. 49, 57 (1990). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide
the reasons for its rejection of any material evidence favorable to the
claimant. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Gabrielson v. Brown,7 Vet.App.36,39-40 (1994); Gilbert, supra. Based on the Board's analysis, the Court cannot conclude that the Board's statement was adequate to enable the claimant to understand the precise basis for its decision to deny an increased rating for service-connected hypertension. Allday, supra.
Nor did the Board's analysis facilitate review in this Court. Id. On remand, the Board is required to provide a concise and accurate rationale for its determination as to the claim for a compensable rating for hypertension.

III. Pseudofolloculitis Barbae and Other Claims
The appellant appears to argue that the Board clearly erred in not
granting a 60% disability rating for his service-connected pseudofolloculitis barbae. See App. Br. at 19. However, a letter from the VA Deputy Chief Chairman filed with this Court on April 14, 2009, states that the appellant's contentions regarding his pseudofolliculitis barbae claim "will be the subject of a supplemental [Board] decision." There is no indication in the record that
such a supplemental
decision has been issued. Because there is no evidence that a final
determination was made by the
Board in regard to this particular claim, the Court cannot conclusively
determine it has jurisdiction.
8


If the Board has failed to provide a supplemental decision at the time of
this decision, it is urged to
do so expeditiously. If the Board has issued a supplemental decision and
the appellant disagrees
with it, the appellant must follow the Rules of Practice and Procedure of
this Court to seek relief.
See U.S. VET. APP. R. 3.
The appellant argues a broad array of additional issues on appeal. However,
only the claims and issues that were properly before the Board when it made its August 29, 2008, decision are under review before this Court. See Jarrell, supra. There is no evidence that the appellant's arguments that he should be service connected (either directly or indirectly) for contracture of the right 5th finger,
tender bladder, back pain,hepatitis C, "PUD,"Helicobactor gastritis,
Abnormal stomach lymphoma, ulcer, chronic allergic rhinitis, acute sinusitis, "HTN," bronchitis, sinus tachycardia, poor lung inspiration, broken bones, joints, other deformities, foot trouble, difficulties due to foot surgery, and
hearing loss, were matters that were subject to any RO decision appealed
to the Board. See App. Br. at 34. Thus, they are outside the Court's jurisdiction at this time. See 38 U.S.C. § 7105(a); Tyrues v. Shinseki, 23 Vet.App. 166, 178 (2009) ("[T]his Court's jurisdiction is
controlled by whether the
Board issued a 'final decision'-i.e., denied relief by either denying a
claim or a specific theory in
support of a claim and provided the claimant with notice of appellate
rights."); Velez v. West, 11
Vet.App. 148, 158 (1998) (explaining that, when the Court can find no
jurisdiction-conferring NOD
in the record as to the RO's failure to adjudicate a secondary-service-
connection claim, such a claim is not properly before the Court); see also Brokowski v. Shinseki, 23 Vet. App. 79, 88-89 (2009) (cautioning that language such as "[all disabilities of record] or the indiscriminate inclusion of materials with an application for benefits cannot be used as a pleading device to require the Secretary to conduct an unguided safari . . . to identify all conditions for which the veteran may . . . assert entitlement to a claim for disability compensation"). If the appellant believes that he has reasonably raised these claims to the RO and they remain pending and unadjudicated, he should seek adjudication below at VA. See DiCarlo v. Nicholson, 20 Vet.App. 52, 56 (2006). If he has initiated a timely NOD as to any of these claims and the Secretary has failed to process the claims, "then the claimant can file a petition with this Court challenging the Secretary's
refusal to act." Id. at 56-57.
The appellant is cautioned, however, that such a petition must follow this
Court's Rules of Practice
and Procedure—in particular, Rule 21. See U.S. VET. APP. R. 21 (
requirements include: petition
9


must state precise relief sought, state the facts necessary to understand
the issues presented by the
petition, state reasons why petition should be granted, and include an
appendix of necessary
documents; and the petition may not exceed 20 pages.).
IV. Additional Arguments
The appellant requests reversal and "overall 100% service connection as of
July, 1995 with
interest." App. Br. at 33-34; see App. Reply Br. at 14. Remand is
generally the appropriate remedy
when the Board has incorrectly applied the law, failed to provide adequate
reasons or bases for its determinations, or where the record is otherwise inadequate. Gutierrez v. Principi, 19 Vet.App. 1, 10 (2004) (citing Falk v. West, 12 Vet.App. 402 (1999)); see also Tucker v. West, 11 Vet.App. 369, 374 (remanding to permit the Board to make the appropriate required determinations under the correct legal standards). As the above analysis indicates, remand is the proper remedy for the claims of tinea versicolor, GERD, and hypertension.
The appellant also requests that the Secretary be sanctioned for "abuse of
process." App. Br. at 33. From what the Court can discern of the appellant's argument, he believes that because VA had "ample opportunity" to resolve his claims prior to this appeal, sanctions are warranted. See id. In order for sanctions to be considered, the conduct at issue must actually have abused the judicial process. See Pousson v. Shinseki, 22 Vet.App. 432, 437 (2009). The merefact that VA did not grant the appellant's claims prior to his appeal to this Court is not sufficient
reason for sanctions, and this
request must be denied.
III. CONCLUSION
After consideration of the appellant's and the Secretary's briefs, and a
review of the record,
the Board's August 29, 2008, is VACATED in part, and REMANDED as to the
matters of tinea
versicolor, GERD, and hypertension. The remainder of the Board's August 29,
2008, decision is
AFFIRMED.
DATED: January 31, 2011
10


Copies to:
William L. Brown
General Counsel (027)
11