Veteranclaims’s Blog

December 30, 2010

Application of Shade v. Shinseki, Single Judge Decision, ReOpen When Evidence Triggers Duty to Assist or Raises New Theory of Entitlement

New evidence will be considered material if it “by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.” 38 C.F.R. § 3.156(a);see Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). Evidence that triggers the duty to assist and evidence that raises a new theory of entitlement are each sufficient to reopen a claim. Shade v. Shinseki, ___ Vet.App. ___ 2010 U.S. App. Vet. Claims LEXIS 1982, *33, *39 (No. 08- 3458 Nov. 2, 2010).
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-3227
RALPH E. LOCKAMY, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before LANCE, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
LANCE,Judge: Theappellant, RalphE.Lockamy,throughcounsel,appealsa July14,
2009,
Board of Veterans’ Appeals (Board) decision that denied reopening a claim
of entitlement to service
connection for osteoarthritis, also claimed as degenerative arthritis, and
that denied service
connection for an acquired psychiatric disorder secondaryto a service-
connected disability. Record
(R.) at 3-25. Single-judge disposition is appropriate. See Frankel v.
Derwinski, 1 Vet.App. 23, 25-
26 (1990). This appeal is timely, and the Court has jurisdiction over the
Board decision pursuant
to 38 U.S.C. §§ 7252(a) and 7266. For the reasons set forth below, the
Court will vacate the July
14, 2009, decision and remand the matter for further proceedings
consistent with this decision.
I. FACTS
The appellant served on active duty in the U.S. Marine Corps from January
1969 to July
1969. R. at 958. On May 27, 1969, the Physical Evaluation Board (PEB)
determined that the
appellant was unfit to perform the duties of his rank due to physical
disabilityand the PEBdiagnosed
the appellant with rheumatoid arthritis. R. at 1397. On January 7, 1970, a
VA regional office (RO)
granted service connection for rheumatoid arthritis with a noncompensable
disability rating. R. at
1367-68. On December 3, 1992, the RO denied entitlement to service
connection for osteoarthritis,

R. at 1232-1233, and this decision became final. The RO denied the claim
for an increased rating
for rheumatoid arthritis because there was no active symptomatology for
rheumatoid arthritis. R. at
1233. The RO also denied service connection for osteoarthritis because
service medical records
(SMRs) revealed no complaints, treatment, or diagnosis of osteoarthritis
and the RO denied service
connection because the osteoarthritis was not “incurred or aggravated by
service nor manifested to
a compensable degree within one year subsequent to service for entitlement
to service connection
on a presumptive basis.” Id.
On February 2, 2002, the appellant filed a claim with the St. Petersburg,
Florida, RO for
increase in his disability rating for service-connected arthritis and also
claimed that his arthritis had
been incorrectly classified as rheumatoid arthritis and was, instead,
degenerative arthritis.1
R. at
1219-21. The veteran also claimed a mental disorder secondary to his
physical pain. Id. The
veteran claimed he had suffered from the same arthritis problems for 35
years and that the stiffness
in his joints remained unchanged, except to worsen, since discharge from
service. R. at 1006. On
November 16, 2002, the RO ordered a compensation and pension (C&P)
examination and the VA
examiner stated that the appellant may have an inflammatory arthritis, but
he disagreed with the
appellant’s historyof rheumatoid arthritis diagnoses. R. at 1161-63. The
examiner for a March 2005
C&P examination also stated that the appellant did not have rheumatoid
arthritis. R. at 1003. In a
July 2007 Board hearing, the veteran reiterated that he thought he had
been misdiagnosed and that
the arthritis from which he currently suffered was the same disease from
which he suffered in 1969.
R. at 546-60. In its July 14, 2009, decision, the Board stated that “[t]he
previously considered
evidence showed that the [v]eteran had a diagnosis of osteoarthritis, but
failed to show such in
service or within one year following separation from service, and failed
to relate the claimed
osteoarthritis disability to service or to service-connected rheumatoid
arthritis.” R. at 14.
1
Degenerative arthritis is defined as osteoarthritis in Dorland’s
Illustrated Medical Dictionary 152 (31st ed. 2007).
In Steadman’s Medical Dictionary 149 (27th ed. 2000), osteoarthritis is
given as a synonym for degenerative
arthritis.

II. ANALYSIS
A. Claim to Reopen
The appellant argues that the Board erred in denying reopening his claim
for osteoarthritis,
also claimed to be degenerative arthritis, because his lay testimony
constitutes new and material
evidence. Appellant’s Br. at 9-12.
TheSecretarymustreopenapreviouslyandfinallydisallowedclaimwhen”
newandmaterial
evidence” is presented or secured. 38 U.S.C. §§ 5108, 7104(b), 7105(c);
38 C.F.R. § 3.156(a)
(2010). New evidence is “evidence not previouslysubmitted to
agencydecision makers.” 38 C.F.R.
§ 3.156(a); see Elkins v. West, 12 Vet.App. 209, 216 (1999). New evidence
will be considered material if it “by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.” 38 C.F.R. § 3.156(a);see Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). Evidence that triggers the duty to assist and evidence that raises
a new theory of entitlement are each sufficient to reopen a claim. Shade v. Shinseki, ___ Vet.App. ___ 2010 U.S. App. Vet. Claims LEXIS 1982, *33, *39 (No. 08- 3458 Nov. 2, 2010).

Service connection may be established by showing continuity of
symptomatology, which requires a claimant to demonstrate(1)that a conditionwas “noted” during service;(2) evidence of postservice continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. Barr v. Nicholson,
21 Vet.App. 303, 307 (2007); see Davidson v. Shinseki, 581 F.3d 1313, 1316 (
Fed. Cir. 2009);
Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. §
3.303(b) (2010).
Despite the appellant appearing to have evidence that might support an
award of service
connection under continuity of symptomatology, if that evidence is found
to be credible, the Board
failed to examine it as a possible theory of entitlement in its decision.
R. at 3-25. Thus, the Board
has erred, as it is required to discuss all issues and theories that are
reasonably raised by the claimant
or the evidence of record. Robinson v. Mansfield, 21 Vet. App. 545, 552 (
2008). The appellant’s
complaints of arthritis and eventual diagnosis of rheumatoid arthritis
while in service show that the
appellant’s arthritic problems were”noted” in service. His testimony is
supported by the medical
evidence that he never had rheumatoid arthritis and suggests that his
history of symptoms are all
related to the same condition. It is the duty of the Board to evaluate the
appellant’s lay statements
that he had suffered from the same arthritis problems for 35 years and
that the stiffness in his joints

had remained unchanged, except to worsen, since discharge from service.
Further, if an adequate medical opinion relates the appellant’s history of symptoms since service to his current condition, then it need not address the issue of nexus to be sufficient to grant service connection.
The Court notes that it is concerned the Board decision on appeal does not
address the appellant’s claim for an increased rating for his rheumatoid arthritis.
That claim appears to be inextricably intertwined with the one on review. Even if that claim was never appealed to the Board, the findings made in that claim and its outcome may well be relevant to this appeal. On the one hand, the appellant cannot receive compensation twice for the same symptoms under the different diagnoses. See Esteban v. Brown, 6 Vet.App. 259, 261 (1994); 38 C.F.R. § 4.14 (2010). On the other hand, the Secretary should not be denying the claim for an increased rating by attributing his symptoms to osteoarthritis, while simultaneously denying service connection by attributing his symptoms to rheumatoid arthritis. See DiCarlo v. Nicholson, 20 Vet.App. 52, 55 (2006).
Ultimately, the appellant is seeking compensation for his symptoms
regardless of diagnosis, see Clemons v. Shinseki, 23 Vet.App. 1, 3 (2009), and the decisions should treat them in a consistent and coherent manner.
B. Secondary Service Connection for a Psychiatric Disorder
The appellant states that his claim for secondary service connection for
his mood disorder
is dependant on the reopening of his primaryclaim for osteoarthritis and
that “[t]he fate of this claim necessarily suffers the fate of the primary claim.” Appellant’s Br. at 13.
The Court agrees. On remand, after evaluating the theory of continuity of symptomatology for the appellant’s osteoarthritis, the Board shall determine whether the appellant should be awarded secondary service connection for a psychiatric disorder.
On remand, the appellant is free to submit additional evidence and
argument, including the arguments raised in his briefs to this Court, in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order), and the Board must consider any such evidence or argument submitted. See Kay v. Principi, 16 Vet.App. 529, 534 (2002).
The Board shall proceed expeditiously, in accordance with 38 U.S.C. §§ 5109B, 7112 (requiring Secretary to provide for “expeditious treatment” of claims remanded by Board or Court).

III. CONCLUSION
After consideration of the appellant’s and the Secretary’s briefs, and a
review of the record, the Board’s July 14, 2009, decision is VACATED and the matter is REMANDED to the Board for further proceedings consistent with this decision.
DATED: December 13, 2010
Copies to:
Matthew D. Hill, Esq.
VA General Counsel (027)

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