Veteranclaims’s Blog

January 5, 2022

Single Judge Application; pain; Saunders; In Saunders v. Wilkie, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that “pain alone, without an accompanying diagnosis or identifiable condition . . . can cause functional impairment” and thus constitute a disability for VA benefits purposes, Saunders, 886 F.3d at 1368; Court explained in Shade v. Shinseki that the “material evidence” requirement sets a “low threshold,” and if newly submitted evidence raises “a reasonable possibility of substantiating the claim,” the claim should be reopened.27 The Court also emphasized that 38 C.F.R. § 3.156(a) “must be viewed as enabling rather than precluding reopening.” 28 Here, the Board found that appellant’s March 2019 Board hearing testimony was new evidence but not material since it was “not germane to the lack of a current right shoulder disability.” 29 The Court finds this determination clearly erroneous because, post-Saunders, appellant’s reports of stiffness and pain go toward proving the previously missing, current disability element for service connection and cross Shades’s low threshold for what qualifies as material evidence. See Saunders, 886 F.3d at 1368; see also Shade, 24 Vet.App. at 121. ; Put simply, appellant’s March 2019 Board hearing testimony goes toward proving that he has a current right shoulder disability, which then raises the reasonable possibility of substantiating entitlement to service connection for a right shoulder disorder. See Shedden, 381 F.3d at 1166-67 (covering what is necessary to establish service connection);

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20-3257
ALMON HAYNES, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before LAURER, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
LAURER, Judge: United States Army veteran Almon Haynes appeals, through counsel, a
February 6, 2020, Board of Veterans’ Appeals (Board) decision determining that there was no new
and material evidence to warrant reopening his service connection claim for a right shoulder
disorder and denying service connection for (1) a chest disorder and (2) a right knee disorder, to
include as secondary to a left knee disability.1
The Secretary concedes that remand is warranted for the Board to provide adequate reasons
or bases addressing whether appellant has submitted new and material evidence sufficient to
reopen his claim for a right shoulder disorder.2 The Secretary specifically acknowledges that the
1 Record (R.) at 5-20. The Board found that appellant submitted new and material evidence to reopen his
service connection claims for (1) a neck disorder, (2) a right knee condition, to include as secondary to a left knee
disability, and (3) migraines. R. at 5. These are favorable determinations that the Court may not disturb. See Medrano
v. Nicholson, 21 Vet.App. 165, 170 (2007), aff’d in part, dismissed in part sub nom. Medrano v. Shinseki , 332 F.
App’x 625 (Fed Cir. 2009). The Board also denied an increased rating for a left knee disability. R. at 5. Because
appellant does not challenge this part of the Board decision, the Court dismisses the appeal on that matter. See
Pederson v. McDonald, 27 Vet.App. 276, 281–85 (2015) (en banc) (finding that the Court may decline to review an
issue that appellant has abandoned on appeal). Lastly, the Board remanded appellant’s claims for (1) service
connection for a neck disorder, (2) service connection for migraines, and (3) a total disability rating based on individual
unemployability. Id. Because a Board remand is not a final decision subject to judicial review, the Court lacks
jurisdiction to review those claims. See Breeden v. Principi, 17 Vet.App. 475, 478 (2004) (per curiam order); see also
Howard v. Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000).
2 Secretary’s Brief (Br.) at 10.
2
Board erred when it did not explain whether appellant had presented new and material evidence
on the issue of current disability under Saunders v. Wilkie or the nexus issue. 3 But appellant
contends that, rather than remand the claim for the Board to provide adequate reasons or bases, the
Court should reverse the Board’s finding that reopening his claim for a right shoulder disorder was
not warranted.4 Because the evidence submitted by appellant was new and material, the Court finds
that the Board clearly erred in concluding that appellant failed to meet the criteria for reopening
his claim. Thus, the Court will reverse the Board’s finding and remand the matter for the Board to
reopen the denied claim.
Addressing his claim for a chest disorder, appellant argues that the Board failed to consider
Saunders and whether his reports of pain and stiffness could constitute a disability absent a
diagnosis.5 The Court agrees that the Board’s reasons or bases were inadequate because the Board
did not discuss whether appellant’s right shoulder pain and stiffness constituted a disability under
Saunders, so the Court will remand that part of the decision.
Appellant also asserts that the Board clearly erred in relying on inadequate VA
compensation and pension (C&P) exams to deny service connection for a right knee disorder. 6
Because those cited C&P medical opinions referenced general medical research without applying
appellant’s individua l medical history or the circumstances of his condition, the Court finds that
those C&P exams did not describe appellant’s disability in sufficient detail for the Board to make
a fully informed decision.7 The Court will thus remand the right knee claim for a new exam.
3 Secretary’s Br. at 10-12 (citing Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018)).
4 Appellant’s Reply Br. at 2-3.
5 Appellant’s Br. at 20-22.
6 Appellant’s Br. at 13-16.
7 D’Aries v. Peak e, 22 Vet.App. 97, 104 (2008) (per curiam).
3
I. ANALYSIS
A. Right Shoulder Disorder
VA will reopen a claim from a final decision if the veteran presents new and material
evidence.8 Deciding whether evidence is “new” differs from deciding whether it is “material. ” 9
Evidence is “new” if it was not in the record before. Moreover, new evidence cannot be redundant
or cumulative of evidence that was already in the record “at the time of the last prior final denia l
of the claim.”10 Evidence is “material” if, on its own or with other evidence, it “relates to an
unestablished fact necessary” to prove the claim.11 At bottom, new and material evidence cannot
be the same evidence that was before VA previously and must raise “a reasonable possibility of
substantiating the claim.”12
Establishing service connection generally requires evidence of (1) a current disability, (2)
incurrence or aggravation of a disease or injury in service, and (3) a nexus between the claimed
in-service disease or injury and the current disability. 13 As for reopening a claim for service
connection, the question is whether appellant has presented evidence to support one of these
elements that was missing at the time of VA’s initial decision. That evidence would be material
because it “relates to an unestablished fact necessary” for service connection.14 The parties do not
dispute that, in an August 2007 rating decision, the VA regional office (RO) denied appellant’s
claim for a right shoulder disorder because there was no evidence of a current disability or of
8 38 U.S.C. § 5108 (2012 & Supp. IV 2017); 38 C.F.R. § 3.156(a) (2021). Since the passage of the Veterans
Appeals Improvement and Modernization Act of 2017, VA no longer reopens claims based on “new and material
evidence.” Pub. L. No. 115-55, 131 Stat. 1105 (codified as amended in scattered sections of 38 U.S.C.); see 38 C.F.R.
§ 3.2400 (2021) (explaining that claims before the effective date of the Act are “legacy appeals” to be analyzed under
VA’s traditional process, and claims after that date will be adjudicated under a modernized appeal system); 38 C.F.R.
§ 19.2 (2021) (stating that the effective date of the Act is February 19, 2019). Instead, claimants can file supplemental
claims based on “new and relevant evidence.” 38 U.S.C. § 5108(a) (2018 & Supp. II 2021). VA adjudicated appellant’s
claim under the legacy appeals system, and therefore the “new and material evidence” standard applies here.
9 38 C.F.R. § 3.156(a).
10 Id.
11 Id.
12 Shade v. Shinseki, 24 Vet.App. 110, 117-18 (2010).
13 See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-
67 (Fed. Cir. 2004); 38 C.F.R. § 3.303 (2021).
14 38 C.F.R. § 3.156(a).
4
nexus.15 Thus, before VA would reopen his claim, he needed to submit evidence to either support
the current disability element or connect a current disability to service.
As with other findings of fact, the Court reviews the Board’s finding that appellant has not
submitted new and material evidence under the “clearly erroneous” standard.16 “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. ’” 17
That said, the Board must also support its determination with adequate reasons or bases that help
appellant to understand the precise basis for its decision and facilitate this Court’s review. 18
In March 2019, appellant testified before the Board that he had stiffness and aching in the
right shoulder and pain that went down his arm and into the right hand.19 The Board noted this
evidence but found that, while the evidence was new, it was “not germane to the lack of a current
right shoulder disability.”20 The Board also noted that treatment records contained no complaints
or diagnoses of a current disability related to appellant’s right shoulder.21 Thus, the Board found
that reopening was not warranted because appellant associated only new, and not material,
evidence with his claim for a right shoulder disorder.22
As the Secretary concedes, it is problematic that the Board considered appellant’s March
2019 testimony but determined, without acknowledging Saunders, that appellant had not
submitted new and material evidence on the issue of current disability.23 In Saunders v. Wilkie, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that “pain alone, without an accompanying diagnosis or identifiable condition . . . can cause functional impairment” and thus
constitute a disability for VA benefits purposes.24 The Federal Circuit decided Saunders in 2018,
15 Appellant’s Br. at 10; Secretary’s Br. at 11-12; see R. at 1417-18.
16 See King v. Shinseki, 23 Vet.App. 464, 467 (2010); see also 38 U.S.C. § 7261(a)(4).
17 Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992) (quoting United States v. U.S. Gypsum Co., 33 U.S. 364,
395 (1948)).
18 Allday v. Brown, 7 Vet.App. 517, 527 (1995).
19 R. at 47-49.
20 R. at 10.
21 Id.
22 Id.
23 See Secretary’s Br. at 10-11.
24 Saunders, 886 F.3d at 1368.
5
and the RO denied appellant’s claim for a right shoulder disability in August 2007, meaning that
the governing law at the time of the August 2007 rating decision was that any statement of pain
by itself could not establish a current disability. But the evidence submitted since the August 2007 denial and after the Saunders decision (i.e., appellant’s March 2019 Board hearing testimony) related to the unestablished fact of whether appellant has a current disability.25 This is because under Saunders, the pain and stiffness he experiences in his right shoulder may constitute a
disability for VA benefits purposes.26
This Court explained in Shade v. Shinseki that the “material evidence” requirement sets a “low threshold,” and if newly submitted evidence raises “a reasonable possibility of substantiating the claim,” the claim should be reopened.27 The Court also emphasized that 38 C.F.R. § 3.156(a) “must be viewed as enabling rather than precluding reopening.” 28 Here, the Board found that appellant’s March 2019 Board hearing testimony was new evidence but not material since it was “not germane to the lack of a current right shoulder disability.” 29 The Court finds this determination clearly erroneous because, post-Saunders, appellant’s reports of stiffness and pain go toward proving the previously missing, current disability element for service connection and cross Shades’s low threshold for what qualifies as material evidence.30 Put simply, appellant’s
March 2019 Board hearing testimony goes toward proving that he has a current right shoulder disability, which then raises the reasonable possibility of substantiating entitlement to service connection for a right shoulder disorder.31
Thus, the evidence was new and material, and the Court
will reverse the Board’s contrary determination and remand the matter for the Board to reopen
appellant’s claim for a right shoulder disorder and readjudicate the merits.
The Secretary argues that reversal is inappropriate when the Board has not addressed in the
first instance whether appellant has submitted new and material evidence on the issue of current
25 38 C.F.R. § 3.156(a).
26 Saunders, 886 F.3d at 1368.
27 Shade, 24 Vet.App. at 117-18.
28 Id. at 121.
29 R. at 10.
30 See Saunders, 886 F.3d at 1368; see also Shade, 24 Vet.App. at 121.
31 See Shedden, 381 F.3d at 1166-67 (covering what is necessary to establish service connection).
6
disability under the Federal Circuit’s holding in Saunders.32 Yet the Board considered appellant’s
March 2019 testimony and found that, while that evidence was new, it was “not germane to the
lack of a current right shoulder disability.”33 And where the Board “has performed the necessary
fact-finding and explicitly weighed the evidence,” the Court should reverse when “it is left with
the definite and firm conviction that a mistake has been committed.”34 Although the Board did not
explicitly discuss Saunders, it stated that it considered the new evidence but found the evidence
not material because it did not relate to any unestablished fact necessary to support appellant’s
claim.35 So the Board conducted its necessary factfinding, and as detailed above, the Court is
convinced that the Board clearly erred and that the only way in which to view the evidence involves
finding it sufficient to reopen appellant’s claim for a right shoulder disorder. The Court thus finds
reversal the appropriate remedy.
Along with advocating for the Court to reverse the Board’s finding and remand his claim
with instructions for the Board to reopen it, appellant argues that the Board must also procure a
VA exam.36 The Court in Shade emphasized that providing a VA exam is part of the duty to assist
and that with a claim to reopen, the duty to assist “does not attach unless the claim is reopened.”37
Because the Court reverses the Board’s finding that appellant did not provide new and material
evidence sufficient to reopen his claim for a right shoulder disability, and will remand the claim
for the Board to reopen it, the duty to assist attaches. This means that VA must provide a VA
medical exam or opinion if necessary to decide the claim.38 And because VA will readjudicate the
merits of the formerly denied claim based on evidence that the Court has identified as new and
material, the Court will permit the Agency to decide in the first instance whether an exam is
necessary.39
32 Secretary’s Br. at 12-13.
33 R. at 10.
34 Deloach v. Shinseki, 704 F.3d 1370, 1380 (Fed. Cir. 2013) (citing U.S. Gypsum Co., 333 U.S. at 395); see
also Gutierrez v. Principi, 19 Vet.App. 1, 10 (2004) (“[R]eversal is the appropriate remedy when the only permissible
view of the evidence is contrary to the Board’s decision.”).
35 R. at 10.
36 Appellant’s Br. at 11; Appellant’s Reply Br. at 3.
37 Shade, 24 Vet.App. at 120; 38 C.F.R. § 3.159(c)(4)(iii) (2021).
38 38 C.F.R. § 3.159(c)(4).
39 Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006); see also Hensley v. West, 212 F.3d 1255,
1263 (Fed. Cir. 2000) (“[A]ppellate tribunals are not appropriate for initial fact finding.”).
7
B. Chest Disorder
To reiterate, establishing service connection generally requires evidence of (1) a current
disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a nexus between
the claimed in-service disease or injury and the current disability.40 In the decision on appeal, the
Board stated that it considered appellant’s lay statements of chest pain but ultimately denied
service connection because the evidence showed that appellant did not have a current chest
disability.41 Yet it is unclear from the Board’s reasons or bases if it considered whether appellant’s
chest pain could constitute a current disability under Saunders. It appears that the Board relied on
an October 2014 C&P exam for muscle injuries in which the examiner did not diagnose any
disability.42 But this reliance ignores the Federal Circuit’s holding in Saunders that pain alone may
cause functional impairment, qualifying that pain as a disability for benefits purposes.43
As factfinder, the Board has the duty to weigh the evidence in the first instance,44 and the
Court requires the Board to adequately explain the reasons or bases for its factual determinations. 45
Here, the Court cannot tell whether the Board assessed the possible functional impact of
appellant’s reported chest pain,46 which frustrates the Court’s review of the Board’s decision to
deny service connection for a chest disorder. 47 Thus, the Court will remand for the Board to
provide adequate reasons or bases that address Saunders and explain how appellant’s chest pain
factored into the Board’s finding that he did not have a current disability.48
C. Right Knee Disorder
First, the Court notes that appellant’s only contention regarding his service connection
claim for a right knee disorder is that his service-connected left knee disability caused a right knee
40 See Holton, 557 F.3d at 1366; Shedden, 381 F.3d at 1166-67; 38 C.F.R. § 3.303.
41 R. at 10-11.
42 R. at 11; see R. at 484-89.
43 See Saunders, 886 F.3d at 1368.
44 Buchanan, 451 F.3d at 1336; see also Hensley, 212 F.3d at 1263.
45 Allday, 7 Vet.App. at 527.
46 See R. at 383-84 (March 2015 Notice of Disagreement in which appellant states that he has pain in his
right chest that continues daily); see also R. at 55-56 (March 2019 hearing before the Board during which appellant
testifies that he has throbbing pains in his chest).
47 Allday, 7 Vet.App. at 527.
48 Tucker v. West, 11 Vet.App. 369, 374 (1998).
8
condition. In a May 2014 C&P exam, the examiner diagnosed appellant with degenerative changes
of the right knee. 49 The Board found that, while arthritis is one of the diseases subject to
presumptive service connection,50 “the medical evidence does not show any right knee pathology
during service or for many years thereafter,” and thus appellant was not entitled to presumptive
service connection.51 The Board also determined that the evidence did not show that appellant’s
current right knee condition related to directly to service.52 The Court finds that appellant does not
dispute the Board’s determinations for either presumptive or direct service connection and that
appellant has thus chosen to rely solely on the theory that his right knee disorder should be service
connected as secondary to his left knee disability.53
That settled, appellant argues that the Board failed to ensure that VA complied with its
duty to assist because the Board relied on inadequate C&P exams to deny his claim for a right knee
disorder.54 Appellant specifically contends that these C&P examiners based their rationales on
generalized medical literature, “rather than crafting an opinion tailored specifically to this
particular veteran and his particular medical history.”55
When VA obtains a medical opinion, it must ensure that the opinion is adequate. 56 A
medical exam or medical opinion is adequate if it is “thorough and contemporaneous,”57 considers
a veteran’s prior medical history, and “describes the disability . . . in sufficient detail so that the
Board’s ‘evaluation of the claimed disability will be a fully informed one.’”58 Although medical
49 R. at 816.
50 See 38 C.F.R. § 3.309(f) (2021).
51 R. at 11-12.
52 R. at 12.
53 See Mason v. Shinseki, 25 Vet.App. 83, 95 (2011) (“Considering arguments not raised by the parties
essentially wrests control of the litigation away from the parties, who, for any number of reasons, may have chosen
not to advance such arguments to the Court.”); see also Massie v. Shinseki, 25 Vet.App. 123, 131 (2011) (stating that
the Board “was entitled to assume that the arguments presented by Mr. Massie were limited for whatever reason under
the advice of counsel and that those were the theories upon which he intended to rely”); Robinson v. Peake, 21
Vet.App. 545, 554 (2008) (“We presume that Mr. Cameron, an experienced attorney in veterans law, says what he
means and means what he says.”), aff’d sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009).
54 Appellant’s Br. at 13.
55 Appellant’s Br. at 14-15.
56 Barr v. Nicholson, 21 Vet.App. 303, 311 (2007); see also 38 C.F.R. § 4.2 (2021).
57 Ardison v. Brown, 6 Vet.App. 405, 407 (1994).
58 D’Aries, 22 Vet.App. at 104 (quoting Green v. Derwinski, 1 Vet.App. 121, 124 (1991)).
9
examiners need not provide reasons or bases for their conclusions,59 nor a detailed review of the
veteran’s medical history,60 their opinions must contain reasoned medical explanations connecting
their conclusions to supporting data.61 “The bottom line is that ‘VA medical examiners . . . are
nothing more or less than expert witnesses.’”62 “Thus, their opinions ‘are adequate when they
sufficiently inform the Board of a medical expert’s judgment on a medical question and the
essential rationale for that opinion.’”63
Just as the Court reviews other findings of fact, the Court applies the “clearly erroneous”
standard to review the Board’s findings on whether a medical exam or opinion was adequate. 64
The Board must also support its factual findings with adequate reasons or bases that allow a
claimant to understand the precise reasons for the Board’s decision and facilitate this Court’s
review.65
On the issue of whether appellant’s right knee disability related to his service -connected
left knee disability, the Board found that March 2008, May 2011, and May 2014 C&P exams were
the most probative evidence of record.66 The Board found the May 2014 C&P exam especially
probative because the examiner “provided a complete and thorough rationale in support of his
opinion, thoroughly detailing all pertinent medical evidence” and “citing medical literature.” 67
Except the problem with the May 2014 C&P exam is that the examiner based his opinion
that it was “not as likely as not that [appellant’s] right knee condition is the direct or proximal
result of his [service-connected] left knee condition” on the general conclusion that medical studie s
do not support “a relationship that favoring one lower extremity will result in injury to the opposite
59 Acevedo v. Shinseki, 25 Vet.App. 286, 293 (2012).
60 Monzingo v. Shinseki, 26 Vet.App. 97, 105-06 (2012) (per curiam).
61 See Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007).
62 Miller v. Wilkie, 32 Vet.App. 249, 254 (2020) (quoting Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 304
(2008)).
63 Id. at 254 (quoting Monzingo, 26 Vet.App. at 105).
64 D’Aries, 22 Vet.App. at 104 (reviewing the Board’s reliance on a medical exam for clear error). “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, 2 Vet.App. at 94
(quoting U.S. Gypsum Co., 33 U.S. at 395).
65 Allday, 7 Vet.App. at 527.
66 R. at 12; see R. at 1373-75 (March 2008 C&P exam), 1155-56 (May 2011 C&P exam), 814-22 (May 2014
C&P exam).
67 R. at 12-13.
10
lower extremity.”68 So while the C&P examiner cited medical literature that found “no hard data
to support the belief that favoring one leg adversely affects the other,”69 there is nothing in his
rationale addressing appellant’s unique circumstances.70 Without tying in the details of appellant’s
case, the May 2014 C&P examiner failed to describe appellant’s disability in sufficient detail for
the Board to make a fully informed decision.71 What’s more, the May 2011 and March 2008 C&P
exams do not offer any more rationale than that provided in the May 2014 C&P exam. In fact, the
rationale provided by the May 2011 examiner is a carbon copy of that provided by the May 2014
examiner.72 Thus, because the Board clearly erred in finding the May 2014 C&P exam adequate,
the Court will remand for VA to obtain a new exam.
Given this disposition, the Court need not address appellant’s remaining arguments.73 On
remand, appellant may submit additional evidence and argument; he has 90 days to do so from the
date of VA’s postremand notice.74
II. CONCLUSION
For these reasons, the Court REVERSES that part of the February 6, 2020, Board decision
determining that there was no new and material evidence to warrant reopening appellant’s service
connection claim for a right shoulder disorder, and the Court REMANDS the matter with
instructions to reopen the denied claim. The Court also SETS ASIDE and REMANDS those parts
of the Board’s decision denying service connection for (1) a chest disorder and (2) a right knee
disorder, to include as secondary to a left knee disability.
68 R. at 821.
69 Id.
70 See Bailey v. O’Rourke, 30 Vet.App. 54, 60 (2018) (finding a VA medical opinion inadequate “because
the rationale was based solely on general articles and did not discuss any facts pertaining to Mr. Bailey’s condition or
individual circumstances, including any risk factors” contributing to his particular disability); see Stefl, 21 Vet.App.
at 124 (noting that several relevant points may be discussed in an examination report, including “whether the veteran
has other risk factors for developing the claimed condition” and “whether the claimed condition has manifested itself
in an unusual manner”).
71 D’Aries, 22 Vet.App. at 104.
72 Compare R. at 821, with R. at 1156.
73 See Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam order) (“A narrow decision preserves for the
appellant an opportunity to argue those claimed errors before the Board at the readjudication . . . .”).
74 Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order).
11
DATED: January 4, 2022
Copies to:
Glenn R. Bergmann, Esq.
VA General Counsel (027)

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