Veteranclaims’s Blog

June 12, 2020

Single Judge Application; 38 C.F.R. § 19.2(a), “[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 (2018) (emphasis added); see 38 C.F.R. § 3.156(a) (2019). However, 38 C.F.R. § 3.156(c) provides an exception to this rule. Paragraph (c)(1) provides, in pertinent part, “at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim.” 38 C.F.R. § 3.156(c)(1);

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-4274
THOMAS R. GOODE, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MEREDITH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
MEREDITH, Judge: The pro se appellant, Thomas R. Goode, appeals a June 5, 2019,
Board of Veterans’ Appeals (Board) decision that denied entitlement to disability compensation
for tinnitus. Record (R.) at 2-9. This appeal is timely, and the Court has jurisdiction to review the
Board’s 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). For the following reasons,
the Court will vacate the Board’s decision and remand the matter for further proceedings consistent
with this decision.
I. BACKGROUND
The appellant served on active duty in the U.S. Navy from September 1989 to September
1993, with additional Reserve service from 1995 to 2005. R. at 309; see R. at 184-90, 195, 214. In
August 2016, a VA regional office (RO) continued the prior denial of the appellant’s disability
compensation claim for tinnitus; the RO found no evidence of an in-service event, injury, or
disease, continuity of symptomatology, or a nexus to service. R. at 406-23. The appellant requested
that VA reopen his claim in December 2017; he asserted that he was exposed to jet engine noises
and heavy equipment during his work as an aviation electronics specialist and submitted a private
2
physician’s nexus opinion and a statement from his cousin. R. at 317. The RO denied his request
in February 2018. R. at 198-215. Later that month, he submitted additional service records and
disagreed with the RO’s denial. R. at 169-82, 183-97. The RO issued a Statement of the Case in
March 2018 declining to reopen the claim because the newly submitted evidence—treatment
records from a private doctor and a statement from the appellant’s cousin—was duplicative of
evidence considered in the prior denial, R. at 60-76, and he perfected his appeal, R. at 52.
In the June 2019 decision on appeal, the Board denied entitlement to benefits for tinnitus
on a direct and presumptive basis. R. at 2-9. This appeal followed.
II. ANALYSIS
In his informal brief, which the Court liberally construes, the appellant argues that the
Board incorrectly stated facts concerning a March 2016 VA examination and failed to apply the benefit of the doubt and decide the matter based on “all” the evidence; he also reasserts arguments made in his Notice of Disagreement and Substantive Appeal. Appellant’s Informal Brief (Br.) at 1-3 (citing R. at 52 and 177); Attachment #2; see De Perez v. Derwinski, 2 Vet.App. 85, 86 (1992).
He requests that the Court grant entitlement to disability benefits for tinnitus. Appellant’s Informal Br. at 1, 3. The Secretary concedes that remand is appropriate because the Board erred by addressing the appellant’s underlying claim in the first instance after it decided that the claim should be reopened. Secretary’s Br. at 3-5 (citing Hickson v. Shinseki, 23 Vet.App. 394, 399(2010)).
For claims to reopen decided prior to February 19, 2019, see 38 C.F.R. § 19.2(a), “[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 (2018) (emphasis added); see 38 C.F.R. § 3.156(a) (2019). However, 38 C.F.R. § 3.156(c) provides an exception to this rule. Paragraph (c)(1) provides, in pertinent part, “at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim.” 38 C.F.R. § 3.156(c)(1)
.
“In contrast to the general rule, § 3.156(c) requires the VA to reconsider a veteran’s claim
when relevant service department records are newly associated with the veteran’s claims file,
whether or not they are ‘new and material’ under § 3.156(a).” Blubaugh v. McDonald, 773 F.3d
3
1310, 1313 (Fed. Cir. 2014). In George v. Shulkin, the Court explained that “reconsideration” under
paragraph (c)(1) requires VA to reassess its original decision “in light of the new service records”
and noted that this may also include the development of additional evidence. 29 Vet.App. 199, 205
(2018), vacated on other grounds sub nom. George v. Wilkie, 782 F. App’x 997 (Fed. Cir. 2019).
In the decision on appeal, the Board noted that the appellant’s claim for tinnitus was denied
in 2016 and he requested that VA reopen the claim in December 2017. R. at 4. In that regard, the
Board further noted that, in addition to seeking to reopen, additional service personnel records had
been associated with the claims file. R. at 4. The Board found that “the personnel records are
relevant, being that [they] pertain[] to the dates and circumstances of the [appellant’s] service, as
he has contended that his current claimed condition is due to noise exposure during service,” and
thus determined that “a de novo review of the [appellant’s] claim [wa]s warranted.” R. at 4.
The Board then denied his claim, finding that, although he has a current diagnosis of
tinnitus and VA conceded noise exposure in service, R. at 5, “the objective medical evidence of
record does not establish that [his] tinnitus was incurred in active service or otherwise related to
his in-service noise exposure,” R. at 6. Further, the Board found that he was not entitled to benefits
on a presumptive basis in large part because his 2016 reports regarding ringing in his ears indicate
that onset had occurred only 4 years prior. R. at 6-7.
Here, the Court accepts the Secretary’s concession that the Board erred when it essentially
recognized that the appellant’s claim had not been reconsidered based on the addition of relevant
service department records, yet failed to address whether it was proper for the Board to reconsider
the claim on the merits in the first instance. See Secretary’s Br. at 3-4 (citing Hickson, 23 Vet.App.
at 399-400 (holding that, when the Board reopens a claim that the RO declined to reopen, it may
not consider new evidence and decide the matter without obtaining a waiver from the claimant or
determining that the claimant will not be prejudiced by such adjudication)). As conceded by the
Secretary, this error essentially denied the appellant entitlement to “‘one review on appeal to the
Secretary.'” Disabled Am. Veterans v. Sec’y of Veterans Affairs, 327 F.3d 1339, 1347 (Fed. Cir.
2003) (“[w]hen the Board obtains evidence that was not considered by the [RO] 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” (quoting
38 U.S.C. § 7104(a)). Accordingly, remand is warranted.
4
Given this disposition, the Court will not now address the remaining arguments and issues
raised by the appellant. See Quirin v. Shinseki, 22 Vet.App. 390, 395 (2009) (noting that “the Court
will not ordinarily consider additional allegations of error that have been rendered moot by the
Court’s opinion or that would require the Court to issue an advisory opinion”); Best v. Principi,
15 Vet.App. 18, 20 (2001) (per curiam order). On remand, the appellant is free to submit additional
evidence and argument on the remanded matter, including the specific arguments raised here on
appeal, and the Board is required to consider any such relevant evidence and argument. See Kay
v. Principi, 16 Vet.App. 529, 534 (2002) (stating that, on remand, the Board must consider
additional evidence and argument in assessing entitlement to the benefit sought); Kutscherousky
v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). The Court reminds the Board that
“[a] remand is meant to entail a critical examination of the justification for the decision,” Fletcher
v. Derwinski, 1 Vet.App. 394, 397 (1991), and the Board must proceed expeditiously, in
accordance with 38 U.S.C. § 7112.
III. CONCLUSION
After consideration of the parties’ pleadings and a review of the record, the Board’s June 5,
2019, decision is VACATED and the matter is REMANDED for further proceedings consistent
with this decision.
DATED: June 11, 2020
Copies to:
Thomas R. Goode
VA General Counsel (027)

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