Veteranclaims’s Blog

January 18, 2022

Single Judge Application; retroactive assertion of continuous symptoms is competent evidence; Savage v. Gober, 10 Vet.App. 488, 497 (1997) (holding that a lay statement containing a retroactive assertion of continuous symptoms is competent evidence sufficient for this purpose);

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-0307
GARY R. SEXTON, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before HAGEL, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
HAGEL, Judge: Gary R. Sexton appeals through counsel a January 11, 2010, Board of
Veterans’ Appeals (Board) decision finding that Mr. Sexton had not submitted new and material
evidence sufficient to reopen a previously denied claim for gastroesophageal reflux disorder.1 Mr.
Sexton’s Notice of Appeal was timely and the Court has jurisdiction to review the Board decision
pursuant to 38 U.S.C. § 7252(a). Neither party requested oral argument or identified issues believed
to require a precedential decision of the Court. Because the Board’s findings are clearly erroneous
and are not supported by an adequate statement of reasons or bases, the Court will vacate the January
2010 Board decision, reverse that portion of the decision finding that Mr. Sexton had not submitted
new and material evidence sufficient to reopen the previously denied claim for gastroesophageal
reflux disorder, and remand the matter for further development, if necessary, and readjudication
consistent with this decision.
1 The Board also remanded Mr. Sexton’s claim for VA benefits for an ulcer, to include as secondary to serviceconnected
post-traumatic stress disorder. That claim is therefore not before the Court at this time. See 38 U.S.C. § 7266
(stating that the Court reviews only final decisions of the Board); see also Howard v. Gober, 220 F.3d 1341, 1344 (Fed.
Cir. 2000) (Board remand does not constitute a final decision that may be appealed (citing 38 C.F.R. § 20.1100(b)
(1999))).
I. FACTS
Mr. Sexton served on active duty in the U.S. Navy from March 1967 to November 1968,
including service in Viet Nam. During service, Mr. Sexton complained several times of nausea and
vomiting.
In July 2003, Mr. Sexton filed a claim for VA benefits for “acid reflux,” including as
secondary to his post-traumatic stress disorder. Record (R.) at 627. In July 2004, he was afforded
a VA medical examination. The VA examiner diagnosed Mr. Sexton with gastroesophageal reflux
disease and opined that the disorder was not caused by post-traumatic stress disorder. The examiner
also stated that if Mr. Sexton did not have post-traumatic stress disorder, he would most likely still
have gastroesophageal reflux disorder.
In August 2004, a VA regional office denied Mr. Sexton’s claim. Mr. Sexton appealed that
decision to the Board and, in a February 2007 decision, the Board also denied Mr. Sexton’s claim
because there was no competent evidence relating his gastroesophageal reflux disorder directly to
service or to his service-connected post-traumatic stress disorder. Mr. Sexton did not appeal that
decision and it became final.
In October 2007, Mr. Sexton filed an application to reopen his previously denied claim for
VA benefits for gastroesophageal reflux disorder. With his claim, he submitted a letter from his wife
stating that she met Mr. Sexton shortly after he returned from service and that he had suffered from
symptoms of gastroesophageal reflux disease since that time.
Also in support of his claim, Mr. Sexton submitted private treatment records from St.
Elizabeth’s hospital dated in the 1970s. The private medical records reflect that, at that time, Mr.
Sexton complained of burning in the back of his throat.
In a November 2007 rating decision, the regional office found that Mr. Sexton had not
submitted new and material evidence sufficient to reopen his previously denied claim for
gastroesophageal reflux disorder. Mr. Sexton appealed that decision to the Board.
In the January 2010 Board decision currently on appeal, the Board also found that Mr. Sexton
had not submitted new and material evidence sufficient to reopen his previously denied claim. The
Board defined new and material evidence, noted the evidence Mr. Sexton had submitted since the
time of the last prior denial, and explained why it found that the evidence was not material.
2
II. ANALYSIS
A. New and Material Evidence
On appeal, Mr. Sexton argues that the Board applied an improper standard of review and
overlooked favorable evidence in finding that he had not submitted evidence that met the
requirements to be new and material evidence sufficient to reopen his claim. In response, the
Secretary contends that the Board’s findings are not clearly erroneous and are supported by an
adequate statement of reasons or bases. The Court agrees with Mr. Sexton.
The Secretary must reopen a previously and finally disallowed claim when “new and material
evidence” is presented or secured. 38 U.S.C. §§ 5108, 7104(b), 7105(c); 38 C.F.R. § 3.156(a)
(2011). To satisfy these requirements, the evidence “must be both new and material.” Smith v. West,
12 Vet.App. 312, 314 (1999). “New evidence” is evidence “not previously submitted to agency
decisionmakers.” 38 C.F.R. § 3.156(a). “Material evidence” is evidence that “by itself or when
considered with previous evidence of record, relates to an unestablished fact necessary to
substantiate the claim.” Id. New and material evidence “can be neither cumulative or redundant.”
38 C.F.R. § 3.156(a). The U.S. Court of Appeals for the Federal Circuit has explained that the basis
for new and material evidence is “not to require the veteran to demonstrate that the new evidence
would probably change the outcome of the claim; rather, it emphasizes the importance of a complete
record for evaluation of a veteran’s claim.” Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998);
see Prillaman v. Principi, 346 F.3d 1362 (Fed. Cir. 2003); Elkins v. West, 12 Vet.App. 209, 216
(1999).
The Court reviews the Board’s determination of whether the appellant has submitted new and
material evidence to reopen a prior claim under the “clearly erroneous” standard of review set forth
in 38 U.S.C. § 7261(a)(4). Suaviso v. Nicholson, 19 Vet. App. 532, 533 (2006). “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 Court may not substitute its judgment for the factual determinations of the Board
on issues of material fact merely because the Court would have decided those issues differently in
the first instance. See id.
3
Here, the Board found that the unestablished fact necessary to substantiate Mr. Sexton’s claim
for VA benefits for gastroesophageal disorder was nexus evidence, i.e., evidence that this condition
was related to active service. The Court concludes that the Board’s determination that Mr. Sexton’s
wife’s lay statement regarding his continuous symptoms of stomach problems was not new and
material is clearly erroneous. First, the Court notes that, in determining whether evidence submitted
by a claimant is new and material, the Board must presume that the evidence is credible. Justus v.
Principi, 3 Vet.App. 510, 513. Thus, this statement, combined with the complaints of nausea and
vomiting noted in service, certainly relates to an unestablished fact necessary to substantiate the
claim. See Savage v. Gober, 10 Vet.App. 488, 497 (1997) (holding that a lay statement containing
a retroactive assertion of continuous symptoms is competent evidence sufficient for this purpose)
.
The Court observes that throughout its decision, the Board focuses on the fact that Mr.
Sexton was not diagnosed with gastroesophageal reflux disorder during service or shortly thereafter
to justify its decision that Mr. Sexton had not submitted new and material evidence. However,
establishing continuous symptoms, as described in Savage, supra, does not require that a claimant
be diagnosed with the same condition both in service and at the time of his claim for VA benefits.
Rather, in Savage, the court was much more concerned with the symptoms described than the
precise, in-service diagnosis. Further, this Court has also held that “identical in-service and current
diagnoses are not required for the purpose of a . . . claim for service connection.” Hodges v. West,
13 Vet.App. 287, 292 (2000). In addition, although the Board noted that Mr. Sexton suffered from
nausea and headaches during service, the Board did not make any findings as to whether these
symptoms were related to his subsequently diagnosed gastroesophageal reflux disorder.
Accordingly, the Court concludes that the Board’s finding that Mr. Sexton did not submit new
and material evidence sufficient to reopen his previously denied claim for gastroesophageal reflux
disorder is clearly erroneous. See Shade v. Shinseki, 24 Vet.App. 110, 122-23 (2010). On remand,
the Board should consider the merits of Mr. Sexton’s reopened claim, including whether he is
entitled to a VA medical examination. See McLendon v. Nicholson, 20 Vet.App. 79 (2006).
B. Inextricably Intertwined
Mr. Sexton also argues that the Board erred in not finding that his request to reopen his
previously denied claim for a gastroesophageal disorder was inextricably intertwined with his claim
4
for VA benefits for an ulcer condition, which was remanded in the January 2010 Board decision.
The Secretary argues that the Court does not have jurisdiction to address this argument. The Court
agrees with the Secretary.
This Court has held that “where a decision on one issue would have a ‘significant impact’
upon another, and that impact in turn ‘could render any review by this Court of the decision [on the
claim] meaningless and a waste of judicial resources,’ the two claims are inextricably intertwined.”
Henderson v. West, 12 Vet.App. 11, 20 (1998) (quoting Harris v. Derwinski, 1 Vet.app. 180, 183
(1991), overruled on other grounds by Tyrues v. Shinseki, 23 Vet.App. 166 (2009)).
Here, the Court is reversing and remanding Mr. Sexton’s claim for gastroesophageal reflux
disorder. Because whether this claim is inextricably intertwined with his previously remanded claim
for an ulcer is a finding of fact that should be made by the Board in the first instance, the Court will
instruct the Board to make such a finding on remand.
III. CONCLUSION
Upon consideration of the foregoing, the January 11, 2010, Board decision is REVERSED
and the matter is REMANDED for further development, if necessary, and readjudication consistent
with this decision.
DATED: August 25, 2011
Copies to:
Perry A. Pirsch, Esq.
VA General Counsel (027)
5

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-0307
GARY R. SEXTON, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before HAGEL, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
HAGEL, Judge: Gary R. Sexton appeals through counsel a January 11, 2010, Board of
Veterans’ Appeals (Board) decision finding that Mr. Sexton had not submitted new and material
evidence sufficient to reopen a previously denied claim for gastroesophageal reflux disorder.1 Mr.
Sexton’s Notice of Appeal was timely and the Court has jurisdiction to review the Board decision
pursuant to 38 U.S.C. § 7252(a). Neither party requested oral argument or identified issues believed
to require a precedential decision of the Court. Because the Board’s findings are clearly erroneous
and are not supported by an adequate statement of reasons or bases, the Court will vacate the January
2010 Board decision, reverse that portion of the decision finding that Mr. Sexton had not submitted
new and material evidence sufficient to reopen the previously denied claim for gastroesophageal
reflux disorder, and remand the matter for further development, if necessary, and readjudication
consistent with this decision.
1 The Board also remanded Mr. Sexton’s claim for VA benefits for an ulcer, to include as secondary to serviceconnected
post-traumatic stress disorder. That claim is therefore not before the Court at this time. See 38 U.S.C. § 7266
(stating that the Court reviews only final decisions of the Board); see also Howard v. Gober, 220 F.3d 1341, 1344 (Fed.
Cir. 2000) (Board remand does not constitute a final decision that may be appealed (citing 38 C.F.R. § 20.1100(b)
(1999))).
I. FACTS
Mr. Sexton served on active duty in the U.S. Navy from March 1967 to November 1968,
including service in Viet Nam. During service, Mr. Sexton complained several times of nausea and
vomiting.
In July 2003, Mr. Sexton filed a claim for VA benefits for “acid reflux,” including as
secondary to his post-traumatic stress disorder. Record (R.) at 627. In July 2004, he was afforded
a VA medical examination. The VA examiner diagnosed Mr. Sexton with gastroesophageal reflux
disease and opined that the disorder was not caused by post-traumatic stress disorder. The examiner
also stated that if Mr. Sexton did not have post-traumatic stress disorder, he would most likely still
have gastroesophageal reflux disorder.
In August 2004, a VA regional office denied Mr. Sexton’s claim. Mr. Sexton appealed that
decision to the Board and, in a February 2007 decision, the Board also denied Mr. Sexton’s claim
because there was no competent evidence relating his gastroesophageal reflux disorder directly to
service or to his service-connected post-traumatic stress disorder. Mr. Sexton did not appeal that
decision and it became final.
In October 2007, Mr. Sexton filed an application to reopen his previously denied claim for
VA benefits for gastroesophageal reflux disorder. With his claim, he submitted a letter from his wife
stating that she met Mr. Sexton shortly after he returned from service and that he had suffered from
symptoms of gastroesophageal reflux disease since that time.
Also in support of his claim, Mr. Sexton submitted private treatment records from St.
Elizabeth’s hospital dated in the 1970s. The private medical records reflect that, at that time, Mr.
Sexton complained of burning in the back of his throat.
In a November 2007 rating decision, the regional office found that Mr. Sexton had not
submitted new and material evidence sufficient to reopen his previously denied claim for
gastroesophageal reflux disorder. Mr. Sexton appealed that decision to the Board.
In the January 2010 Board decision currently on appeal, the Board also found that Mr. Sexton
had not submitted new and material evidence sufficient to reopen his previously denied claim. The
Board defined new and material evidence, noted the evidence Mr. Sexton had submitted since the
time of the last prior denial, and explained why it found that the evidence was not material.
2
II. ANALYSIS
A. New and Material Evidence
On appeal, Mr. Sexton argues that the Board applied an improper standard of review and
overlooked favorable evidence in finding that he had not submitted evidence that met the
requirements to be new and material evidence sufficient to reopen his claim. In response, the
Secretary contends that the Board’s findings are not clearly erroneous and are supported by an
adequate statement of reasons or bases. The Court agrees with Mr. Sexton.
The Secretary must reopen a previously and finally disallowed claim when “new and material
evidence” is presented or secured. 38 U.S.C. §§ 5108, 7104(b), 7105(c); 38 C.F.R. § 3.156(a)
(2011). To satisfy these requirements, the evidence “must be both new and material.” Smith v. West,
12 Vet.App. 312, 314 (1999). “New evidence” is evidence “not previously submitted to agency
decisionmakers.” 38 C.F.R. § 3.156(a). “Material evidence” is evidence that “by itself or when
considered with previous evidence of record, relates to an unestablished fact necessary to
substantiate the claim.” Id. New and material evidence “can be neither cumulative or redundant.”
38 C.F.R. § 3.156(a). The U.S. Court of Appeals for the Federal Circuit has explained that the basis
for new and material evidence is “not to require the veteran to demonstrate that the new evidence
would probably change the outcome of the claim; rather, it emphasizes the importance of a complete
record for evaluation of a veteran’s claim.” Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998);
see Prillaman v. Principi, 346 F.3d 1362 (Fed. Cir. 2003); Elkins v. West, 12 Vet.App. 209, 216
(1999).
The Court reviews the Board’s determination of whether the appellant has submitted new and
material evidence to reopen a prior claim under the “clearly erroneous” standard of review set forth
in 38 U.S.C. § 7261(a)(4). Suaviso v. Nicholson, 19 Vet. App. 532, 533 (2006). “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 Court may not substitute its judgment for the factual determinations of the Board
on issues of material fact merely because the Court would have decided those issues differently in
the first instance. See id.
3
Here, the Board found that the unestablished fact necessary to substantiate Mr. Sexton’s claim
for VA benefits for gastroesophageal disorder was nexus evidence, i.e., evidence that this condition
was related to active service. The Court concludes that the Board’s determination that Mr. Sexton’s
wife’s lay statement regarding his continuous symptoms of stomach problems was not new and
material is clearly erroneous. First, the Court notes that, in determining whether evidence submitted
by a claimant is new and material, the Board must presume that the evidence is credible. Justus v.
Principi, 3 Vet.App. 510, 513. Thus, this statement, combined with the complaints of nausea and
vomiting noted in service, certainly relates to an unestablished fact necessary to substantiate the
claim. See Savage v. Gober, 10 Vet.App. 488, 497 (1997) (holding that a lay statement containing
a retroactive assertion of continuous symptoms is competent evidence sufficient for this purpose).
The Court observes that throughout its decision, the Board focuses on the fact that Mr.
Sexton was not diagnosed with gastroesophageal reflux disorder during service or shortly thereafter
to justify its decision that Mr. Sexton had not submitted new and material evidence. However,
establishing continuous symptoms, as described in Savage, supra, does not require that a claimant
be diagnosed with the same condition both in service and at the time of his claim for VA benefits.
Rather, in Savage, the court was much more concerned with the symptoms described than the
precise, in-service diagnosis. Further, this Court has also held that “identical in-service and current
diagnoses are not required for the purpose of a . . . claim for service connection.” Hodges v. West,
13 Vet.App. 287, 292 (2000). In addition, although the Board noted that Mr. Sexton suffered from
nausea and headaches during service, the Board did not make any findings as to whether these
symptoms were related to his subsequently diagnosed gastroesophageal reflux disorder.
Accordingly, the Court concludes that the Board’s finding that Mr. Sexton did not submit new
and material evidence sufficient to reopen his previously denied claim for gastroesophageal reflux
disorder is clearly erroneous. See Shade v. Shinseki, 24 Vet.App. 110, 122-23 (2010). On remand,
the Board should consider the merits of Mr. Sexton’s reopened claim, including whether he is
entitled to a VA medical examination. See McLendon v. Nicholson, 20 Vet.App. 79 (2006).
B. Inextricably Intertwined
Mr. Sexton also argues that the Board erred in not finding that his request to reopen his
previously denied claim for a gastroesophageal disorder was inextricably intertwined with his claim
4
for VA benefits for an ulcer condition, which was remanded in the January 2010 Board decision.
The Secretary argues that the Court does not have jurisdiction to address this argument. The Court
agrees with the Secretary.
This Court has held that “where a decision on one issue would have a ‘significant impact’
upon another, and that impact in turn ‘could render any review by this Court of the decision [on the
claim] meaningless and a waste of judicial resources,’ the two claims are inextricably intertwined.”
Henderson v. West, 12 Vet.App. 11, 20 (1998) (quoting Harris v. Derwinski, 1 Vet.app. 180, 183
(1991), overruled on other grounds by Tyrues v. Shinseki, 23 Vet.App. 166 (2009)).
Here, the Court is reversing and remanding Mr. Sexton’s claim for gastroesophageal reflux
disorder. Because whether this claim is inextricably intertwined with his previously remanded claim
for an ulcer is a finding of fact that should be made by the Board in the first instance, the Court will
instruct the Board to make such a finding on remand.
III. CONCLUSION
Upon consideration of the foregoing, the January 11, 2010, Board decision is REVERSED
and the matter is REMANDED for further development, if necessary, and readjudication consistent
with this decision.
DATED: August 25, 2011
Copies to:
Perry A. Pirsch, Esq.
VA General Counsel (027)
5

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