Veteranclaims’s Blog

November 3, 2011

Single Judge Application, Shade, 24 Vet.App. at 121; Issue of Reopening

Filed under: Uncategorized — veteranclaims @ 5:59 pm

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
NO. 10-2756

Before IVERS, Judge.

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.
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

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.
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
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
necessary to substantiate the claim. New and material evidence can be
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

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

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
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
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

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).
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)

Leave a Comment »

No comments yet.

RSS feed for comments on this post. TrackBack URI

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Powered by