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December 26, 2009

Colvin v. Derwinski, No. 90-196, new and material

Filed under: Uncategorized — Tags: — veteranclaims @ 11:41 pm

U.S. Court of Appeals for Veterans Claims

Search Terms: COLVIN

Note: Pursuant to 38 U.S.C. ù 4067(d) (1988),
this decision will become the decision of the
Court thirty days from the date hereof.


No. 90-196




On Appeal from the Board of Veterans’ Appeals

(Argued December 10, 1990 Decided March 8, 1991)

Mark J. DeFrancisco for appellant.

Joan E. Moriarity, with whom Raoul L. Carroll, General Counsel, Barry
M. Tapp, Assistant General Counsel, and Pamela L. Wood, Deputy Assistant
General Counsel, were on the brief, for appellee.

Before KRAMER, MANKIN, and HOLDAWAY, Associate Judges.

HOLDAWAY, Associate Judge: This case concerns an appeal of a Board of
Veterans’ Appeals (BVA) decision that the veteran had not submitted
evidence that was both new and material with his request to reopen his
claim that he had incurred multiple sclerosis during service. We hold
that the evidence submitted was new and material and provides a basis for
reopening the claim to consider the new evidence in the context of the
other evidence in order to review the former disposition. Further, we
hold that the BVA panels must consider only independent medical evidence
to support their findings rather than provide their own medical judgment
in the guise of a Board opinion. We will remand to the BVA for proper
consideration of all relevant evidence, issues, and regulations in a
manner consistent with this opinion.
The law provides that when new and material evidence is presented or
secured with respect to a claim which has been disallowed, “the [Secretary
of Veterans Affairs] shall reopen the claim and review the former
disposition.” 38 U.S.C. ù 3008 (1988). This review requires a two-step
analysis. “First, the BVA must determine whether the evidence is ‘new and
material’. Second, if the BVA determines that the claimant has produced
new and material evidence, the case is reopened and the BVA must evaluate
the merits of the veteran’s claim in light of all the evidence, both new
and old.” Manio v. Derwinski, U.S. Vet. App. No. 90-86, at 8 (Feb. 15,
1991) (emphasis in the original). See also 38 C.F.R. ù 19.194 (1990).
Service connection may be granted for a disability resulting from
disease or injury incurred or aggravated in service. 38 U.S.C. ù 310 (
1988). In determining whether multiple sclerosis was incurred in or
aggravated by service of more than ninety days during war, the veteran is
given the benefit of a presumption that if he develops multiple sclerosis
to a degree of ten percent within seven years from the date of separation
from service, such disease may be presumed to have been incurred in or
aggravated by service, even though there is no evidence of such disease
during the period of service. 38 U.S.C. ù 312(a)(4) (1988). This
presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.
C. ù 313 (1988).
The veteran served from March 21, 1966, through February 2, 1968.
During his service in the Republic of Vietnam, he was wounded three
separate times: shrapnel wounds to the head and right arm on February 26,
1967; shrapnel wounds to the right leg on March 26, 1967; and shrapnel
wounds to the left forearm on May 10, 1967. On April 27, 1967, he was
treated for a urinary problem that was diagnosed as a kidney stone.
Medical evidence in the record indicates that urinary problems are a
possible precursor of multiple sclerosis. The veteran was also treated
during service for an injury to his right knee caused when it was hit by a
forklift in September or October of 1966.
Lay testimony from the veteran’s mother and ex-wife was submitted
that he complained of blurring eyesight and numbness in his right leg and
foot within two years of his discharge. Such symptoms are also possible
precursors of multiple sclerosis according
to medical evidence in the record. In 1982, the veteran was diagnosed as
having developed multiple sclerosis. It is for that condition that he now
claims service connection.
The first BVA decision in this case was issued on December 10, 1986.
The evidence considered at that time was the service medical records, a
March 22, 1973, Veterans Administration (now Department of Veterans
Affairs) (VA) medical exam showing “joint mice” in the veteran’s right
knee (for which service connection was granted), private hospital records
showing urinary tract problems, several statements from the veteran’s
private physician relating to the diagnosis of multiple sclerosis by that
physician in 1985, the aforementioned letters from the veteran’s mother
about numbness in his right leg and blurriness in his eyesight during the
two years following his discharge, and from the veteran’s ex-wife relating
an incident of numbness in the veteran’s right foot and leg in 1972. The
Board determined that no acceptable medical or lay evidence showed the
characteristic manifestations of multiple sclerosis in the veteran during
his active duty or within the seven-year presumptive period. William M.
ColvinNext Hit, loc. no. 637232 (BVA Dec. 10, 1986). The 1986 BVA decision was
final as there was no judicial review available at that time.
The veteran was examined at a VA facility in March 1987 for purposes
of determining inter alia compensation for the veteran’s knee disability.
As a part of that exam, the veteran was examined by Dr. Kassirer, a
Department of Veterans Affairs neurologist. She stated in her report that
“[t]he patient’s multiple sclerosis began in the infantry while he was in
Vietnam.” The rating decision issued on June 8, 1987, again denied
service connection for the multiple sclerosis. No appeal was taken to the
BVA on this decision.
On August 11, 1988, the veteran submitted a request to reopen his
claim on the basis of new and material evidence and attached a letter
written by Dr. Cohen. The letter stated that Dr. Cohen had reviewed the
veteran’s medical records, including the service medical records, and that
Dr. Cohen “[felt] the [veteran’s] Multiple Sclerosis should be considered
as service connected.” Dr. Cohen also said, “I believe that there is also
a general belief among physicians that stress in the military service can
actually be a precipitating cause of the [multiple sclerosis]; there is
not unanimous agreement on this point.”
The second BVA decision was issued on December 18, 1989. The BVA
considered statements made by the veteran at an appeal hearing, Dr.
Cohen’s letter, 1985 medical records, and a VA medical examination which
revealed a diagnosis of multiple sclerosis. (It is unclear from the
record whether the “diagnosis” referred to was from Dr. Kassirer’s report
of a neurological examination or from the Report of Medical Examination
for Disability Evaluation) The finding of the Board was that “this
evidence, while new, does not pertain to definitive clinical findings and
does not provide a new factual basis so as to permit the grant of service
connection for multiple sclerosis.” William M. Previous HitColvinNext Hit, loc. no. 934615,
at 5 (BVA Dec. 18, 1989). We take this to mean that the BVA did not find
the evidence material.

Part I
The interpretation of a statute is a matter of law. When a
statute uses a broad term such as [new and material], it is
necessary that the administrative body and the court, as joint
instrumentalities of government, fill in the factors which
govern the proper determination of the question presented. In
the first instance the administrative body, presumably expert
in this field, must decide what are the relevant factors or
standards. This determination is not conclusive on the courts
because it is a decision on a question of law.
Louisville and Kentucky R.R. v. Kentucky Railroad Commission, 314 S.W.2d
940, 942 (Ky. Ct. App. 1958).
The BVA’s finding in this case that the veteran’s evidence was not
material was a conclusion of law. Conclusions of law by the BVA are
entitled to no judicial deference by this Court. 38 U.S.C. ù 4061 (1988
New evidence is not that which is merely cumulative of other evidence
on the record. Williams v. Sullivan, 905 F.2d 214, 216 (8th Cir. 1990).
Material evidence is relevant and probative of the issue at hand. Chaney
v. Schweiker, 659 F.2d 676, 679 (5th Cir. 1981). However, not every piece
of new evidence, even if relevant and probative, will justify a reopening
because some evidence is of limited weight and thus is insufficient to
justify a new hearing. Id. The “bright line” rule in other federal
courts is that to justify a reopening on
the basis of new and material evidence, there must be a reasonable
possibility that the new evidence, when viewed in the context of all the
evidence, both new and old, would change the outcome. See Chisholm v.
Secretary of Health and Human Services, 717 F. Supp. 366, 367 (W.D. Penn.
We note that the Secretary of Veterans Affairs has recently
promulgated a definition of “new and material”:
New and material evidence means evidence not previously
submitted to agency decisionmakers which bears directly and
substantially upon the specific matter under consideration,
which is neither cumulative nor redundant, and 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.
55 Fed. Reg. 52,273 (1990) (to be codified at 38 C.F.R. ù 3.156(a)
effective Jan. 22, 1991). We do not find this definition of “new and
material” to be inconsistent with the standard set out in Chisholm that
we adopt here. The “reasonable possibility” standard is clearer and more
easily applied.
It is also important to note that the “benefit of the doubt” standard
applicable to the fact finder in veterans benefits jurisprudence
necessarily lowers the threshold of whether the new and material evidence
is sufficient to change the outcome. See 38 U.S.C. ù 3007(b)(1988);
Gilbert v. Derwinski, U.S. Vet. App. No. 89-53, slip op. at 7 (Oct. 12,
1990). In this case, the new evidence submitted consisted of opinions
from two qualified expert witnesses that the veteran’s multiple sclerosis
was service connected. These opinions were based on possible symptoms of
multiple sclerosis that occurred within the seven-year presumptive period.
Dr. Cohen, an eminent specialist in the field, also stated that multiple
sclerosis may be caused by the stress of military service itself. Neither
of these statements is cumulative of the evidence considered in the 1986
BVA decision. Therefore, as the BVA correctly found, the statements
qualify as “new.” Moreover, both bear directly and substantially (to use
the Secretary’s wording) on the issue in dispute and, if believed, raise
the reasonable possibility of a different decision by the BVA. We hold
that these statements are “material.”

Part II
In discussing Dr. Cohen’s letter, the December 18, 1989, BVA decision
said, “This evidence, while new, does not pertain to definitive clinical
findings and does not provide a new factual basis so as to permit the
grant of service connection for multiple sclerosis.” In attempting to
buttress the finding that the evidence, while new, did not provide a new
factual basis, the opinion went on to say:
We note the veteran’s allegation that a change in refractive
error during service was indicative of multiple sclerosis.
This shift in vision was not attributed to optic neuritis,
often associated with the onset of multiple sclerosis. And,
optic neuritis was not manifested within seven years after
separation from service. Additionally, one episode of burning
on urination during service does not represent either the onset
of multiple sclerosis or bladder dysfunction often associated
with the progression of the disease. Further, an episode of
right foot numbness during 1972 has not been clinically
verified and, without more, in terms of clinical findings,
would not serve to show a definite symptom indicative of early
multiple sclerosis.
William M. Previous HitColvinNext Document, loc. no. 934615, at 5 (BVA Dec. 18, 1989).
The BVA decision does not cite medical evidence of record in this
case or recognized medical treatises to support these medical conclusions.
The BVA, in finding that the new evidence did not provide a new factual
basis for a claim was, in effect, refuting the expert medical conclusions
in the record with its own unsubstantiated medical conclusions. BVA
panels may consider only independent medical evidence to support their
findings. If the medical evidence of record is insufficient, or, in the
opinion of the BVA, of doubtful weight or credibility, the BVA is always
free to supplement the record by seeking an advisory opinion, ordering a
medical examination or citing recognized medical treatises in its
decisions that clearly support its ultimate conclusions. See 38 U.S.C. ù
4009 (1988); Murphy v. Derwinski, U.S. Vet. App. No. 90-107, slip op. at
4 (Nov. 8, 1990). This procedure ensures
that all medical evidence contrary to the veteran’s claim will be made
known to him and be a part of the record before this Court.
Lest we be misunderstood, we are not saying that the BVA was
compelled to accept the opinions of Drs. Cohen and Kassirer. We merely
state that having reached a contrary conclusion, it was necessary for the
panel to state its reasons for doing so and, more importantly, point to a
medical basis other than the panel’s own unsubstantiated opinion which
supported the decision.
REVERSED and REMANDED to the BVA for action consistent with this

1 Comment »

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