Veteranclaims’s Blog

May 26, 2020

Single Judge Application; VA Form 21-4142; RO failed to obtain private medical records on his behalf; “new and material evidence” standard remains applicable for claims to reopen decided prior to February 19, 2019. 38 C.F.R. § 3.156(a); Federal Circuit held in 2018 that pain in the absence of a presently diagnosed condition could, under certain circumstances, qualify as a disability, Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018); the governing law in 2008 was that pain alone could not constitute a disability, Sanchez-Benitez v. West, 13 Vet.App. 282, 285 (1999); evidence submitted after the January 2008 RO decision clearly demonstrated the existence of a current disability; Board’s conclusion that the newly submitted evidence was not material to an unestablished element needed to substantiate the claim is clearly erroneous;

Filed under: Uncategorized — veteranclaims @ 7:28 pm

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 19-2425
EDDIE L. OLIVER, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before BARTLEY, Chief Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

BARTLEY, Chief Judge: Veteran Eddie L. Oliver appeals through counsel a March 12,
2019, Board of Veterans’ Appeals (Board) decision that denied reopening of a claim for entitlement to service connection for a back condition. Record (R.) at 5-11. For the reasons that follow, the Court will reverse the Board’s finding that the veteran did not submit new and material evidence sufficient to reopen the claim for service connection for a back condition and remand the matter for readjudication consistent with this decision.
I. FACTS
Mr. Oliver served honorably on active duty for training (ACDUTRA) from June to August
1980 (basic training) and from July to August 1981 (training as a laundry and bath specialist) with
additional periods of inactive duty for training as a member of the U.S. Army Reserves. R. at 714-
15.1
1 The exact date of the end of Mr. Oliver’s Reserve service is unclear from the record of proceedings. Both
parties state that Mr. Oliver left the Reserves in September 1985, Appellant’s Brief (Br.) at 1, Secretary’s Br. at 2,
which matches the DD Form 214s issued after each period of ACDUTRA, R. at 714-15. But this conflicts with Reserve
records demonstrating assignments as late as April 1989, R. at 804, and Mr. Oliver’s own statement that he left the
Reserves in July 1993, R. at 745.
2
In May 1985, Mr. Oliver sought treatment for back pain and soreness after heavy lifting.
R. at 767. The service clinician documented non-radiating pain at the lumbosacral junction that
increased with deep palpation, but did not affect overall range of motion. Id. The clinician directed
that Mr. Oliver take ibuprofen and refrain from lifting more than 20 pounds for seven days. Id.
In July 2007, Mr. Oliver filed, inter alia, a claim for service connection for back pain, R.
at 743-56, which a VA regional office (RO) denied in January 2008, R. at 709-13. The RO found
that “[a]lthough there is a record of treatment in service for [a] back condition, no permanent
residual or chronic disability subject to service connection is shown by the service medical records
or demonstrated by evidence following service.” R. at 711. Mr. Oliver did not appeal the adverse
RO decision. See R. at 5.
In March 2010, Mr. Oliver, inter alia, sought to reopen the claim for service connection for
a back condition. R. at 515-29. At that time, he stated that he sought treatment after an injury
during basic training and was given a week’s worth of ibuprofen, which decreased his pain. R. atBut he explained that his symptoms returned after discharge and he has since received regular
treatment for back pain. Id.
In October 2010, the RO denied reopening of the claim for service connection. R. at 197-

The RO determined that, although private medical records received since its last decision
documented treatment for low back pain, “the facts remain as before: although there is a record of treatment in service for back pain, no permanent residual or chronic disability subject to service connection is shown by the service treatment records or demonstrated by evidence following service.” R. at 198.
In February 2011, Mr. Oliver filed a Notice of Disagreement. R. at 188. In March 2011, he submitted a statement from his private treating physician, who opined that Mr. Oliver’s “back problems are not accident related, and probably [are] as a result of heavy lifting and stress on [h]is back.” R. at 178. Following an April 2013 Statement of the Case, R. at 159-76, Mr. Oliver
perfected an appeal to the Board in May 2013, R. at 156-58.
During a June 2018 Board hearing, Mr. Oliver testified that he injured his back during a
period of ACDUTRA when he was training as a laundry and bath specialist. R. at 29. He explained
that this training required him to repetitively lift up to 100 pounds. Id. He also explained that,
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although his physicians have attributed his back pain to heavy lifting, they did not single out the
lifting during military service as the source of his injury. R. at 30.
In the March 2019 decision on appeal, the Board denied reopening of the claim for service
connection, finding the evidence received since the January 2008 RO decision cumulative and not material to establishing a link between Mr. Oliver’s back condition and a period of qualifying service. R. at 5-11. This appeal followed.

II. JURISDICTION AND STANDARD OF REVIEW
Mr. Oliver’s appeal is timely and the Court has jurisdiction to review the March 2019 Board
decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
The Board’s determination regarding whether a claimant submitted new and material
evidence is a finding of fact subject to the “clearly erroneous” standard of review. 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 factual 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.'” Hersey v. Derwinski, 2 Vet.App. 91, 94
(1992) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
The Board must support its material determinations of fact and law with adequate reasons
or bases. 38 U.S.C. § 7104(d)(1); Pederson v. McDonald, 27 Vet.App. 276, 286 (2015) (en banc);
Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990).
To comply with this requirement, the Board must analyze the credibility and probative value of
evidence, account for evidence it finds persuasive or unpersuasive, and provide reasons for its
rejection of material evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506
(1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).

III. ANALYSIS
In its decision, the Board determined that the January 2008 RO decision became final
when Mr. Oliver did not appeal. R. at 5. Because service connection for a back condition was previously denied in a final decision, new and material evidence must be submitted after the
4
January 2008 decision before any consideration of the claim on the merits. See 38 U.S.C. § 5108 (“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.”).
Effective February 19, 2019, for claims to reopen decided by the RO prior to February 19,
2019, “new and material evidence” is defined as follows:
New evidence is evidence not previously part of the actual record before agency
adjudicators. 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) (effective Feb. 19, 2019);2 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) “does not require new and material evidence as to each previously unproven element of a claim”; instead, it compels reopening whenever a claimant submits new and material evidence “as to an unestablished fact from the previously denied claim.” Id. at 121.
In its decision, the Board stated that the RO denied service connection in January 2008
“due to insufficient evidence establishing a chronic disability related to a period of qualifying service.” R. at 7. The Board also stated that the evidence associated with the claims file after the
January 2008 RO decision included new medical records, several statements from Mr. Oliver’s
treating physician, and additional lay statements from Mr. Oliver. R. at 8. However, the Board determined that this new evidence was not “material” because the evidence “did not [] address the
unestablished nexus between [Mr. Oliver’s] back disability and a qualifying period of service.” R. at 8.
2 Effective February 19, 2019, VA amended, as relevant, § 3.156(a) as part of the widespread appeals processing changes mandated by the Veterans Appeals Improvement and Modernization Act of 2017, Pub. L. No.
115-55141 Stat. 1105 (Aug. 23, 2017). See VA Claims and Appeals Modernization, 84 Fed. Reg. 138 (final rule)(Jan. 18, 2019); see also 38 C.F.R. § 19.2 (2019) (establishing the effective date). Although effective February 19, 2019, claimants may no longer file to reopen a finally decided claim, see 38 C.F.R. § 3.156(d), the amended regulation notes that the “new and material evidence” standard remains applicable for claims to reopen decided prior to February 19, 2019. 38 C.F.R. § 3.156(a).
5
Mr. Oliver argues, in relevant part, that the Board clearly erred in its determination that the
evidence associated with the claims file after the January 2008 RO decision was cumulative and not material to the unestablished element of linking his current back condition to service, warranting reversal of the Board decision. Appellant’s Br. at 9-13. In the alternative, he argues that
the Board’s reasons or bases for its adverse determination is deficient, warranting remand of the Board decision. Id. at 15-21. The Secretary urges the Court to affirm the Board decision, arguing, in relevant part, that the Board did not err in concluding that the newly submitted evidence was cumulative of evidence already of record and otherwise provided adequate reasons or bases for its decision. Secretary’s Br. at 15-19, 28-29.
The Court concludes that the Board clearly erred in its determination that the newly
submitted evidence was cumulative of evidence already of record in January 2008 and not material to substantiating the claim for service connection. Notably, the Court concludes that the Board misunderstood the bases for the RO’s January 2008 denial of the claim for service connection.
To establish entitlement to service connection, a claimant generally must show
(1) competent and credible evidence of a current disability; (2) medical or lay evidence of inservice incurrence or aggravation of a disease or injury; and (3) competent and credible evidence of linkage between the in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Caluza, 7 Vet.App. at 506.
The evidence before the RO at the time of its January 2008 decision included Mr. Oliver’s
service department records and his July 2007 claim. R. at 709. The May 1985 service record established that Mr. Oliver sought treatment during his Reserve service for back pain triggered by heavy lifting. R. at 767. Other service records reflected that Mr. Oliver worked as a laundry and
bath specialist. R. at 715, 768, 770, 800, 804. The July 2007 claim reflected Mr. Oliver’s intent to seek compensation for back pain, which he contended began during his Reserve service. R. at 743-56.

In denying the claim for service connection, the RO stated that “[a]lthough there is a record of treatment in service for [a] back condition, no permanent residual or chronic disability subject to
service connection is shown by the service medical records or demonstrated by evidence following service.” R. at 711.
The Board construed the RO’s decision as denying the claim based on a lack of evidence
establishing a link between Mr. Oliver’s current back condition and his military service. R. at 7
6
(“The [v]eteran’s initial claim . . . was denied in January 2008 due to insufficient evidence
establishing a chronic disability related to a period of qualifying service.”). But it is clear that the RO denied service connection not only because of a lack of linkage evidence, but also because of a lack of evidence establishing a current disability. This is clear from the RO’s inclusion of language referring to the lack of a “permanent residual or chronic disability.” Notably, although Mr. Oliver included a completed VA Form 21-4142, Authorization and Consent to Release Information to VA, with his claim, allowing the RO to obtain private medical records on his behalf, R. at 757-58 (signed July 12, 2007), the RO did not obtain these medical records and instead stated that Mr. Oliver failed to provide evidence necessary to support the claim, R. at 710; see R. at 731-42 (July 25, 2007, letter from the RO requesting that Mr. Oliver, in pertinent part, complete a VA
Form 21-4142). Thus, the only evidence of record regarding the existence of a current disability was the claim containing a lay assertion of back pain. See R. at 709-10 (January 2008 RO decision listing no medical records among the evidence considered). But that statement by itself could not establish the presence of a current disability, because, although the U.S. Court of Appeals for the Federal Circuit held in 2018 that pain in the absence of a presently diagnosed condition could, under certain circumstances, qualify as a disability, Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018), the governing law in 2008 was that pain alone could not constitute a disability, Sanchez-Benitez v. West, 13 Vet.App. 282, 285 (1999), appeal dismissed in part and vacated in part on other grounds sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001).
As the evidence submitted after the January 2008 RO decision clearly demonstrated the
existence of a current disability, see R. at 8 (Board’s statement that the new medical records regarded “an ongoing degenerative back condition”), the Board’s conclusion that the newly submitted evidence was not material to an unestablished element needed to substantiate the claim
is clearly erroneous.
The Court is therefore left with the firm and definite conviction that the Board
erred in finding that Mr. Oliver had not submitted new and material evidence sufficient to reopen
his previously denied claim for service connection for a back condition. See Gilbert, 1 Vet.App.
at 52. The Court will therefore reverse that finding and direct the Board to reopen the claim. See
Deloach v. Shinseki, 704 F.3d 1370, 1380 (Fed. Cir. 2013); Gutierrez v. Principi, 19 Vet.App. 1,
10 (2004).
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Given this disposition, the Court need not address Mr. Oliver’s additional arguments. Of
note, however, he argues that the Board member who conducted the June 2018 hearing erred when
he failed to fully explain the issue on appeal and failed to suggest the submission of evidence that
Mr. Oliver might have overlooked. Appellant’s Br. at 13-15. To the extent that Mr. Oliver argues
that he was prejudiced by the Board member’s actions, the Court has directed the Board to reopen
the claim, and he is aware of the nature of the record as currently developed. Moreover, upon
remand, he is free to request another Board hearing. See Cook v. Snyder, 28 Vet.App. 330, 343
(2017) (holding that claimants have “the right to request and receive a Board hearing for the
purpose of submitting additional evidence after a remand from the Court”), aff’d sub nom. Cook v.
Wilkie, 908 F.3d. 813 (Fed. Cir. 2018).
On remand, Mr. Oliver is free to submit additional arguments and evidence, 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 Court reminds the
Board that “[a] remand is meant to entail a critical examination of the justification for the [Board’s]
decision,” Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991), and must be performed in an
expeditious manner in accordance with 38 U.S.C. § 7112.
IV. CONCLUSION
Upon consideration of the foregoing, the Board’s finding in its March 12, 2019, decision
that the veteran did not submit new and material evidence sufficient to reopen the previously
denied claim for service connection for a back condition is REVERSED and the matter is
REMANDED with instructions to reopen the previously denied claim.
DATED: May 22, 2020
Copies to:
Peter J. Sebekos, Esq.
VA General Counsel (027)

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