Veteranclaims’s Blog

April 8, 2020

Single Judge Application; § 3.156; Reopen claim; Shade v. Shinseki, 24 Vet.App. 110, 117 (2010) (holding that § 3.156(a) “suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim”); the language of § 3.156(a) did “not require new and material evidence as to each previously unproven element of a claim”; instead, it compelled reopening whenever a claimant submitted new and material evidence “as to an unestablished fact from the previously denied claim.” Shade, 24 Vet.App. at 121;

Filed under: Uncategorized — Tags: — veteranclaims @ 12:13 am

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-0529
THOMAS W. STALLINGS, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before FALVEY, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
FALVEY, Judge: Air Force veteran Thomas W. Stallings appeals through counsel a
September 26, 2018, Board of Veterans’ Appeals decision that found that new and material
evidence had not been submitted to reopen claims based on low back problems and bilateral
hearing loss and, in addition, denied service connection for Meniere’s disease.1 This appeal is
timely, the Court has jurisdiction to review the Board’s decision, and single-judge disposition is
appropriate. See 38 U.S.C. §§ 7252(a), 7266(a); Frankel v. Derwinski, 1 Vet.App. 23, 25-26
(1990).
We are asked to decide whether the Board correctly denied reopening of the previously
denied claims based on low back problems and bilateral hearing loss. We are also asked to decide
whether the Board properly denied service connection for Meniere’s disease. Regarding the low
back claim, the Board clearly erred in finding that new and material evidence had not been
1 The Board also reopened and remanded a claim based on bursitis and tendonitis of the right shoulder. We
may not disturb the Board’s favorable finding regarding reopening, see Medrano v. Nicholson, 21 Vet.App. 165, 170-
71 (2007), and we lack authority to address its nonfinal remand decision, see Breeden v. Principi, 17 Vet.App. 475,
478 (2004) (a Board remand “does not represent a final decision over which this Court has jurisdiction”). Additionally,
the Board remanded matters based on upper thoracic and cervical musculoskeletal strain, degenerative disc disease,
shoulder disabilities, and a neurological disability of the bilateral upper extremities. We lack authority to address these
nonfinal decisions. See Breeden, 17 Vet.App. at 478.
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submitted. However, we find no error regarding the Board’s bilateral hearing loss and Meniere’s
disease determinations. Thus, we will reverse the Board’s denial of reopening for the low back
claim, but affirm the remainder of the decision that is before us on appeal.
I. ANALYSIS
A. Denials of Reopening of Low Back and Bilateral Hearing Loss Claims
Mr. Stallings argues that the Board erred in finding that new and material evidence had not been submitted to reopen his previously denied claims based on low back problems and bilateral hearing loss. During the pendency of this claim, VA was required to reopen a previously and finally disallowed claim when “new and material evidence” was presented or secured. 38 U.S.C. §§ 5108,
7104(b), 7105(c); 38 C.F.R. § 3.156(a) (2018). To satisfy these requirements, the evidence needed to be “both new and material.” Smith v. West, 12 Vet.App. 312, 314 (1999). “New and material evidence” was 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); see Shade v. Shinseki, 24 Vet.App. 110, 117 (2010) (holding that § 3.156(a) “suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim”). The language of § 3.156(a) did “not require new and material evidence as to each previously unproven element of a claim”; instead, it compelled reopening whenever a claimant submitted new and material evidence “as to an unestablished fact from the previously denied claim.” Shade, 24 Vet.App. at 121.
The Court reviews for clear error the Board’s determination that a claimant did not submit
new and material evidence sufficient to reopen a previously denied claim. 38 U.S.C. § 7261(a)(4);
see Suaviso v. Nicholson, 19 Vet.App. 532, 533-34 (2006). Under that standard, we may not
reverse a Board finding unless, on review of the entire record, we are left with the definite and
firm conviction that a mistake has been committed. Deloach v. Shinseki, 704 F.3d 1370, 1378-79
(Fed. Cir. 2013). Additionally, the Board must support its determinations with a statement of
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reasons or bases that is adequate to enable an appellant to understand the precise basis for its
decision, as well as to facilitate review in this Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown,
7 Vet.App. 517, 527 (1995).
Here, the Board found that the evidence regarding the veteran’s low back claim was
“essentially cumulative” and, therefore, not new and material. Record (R.) at 16. But the veteran’s
claim previously was denied because a VA examiner found no evidence of back pain since service,
R. at 1209, and the new evidence included the veteran’s statements that he had “constant aching”
in his back, R. at 1166, and had suffered low back pain “on and off for many years,” R. at 501. The
new evidence also included a medical notation of a history of “chronic back pain.” R. at 667. This
evidence is presumed credible for purposes of reopening. See Justus v. Principi, 3 Vet.App. 510,
513 (1992). And, the veteran’s lay statements are competent evidence because they convey his
experience with back pain, which is a matter that is within his personal experience, and there is no
evidence to suggest that such a matter would not be within his experience. See Washington v.
Nicholson, 19 Vet.App. 362, 368 (2005). As the veteran’s claim previously was denied because
there was no evidence of back pain after service, and he subsequently submitted credible and
competent evidence of such pain, the evidence he submitted was new and material. See Shade,
24 Vet.App. at 117. Accordingly, after viewing the evidence in the context of the entire record, we
are left with the definite and firm conviction that the Board erred in finding that new and material
evidence had not been submitted, and we will reverse that determination. See Suaviso, 19 Vet.App.
at 533-34.
However, the Board properly found that new and material evidence had not been submitted
to reopen the bilateral hearing loss claim. In the previous denial, the regional office (RO)
acknowledged that Mr. Stallings had a current hearing loss disability, but denied the claim because
there was “no evidence that the condition permanently worsened as a result of service.” R. at 1209.
The new evidence submitted consists of the veteran’s statement that he currently has “hearing loss
and tinnitus [that] affects my civilian occupation,” and other references to a current disability. R.
at 1166. As the Board adequately explained, this evidence was cumulative because currentdisability
evidence was before the RO at the time of the previous denial. The veteran did not submit
additional evidence showing that his condition worsened during or because of service. His
appellate arguments do not suggest that such evidence exists or was submitted below. See
Appellant’s Brief (Br.) at 7-11. Accordingly, we find that, when viewed in the context of the entire
4
record, the Board did not clearly err in finding that new and material evidence had not been
submitted, and its explanation for this finding is understandable and facilitates judicial review. See
Suaviso, 19 Vet.App. at 533-34; see also Allday, 7 Vet.App. at 527. Mr. Stallings fails to meet his
burden of demonstrating error in the Board’s determinations regarding hearing loss. See Hilkert v.
West, 12 Vet.App. 145, 151 (1999) (en banc) (appellant bears the burden of demonstrating error
on appeal); aff’d per curiam, 232 F.3d 908 (Fed. Cir. 2000).
B. Service Connection for Meniere’s Disease
Mr. Stallings also argues that the Board erred in denying service connection for Meniere’s
disease because it improperly discounted a study by the National Institutes of Health (NIH). The
Board, as finder of fact, has the duty to weigh the evidence. Buchanan v. Nicholson, 451 F.3d
1331, 1336 (Fed. Cir. 2006). “It is not error for the B[oard] to favor the opinion of one competent
medical expert over that of another when the Board gives an adequate statement of reasons and
bases.” Owens v. Brown, 7 Vet.App. 429, 433 (1995). However, because the Board lacks the
qualifications to render medical judgments, it “must consider only independent medical evidence
to support [its] findings rather than provide [its] own medical judgment in the guise of a Board
opinion.” Colvin v. Derwinski, 1 Vet.App. 171, 172 (1990). The Board’s weighing of the evidence
is reviewed for clear error. Owens, 7 Vet.App. at 433.
Here, the Board addressed the NIH study and adequately explained that it accorded more
probative weight to a March 2016 VA medical opinion. Specifically, the Board “acknowledge[d]
. . . that according to the [NIH], Meniere’s disease may be related to ear infections.” R. at 20. The
Board stated that this study was “at best, speculative in nature.” Id. And it accorded more probative
weight to the VA examination because the “VA physician specifically considered all the medical
evidence of record and concluded that there was no evidence connecting Meniere’s disease to
eustachian tube dysfunction or any other incident of service.” Id. This explanation is
understandable and facilitates judicial review, see Allday, 7 Vet.App. at 527; and, considering the
entire record, the Board’s weighing of the evidence is not clearly erroneous, see Owens, 7 Vet.App.
at 433. In sum, we find that the veteran has failed to meet his burden of demonstrating that the
Board erred regarding Meniere’s disease. See Hilkert, 12 Vet.App. at 151.
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II. CONCLUSION
Based on the above, that part of the Board’s decision that found that new and material
evidence had not been submitted regarding a low back condition is REVERSED, and the matter is
REMANDED with instructions to reopen the previously denied claim, and that part of the Board’s
decision that addressed bilateral hearing loss and Meniere’s disease is AFFIRMED.
DATED: April 6, 2020
Copies to:
Jerusha L. Hancock, Esq.
VA General Counsel (027)

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